Author: T van Staden – attorney specialising in health and safety legal compliance
Construction is a hazardous endeavour, so here’s how you can make it as safe as possible – and stay on the right side of the law.
Let’s say, for example, ABC Development and Property Management is planning to build a new ultra-modern clubhouse at ABC Golf Estate.
ABC Development and Property Management has a large staff to ensure that the affairs of ABC Golf Estate are effectively managed, so they engage many service providers and contractors to create – and then to maintain – the various aspects and facilities of the estate. These include the aesthetic look and feel, the infrastructure and amenities, and also the security systems. And with any new development – such as the new clubhouse – ABC will need to comply with a slew of different legislations, one of which is the Occupational Health and Safety Act [Act 85 of 1993] (OHSA).
Know the rules
When dealing with any construction-related activities, the Construction Regulations made in terms of Section 43 of the OHSA and published under GNR 84 on 7 February 2014, will apply.
In terms of the construction regulations, there are three main role players, namely the client, the principal contractor and the designer. These are defined as follows.
- The client is any person for whom construction work is being performed, in above scenario, ABC Property Development and Management.
- The designer is a competent person who prepares a design, checks and approves a design, arranges for a person at work under their control to prepare a design, or designs temporary work, including its components, and includes:
- an architect or engineer contributing to, or having overall responsibility for a design;
- a building services engineer designing details for fixed plant;
- a surveyor specifying articles or drawing up specifications;
- a contractor carrying out design work as part of a design and building project; or
- an interior designer, shop-fitter or landscape architect.
- The principal contractor is an employer appointed by the client to perform construction work, and to be in overall control and management of a part of, or the whole of, a construction site.
Besides its existing and ongoing role as an employer, and its obligation to comply with Section 8 (employer’s duty) of the OHSA, ABC Property Development and Management must also fulfil its role as the client during the construction of the clubhouse. Regulation 5 of the Construction Regulations sets out specific duties that ABC Property Development and Management must comply with in its capacity as client.
In terms of the Regulation, the client must:
- prepare a baseline risk assessment for the intended construction. A baseline risk assessment is focused on the operational activities of the intended construction to obtain a benchmark of the types and size of potential hazards that could significantly impact on the project, and also on homeowners, visitors and service providers. To mitigate such risks, control measures must be implemented, and then must be evaluated to ensure their effectiveness.
- prepare a health and safety specification based on the risks identified and information collected from the baseline risk assessment. This is a document that includes all the health and safety requirements pertaining to the work associated with the intended construction, with the purpose of ensuring the health and safety of all persons on or near the construction project. In this regard it will be the health and safety of construction workers, residents, visitors and service providers such as garden services, security personnel, domestic workers, etc.
- provide the designer with a copy of the health and safety specification, which must be considered during the design of the intended construction.
- include the health and safety specification in the tender documents, and must ensure that potential principal contractors – when tendering – have made adequate provision for the cost of the health and safety measures required for the construction.
- appoint the principal contractor in writing, and must ensure that they have the necessary resources and competencies to carry out the intended construction safely.
- ensure – prior to commencement of construction – that the principal contractor is registered and in good standing with the Compensation Fund, or with a licensed compensation insurer, as defined in the Compensation for Occupational Injuries and Diseases Act [Act 130 of 1993].
- ensure that every principal contractor is registered and in good standing with the Unemployment Insurance Fund, as defined in the Unemployment Insurance Act [Act 63 of 2001].
- discuss the health and safety plan with the principal contractor, and ensure it is approved prior to commencing with construction.
- audit the principal contractor’s health and safety file at least every 14 days to verify compliance with the health and safety plan, and the principal contractor must be provided with a copy of the audit report.
- prevent any contractor from executing construction work that is not in accordance with the health and safety specification, and the principal contractor’s health and safety plan for the project.
From the above it is evident that the OHSA plays a crucial role in the planning – and eventual construction – of new developments in estates.
For detailed information in this regard, contact T & T Estate Living Consultants