Health and Safety for Body Corporates/Sectional Title

In terms of health and safety for body corporates, health and safety for a sectional titles, health and safety for trustees of body corporates, they have a legal obligation to ensure that the health and safety of everyone involved with the property and organised by the body corporate, must be safeguarded.

The second obligation is to ensure that the workplace, the methods of entering and exiting it, and anything originating from it is all safe as far as is practicable.

Trustees often inquire whether sectional title body corporates must adhere to this health and safety legislation for body corporates.

According to OHS laws that apply to body corporates and contractors, a place where any person carries out work during their employment is classified as a workplace. Thus, trustees should know their OHS obligations in terms of the Occupational Health and Safety Act 85 of 1993 and the sectional title.

The body corporate is not exempted from the OHS Act and must ensure compliance with statutory and common law obligations, thus ensuring that the overall property is maintained and repaired so that it remains in safe order for owners, visitors, contractors and employees.

Health and Safety for sectional titles, therefore, cannot fall only to the body corporate and trustees. To protect its members, the body corporate must guarantee that the contractor is responsible for their own health and safety while working on the common property. In addition, body corporates and contractors are responsible insofar as the body corporate is responsible for monitoring the contractor for continued compliance.

The contractor’s main responsibility in terms of the Act is to provide a safe work environment for their employees, in conjunction with the efforts of their client as per the 37.2 Agreement.

Health and Safety for Body Corporates and Trustees

General Health and Safety for Body Corporates and Trustees

The new construction requirements in the Occupational Health and Safety Act 85 of 1993 do not exclude body corporate trustees from responsibility for on-site accidents.

Sectional title and homeowners' association trustees are now held liable if employees are hurt on their property, even if they were unaware that construction was taking place.

It is now more difficult for trustees to avoid additional responsibilities if they hire a contractor without considering the Occupational Health and Safety Act 85 of 1993, the Compensation for Occupational Injury and Disease (COIDA) Act, Basic Conditions of Employment Act (BCEA) and Labour Relations Act (LRA).

Body corporates and contractors both have responsibilities in terms of health and safety for the sectional title, work that is completed on the premises, and all other applicable regulations, ensuring to protect both themselves and the body corporate from potential claims resulting from injuries or deaths caused by work performed through contractors.

If trustees hire an unregistered or otherwise illegal contractor, the body corporate can be held liable for any injuries or damages that occur because of their negligence. Section 8 of the OHS Act should be familiarised with trustees, and trustees should know their OHS obligations as far as sectional title and contractors are concerned, referring to these points in which the trustee must:

  • Ensure that provision is made for the cost of health and safety during the pre-tender phase of the project.
  • Provide the contractor with the necessary OHS specification involved with the project during the pre-tender phase.
  • Ensure that all principal contractors are registered, and are in good standing with the South African Compensation Fund.
  • Ensure that the principal contractor provides them with an updated OHS plan that is compliant with the specifications and the necessary legislation before the contractor is appointed.
  • Ensure that frequent inspections are carried out on the principal contractor to ensure that they comply with the OHS plan that they submitted.
  • The trustee may appoint an agent to act as their representative and all the trustee’s responsibilities will subsequently apply to this appointed agent.

When it comes to the health and safety of trustees of a body corporate, it is critical to understand that owners of a sectional title scheme appoint the trustees of a body corporate. They are entrusted with running the scheme's business on behalf of the body corporate. One of the most important duties of a trustee is to operate in the best interests of the body corporate and sectional title that they represent.

Health and Safety obligations of the Chairperson

The Health and Safety obligations of the Chairperson

In terms of the responsibilities of the chairperson of a body corporate, the definition needs to be closely examined to understand the duties and responsibilities that a chairperson has regarding sectional title health and safety.

A chairperson or CEO, in terms of a body corporate, or any enterprise that is carried out by the state, refers to the person responsible for the overall management and the control of the organisation of the body corporate or the enterprise, and has the following responsibilities:

  • As far as is practically feasible, every chairperson must ensure that his employer's obligations as specified in this act are appropriately fulfilled.
  • A chairperson may delegate any of the duties outlined in paragraph (a) to any person under his control, who shall act under the direction and control of the chairperson, without detracting from his responsibilities or liabilities.
  • Under the requirements of Section 37, an employer must not be relieved of any obligation or liability under this Act, subject to this section.

Thus, is the chairperson liable for health and safety? Yes. Under the 16.1 Appointment, the chairperson is considered the CEO, which means that they take on the role and responsibilities associated with it, making them liable for health and safety for the sectional title.

