An Oprah moment

The talk show queen’s most iconic line unveiled the Occupational Health and Safety (OHS) Amendment Bill, 2020, at this year’s Saiosh Health and Safety Conference.

“Look under your seat,” said Ernst van Biljon, director of Legislation Compliance Specialists – a law firm specialising in OHS – at this year’s conference, adding, “The new Bill is under there!” This Oprah moment had delegates laughing, as the Bill hasn’t surfaced since its draft version was released for public comment in 2021. 

Van Biljon said he had asked the Department of Employment and Labour (DEL) to see the Bill, as he had to deliver a presentation on it. They said no, as it still hadn’t been finalised by mid-August (the Saiosh conference was held in Cape Town on 16 August; you can read the report on page 22). 

Van Biljon served on the Saiosh Technical Committee that analysed the draft Bill and proposed amendments to align it with the more constitutionally acceptable Mine Health and Safety Act, 1996, the Promotion of Administrative Act, 2000, and the Constitution. “We sent comments to the chief inspector … but we still don’t know what is going to happen,” Van Biljon explained. “However, the new OHS Bill will definitely enforce stricter health and safety (H&S) requirements … focusing more on risks than hazards.”

Section 7 was the first draft amendment Van Biljon discussed. Rather than dealing with OHS policy, it will change to an H&S management system defined as: “A coordinated, comprehensive set of interrelated or interacting elements to establish OHS policy and objectives to optimally manage H&S.” This, he said, means companies will have to formalise H&S procedures with policies, objectives, and measurement tools to meet standards “pretty much based on the ISO (equivalent)”. One-page policies will no longer cut it.

Another proposed amendment can be found in Section 8(1), which says an employer shall provide and maintain, “as far as reasonably practicable”, a safe and risk-free working environment. Van Biljon noted that “as far as reasonably practicable” was removed in various places in the draft Bill. This “all or nothing” stance on something nearly impossible to achieve (will admin employees have to start wearing cut-resistant gloves to prevent paper cuts?) can have far-reaching consequences …

Section 37A might allow the DEL to impose spot fines for certain contraventions – like not having an H&S management system – ranging from R25,000 to R50,000. But these spot fines can’t hold a candle to penalties that employers might face. “For not complying with Section 8 – the general duties of an employer – you look at R5 million or five years in prison,” Van Biljon emphasised.

Employers aren’t the only ones bearing the brunt of changes. Where employees would have received a R50,000 fine or one year imprisonment for not complying with their general H&S duties, under the draft Bill they could face a R1 million fine or three years in prison. “(The DEL) is raising the bar and they want us to comply,” Van Biljon reiterated. “However, compliance to any law shouldn’t be driven by fear,” he pointed out, adding that we all should comply for one reason – to ensure that everyone goes home safe to their loved ones.