Dear Folks Section 16(2) of the OHS Act again! DoL has been enforcing their rigid interpretation of section 16(2) onto employers via audits. In the attachment I tackle the issue. Subscribers are welcome to contact me if they feel their section 16 structure falls short of DoL’s interpretation. I will assist free-of-charge. I also attach an example of a Non Statutory appointment which you can mould to suit your needs. Feedback is welcome. Regards Raynard Source: Monthly news letter of KLASS LOOCH ASSOCIATES View attachment Newsletter_sept_13 - Copy.pdf View attachment Non Statutory Appointment - Copy - Copy.pdf
Erm well ja no fine. Sorry Advocate Looch, but you have just created yet another Section 16(2) appointment - non statutory or not, it has the exact same intent. Section 16(1) makes the presumption in law that the CEO is the "human" version of the body corporate as the employer. Section 16 thus ONLY applies in the case of a corporate body and not to the 500 000 sole proprietors in the SA economy, employing one or more persons. And even in the case of a corpororate body, with only one director or member (trusts do not apply), one cannot appoint oneself. Section 16(2) assigns a right to the CEO. It says that he/she MAY appoint someone to assist him/her in ensuring that..........And if the CEO choose not to appoint an assistant? Section 16(2) only carries a penalty if the person appointed by the CEO does not fall under his control,(he appointed the person at a lower level than a direct (vertical)line of control) or the appointee fails to act subject to the control and directions of the chief executive officer. (Disobedience to the CEO). This is of particular value in the more complex holding vs subsidiary companies where the CEO of the holding company appoints the MD of a subsidiary. - there is no direct control in terms of Section 16, as both are employers in their own right. Once this right has been exercised by the CEO it expires. Which part of this does the DOL inspectorate not understand? A corporate with a head office in JHB and branches in DBN and CT, will have ONE CEO, and TWO people appointed by the CEO in terms of Section 16(2), and the buck stops right here. The branch managers are not CEO's. You cannot assign the title of the CEO in terms of Section 16(2). Only the duties of the employer. Henceforth, Section 8 provides for general supervision by a person competent to understand the hazards of the operation and with the authority to implement preventive measures to remove the hazards. Who else but an executive manager has this authority? We look at the term "supervision" and think, "no way, I am way above that level, I am a director, not a supervisor". (Refer to your own summary of supervision in one of your previous articles). And who said every letter of appointment has to refer to some fancy wording in the Act? You can assign and appoint people on hand towels if you want, as long as it is in writing where the law requires it. Skip the hand towel; use a company letter head instead. I cannot count the number of times I brought this up, but hey, "We don't know, it's just things are done around here." Perhaps we need to train the inspectorate?