According to the Occupational Health and Safety Act 85 of 1993, the Chairperson of the body corporate are responsible with making certain that all legal obligations are met. If the sectional title body corporate hires a contractor, they are subject to the same OHS requirements as any other employer. According to OHS law, the duties of the employer are as follows:

  • A up to date Safety File available on site.
  • A Risk Assessment
  • Any risk to the health, safety and well-being of employees, and any other persons who could be affected by the body corporates activities, must be assessed.
  • They have to ensure there is effective planning, organisation, control, monitoring and review of both preventive and protective measures.
  • They must ensure there are written health and safety policies.
  • They must ensure that they have access to health and safety advice from competent entities.
  • They have to ensure that they consult employees regarding any hazards and risks at work, in addition to providing preventative and protective measures to eliminate, minimise or manage risks.

Thus, if body corporates employ contractors, they must ensure that the contract obliges the specific contractor to comply with OHS laws. A health and safety plan for the common property should also be provided to contractors by the trustees, and they should be required to provide a copy to the contractor.

The trustees need to make sure there is a strategy in place to minimise falls from ladders and the rooftops of structures and to remedy any safety concerns that may emerge. The body corporate shall make reasonable efforts to verify that the contractor has complied with OHS legislation when high-risk work is necessary.

The Section 37.2 Health and Safety Agreement must be utilised if contractors are hired under sectional titles. It is a legally binding contract between the customer and their contractor that specifies the terms and circumstances under which the contractor will do work or offer services.

According to the contractor's unique services, this agreement will encompass tasks such as:

  • Building and construction
  • Electrical and/or installation work
  • Plumbing
  • Painting
  • Installations
  • Servicing of machinery and/or equipment, and more.
  • Tree Felling
  • Security
  • CCTV Supplier

Before the contractor can begin working, several conditions must be satisfied. Contractors must create and submit a safety file per Section 37(2) of their agreement. The contractor's job or services necessitate the inclusion of a variety of papers in this file, including but not limited to:

  • A detailed scope of work
  • The Occupational Health and Safety Policy as well as Plan
  • The supervisor appointed according to Section 8.2 of the OHS Act
  • Construction Regulation 7, where it is applicable
  • Contractor control
  • Letter of good standing, and several other documents according to the contractor.

Contractors must meet all Vetting criteria, but it is the chairperson's (16.1) job to make sure that all health and safety procedures are followed by all parties involved.

Contractor ManagementSec 37.2 Mandatory Agreements and Permits to Work

Compliance with the Occupational Health and Safety Act 85 of 1993 is mandatory for sectional title schemes (OHSA). Workers and individuals who use machinery and equipment will benefit from this law's provisions for health and safety, by avoiding risks to their own health and safety and those of others.

Body corporates and property owners often employ contractors to maintain common areas or individual units. There are two scenarios in which health and safety requirements must be followed by trustees and owners.

To protect its members, the body corporate must guarantee that the contractor is responsible for their own health and safety while working on the common property.

Independent contractors hired by the body corporate to operate on the common property shall be bound by the contract to comply with all applicable OHS legislation. Additional requirements include compliance with safety regulations, which necessitates the creation and maintenance of detailed records such as a safety file.

Occupational health and safety policies and procedures must be in place to ensure that the body corporate workers' health and safety are protected.

When an employer's workers or subcontractors commit illegal acts or omissions, Section 37 of the Occupational Health and Safety Act, 1993, takes care of it. It is also possible to allude to this idea using the vicarious liability clause.

To avoid a potential conflict of interest, all parties must agree in writing to a different structure for the contractor's OSHA compliance. This agreement is sometimes referred to as the 37.2 Agreement. The main objectives of the Section 37.2 Agreement include:

  • Confirming the status of the contractor as an independent employer
  • The legal duties of the contractor according to the Occupational Health and Safety Act and any other relevant regulations
  • Ensuring that the contractor takes control of the health and safety of its employees on-site.

Protecting the well-being and safety of workers is an absolute need. The company takes reasonable efforts to avoid being held liable for the actions of its employees. Additionally, employers must consider the significance of working with contractors and obtaining the appropriate permissions to work (PTWs) as part of their commitment to workplace health and safety.

The adoption of a formal, written system known as a permission to work system is required to regulate some types of potentially hazardous labour. Thus, the permission to work document is one that defines the work to be done, the hazards (whether prospective or current), and the steps to be taken to prevent an accident or incident from occurring.

As part of many safety systems, permits to work are needed. They will not allow any work to commence until the safe procedures have been identified. A complete list of all potential hazards and the measures taken to mitigate or control them is also provided.

Contractors are typically brought in when a high degree of competence is required to do risky work that might result in major harm or death. This necessitates the formalisation of work methods that have been agreed upon.

