If you are an employer or a contractor who works with other contractors, you may have heard of Section 37(2) of the Occupational Health and Safety Act (OHS Act) of 1993. But what does it mean and how does it affect your legal obligations and responsibilities?
In this blog post, we will explain the background and purpose of Section 37(2), as well as the benefits and requirements of having a written agreement between employers and contractors.
The Background and Purpose of Section 37(2)
The OHS Act is the main legislation that regulates health and safety in the workplace in South Africa. It aims to protect the health and safety of workers and other persons who may be affected by work activities.
Section 37 of the OHS Act deals with the situation where an employer (the principal) entrusts work to another person (the contractor or mandatary) who is also an employer in their own right. This could be, for example, a construction project where the principal hires a contractor to perform certain tasks, and the contractor in turn hires subcontractors to do other tasks.
Section 37(1) states that if any person (the contractor or mandatary) does or omits to do anything that would be an offence under the OHS Act for the principal, then both the principal and the contractor or mandatary are liable for prosecution. This means that the principal cannot escape liability by simply outsourcing work to another party.
However, Section 37(2) provides a way for the principal to avoid liability if they can prove three things:
- They did not permit or connive at the act or omission of the contractor or mandatary.
- The contractor or mandatary was acting outside the scope of their authority or contract.
- They took reasonable steps to prevent the act or omission of the contractor or mandatary.
The question then arises: what are reasonable steps?
The Benefits and Requirements of a Written Agreement
The OHS Act does not define what constitutes reasonable steps, but it encourages employers to enter into a written agreement with contractors or mandataries that specifies the arrangements and procedures to ensure compliance with the OHS Act. This is known as a Section 37(2) written agreement.
A Section 37(2) written agreement is not mandatory, but it has several benefits for both parties:
- It clarifies the roles and responsibilities of each party regarding health and safety matters.
- It establishes a framework for communication, cooperation, and coordination between parties.
- It sets out the standards and expectations for health and safety performance and compliance.
- It provides evidence of due diligence and good faith in case of an incident or investigation.
A Section 37(2) written agreement should include, at a minimum, the following elements:
- The names and details of the parties involved.
- The scope and duration of the work to be performed.
- The health and safety specifications and requirements for the work.
- The health and safety duties and obligations of each party.
- The health and safety rights and powers of each party.
- The health and safety training and induction requirements for workers.
- The health and safety reporting and monitoring mechanisms.
- The health and safety enforcement and corrective actions.
- The health and safety dispute resolution procedures.
A Section 37(2) written agreement should be signed by both parties before commencing work and should be reviewed and updated regularly to reflect any changes in the work or legislation.
Conclusion
Section 37(2) of the OHS Act is an important provision that affects employers who entrust work to contractors or mandataries. By entering into a written agreement that outlines the arrangements and procedures to ensure compliance with the OHS Act, employers can reduce their risk of liability, improve their health and safety performance, and foster a positive safety culture in their workplace.
Don’t miss this opportunity to protect yourself and your contractors from legal risks and ensure a safe and healthy work environment. Contact us today to get your Section 37(2) written agreement done by our experts! Contact SHERQ Risk Solutions at www.sherqrisksolutions.co.za or email stan@sherqrisksolutions.co.za
I hope you found this blog post helpful. If you have any questions or comments, please feel free to
email me or
give me a call. Thank you for reading!
Stan Dismore