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The Electrical Control Board published the Draft final Installation and Electrical Machinery Regulations on their website and this is a cause for concern as many people will assume it is about to become law in Namibia. The Draft, which proposes to amend the Regulations Relating To The Health And Safety Of Employees At Work, 1997, is far from becoming regulation as it is a concept document and should not have been released in public domain. It seems to be a copy of South African regulations as countless references are made in the text to South African legislation. Employers and Electrical Contractors are advised not to be concerned at this stage. Chapter 9 of the health and safety regulations currently applies to employers and must be adhered to at all times. A penalty of N$2000 could become payable for contraventions of this chapter. The Electrical Safety Code also imposes duties on employers (contractors) involved in power systems and must be observed. Special attention is drawn to the requirements for Electric Fences found in Section 3.06 of the Code.
A while ago, a client in Windhoek called to ask for advice on the duty to comply with South African regulations pertaining to a Construction project and how to do it. My answer was then and always will be two-fold in these circumstances. Firstly, we need to look at the legal obligation and secondly we need to look at contractual obligations. Construction Safety Construction or more appropriately “Building work” is not regulated by a separate set of regulations like in South Africa. It is covered in Chapter 5 of the Regulations relating to the Health and Safety of Employees at Work (HSEW) specifically called “Construction Safety”. It depends on which regulations would apply to the construction project in question. Regulation 20 however will apply and requires an employer to notify the Chief Inspector of his/her intention to commence building work, 30 days before the planned start date. South African statutes also has no legal standing in Namibia unless the Building work is to be done at the South African Embassy. These fake legal requirements are mostly imposed by South African companies working or operating in Namibia, using local contractors and subcontractors, where the company has no understanding of Namibian law. What to do in these cases? With no legal obligation to comply with foreign Acts and regulations, any imposition on an employer must be viewed under the principles of Contract law and would be a purely contractual requirement. Where an employer’s normal operation is based on the HSEW regulations, additional requirements may impose additional Capex and costs on financial resources, for which the employer is entitled to be compensated. The easiest would be to move away from these scenarios, but business is business, and an opportunity for work should not be dismissed without cause. Namibia generally lacks skilled and experienced Safety professionals, and SA safety practitioners are mostly confined in their knowledge to SA legislation. In the case of my client, the Safety professional was registered with the SACPCMP as a Pr.CHS Agent, which is deemed to be the highest level of professional registration in this field, yet did not have the required knowledge and experience to work in Namibia. Imposing the SA Construction regulations on a business in Namibia must at all times be viewed as a contractual obligation and when providing a quotation for a building work project, these costs must be recovered. In preparing a costing, one must keep in mind that local obligations do exist, and only those additional obligations may be recovered from the employer or client. One of the key shortcomings however is that safety requirements are almost always imposed after the contract price has already been agree on by the parties. To answer the question then, do you have to comply with foreign legislation? Practically speaking, yes, provided you are compensated for the additional cost of compliance. Legally speaking, not at all. You need to comply with Chapter 5 of the HSEW regulations. Exceptions Any Laws and Statutes of other countries (Germany and South Africa) which were in force prior to 21 March 1990, remains in force until such time as it is repealed or amended by and Act of Parliament or declared unconstitutional by a competent court. See Article 140 of the Namibian Constitution, 1990.
The Labour Act 2007 defines an employer as any person, including the State and a user enterprise referred to in section 128(1) who employs or provides work for, an individual and who remunerates or expressly or tacitly undertakes to remunerate that individual or permits an individual to assist that person in any manner in carrying or conducting that person’s business. Persons which by law also include companies, who falls in this definition has certain duties in terms of Section 39 and 40 of the Act. These duties are further expanded on in the Regulations relating to the Health and Safety of Employees at Work commonly cited as Regulation 156. Section 132 creates vicarious liability of employers for the acts or ommissions of their managers, agents and employees but stipulates the circumstances under which this liability could be escaped. If a manager, agent or employee of an employer contravenes this Act, the employer is liable. To escape liability as aforesaid, it must be established on the balance of probabilities that- (a) the commission of the contravention was not within the scope of the authority or in the course of the employment of the manager, agent or employee; (b) the manager, agent or employee contravened this Act without the permission of the employer; and (c) the employer took all reasonable steps to prevent the contravention. The fact that an employer issued instructions forbidding a contravention does not, of itself, constitute sufficient proof that the employer took all reasonable steps to prevent the contravention. Any manager, agent or employee of any employer who contravenes this Act is liable for any contravention, whether or not the employer is also held liable in terms of subsection (1). It is therefore of paramount importance to understand where liability already exist, and where it could be created by third parties.
