A. 25-40. H&S Representatives And Committees Flashcards
What are the negotiations and consultations before the appointment of representatives?
26 Negotiations and consultations before appointment of representatives
(1) The employer of any mine where there must be a health and safety representative in terms of section 25 must meet, within the prescribed period, with the representative trade union of the mine to enter into negotiations to conclude a collective agreement concerning-
a) the designation of working places;
b) the number of full-time health and safety representatives;
c) the election or appointment of health and safety representatives;
d) the terms of office of health and safety representatives and the circumstances and the manner in which they may be removed from office;
e) the manner in which vacancies are to be filled;
f) the manner in which health and safety representatives must perform their functions in terms of this Act;
g) the procedures for the effective exercise of the right to withdraw from serious danger in terms of section 23(leave dangerous working place);
h) circumstances and the manner in which meetings referred to in sections 30(1)(i) (h&s committee) and 31(2) (h&s rep) must be held;
i) the facilities and assistance that must be provided to health and safety representatives in terms of section 31(3) (perform functions);
j) the training of health and safety representatives;
k) a procedure that provides for the conciliation and arbitration of disputes arising from the application or the interpretation of the collective agreement or any provision of this Chapter;
l) any prescribed matter; and
m) any other matter which the parties believe will promote health and safety at the mine or mines concerned.
(2) Before concluding a collective agreement referred to in subsection (1) with the representative trade union, the employer must consult on the matters referred to in that subsection with all other registered trade unions with members at that mine
(3) A collective agreement referred to in subsection (1) may include two or more employers as parties to the agreement.
(4) To the extent that an agreement concluded in terms of subsection (1) deals with any matter regulated by this Chapter or by any regulation regarding any matter regulated by this Chapter, the provisions of this Chapter or such regulation do not apply.
(5) The provisions applicable to collective agreements in terms of the Labour Relations Act, read with the changes required by the context, apply to agreements concluded in terms of subsection (1).
(6) If there is no representative trade union at the mine, the employer must within the prescribed period-
a) consult with the registered trade unions with members at the mine on the matters referred to in subsection (1); and
b) endeavour to reach agreement on the number of full-time health and safety representatives at the mine.
(7) If there is no registered trade union with members at the mine, the employer must, within the prescribed period-
a) consult with the employees or any elected representatives of the employees on the matters referred to in subsection (1); and
b) endeavour to reach agreement on the number of full-time health and safety representatives at the mine.
(8) A dispute exists if either-
a) no collective agreement in terms of subsection (1) is concluded on the number of full-time health and safety representatives at a mine; or
b) no agreement is reached in terms of either subsection (6)(b) or (7)(b).
(9) When a dispute exists in terms of subsection (8), any party to the dispute may refer it to the Commission.
(10) When a dispute is referred to the Commission under subsection (9), the Commission must attempt to resolve it through conciliation.
(11) If a dispute remains unresolved, any party to the dispute may request that it be resolved through arbitration, in which case the Commission, taking into account the guidelines in Schedule 1, must determine the number of full-time health and safety representatives.
(12) Nothing in this subsection precludes the employer from consulting with any employee who is not a member of a registered trade union or any representative of those employees concerning the matters referred to in subsection (1).
When must there be a health and safety representative and committee at a mine?
25(1) Every mine with 20 or more employees must have a health and safety representative for each shift at each designated working place at the mine.
(2) Every mine with 100 or more employees must have one or more health and safety committees.
(3) A health and safety representative or a member of a health and safety committee does not incur any civil liability only because of doing or failing to do something which a health and safety representative or a member of a health and safety committee may do or is required to do in terms of this Act.
How must the employer designate working places?
27 Designations of working places.
1) If a collective agreement is concluded after the negotiations and consultations referred to in section 26, the employer must designate working places at the mine in accordance with that agreement.
2) If no collective agreement is concluded after the negotiations and consultations referred to in section 26, the employer must designate working places at the mine so that-
a) every working place at the mine is designated;
b) no health and safety representative is responsible for more than 100 employees; and
c) no health and safety representative is responsible for more than 50 employees if the designated working place includes separate working places.
