WITH the introduction of the Occupational Health and Safety Act (OHS Act 95 of 1993), the Compensation for Occupational Injury and Diseases Act (COID Act), Basic Conditions of Employment Act (BCEA) and Labour Relations Act (LRA), trustees will find themselves with additional responsibilities should they decide to employ a contractor without the above acts being taken into consideration.
Ignorance of the law is no excuse.
Trustees wrongly assume that the contractor they appoint for maintenance work is responsible for complying with the regulations set out in the OHSA for their workers whilst on site. This may be partially true, but the act defines any person for whom construction work is performed to be the “client”. This makes the body corporate responsible.
Body corporate trustees, as construction clients, are obliged to comply with the health and safety requirements, and to safeguard themselves and the body corporate against potential claims arising from any injuries or death caused by any construction work performed by contractors.
Should trustees appoint a contractor who is not registered and who is not complying with legislation, the body corporate will be deemed to be the employer and held responsible should there be an accident during the maintenance work.
The revised construction regulations in terms of the OHS Act also makes the client responsible for the implementation of the act, where construction work is done.
The act defines construction work as – any work in connection with erection, maintenance, alteration, renovation, repair, demolition, addition to a building, moving of earth, clearing of land, making an excavation, etc.
Trustees need to acquaint themselves with OHS Act – especially section 4:
The client (the trustees) shall: (when the word “shall’ is used it means it is obligatory)
a) Make provision for the cost of health and safety at the pre-tender stage of the project;
b) Provide the contractor with an OHS specification for the project at pre-tender stage;
c) Ensure that every principal contractor is registered and in good standing with the compensation fund;
d) Ensure that the principal contractor provides you with an OHS plan which is in accordance with the specification and legislation before appointing them;
e) Do regular inspections on the principle contractor ensuring that he complies with the safety plan he provided you with. And the good news:
f) The client may appoint an agent in writing to act as their representative, all the responsibilities shall apply to the appointed agent. All worries and liabilities are taken off the trustees. I am of the opinion that the appointment of an OHS professional is the only way for trustees to do maintenance without incurring any risk on themselves or the body corporate. An appointed agent’s responsibilities would include: OHS Act legal compliance, construction regulations requirements, training, health and safety specifications, health and safety plans (SHE files) auditing of construction sites, acting as clients Safety, health & environment (SHE) agent and all other SHE requirements of the client. Construction regulations state that the OHS specification, the safety plan, as well as the inspections on the contractor, must be done by a person deemed to be competent by the construction regulations. So, unless you have a trustee who is qualified to do the inspections, is familiar with OHSAspecifications and knows about safety plans, then the trustees will require an agent to be appointed before the project begins. It is doubtful that many small contractors and handymen will be OHSA compliant, or be in good standing with the compensation fund. About four years ago, a worker on a ST scheme in Durban fell off scaffolding and injured his back and could no longer walk. His attorney claimed compensation from the contractor, but the contractor was not compliant with the OHSA, nor was he in good standing with the compensation fund – the attorney then sued the body corporate as the client.
The body corporate lost the case and was ordered to pay compensation to the man amounting to R4000 per month (with annual CPI increases) for life! The other members of the body corporate could have sued the trustees for being negligent for appointing a contractor that was not OHSA compliant and made them pay the award in their personal capacities – trustees beware!
Trustees need to be aware too that instructing the gardener to get onto the roof to paint or to clean the gutters, having them change light bulbs or clean windows using a ladder, all carry a risk that needs to be considered very carefully.
Les Reynard has been a managing agent for nearly 30 years. He is a member of the National Association of Managing Agents and a committee member of the Sectional Title Association of PE. E-mail him at Les@ReynardAgencies.com