Employer, are you aware of your liability towards contractors in terms of OHSA?

BY GOLDBERG & DE VILLIERS - DECEMBER 2, 2016

The Occupational Health and Safety Act 85 of 1993 (the Act) not only makes it incumbent upon an employer to ensure a safe working environment for his own employees, but also for those entering or working at the premises who are employed by somebody else.

In terms of section 9 of the Act an employer must ensure, as far as 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.

Employers must eradicate, and then mitigate against all reasonably foreseeable risks to the health and safety of those entering the premises. While employees are usually aware of the risks inherent in the business / at the premises by virtue of their employment there, third parties are often not necessarily as aware and as such may be more exposed to risk.

With a growing trend of outsourcing and contract work, it is suggested that employers adopt the following approach when hiring independent contractors to conduct work on their site:

• The contractor should commit to the health and safety rules of the employer.

• The contractor and his employees should attend an induction course with the employer regarding the safety procedures of the employer.

• It is advisable that a comprehensive service level agreement (SLA) be concluded between the contractor and the employer and the contractor should confirm his commitment and obligations to his own employees in terms of the Act.

• Always ensure that you have indemnity agreements in relation to the contractor, visitors and third parties. These could be clearly visible signs at the premises or waiver agreements that persons entering the premises sign at the security gate when entering.

• Devise a policy whereby access to the premises is controlled and visitors’ presence on the site as well as their movements is monitored.

• If your business is hiring an independent contractor, ensure that you verify their own health and safety track record, and confirm that the contractor is in good standing and registered with the Compensation Commissioner.

• Ensure that the contractor carries out his own risk assessment in relation to the work to be performed by his employees.

• Conduct a site audit/inspection of the work premises with the contractor.

Section 38 also makes provision for a fine of up to R100 000 or two years’ imprisonment (or both) in instances where any person has been injured at the workplace or an employee has been injured in the course of his employment at any place.

It is therefore imperative that employers take all necessary precautions to guard against occupational health and safety risks.

For labour law assistance contact Tracey Mouton (Director) and Matthew Kemp (Associate) on 041 501 9800.