Responsibilities of employers: South Africa
From www.entrepreneurstoolkit.org
As the owner of a business you have responsibilities towards the people that work for you. You have to ensure that their health, safety and dignity is upheld, and that none of your practices conditions at work might put people at risk. Further, workers have rights regarding their job security and employment conditions. The following sections provide more information about several relevant acts.
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Occupational health and safety
No. 85 of 1993: Occupational Health and Safety Act as amended by Occupational Health and Safety Amendment Act, No. 181 Of 1993 [1]
ACT To provide for the health and safety of persons at work and for the health and safety of persons in connection with the use of plant and machinery; the protection of persons other than persons at work against hazards to health and safety arising out of or in connection with the activities of persons at work; to establish an advisory council for occupational health and safety; and to provide for matters connected therewith. (…) 8. General duties of employers to their employees
(1) Every employer shall provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees.
(2) Without derogating from the generality of an employer's duties under subsection (1), the matters to which those duties refer include in particular
(a) the provision and maintenance of systems of work, plant and machinery that, as far as is reasonably practicable, are safe and without risks to health; (b) taking such steps as may be reasonably practicable to eliminate or mitigate any hazard or potential hazard to the safety or health of employees, before resorting to personal protective equipment;
(c) making arrangements for ensuring, as far as is reasonably practicable, the safety and absence of risks to health in connection with the production, processing, use, handling, storage or transport of articles or substances;
(d) establishing, as far as is reasonably practicable, what hazards to the health or safety of persons are attached to any work which is performed, any article or substance which is produced, processed, used, handled, stored or transported and any plant or machinery which is used in his business, and he shall, as far as is reasonably practicable, further establish what precautionary measures should be taken with respect to such work, article, substance, plant or machinery in order to protect the health and safety of persons, and he shall provide the necessary means to apply such precautionary measures;
(e) providing such information, instructions, training and supervision as may be necessary to ensure, as far as is reasonably practicable, the health and safety at work of his employees;
(f) as far as is reasonably practicable, not permitting any employee to do any work or to produce, process, use, handle, store or transport any article or substance or to operate any plant or machinery, unless the precautionary measures contemplated in paragraphs (b) and (d), or any other precautionary measures which may be prescribed, have been taken;
(g) taking all necessary measures to ensure that tire requirements of this Act are complied with by every person in his employment or on premises under his control where plant or machinery is used;
(h) enforcing such measures as may be necessary in the interest of health and safety;
(i) ensuring that work is performed and that plant or machinery is used under the general supervision of a person trained to understand the hazards associated with it and who have the authority to ensure that precautionary measures taken by the employer are implemented; and
(j) causing all employees to be informed regarding the scope of their authority as contemplated in section 37 (1) (b).
9. General duties of employers and self-employed persons to persons other than their employees
(1) Every employer shall conduct his undertaking in such a manner as to ensure, as far as is reasonably practicable, that persons other than those in his employment who may be directly affected by his activities are not thereby exposed to hazards to their health or safety.
(2) Every self-employed person shall conduct his undertaking in such a manner as to ensure, as far as is reasonably practicable, that he and other persons who may be directly affected by his activities are not thereby exposed to hazards to their health or safety. (…)
Health and safety representatives
(1) Subject to the provisions of subsection (2), every employer who has more than 20 employees in his employment at any workplace, shall, within four months after the commencement of this Act or after commencing business, or from such time as the number of employees exceeds 20, as the case may be, designate in writing for a specified period health and safety representatives for such workplace, or for different sections thereof.
HIV/AIDS
From: SME Toolkit [2]
As an employer, you face the very real possibility that, at some time or another, you will hire an employee who has, or will contract, HIV or AIDS. Dealing with the situation poses a number of legal, moral, ethical, and business challenges. One starting point in dealing with this workplace safety issue is a written policy. (…)
The policy should include sections on the following:
- Definition of HIV
- Purposes of the policy, including protecting legal rights of workers with HIV-related conditions
- Policy provisions, including right to work and education about HIV
- Medical overview of risk, transmission, etc.
- Guidelines to be followed in protecting the physical and emotional health and well-being of all employees and providing reasonable accommodation for employees with HIV-related conditions
Sample Company Policy on AIDS
Introduction
The following outlines [your company’s name]’s policy and procedures for interacting with employees who have been medically diagnosed with or who are suspected of having the AIDS (Acquired Immune Deficiency Syndrome) virus.
Purpose
The purpose of the AIDS policy is to reassure employees that AIDS is not spread through casual contact during normal work practices and to reduce unrealistic fears about contracting an AIDS virus-related condition. This policy also protects the legal right to work of employees who are diagnosed with an AIDS virus-related condition and provides guidelines for situations where infection with the AIDS virus is suspected. Our policy is to encourage sensitivity to and understanding for employees affected with a condition of the AIDS virus.
General policy
We are committed to maintaining a healthy work environment by protecting the physical and emotional health and well-being of all employees in the workplace. We also have a continuing commitment to provide employment for people with physical disabilities who are able to work. This AIDS policy is a direct outgrowth of those commitments. It provides guidelines for situations when a question as to an AIDS virus-related condition arises. There are three major points:
- Employees who are diagnosed with an AIDS virus-related condition may continue to work if they are deemed medically able to work and can meet acceptable performance standards. We will provide reasonable performance standards and reasonable accommodation if necessary to enable these employees to continue working.
