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Leadership plays a crucial role in promoting organisational values as well as behaviours towards the transformation of health and safety performance and overall protection of employees along with service providers, contractors, and members of the public.

What is Section 37(2) Health and Safety contract between an employer and a mandatory (contractor)? Overview The purpose of the Section 37(2) Health and Safety contract between an employer and a mandatory (contractor), refers specifically to a mandatory and written contractual agreement. It exists between a client and a contractor in terms of work and/or services provided by the contractor, subjected to both the terms and conditions of the Mandatory Agreement. What work does it cover? This will be determined by the client according to the nature of their business and any work that they may need to have done, or services they need from a specific contractor. It can include, but is not limited to, the following: • Building and construction • Electrical and/or installation work. • Plumbing • Painting • Installations • Servicing of machinery and/or equipment, and more.

All employers, as per the Compensation for Occupational Injuries and Diseases Act, 130 (COIDA), must register for workers compensation. Any employer who fails to do this, is guilty of a criminal offence. As result of the implementation of COIDA, the general rights that employees had under common law in suing their employers for losses suffered while employed, have been removed.

A Contractor’s Health and Safety Responsibilities in South Africa – Part 4 Overview Each person in an organisation plays a vital part towards ensuring a healthy and safe working environment, even if it is the responsibility of the employer to provide such, the maintaining thereof is imperative for continuous health and safety compliance. A contractor’s health and safety responsibilities in South Africa is clear and concise, and it is also necessary to explore the rights that the client has along with the specific safety provisions and safety performance. Client’s Rights Inspections/Investigations The client, or their representing agent may, in any reasonable manner, observe as well as inspect the safety and accident prevention plan of the contractor

Employers appoint contractors for a variety of reasons and work to be conducted on a project. These contractors may also appoint other subcontractors for tasks that need to be done. In the hierarchy of project management, each participant has their duty towards ensuring that the workplace remains safe, healthy, and harm-free for all employees and visitors to the site.

Contractors have a responsibility towards health and safety in South Africa. It is imperative for both employers, contractors, and subcontractors to understand their role to ensure that a safe and healthy working environment exists.

A contractors health and safety and responsibilities in South Africa may often overlap that of the employer, or client, however, there are distinct duties that the contractor must fulfil regarding health and safety in the workplace. The following section explores the duties and responsibilities that the contractor has, starting with health and safety and contractor-specific requirements.

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.

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.