Section 3: Workers Health and Safety Rights

Transcription

1 Section 3: Workers Health and Safety Rights

2 Section 3: Workers health and safety rights Contents: 1. Workers rights in the OHS Act pg Right to refuse dangerous work pg Code of good practice for pregnant women pg Introduction: The most useful way for worker leaders and trade unions to approach health and safety is from the perspective of the needs of workers. The interests of workers are advanced and defended through the establishment and recognition of rights. These are contained in law and in formal agreements negotiated with employers. The occupational health and safety laws in South Africa contain significant rights for workers and their elected representatives. Although much can be done to advance workers rights and improve the law, the priority lies in campaigning for employer compliance with existing law and for the enforcement of workers current rights. Workers rights in health and safety need to be exercised and implemented, not just recognised. One of the challenges that we face in the union movement is the fact that we do not see health and safety legislation as part of our labour legislation. Trade union organisers and shop stewards are well versed in the Basic Conditions of Employment Act and the Labour Relations Act, but are not trained in health and safety laws. We do not act as if our health and safety rights are labour rights and we do not use our labour rights to exercise, defend and enforce our health and safety rights. There are six Acts that are relevant for health and safety: Occupational Health and Safety Act (OHSA) Mine Health and Safety Act (MHSA) Compensation for Occupational Injuries and Diseases Act (COIDA) Occupational Diseases in Mines and Works Act (ODMWA) Basic Conditions of Employment Act (BCEA) Labour Relations Act (LRA) 3-1

3 The OHSA and the MHSA are laws covering health and safety in general industry and mines, respectively. The COIDA and the ODMWA are laws covering compensation for accidents and occupational diseases in industry and mines. The BCEA and the LRA are general labour laws which include health and safety clauses. As indicated in the table below, these laws fall under different government departments. Health and Safety Acts OHSA Covers health and safety in general Dept of Labour MHSA Covers health and safety in mining Dept of Minerals and Energy Acts Covering Compensation COIDA Covers compensation for accidents and diseases in sectors outside of mining, and injuries in mining Dept of Labour ODMWA covers compensation for diseases in the mining sector Dept of Health Labour Laws with health and safety clauses BCEA Covers basic conditions of employment Dept of Labour LRA Regulates relations between employer and employees Dept of Labour In this Section 3 of the Guide, we focus on workers health and safety rights in the Occupational Health and Safety Act. We provide information on the Compensation for Occupational Injuries and Diseases Act (COIDA) in Section

4 1. Workers rights in the OH&S Act The Occupational Health and Safety Act of 1993 lays out the rights and responsibilities for health and safety in the workplace. It places the main burden for providing a healthy and safe workplace on employers. It also sets up two workplace structures that allow and encourage worker involvement in their employers health and safety programs. These two structures are 1) health and safety representatives and 2) health and safety committees. The health and safety reps, in particular, have wide-ranging responsibilities. If these two structures are taken up seriously, used well and supported by strong union organization, they allow workers to take a meaningful role in overseeing and shaping their employers health and safety programmes. This summary provides an overview of the Act. It does not cover every section and subsection. It does not look at the national structures set up in the Act. You will need to look at the full text of the OHS Act and the General Administrative Regulations to learn the finer points. This summary covers: who is covered by the OHS Act employer obligations worker obligations workplace structures in the Act: health and safety representatives health and safety committees victimisation what must be done by manufacturers and suppliers how the OHS Act is enforced by the DoL contraventions and penalties the Advisory Council for Occupational Health and Safety. Who is covered by the OH&S Safety Act? i. Employers The Occupational Health and Safety Act (OHS Act) Section 1 defines an employer as a person who employs or provides work for a person, and remunerates that person, or undertakes to remunerate him or her. All employers must comply with the OHS Act. In this definition, a labour broker is specifically excluded from being an employer under the OHS Act. However, the employer who directs or supervises the work of the broker s workers is an employer and must protect the labour broker workers as their own employees. 3-3