What are the qualifications for representatives?
28 Qualification of representatives
1) To qualify to serve as a health and safety representative referred to in section 25(1), an employee must-
a) be employed in a full-time capacity in the designated working place; and
b) be acquainted with conditions and activities at the designated working place.
2) To qualify to serve as a full-time health and safety representative and employee must-
a) Be employed in full-time capacity at the mine;
b) Comply with any other qualifications which may be-
i. agreed by a health and safety committee; or
ii. prescribed.
Who must elect and appoint representatives?
29 Election and appointment of representatives.
1) At a mine referred to in section 25(1), the employees in a designated working place may elect from among themselves health and safety representatives.
2) The employees at the mine may elect from among themselves any full-time health and safety representatives that may be agreed or determined in terms of section 26.
3) The elections referred to in subsections (1) and (2) must be conducted in the prescribed manner.
4) The employees elected as representatives in terms of this section must be appointed by the employer in the prescribed manner.
What are the rights and powers of representatives?
- Rights and powers of representatives.-
1) A health and safety representative may-
a) represent employees on all aspects of health and safety;
b) direct any employee to leave any working place whenever circumstances arise at that working place which, with reasonable justification, appears to the health and safety representative to pose a serious danger to the health and safety of that employee;
c) assist any employee who has left a working place in terms of section 23(dangerous working place);
d) identify potential hazards and risks to health and safety;
e) make representations or recommendations to the employer or to a health and safety committee on any matter affecting the health or safety of employees;
f) inspect any relevant document which must be kept in terms of this Act;
g) request relevant information and reports from an inspector;
h) with the approval of the employer, be assisted by or consult an adviser or technical expert who may be either another employee or any other person;
i) attend any meeting of a health and safety committee-
i. of which that representative is a member; or
ii. which will consider a representation or recommendation made by that representative;
j) request-
i. an inspector to conduct an investigation in terms of section 60; or
ii. the Chief Inspector of Mines to conduct an inquiry in terms of section 65;
k) participate in consultations on health and safety with-
i. the employer or person acting on behalf of the employer; or
ii. an inspector;
l) participate in any health and safety inspection by-
i. the employer or person acting on behalf of an employer; or
ii. and inspector;
m) inspect working places with regard to the health and safety of employees at intervals agreed with the employer;
n) participate in any internal health or safety audit;
o) investigate complaints by any employee relating to health and safety at work;
p) examine the causes of accidents and other dangerous occurrences in collaboration with the employer or person acting on behalf of the employer;
q) visit the site of an accident or dangerous occurrence at any reasonable time;
r) attend a post-accident inspection;
s) co-operate with the employer in the conducting of investigations in terms of section 11(5);
t) participate in an inquiry held in terms of section 65; and
u) perform the functions-
i. agreed by the health and safety committee; or
ii. prescribed.
2) The rights and powers referred to in subsection (1) apply to health and safety representatives referred to in section 25(1) only in respect of the working places for which they are responsible.
3) If a health and safety representative requests information or reports under subsection (1)(g), the inspector must supply the representative with the information or reports in their possession.
4) An employer may not unreasonably withhold the approval required in terms of subsection (1)(h).
5) A health and safety representative intending to exercise the right to inspect working places under subsection (1)(m) must-
a) give the employer reasonable notice of the inspection; and
b) permit the employer to participate in the inspection.
6) Health and safety representatives are entitled to perform their functions and to receive training during ordinary working hours.
7) Any time reasonably spent by a health and safety representative for a purpose referred to in subsection (6) must be considered for all purposes to be time spent carrying out the employment duties of that representative.
What is the employers duty to compensate and assist representatives?
- Duty to compensate and assist representatives.-
1) The employer must pay every full-time health and safety representative appropriate remuneration at least equal to the remuneration the representative earned immediately before being appointed as a full-time health and safety representative.
2) The employer must provide reasonable time and facilities for employees to meet monthly with their health and safety representatives in order to consider-
a) health and safety in their working places; and
b) reports by the representatives on the performance of their functions.
