LEGISLATION
OHSA
PAGE 36
Occupational HEALTH
AND Safety aCT
At a recent ARC health and safety workshop, the
(Occupational Health and Safety Act, section
question of contractor responsibility was raised
8(2)). By the same token, an HOA should
in cases where the homeowners’ association
never agree to take responsibility for work or
(HOA) of the estate agrees to take responsibility
materials about which they have no experience
for a contractor hired by the owner of a
or knowledge.
residence to perform work on the owner’s behalf.
Should the HOA agree to take responsibility,
Before getting into that, let’s just look at some
it must be in writing and signed by both the
facts. The HOA is responsible for anything
owner and the HOA; if not, the agreement is
that takes place on the grounds of the estate
merely verbal and has no legal standing in a
excluding private residences. This includes
court of law (OHS Act, sections 8(2) and 37(2)).
providing access for contractors to the estate,
their behaviour while on estate grounds, and
If an agreement is documented and signed,
the types of materials and equipment being
the HOA may be held legally liable for what
brought onto the estate.
the contractor does or does not do on the
resident’s property.
There are regulations controlling items such as
hazardous chemical substances and flammables,
Should an accident occur resulting in a serious
and other regulations controlling types of work
injury or death, the HOA, the owner and the
such as working at heights, grinding and welding.
contractor may all be held liable in a court
While such work may only be performed on
of law (OHS Act, section 37(1)) regarding
the residence owner’s property, it may have an
compliance with the Occupational Health and
impact on the estate more widely, or on other
Safety Act, its regulations, other regulations
residents, their families, members and visitors.
and/or South African National Standards (SANS)
For instance, if a fire is started or a hazardous
referred to in the regulations by the Minister.
substance spilled, the other residents and rest
of the estate would be at risk.
The courts would want evidence of a completed
risk assessment for the work, other required
These issues need serious consideration
health and safety documentation based
because the HOA may not be familiar with the
on the legal requirements, the contractor’s
work being done by the contractor, may not
registration, and proof of the contractor’s level
understand the dangers related to materials
of competence required by law for certain
being used and may not have any experience
types of work such as electrical and involving
or training regarding the materials or the
machinery. If the work being done is in the
work, and may not even understand the legal
regulations, the contractor is required by law
requirements.
to be a registered competent person (OHS
Act, section 8(2), 9 and 37, and any applicable
The owner must ensure that the contractor
regulations).
is competent to do the work, and then, in
r