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Must Contractors Register with Workman’s Compensation in South Africa?

Is a Contractor in South Africa liable for Workman’s Compensation? Overview As per Section 22 of the Compensation for Occupational Diseases Act, No. 130 of 1993, more commonly referred to as COIDA, all employees have the right to compensation. This compensation comes into play when employees are injured, disabled, or they become ill, as result of a workplace accident or related disease. The simplest definition of an occupational disease is one which arises out of and can be contracted during an employee’s employment, as listed in Schedule 3 of COIDA. In South Africa, the contractor is regarded as the employer, and thus they are liable for Workman’s Compensation. What does COIDA say about Contractors? In broad terms, an employee can be defined as a person who has entered a contract of service with an employer. Where independent contractors are concerned, however, the position is viewed differently. According to Section 89(1)(a) of COIDA, should a person (the mandator) in the course of, or for the purpose of their business, enter an agreement with any other person (the contractor) for either the execution by or under the supervision of the contractor of the whole, or any part, of any work which is undertaken by the mandator, the contractor shall, in respect of his employees who are employed in the execution of the work concerned, register as the employer as according to the provisions of this Act and pay the necessary assessments. In addition, Section 89(1)(b) of COIDA also states that should the contractor fail to meet their obligations in terms of the Act, the employees will be deemed as employees of the mandator. Thus, the mandator shall pay the assessments with regards to the employees in question. What happens if the mandator pays an assessment for which they are not liable? According to Section 89(2) of COIDA, provision is made for events where the mandator has paid assessment or compensation for which they would not have been liable. This should the contractor have complied with their obligations under COIDA.  As such, the mandator may then recover such an assessment or compensation from the contractor. This amount may also be set off by the mandator against any debt which is owed to the contractor in question.

Using a Contractor on your premises in South Africa Overview Most work conducted, despite the industry, will require the specialised services of a contractor. Many employers may be unsure as to the process involving using a contractor on their premises, specifically in South Africa. It is for this reason that the information below serves as a guide associated with processes and certain requirements from both the employer and the contractor. The Responsibilities of the Employer and Contractor Both the employer and the contractor have responsibilities under the Occupational Health and Safety Act (85 of 1993). Each participant in the workplace must take the necessary steps to reduce risks in the workplace and to prevent it from posing a danger to employees and the public. Each participant must understand their role in the organisation with regards to health and safety.

What are the Health and Safety Obligations of Contractors in South Africa? Overview All contractors and subcontractors in South Africa have certain Health and Safety Obligations which must be met. These pertain specifically to routine as well as non-routine activities of contractors and subcontractors who have access to a specific process, workplace, or project which is under the control of the client, or principal contractor. To ensure that contractors and subcontractors as well as any other service providers and suppliers comply with legislation, it is imperative for the client or principal contractor to have the necessary Health and Safety Performance standards in place as a requirement. Contractors must comply with the following: The Occupational Health and Safety Act, (Act 85 of 1993) and its Regulations. The Compensation for Occupational Injuries and Diseases Act, (Act 30 of 1993). The Local Municipal Bylaws, which is applicable to the location. The Tobacco Products Control Act, (83 of 1993). The South African National Standards. The client appointing a principal contractor must ensure that there is a successful Occupational Health and Safety management system. This system must be integrated into the business management system of the company.

What are the Health and Safety Duties of Contractors in South Africa? Overview The simplified definition of a contractor is that it includes the employees of any employer who carry out construction work. This includes both the main contractor and any subcontractor. The definition also makes provision for any self-employed person where they supply materials and labour, or only labour. Additionally, a body such as a local authority may also be considered a contractor should the work be carried out directly by the authority’s employees. Having defined what contractor means, the next crucial factor to consider is what duties contractors have in South Africa. The Health and Safety Duties of a Contractor Contractors have important duties which can relate to a wide range of factors. This can include, but is not limited to the following: Cooperation with the principal contractor and to provide any site-specific information which includes relevant extracts from the Safety Statement. Providing the principal contractor and/or client with the information which is required for the safety file. Compliance with the directions provided by project supervisors. The reporting of incidents and accidents to the Authority as well as the principal contractor where employees cannot perform their normal duties for more than three days. Compliance with site rules as well as the health and safety plan and ensuring that all employees comply with them as well. The identification and reduction of hazards and risks and, where possible, the elimination thereof. The facilitation of the site safety representative. Ensuring that relevant workers possess a safety awareness card as well as a construction skills card, where required. Providing workers with a site-specific induction. The appointing of a safety officer where there are a certain number of people employed on site. Consultation with workers regarding the site-specific induction. Monitoring of compliance and taking corrective action where necessary.

