In this paper, the author addresses the rights and obligations of the employer and employee in terms of the Occupational Health and Safety Act 85 of 1993 ("the OHASA") in a working environment outside the premises of the employer. A need has arisen on the part of employers and employees to be advised of the legal position in this regard in view of the hazard of the current COVID-19 pandemic.
A number of the relevant legal principles and provisions have been dealt with comprehensively in the publication entitled "Occupational Health and Safety Law", authored by Willem le Roux, an Executive Consultant to ENSafrica (Edward Nathan Sonnenbergs Inc.) and co-authored by Pieter Colyn, a Director and Head of the Mine and Occupational Health and Safety Department of ENSafrica. Where relevant, these sections of the Occupational Health and Safety Law are repeated or referred to in this paper.
2. THE SCOPE OF APPLICATION OF THE OHASA AND THE DISASTER MANAGEMENT ACT 57 OF 2002
2.1. When applying provisions of the OHASA and the regulations which are binding in terms thereof, cognisance must be taken of the regulations and directions issued in terms of the Disaster Management Act 57 of 2002. Insofar as there is any conflict between the provisions of the two Acts and their regulations, preference must be given to the Disaster Management Act and its regulations. Regulations issued must comply with the principles of legality.
2.2. The preamble to the OHASA sets out in general terms its objective, viz.: "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."
2.3. The OHASA is therefore a general statute which applies to all workplaces, except if such workplaces are excluded from the application of the Act. By virtue of the provisions of section 1(3) of the OHASA, the Act does not apply to a "mine, a mining area or any works" as defined in the Mine Health and Safety Act 29 of 1996 ("MHSA"), except if the MHSA provides otherwise. The only instance where the MHSA provides for the application of the OHASA is section 80 of the MHSA. This section provides that the Minister may by a notice in the Gazette declare any provision of the OHASA or any regulation made under that Act, or any provision of any other Act or regulation, applicable to a mine, after having consulted the council and the Minister.
2.4. In order to understand the rights and obligations of the employer and the employee, the definitions of those concepts are set out herein below. In addition, the terms "health" and "safety" are explained.
3. THE "EMPLOYER"
3.1. The word "employer" is defined in section 1 of the OHASA as meaning "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)".
3.2. In light of the provisions of section 12(1) of the Interpretation Act 33 of 1957, reference to the Labour Relations Act 28 of 1956 must be construed as a reference to the provisions of the Labour Relations Act 66 of 1995 (see Willem le Roux and Pieter Colyn, Occupational Health and Safety Law, Volume 1, pp 3 - 16 and 2 20 (looseleaf publication of LexisNexis, 2016, service issue 7, September 2019)). This publication is hereinafter referred to as Le Roux & Colyn.
3.3. In terms of section 1(2) of the OHASA, 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 the Act or any provision thereof be deemed to be an employee. To date, no notice has been published in the Gazette in terms of section 1(2).
4. THE "EMPLOYEE"
4.1. The word "employee" is defined in section 1 of the OHASA as meaning "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 any employer or any other person".
4.2. It is clear from the above definition that a multi - faceted approach is therefore adopted to determine when a person is an "employee". It is not only the issue of remuneration which will determine whether a person is regarded as an employee, but also whether a person works under the direction or supervision of an employer or any other person. See Midway Two Engineering & Construction Services v Transnet Bpk 1998 (3) SA 17 (SCA); Rofdo (Pty) Limited t/a Castle Crane Hire v B & E Quarries (Pty) Ltd 1999 (3) SA 941 (SE). See Le Roux & Colyn op. cit para 3.2.9.
5. SECTION 8: GENERAL DUTIES OF EMPLOYERS TO THEIR EMPLOYEES
5.1. 8. General duties of employers to their employees
- 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.
- Without derogating from the generality of an employer's duties under subsection (1), the matters to which those duties refer include in particular -
- 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;
- 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;
- 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;
- 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 measure;
- 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;
- 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;
- 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;
- enforcing such measures as may be necessary in the interest of health and safety;
- 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 has the authority to ensure that precautionary measures taken by the employer are implemented; and
- causing all employees to be informed regarding the scope of their authority as contemplated in section 37(1)(b)."
5.2. The heading of this particular provision makes it clear that section 8 only deals with the general duties of employers to their own employees. The obligation of the employer to "provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees" is an extensive obligation, which must also be read together with the more specific duties as detailed in section 8(2) of the OHASA.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.