Impact of new OHS Act Construction Regulations

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• A client is defined in these regulations as any person for whom construction work is being performed. This is very important because it automatically excludes an owner of a property or a managing agent of a property from liability for non-compliance with these regulations in a situation where another person, such as a tenant, does construction work without complying with these regulations.
  
• Construction work is very broadly defined and includes almost every conceivable situation of building or amending an existing building or structure and would include changes to the plumbing or sewers or any other structural aspect of a building.
  
• A principle contractor is the main contractor with whom the client contracts to perform the construction work concerned who in turn will hire sub contractors.
  
• A contractor on the other hand is a different person to the principle contractor, in that the principle contractor then mandates the contractor in terms of contract to perform part of the construction work that he has been mandated by the client to perform.
  
• A designer is any competent person involved in the design of the construction work, which includes architects, engineers, surveyors and/or any other professional such as a plumber, or electrician, who is involved in drawing up the specifications or the construction work.
  
• A competent person is defined as any person with the requisite qualifications, skills and/or experience in order to carry out the design, or construction, of the planned works.

Aim of regulations

The aim of the regulations is to ensure that in every building project, no matter how big or small, or whether a building is being erected for the first time or altered, that the people who work on that construction project, are protected from an occupational health and safety prospective.

These regulations are thus very far encompassing and aim to ensure that the people responsible for the running of this project as well as the owner of the property take responsibility for the health and safety of the workers who carry out the construction on the ground.

These regulations provide that any person who fails to comply with most of these regulations could be subject to a fine or imprisonment of up to 12 months.

In addition where the non-compliances are of a continuing nature, for every day that non-compliance continues after having been given notice to cease or to correct any particular act of non-compliance, an additional fine of R200 per day or an additional period of imprisonment of 1 day can be added to the existing penalties for non-compliance, provided that such period will not exceed 90 days.

Duties of client

The regulations impose many onerous duties on a person who meets the definition of a client. These cannot be dealt with extensively herein and only the most important will be canvassed here.

Before any construction work as defined in these regulations can begin, a client needs to obtain a permit from the provincial director for the construction works as planned. This permit is only necessary if the value of the works exceed R13m or Construction Industry Development Board grading level 6, or will take longer than 180 days to complete, or will involve more than 1,800 person days. If no permit is required then the client is still required to notify the provincial director of the planned works before the commencement thereof. Failure to comply with this will result in the penalties listed above being triggered.

In addition to the obligation to either obtain a permit or to notify the provincial director of the commencement of construction the client is obliged to create a baseline risk assessment for the intended work, and flowing from that, must prepare a coherent site specific health and safety specification, which is essentially a document containing all of the necessary design specifications as well as any other information necessary along with those specifications, to enable to principal contractor to use those specifications for the purposes of procuring tenders for the work in a manner that gives the prospective tenderers and designers all of the information that they need to accurately price the construction as well as to cater adequately for any and all health and safety needs of that particular project.

All tenderers are then required when they submit their tenders to deal fully with the manner in which health and safety on the project will be facilitated as well as to provide information as to what is necessary in order to comply with the regulations.

Obligations of client

The client is also obliged by the regulations to ensure that the principal contractor as well as the designer(s) comply with their obligations in terms of the regulations. This is very onerous as ordinarily the client would hire these professionals to do a job which he or she (the client) is not capable of doing because the client does not have the necessary qualifications, skills or expertise to do so.

The regulations provide that where a permit is required the client must appoint an agent, who is a competent person to manage the project for the client, and ensure that all of the client's obligations in terms of these regulations are complied with. In instances where a permit is not required a client may appoint an agent and as explained above because these regulations are so onerous and place the obligation on the client to ensure that principal contractor and the designers have in turn complied with their own obligations in terms of these regulations, it is recommended that the client in all instances appoint an agent who is a competent person and who can carry out the necessary supervision of the project to ensure that all of the client's obligations as prescribed by these regulations are complied with.

