Red Tape Bill and Occupational Health and Safety Management Systems

The “Red Tape Bill” formally known as the Ease of Doing Business Bill, is currently making its way through the legislature.

The Bill, which aims inter alia to provide for for the assessment of regulatory measures developed by the Executive, members and committees of Parliament and self-regulatory bodies, so as to consider the socio-economic impact of regulatory measures, intends to reduce “red tape” associated with regulatory compliance.

Adapting the definition of ‘‘red tape’’ to Occupational Health and Safety,  means the information that a business must submit or maintain and the procedures that a business must follow to gain administrative approval or to comply with prescribed requirements in one or more regulatory measures, where the submission or collection of such information or compliance with the processes and requirements are complex, time-consuming and costly, and includes—

(a) completing paperwork; (Construction Safety Files, Medicals etc)
(b) obtaining licences; (Construction Permits, SAQA accreditation of training courses etc.)
(c) requiring a decision to be approved; (Exemptions, SACPCMP registration, AIA Approvals etc)
(d) filing requirements; (COID, S24 Incident reports)
(e) certification requirements; (SACPCMP, AIA, OHS Bill etc)
(f) reporting; and
(g) investigative and inspection enforcement practices and procedures. (DEL Inspectors)

The Bill also extends its reach to SAIOSH, NIOH, SASOM, SASHON etc where these are professional ‘‘self-regulatory body’’ includes boards, committees and agencies that operate nationally, whether created by statute or otherwise, and that exercises any form of regulatory authority over an industry or profession, whether in addition to statutory control or not.

In the event of any conflict between this Act (the Bill) and any other law in force at the commencement of this Act, this Act prevails.” could be perhaps the best news since the OHSA came into operation.

The Bill intends to establish a regime for the conduct of Regulatory Impact Assessments, by a government body, to determine the socio-economic impact it would have on businesses when it becomes law.

A typical example of a case where this did not happen, was in 2014, when the Construction Regulations were published and the socio-economic impact was ignored. Besides the cost of establishing a rather ineffective registration regime, the economic impact of CPD to maintain registration, the time loss due to delays, and the misguided enforcement of paperwork, still has major cost implications not only to the construction industry.

A regulatory impact statement has to consider 12 possible impacts and must include—

  • (a) a breakdown of the estimated costs to obtain additional resources for the regulatory measure to be implemented by an organ of state;
  • (b) risks associated with the implementation of that regulatory measure;
  • (c) the actions that a community will be required to take and whether such actions exact direct or indirect costs on that community;
  • (d) the impact of the regulatory measure on various communities given the unequal nature of South African society;
  • (e) a list of the information obligations contained in the draft primary legislation or secondary legislation;
  • (f) the activity cost per information obligation calculated according to the standard cost model or such model as may be prescribed and the total activity cost for the draft primary legislation or secondary legislation;
  • (g) a list of activities that will result in substantive costs contained in the draft primary legislation or secondary legislation;
  • (h) the estimated total substantive costs imposed by the draft primary legislation or secondary legislation;
  • (i) any indirect cost envisaged by the draft primary legislation or secondary legislation;
  • (j) any unintended non-financial consequences;
  • (k) the risks to implementation of that regulatory measure due to the inadequate delivery of basic services offered by an entity in any sphere of government; and
  • (l) such other information as may be prescribed.(by regulation)

Primary legislation would be the OHSA, while secondary legislation would be regulations, incorporated OHS standards, references to other legislation, by-laws, etc as well as directives issued by the Chief Inspector and “improvement notices” issued by inspectors.

The duties of self-regulatory bodies are prescribed in the proposed Section 12 and specifically would apply to a code (of conduct and ethics), policy (CPD) or similar measure to exercise a form of regulatory authority over an industry or profession.

Safety Files

In terms of the Bill, a safety file falls within the scope of the definition of “information obligation” which is defined as obligations imposed on businesses by regulatory measures to provide information or data to the
public sector or a third party by way of a—

  • (a) one-off or regular submission, whether physical or electronic; or
  • (b) duty to have information or data available for inspection or supply on
    request.

A footnote to par (b) states that it also referred to in practice as ‘‘administrative costs’’. This list is not exhaustive: demonstrate (compliance); apply (for a licence); (quality) assurance; (must) submit (information); (a person must) examine (an application before) approval; record (in a log book); (must) comply (with); report (to); monitor (a system); capture (data); collect (data); require (a licence to do business). This footnote is explanatory in nature and does not form part of the Act. 

The importance of this requirement is the fact that when the Bill is finally approved and becomes law, then the Department of Employment and Labour and each self-regulatory body would have to comply with Section 14.

Assessment of the Construction Regulations

In terms of Section 14, the regulations must be assessed to determine the activity cost per information obligation identified in subsection (1)(a), calculated according to the standard cost model or such model as may
be prescribed, and the total activity cost per regulatory measure and the estimated total substantive costs identified in subsection (1)(b), imposed by each regulation.

The above would also apply to the SACPCMP and self-regulatory bodies and further includes the

  • (c) conduct such other analysis or determination as may be prescribed;
  • (d) implement measures to—
    • (i) determine customer satisfaction;
    • (ii) improve service delivery; and
    • (iii) make regulatory measures business friendly; and
  • (e) reduce red tape

The good news for the regulatory bodies is that they have 24 months from the commencement of the Act to comply with this.

The bad news for businesses is that it only applies to the Construction Industry, as the safety file syndrome in other industries is regarded as private law, not public law. The imposition of a safety file on a supplier or vendor by a company on the supplier or vendor does not form part of current primary or secondary legislation. It is merely part of that company’s internal risk management processes, which thus fall under private law.

SACPCMP, SAIOSH,  SAIOH & Co.

These entities are by definition regarded as self-regulatory bodies. The impact of both on the socio-economic status of the OHS profession and the job market with subsequent impact on recruitment practices, will fall within the scope of the Bill.

This would also include any institution “approved by the Chief Inspector” in terms of OSHA via SANAS or otherwise to “regulate” a profession or service industry such as AIA’s, First Aid training, Operator training etc.

The assessment report must then be submitted to the Regulatory Impact Assessment Unit established under the Act. (Another body)

Self-regulatory bodies must also annually report to the Regulatory Impact Assessment Unit on—

  • (a) the cost of red tape in respect of the regulatory measures used by that self-regulatory body, or the steps taken to determine that cost;
  • (b) steps to reduce the cost contemplated in paragraph (a); and
  • (c) the result of any steps taken to reduce red tape in that year.

Conclusion

Public Participation on the Bill concluded in June last year and in August, the last activity was reported. The impact of the Bill, if finally approved, would most likely only be seen in 2024, but it surely is something businesses in SA could have needed a long time ago.

It may not have the desired effect on OHS “best practice” which now would be “red tape”, but at least there would be better control over OHSA related legislation and the cost to business and the OHS profession.

It goes without saying that WorkSafe South Africa would also be counted under the “Self-regulatory bodies” as we too attempt to regulate the conduct of the Safety profession toward the “ease of doing business” by focusing on regulatory requirements and cutting out OHS Red Tape.

 

 

 

 

 

 

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