HEALTH AND SAFETY LEGAL UPDATES 2020/2021

Occupational Health & Safety 2020/2021 Legal Updates

  1. Occupational Health and Safety Act: Driven Machinery Regulations

-Notice of Withdrawal of Certificates without expiry dates issued to Training Providers

-Gazette No. 42163 GN dated 18 January 2019

What has changed?

The Minister withdrew all certificates without expiry dates previously issued in terms of Regulation 18(11) to training service providers.  Note that all current certificates without expiry dates will remain effective for a period of twelve months from the date of the Notice i.e. until January 2020 to enable training service providers in possession of such certificates to lodge applications for updated certificates.

What impact/effect does this have on Companies?

Companies should have verified whether entities appointed to train employees on lifting equipment are in possession of certificates with expiry dates and from 18 January 2020, confirmed whether the training providers applied for updated certificates.

  1. Compensation for Occupational Injuries and Diseases Act: Wound Care Gazette No. 42431 GN 251 dated 3 May 2019

What has changed?

The Gazette records the procedures and tariffs applicable to employees who require wound care for injuries sustained at workplaces.

What impact does this have on Companies?

Limited to health care service providers and entities administering claims in terms of the COIDA.

  1. Foodstuffs, Cosmetics and Disinfectants Act: Authorisation to local authorities to enforce certain sections of the Act in their area of jurisdiction -Gazette No. 42521 GN 896 dated 2019

What has changed?

-The Notice confirms the authority of local municipalities to enforce the listed sections:

 -Section 10(3)(b)- designation of health inspectors

 -Section 11- duties and powers of health inspectors

 -Section 24- right of prosecution in terms of the Act.

What impact does this have on Companies?

Information for companies, especially where food preparation facilities occur on the premises.

  1. Occupational Health and Safety Act: Ergonomic Regulations -Gazette No. 442894 GN 1589 dated 6 December 2019

What has changed?

-New Regulations describing the control measures that must be in place to prevent or minimise injuries or health impacts on employees as a result of ergonomic impacts at the workplace.

-Companies are exempt from implementation of regulations 6 (risk assessment requirements) & 8 (medical surveillance) in GN 683 dated 19 June 2020.

What impact does this have on Companies?

-The Regulations introduce a structured approach to management of ergonomic hazards at workplaces.

-Companies should have drafted an implementation plan to ensure alignment of workplace related ergonomics at their operations.

More on Ergonomic Regulations Unpacked

Introductory remarks

-Up to 2019 publication date the “stepchild” discipline

-The discipline (which include human factors)

-Systems approach to understanding work acknowledging the interactions between the various elements within the work-system including tools/technology, tasks, environment, organisation and persons in the workplace.

-Aims to balance these interactions through the design of the system using a human-centred approach

-When applied comprehensively in a workplace, ergonomics can be as important a concept as strategic planning and quality control.

-It has a real and direct impact on health and safety, productivity and performance of employees.

-Can affect an entire work-system by enhancing the most important component which is the ability to balance task demands with employee capabilities.

 —Scope of Application

  -workplaces and designers, manufacturers, importers and suppliers of machinery, plants or work systems.

-Training Program

-Duties of those exposed to ergonomic risks

-Duties of designers, manufacturers, importers and suppliers to consider ergonomic risks during design phase and provide information regarding optimal use of the equipment to users

-Focused risk assessment

Companies are exempt from implementing this regulation until June 2021

-Control measures must be implemented to eliminate or minimise identified ergonomic risks

-Medical Surveillance Program to be developed in line with the risk assessment

-Maintenance program for control measures

-Record keeping requirements- periods for the different records and disclosure requirements.

Ergonomic Training Program

The SHE Committee must be consulted on the Program

-Required Contents

 –content and scope of these regulations;

–potential sources of exposures to ergonomic risks;

–nature of ergonomic risks;

–potential risk to health associated with ergonomic risks

–control measures that are in place to prevent exposure to ergonomic risks;

–procedure for reporting ergonomic risks to the health and safety representative or employer;

–precautions to be taken by an employee to protect him/herself against ergonomic risks and

–assessment of exposure, the necessity medical surveillance and the long-term benefits of undergoing such surveillance

Training Program:

-Training must be done before employees are exposed to the identified ergonomic risks.

-The frequency of refresher training must be determined by the SHE Committee.

-No prescription regarding training entities- it can be done internal or external.

Ergonomic Risk Assessment

To be performed by a competent person

-The SHE Committee must be consulted on the risk assessment outcome.

-When must the assessment be repealed or reviewed?

–Every two years or

–if processes change or

–new equipment is introduced,

–control measures proved to be not effective,

–improved equipment is introduced or

–after an incident where the investigation showed that the ergonomic hazards were the leading contributor to the incident.

Ergonomic Risk Assessment

-To be performed by a competent person.

-The SHE Committee must be consulted on the risk assessment outcome.

-When must the assessment be repeated or reviewed?

–Every two years or

–if processes change or

–new equipment is introduced

–control measures proved to be not effective

–improved equipment introduced or

–after an incident where the investigation showed that the ergonomics hazards were the leading contributors to the incident

Ergonomic Risk Assessment

Required Contents

a complete hazard identification;

-identification of all persons who may be affected by the ergonomic risks;

-How employees may be affected by the ergonomic risks; and

-the analysis and evaluation of the ergonomic risks; and

-the prioritisation of ergonomic risks.

Ergonomic Regulations Unpacked

What should companies have in place?

-Amended Legal Register

-Evidence of communicating the change in the legislation

-Training Program and evidence of consulting the SHE Committee on the Plan- this includes training of health and safety representation on the ergonomic risks of their area of responsibility.

-Information from suppliers and designers on optimal use of the equipment on site

– / / for the risk assessment

-Amended record keeping schedule

-Amended maintenance program

– / / of exemption for regulations 6 and 8

  1. Basic Conditions of Employment Act: Amendment of Administrative Regulations

-Gazette No. 42965 GN 83 dated 31 January 2020

What has changed?

-The Notice published the latest summary of the Act that must be displayed at workplaces-

Form 1; and

-Form 9: Compliance Orders issued in terms of section 69(1)

-Forms 14A & B: Certificates for labour inspector appointments.

What impact does this have on Companies?

-Verify that companies display the latest Summary of the Act.

  1. Occupational Health & Safety Act: First Aid Unit Standards

-Gazette No. 3477 dated 19 June 2020

What has changed?

The Notice applies to entities who provide first aid training referred to in regulation 3(4) of the General Safety Regulations.

-As from 19 June 2020 applications to register as an approved first aid training service provider will only be considered if the application is accompanied by a valid accreditation document issued by the Quality Assurance Body delegated quality assurance responsibilities for First Aid Unit Standards by the Quality Council for Trades and Occupations and has been authorised by the Chief Inspector to carry out such accreditation. Compliance in relation to the Accrediation with the Quality Assurance Bodies is extended until 13 March 2021 (This Notice is an extension of the previous Notice which expired on 31 March 2020)

What impact does this have on Companies?

Verify that companies have a mechanism in place to verify if first aid training service providers are in possession of a valid accreditation certificate.

  1. Occupational Health & Safe Act: Asbestos Abatement Regulations

-Gazette No. 43894 GN 1196 dated 10 November 2020

What has changed?

-The Regulations replace the previous Asbestos Regulations

-Basically a face-lift for the old Regulations

What impact does this have on Companies?

-Verify if companies are aware of the Regulations and included the Regulations in the Legal Registers and systems documents

 -Note that regulations 3 (identification and assessment) and 20 (labelling and signage) commences 18 months after 10 November- April 2022

  1. Occupational Health & Safety Act: Asbestos Abatement Regulations

The Regulations were amended to align them with the format of newer Regulations.

Changes:

-Old regulations 14 and 15 were reworded and now addressed in regulations 3 and 4;

-Asbestos Risk Assessment (regulation 5) Management Plan required (regulation 6);

-Duties of the AIA -regulation 13

-Dispute resolution mechanism- regulation 14

-Clearance Certificate (regulation 22)

-Demarcation of regulated asbestos are amended- regulation 18

-Prohibited actions- regulation 24

Note that regulations 3 (duty to identify asbestos containing materials) and 20 (Labelling and Signage) commences only 18 months after 10 November – April 2022.

  1. Disaster Management Act: COVID 19 Directions

-Various Government Gazettes promulgated since March 2019

What has changed?

-Various Directions prescribing control measures for workplaces to prevent and minimise the risk of contracting Covid-19 at workplaces.

What impact does this have on Companies?

-Although various Directions applicable to workplaces were promulgated since April 2020, the Directions promulgated in terms of the Labour Relations Act on 1 October must be reflected in companies’ management systems.

Disaster Management Act: COVID 19 Directions

-Amended risk assessments aligned with the October Direction.

-A commitment to protect the health and safety of employees in a policy statement.

-Updated return to work plan or on-site procedures with the amended quarantine periods, notification requirements, declaration of co-morbidities by employees and provisions of implementing employees’ right to refuse work where they have a reasonable opportunity to be exposed to the COVID-19 virus.

-Amended training programs with the new requirements- the amended training program MUST refer to the amended Direction and the manners that will be implemented to ensure compliance to the Directive.

-Discuss the amendments to risk assessments, COVID-19 health and safety commitment and Return to Work Plan with the health and safety committee and/or employee representatives.

-Evidence of submission of the amended risk assessment to the Department for Employment and Labour (should have been done by mid-October 2020).  The submission must include evidence of briefing the health and safety committee and the amended training program.

