SIGNIFICANT HSEQ LEGAL UPDATES AND

DEVELOMENT

Hanno MaraisOctober 2016

ISO 45001 Publication is Delayed until June 2017

• The final publication of the newly drafted ISO 45001 for occupational health and safety is postponed to June 2017, according to the

• Institute of Occupational Safety and Health (IOSH), a liaison body for the International Organization of Standardization.

• The initial planned publication in October 2016 is now set for a revised draft.

• The nine-month delay in publication is attributed to the draft standard being unable to receive enough support from the 60 national standards bodies, which voted in May 2016.

Source: Health+Safety At Work June 17, 2016

OHS Act Compliance is Lacking in the Construction Industry• About 40% of the 5000 construction sites in South Africa do not meet the

compliance requirements set out in the Occupational Health and Safety (OHS) Act. • For example, the Tongaat Mall collapse in 2013, resulted in 29 workers sustaining

serious injuries; a number of the provisions in the OHS Act and Construction Regulations were violated.

• The Construction Regulations, 2014, require the appointment of health and safety agents on construction sites and companies need to obtain construction work permits prior to the start of a project.

• However, the non-conformity situation has seen marginal improvement since the commencement of the 2014 Construction Regulations.

Source: Engineering News May 25, 2016

MEANING OF “CONSTRUCTION”“construction work” is defined as work in connection with:

• erection, maintenance, alteration, renovation, repair, demolition or dismantling of or addition to a building or any similar structure;

• the installation, erection, dismantling or maintenance of a fixed plant where such work includes the risk of a person falling;

• the construction, maintenance, demolition or dismantling of any bridge, dam, canal, road, railway, runway, sewer or water reticulation system or any similar civil engineering structure; or

• the moving of earth, clearing of land, the making of an excavation, piling, or any similar type of work;

A Fatal Accident Due to Work at Height

• A fatality occurred on 5 July 2016 due to a fall from height at Eskom’s Medupi power station in Lephalale – Limpopo province, South Africa.

• The contractor fell while he was working on a construction area at the power station. The accident is under investigation, and workers were sent home to ensure their safety.

Source: news24 July 5, 2016

Working at Heights

• Old Definition: No employer shall require or permit any person to work in an elevated position, and no person shall work in an elevated position, unless such work is performed safely from a ladder or scaffolding, or from a position where such person has been made as safe as if he were working from scaffolding.

• New Definition: "fall risk" means any potential exposure to falling either from, off or into;

New Innovation on Fall Protection

• SPI Health and Safety, a leader in products and services related to occupational health and safety in Canada, has recently obtained a patent in the USA for its new product named the Vince Paw.

• It is a rolling device or shuttle, allowing a worker to attach himself to a lifeline and switch to intermediate anchors. The distinct features are that it can “adjust to special diameters of cables, be used on inclined systems, and adapt to existing installations as no specialised connecting part is required”.

Source: CNW Group May 18, 2016

PROPOSED SOLUTIONS TO CHALLENGES

Professionalize health and safety in the construction industry by:

• Registration of professionals in the construction industry who are obligated to perform any health and safety function in terms of the Act and Construction Regulations.

• Maintain the database of professionals in the industry.

• Control and Monitor professionals in the construction industry (register or

deregister)

• Ensure that construction work is carried out by competent and registered persons.

Management and supervision of construction work

The Registration of Construction Manager & Safety Officers

• The Construction Health and Safety Manager. (SACPCMP)

• The Construction Health and Safety Officer.(SACPCMP)

HSE LEGISLATIVE UNDERLYING THEMES

• CONCEPT OF SELF REGULATION

• MEANING OF “REASONABLY PRACTICABLE”

• MEANING OF “COMPLIANCE”

“REASONABLY PRACTICABLE”

Means practical having regard to:

• Scope and severity of hazard• Knowledge reasonably available• Available or suitable means• Cost

GENERAL PRINCIPLES OF RISK ASSESSMENT

1. All relevant risks are systematically addressed identify major, don’t concentrate on minor consider those aspects of work which are hazardous take into account and critically assess safety controls and

measures be systematic look at all aspects of the work activity

2. Address what actually happens actual practice, not instructions consider non-routine operations pay attention to changes/interruptions

