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