Work at Height, Fall Protection, Training & Medicals

What are the legal duties of an employer towards employees working at heights?

A Possible Working at Heights Scenario

John started his own Construction Company and approaches you as Health and Safety Specialist to advise on the legal requirements for working at heights.

The Legal Position in South Africa

The first matter to be addressed when looking at the legal factors impacting working at heights, is that of General Safety Regulation 6 – Work in Elevated Position: “ No employer shall require or permit any person to work in an elevated position, and no person shall work in an elevated position, unless such work is performed safely from a ladder or scaffolding, or from a position where such person has been made as safe as if he were working from scaffolding”.

Regulation 8 of the Construction Regulations deals with working at heights and the need for a fall protection plan.It is however first important to distinguish between fall prevention and fall arrest.

Fall prevention in its most common form is the use of barricading to protect an employee from falling, whereas fall arrest is a safety harness and safety line that will arrest the employee if he/she was to fall while working at heights.

Fall prevention should always be considered as a first option and fall arrest as a last. The employer has to ensure that, fall prevention and fall arrest equipment is of sufficient and suitable strength, and the fall prevention and fall arrest equipment is securely attached to the lifeline or structure

Fall Protection Plan

In terms of Regulation 8 an employer has a duty to designate a competent person as responsible person for the preparation of a Fall Protection Plan.

This plan must be implemented, amended and maintained as required. The employer has to further ensure that there is adherence to the Fall Protection Plan.

The Fall Protection Plan must include the following as a minimum:
Must be Site specific (It requires a physical Hazard Identification on site)
Ensure everything is documented (Its audit evidence that you have done your job)
Hazard Identification (must be with a site or in house team)
Risk Assessment (analysis and evaluation with an in house team)
Management – Manage and control. Don’t forget to manage where changes are brought about
Determination of Controls – Safe work procedures, Method statements, etc
Procedures (WSWP) include Who, When, Why, What, Where
Method statement – focus on How (Method Statement to eliminate risks)
Rescue Plan (Include how to rescue a person, hanging there, after a fall from height, and within a short time?)
Emergency Plan (How to safely evacuate site)
Implement, Maintain, Monitor, Review Plans

The Fall Protection Plan must also address the process for evaluating the employee’s physical and psychological fitness.

Medical Fitness

Medical conditions that will make a person unfit for work at heights are:
Hypertension/High Blood pressure,
Epilepsy,
Diabetes,
Heart Diseases,
Fear of Heights

A person may under no circumstances be working at heights if they suffer from any of these conditions, even If they are treated by a medical professional. As an employer you have no control over the taking of the medication as per the instructions of the medical professional, one “slip up” can become fatal.

It is shocking to observe on construction sites in South Africa the non-compliance to the legislative requirements set for working at heights, especially the smaller construction companies.

Are you in the same position as John or do you meet all the legislative requirements for working at heights?

This article by Gerrit Augustyn via sheqafrica.com.

The State’s Health & Safety File does not Comply

The health and safety file regime does not prevent building failures. When state-owned buildings collapse, regulatory failures becomes glaring.

Collapse of a state-owned factory floor injured 88 workers in Port Elizabeth harbour on 13 March. Transnet is investigating the Eyethu Fishing incident.

Cosatu called for a Labour and municipal building probe. This is the second collapse of a major building structure in six months to reveal regulatory gaps, writes health and safety consultant Rudy Maritz.

Properties in harbours are owned by the state and leased out. Lease agreements generally are excluded from the OHS Act by section 41, but could be seen as an agreement in terms of Section 37(2) where the owner is the principal as leaser, and the tenant the mandatary as lessee, having been mandated in terms of the lease to comply with certain provisions in relation to the safe use of the leased property. Lease agreements are seldom drafted in this context.

A lack of regulatory controls in the post-construction life-cycle of a building built prior to the 2003 regulations is attributable to the cause of incidents of this nature. This fact is emphasised by the introduction in the 2014 version of the construction regulations, of a specific requirement imposed on designers of structures and buildings to consider health and safety in the design phase.

Health & Safety File Syndrome

The effectiveness of the 2014 regulation, which includes the provision of health and safety information from the planning phase to hand-over, to all parties involved, will be determined by how the DOL enforces the use of the degenerated health and safety file regime in future.