GENERAL PRINCIPLES CONTINUE

3. Include all who could be affected, including visitors, contractors, security guards.

4. Highlight those groups or individuals particularly at risk.

5. Take into account, and objectively assess, existing safety measures and controls.

6. The level of detail should match the level of risk.

7. In most cases, make a rough assessment first, become more sophisticated later.

THE CHOICES WE MAKE

Ignore near missesInvestigate to find somebody guilty (blame fixing culture)Look at every incident and identify those with the high

potential for loss

Remember: The fundamental causes of incidents are failures in the system of work and not substandard behaviours or conditions

PRINCIPLE OF MULTIPLE CAUSES

Seldom, if ever, are problems and loss producing events the result of a single

cause.

Mining Industry Latest Developments• Silicosis Case Puts Gold Mining on Trial: • Deputy Judge President Mojapelo handed down judgment on Friday,

13 May 2016, in the South Gauteng High Court, in the case of Bongani Nkala and 68 Others v Harmony Gold Mining Company Ltd and 31 Others.

• The South African court has allowed the claimants to proceed with a class action suit seeking damages from mining companies for lung diseases (silicosis and tuberculosis) they contracted while working at their various operations since 1965.

• The court trial is the first step towards claiming compensation for mine workers and their families.

Source: Business Day May 16, 2016; politicsweb May 15, 2016

PROTECTION OF PERSONAL INFORMATION BILL

• The Protection of Personal Information Act, 2013 (ACT NO. 4 OF 2013)

• Commencement of Section 1, Part A of Chapter 5 and Sections 112 and 113

• Setting up of the Regulator

• The penalties under section 107 could be R10mil fine or up to 10 years in prison.

Latest Developments and Updates

• Data protection: In August 2013, Parliament passed the Protection of Personal Information Act into law to regulate the processing of personal information and establishing a Regulator to administer violation complaints. Companies are reminded that as "responsible parties" and "operators" (as defined), they will need to have strict measures in place to ensure that they are compliant when the 12-month grace period expires.

• Code on corporate governance: The revised King Code on Corporate Governance in South Africa is expected to be published in 2016 following an extensive consultation period.

Latest Developments and Updates• Environmental law developments: National Treasury has released a

draft Carbon Tax Bill for public comment. It is proposed that carbon tax will come into effect on 1 January 2017 and will be introduced in a phased manner. In addition, draft National Greenhouse Emission Reporting Regulations are expected to come into force in 2016, introducing a single national reporting system for the reporting of greenhouse gas emissions.

• Waste Classification register – August 2016

• Occupational health and safety: Amendments to both the Occupational Health and Safety Act and the Compensation for Occupational Injuries and Diseases Act have been proposed. These proposals demonstrate the clear intention of the regulator to increase regulatory supervision and impose penalties in the event of a breach of the legislation and regulations. Businesses are advised to carefully consider their health and safety compliance going forward in order to avoid hefty fines.

Latest Developments and Updates

• Mineral and Petroleum Resources Development Amendment Bill: The Mineral and Petroleum Resources Development Amendment Bill, which was passed by Parliament in March 2014, was referred back to Parliament by the President, citing constitutional issues. It is anticipated that a regulatory dispensation which reflects terms that are more acceptable to a broad stakeholder base (including the private sector) will be promulgated in 2016.

Looking Ahead: HSE in 2016

• To create a learning opportunity for all industries, Robin Jones, president of the South African Institute of Occupational Safety and Health (Saiosh), shares his wishes for occupational health and safety in 2016:

• When investigating incidents, senior managers should have an open mind and focus on finding facts as opposed to faults. Instead of pointing fingers, the OHS managers should use incidents as a learning opportunity to develop positive steps to prevent incidents from recurring.

• OHS should be treated the same as, and engrained into other growth and operational functions such as production, engineering, quality control, and finance departments. The aim of the OHS Act is to prevent harm and/or associated disruptions to the smooth running of an organisation.

• To enhance organisations’ awareness of all incidents, the Department of Labour is expected to publish detailed historical incident data that contain where an accident occurred, the name of the company, the contravention of the law, and the consequences such as a fine, or criminal prosecution.

Source: SHEQ Management Jan/Feb 2016

Any Questions?

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