Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

Occupational Safety and Health Convention, 1981 (No. 155) - South Africa (Ratification: 2003)

The Committee notes the information provided by the Government on the effect given to Articles 1, 2, 3, 5(a), (c) and (d), 8, 9(1), 11(b) and (d), 12(a), 16, 19(a) and 21 of the Convention.

Legislation. The Committee notes the Government’s indication that the Occupational Health and Safety Act (OHSA) has been reviewed and approved for submission to the Minister of Labour by the Advisory Council for Occupational Health and Safety (ACOHS), and that it will be submitted to the National Economic Development and Labour Council once approved by the Minister. Recalling its previous comments and the fact that the OHSA has been under review for more than a decade, the Committee urges the Government to take the necessary measures to adopt the new occupational safety and health (OSH) legislation in the near future, and to communicate a copy once it is adopted.

Articles 4 and 7 of the Convention. National policy on occupational safety and health. Review of the national policy at appropriate intervals. The Committee notes that the Government indicates that the OHSA is the current national policy on OSH. It also notes that the ACOHS is a tripartite structure made up of organized labour, organized business and government. The functions of the ACOHS include advising the Minister with regard to matters of policy related to this Act and any other matter concerning OSH. The ACOHS meets on a quarterly basis to discuss areas of concern and operates according to a workplan that guides its activities. Review of the legislation is influenced by the ACOHS as well as through stakeholder interaction. The Government also indicates that the Department of Labour, in addition to working with various donors on areas of concern, conducts various research projects with a view to determining the extent of particular problems in order to address identified shortcomings through various initiatives. Social partners are involved in all these activities. The Committee requests the Government to provide further information on major problems regarding OSH, identified methods for dealing with them, priorities of action and on the manner in which these elements are taken into account in the periodic review of the policy.

Article 5(b). Relationships between the material elements of work and the persons who carry out or supervise the work. The Committee notes the Government’s indication that section 8 of the OHSA, which provides for the general duties of employers to their workers, and the various regulations adopted pursuant to the OHSA, gives effect to Article 5(b) of the Convention. However, the Committee notes that a number of elements listed in Article 5(b) do not seem to be covered by the legislation referenced, including the adaptation of working time, organisation of work and work processes to the physical and mental capacities of the workers. The Committee requests the Government to provide further information on the extent to which the national policy on OSH takes into account the elements listed in Article 5(b) of the Convention.

Article 5(e). Protection of workers and their representatives from disciplinary measures. The Committee notes that under section 26 of the OHSA, employers cannot dismiss workers, reduce their remuneration, alter the terms or conditions of their employment or alter their positions because of the fact they have taken actions pursuant to the OHSA. However, the Committee notes that worker representatives are not specifically covered by this protection. The Committee requests the Government to provide information on the manner in which it is ensured that worker representatives are protected from disciplinary measures as a result of actions properly taken by them in conformity with the national policy on OSH.

Article 11(a), (c) and (e). Functions to be progressively carried out to give effect to the national policy. The Committee notes the Government’s indication that the 2014 Construction Regulations, which provide conditions on the design and construction of buildings, give effect to Article 11(a), while sections 24 and 25 of the OHSA, in conjunction with sections 8 and 9 of the General Administrative Regulations, establish the notification requirements for occupational accidents and diseases, as required by Article 11(c). It also notes the indication that the Annual Report relating to the outcomes of the targets set in the Strategic Plan and the Annual Performance Plan is currently the only form of publication on OSH and that the Government intends to publish annual incident figures in the future, as required by Article 11(e). The Committee requests the Government to provide further information on the extent to which the competent authority ensures the functions, other than the determination of conditions governing the design and construction of undertakings, described in Article 11(a), the establishment and application of procedures for the production of annual statistics on occupational accidents and diseases (Article 11(c)), and the annual publication of information on occupational accidents, occupational diseases and other injuries to health which arise in the course of, or in connection with, work (Article 11(e)).

Article 12(b). Obligations of persons who design, manufacture, import, provide or transfer machinery, equipment or substances for occupational use. The Committee notes the Government’s reference to section 10 of the OHSA and regulations adopted pursuant to the OHSA. It notes that these texts do not provide specifically for the obligation of the persons enumerated to make available information concerning the correct installation and use of machinery and equipment as well as information on hazards of machinery and equipment. The Committee requests the Government to provide further information on the measures taken to ensure that the persons who design, manufacture, import, provide or transfer machinery or equipment for occupational use, make available information on their correct installation and use, as well as on their hazards.

