Articles

The OHS-Act is NOT a Guideline

Posted on 4/10/2013 by Jan Hartzer
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The OHS act is an enforceable piece of legislation and it is the responsibility of companies everywhere to comply. Learn more about what this entails for your business.


”The OHS-act is just a guideline and not a law”. This statement was made in the presence of the client’s safety consultant and other employees of the contractor.

A week later a cradle (carrying 3 workers and two visitors) attached to a mobile crane (the crane was not classified to lift cradles) fell to the ground killing four people and critically injuring the other two. In short: the spouses of the deceased and the injured sued for millions.

The insurance company and workman's compensation refused to pay out. Senior personnel, from the Safety officer through to the C.E.O., were held responsible and were criminally charged. They were fined and imprisoned for non-compliance of a regulation. The company closed down and the Safety officer could not again get work because of his criminal record.

The statement of the Safety Officer has no basis. The Ohs-act is an act. It resorts under the statutes of South Africa.

Let us have a look at a few definitions:

Act:


A statutory plan passed by Congress or any legislature which is a "bill" until enacted and becomes law. (http://legal-dictionary.thefreedictionary.com/act). The OHS-act has been enacted and it is law.

Statute:


1.    A law enacted by a legislature.
2.    A decree or edict, as of a ruler.
3.    An established law or rule, as of a corporation.
4.    Synonym:  legislative act.
5.    The OCCUPATIONAL HEALTH AND SAFETY ACT NO. 85 OF 1993 is regarded as, and I quote from the act, STATUTES OF THE REPUBLIC OF SOUTH AFRICA-MINES, WORKS AND FACTORIES

Statutory:


1.    Of or relating to a statute.
2.    Enacted, regulated, or authorized by statute.
3.    (Law) of, relating to, or having the nature of a statute
4.    (Law) prescribed or authorized by statute
5.    (Law) (of an offence) 
  a.    Recognized by statute
b.    Subject to a punishment or penalty prescribed by statute
6.    Thesaurus Legend: Synonyms Related Words
  a.    Statutory - relating to or created by statutes; "statutory matters"; "statutory law
b.    Statutory - prescribed or authorized by or punishable under a statute; "statutory restrictions"; "a statutory age limit"; "statutory crimes"; "statutory rape"

Legal:


Established by or founded upon law or official or accepted rules

OHS-Act:


Occupational Health and Safety Act No. 85 of 1993 and all amendments.

OHS-Act and regulations:


1)    Section 43 of the OHS-act makes provision for all regulations and these regulations are enforceable.  Section 43 (4) specifically provides for penalties, fines and even imprisonment for non-compliance of any regulation.
2)    The GAR (General Administrative Regulations) specifies in section 12 the penalties, fines and imprisonment for non-compliance. Subsequently, all the other regulations specify penalties, fines and imprisonment for non-compliance.

Department of labour:

The OHS-act is listed under the Heading: “Legislation” and not under guidelines on the Department of Labour’s website. The Department of Labour views the OHS-act as legislation and not as guidelines.

References:


 
  • The American Heritage® Dictionary of the English Language, Fourth Edition copyright ©2000 by Houghton Mifflin Company. Updated in 2009. Published by Houghton Mifflin Company. All rights reserved.
  • Collins English Dictionary – Complete and Unabridged © harpercollins Publishers 1991, 1994, 1998, 2000, 2003
  • Http://www.thefreedictionary.com/
  • Ohs-Act.
  • Department of Labour.
  • H.T.E. www.htetrust.co.za
From the above it is clear that the Ohs-act is enforceable. We are not speaking about guidelines from some institution. It is compulsory and must be followed. Every part and regulation is therefore enforceable.

Zec 4:6b; Not by might, nor by power, but by My Spirit, saith the LORD of hosts.