5 ii. Employees OHS Act Section 1 defines an employee as anyone who is employed or works for an employer, receives remuneration (pay) or who works under the direct supervision of an employer. All employees are protected by the OHS Act. Some workplaces are excluded Mining as covered by the Minerals Act of 1991 is excluded from the OHS Act. [OHS Act 1(3)(a)]. Shipping vessels and fishing, sealing, and whaling boats as covered by the Merchant Shipping Act of 1951 are excluded from the OHS Act. Floating-cranes are also excluded. [OHS Act 1(3)(b)] Employer obligations under the OHS Act The OHS Act sets out many things employers must do (obligations) for health and safety. The most important ten of these follow. i. Provide a safe workplace for employees Section 8 of the Act gives the general duties of employers to their employees. This section says the employer has a duty to provide and maintain a safe working environment without risk to the health of workers, as far as is reasonably practicable. They must ensure health and safety laws are being complied with in their workplaces and for their employees, wherever they are working. This includes the responsibilities to: provide and maintain a safe and healthy workplace with safe systems of work, plant and machinery; identify the health and safety hazards of the work processes used; find out what precautionary measures are needed to protect workers from the hazards, and ensure the precautionary measures are put in place; control hazards first by getting rid of the hazard or by controlling or reducing the risk posed by the hazard, before making workers use personal protective equipment. (That is, they must follow the hierarchy of control measures which prefers to control hazards at the source rather than at the worker.); make sure work is supervised by people who know about the hazards and with the authority to ensure precautionary measures taken by the employer are in place; provide information, instructions, training and supervision to ensure the health and safety of employees doing the work; not allow employees to do work tasks where the hazards of that work have not been identified and properly controlled. [OHS Act 8] 3-4

6 ii. Protect non-employees Employers are also responsible for the safety and health of people who are not their employees, but who are affected by the employer s activities. This includes visitors to a workplace, such as contractors and delivery or service workers. This also includes members of the public who may live near or pass near work activities of the employer. [OHS Act 9(1)] iii. Inform workers Employers have a duty to inform employees, in a way they understand, about the hazards of their work and the precautionary measures in place to address those hazards. [OHS Act 13] iv. Appoint health and safety representatives Employers must appoint health and safety reps, from among their employees, to oversee health and safety at the workplace. This must be done through negotiation with workers and their unions. Information on the role of health and safety reps is found elsewhere in this guide. [OHS Act 17 and 18, GAR 6 and 7] v. Establish health and safety committees Employers must set up a health and safety committee if there are two or more health and safety reps at a workplace. The employer must consult with the health and safety committee about measures that are in place to ensure the health and safety of employees. [OHS Act 19 and 20] vi. Comply with regulations There are a number of health and safety regulations about specific hazards that the employer also must follow. For example, there are regulations on safety, hazardous substances, electrical machinery and installations, construction, noise, driven machinery such as cranes and conveyors, and others. vii. Record and investigate incidents Employers have specific duties related to incidents where a worker is killed, injured or made ill at work, or in case of certain dangerous events, even if no one was hurt. Employer obligations include: Record all incidents in which a worker requires medical attention other than first aid. Investigate all incidents in which a worker requires medical attention other than first aid, and record the findings in a report. 3-5

7 Report an incident within seven days to the Department of Labour (DoL) Provincial Director. Report immediately to the DoL Provincial Director if someone dies. Conclude the investigation within a reasonable time or within the contracted time of contracted workers. Ensure that the health and safety committee examines the incident investigation s findings. Inform health and safety reps and the health and safety committee of incidents. [OHS Act 24; GAR 8 and 9] viii. Taking responsibility for their employees actions Employers are responsible for acts and omissions or mistakes of their employees, unless it can prove: the employee acted without employer s permission; the employee acted outside of his or her scope of authority or condition of employment; all reasonable steps were taken by the employer to prevent such an act. [OHS Act 37(1)] ix. Taking responsibility for contractors actions A contractor or subcontractor is referred to as a mandatory in the OHS Act. An employer is responsible for the actions (or failure to act) of their contractors (mandatories) regarding health and safety. The exception is if the employer and contractor have a written agreement that the contractor will take responsibility for the health and safety of its own employees and comply with the OHS Act. There must also be procedures set up that ensure the contractor carries out these responsibilities. [OHS Act 37(2) and (3)] x. Providing free Personal Protective Equipment (PPE) Section 23 of the OHS Act says employers cannot charge employees for anything that must be provided for health and safety. The OHS Act generally does not require employers to provide specific PPE, but some regulations do. Provision of PPE can be the subject of health and safety committee recommendations, or even negotiated with the union, but the employer must still pay. This is reinforced by General Safety Regulation 2 (2) and (3) which state that the employer must take into account the nature of the hazards and provide free of charge and maintain in a good and clean condition such safety equipment and facilities as may be appropriate to ensure that a person who is exposed is protected from that hazard. 3-6