Theatrics is defined as excessively emotional and dramatic behaviour and no person will ever see a better show than watching two Occupational Safety and Health Officers on a construction site. The curtain is called the Safety File. And the two actors are arguing on why this file is not approved. Do yourself a favour, and go see at an OHS Theatre near you! Having said that, yesterday I received an email from a very irate OHS practitioner accusing WorkSafe of not understanding the value of the OHS profession. Officially, WorkSafe do understand its value but adding this value so-called “Best Practices” is limited in efficacy, time consuming, and often borders on theatrics. To understand the concept of the WorkSafe philosophy it would be best to explain it in “OHSALESE”. OHS practice is based on a Hierarchy of Controls, which starts with elimination, and ends with Personal Protection. While OHS professionals functions in the bottom two tiers, the WorkSafe practitioner functions in the upper three tiers, the bulk of which is in Engineering Controls. What caused the anger of the OHS practitioner who sent the email is therefore explained in response to this: “I don’t get why you discriminate against OHS professionals. OHS is a multidisciplinary field and it is our job to manage all of it. OHS is not a HR Function, but an executive function. I report directly to the CEO and I determine what goes and who goes. I will not allow any WorkSafe member on any of our sites.” The writer is correct. OHS is a multi-disciplinary function. But, it goes further than the OHS Box. Thinking outside that box, is where the problem lies. There are four requirements for a business to operate. Premises, Plant, People and Place. While the latter is the environment in which it operates, the others fall inside the scope of OHS. The first, Premises, falls in the scope of the Built Environment. This includes Design Engineers, Civil Engineers, Structural Engineers, QS’s Architects, and yes, in SA also the CHS professionals. The second, falls in the scope of Engineering, as it deals with plant and equipment of a mechanical and electrical nature. Engineering also has many subfields, such as Systems Engineering, Safety Engineering and Idustrial Engineering, which impacts on the third aspect – People. People do the work, be it filling in a checklist or building a Bugatti Veyron. These are called “occupations” and could be anything from a beggar to a CEO if one looks at the wide scope of the Organising Framework for classification of Occupations (OFO). Des Squire wrote an article on it here. And finally, the Place in which all of the above happens is the Environment, internal as well as external Animate as well as Inanimate. In the circle of life, homo sapiens in its desire to self-actualisation according to Maslow’s theory of needs, people are affected by all of the above, and the nature of the effect impacts only on two things. Their Safety, and their Health. And while death itself is the only 100% safe place, we have to do the best in ALL of the above to prevent death; a futile exercise all the same. And the reason we have separated us from them (OHS), in our world of duality, is illustrated by these two paradigms: Safe workplaces provide safe occupations. Safe occupations require Safer workplaces. Read it again, and ponder on it for a while. Perhaps the proverbial penny will drop. WorkSafe stands for the first paradigm. And that is why we discriminate between (And not against) OHS and Operational Safety. Through safety focused engineering design, construction and operation, places, premises, and plant will be safe for people. How is OHS different? Occupational health and safety (OHS) is a branch of public health aimed at improving workplace health and safety standards. It studies injury and illness trends in the worker population and offers suggestions for mitigating the risks and hazards they encounter on the job. (Safeopedia.com) Occupational safety and health (OSH), also commonly referred to as occupational health and safety (OHS), occupational health, or occupational safety, is a multidisciplinary field concerned with the safety, health, and welfare of people at occupation. (wikipedia.com) OHS, or Occupational Health and Safety, is a multidisciplinary practice dealing with all aspects of health and safety in the workplace, with a strong focus on preventing workplace hazards. And there you have it… If the health inspector prevents all diseases, the doctor will be jobless. If the Safety Engineer design a safe workplace, the OHS officer will be jobless. Globally there are more companies with a history of zero injuries than companies with a DIFR, there are very few countries that force employers to appoint “OHS” Officers. The ILO estimates that some 2.3 million women and men around the world succumb to work-related accidents or diseases every year. Out of 7,7 billion people, that is a fatality rate of 0.03% in 2020. Machines are getting safer, Cars are getting safer, products are getting safer. Yet, accidents still happen and that is why there is a need for the OHS practitioner. To say to us…”you missed a spot”. But, no, that would be too complicated. It would require a skills set of an engineering field. So it’s easier to say to us “Do it this way as it’s best practice.” Perhaps Terminator had a point. It’s time for the machines to revolt!