The Occupational Health and Safety Act outlines the rights, responsibilities, and duties of both employers and employees with regards to health and safety in the workplace. This summary of the Occupational Health and Safety Act highlights the main takeaways of what are commonly considered the most important sections of the Act and is intended to serve as a starting point for understanding health and safety compliance requirements in South Africa.
(*Please note that this article is not a substitute for the Occupational Health and Safety Act. The purpose of this article is to provide a quick, easy-to-understand introduction to the Act. It is imperative that all businesses and organisations consult and refer to the full, original OHS Act.)
What is the purpose of the Occupational Health and Safety Act 85 of 1993?
The overarching purpose of the Occupational Health and Safety (OHS) Act is to protect the health, wellbeing, and safety of all workers in South Africa, as well as the health, wellbeing, and safety of anyone else (like customers, visitors, or members of the public) potentially affected by or in connection with any work performed.
The OHS Act has 50 sections and 26 regulations. The difference between the OHS Act itself and its regulations is that the Act stipulates the rights, responsibilities, and duties of employers and workers, while the regulations provide clear, actionable guidelines for compliance.
Who enforces the Occupational Health and Safety Act?
The Occupational Health and Safety Act is enforced by the Department of Employment and Labour (DoEL). Inspectors may visit and inspect your workplace unannounced and have the right to request to view any document, process, plant, article, or condition, and question or serve a summons to any person within the workplace.
Who does the Occupational Health and Safety Act apply to?
The Occupational Health and Safety Act applies to all employers, workplaces, and employees in South Africa, including those in both the public and private sectors.
List of sections of the Occupational Health and Safety Act 85 of 1993
As mentioned above, the OHS Act has 50 sections. For the sake of providing a concise summary of the Occupational Health and Safety Act, we won’t explore every section in this article. The sections highlighted in bold below form the foundation of a compliant occupational health and safety system:
Section 1: Definitions, classification and exclusions
Section 2: Establishment of Advisory Council for Occupational Health and Safety
Section 3: Functions of Council
Section 4: Constitution of Council
Section 5: Period of office and remuneration of members of Council
Section 6: Establishment of technical committees of Council
Section 7: Health and safety policy
Section 8: General duties of employers to their employees
Section 9: General duties of employers and self-employed persons to persons other than their employees
Section 10: General duties of manufacturers and others regarding articles and substances for use at work
Section 11: Listed work
Section 12: General duties of employers regarding listed work
Section 13: Duty to inform
Section 14: General duties of employees at work
Section 15: Duty not to interfere with, damage, or misuse things
Section 16: Chief executive officer charged with certain duties
Section 17: Health and safety representatives
Section 18: Functions of health and safety representatives
Section 19: Health and safety committees
Section 20: Functions of health and safety committees
Section 21: General prohibitions
Section 22: Sale of certain articles prohibited
Section 23: Certain deductions prohibited
Section 24: Report to inspector regarding certain incidents
Section 25: Report to chief inspector regarding occupational disease
Section 26: Victimisation forbidden
Section 27: Designation and functions of the chief inspector
Section 28: Designation of inspectors by Minister
Section 29: Functions of inspectors
Section 30: Special powers of inspectors
Section 31: Investigations
Section 32: Formal inquiries
Section 35: Appeal against decision of the inspector
Section 36: Disclosure of information
Section 37: Acts or omissions by employees or mandataries
Section 38: Offences, penalties and special orders of the court
Section 39: Proof of certain facts
Section 40: Exemptions
Section 41: This Act not affected by agreements
Section 42: Delegation and assignment of functions
Section 43: Regulations
Section 44: Incorporation of health and safety standards in regulations
Section 45: Serving of notices
Section 46: Jurisdiction of magistrates’ courts
Section 47: State bound
Section 48: Conflict of provisions
Section 49: Repeal of laws
Section 50: Short title and commencement
Summary of the Occupational Health and Safety Act: Key sections explained
7. Health and safety policy
A Health and Safety Policy is an important document that every company should have. It communicates the organisation’s commitment to creating and maintaining a healthy, safe, and well-prepared environment for all employees. According to Section 7 of the OHS Act, all employers are legally required to have a copy of their company Health and Safety Policy displayed in the workplace for all employees to view. The Health and Safety Policy should aim to protect workers against injuries and harm, and employers are required to take steps to enforce the Health and Safety Policy.