8 Worker obligations under the OH&S Act Employers carry by far the most duties under the OHS Act, but employees do have some duties under the Act. OHS Act section 14 says workers must: take care for the health and safety of themselves and others; co-operate with the employer with regards to health and safety; carry out lawful orders and implement health and safety rules set by the employer; report unsafe and unhealthy situations to a health and safety rep or the employer; report any dangerous incidents or injury to a health and safety rep or the employer. This should be done before the end of the shift. OHS Act section 15 says workers must not interfere with or misuse any equipment provided for health and safety. Health and safety representatives The first workplace structure set up in the OHS Act is health and safety reps. Workplaces of more than 20 employees should have at least one health and safety rep. i. Who is eligible to be a health and safety rep? Section 17(4) of the OHS Act says only full-time employees can be health and safety reps. It also says they must be familiar with conditions and activities in the workplace. There are no other requirements on who may be a health and safety rep. ii. Election of health and safety reps Section 17(2) of the OHS Act says employers must consult with a union over health and safety reps. However, GAR 6 goes further, to say the employer must negotiate with the union over them. GAR 6 says the employer must negotiate and conclude an agreement with the trade union regarding: nomination and election procedures; how health and safety reps will perform their functions under the OHS Act; how vacancies will be filled; the facilities, training and assistance to be provided to the elected health and safety reps. If the negotiation fails, the dispute may be referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) or Bargaining Council and to arbitration. [GAR 6(4) to (7)] 3-7

9 iii. Training of health and safety reps The employer must provide training to health and safety reps, but it doesn t decide alone on what training is appropriate. The law says: The employer must provide training as reasonably required and agreed as a result of negotiations with worker representatives. [OHS Act 18(3); GAR 6(1)(e)] All activities of health and safety reps shall be done during ordinary working hours and shall be considered as work. This specifically includes time spent in training. [OHS Act 17(7)] iv. Number of health and safety reps All workplaces of more than 20 employees should have a health and safety rep. [OHS Act 17(1)] In addition, shops and offices should have one health and safety rep per 100 employees, and other workplaces should have one health and safety rep per 50 employees. [OHS Act 17(5)] v. Functions of health and safety reps The many functions of health and safety reps are listed in the OHS Act section 18. These functions include the right to: review the effectiveness of health and safety measures in place at work; identify health and safety hazards and potential incidents in the workplace; visit the site of an incident and investigate the causes of incidents; investigate employees health and safety complaints; make health and safety recommendations to the employer related to health and safety; make representations to the DoL if the employer fails to respond to recommendations; inspect the workplace and report unsafe or unhealthy conditions; accompany a DoL inspector on an inspection; attend any investigation or formal inquiry conducted by the DoL; receive information from a DoL inspector; attend health and safety committee meetings; look at any documents the employer is required to keep under the OHS Act and regulations; invite a technical advisor for an inspection (with the employer s permission); participate in internal health and safety audits; undergo health and safety training negotiated by the union. 3-8

10 Health and safety reps have many rights and powers to engage their employers about health and safety. However, in the end the employer is responsible for keeping to the law and providing safe and healthy working conditions. A health and safety rep cannot face civil liability (a court case) if he or she fails to carry out any of the functions or duties he or she has been given. [OHS Act 18(4)] Health and safety committees The second workplace structure set up in the OHS Act is the health and safety committee. All workplaces with two or more health and safety reps must establish a health and safety committee and an employer may choose to have more than one. The employer must consult with the health and safety committee regarding measures that are in place to ensure the health and safety of employees. [OHS Act 19(1)] i. Members of the health and safety committee A health and safety committee has three types of members: Management representatives. They represent management s interests. The number of management members may not be greater than the number of health and safety reps on a committee. [OHS Act 19(2)(c)] Health and safety reps. These represent workers. Every health and safety rep at a workplace must be a member of at least one health and safety rep committee. (As mentioned earlier in this handout, the election of health and safety reps must be negotiated with the union.) [OHS Act 19(2)(a) & (b)] Advisory members. The committee may co-opt advisory members to provide particular knowledge of health and safety issues. [OHS Act 19(6)] ii. Functions of the health and safety committee There are a number of requirements placed on health and safety committees, as follows. It must meet as often as is needed, and at least every three months. The committee decides the time and place of its meetings. [OHS Act 19(4)] It must set its own procedures for how it will function. [OHS Act 19(5)] It must make recommendations to the employer regarding health and safety at the workplace. Where these recommendations are ignored, it may inform a DoL inspector. [OHS Act 20(1)(a)] It must discuss any incidents at the workplace in which a person was injured, became ill or died. [OHS Act 20(1)(b)] The Committee must also review the findings of any incident investigation. [GAR 9(4)] It must participate in incident investigations. [GAR 9(2)] 3-9

