QUESTIONS AND ANSWERS FOR EXAMINATION
OHS2601
70% is guaranteed.
NB: Paraphrasing refers to the restatement of a text in different words.
1. Both the employer and the employees have the duty to ensure a healthy and
safe workplace environment. In view of this duty and the fact that safety gear
is expensive, Adolf Acastra Welders (Pty) Ltd (AAW) who is an employer to
Nelisiwe, and Celesta proposed the sharing of the costs of safety gear in
equal shares with the employees. In terms of the proposition, AAW would
contribute 50% and Nelisiwe and Celesta 50% towards the safety equipment.
(i) Discuss whether the proposition by AAW is allowed in terms of the
OHSA and why?
In abide by section 23 of the OHSA, the AAW obliged not to make
deductions from their personnel’s remunerations pertaining to anything
OHSA accounts the employers to serve in the value of health and safety.
The employers at their own costs are obliged to commit all required
personal protective equipment. When the employers proceed and without
acceptable reasons neglect or dispose the received personal protective
equipment, the employers should issue a disciplinary inquiry, if matter is
unresolved should hold disciplinary hearing. The employers required issue
considerable and formal guidelines orders established in the Labour
Relations Act when establishing a disciplinary hearing.
(ii) Discuss whether the OHSA protects persons in Nelisiwe’s position
for reporting the employer as she did. Your answer must cover the
following:
The discussion of the applicable section of the OHSA
According to the section 26, victimisation is prohibited. An employer may
not dismiss an employee, reduce his/her salary, or detrimentally alter
his/her service conditions because the employee provided information that
he/she is required to provide in terms of the OHSA, to someone charged
with the administration of the OHSA, or because the employee complied
with a lawful notice or did something which, in terms of the OHSA, should
have been done, or did not do something prohibited in terms of the OHSA,
or gave evidence before the Labour Court or a court of law. The employer
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, may not victimise (by way of, for example, a disciplinary hearing, or
demotion, or transfer, etc.) any employee for disclosing any information
concerning the health and safety of others being jeopardised.
Discussion whether or not Nelisiwe had acted lawfully and why
She acted lawfully, in terms of section 26 of the OHSA provides for the
protection of employees who report incidents or provide information to the
DoEL on health and safety risks. It forbids the victimisation or dismissal of
an employee who disclosed the above. This protection is further
strengthened by the protection provided -in the LRA for employees making
a protected disclosure. The employee has the right to legitimate refusal,
which the OHSA provides that an employer cannot take action against any
worker who gives information about their conditions at work or information
that the Act states they have to give, gives evidence in court, responds to
any request of an inspector or refuses to do anything that is against the
law.
What the conduct of dismissing Nelisiwe in this case amounts to in terms
of the OHSA
Any employer found guilty can receive a penalty up to a maximum
of R100 000 or imprisonment for a period not exceeding 2 years, or both
such fine and such imprisonment. Whenever an employer is convicted of
an offence consisting of a contravention of a provision of section 23, the
court convicting him shall inquire into and determine the amount which
contrary, to the said provision was deducted from the remuneration of the
employee concerned or recovered from him and hall then act with respect
to the said amount mutatis mutandis in accordance with 55 sections 28
and 29 of the Basic Conditions of Employment Act, 1983 (Act No. 3 of
1983), as if such amount is an amount underpaid within the meaning of
those sections. '
(iii) The OHSA applies to all employment activities and also governs the
use of machinery except in three instances. List these exceptions?
Employees of a mine, mining area or any works as defi ned in the
Minerals Act 50 of 1991.
A labour broker as defi ned in the Labour Relations Act.
Persons in or on any load line ship, fi shing boat, sealing boat and
whaling boat as defi ned in section 2(1) of the Merchant Shipping
Act, or any floating crane, whether or not such ship, boat or crane is
in or out of the water within any harbour in the Republic or within
the territorial waters thereof, or in respect of any person present on
or in any such mine, mining area, works, ship, boat or crane.
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, 2. Discuss how the international labour standards can be enforced and
what makes the enforcement mechanisms unique.
The enforcement processes of International Labour Organisation are seen as
unique in a way that while it creates minimum labour standards and when
making recommendations, it leaves the establishment of the standards in the
preference of the member states that could either or not comply, whilst
enforcing compliance based on the goodwill of the state. The ILO laws, use
strategies or approaches such as supervisory, technical assistance
mechanisms and sanctions.
In the supervisory mechanisms, the Committee of Experts on the Application
of Conventions and Recommendations (CEACR) and the Conference
Committee on the Application of Standards (CCAS) assesses the application
of ILO conventions through member states at frequent intervals. Article 19 of
the ILO’s constitution command members to report to the Director-General of
the International Labour Office as required by the Governing institution.
Members states are granted a consent to report non-compliance by other
member states and trade unions and employees’ organisations permitted to
report non-compliance.
The ILO commits on technical support to reinforce the capacity of its
constituency called “tripartite partners” and deliver high standard skills and
training for government officials when needed. This typical support includes
promotional activities such as seminars and national workshops aiming to
pursue awareness of standards.
Once a complaint of non-compliance is recorded and approved, the governing
institution can request a consent to submit direct-contact mission to discuss
the charges and if this is unsuccessful, a commission of inquiry should be
appointed to examine the charges, compiling a report including
recommendations to the non-compliant member. The Governing institution
may refer this action to the CCAS as it is capable to judge wise and to protect
compliance in which a member state unable to do as commanded.
List five (5) examples of the ILO standards promoting occupational
health and safety.
Safety and Health in Mines Convention, 1995 (No. 176)
Labour Inspection Convention, 1947
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