Umndeni Consult (Pty) Ltd

safety first

🚧 Don't lift beyond the Safe Working Load (SWL) of the forklift! 🚧 Unsafe acts by the team can be fatal. They were lucky this time, but may not be so fortunate next time. What went wrong? Share your thoughts in the comments below. 👇 Join Safety Toolbox and visit www.safetytoolbox.in #safety #healthandsafety #forklift #safetyculture

SECTION 37 OF THE OHS ACT Section 37 of the Occupational Health and Safety Act, 1993 (“OHS Act”) deals with criminal liability of an employer for the acts or omissions of employees (37.1) and contractors (37.2). This is also known as the vicarious liability clause. Vicarious liability may be described as the liability of one person for the wrongful conduct by another. Section 37(1) deals with the conduct of employees and states that any act or omission committed by an employee, that constitutes an offence in terms of the OHS Act, will be ascribed to his/her employer unless the employer can prove that: - He/she acted without permission of the employer; - He/she acted outside the scope of their employment; - The employer took reasonable steps to prevent such an act or omission. In the event that the employer cannot prove all three of the above elements, the employer will be regarded as having committed the act, and may be sentenced and convicted on the terms thereof. Section 37(2), on the other hand, deals with the conduct of contractors, and states that the above provisions of section 37(1) will apply unless the parties agree in writing to the arrangements between them with respect to compliance by the contractor, to the OHS Act. In practice, this arrangement is known as the 37.2 Agreement. The purpose of the 37.2 Agreement is: - to confirm that the contractor will be regarded as an employer in their own right; - stipulate the obligations of the contractor in terms of the OHS Act and applicable Regulations; - that the contractor must comply with all of the on-site health and safety rules. Various other matters may be included in the agreement, and it can further be used as an umbrella contract binding the contractor to: - mandatory compliance audits; - inspections; - pre-start checklists; and whatever else may be required to ensure the health and safety of employees on-site. This may all be regarded as ‘reasonable steps’ taken by the employer in averting vicarious criminal liability.   It is however very important to note that the 37.2 Agreement is not an indemnity against prosecution. If a contractor incident occurs, and evidence points towards the employer contributing to such an incident, the employer may be convicted alongside the contractor. Section 9 of the OHS Act places a duty on employers to ensure that persons other than those in his employment who may be directly affected by his activities are not thereby exposed to hazards to their health or safety. Employers must therefore ensure that contractor employees are not exposed to hazards to their health and safety, irrespective of the existence of a 37.2 Agreement. #compliance #healthandsafety #contractormanagement