Construction Health & Safety Management clarified – Part 2

The Client’s appointed Agent

It is common knowledge that where an Act refers to a person, it includes a juristic person, or as the Guideline document calls it; an organisation (Company, CC, Inc. Partnership etc.). The “Agent” the client needs to appoint, does not have to be a Construction Health & Safety Agent (Pr.CHSA) as we were all made to believe. It can be an organisation (consulting engineering firm, project management house, etc). The duties of this agent, must however include the management of health & safety via a person who is registered with the SACPCMP.

Now here comes some good news. The Guideline states that “An agent contemplated above must ensure the management of health and safety on a construction project for a client and where applicable through an appointment of a registered competent person with a statutory body approved by the Chief Inspector. Refer to Regulation 5 (7).”

Let me first draw your attention to the “where applicable” part above. The regulations mention two instances where the appointment of this agent is applicable.

  1. It is a must when a Construction Permit is needed as required by regulation 3,
  2. It is an option where a construction permit is not needed, but a notification of construction work must be submitted as required in regulation 4. Here, the decision to appoint an Agent is up to the client, but an inspector may direct a client to appoint an agent, regardless of this, where the inspector is of opinion that the agent will be needed due to the significant size, complexity or risk profile of the project.

At present, Construction Permits are required for projects exceeding R40 million in “contract value”.

Secondly, I want to clarify the issue of the “registration” of the person to assist the agent.

The Guideline document informs us, that the “agent” is responsible for Health & Safety management. But, it also says that this H&S management function must be done “through” a registered person. I will get back to the “Registered” by a statutory body approved by the Chief Inspector” part, but let me explain the “through” part before we move on.

This is once again a bone of contention. When work is done through a third party, it is not done “by” that party, but “via the desk” of the party. In other words, the registered person does not physically have to do the work. Anyone can do it, but it must be “approved” or “sanctioned” by the registered person.

This is pretty much in line with Section 26(4) of the Project & Construction Management Professions Act, 48 of 2000, which reads: (4) Subsection (3)(a) may not be construed as prohibiting any person from performing work identified in terms of this section, if such work is performed in the service of or by order of and under the direction, control, supervision of or in association with a registered person entitled to perform the work identified and who must assume responsibility for any work so performed.

It is clear that the responsibility for the H&S work lies with the registered person, regardless of who actually does the work. Where an Agent appoints an unregistered person on site, and the work is done “through” a registered person, the Agent and the Client is well within the law.

Coming back to the “registered” person. The initial interpretation of the regulations were that the “Client” must appoint a SACPCMP registered Agent (Pr.CHSA). The Principal Contractor must appoint a CHSM (under CR8(1), and the contractor must appoint a CHSO. Contrary to the believe that each of the three categories of registration sorts with a specific entity in the construction project, the regulations do not specify this at all. The confusion started with the Annexure in the regulations where the SACPCMP was approved by the DOL as the “body approved by the Chief Inspector”.

Let’s compare this with the “approval” of a training company for first aid. The company is approved for first-aid level 1, level 2, and level 3. This does not mean the first-aider for the client must be level 3, and the contractor’s must be level 1. It merely says the training company is “approved” to issue all three levels of first-aid.

The same applies to the SACPCMP. In similar fashion as SAQA approved IOSH SA to issue three designations, the SACPCMP may issue designations of Pr.CHSA, CHSM and CHSO.

Back to the regulations…

Nowhere, ever, did the regulation state that the client must appoint a Pr.CHSA, the PC a CHSM, and Contractor a CHSO.

The Guideline makes this quite clear as it reads: “A client may appoint a Construction Health and Safety Agent or Construction Health and Safety Manager based on the scope and risk profile of construction work to represent him/her on matters of health and safety. Provided that, where the question arises as to whether a Construction Health Safety Agent or a Construction Health and Safety Manager is necessary, the decision of an inspector is decisive.”

By implication the DOL accepts that a client (or the agent) must appoint at least a CHSO, but may also appoint a higher level person.

The appointment of a registered person by the client’s appointed agent is not restricted to a specific designation. Even a CHSO can work as a client’s H&S representative. The client may however decide to appoint any of the other two designations, based on the scope and risk profile of the project.

In this regard the regulation is also clear in that the person appointed must be “competent”. If a CHSO can do the job, then good, but if the scope and risk dictates someone with a higher level of competence, the CHSM or Pr.CHSA should be considered.

Once again, the inspector may rule otherwise, which shall be enforceable, subject to an appeal process.

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