Important developments in the OHSA and COIDA space

Forthcoming amendments to the OHSA and COIDA

On 7 May 2015, the Minister of Labour, in her budget vote speech, announced proposed amendments to the Occupational Health and Safety Act (OHSA) and the Compensation for Occupational Injuries and Diseases Act (COIDA).

The Chief Inspector has provided a forecast on what to expect and the implications for employers.

The following are important features to be expected:

• The duty of chief executive officers to ensure that valid assessments are done by competent persons and are specific to the identified workplace hazards and risks (HIRA), including ergonomic regulation.
• Employers will be required to develop and implement a written risk management plan and an integrated health and safety management system based on comprehensive HIRA. This will supplement section 8 of OHSA.
• The content of health and safety standards applicable to OHSA will be derived from the South African Bureau of Standards. The standards will have the same legal force and effect as regulations to OHSA.
• Occupational health and hygiene will be a key focus and these provisions will undergo legislative refinement.
• The amendments will impose progressive fines for repeat offenders in respect of each contravention. The amendments will also introduce an enhanced administrative penalty system.
• In addition to the legislative administrative penalty and criminal prosecution for contravention of OHSA, employees may take employers to the Commission for Conciliation, Mediation and Arbitration (CCMA) or the Labour Court.
• Interested persons will be able to bring an application in terms of the Promotion of Access to Information Act requesting a copy of the record of a formal inquiry held in terms of section 32 of OHSA into an incident. It is likely that in accordance with section 32(5)(c) of OHSA, the following persons will be interested persons:
  • Any person who was injured or suffered damage as a result of the incident forming the subject of the inquiry;
  • The employer or user involved in the incident;
  • Any person who according to the opinion of the presiding inspector inferred from the evidence could be held responsible for the incident;
  • A trade union recognised by the employer concerned or any other trade union of which an employee is a member;
  • Any owner or occupier of any premises where the incident occurred;
  • Any other person who, at the discretion of the presiding inspector, can prove such interest.

The National Economic Development and Labour Council and the Department of Labour have engaged in internal consultation processes on the provisions of the OHSA Amendment Bill and the COID Amendment Bill. The Minister has emphasised that the legislative process is being fast-tracked to ensure that these Bills are tabled in parliament this year.

The Minister has stated that the purpose of the OHSA Bill is to align OHSA with employment and labour legislation, and to regulate triangular employment relationships, where workers are employed by an agency or contractor and do work for other entities. The COID Amendment Bill intends to align COIDA more closely with other labour legislation, and to provide a legal framework for the Compensation Fund to more effectively promote programmes that facilitate employees’ return to work.

The Department of Labour’s recent update on health and safety improvement

The Deputy Minister of Labour reiterated in his budget vote speech delivered on 10 May 2016, the Department of Labour’s commitment to ensuring that the following objectives are achieved:

• Strengthening the Inspectorate and Enforcement Services by creating the requisite institutional and administrative capacity to inspect and enforce legislation, and promoting compliance.
• Improved and efficient implementation of the Compensation Fund Action Plan, which was introduced in June 2015, to accelerate the processing of financial claims of employees suffering from work-related injuries and diseases. The Minister announced:
  • A significant improvement in the year ending 31 March 2016, in which the Compensation Fund paid R2.8 billion in medical claims compared to R1.3 billion in the 2014/2015 financial year due to the efficiency of the Action Plan.
  • That the Compensation Fund has set itself the target of processing and authorising the payment of claims within 60 days of receipt and to further implement systems to shorten this 60 day turnaround time.