13.2 Health and Safety Policy, Organising, and the Section 16(2) Chain of Accountability

13.2 Health and Safety Policy, Organising, and the Section 16(2) Chain of Accountability

[!NOTE] SACPCMP Blueprint Context: Annexure B of the SACPCMP Rules for Registration lists "Health and Safety Management" (item 2) alongside "Health and Safety Management systems" (item 3), and the CHSO Initial Professional Development Modules in Annexure C include "Governance and Sustainability". This section covers the organising half of that ground: how the duty that section 16(1) of the OHS Act places on one person is converted into a working structure across a construction site with dozens of employers on it.

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1. The Health and Safety Policy

Section 7 of the OHS Act empowers the chief inspector to direct an employer to prepare a written health and safety policy, and in practice every principal contractor on a notifiable or permit project has one. A policy that is worth signing does four things:

1. States the organisation's commitment in terms that are falsifiable. "We are committed to safety" is unauditable. "No person will work at a fall risk position without a fall protection plan prepared under CR 10(1)(a)" can be checked on any morning.
2. Names the accountable person. Under section 16(1) the chief executive officer must, as far as is reasonably practicable, ensure that the duties of the employer are properly discharged. The policy is where that person puts their name and signature to the commitment.
3. Defines the framework for objectives, so that the annual objectives (lost-time injury reduction, close-out rate on corrective actions, induction coverage) hang off something.
4. Commits to consultation and participation, which in South Africa is not aspirational language — it is sections 17 to 20 of the Act, and on a construction site it is the health and safety representative and committee structure.

The policy must be communicated. On a multilingual site this means translated versions and verbal reinforcement at induction, not a laminated A2 sheet in the site office that no one has read.

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2. Section 16: The Non-Delegable Duty and the 16(2) Assignment

The single most examined governance provision in South African occupational health and safety is section 16, and it is examined because candidates routinely misunderstand what it does.

"16. (1) Every chief executive officer shall as far as is reasonably practicable ensure that the duties of his employer as contemplated in this Act, are properly discharged. (2) Without derogating from his responsibility or liability in terms of subsection (1), a chief executive officer may assign any duty contemplated in the said subsection, to any person under his control, which person shall act subject to the control and directions of the chief executive officer. (3) The provisions of subsection (1) shall not, subject to the provisions of section 37, relieve an employer of any responsibility or liability under this Act."

Three consequences follow, and each is a favourite examination trap.

• A 16(2) assignment moves the work, not the accountability. Subsection (2) opens with "without derogating from his responsibility or liability in terms of subsection (1)". The CEO who signs a 16(2) letter to a regional director remains liable.
• The assignee acts under control and direction. An assignment to a person who has no budget, no authority to stop work, and no reporting line to the CEO is defective on its face, because the subsection presupposes control.
• Section 16(4) deems the head of a State department to be the chief executive officer of that department — relevant on public infrastructure contracts.

On a large contractor the chain typically runs: CEO → section 16(2) assignee (managing director or regional director) → CR 8(1) construction manager for the single site → CR 8(2) assistant construction managers for sections → CR 8(7) construction supervisors → CR 8(8) competent employees assisting supervisors. Alongside that line sits the CR 8(5) construction health and safety officer, appointed by the contractor after consultation with the client and having considered the size of the project, the degree of danger likely to be encountered, and the accumulation of hazards or risks on the site.

[!WARNING] The CHSO assists; the CHSO does not carry the line duty. CR 8(5) appoints the officer "to assist in the control of all health and safety related aspects on the site". Accountability for managing the construction work, including health and safety compliance, sits with the CR 8(1) construction manager. Examination options that describe the CHSO as the person legally responsible for site safety compliance are wrong, and so is the reverse error of treating the CHSO as a mere administrator: CR 8(6) forbids a contractor from appointing a construction health and safety officer unless satisfied that the officer is registered with a statutory body approved by the Chief Inspector — the SACPCMP — and has the necessary competencies and resources.

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3. Section 37: Mandataries and the Written Agreement

Section 37(1) creates a presumption: where an employee does or omits to do an act that would be an offence for the employer, the employer is presumed to have done it, unless the employer proves the employee acted without connivance or permission, outside the scope of authority, and that all reasonable steps were taken to prevent it — and the section adds that issuing instructions forbidding the act is not, in itself, sufficient proof of reasonable steps.

Section 37(2) applies the same presumption to a mandatary — in construction, the contractor engaged by a client, or the subcontractor engaged by a principal contractor — "except if the parties have agreed in writing to the arrangements and procedures between them to ensure compliance by the mandatary with the provisions of this Act".

That written agreement is the ubiquitous "37(2) agreement" found in Divider 1 of every South African site health and safety file. Understand precisely what it does and does not do:

Section 37(3) is the counterweight candidates forget: an employee or mandatary who does or omits to do an act that would be an offence for the employer is liable to be convicted and sentenced as if he or she were the employer, and section 37(5) allows that conviction in addition to the employer's.

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4. Organising the Structure on a Multi-Employer Site

A construction site is legally unusual because many employers occupy one workplace. The Act and Regulations answer this with cooperation duties rather than a single command structure:

• CR 5(1)(i) requires the client to take reasonable steps to ensure cooperation between all contractors it appoints.
• CR 5(4) extends that duty where more than one principal contractor is appointed.
• CR 7(4) requires the principal contractor to take reasonable steps to ensure cooperation between all contractors it appoints.
• CR 7(2)(d) requires each contractor to cooperate with the principal contractor as far as necessary.
• CR 7(2)(e) requires each contractor to promptly provide the principal contractor with information that might affect health and safety or justify a review of the health and safety plan.

The CHSO's organising task is to make these duties visible: a site organogram showing every employer, its CR 8(1) or supervisory appointments, its health and safety representatives, and the interface points where one trade's work creates another trade's hazard.

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5. Practical Failure Modes

The paper appointment. A CR 8(5) letter is issued to a safety officer who spends four days a week on other sites. CR 8(5) permits a full-time or part-time appointment, but the appointment must reflect the size, danger and accumulation of hazards actually considered — and where the question arises whether a construction health and safety officer is necessary, CR 8(5) makes the decision of an inspector decisive.

The orphaned assignment. A 16(2) letter names a director who has since left the company. Assignments must be re-issued on every change of incumbent, and the health and safety file must hold the current version.

The signed-and-shelved 37(2) agreement. A one-page agreement is signed at mobilisation and never referenced again. Because section 37(2) protects only where the parties "have agreed in writing to the arrangements and procedures between them", an agreement describing arrangements nobody follows offers thin protection when the presumption is tested.