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Employees are the most important asset of any organisation and for this reason, their health and safety are crucial. However, as much as an organisation may rely on its own employees, there is also reliance on contractors, subcontractors, and suppliers.

Without a health and safety file, contractors working on sites in South Africa face severe criminal offenses along with numerous costly liabilities which result from damages as well as hazards on work sites. Many companies may not know what to include in their health and safety files, and for this reason it is crucial to provide a step-by-step guide to build a health and safety site file.

A safety file may be either an employer’s worst enemy, which is a general misconception, or an employer’s best friend in some of the worst situations. Proof of evidence is one of the most crucial parts of a business’ Occupational Health and Safety Management System. It is also the best defence where liability and vicarious liability is concerned.

Contractor Health and Safety Site File and an Employers (clients) Legal Requirements Overview Small and medium business entities (SMEs) as well as business owners in South Africa face various challenges, and for this reason it is imperative that all employers ensure that an Occupational Health and Safety (OHS) file is compiled. This is often a challenge as employers may not know precisely what must be included in their file. The contractor Health and Safety File and an Employer's (clients) legal requirements therefore deserves further exploration and elaboration, aiding employers in ensuring that they conform with the requirements of the Occupational Health and Safety Act (85 of 1993). The OHS file is an important, documented record compiled by trained and competent OHS practitioners or an OHS team. South African contractors must not be allowed, in terms of legislation, access to any worksites without the proper file and contents in place. South Africa is known for its challenges with unemployment, poverty, and a lack of proper education. Some small entrepreneurs who are starting out with business may not have either the finance or the appropriate knowledge needed to ensure OHS implementation, compliance, and/or execution. And for this reason, it is necessary to explore the health and safety file and legal requirements that employers are subjected to, providing such small businesses with the necessary tools and information that they need to ensure that they can comply with OHSA, which will inevitably bring them more opportunities, as compliant contractors, and allow for business expansion and more exposure.

There may be a substantial amount of misconception where the employer (client), the contractors, and the Section 37(2) agreement and legal liability is concerned. Should a contractor be conducting work on behalf of the employer and they have signed an agreement in terms of Section 37(2) of the Occupational Health and Safety Act, who is responsible for the health and safety of contractors on the client’s site?

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.

Vicarious liability may not be a common term, but it is a legal term that is used in describing a situation where the law holds a person, or an employer, liable for the wrongful act or omission of another, regardless of whether it was that person’s fault.

When can an employer be held legally liable for a contractor or employees with injuries on duty (IOD)? Overview Each participant in the workplace has certain responsibilities, the client, the contractor, and all employees. When an incident occurs, it may be unclear when the employer can be held legally liable for a contractor or employee where injury on duty (IOD) is concerned. Who is the employee? Any person who has entered an agreement or contract of service with an employer is considered an employee. The service contract can either be in writing, expressed, or implied. It also applies to all temporary, permanent, and underaged workers, as defined in Section 1 of the Compensation for Occupational Injuries and Diseases Act (COIDA)

When an injury occurs and it involves the employees of independent contractors, the client may think that the responsibility of the medical expenses in treating that employee along with any lost wages would be that of his employer, not the client who contracted the independent contractor with work. However, in numerous cases, the court may find that the responsibility lay with the client.