3) The employer must provide health and safety representatives with-
a) the facilities and assistance reasonably necessary to perform their functions;
b) training that is reasonable required to enable them to perform their functions; and
c) time off from work, without loss of remuneration, to attend any training course that is agreed or prescribed.
4) Unless otherwise agreed, the assistance referred to in subsection (3)(a) does not include any costs associated with advisers or independent experts contemplated in either section 30(1)(h) or section 36(1)(g).
5) On the completion of a term of office as a full-time health and safety representative, the health and safety representative is entitled to-
a) employment in the same position held immediately before being appointed as a full-time health and safety representative; or
b) employment in a position that is at least as favourable as the position held immediately before being appointed a full-time health and safety representative.
With what is it the employers duty to inform representatives?
- Duty to inform representatives. –
Every employer must notify the health and safety representatives concerned and, if there is a health and safety committee, the employee co-chairperson of that committee-
a) in good time, of inspections, investigations or inquiries of which an inspector has notified the employer; and
b) as soon as practicable, of any accident, serious illness or health-threatening occurrence, or other dangerous event.
How is the negotiations and consultations on the establishment of committees?
- Negotiation and consultation on establishment of committees.-
1) The employer of any mine in respect of which a health and safety committee must be established in terms of section 25(2), must meet, within the prescribed period, with the representative trade union at the mine to enter into negotiations to conclude a collective agreement concerning-
a) the number of health and safety committees to be established at the mine and the working places for which they will be responsible;
b) the number of employer and employee representatives on the committees;
c) the election and appointment of members of health and safety committees;
d) the terms of office of members of the health and safety committee and the circumstances and the manner in which the members may be removed from office;
e) the manner in which vacancies are to be filled;
f) the circumstances and the manner in which meetings may be held;
g) the facilities and assistance which must be provided to health and safety committees in terms of section 37(a); and
h) a procedure that provides for the conciliation and arbitration of disputes arising from the application or interpretation of the collective agreement or any provision of this Chapter.
2) Before concluding a collective agreement referred to in subsection (1) with the representative trade union, the employer must consult on the matters referred to in that subsection with all other registered trade unions with members at that mine.
3) A collective agreement referred to in subsection (1) may include two or more employers as parties to the agreement.
4) To the extent that an agreement concluded in terms of subsection (1) deals with any matter regulated by this Chapter or by any regulation regarding any matter regulated by this Chapter, the provisions of this Chapter or such regulation do not apply.
5) The provisions applicable to collective agreements in terms of the Labour Relations Act, read with the changes required by the context, apply to agreements concluded in terms of subsection (1).
6) If there is no representative trade union at the mine, the employer must within the prescribed period, with the registered trade unions with members at the mine on the matters referred to in subsection (1).
7) If there is no registered trade union with members at the mine, the employer must, within the prescribed period, consult with the employees or any elected representatives of the employees on the matters referred to in subsection (1).
8) The negotiations and consultations referred to in this section may be held at the same time as those referred to in section 26.
How must health and safety committees be established?
- Establishment of health and safety committees.-
1) If a collective agreement is concluded in terms of section 33(1), health and safety committees must be established in terms of that agreement.
2) No collective agreement is concluded in terms of section 3391), the employer must establish health and safety committees after the consultation referred to in section 33(6) or (7) and in accordance with this section and the regulations.
3) A health and safety committee must consist of-
a) at least four employee representatives; and
b) a number of employer representatives equal to or less than the number of employee representatives.
4) The health and safety representatives must appoint the employee representatives on the health and safety committee. The employee representatives must be –
a) broadly representative of the working places at the mine; and
b) employees at the mine.
5) No more than two of the employee representatives may be appointed from full-time employees who are not health and safety representatives, unl4ess all of the health and safety representatives have been appointed to the committee and there are still employee committee positions to be filled.
6) The employer must appoint the employer representatives on the health and safety committee. The persons appointed must include persons who have the authority to develop and implement health and safety policies at the mine.
What is the committee procedures?
- Committee procedures.-
1) The employee and employer representatives on a health and safety committee must each elect a chairperson from their number. Unless otherwise agreed by the committee, the two chairpersons must alternate as the presiding chairperson of the committee.
