Efforts to clarify construction safety laws still too vague

The new Draft Construction Regulations, now closed for public comment, which are intended to enhance occupational health and safety in the construction industry, are a step in the right direction but certain areas are still too vague. This is according to Adv. Hendrik Terblanche, Managing Director of Legricon Legal Risk and Compliance Consultants, who regularly works with the Master Builders Association North (MBA North) in an advisory capacity.  

The new draft regulations, set to update the 2014 regulations, include revised definitions, a redefined scope of construction work, a new approach to permits and notifications ahead of construction work, and the introduction of a professional construction health and safety manager.  

“Many of the changes in the new draft have been introduced in a bid to clarify questions and grey areas in the 2014 regulations, and to align with other legislative changes. These have been generally welcomed by stakeholders. However, there are a number of contentious issues and grey areas,” Adv Terblanche said.   

One contentious issue is the definition of a ‘competent person’ required to serve as a construction manager or supervisor, a construction health and safety manager or officer, and various other roles in the new draft regulations.  

“The main driving force for this was the current change over from the SETAs, the sector education training authorities to the Quality Council For Trades & Occupations (QCTO). Where the SETAs were originally focused on qualifications, in health and safety, there are a lot of short courses such as first aid, risk assessment training, or safety representative training, where you're not necessarily going to get a qualification, but the courses are necessary. My main view is that the current definition places a lot of emphasis on the inputs into competency – training and qualifications – whereas competency is an outcome, and may be acquired through decades of experience. Many people have all the necessary qualifications and training, but they're still not competent, and are not able to deliver the required outcomes,” he added.  

He said this also creates a dilemma for SMEs and so-called ‘bakkie builders’ in that strictly speaking, they won’t be compliant if they don’t have a properly qualified construction health and safety manager, supervisor or officer on site, even when undertaking small projects.  

“I don’t think regulators have the small contractors in mind when they write the regulations. They see these big buildings collapsing, and that is who they write the regulations for, and they don't always realise that it affects a lot of other people,” he said.  

In draft Regulation 8 on the Management and Supervision of Construction Work, various legal appointments must be made – starting with the construction manager, the assistant construction manager, construction supervisors, assistant construction supervisors, the professional Construction Health and Safety Agents, and the Construction Health and Safety Officer is there in Regulation 8. 

“That has always been a contentious issue as well. It's typically aimed at high-level technical people, people like construction managers, and project managers, but the Department of Labour decided in 2014 that if we want the safety people to also have a professional registration and therefore go through competency verification, then that is the appropriate body to put them under. This has caused a lot of teething problems and frustration over the years. One of the changes in the draft relates to three possible health and safety registrations under the SACPCMP. These are the professional construction health and safety agent – the most qualified people from a safety perspective, and the designation qualified to work on projects that require a permit. The second tier is a construction health and safety manager, and then there's the construction health and safety officer. Construction health and safety managers, and registered health and safety officers cost money. For the average ‘bakkie builder’, appointing a professional safety manager or officer would likely be too expensive. The current regulations say that you can have a part-time health and safety officer, but this raises questions around ‘What does part-time mean? How many days do I have to be on site?,” he said.  

Adv. Terblanche said there are also concerns around permits and notifications in the new draft regulations. “Certain projects need a construction work permit from the Department of Employment and Labour, and this has always been contentious. The regulations require professional construction health and safety agents to be appointed for projects that require a permit – with certain exemptions. Basically, any project costing above R60 million requires a permit from the Department of Employment and Labour, and therefore also requires a professional construction health and safety agent. The regulations don’t clarify whether this is R60 million inclusive or exclusive of VAT, for example. On the proposed criteria that a building exceeding 2 storeys above ground level must have a permit, there is concern that several underground levels pose a similar risk than multiple storeys above ground, but would not require a permit. There are still too many questions,” he concluded.