11 It must keep written records of recommendations made to the employer and any reports made to DoL. [OHS Act 20(2)] The employer is responsible for ensuring records of the health and safety committee are kept for at least three years. [GAR 5] The employer is responsible for ensuring the Committee meets. [OHS Act 20(4)] The employer is responsible for providing a suitable meeting place for the committee. [GAR 5] A DoL inspector can be asked to resolve any disagreement over the number of health and safety committees in a workplace, or any health and safety matters the committee has made recommendations about to the employer. Victimisation The OHS Act section 26 says an employer may not victimise a worker who has carried out his or her duties under the OHS Act. The employer may not dismiss the worker, reduce his or her rate of pay, alter terms and conditions of employment, or alter his or her position relative to other workers. Section 26 says workers are protected if they have: given information which the OHS Act requires them to give to the Minister of Labour or any other person who has responsibilities under the OHS Act. This would include giving information to a DoL inspector. This also includes giving information to a health and safety representative. given information relating to his or her and other workers terms and conditions of work given evidence to a court given evidence that he or she is required to give under the law done something required by the law refused to do something prohibited by the law a medical examination or medical test which shows they have an occupational disease as a result of excessive exposure to a hazardous substance. Obligations of others: manufacturers and suppliers Designers, manufacturers, importers, sellers and suppliers have obligations for the products and services they make and sell. The OHS Act section 10 says the following must be ensured. Articles must be safe. [OHS Act 10(1)] Articles, substances, equipment and machinery must meet the health and safety standards under OHS Act regulations or other requirements (such as those of the South African Bureau of Standards). [OHS Act 10(1)] 3-10

12 When they install or erect their articles in a workplace, it must be done in a safe manner. [OHS Act 10(2)] Information must be available regarding any hazardous substances they make or sell. This includes information on what the substance is, the risks of the substance, how users can use the substance safely, and what to do in case of a spill or other accident. [OHS Act 10(3)] How the OHS Act is enforced by the Department of Labour To enforce the OHS Act, the Minster of Labour has established an inspectorate. The DoL has inspectors, based in each province, whose job is to ensure employers comply with labour laws, including those related to health and safety. The inspectors have vast powers to gather information about health and safety activities at a workplace. Five important tasks the DoL can undertake are listed below. i. Issue direction DoL inspectors may be called in to settle certain issues or disagreements with the employer over the OHS Act. For example an inspector has the power to: direct the employer to increase the number of health and safety reps in a worksite or work area if he or she feels the number is too low. [OHS Act 17(6)] direct the members of a health and safety committee to meet. [OHS Act 19(4)] direct the employer to change the number of health and safety committees in a workplace if the current number is inadequate. [OHS Act 19(7)] resolve disputes between a health and safety committee and employer over health and safety problems the committee has made recommendations about. [OHS Act 20(1)(a)] ii. Investigate hazardous conditions The DoL may investigate after an incident, as defined in the OHS Act, is reported to them. They may also investigate if they become aware of dangerous plant or machinery that could result in injury, illness of death of a worker. [OHS Act 31(1)] A health and safety rep, shop steward, or worker can contact the DoL to report dangerous conditions (which they believe violate the OHS Act) and request an inspector to visit the workplace to investigate. [OHS Act 32(1)] iii. Inspect the workplace A DoL inspector has great power to investigate during an inspection. An inspector may: inspect, without notice, any relevant part of the premises; 3-11

13 question any person, alone or in a group, on any matter related to the OHS Act; direct people (including former workers and managers) to make themselves available to be interviewed; demand any records he or she thinks need be provided and he or she can review and copy them; ask for an explanation of any entry in the documents; inspect anything which is on the premises and remove them to be examined or analysed; seize anything that might be evidence in a trial; ask an interpreter, a SAPS member, or an assistant to accompany him or her. [OHS Act 29(1) and (2)] iv. Issue notices An inspector can issue three types of notices to an employer (or worker) if he or she finds unsafe conditions at a workplace. In each case the notice directs the employer (or worker) to take certain actions (or to stop certain actions) to address the problems seen by the inspector. The three types of notice are: A prohibition notice for serious hazards found by the inspector. The notice can prohibit use of certain machines, equipment, hazardous substance, or processes or prohibit specific actions until the hazardous situation is shown to be fixed. [OHS Act 30(1) and (2)] A contravention notice tells the employer that a contravention of the OHS Act exists. The notice can direct the problem be corrected within a specific time limit. [OHS Act 30(4)] An improvement notice directs the employer to improve the health and safety measures they are taking in the workplace. It does not mean a contravention has been found, but in the inspector s judgement the employer s measures need improvement. [OHS Act 30(3)] When the DoL issues any of these notices, the employer must immediately inform the health and safety reps and workers concerned. [OHS Act 30(6)] v. Prosecution. After an inspection, investigation or inquiry, the DoL must send the findings to the Attorney General and to the Chief Inspector. This is so these officials may decide whether any contraventions of the law should be prosecuted, or to use the findings in an inquest. [OHS Act 31(3) and 32(12)] If an employer is prosecuted and convicted of an offence, including the obstruction of or refusal to co-operate with an inspector, the employer can face a fine or imprisonment. [OHS Act 38] 3-12