- We provide AIDS education for all employees to help them understand how the AIDS virus is spread and to reduce unrealistic fears of contracting an AIDS virus-related condition.
- The term “AIDS virus-related conditions” refers to the following four medically diagnosed conditions:
1. presence of the AIDS antibody without symptoms of AIDS
2. presence of an AIDS-Related Complex (ARC)
3. AIDS
4. central nervous system infection
Medical overview
Medical experts on AIDS virus-related conditions have informed us that there is no known risk of AIDS transmission between an affected employee and other employees through either casual or close contact that occurs during normal work activities. An AIDS virus-related condition is not transmitted by breathing the same air, using the same lavatories, touching a common piece of paper, or using the same telephone. Transmission of the virus through oral secretions or tears is not a recognized risk according to medical authorities. Additionally, the virus is very fragile and has been found to be transmitted only through intimate exchange of bodily fluids (for example, blood or blood-contaminated tissue fluids such as semen or vaginal fluid). The AIDS virus attacks the immune system, causing a breakdown in a person’s normal protection against infection. This leaves the body vulnerable to life-threatening illnesses. In addition, the virus by itself can affect the nervous system. Individuals of all sexual preferences are at risk of contracting an AIDS virus-related condition. According to medical experts, the AIDS virus is transmitted in the following ways: sexual contact through transmission of semen or vaginal fluids; intravenous drug administration with contaminated needles; administration of contaminated blood or blood products; and passage of the virus from infected mothers to their fetus or newborn. However, there is no evidence to suggest that pregnant women are particularly susceptible to any AIDS virus-related illness or condition. Recent medical evidence suggests that an AIDS virus-related condition can have an incubation period of several weeks, months or years before symptoms appear. Medical findings indicate that a person who has a positive antibody test will not necessarily develop an AIDS virus-related condition. The presence of the AIDS antibody is a sign of infection, not immunity, unfortunately. As is true for any person with a life-threatening illness, a person diagnosed with an AIDS virus-related condition deserves and requires compassion and understanding. While that person is attempting to cope with his or her own vulnerability and fears, the support and understanding of friends and colleagues can be particularly valuable. Some people have fears about contracting AIDS based on misinformation or lack of knowledge about how AIDS is spread. Education providing accurate medical information can best alleviate fears of contracting an AIDS condition.
Supervisor’s responsibilities
The physical and emotional health and well-being of all employees must be protected, and reasonable accommodation for the medically impaired employee with an AIDS virus-related condition must be provided, as long as the employee is able to meet acceptable performance standards. To ensure these goals are met, the following guidelines are to be followed:
- Any employee diagnosed with an AIDS condition is entitled, as is any other employee, to confidentiality of their medical condition and medical records.
- If an employee with an AIDS condition requests job accommodation for his/her medical condition, the employee must obtain a written medical opinion that he/she (a) is medically able to work and (b) needs reasonable job accommodation in order to maintain employment.
- If it is deemed medically necessary, based upon current physical impairment, [Company name] and the employee’s supervisor will work to bring about any reasonable job modification or job transfer of the employee with a diagnosed condition of AIDS.
- If a healthy employee refuses to work with an employee who is diagnosed with an AIDS condition and is medically approved as able to work, job transfer or other work accommodation for the healthy employee will only occur when medically indicated by written order of his/her physician. The medical order must be a signed medical statement requesting this job change. In the absence of a medical order, normal transfer procedures will be followed.
Labour rights
The legislation around labour rights includes the following acts (from the Department of Labour):
- Basic Conditions of Employment Act
- Labour Relations Act
- Labour Relations amendment Act 2002
- Employment Equity
- Employment Equity Act
- Skills Development Act
- UIF
- Rules for the conduct of proceedings before the CCMA
LABOUR RELATIONS ACT, 1995
CHAPTER I
Purpose, Application and Interpretation
1. Purpose of this Act
The purpose of this Act is to advance economic development, social justice, labour peace and the democratisation of the workplace by fulfilling the primary objects of this Act, which are-
(a) to give effect to and regulate the fundamental rights conferred by section 27 of the Constitution ;
(b) to give effect to obligations incurred by the Republic as a member state of the International Labour Organisation;
(c) to provide a framework within which employees and their trade unions, employers and employers' organisations can-
(i) collectively bargain to determine wages, terms and conditions of employment and other matters of mutual interest; and
(ii) formulate industrial policy; and (d) to promote- (i) orderly collective bargaining; (ii) collective bargaining at sectoral level; (iii) employee participation in decision-making in the workplace; and (iv) the effective resolution of labour disputes.
Basic Conditions of Employment Act 1997
To give effect to the right to fair labour practices referred to in section 23(1) of the Constitution by establishing and making provision for the regulation of basic conditions of employment; and thereby to comply with the obligations of the Republic as a member state of the International Labour Organisation; and to provide for matters connected therewith.
See also:
