Legal Appointments & the Occupational Health & Safety Act
An employer is responsible for occupational health & safety. However and employer is in most instances a corporate body or legal entity and unable to perform the duties imposed on it in terms of the Occupational Health & Safety Act 85 of 1993. Thus, the employer is required to appoint employees (managers, supervisors and other staff) to perform its duties on its behalf in an effort of compliance.
The employer in making these appointments have to ensure that the employees they appoint are trained and qualified to perform the functions on its behalf.
The general rule of law is that the person making the appointment must have the authority to make such appointment on behalf of the employer. The person authorised to make the appointment only transfers the duty and not the liability. This in turn requires that the person making the appointment direct and control the person being appointed. The person making the appointment must ensure the person appointed complies too the law.
The 16(1) legal appointment is that of the Chief Executive Officer. The “chief executive officer” is defined in section 1 of the Act mentioned supra as: “in relation to a body corporate or an enterprise conducted by the State, means the person who is responsible for the overall management and control of the business of such body corporate or enterprise”. The appointment of the CEO is mandatory and in general an automatic appointment in accepting the appointment as CEO.
In practice, the appointed CEO may appoint managers in terms of section 16(2) of the Act to assist the 16(1) in discharging his/her obligations in terms of the Act. Section 16(2) of the Act provides that:
“Without derogating from his responsibility or liability in terms of subsection (1), a chief executive officer may assign any duty contemplated in the said subsection, to any person under his control, which person shall act subject to the control and directions of the chief executive officer”.The size of the business will determine the amount of managers to be appointed as 16(2)’s. The appointed 16(2)’s appointed by the CEO must act subject to the direction and control of the CEO.
The controversial question arises whether one 16(2) can appoint another person as 16(2)?
In answering this question there are several matters to be considered. The first matter is the difference between the strict and wide interpretation of the law. The strict interpretation of the law means we literally apply the law as it is written. This will imply the answer to the question above is no as it is clearly stated in section 16(2) a chief executive officer may assign any duty………. The appointment of the 16(2) according to the strict/literal interpretation to the law must be done by the 16(1).
If we look at a business with several levels of management (Example: General, Senior and Junior Management) it quickly becomes clear that this situation is not as simples as it appears at first glance.
In a business with several levels of management we need to consider the intent of legislature with the 16(2) legal appointments. The intent of legislature is one of the approaches followed under the objective approach in the wide interpretation of the law. The intent of legislature determined under this approach is to have all managers in all areas/divisions in the company appointed to assist the 16(1) legal appointee who is ultimately responsible for health & safety in the organization. In finalising this wide interpretation we need to determine under the subjective approach what we need to do in our current situation to comply with the intent of legislature as determined under the objective approach. This will mean that we allow one manager as 16(2) to appoint a manager reporting to him as 16(2). The CEO however cannot appoint the latter 16(2) as he/she does not report to the CEO, meaning he/she does not act subject to the direction and control of the CEO. One should never be dogmatic in you interpretation and application of the law for the sake of saying you are compliant in the formal sense of the word (paper exercise). The true intent of legislature should be an important consideration.
Some disagree with this approach and will revert to the delegates non potest delegare principle. This means “one to whom power is delegated cannot himself further delegate that power”. This principle however finds its application in Administrative Law.
Administrative law is the body of law that governs the activities of departments of government. Government department action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law. It does however not apply to the relationships/authorities in a private company or business.
There are several other mandatory legal appointments in the Act. The legal appointment letter itself is important in showing that the employer has given a person a specific duty(ies) in terms of the Act as required in section 8(2)(j).
Letters of appointment for each appointee must be clear and concise. Certain practical aspects must be considered in letters of appointment, such as:
- The area of appointment (scope and size),
- The number of persons reporting to the particular appointee,
- The scope and content of the duties,
- The competence of the appointee to comply with the duties and responsibilities imposed on him/her.
Should you need assistance in your legal appointment structure or appointment letters you can contact Gerrit Augustyn at Gerrit.Augustyn@eoh.co.za or 087 405 1823.