As a result, no information is lost due to misunderstanding or a lack of attention. It also serves as a checklist for the appointed contractor and their staff to ensure that all hazards, safety precautions, work procedures and general requirements are followed, reviewed and understood.

It is also a record of the activity or work's approval and completion. A competent person must grant the authorisation if all the essential conditions have been met.

Permits to work for sectional titles may comprise the following categories of permits:

  • Hot work such as welding, cutting and other activities
  • Cold work such as handling hazardous substances, painting, heavy lifting, building or dismantling scaffolding, and so on
  • Confined areas and electrical work
  • Certificates of Isolation and Radiation Protection

Building Regulations

Building Regulations/Fire Safety

Sectional title schemes and body corporates rely on a board of trustees headed by a chairperson to oversee and maintain health and safety requirements. Unit owners are responsible for maintaining their own apartments.

Owners of individual units are responsible for the inside of their residences, while the Trustees oversee the common spaces and associated amenities. As a result, maintaining health and safety standards requires a concerted effort.

According to the OHS Act, the body corporate / trustees are responsible to ensure that properties are compliant in terms of health and safety regulations. Areas where compliance is paramount, refer to:

  • Signage
  • Lifts
  • Pools
  • Firefighting equipment
  • Compliance certificates
  • Cleaning contractors
  • Other contractors
  • Public liability cover
  • Common areas

All points are critical, but concerns have been raised regarding building regulations, specifically under fire safety in the sectional title. Building fires may rapidly turn into a tragedy for the people inside, not to mention the loss of an asset. Those in such structures, especially in terms of fire danger, must wonder who is accountable for their health and safety.

In terms of the buildings that are more susceptible to fire, the following should be noted:

  • High-rise buildings are extremely difficult to evacuate.
  • Buildings that have a high number of occupants and visitors, pose a higher risk.
  • Older buildings are a risk if fire protection systems are not in good working order.
  • Buildings where the owner fails to have a structured risk management process in place, are high risk.

Outside of the flats, the body corporate is responsible for fire extinguishers. The safe use of any fire-related activity, such as cooking over an open, controlled flame or a "braai," is the responsibility of each property owner.

An inventory of firefighting equipment should be kept on-site to ensure that it receives annual maintenance. If the equipment fails to do its job in an emergency, everyone in the building faces risk, and the body corporate is liable for any harm that results.

If any owner/person damages or tampers with any fire equipment (e.g., washing a vehicle with a fire hose), the owner is responsible for the restoration of the equipment and may also be subject to a fine.

Body Corporate / Trustees need to maintain a continuous awareness of building safety, including frequent inspections, and training of key workers. It also necessitates having a stable and well-structured system in place.

Owners of a property are responsible for ensuring that all aspects of the Occupational Health and Safety Act and other regulatory requirements, such as building plan approvals, engineering certifications, and so on, are met.

In conclusion

To summarise, with the increase in popularity associated with sectional titles, several key role-players have responsibilities toward health and safety. While body corporates and trustees must ensure that contractors are compliant with all regulations when work is carried out, the chairperson has holistic responsibility as the 16.1 appointee.

In addition, while contractors are responsible for the health and safety of their employees as independent employers, body corporates are still tasked with the responsibility of monitoring contractors to ensure compliance on all levels.

The Section 37.2 Agreement is a crucial document that safeguards the employer (chairperson), body corporate, trustees, and the contractor and their employees. The sectional title can be considered as any given workplace or work environment where activities can pose a threat to the health, safety and well-being of tenants, owners, contractors, visitors, and any other person that enters the premises.

Thus, all the relevant health and safety regulations, policies, procedures, risk assessment and inspections must be in place, and there must be frequent reviews to ensure that all preventative measures are still applicable.

Regarding building regulations and fire safety, body corporates remain responsible for areas outside properties, while unit owners are responsible for the interior, thus requiring coordinated effort from all parties involved.

Firefighting equipment outside units is the responsibility of body corporates, and this must be frequently inspected to ensure safe working order. In addition, emergency plans must be in place and unit owners and contractors must be familiarised with procedures if an emergency occurs.

Unit owners have the responsibility to ensure that cooking activities or any other activities that could present a fire risk are mitigated and controlled and that the necessary preventative measures are in place.

The consequence for Non-Compliance in the current Occupational Health and Safety Act 85 of 1993, Section 38, shall be a fine not exceeding R100.000.00, or two years imprisonment, or both.

As per the OHS Act Amendment Bill  approved by Cabinet still to be promulgated, these fines could reach R 5 000 000.00 or more.

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Posted date: 15th Mar 2022
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