Section 37(2) Agreements: What Clients and Contractors Must Understand Before Work Starts

A signed contractor agreement can be neatly filed while two supervisors hold opposite views about who will isolate a machine. The signature records an arrangement. Whether that arrangement actually controls the work depends on what the parties agreed, understood and implemented.

For South African employers, section 37(2) of the Occupational Health and Safety Act deserves more attention than a standard clause at the back of a purchase order. It concerns arrangements and procedures between an employer or user and a mandatary. The SafetyWallet platform helps organisations connect those arrangements to people, evidence and ongoing follow-up.

Read section 37 as a whole

Section 37(1) addresses specified acts or omissions by employees and the circumstances in which an employer or user may be treated as responsible. Its stated exception contains three cumulative elements concerning permission, the employee’s authority, and reasonable preventive steps. Instructions prohibiting the conduct are not, by themselves, sufficient proof of those preventive steps.

Section 37(2) extends subsection (1) to a mandatary, subject to the written-arrangement exception it describes. The Act’s definition of mandatary includes an agent, contractor or subcontractor for work. Section 41 also matters: statutory requirements generally cannot be removed by agreement, subject to its stated exceptions, including section 37(2). These provisions require careful reading together. Source: OHS Act, sections 1, 37 and 41.

This is not a basis for declaring that every incident automatically makes the client guilty, or that a signed form guarantees a defence. Applying a criminal provision to a particular case requires legal advice, evidence and the relevant legal principles. The practical management lesson is clearer: understand the relationship and make the preventive arrangements work.

The duties that still need owners

Section 8 addresses an employer’s duties to its employees, including safe systems and appropriate information, training and supervision. Section 9 concerns people other than employees who may be directly affected by the undertaking. Both use the reasonably practicable standard within their scope. A client and a contractor can each have duties arising from their own activities. Source: OHS Act, sections 8 and 9.

Calling the contractor an independent business does not answer who controls the client’s production line, delivery routes or emergency arrangements. Equally, the client reviewing a method statement does not make it the contractor’s employer. Define each role from the actual work and control available to it.

For practical health and safety compliance in South Africa, ask who has the information, competence, authority and resources to implement each requirement. An agreement becomes useful when those answers are consistent with the scope, risk assessment and site arrangements.

What we see repeatedly in South African workplaces

The gaps to test include agreements copied from another job, subcontractors introduced without discussion, undefined shutdown responsibilities and paperwork signed by someone who cannot commit the resources needed. Another warning sign is an agreement that says everything belongs to the contractor while the client still controls the decisive operating conditions.

A constructive review starts with one live job. Ask the client supervisor and contractor supervisor separately who controls access, isolation, changes and restart. Different answers identify a coordination problem worth resolving before mobilisation.

Build the agreement around the actual interface

Define the work and its boundaries

Record the parties, site, scope, intended period and relevant activities. Identify supplied goods, installation, maintenance, delivery and subcontracted work where applicable. The term “general maintenance” is rarely enough to explain a shutdown involving electrical work, lifting and cleaning.

Use task-based risk assessments to identify hazards and controls for the actual work. The agreement should explain how the parties will exchange relevant information and coordinate those controls. It should not be expected to replace the task assessment itself.

Allocate decisions and evidence

Arrangement	Client contribution	Contractor contribution
Site information	Explain relevant hazards, restrictions and interfaces	Ask for missing information and adapt the method
People and equipment	Define access and site requirements	Supply competent people and suitable equipment
Coordination	Manage client operations affecting the work	Explain sequencing, resources and subcontractors
Changes	Identify authorised client decisions	Report proposed changes before implementation
Handover	Confirm acceptance and operating conditions	Provide completion evidence and outstanding defects

Use named roles and escalation routes rather than assuming that “management” will decide. Record how absences and shift changes are covered. Requirements must remain workable when the person who signed the agreement is off site.

Provide for monitoring and change

Agree how supervision, inspections, incidents, non-conformances and corrective actions will be managed. Define the response when information expires, a critical control fails or the scope changes. Identify who can authorise resumption after the conditions have been reassessed.

These are practical arrangements to develop according to the work, not a universal statutory template. Specialist activities may carry additional legal requirements. Obtain competent legal input where the agreement’s interpretation or liability consequences need resolution.

