Occupational Health and Safety Act 85 of 1993

To provide for the health and safety of persons at work and for the health and safety of persons in connection with the use of plant and machinery;the protection of persons other than persons at work against hazards to health and safety arising out of or in connection with the activities of persons at work;

to establish an advisory council for occupational health and safety; and

to provide for matters connected therewith.

1. Definitions.

(1) In this Act, unless the context otherwise indicates-

“building” includes-

(a) any structure attached to the soil;

(b) any building or such structure or part thereof which is in the process of being erected; or

(c) any prefabricated building or structure not attached to the soil;

“chief executive officer”, in relation to a body corporate or an enterprise conducted by the State, means the person who is responsible for the overall management and control of the business of such body corporate or enterprise;

“danger” means anything which may cause injury or damage to persons or property;

employee” means, subject to the provisions of subsection (2), any person who is employed by or works for an employer and who receives or is entitled to receive any remuneration or who works under the direction or supervision of an employer or any other person;

employer” means, subject to the provisions of subsection (2), any person who employs or provides work for any person and remunerates that person or expressly or tacitly undertakes to remunerate him, but excludes a labour broker as defined in section 1 (1) of the Labour Relations Act, 1956 (Act No. 28 of 1956);

“employment” or “employed” means employment or employed as an employee;

hazard” means a source of or exposure to danger;

“health and safety committee” means a committee established under section 19;

“health and safety equipment” means any article or part thereof which is manufactured, provided or installed in the interest of the health or safety of any person;

“health and safety representative” means a person designated in terms of section 17 (1);

“health and safety standard” means any standard, irrespective of whether or not it has the force of law, which, if applied for the purposes of this Act, will in the opinion of the Minister promote the attainment of an object of this Act;

“healthy” means free from illness or injury attributable to occupational causes;

incident” means an incident as contemplated in section 24 (1);

“listed work” means any work declared to be listed work under section 11;

“machinery” means any article or combination of articles assembled, arranged or connected and which is used or intended to be used for converting any form of energy to performing work, or which is used or intended to be used, whether incidental thereto or not, for developing, receiving, storing, containing, confining, transforming, transmitting, transferring or controlling any form of energy;

major incident” means an occurrence of catastrophic proportions, resulting from the use of plant or machinery, or from activities at a workplace;

“mandatary” includes an agent, a contractor or a subcontractor for work, but without derogating from his status in his own right as an employer or a user;

medical surveillance” means a planned programme or periodic examination (which may include clinical examinations, biological monitoring or medical tests) of employees by an occupational health practitioner or, in prescribed cases, by an occupational medicine practitioner;

occupational health” includes occupational hygiene, occupational medicine and biological monitoring;

occupational hygiene” means the anticipation, recognition, evaluation and control of conditions arising in or from the workplace, which may cause illness or adverse health effects to persons;

occupational medicine” means the prevention, diagnosis and treatment of illness, injury and adverse health effects associated with a particular type of work;

“plant” includes fixtures, fittings, implements, equipment, tools and appliances, and anything which is used for any purpose in connection with such plant;

“premises” includes any building, vehicle, vessel, train or aircraft;

“properly used” means used with reasonable care, and with due regard to any information, instruction or advice supplied by the designer, manufacturer, importer, seller or supplier;

reasonably practicable” means practicable having regard to-

(a) the severity and scope of the hazard or risk concerned;

(b) the state of knowledge reasonably available concerning that hazard or risk and of any means of removing or mitigating that hazard or risk;

(c) the availability and suitability of means to remove or mitigate that hazard or risk; and

(d) the cost of removing or mitigating that hazard or risk in relation to the benefits deriving therefrom;

remuneration” means any payment in money or in kind or both in money and in kind, made or owing to any person in pursuance of such person’s employment;

“risk” means the probability that injury or damage will occur;

“safe” means free from any hazard;

standard” means any provision occurring-

(a) in a specification, compulsory specification, code of practice or standard method as defined in section 1 of the Standards Act, 1993 (Act No. 29 of 1993); or

(b) in any specification, code or any other directive having standardization as its aim and issued by an institution or organization inside or outside the Republic which, whether generally or with respect to any particular article or matter and whether internationally or in any particular country or territory, seeks to promote standardization;

“substance” includes any solid, liquid, vapour, gas or aerosol, or combination thereof;

user“, in relation to plant or machinery, means the person who uses plant or machinery for his own benefit or who has the right of control over the use of plant or machinery, but does not include a lessor of, or any person employed in connection with, that plant or machinery;

work” means work as an employee or as a self-employed person, and for such purpose an employee is deemed to be at work during the time that he is in the course of his employment, and a self-employed person is deemed to be at work during such time as he devotes to work as a self-employed person;

workplace” means any premises or place where a person performs work in the course of his employment.

(2) The Minister may by notice in the Gazette declare that a person belonging to a category of persons specified in the notice shall for the purposes of this Act or any provision thereof be deemed to be an employee, and thereupon any person vested and charged with the control and supervision of the said person shall for the said purposes be deemed to be the employer of such person.

(3) This Act shall not apply in respect of-

(a) a mine, a mining area or any works as defined in the Minerals Act, 1991 (Act No. 50 of 1991), except in so far as that Act provides otherwise;

(b) any load line ship (including a ship holding a load line exemption certificate), fishing boat, sealing boat and whaling boat as defined in section 2 (1) of the Merchant Shipping Act, 1951 (Act No. 57 of 1951), or any floating crane, whether or not such ship, boat or crane is in or out of the water within any harbour in the Republic or within the territorial waters thereof,

or in respect of any person present on or in any such mine, mining area, works, ship, boat or crane.