Articles 13 and 19(f). Protection of workers who remove themselves from work situations presenting an imminent and serious danger. The Committee notes the Government’s indication that while section 26 of the OHSA forbids employers from measures against workers who have taken actions pursuant to the OHSA, it does not provide for the right of workers to remove themselves under Article 13 of the Convention. It also notes the indication that pursuant to section 14(d) of the OHSA, workers must report any unsafe or unhealthy situations to the employer or safety representative as soon as practicable, but notes that no information is provided with regard to the requirement in Article 19(f) under which employers cannot require workers to return to a work situation where there is continuing imminent and serious danger to life or health until remedial action has been taken, if necessary. The Committee requests the Government to provide further information on the measures taken or envisaged to ensure that a worker who has removed himself from a work situation which he has reasonable justification to believe presents an imminent danger to his life or health is protected from undue consequences. It also requests the Government to provide information on the manner in which it is ensured that employers cannot require workers to return to a work situation where there is continuing imminent and serious danger to life or health until remedial action has been taken, if necessary.

Article 15. Arrangements for coordination between authorities and bodies and consultation with workers’ and employers’ representatives. The Committee notes the list of bodies established to assist in the management of OSH provided by the Government, but notes that no information is provided on their roles or how coordination is ensured between them or on consultations held, at the earliest possible stage, with the most representative organizations of employers and workers. In this regard, the Committee recalls that systems for coordination and cooperation between the different authorities and bodies involved in the administration of the national OSH system are necessary to ensure coherence of action at all levels and to facilitate the flow of, and access to, information. The Committee requests the Government to provide further information on the arrangements taken or envisaged to ensure the necessary coordination between the various authorities and bodies called upon to give effect to the provisions of the Convention, including whether the ACOHS is the central body.

Article 17. Collaboration when two or more undertakings engage in activities simultaneously at one workplace. The Committee notes the Government’s indication that situations in which multiple undertakings engaging in activities simultaneously at one workplace occur mainly in the construction sector and that section 8 of the Construction Regulations of 2014 requires that a competent person be appointed as the manager for all construction work on a single site by the principal contractor. The Committee requests the Government to take measures, in law and in practice, to ensure collaboration in applying the requirements of this Convention whenever two or more undertakings engage in activities simultaneously at one workplace, including but not limited to, workplaces in the construction sector.

Article 18. Measures to deal with emergencies and accidents. The Committee notes the Government’s reference to the Major Hazard Installation Regulations, which provide requirements for the establishment of emergency plans. The Committee requests the Government to provide information on the measures taken to ensure that employers, not limited to those operating major hazard installations, are required to provide for measures to deal with emergencies and accidents.

Article 19(b)–(e). Rights and duties of workers and their representatives. The Committee notes the Government’s indication that numerous sections of the OHSA, namely section 8 on the general duties of employers, section 14 on the general duties of workers, and sections 18 and 20 on the functions of health and safety representatives and committees, respectively, give effect to these provisions of the Convention. However, the Committee notes that the legislation referenced does not necessarily ensure the effective application of these provisions to all workers, as some sections require a minimal number of workers for the establishment of worker representation. The Committee requests the Government to provide further information on the measures taken or envisaged to ensure that the rights and duties listed in Article 19(b)–(e) of the Convention apply to all workers and their representatives.

Article 20. Cooperation at the level of the undertaking. The Committee notes the Government’s indication that under the OHSA, undertakings other than shops and offices which employ more than 50 workers, and shops and offices which employ more than 100 workers, can establish health and safety committees, while section 20 of the OHSA provides that these committees may make recommendations to the employer regarding matters affecting OSH and discuss any incident at the workplace. The Committee requests the Government to provide information on the measures taken in law and in practice to ensure that effect is given to Article 20 of the Convention in all undertakings, regardless of the number of workers employed, and to provide further details on safety and health committees, particularly with regard to their composition and functions.

Application in practice. The Committee notes the statistical data provided, disaggregated by province, on the number of occupational accidents, and notes in particular that the sectors of agriculture, manufacturing and construction generally have the highest number of fatal and non-fatal occupational accidents. The Committee requests the Government to provide information on the measures taken or envisaged to address the high number of accidents in the agricultural, manufacturing and construction sectors. It also requests the Government to provide further information on the manner in which the Convention is applied in the country, including extracts from inspection reports, and where such statistics exist, information on the number of workers covered by the legislation, the number and nature of the contraventions reported, the number, nature and causes of the accidents and cases of disease reported, etc.