OHS competency in SA law

‘Competence’ is a term used widely in occupational health and safety legislation and standards, but is often misunderstood.

The meaning of the term ‘competent’ in occupational health and safety is one of the most perplexing issues that burden OHS practitioners, company directors and managers, yet the term and concept of ‘competence’ is prominent in legislation.

‘Competent person’ is defined in the Construction Regulations, under the South African Occupational Health and Safety Act, 85 of 1993, as: “…any person having the knowledge, training, experience and qualifications specific to the work or task being performed.â€

OHSAS 18002: 2008 global safety standard also provides that when “determining the competence required for a task, the following factors should be considered:

• Roles and responsibilities in the workplace (including the nature of the tasks to be performed, and their associated Occupational Health and Safety risks),
• Complexity and requirements of operating procedures and instructions,
• Results from incident investigations,
• Legal and other requirements, and
• Individual capability.

Other definitions of ‘competent person’ include:

“…one who is capable of identifying existing and predictable hazards in the surroundings, or working conditions which are unsanitary, hazardous, or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them.â€

“A person who has acquired through training, qualification or experience, or a combination of these, the knowledge and skills enabling that person to perform the task required.â€

“A person, suitably trained and qualified by knowledge and practical experience, and provided with the necessary instructions, to enable the required task(s) to be carried out correctly.â€

Competence, from a legal perspective, is thus a dynamic blend of a number of ingredients. It includes knowledge, experience, training, qualifications, attitudes, awareness of one’s limitations and other qualities.

Competence Assessment

Assessing competence is not straightforward. What is competent in one situation may not be competent in another. It is left to employers to make their own assessments and judgements as to what is competent in a particular set of circumstances.

Training is an integral part of achieving competence and most employers will look to training in their assessments of competence.

Training in itself does however not prove competence, but may go a long way to contributing to competence. It is also very important that performance be assessed continuously, to ensure that competence is maintained.

It is therefore clear that competence is more than the possession of qualifications. It involves having sufficient and relevant experience as well.

Consequences of Incompetence

There are potentially serious consequences for employers and others if they do not assess competence correctly and don’t ensure competence at all levels within their organisation. They run the risk of having both civil and criminal action taken against them.

Competence is a complex legal issue

The meaning of competence is a question at the heart of occupational health and safety compliance and performance.

The need for competent people is however, not simply a legal issue.

The presence of competent people at all levels within an organisation will go a long way in the prevention of accidents and ill health in the workplace.

Organisations that don’t take the issue of competence seriously may face legal consequences, whether in the form of a civil claim or a fine.

It is however the employees who will suffer if competence is not achieved. Peoples’ lives, health, safety and well-being are at risk if competency aspects in health and safety are not met by employers.

Written by: El-Jeanette Linzmaier

SHEQ Legal Consultant at Steam LCS
El-Jeanette compiles web-based SHEQ Legal registers for mining & industrial clients, do legal compliance audits and training. She is an admitted attorney.

Source: http://sheqafrica.com/ohs-competent-legal-definition/