14 Right of health and safety reps to participate in a DoL inspection, investigation, or inquiry. Health and safety reps have a number of rights related to DoL activities at their workplaces. Health and safety reps can: participate in consultations with inspectors at the workplace and accompany inspectors on inspections [OHS Act 18(1)(h)] receive information from inspectors [OHS Act 18(1)(i)] attend any investigation or formal inquiry held in terms of the OHS Act [OHS Act 18(2)(b)] accompany an inspector on any inspection. [OHS Act 18(2)(d)] Any person with an interest in a formal inquiry being undertaken by the DoL may put questions to witnesses, as the presiding inspector allows. They may do this personally or use a representative, advocate or attorney. The injured person, a recognised trade union, or any trade union the injured worker is a member of, are specifically considered to have an interest in an inquiry. [OHS Act 32(5)(b) and (c)] The employer must advise, in writing, all people who witnessed an incident, the unions representing these witnesses, and anyone else the inspector specifies. The written notice must include the date, time and place of the inquiry and state that they must attend the inquiry. [GAR 10(2)] Contraventions, penalties and prosecution outside the Act i. Contraventions Employers can be prosecuted for a number of offences under the OHS Act. Section 38 of the act lists offences including: failure to comply with the OHS Act; failure to comply with a notice or direction from a DoL inspector; obstructing or refusing to co-operate with an inspector; making false statements or keeping false records; refusing to co-operate with an official investigation; tampering with evidence or interfering with a witness; attempting to influence proceedings or the outcome of an inquiry; tampering with or misusing safety equipment; failure to use safety equipment; reckless behaviour that endangers the health and safety of anyone. 3-13

15 ii. Penalties Employers can be penalised if convicted of an offence. The penalties can be a fine or jail time. The maximum penalty for an offence is a fine of R or one year in prison or both. [OHS Act 38(1)] The maximum penalty for an employer whose negligence causes an injury is a fine of R , or two years in prison, or both. [OHS Act 38(2)] The maximum penalty for contravening an OHS regulation is 12 months in prison or a fine. [OSH Act 43(4)] If a regulation is repeatedly or continuously contravened, the fine can increase by R200 per day, and the prison sentence increase by an additional day to a maximum of 90 extra days. [OSH Act 43(4)] If a worker is killed on the job, the police may investigate the death as murder and the NPA may charge an individual, such as a manager, for manslaughter or homicide. Advisory Council for Occupational Health and Safety The OHS Act creates the Advisory Council for Occupational Health and Safety (ACOHS). The Council has 20 members appointed by the Minister of Labour. Each member represents a specific constituency: government, employer, workers, or an area of OHS expertise. [OHS Act 3]. Six members of the ACOHS represent the interests of employees and are selected from nominees put forward by unions or federations of trade unions. [OHS Act 4(1)(g)] The functions of ACOHS are to: advise the Minister of Labour on policy matters in connection with application of the OHS Act, or on any matter relating to occupational health and safety [OHS Act 3(1)] conduct investigations it deems necessary [OHS Act 3(2)(a)] establish technical committees to advise the Council [OHS Act 6] advise the Department of Labour [OHS Act 3(2)(c)] on: o writing and publishing standards, specifications, or guidance to assist employers, employees and users o the promotion of education and training in health and safety o the collection and dissemination of information on health and safety. 3-14