A roof repair example

Consider a fictional office appointing a contractor to repair a roof above an occupied entrance. The agreement says that the contractor manages safety. The contractor assumes the client will close the entrance; the client assumes the contractor will provide an alternative pedestrian route.

A useful pre-start meeting identifies the overlap. The client controls building access and occupant communication. The contractor explains its access method, work area and falling-object precautions. Together they determine the separation arrangements, timing, supervision and conditions for reopening the entrance.

If rain changes the method or a different access system is proposed, the original signature does not settle the new risk. The parties review the change and confirm the relevant controls before proceeding. Both benefit: the client can plan building operations, and the contractor can price and resource a realistic method.

How OHS Online makes the arrangements easier to manage

A relationship record is useful when it connects agreed requirements to the information people actually review. Through OHS Online, a subscriber can invite a contractor, request relevant evidence, establish authorised sharing and follow up missing or overdue requirements.

For a connected SafetyWallet contractor, applicable shared information updates in the client’s view as the contractor maintains its own programme. An external contractor can use the upload portal, but must manually replace changed or expired documents. Neither route makes an uploaded agreement proof that workplace controls have been implemented.

Software gives visibility, but visibility is not the same as control. A visible overdue item needs a responsible person to evaluate its significance. A completed induction record needs to relate to the people doing the job. The authorised employer representatives still make the operational decisions.

The Contractor and Supplier Directory helps logged-in subscribers discover consenting organisations by relevant services and keywords. It supports the beginning of the relationship; evaluation and suitable arrangements still follow. Contractors gain visibility without a promise of appointment or a claim that SafetyWallet has certified them for every job.

The SafetyWallet model: one platform, multiple layers of support

The SafetyWallet model combines a SaaS subscription, OHS Online, structured methods, learning and support. Triple P-Policies, Procedures and Practices connects the commitment in an agreement to a repeatable management process and actual workplace practice.

Task assessments establish the control requirements. Registers allocate recurring work. Job Safety Observations check implementation. MES, the Mindset Evolution Schema, supports respectful recognition and development after immediate risks are controlled. This links behaviour based safety to observable work rather than assumptions about someone’s attitude.

Expert health and safety support and approved Partners help within agreed scope. OHS Connect supports self-management; Expert Guidance adds allocated professional guidance. My Safety Hub and eLearning support understanding. The SafetyWallet Shop, also known as My Safety Shop, offers relevant products and services.

Together these support a practical health and safety management system. ISO 45001 support in South Africa can assist organisations developing their management approach; certification remains a separate assessment outcome.

Benefits for the client and the contractor

The client gains clearer responsibilities, fewer conflicting assumptions and a retrievable record of important decisions. The contractor gains earlier access to site information, a clearer scope and an agreed route for raising obstacles or changes. Good arrangements also make performance reviews fairer because both parties can test what they actually undertook to do.

Qualifying subscribers can receive contractor and supplier management reward discounts for active ongoing management through OHS Online. The reward applies to eligible ecosystem purchases under the programme rules. Signing agreements or collecting records alone does not qualify, and the benefit is not automatically a reduction on an external contractor’s invoice.

Software only vs consultant only vs the SafetyWallet model

Approach	What it solves	What it often misses	Best use	Long-term result
Software only	Stores agreements	Workplace implementation	Accessible records	Depends on action
Consultant only	Adds expertise	Daily coordination	Defined specialist input	Depends on follow-through
Safety file/document approach	Records arrangements	Changing conditions	Evidence for decisions	Needs continual review
SafetyWallet model	Connects software, training, support, risk, controls, behaviour and accountability	Still needs employer action	Building internal ownership	Supports sustained improvement

Make the agreement usable before work starts

Choose one current agreement and compare it with the next planned job. Confirm scope, decision-makers, critical interfaces, monitoring and change arrangements. Ask the people doing the work to explain those arrangements in their own words.

SafetyWallet helps connect the record to the management process. Our purpose remains: “We believe in making sure your loved ones return home healthy and safe after work.”

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By SafetyWallet. Based on its Contractor and Supplier Health and Safety Management learning material and Ownership with Support approach. General educational guidance; obtain advice appropriate to the facts for specific legal arrangements.