Health and safety files, since their inception in 2003, were intended to prevent accidents like this by providing the occupier of a completed building with sufficient health and safety information to properly use and maintain the building, based on design and construction information that would impact on such use, such as maximum floor loadings.

But it has degenerated into an instrument of red tape to protect the backsides of construction contractors and the state, and for personal enrichment of consultants willing to supply a solution to a ‘problem’ that has no legal grounds to exist.

Construction clients should take note of the requirements to obtain a consolidated health and safety file from the construction contractor, to hand over to the occupier of a building in future.

Construction law and practice failures are now laid at the feet of health and safety practitioners. It is clearly indicated in the incident above and the Tongaat Mall collapse, that the problem does not lie with competencies in health and safety.

The construction Industry, while contributing 16% to GDP, is to blame for the lack of competency in the built environment. Instead of blaming health and safety people and ‘regulating’ the profession by registration, incidents in the built environment should be studied.

Building fires, collapses, fractures, structural failures and all the other loss incidents during and after construction, have more fundamental causes that health and safety people could not prevent.

Incident statistics kept by the construction industry itself, such as the statutory insurer Fema, indicate high levels of fatalities, such as 72 last year.

We should not allow a set of rules to cover one aspect of the built environment in isolation. It is of vital importance to have an integrated regulatory framework for pre-construction, in-construction as well as post-construction.

The 2014 Construction Regulations Amendment effectively addresses only two of the three aspects and made a rather insignificant attempt to address the third in the revised Regulation 11(2), which makes no improvement on the law of the last decade (CR9(4)and(5)-2003) except for combining it into one subregulation.

Save for Regulation 11, the 2014 Regulations makes no attempt to address any post-construction regulatory changes and yet again attempt to be “inclusive” to construction work alone.

Investigation Process Failure

The owner and occupier of the building in Port Elizabeth are legally compelled in terms of Section 24 of the Act, read with GAR 8 and 9 to report and investigate the accident. The purpose of these investigations is to determine the cause and recommend and hopefully implement measures to prevent it from happening again.

Yet we need one more component. As with ISO management systems, and the investigation process above, the idea is to determine root causes. Contrary to public opinion that 84% of accidents are caused by people, research done by Prof John Smallwood of NMMU indicates that the main causes of accidents are management failure.

Part of that “management” is the state and the Department of Labour. As regulatory body, the DOL manages legal compliance with the Occupational Health and Safety Act and its regulations. In practice this is limited to finding causes and linking these to a regulation that may have been contravened, and to recommend stoppage or prosecution.

Government as custodian of compliance via the state and the DOL should investigate its own role in workplace deaths and injuries, just like employers are required to do. Collapse of state buildings, or lapses of compliance with reasonable health and safety management, is unforgivable.

A mechanism should be created, perhaps via the office of the public protector, to investigate incidents on state property.

The process of self-regulation, including removal of prescriptive regulations in the old 1941 and 1983 Acts, has proven unsuccessful and claimed the lives of many and maimed and injured many more.

The former building work supervisor had to have at least two years experience in the type of building work designated, while the 2014 construction manager as a “competent person” has the required knowledge, training, experience, and where applicable qualifications, specific to the work or task.

Where appropriate qualifications and training are registered in terms of the National Qualification Framework Act, those are required.

Health & Safety Regulation Gaps

The amended Construction Regulations only take effect in August 2014. Current law requires owners of structures (buildings) to ensure inspections by competent persons “to render the structure safe for continued use” at least every six months for the first two years, thereafter yearly.

Records of such inspections must be kept. Owners must also “ensure that the structure is maintained… safe for continued use,” according to CR 9 (4)and (5). Construction work includes maintenance of a building, according to CR 9 (5).

Building maintenance has however been omitted from the 2014 version of the Construction Regulations, a move that proves a lack of understanding of the life-cycle of building health and safety.

The National Building Regulations does not impose any duty on the owner of a building relating to continued safe use, but regulates the design requirements thereof during the pre-construction phase.

Other regulations provide for types of occupancy in relation to zoning and design requirements, electrical installations, and emergency egress, fire protection and general workplace uses.

The generality of Section 8(1) does not address the owner of a building, but the tenant as an employer. If the owner is also the occupier, then it would apply.

Article by Edmond Furter via sheqafrica.com