The OHS Act explained for business owners

The Occupational Health and Safety Act 85 of 1993, usually called the OHS Act, is the main law on health and safety at work in South Africa. It is not long, but it puts real duties on employers, on the person in charge of the business, and on every employee. This guide walks through those duties in the order a business owner usually needs them.

Each point links to the section of the Act it comes from. Quotes are from the consolidated text published by the Department of Employment and Labour.^[1]

The employer’s general duty

The centre of the Act is section 8(1). Every employer must "provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees".^[1]

Section 8(2) spells out what that includes. In short, the employer must:

• provide and maintain systems of work, plant and machinery that are safe and without risks to health, as far as is reasonably practicable (8(2)(a))
• take reasonably practicable steps to eliminate or reduce hazards before resorting to personal protective equipment (8(2)(b))
• find out what hazards come with the work, the substances and the machinery in the business, and what precautions are needed, and provide the means to apply them (8(2)(d))
• provide the information, instructions, training and supervision needed to keep employees safe (8(2)(e))
• not let anyone do work until the precautions are in place (8(2)(f))
• make sure work is done under the general supervision of a person trained to understand the hazards, who has the authority to make sure the precautions are followed (8(2)(i))

The phrase "as far as is reasonably practicable" appears throughout. The Act does not expect a business to remove every possible risk, but it does expect it to take the steps that are reasonable in the circumstances.

People who are not your employees

The duty does not stop at your own staff. Section 9(1) requires every employer to run the business so that people outside its employment who may be directly affected by its activities are not exposed to hazards to their health or safety, as far as is reasonably practicable.^[1] On a site, that includes visitors, members of the public passing by and other contractors.

Telling people about the hazards

Section 13 adds a duty to inform. As far as is reasonably practicable, every employee must be made conversant with the hazards of the work they do, the substances they handle and the machinery they use, and with the precautions to take.^[1] Toolbox talks and inductions are a common way to meet this duty, and keeping a record of them is how you show it was done.

What employees must do

Employees have duties too. Under section 14, every employee must at work:^[1]

• take reasonable care for their own health and safety and that of others affected by what they do
• co operate with the employer so that the employer’s duties under the Act can be met
• carry out lawful orders and follow the health and safety rules and procedures laid down by the employer
• report any unsafe or unhealthy situation to the employer or the health and safety representative as soon as practicable
• report any incident that has injured them, or may affect their health, as soon as practicable and no later than the end of the shift in which it happened, unless that was not possible

The chief executive officer’s responsibility

Section 16 is the one most owners have heard of. Every chief executive officer must, as far as is reasonably practicable, ensure that the employer’s duties under the Act are properly discharged.^[1]

The CEO may assign any of those duties to a person under their control, but only "without derogating from his responsibility or liability". In other words, the CEO can hand down the work, not the responsibility. Our guide to Section 16(2) appointments explains how that works in practice.

The Act defines the chief executive officer as the person responsible for the overall management and control of the business.^[1]

Health and safety representatives and committees

An employer with more than 20 employees at a workplace must designate health and safety representatives in writing, for a specified period, for that workplace or for different sections of it (section 17(1)).^[1]

Where two or more representatives have been designated, the employer must set up one or more health and safety committees and consult them on measures to keep employees healthy and safe at work (section 19(1)).^[1]

Reporting certain incidents to an inspector

Section 24(1) lists incidents that must be reported to an inspector "within the prescribed period and in the prescribed manner".^[1] They include incidents in which a person:

• dies, becomes unconscious, or loses a limb or part of a limb
• is injured or becomes ill to such a degree that they are likely to die, to suffer a permanent physical defect, or to be unable to work or carry on with their usual activity for at least 14 days

Major incidents, and some dangerous occurrences (such as a dangerous substance being spilled, or machinery failing so that objects fly, fall or move out of control) must also be reported. The period and the form are set out in regulations under the Act.

This duty is separate from reporting an injury for compensation. See our guide to reporting injuries under the COID Act.

Contractors working for you

Under section 37(1), an employer can be presumed to have done what its employee did, unless it proves the employee acted without its permission, outside their authority, and that it took all reasonable steps to prevent it. Section 37(2) applies the same rule to a "mandatary", which includes a contractor or subcontractor, unless the parties have agreed in writing to the arrangements and procedures that ensure the mandatary complies with the Act.^[1] That written agreement is commonly called a section 37(2) agreement.

Inspectors and penalties

An inspector may enter a workplace without previous notice, question anyone there, and require books, records and documents to be produced, immediately or at a time and place the inspector sets (section 29(1)).^[1] If an inspector believes that work threatens anyone’s health or safety, they may prohibit it in writing (section 30(1)).

Failing to comply with a long list of sections, including sections 8, 9, 13, 14, 16 and 24, is an offence. The penalty is a fine of up to R50 000, imprisonment of up to one year, or both (section 38(1)). Where an employer’s act or omission injures someone, and would have amounted to culpable homicide had the person died, the maximum rises to R100 000, two years, or both (section 38(2)).^[1] Our guide to penalties for OHS non compliance goes into more detail.

Where ProComply fits

Most of what the Act asks for is ongoing work: knowing the hazards, telling people about them, supervising, inspecting, and keeping a record. ProComply is built for that routine. Checklists record each inspection with the person, place and time, and lock it on submission. Appointments keep section 16(2) and other appointments on record with review dates. Contractors keep contractor documents current.