The principal contractor is obliged by law to take the health and safety specifications provided to him by the client and to use this to obtain designs from designers and tenders from tenderers for the construction work planned.

As explained above, the principal contractor must ensure that the tenders submitted by the tenderers and the designs by the designers make adequate provision for the cost of and the manner in which the necessary health and safety obligations of the tenderer will be complied with during the construction works as planned.

The principal contractor is also obliged by law to make sure that all of the contractors on the site have their own health and safety plans in place for whatever portion of the construction work they have been mandated to carry out, and to ensure that to the extent necessary the various contractors involved in the project work together to ensure that health and safety for the site overall is complied with.

The principle contractor is also obliged to keep copies of all of the relevant documentation on site at all times, and where the responsibility is placed on the contractor to keep certain documentation, the principle contractor is obliged to ensure that the contractor complies with these duties.

Duties of designers

The regulations place the duty on the designer or designers to ensure that all necessary information pertaining to the health and safety requirements of the project, in light of the specific designs that they have created, are submitted to the clients such that this information can be transmitted to the principal contractor to be provided to tenderers who must then use this information to provide an accurate quote and deal adequately with the health and safety regulations of the project.

Other than this designers appear not to play a very large role in the overall scheme of these regulations, which is strange seeing that in most instances the architect who drew the designs would be the person who manages the project for the client and ensures that all of the contractors are complying with the relevant health and safety obligations.

However this is probably because the legislature envisaged that if an architect were appointed in this capacity that that architect would then simply assume the role of an "agent" as defined in these regulations and would essentially step into the shoes of the client in ensuring that the duties of the client, the principal contractor, and the designers overall were complied with.

Duties of contractors

Most of the 54 page regulations deal with the duties of contractors in specific situations. These relate to a number of hazardous situations in which the legislature has deemed it necessary to prescribe certain minimum health and safety standards that must be met by the contractors concerned who are working on a part of the overall project for the client, that might or does require the use of any equipment or material in a potentially hazardous situation from a health and safety prospective.

These will not be detailed here as they are numerous and complicated. In addition as described above the regulations do not require that the client assumes responsibility for compliance by a contractor with a contractor's obligations in terms of these regulations.

Generally speaking however contractors are obliged to each have their own health and safety plan for that part of the overall project that they are working on.

Broadly speaking the regulations envisage that each contractor who works on a smaller part of the overall project will have their own health and safety plan for the part of the project that they work on.

Hazardous situations

They are specifically obliged to deal with certain hazardous situations on a health and safety prospective as prescribed in the regulations.

The principal contractor then has to ensure that every contractor has his own health and safety plan and that it is sufficiently documented and updated and that reports are generated in relation to the maintenance of that plan from time to time as prescribed.

The principal contractor also needs to ensure that insofar as is necessary in order to ensure the safety overall of all persons on the site that the various contractors and their various plans work together in a cohesive manner.

As explained then the client is compelled in terms of the regulations to ensure that the principal contractor does his or her or it's job in co-ordinating the implementation and maintenance of the various plans.

Burdensome for client

In conclusion, it is submitted that these regulations are overly burdensome for a client especially in situations where the planned construction is very low key and would entail the incurring of costs by the client to conduct a baseline risk assessment, and draw up a health and safety specification which is then used by the principle contractor to get the designers to design and the tenderers to tender (which all costs money).

If the client can actually afford to follow this process, it must then still decide whether to attempt to comply with all of the very onerous obligations created by these regulations itself, or whether to rather appoint an agent to comply with the client's duties on his behalf (which will also cost, as that person must by definition be a competent person with the requisite skill, knowledge, qualifications and experience to act on the client's behalf in fulfilling the countless number of onerous duties placed on him by these regulations).

In the author's view insufficient provision was made for this cost to the client doing various small scale works and as such it is envisaged that this is going to be incredibly financially detrimental to many clients proposing small works.