On 30 October 2015, Standards & Legal attended a discussion, hosted by the Department of Labour (the “DOL”) and the South African Council for the Project and Construction Management Professions (the “SACPCMP”), regarding the application of regulation 3 and 5(7)(b) of the Construction Regulations, 2014 (the “2014 Regulations”).
The 2014 Regulations, which repealed the Construction Regulations, 2003, came into effect on 7 February 2014, except for regulations 3 and 5(7)(b), which came into effect on 11 August 2015. Regulation 3 was subject to a further exemption published on 24 July 2015, which has been detailed below.
Obligations set by regulation 3:
In terms of regulation 3, a client (means any person for whom construction work is being performed) that intends to have construction work carried out, must at least 30 days before that work is to be carried out apply to the provincial director for a construction work permit, if the intended construction work starts after the:
- 7 of August 2015 and the works contract is of a value exceeding R130 million rand or Construction Industry Development Board (“CIDB”) grading level 9; or
- 7 of February 2017 and the works contract is of a value exceeding R40 million rand or CIDB grading level 8; or
- 7 of August 2018 and exceeds 365 days, will involve more than 3800 person days of construction work, or the works contract is of a value exceeding R13 million rand or CIDB grading level 7.
If the client complies with the requirements of regulation 3(5), the provincial director must within 30 days of receiving the application, issue a construction work permit (the “permit”) and assign a site-specific number for each construction site. Construction work may not commence, unless a permit has been issued and a site-specific number assigned.
The client must ensure that a copy of the permit is kept by the principal contractor in its occupational health and safety file, which, in terms of the 2014 Regulations, may be inspected by an inspector, the client, the client’s authorised agent, or an employee.
Obligations set by regulation 5(7)(b):
Regulation 5, which deals with the duties of a client, provides for instances, as listed in sub-regulation (5) and (6), in which a client is required to appoint an agent (means a competent person who acts as a representative for a client). Regulation 5(7) requires such an agent to manage the health and safety on a construction project and to be registered with a statutory body, approved by the Chief Inspector, and therefore, qualified to perform the required functions.
Key concerns raised by the attendees and actions taken / proposed to be taken by the DOL and SACPCMP
- In terms of regulation 3, clients have experienced a delay in the issuing of a permit 30 days before the contractor has been appointed. The DOL and SACPCMP have noted this and in some instances agreed to issue the permit before the client appoints a contractor;
- In terms of regulation 5, the competency of the agent, appointed by the client, was discussed. The DOL and SACPCMP stated that if an agent is determined to not be competent, the Registrar will allow for a period in which the agent can meet the competency requirements and in which the agent must operate under the guidance of a registered mentor. The agent must meet those requirements within the time period allowed. If the client appoints a safety officer, working for the client, as an agent, the client must ensure that the agent is competent and registered;
- Clients and agents must familiarise themselves with the liability imposed by regulations 5(5) and (7) of the 2014 Regulations;
- The risk of each construction site will determine the amount of appointed agents required. In most instances, as listed in the 2014 Regulation, the opinion of the Inspector may override a decision made by the client, the designer or the contractor;
- The purpose of the 2014 Regulations was to get the client more involved in the construction process and ensure that the health and safety of construction workers on the companies site remains a concern;
- A statement giving effect to the above-mentioned discussion is proposed to be released by the DOL and SACPCMP on its website at the end of October 2015.