8. General duties of employers to their employees
No summary of the Occupational Health and Safety Act would be complete without including the employer duties and responsibilities outlined by Section 8 of the Act. According to this very important section, employers have a duty to provide a safe working environment for employees. This includes implementing measures to prevent exposure to hazards, implementing risk management procedures, ensuring that employees receive sufficient supervision, implementing and enforcing safe working procedures, ensuring that employees receive the correct information and training, ensuring that all workers are provided with the necessary Personal Protective Equipment (PPE), and ensuring that all employees and people on the company premises comply with the requirements of the OHS Act.
9. General duties of employers and self-employed persons to persons other than their employees
Under the OHS Act, employers and self-employed people have a duty to ensure that their work is carried out in a manner that does not expose anyone – including contractors, customers, visitors, occupants of neighbouring buildings, or members of the public – to any unnecessary risks to their health or safety.
10. General duties of manufacturers and others regarding articles and substances for use at work
Anyone who designs, manufactures, imports, sells, or supplies any substance or goods for use at work has a duty to ensure that the substance or goods are safe to use and do not pose a risk to health or safety when used in the correct manner. Similarly, anyone who installs or erects an article for use in the workplace must ensure that it is properly installed and safe to use. Manufacturers and suppliers have a duty to provide written information and instructions on the safe use of any goods, articles, and substances supplied, any hazards or dangers associated with their use, and steps to follow in the event of an incident or accident involving the particular substance or item.
13. Duty to inform
Section 13 of the Occupational Health and Safety Act states that employers have a duty to inform employees of any known hazards or risks to their health and safety at work, as well as of any safety measures required to reduce those risks. In addition, employers must ensure that Health and Safety Representatives are informed of inspections, investigations, and formal enquiries before they take place. Employers are also required to ensure that Health and Safety Representatives are informed of any incidents or accidents that take place as soon as possible after the occurrence.
14. General duties of employees at work
The OHS Act makes it clear that employees are also responsible for maintaining health and safety in the workplace. In particular, Section 14 states that duties of employees include taking reasonable care of themselves and others around them and ensuring that their work doesn’t negatively affect anyone. Employees are required to report any hazards or unsafe conditions as soon as they come to their attention, and to report any incident they were involved in as soon as possible, and no later than the end of the shift, if possible. Section 14 also states that all employees have a duty to comply with the requirements of the OHS Act and obey any rules or procedures implemented in the interests of health and safety.
15. Duty not to interfere with, damage or misuse things
Under the OHS Act, no person may intentionally or recklessly interfere with, damage, or misuse anything (such as documentation, equipment, PPE, etc.) provided in the interest of health and safety.
16. Chief executive officer charged with certain duties
According to Section 16 of the Occupational Health and Safety Act, the CEO has a duty to ensure that the employer meets their obligations and fulfils their duties as laid out by the OHS Act. The Act further explains that a CEO may choose to appoint someone (known as a 16.2 Appointee) to take charge of health and safety on their behalf. However, the 16.2 Appointee does this under the direction and guidance of the CEO, and the CEO and the employer are still liable and ultimately responsible.
17. Health and safety representatives
Section 17 deals with the appointment of Health and Safety Representatives (sometimes known as SHE Reps). The Act stipulates that any workplace employing 20 or more employees is required to appoint Health and Safety Representatives. Only full-time employees can be appointed, and they are obliged to carry out their health and safety functions during normal working hours. Importantly, SHE Reps can only be nominated by their fellow employees – they cannot be chosen by management. SHE Reps must be appointed in writing for a specified period.
Section 17 also stipulates how many Health and Safety Representatives are required based on the number of employees and the nature of the workplace: For shops and offices, employers are required to appoint at least one Health and Safety Representative per 100 employees (or part thereof); for all other workplaces, at least one Health and Safety Representative per 50 employees (or part thereof).