2. Establishment of Advisory Council for Occupational Health and Safety.

There is hereby established an Advisory Council for Occupational Health and Safety.

3. Functions of Council.

(1) The Council shall-

(a) advise the Minister with regard to-

(i) matters of policy arising out of or in connection with the application of the provisions of this Act;

(ii) any matter relating to occupational health and safety;

(b) perform the functions assigned to it by this Act or referred to it by the Minister.

(2) The Council may-

(a) with a view to the performance of its functions, do such research and conduct such investigations as it may deem necessary;

(b) make rules relating to the calling of meetings of the Council, the determining of a quorum for and the procedure at such meetings, and generally relating to all matters which may be necessary for the effective performance of the functions of the Council or, subject to section 6, of a technical committee;

(c) advise the Department concerning-

(i) the formulation and publication of standards, specifications or other forms of guidance for the purpose of assisting employers, employees and users to maintain appropriate standards of occupational health and safety;

(ii) the promotion of education and training in occupational health and safety; and

(iii) the collection and dissemination of information on occupational health and safety.

(3) The Council may for the purposes of the performance of any of its functions, with the approval of the Minister, and with the concurrence of the Minister of State Expenditure, enter into an agreement for the performance of a particular act or particular work or for the rendering of a particular service, on such conditions and at such remuneration as may be agreed upon, with anybody who in the opinion of the Council is fit to perform such act or work or to render such service.

(4) Subject to the laws governing the Public Service, the Minister shall provide the Council with such personnel as he may deem necessary for the effective performance of the functions of the Council, and such persons shall perform their functions subject to the control and directions of the chief inspector.

8. General duties of employers to their employees.

(1) Every employer shall provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees.

(2) Without derogating from the generality of an employer’s duties under subsection (1), the matters to which those duties refer include in particular

(a) the provision and maintenance of systems of work, plant and machinery that, as far as is reasonably practicable, are safe and without risks to health;

(b) taking such steps as may be reasonably practicable to eliminate or mitigate any hazard or potential hazard to the safety or health of employees, before resorting to personal protective equipment;

(c) making arrangements for ensuring, as far as is reasonably practicable, the safety and absence of risks to health in connection with the production, processing, use, handling, storage or transport of articles or substances;

(d) establishing, as far as is reasonably practicable, what hazards to the health or safety of persons are attached to any work which is performed, any article or substance which is produced, processed, used, handled, stored or transported and any plant or machinery which is used in his business, and he shall, as far as is reasonably practicable, further establish what precautionary measures should be taken with respect to such work, article, substance, plant or machinery in order to protect the health and safety of persons, and he shall provide the necessary means to apply such precautionary measures;

(e) providing such information, instructions, training and supervision as may be necessary to ensure, as far as is reasonably practicable, the health and safety at work of his employees;

(f) as far as is reasonably practicable, not permitting any employee to do any work or to produce, process, use, handle, store or transport any article or substance or to operate any plant or machinery, unless the precautionary measures contemplated in paragraphs (b) and (d), or any other precautionary measures which may be prescribed, have been taken;

(g) taking all necessary measures to ensure that the requirements of this Act are complied with by every person in his employment or on premises under his control where plant or machinery is used;

(h) enforcing such measures as may be necessary in the interest of health and safety;

(i) ensuring that work is performed and that plant or machinery is used under the general supervision of a person trained to understand the hazards associated with it and who have the authority to ensure that precautionary measures taken by the employer are implemented; and

(j) causing all employees to be informed regarding the scope of their authority as contemplated in section 37(1)(b).

9. General duties of employers and self-employed persons to persons other than their employees.

(1) Every employer shall conduct his undertaking in such a manner as to ensure, as far as is reasonably practicable, that persons other than those in his employment who may be directly affected by his activities are not thereby exposed to hazards to their health or safety.

(2) Every self-employed person shall conduct his undertaking in such a manner as to ensure, as far as is reasonably practicable, that he and other persons who may be directly affected by his activities are not thereby exposed to hazards to their health or safety.

10. General duties of manufacturers and others regarding articles and substances for use at work.

(1) Any person who designs, manufactures, imports, sells or supplies any article for use at work shall ensure, as far as is reasonably practicable, that the article is safe and without risks to health when properly used and that it complies with all prescribed requirements.

(2) Any person who erects or installs any article for use at work on or in any premises shall ensure, as far as is reasonably practicable, that nothing about the manner in which it is erected or installed makes it unsafe or creates a risk to health when properly used.

(3) Any person who manufactures, imports, sells or supplies any substance for use at work shall-

(a) ensure, as far as is reasonably practicable, that the substance is safe and without risks to health when properly used; and

(b) take such steps as may be necessary to ensure that information is available with regard to the use of the substance at work, the risks to health and safety associated with such substance, the conditions necessary to ensure that the substance will be safe and without risks to health when properly used and the procedures to be followed in the case of an accident involving such substance.

(4) Where a person designs, manufactures, imports, sells or supplies an article or substance for or to another person and that other person undertakes in writing to take specified steps sufficient to ensure, as far as is reasonably practicable, that the article or substance will comply with all prescribed requirements and will be safe and without risks to health when properly used, the undertaking shall have the effect of relieving the first mentioned person from the duty imposed upon him by this section to such an extent as may be reasonable having regard to the terms of the undertaking.