Dear OHS Practitioners One of the common denominator issues, along with section 16 and section 37(2), is General Machinery Regulation (GMR) 2. In particular the competency issue surrounding the appointment of the full time ‘employee’ who must be appointed in writing to oversee machinery for every premises where machinery is used. The purpose of this newsletter is not to regurgitate the regulation, in particular the level of competency linked the KW formula. We have lived with this formula since 1988. I will rather focus of the burning issue of whether you can outsource this function – to persons not on your payroll – and what the boundaries of the appointed person’s responsibility and liability are. The regulation (GMR2) states that this person (further down it mentions an employee) must be appointed In order to ensure that the provisions of the Act and these Regulations in relation to machinery are complied with. In order to ensure that the provisions of the Act and these Regulations in relation to machinery are complied with, an employer or user of machinery shall, subject to this regulation, in writing designate a person in full time capacity in respect of every premises on or in which machinery is being used. Subject to the provisions of this regulation, an employee designated in terms of subregulation (1) shall be a competent person....... Machinery is in turn defined as meaning any article or combination of articles assembled, arranged or connected and which is used or intended to be used for converting any form of energy to performing work, or which is used or intended to be used, whether incidental thereto or not, for developing, receiving, storing, containing, confining, transforming, transmitting, transferring or controlling any form of energy. It is clear that the GMR2(1) ‘Machinery Supervisor†is responsible to ensure that machinery, as defined above, is safe to be operated. It has a mechanical / electrical slant. The duty of ensuring employees are trained to safely operate machinery should fall to the Employer whose human face is the section 16(1) or invariably the section 16(2) Assignee. In other words if there in an incident linked to machinery and it emerges from evidence that the machine was safe to be operated but the operator lacked sufficient training to operate it safety, the section 16(2) Assignees should be called to account and not the GMR2(1) Appointee. And vice versa. This is not always understood by the law enforcement agencies. Employers also fail often to provide the GMR2(1) Appointee with a machinery-slanted support structure despite the regulation providing for this. GMR2(7)(a) An employer or user of machinery may designate one or more competent persons to assist a person designated in terms of subregulation (1). Essentially this means that if an employer has a premises where machinery is used and, depending the sum of the power generated by machinery on or in the premises in question and the power derived from other sources, the correct category of competence person is appointed, this appointee may be assisted by a subordinate competent person or GMR2(7)(a) Appointee as it has become known. The competency requirement for this appointment is having served an apprenticeship in an engineering trade which included the operation and maintenance of machinery, or has had at least five years' practical experience in the operation and maintenance of machinery, and who during or subsequent to such apprenticeship or period of practical experience, as the case may be, has had not less than one year's experience in the operation and maintenance appropriate to the class of machinery he is required to supervise. Qualifications are thus not the only requirement and 5 years general practical experience and 3 years on the class of machinery will suffice. DoL need not be notified of this in-house appointment unlike the requirements for the GMR2(1) Appointee. The real burning issue is the outsourcing of this function to someone who is not on an employer’s payroll and not regarded traditionally as an employee. After all the regulation stipulates that only an employee in a full-time capacity may be appointed in terms of this regulation. An employee is defined in the OHS Act as meaning any person who is employed by or works for an employer and who receives or is entitled to receive any remuneration or who works under the direction or supervision of an employer or any other person. In other words if you have a contractor who is full time on the premises / in a full-time capacity and is working under your direction and supervision that person meets the definition of an employee in the Act and may be appointed in terms of this regulation. Naturally that person must be a competent person. Regards Raynard Visit www.klasslooch.com for more.
I have to support Raynard in this opinion. Most people fall into the trap of interpreting the "employee" in the OHSA by the definitions in the BCEA and LRA. where employee means- a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and b) any other person who in any manner assists in carrying on or conducting the business of an employer, and "employed" and "employment" have meanings corresponding to that of "employee"; The OHSA specifically defined employee differently due to the exclusion of "independent contractors" in the other two labour statutes. Another shortcoming is the understanding of the legal definition of a "person" which includes a juristic person (company).