The OHS Act and contractors: what the client answers for, and what to see before work starts

The OHS Act is the Occupational Health and Safety Act 85 of 1993 (Government Gazette 14918, 2 July 1993). Its long title: to provide "for the health and safety of persons at work" and in connection with the use of plant and machinery, and to protect "persons other than persons at work" against hazards from work.^[1]

Its regulations count as part of it: in section 1, "this Act" includes any regulation made by the Minister under section 43, such as the Construction Regulations, 2014 and the Driven Machinery Regulations, 2015.^[1][2][3]

Section 1 also says who carries the duties: an employer is any person who employs or provides work for any person and pays, or undertakes to pay, that person, excluding a labour broker; the user of plant or machinery is whoever uses it for its own benefit or has the right to control its use, but not a lessor of it.^[1]

Section 9 extends the employer's duty to people it does not employ: every employer must conduct its undertaking so as to ensure, as far as is reasonably practicable, "that persons other than those in his employment who may be directly affected by his activities are not thereby exposed to hazards to their health or safety" (section 9(1)).^[1]

On a shared site, section 9 runs both ways: the host company owes it to the contractor's workers, and the contractor, an employer in its own right, owes it to the host's staff and visitors (sections 1 and 9(1)). A self-employed contractor carries the same duty for itself and others (section 9(2)).^[1]

Only in part. With a written agreement, the client is no longer presumed to have committed the contractor's breaches (section 37(2)). The contractor is liable either way: a mandatary can be convicted as if it were the employer (section 37(3)), in addition to the employer or user (section 37(5)).^[1]

Section 41 reads: "Subject to the provisions of sections 10(4) and 37(2), a provision of this Act ... shall not be affected by any condition of any agreement". With or without the agreement, the client remains an employer under section 8(2)(g) for compliance by every person on premises under its control where plant or machinery is used, and under section 9(1) for the contractor's workers as people directly affected by its activities.^[1]

Where the job is construction work, the Construction Regulations, 2014 put further duties on the client directly, among them ensuring before any work commences that every principal contractor is registered and in good standing with the compensation fund or a licensed compensation insurer (regulation 5(1)(j)), appointing it in writing (5(1)(k)) and ensuring health and safety audits at least once every 30 days (5(1)(o)). Appointing an agent leaves the client's "health and safety responsibilities or liabilities" in place (5(5) and (6)).^[2]

Regulations under the OHS Act add rules by type of work; the last column lists what each set lets a client check before the contractor starts.^{[1][2][3][4][5]}

Sources:^{[1][2][3][4][5]}

1. The site, the work, and whether it is construction work under the Construction Regulations, 2014 (building, alteration, repair or demolition of a structure; civil works such as roads, dams, sewers, earthmoving, excavation and piling).^[2]
2. The hazards on your premises and your site rules (induction, permits, access gates); for construction work, your health and safety specification under regulation 5(1)(b).^[2][6]
3. A signed section 37(2) agreement as a condition of site access, with your agreement attached.^[1][6]
4. A letter of good standing from the Compensation Fund, or proof of good standing with a licensed compensation insurer, valid on the start date, and proof of public liability cover.^[2][6]
5. The name of the contractor's person in charge on site and the written section 16(2) assignment of duties to that person.^[1][6]
6. A risk assessment and safe work procedure for the task; for construction work, prepared by a competent person appointed in writing.^[1][2]
7. Proof that each worker is trained for the task, and medical certificates of fitness where the work requires them.^[1][2][6]
8. For lifting: the last performance test by a lifting machinery inspector (within 12 months), the lifting tackle examination (within 3 months) and, for listed machines, each operator's certificate of training.^[3]
9. For electrical installation work: the contractor's registration as an electrical contractor, and a certificate of compliance from a registered person on completion.^[4]
10. Who on your side signs the access, runs the induction and stops the work if it becomes unsafe.^[1][2][6]