16 2. The Right to Refuse Dangerous work The Minister of Labour routinely exhorts workers to refuse to do dangerous work. In Section 23 of the Mines Health and Safety Act workers are given the explicit right to leave a dangerous workplace should they feel it is justified. Employers on the mines are required to have procedures in place to resolve the matter should workers or their health and safety representatives exercise this right. Unlike the Mine Health and Safety Act, the Occupational Health and Safety Act does not have an explicit provision around workers rights to refuse to do dangerous work. However, the following information shows that we can use the OHS Act to argue that workers have an implicit right to refuse to work if they believe there is a clear risk to their health and safety. The Occupational Health and Safety Act aims to provide for the health and safety of everyone at work and of other people in and around places of work. Part of an employee s general duties / responsibilities is to ensure his / her own health and safety and that of others who may be affected by his / her acts or omissions. [OHS Act Section 14 (a)]. It is also the responsibility of the employer to ensure that employees are able to exercise the care required of them. [Section 8 (2) (g)] The employer must identify the hazards present in the workplace, assess the risks to employee s health and safety posed by these hazards, and take steps to eliminate or mitigate the hazards [Section 8(2)(b)] as well as provide the means to prevent exposure to the hazard. It is also the responsibility of the employer not to permit the employees to work if there is a dangerous or health threatening situation and no prevention steps to eliminate the hazards or control the risk of exposure have been taken. On the one hand workers are expected to comply with the employer s rules and procedures. On the other hand, workers are required to refuse to comply if the consequence of compliance violates their responsibility to take reasonable care. This reflects the common law position an employee is entitled to refuse to obey a command where the employer has not complied with its common law duties to provide a safe workplace. An instruction that requires an employee to act unreasonably is by definition both unreasonable and unlawful. Employees are also protected from being victimised by the employer for a range of activities protected by the Act [Section 26(1)] One of these protected activities is: doing anything which he or she is entitled to do or is required to do in terms 3-15

17 of the Act or refusing to do anything which he or she is prohibited from doing in terms of the Act. The first portion of this provision protects employees from victimisation for doing anything that they may or are required to do in terms of the Act. The second portion provides the only statutory basis for refusing to perform dangerous work - refusing to do anything which he or she is prohibited from doing in terms of the Act, meaning refusing not to take reasonable care for the health and safety of him/her self and of others who may be affected by his/her acts or omissions. Under which circumstances is an employee prohibited from performing dangerous work? Firstly the effect of Section 37(3) is that all prohibitions on employers doing or requiring something to be done also apply to employees. Secondly, the general duty on employees to take reasonable care for the health and safety of themselves and others, [Section 14 (a)] ensures that employees may refuse to do anything that would violate the general standard of care even if there is no explicit prohibition. (Benjamin and Thompson Commentary G1-61) Therefore (even if only implied) every employee has a right under the Act to refuse to do any work that they believe presents a danger to themselves or others. A worker has the right to refuse to do a job if that worker has reasonable cause to believe that: there is a condition at work that is a danger to him/herself; the use or operation of a machine or thing at work presents a danger to him/ herself or co workers; or the performance of an activity constitutes a danger to the employee or another employee. It is likely that the forthcoming National Occupational Health and Safety Bill will contain such a provision (see 2005 draft below). However, securing this in legislation for all workers beyond the mining sector will depend on the role of trade unions and workers in raising their voices and mobilizing support for this right to refuse dangerous work. Section 34 of the draft NOHS Bill reads as follows: (1) A worker has the right to leave any working place whenever (a) circumstances arise at that working place which, with reasonable justification, appear to that worker to pose a serious danger to the health or safety of that worker; or (b) the health and safety representative responsible for that working place directs that workers leave that working place. 3-16

18 (2) Every employer, after consulting the health and safety committee at the workplace, must determine effective procedures for the general exercise of the right granted by sub-section (1), and those procedures must provide for (a) notification of supervisors and health and safety representatives of dangers which have been perceived and responded to in terms of subsection (1); (b) participation by representatives of the employer and representatives of the employees in endeavouring to resolve any issue that may arise from the exercise of the right referred to in sub-section (1); (c) participation, where necessary, by an inspector or technical adviser to assist in resolving any issue that may arise from the exercise of the right referred to in sub-section (1); (d) where appropriate, the assignment to suitable alternative work of any worker who left, or refuses to work in, a working place contemplated in sub-section (1); and (e) notification to any worker who has to perform work or is requested to perform work in a working place contemplated in sub-section (1) of the fact that another worker has refused to work there and of the reason for that refusal. (3) If there is no health and safety committee at a workplace, the consultation required in sub-section (2) must be held with (a) the health and safety representatives; or (b) if there is no health and safety representative at the workplace, with the employees. 3-17

