Non-compliance with health and safety legislation carries serious risks, not least of which is the risk of personal liability for the employer in the event of a serious accident. As such, it’s vital that you fully understand your health and safety liabilities and responsibilities under the Occupational Health and Safety Act (OHS Act). In this article, we’ll explain both.
The definition of an employer, according to the OHS Act, is broader than you may assume. An employer is any person who provides work to another person. According to the OHS Act, there are two key features to the definition of an employer:
An employer undertakes to pay another person for services provided. The payment does not have to be money, and the employer does not have to pay the person directly. An example of this is the temporary worker who is salaried by his placement agency.
An employer is a person who gives instructions or supervises another person. Therefore, if a person supervises an employee, he or she will be regarded as the employer of that particular employee.
Section 8(1) of the OHS Act places a clear obligation on every employer: Provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of employees. Section 8(2) goes on to set out the employer’s specific duties.
Section 8 is a very important section of the OHS Act. Successful implementation of the requirements outlined in this section addresses the majority of a company’s health and safety obligations. Here is what each duty requires:
Safe systems, plant and machinery [Section 8(2)(a)]: Your equipment, machinery, and systems of work must be safe and properly maintained.
Eliminate or mitigate hazards before resorting to PPE [Section 8(2)(b)]: Personal protective equipment is a last resort, not a primary risk control. Employers must make all possible efforts to control risks and eliminate hazards through more effective means.
Safe handling, storage and transport [Section 8(2)(c)]: Articles and substances must be handled, stored, and transported in ways that do not create risk.
Identify hazards and establish precautionary measures [Section 8(2)(d)]: This is the foundation of any health and safety programme. Workplace inspections and risk assessments must be carried out regularly.
Information, instruction, training and supervision [Section 8(2)(e)]: Employees receive appropriate health and safety training and information relating to their work, and must receive proper supervision and instruction.
No work until precautionary measures are in place [Section 8(2)(f)]: Work may not proceed until appropriate risk control measures are in place.
Ensuring compliance by all persons on premises [Section 8(2)(g)]: Employers have a duty to ensure that everyone on the premises, including employees and others, complies with the requirements of the OHS Act.
Enforcing health and safety measures [Section 8(2)(h)]: Employers must take the actions needed to implement and enforce health and safety measures in the workplace.
Supervision by a trained person with authority [Section 8(2)(i)]: Work must be performed under the supervision of someone who understands the hazards involved and who has the training and authority to implement precautionary measures.
Informing employees of the scope of their authority [Section 8(2)(j)]: Employees must be informed of the scope of their authority as contemplated under Section 37(1)(b) of the Act.
The employer’s duties extend beyond ensuring the health and safety of just their employees. Section 9 of the OHS Act requires employers to conduct their undertaking in such a way that visitors, contractors, and members of the public are not exposed to hazards arising from your operations.
It is why many businesses — especially those in higher-risk sectors — conduct formal site health and safety inductions for anyone entering the workplace. These inductions typically cover the hazards present on site, any PPE requirements, and the emergency procedures in place.
Failing to meet your OHS Act health and safety obligations can expose both your business and you personally to criminal and civil liability.
Non-compliance with the OHS Act can result in fines, imprisonment, or both. The penalties depend on the specific offence or regulation involved. Under Section 38 of the OHS Act, certain offences can result in a fine of up to R100,000, imprisonment for up to two years, or both.
Civil liability can arise where a person or organisation seeks damages from another party, including where damage has resulted from negligence. Beyond direct legal penalties, non-compliance can expose a business to legal costs, increased insurance costs, civil claims, enforcement action, business disruption, loss of contracts, and reputational damage. Depending on the circumstances and their responsibilities, the organisation, CEO, members of management, or other employees may face legal consequences.
Investing proactively in health and safety compliance helps reduce exposure to these legal and financial risks while protecting employees, the organisation, and the people responsible for managing workplace health and safety.
As an employer or CEO, your legal liability health and safety obligations are significant. The good news is that these obligations are entirely manageable with the right systems and support in place. Access to expert occupational health and safety services helps you build and maintain a health and safety framework that is legally compliant and practically workable.
Absolute Health Services works alongside businesses to build healthy, safe, prepared, and compliant workplaces through tailored, practical support. If you’re looking for OHS consultants who understand the requirements of the OHS Act and have decades of experience assisting businesses to meet them, get in touch.
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