by Michael Bagraim
One thing we have benefited from Covid-19 and the lockdown is the necessity to ensure the work environment is safe and keeps the staff healthy.
It is vital in today’s environment to not only understand the Occupational Health and Safety legislation but also to have a working knowledge of all the protocols outlined by the Department of Health. The Department of Employment and Labour have also given a comprehensive document containing all the regulations, a document which is vital for every single employer.
We have in previous articles referred to these protocols and regulations, but we are finding many employers are becoming rather slack with the implementation of these regulations.
It is also important for employers to know and understand that if they don’t follow the regulations the staff or the trade unions can go directly to the Department of Health or the Department of Labour or indeed to the Commission for Conciliation, Mediation and Arbitration (CCMA).
The CCMA is reporting they are receiving complaints from employees about the work conditions and the neglect with regard to the regulations. I have not received the statistics as yet but my regular visits to the CCMA show me many of these complaints emanate from the lack of social distancing and the absence of masks.
Family members of the workers are worried the breadwinner will come down with Covid-19 because of the crowded situations at the workplace. These family members are telling me on a daily basis they are urging the workers to go to the CCMA to lodge these complaints and to ensure the inspectors come to the workplace.
The Compensation Fund does create an indemnity for the employer. No staff member may claim damages against the employer for contracting a disease at work. However, if it can be shown the employer has been negligent or reckless with regard to the implementation of the Health and Safety Regulations then there would be a claim because of the disregard shown by the employer.
The various departments do have the ability to raise a criminal action against the employer and on some occasions can actually call for the full closure of the business for a certain period of time until the Health and Safety Regulations have been properly implemented. Many of these transgressions will translate into fines which become exponentially greater for repeated offences. The legislation is there not to punish the employer but in fact to provide for the health and safety of persons at work and for the health and safety of persons in connection with the use of plant and machinery. There has to be protection for people who come to the workplace even if they are not employees.
An issue has arisen with regard to the event of people being asked to work at home. Our legislation has not taken the home work environment into account and it becomes very difficult to oversee the person is working in a healthy environment.
Likewise, it is almost impossible to determine how many hours that person is working and whether they are adhering to the various conditions as laid down by the Basic Conditions of Employment Act (BCEA). Many of the sections in the BCEA are specifically enacted to ensure the health and safety of the employees. For instance, the length of time an employee is allowed to work on a daily basis is very carefully outlined to ensure that a person does not overwork and create an unhealthy lifestyle.
Furthermore, the legislation specifically points out that an employee must take a lunch break after five hours of work. Likewise, there must be daily and weekly rest periods.
The Basic Conditions of Employment Act refers to Section 13, 14, and 15 so as to ensure that the people do not overwork and that their health and safety is protected by legislation.
The labour minister has the ability to regulate, on the advice of the chief Inspector appointed in terms of Section 27 of the Occupational Health and Safety Act.
To be continued...
* Michael Bagraim is the DA's deputy spokesperson for Employment and Labour, and a labour lawyer.
** The views expressed here are not necessarily those of Independent Media.