Must the Health and Safety Site Files be Site-Specific in South Africa? Overview  The Construction Regulations (2003) form part of the Occupational Health and Safety Act (85 of 1993) and it creates a minimum standard legislation which must be complied with. The Construction Regulations, in short, applies to anyone who may be involved in construction work.  Regulation 4(2) states that the client is responsible for discussing as well as negotiating with their principal contractor what the contents of their safety plan and Health and Safety file must contain before it can be approved and implemented. Must the Health and Safety file be specific? In South Africa, it is imperative that the Health and Safety File contain standard documentation as well as other documents which make it site specific. The Health and Safety File must also include a detailed, site specific safety plan which, like the Health and Safety file, must comply with the necessary regulations. The reason for this is that the safety plan is a documented record which addresses specific hazards which have been identified. It also includes all safe work procedures which serve to mitigate, reduce, or control those hazards. Furthermore, hazard identification pertains to both the identification and documentation of both existing and expected hazards which pose a threat to the health and safety of people, which can normally be associated with the type of construction work performed, or to be performed in future. Development of the health and safety plan When regarding the development of the safety plan, Regulation 4(1)(a) states that

What is a Health and Safety File in South Africa? Overview A Health and Safety File in South Africa is also known as a ‘Safety File’. This is a record of information which focuses on health and safety management on various sites, including that of construction sites, where both contractors and sub-contractors are concerned. The Safety File’s main purpose is to protect the employer from any criminal liability in addition to proving compliance with the Occupational Health and Safety Act and Regulations. What does OHSA require in terms of a Safety File? Each contractor as well as subcontractor is legally required by the Occupational Health and Safety Act (85 of 1993) and the Construction Regulations 2014 to possess a Health and Safety File. The Health and Safety file must be kept where it can be easily accessed at any given time. According to the Occupational Health and Safety Act as well as the Construction Regulations, the follow applies to the Health and Safety file: Construction Regulation 3(6) – the client must ensure that the principal contractor is in possession of a copy of the construction work permit which is contemplated in sub-regulation (1) in the Health and Safety File. This must be available for inspection by any inspector, the client, the client’s authorized agent, or any employee. Construction Regulation 5(1)(s) – the client is responsible to ensure that the Health and Safety file, which is contemplated in regulation 7(1)(b), is kept as well as maintained by the principal contractor. Construction Regulation 7(1)(b) – the principal contractor is tasked with the duty of compiling and keeping a Health and Safety file. The file must include all documentation which is required by the Act as well as the Regulations. The Health and Safety file must be available upon request to any inspector, the client, the client’s agent, or a contractor. In addition, the Health and Safety file must be maintained by onsite safety personnel and it must be audited by a competent person.

The Beginner’s Guide to Compiling a Contractors’ Health and Safety File in South Africa Overview A Health and Safety file can be either be a detrimental component or it could be a lifesaver in the worst of situations. Proof of evidence is one of the most important components of the Occupational Health and Management System of any business. It is also one of the best defences against any liability and vicarious liability. As per the requirements of the Occupational Health and Safety Act a book, record, or any other documents must be kept. When using the latter, it is important to know what must be contained in such a record, otherwise referred to as a health and safety file. For this reason, the points below serve as a beginner’s guide in compiling a contractor’s health and safety file, specifically in South Africa. These are but a few items which are required in the safety file to ensure that the basis for the employer, employee and client are covered. These documents serve to ensure that people are protected and that a record is maintained as proof of providing a healthy and safe working environment.

How to set up a Health and Safety Contractor File in South Africa Overview A Health and Safety File, more commonly known as a contractor safety file, is a record containing information that focuses on health and safety management on construction sites, specifically for both contractors as well as subcontractors. This file serves to protect the employer from any criminal liability. It also proves compliance with the Occupational Health and Safety Act and Regulations.  It is not only important for employers in South Africa to have a health and safety contractor file but to know how it must be set up to ensure that it is done correctly. However, it is firstly important to understand the legal requirements behind the health and safety file.