18. Functions of health and safety representatives
Section 18 of the Occupational Health and Safety Act lists the functions of Health and Safety Representatives, including:
- Reviewing the effectiveness of health and safety measures
- Identifying hazards and potential incidents
- Assisting the employer to investigate the causes of incidents
- Investigating employees’ health and safety-related complaints and concerns
- Attending Health and Safety Committee meetings and representing the health and safety interests of employees
- Carrying out workplace inspections
- Accompanying, consulting with, and receiving information from DoEL inspectors during inspections
Health and Safety Representatives are entitled to:
- Visit the site of incidents
- Attend inspections
- Attend any investigations or formal enquiry
- Participate in internal health and safety audits
- Inspect any health and safety-related document
- Be accompanied by a technical advisor on an inspection if necessary
Section 18 also stipulates that the employer is required to provide any assistance, facilities, and training necessary to enable Health and Safety Representatives to effectively carry out their functions. Note that as per the OHS Act, Health and Safety Representatives cannot incur any civil liability for failing to perform their health and safety functions.
19. Health and safety committees
Any workplace that has two or more Health and Safety Representatives is required to establish a Health and Safety Committee. Employer representation on the Committee may not exceed employee representation. Health and Safety Committees are required to meet on at least a quarterly basis, however, the Committee may meet more frequently if deemed necessary. There may be more than one Health and Safety Committee in an organisation.
20. Functions of health and safety committees
Your Health and Safety Committee forms the foundation of your organisation’s health and safety system and plays a crucial role in its effective implementation. Section 20 of the Occupational Health and Safety Act sets out the functions of Health and Safety Committees, which include making health and safety recommendations to the employer, discussing workplace incidents and accidents and reporting these to the Inspector if necessary, and keeping a written record of all recommendations made to the employer and all reports given to the Inspector.
23. Certain deductions prohibited
Employers may not deduct money from an employee’s wages or salary or expect them to contribute financially towards the cost of implementing any health and safety measures required by the OHS Act. This means that the employer, not the employee, must cover the cost of PPE, health and safety training, etc.
24. Report to inspector regarding certain incidents
Section 24 of the Occupational Health and Safety Act details which workplace incidents need to be reported to the DoEL Inspector. These include:
- Any incident in which someone was killed, became unconscious, became permanently disabled, or was injured such that they could not work for more than 14 days.
- Any major incident.
- Any incident in which an employee was endangered by a chemical spill or the uncontrolled release of a substance under pressure, or by machinery (or a part of machinery) that ran out of control or that sent parts flying or falling.
However, if the incident took place on a public road, in a private household, or falls under the Aviation Act, it does not need to be reported to the Inspector.
26. Victimisation forbidden
The OHS Act is clear that no one may victimise an employee for doing anything they are required to do in terms of the OHS Act. This includes giving evidence in court, providing information to the Minister or other person in charge of administration of the Act, complying with lawful requirements, requests, prohibitions, or directions given by an Inspector, or refusing to do something that the OHS Act prohibits them from doing.
Section 26 specifies that employers may not victimise employees by dismissing them, reducing the rate of their pay, negatively altering the terms or conditions of their employment, or unfavourably altering their position relative to other employees.
38. Offences, penalties, and special orders of court
Section 38 of the Occupational Health and Safety Act places a legal obligation on both employers and employees to comply fully with the Act and all its provisions. Any person – employer or employee – who, through action or neglect, causes injury to any person in the workplace while performing their duties, is guilty of an offence. Upon conviction, offenders may face a fine of up to R100,000.00, imprisonment for a period of up to two years, or both.
In line with the requirements of the Department of Employment and Labour, the OHS Act further mandates that employers and employees must:
- Provide information and statements that are accurate and truthful
- Refrain from obstructing any official investigation
- Avoid tampering with or destroying evidence
Maintain full compliance with all sections and regulations of the Act at all times
Is your health and safety management system in good hands?
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