2) Unless otherwise agreed by a health and safety committee, the committee must meet at least once a month.
3) A health and safety committee may determine its own rules and procedures.
4) Persons other than employee or employer representatives may be invited to attend meetings of the health and safety committee and to participate in its proceedings.
What are the rights and powers of a health and safety committee?
- Rights and powers of health and safety committee.-
1) A health and safety committee may-
a) represent employees on all aspects of health and safety;
b) participate in consultations on any health and safety matter listed in the Schedule referred to in section 97(2);
c) request the Chief Inspector of Mines to review any code of practice;
d) request relevant information from any person who is required, in terms of this Act, to provide that information to the committee;
e) agree in additional qualifications or functions of health and safety representatives;
f) request-
i. an inspector to conduct an investigation in terms of section 60; or
ii. the Chief Inspector of Mines to conduct an inquiry in terms of section 65;
g) with the approval of the employer, be assisted by or consult an adviser or a technical expert who may be either another employee or any other person;
h) take reasonable time to prepare for each meeting of the committee; and
i) take reasonable time to report on meetings of the committee to the health and safety representatives at the mine.
2) No employer may unreasonably withhold the approval required in terms of subsection (1)(g).
3) Members of health and safety committees are entitled to perform their functions and to receive training during ordinary working hours.
4) Any time reasonably spent by a member of a health and safety committee for a purpose referred to in subsection (3) must be considered for all purposes to be time spent carrying out the employment duties of that member.
What is the employers duty to support a committee?
- Duty to support committee-
The employer must-
a) provide the health and safety committee with the facilities and assistance reasonably necessary to perform its functions;
b) supply the health and safety committee with the annual report referred to in section 2(1)(c) and any information necessary to perform its functions.
Whenever an employer, inspector or a person who conducts an inquiry is required by the provisions of this Chapter to supply information, what information may not be disclosed?
- Disclosure of information.-
1) Whenever an employer, inspector or a person who conducts an inquiry in terms of section 65, is required by the provisions of this Chapter to supply information or reports to a health and safety representative or to the health and safety committee, that employer, inspector or person-
a) must not disclose any information that is private personal information relating to an employee, unless the employee consents in writing to the disclosure of that information; and
b) is not required to supply any information-
i. that is legally privileged;
ii. that the employer, inspector or person could not disclose without contravening a prohibition imposed upon the employer by any law or court order; or
iii. that is confidential and, if disclosed, may cause substantial harm to an employee or the employer.
2) No employee may unreasonably withhold the consent required in terms of subsection (1)(a).
What happens when their is a dispute concerning the disclosure of information?
- Disputes concerning disclosure of information.-
1) If there is a dispute about what information is required to be disclosed in terms of the provisions of this Chapter, any party to the dispute may refer the dispute in writing to the Commission.
2) The party who refers a dispute to the Commission must satisfy it that a copy of the referral has been served on all other parties to the dispute.
3) The Commission must attempt to resolve the dispute through conciliation.
4) If the dispute remains unresolved, any party to the dispute may request that the dispute be resolved through arbitration.
5) A commissioner appointed to arbitrate a dispute must first decide whether or not the information is required to be supplied in terms of the provisions of this Chapter.
6) If the commissioner decides that the information is required and if it is information contemplated in section 38(1)(a) or (b)(iii), the commissioner must balance the harm that disclosure is likely to cause to an employee or employer or any other person who employs employees, against the harm that the failure to disclose the information is likely to cause to the ability of health and safety representatives or members of the health and safety committee to perform their functions effectively.
7) If the commissioner decides that the balance of harm favours the disclosure of the information, the commissioner may order the disclosure of the information on terms designed to limit the harm likely to be caused to the employee or the employer.
8) When making an order under subsection (7), the commissioner must take into account any previous breach of confidentiality in respect of information disclosed in terms of the information or any other confidential information which might otherwise be disclosed for a period specified in the arbitration award.
9) In any dispute about an alleged breach of confidentiality, the commissioner may order that the right to disclosure of information in terms of the provisions of this Chapter be withdrawn for a period specified in the arbitration award.