19 3. Code of Good Practice on the protection of employees during pregnancy and after the birth of a child (1998) The Code of Good Practice (CGP) sets out guidelines for both employers and employees on how to ensure that women s health is protected during pregnancy, after the birth of a child, and while breast-feeding, against possible health hazards in the workplace,. It is issued in terms of section 87 (1) of the Basic Conditions of Employment Act (BCEA) 75 of 1997, and shows employers and employees how to give effect to section 26 (1) of the BCEA, which says that employers cannot allow pregnant or breast-feeding employees to do work that is hazardous to their health or the health of the unborn child. The Code of Good Practice (CGP) notes that many women work during pregnancy, and return to work while they are still breast-feeding their baby. So protecting the woman s health and safety at the workplace is very important in protecting both her own health and that of the baby both before and after birth. It also notes that workplaces have different physical, chemical and biological hazards that employees are exposed to, and this must be taken into account when applying the CGP, which sets out general norms. The CGP makes the very important point that no person may be discriminated against or dismissed because of pregnancy [section 4.2]. Other legal rights that women have include: The constitutional right to make decisions concerning reproduction [Constitution Section 12(2)]; The constitutional right to health services, including reproductive health care [Constitution Section 27(1)(a)]; The right to a workplace that is safe and without risk to the health of employees, including the reproductive health of employees. The Occupational Health and Safety Act (OHSA) 85 of 1993 and the Mine Health and Safety Act (MHSA) 27 of 1996 specify the responsibilities of both employees and employers in ensuring this. Employees must take reasonable steps to protect their own health and safety and that of other employees. At the same time, employers must: o conduct a risk assessment, which involves identifying hazards, assessing the risk that they pose to the health and safety of the employees, and recording the results of the risk assessment ; o implement measures to eliminate or control hazards; o supply employees with information about hazards and train them in the risks and what measures the employer has taken to eliminate the risks; o ensure that elected health and safety representatives and committee participate in the risk assessment and control of hazards [section 4.3]. 3-18

20 Protecting the health of pregnant and breast-feeding employees (section 5) The CGP says that employers who employ women of childbearing age must assess and control any risks to the health of pregnant or breast-feeding employees and that of the foetus or child [section 5.1]. They should do this by identifying, recording and regularly reviewing: potential risks to pregnant or breast-feeding employees within the workplace [section 5.2.1]; protective measures and adjustments to working arrangements for pregnant or breast-feeding employees [section ]. The CGP also says that employers should maintain a list of employment positions not involving risk to which pregnant or breast-feeding employees could be transferred [section 5.3]. The CGP says that employers should, through information sessions, and the workplace policy, encourage women to inform the employer as early as possible about their pregnancy [section 5.5]. The employer is then meant to take immediate action to identify and assess risks that the woman might face in the workplace, and take appropriate measures to deal with the risks. This should involve evaluating the women s situation in the workplace through: a qualified medical professional checking the employee s physical condition [section ] evaluating the employee s job [section ] evaluating workplace practices and potential workplace exposures that could affect the employee [section ] If any risks are identified, the employee must be informed, and steps must be taken to adjust the employee s working conditions to remove the risk. This must be done in consultation with the employee and her representative. If there is any doubt about the risks involved, and whether adjustments need to be made, an occupational health practitioner should be consulted [section 5.10]. And if appropriate adjustments can t be made, then the employee should be transferred to an alternative position in accordance with section 26 (2) of the BCEA. [section 5.10]. Where risks are identified and adjustments in the workplace are made, the employee must be given training in the hazards and the preventative measures taken [section 5.9.]. Employers must regularly review the risk assessment for expectant or new mothers because the possibility of damage to the health of the foetus may vary during the different stages of pregnancy. There are also different risks to consider for workers who are breast-feeding [section 5.11]. 3-19

21 The CGP also requires that if there is an occupational health service at the workplace, records must be kept of pregnancies and the outcomes of pregnancies, including any complications in the condition of the employee or child [section 5.14]. The employer must make arrangements for: pregnant and breast-feeding employees to attend antenatal and postnatal clinics as required during pregnancy and after birth [section 5.12]; employees who are breast-feeding to have 30 minute breaks, twice a day, for expressing milk or breast-feeding, for the first six months of the child s life [section 5.13]. The identification and assessment of hazards (section 6) Section 6.1. deals with physical hazards. This involves the recognition, evaluation and control of: exposure to noise, vibration, radiation, electric and electromagnetic fields and radioactive substances; work in extreme environments; the thermal environment (heating and air conditioning). Schedule 1 of the CGP deals with these physical hazards and describes the extent to which they may be a hazard to pregnant and breast-feeding employees. The schedule also suggests ways to prevent or control the hazards. Section 6.2 deals with ergonomic hazards. This section identifies the following ergonomic risk factors as potentially posing a hazard to pregnant and breastfeeding employees: heavy physical work; static work posture; frequent bending and twisting; lifting heavy objects and movements requiring force; repetitive work; awkward positions; no rest; standing for long periods; sitting for long periods. Schedule 2 of the CGP deals with these ergonomic hazards and describes the extent to which they may be a hazard to pregnant and breast-feeding employees. The schedule also suggests ways to prevent or control the hazards. 3-20

