Residential Estate Industry Journal | Page 84

INDUSTRY FOCUS PAGE 84 OCCUPATIONAL HEALTH & SAFETY crossways FARM VILLAGE Homeowners Associations should take cognisance of the Occupational Health & Safety Act no. 85 of 1993 Background and scope of the Occupational Health & Safety Act 85 of 1993 Laws come into effect mainly because of an identified need. During the early 1800’s, laws governing the health and safety of workers was introduced in the UK and The Occupational Health & Safety Act 85 of 1993 as we know it in South Africa has its origin mainly in the U.K. and Europe. Developments in the field of safety also extended to South Africa, indicating a concern for the quality of life at work. Before we discuss the Act and its relevance to the Homeowners Association, it is important to first look at the application, aim and scope of this Act. In short its aim, clearly stated, is to provide for the health and safety of persons at work (i.e. the employee) as well as the protection of other persons (i.e. visitors, contractors etc.) against any hazards to their health. The act applies to any person who employs or provides work to an individual as long as the employer remunerates that person or expressly or tacitly undertakes to remunerate that person. The mining and marine industries are the only sectors excluded from this Act. The Act further defines an ‘employee’ to also including a person who works under the direction or supervision of an employer. The definition includes contractors working for and on behalf of an employer i.e. security guards, electricians and plumbers who are contracted to do maintenance work as required from time to time. The HOA, management and the Occupational Health & Safety Act Taking the above into consideration, we can now answer the following questions; Is the HOA or body corporate an employer? Are people employed to perform work for and on behalf of their employer? (gardeners’ cleaners, managers etc) Are security guards contracted to perform security duties for and on behalf of the estate or body corporate? Are plumbers, electricians or garden services contracted to perform work for the estate on an on-going, regular, or ad-hoc basis? Just to clarify a point of argument which occasionally gets raised on the relevance of the Act where an employer is non-profit driven or not a commercial entity as such. Nowhere in the Act does it differentiate between the profit driven employer and the non-profit driven employer. The Homeowners Association, as an employer, sometimes finds itself in the unique situation whereby bodies corporate or estates are sometimes managed by volunteers elected on behalf of the entity. This is in contrast with other employers who are managed by full time employees. Many members of the board of an HOA are employers and with businesses of their own. But, it must