Residential Estate Industry Journal 3 - Page 38

LEGISLATION OHSA PAGE 36 Occupational HEALTH AND Safety aCT At a recent ARC health and safety workshop, the (Occupational Health and Safety Act, section question of contractor responsibility was raised 8(2)). By the same token, an HOA should in cases where the homeowners’ association never agree to take responsibility for work or (HOA) of the estate agrees to take responsibility materials about which they have no experience for a contractor hired by the owner of a or knowledge. residence to perform work on the owner’s behalf. Should the HOA agree to take responsibility, Before getting into that, let’s just look at some it must be in writing and signed by both the facts. The HOA is responsible for anything owner and the HOA; if not, the agreement is that takes place on the grounds of the estate merely verbal and has no legal standing in a excluding private residences. This includes court of law (OHS Act, sections 8(2) and 37(2)). providing access for contractors to the estate, their behaviour while on estate grounds, and If an agreement is documented and signed, the types of materials and equipment being the HOA may be held legally liable for what brought onto the estate. the contractor does or does not do on the resident’s property. There are regulations controlling items such as hazardous chemical substances and flammables, Should an accident occur resulting in a serious and other regulations controlling types of work injury or death, the HOA, the owner and the such as working at heights, grinding and welding. contractor may all be held liable in a court While such work may only be performed on of law (OHS Act, section 37(1)) regarding the residence owner’s property, it may have an compliance with the Occupational Health and impact on the estate more widely, or on other Safety Act, its regulations, other regulations residents, their families, members and visitors. and/or South African National Standards (SANS) For instance, if a fire is started or a hazardous referred to in the regulations by the Minister. substance spilled, the other residents and rest of the estate would be at risk. The courts would want evidence of a completed risk assessment for the work, other required These issues need serious consideration health and safety documentation based because the HOA may not be familiar with the on the legal requirements, the contractor’s work being done by the contractor, may not registration, and proof of the contractor’s level understand the dangers related to materials of competence required by law for certain being used and may not have any experience types of work such as electrical and involving or training regarding the materials or the machinery. If the work being done is in the work, and may not even understand the legal regulations, the contractor is required by law requirements. to be a registered competent person (OHS Act, section 8(2), 9 and 37, and any applicable The owner must ensure that the contractor regulations). is competent to do the work, and then, in r