22 Section 6.3. deals with chemical hazards. This section notes that contact with some chemicals can cause infertility and foetal abnormalities. It also notes that some chemicals can be passed on to the child through breast-milk and could harm the health and development of the child. The CGP notes that the Hazardous Chemical Substances Regulations, 1995, apply to all employers who carry out activities which expose employees to hazardous chemical substances. The regulations require the employer to do a risk assessment for all hazardous chemical substances, and take appropriate preventative measures. However, apart from the Lead Regulations, no other regulations dealing with specific hazards set maximum exposure levels of specific applications for women of childbearing age or pregnant women. Because of this, the CGP says that care should be taken to minimize exposure to chemicals, which can be inhaled, swallowed or absorbed through the skin. Where this cannot be achieved, employees should be transferred to other work in accordance with section 26 (2) of the BCEA. Employers are also required by the Hazardous Chemical Substances Regulations to inform and train employees about any substances to which they may be exposed. All employers who use a hazardous chemical substance must have a Material Safety Data Sheet (MSDS) for that chemical. The MSDS includes information on any reproductive hazards. This MSDS must be made available on request to any affected person. Schedule 3 of the CGP lists chemical substances that are known or suspected to be a hazard to pregnant or breast-feeding women and to the foetus or child. Section 6.4. deals with biological hazards. This section notes that many biological agents, such as bacteria and viruses, can affect the unborn child if the mother is infected during pregnancy. Biological agents can also be transferred through breast-feeding or direct physical contact between mother and child. Those most likely to be exposed to biological agents include: health workers service workers in health-care facilities workers looking after animals or dealing with animal products employees, such as teachers and edu-care workers, who have close contact with young children are at increased risk of German measles (rubella) and chicken pox (varicella). Universal hygiene precautions must be followed to prevent disease. These include: high standards of personal hygiene surveillance of staff in high-risk areas 3-21

23 appropriate sterilisation and disinfecting procedures designation of person to be responsible for health and safety use of protective clothing and gloves avoidance of eating or smoking in laboratories or other risk areas. Schedule 4 of the CGP lists some of the biological agents known to be a hazard to pregnant or breast-feeding women and to the foetus or child. Aspects of pregnancy that may affect work The CGP lists a number of common aspects of pregnancy which can affect work: Morning sickness this can affect the employees ability to do early shift work. Exposure to nauseating smells can aggravate morning sickness. Work involving long standing or sitting can result in backache and varicose veins. Work that involves lots of manual handling can also result in backache. Pregnant women generally need to go to the toilet more often and therefore need reasonable access to toilet facilities. The increasing size and discomfort of pregnant women may require changes of protective clothing, changes to work in confined space, and changes to work involving manual handling. The pregnant woman s increasing size can also affect dexterity, agility, co-ordination, speed of movement and reach. The pregnant woman s balance can be affected, making work on slippery/wet surfaces dangerous. Pregnant women experience increased tiredness and this can affect the employee s ability to work overtime and in the evenings. 3-22

24 Postal Address Industrial Health Resource Group, Princess Christian Home - University of Cape Town, Private Bag, Rondebosch 7701, Cape Town, South Africa INDUSTRIAL HEALTH RESOURCE GROUP Physical Address Industrial Health Resource Group, Princess Christian Home, Matopo Lane (below M3 highway), Lower Campus, University of Cape Town, Mowbray The Industrial Health Resource Group (IHRG) is an occupational health and safety training, advice, research and resource development unit based in the School of Public Health and Family Medicine at the University of Cape Town. IHRG has provided health and safety services to workers and the trade union movement in South Africa since These services include: Workplace accident investigations OH&S advice and support service Risk assessments Education and skills training workshops for workers and trade unions, and Research and advocacy work on policy development in OH&S and HIV Over the years IHRG has produced a range of accessible and popular resources communicating health and safety information to workers. You can contact IHRG to order these resources: Organising for health and safety A guide for trade unions Health and Safety Networker Newsletters (Issues 6 and 7) Workers Health and Safety Rights poster Protect Your Health At Work poster Organize to Make Work Healthy and Safe poster Occupational Health and Safety Act (OHSA) booklet Compensation for Occupational Injuries and Diseases Act (COIDA) booklet Make Work Safe poster HIV/Aids poster Telephone: Facsimile: IHRG-admin@uct.ac.za