-Implement the Declaration of co-morbidities by employees.

Disaster Management Act: COVID 19 Directions

Amended risk assessment aligned with the October Direction.

A commitment to protect the health and safety of employees in a policy statement.

-Updated return to work plan or on-site procedures with the amended quarantine periods, notification requirements, declaration of co-morbidities by employees and provisions of implementing employees’ right to refuse work where they have a reasonable opportunity to be exposed to the COVID-19 virus.

-Amended training programs with the new requirements- the amended training program MUST refer to the amended Direction and the manners that will be implemented to ensure compliance to the Directive.

-Discuss the amendments to risk assessments, COVID-19 health and safety commitment and Return to Work Plan with the health and safety committee and/or employee representatives.

-Evidence of submission of the amended risk assessments to the Department for Employment and Labour (should have been done by mid-October 2020). The submission must include evidence of briefing the health and safety committee and the amended training program.

-Implement the Declaration of co-morbidities by employees.

  1. Protection of Personal Information Act (POPI)

The Act was promulgated in 2020, but formally commenced in July 2020.

What has changed?

The aim of the Act is to protect personal information of individuals as well as businesses processed by private and public bodies under management of the Information Register, e.g. information provided by persons accessing a premises, personal information provided to persons for/ telephone or electronic transactions.

What impact does this have on Companies?

-Although not strictly applicable to safety, health and environmental management systems, some safety, health and environmental information may be protected in terms of the Act.

-Companies should have determined what safety related information is covered under the Act and what control measures must be implemented in respect of information managed in terms of the safety, health and environmental management systems.

Protection of Personal Information Act

Important provisions:

Note the staggered commencement of sections of the Act:

-Sections 2 to 38; section 111, and section 114 (1), (2) and (3) commenced on 1 July 2020. Section 110 and 114(4) shall commence on 30 June 2021- this is to allow for the necessary amendments to the Promotion of Access to Information Act. The majority of the Act is not effective, with the exception of the sections that will commence in 2021.

-The basis of the Act is section 14 if the Constitution which protects individuals’ rights to privacy- this right entails protection against unlawful collection, retention, dissemination and use of personal information.

What is defined as personal information?

-This includes race, marital status, national, ethnic, social origin, sexual orientation, age, health, religion, culture, education, financial & medical records, contact or location information, biometrics and name.

The protection provided by the Act covers information from individuals (“data subjects”) against theft and discrimination and collectors of information by providing guidelines within which to operate.

  1. Regulations for Hazardous Chemical Agents GNR 280 of 2021 dated 29/03/2021

What has changed?

The Hazardous Chemical Substance Regulations GNR 1179 of 1995 have been repealed.

Scope of Application

 

(1) Subject to the provisions of subregulation (2), these regulations apply to –

 

(a) an employer or a self-employed person who carries out work at a workplace which may expose any person to an HCA at the workplace; and

 

(b) a manufacturerimportersupplier or retailer of an HCA that is intended for use at a workplace.

 

(2) The provisions of regulations 3(1), 6 and 7 do not apply to –

(a) a self-employed person; or

(b) a person who visits a workplace referred to in subregulation (1).

 

(3) The provisions of these regulations do not apply in the case where the Lead Regulations or Asbestos Abatement Regulations apply.

 

Definitions

“chemical agent” means a GHS-aligned chemical agent or mixture;

“ghs hazard classification” means the GHS hazard classes and hazard categories assigned to HCAs;

  “hazardous chemical agent” or ‘HCA’ means a GHS-aligned chemical agent as provided for in Annexure 1;

“safety data sheet” or ‘SDS’ means a document that is aligned to the GHS, providing information on hazard classification, properties of hazardous chemicals, procedures for handling or working with hazardous chemicals in a safe manner, and the effects of hazardous chemicals on health and safety at the workplace, and that is prepared in accordance with regulation 14A;

“un globally harmonized system” or ‘GHS’ means the Globally Harmonized System of classification and labelling of chemicals, a guidance document developed by the United Nations for standardising and harmonising the classification and labelling of chemicals globally, as may be updated from time to time, commonly known as the UN Purple Book;

 

“un number” means the four-digit identification number assigned to an HCA in the UN Transport of Dangerous Goods: Model Regulations, as may be updated from time to time;

 

What impact does this have on Companies?

Information, Instruction and Training

 

Every employer who undertakes work which is liable to expose an employee to an HCA must, before any employee is exposed or may be exposed, after consultation with the health and safety committee established for that section of the workplace, provide that employee with suitable and sufficient information, instruction and training, as well as thereafter inform, instruct and train that employee at intervals as may be recommended by that health and safety committee.

 

Duties of Persons Who may be Exposed to Hazardous Chemical Agents

 

Every person who is or may be exposed to an HCA must obey a lawful instruction given by or on behalf of the employer or self-employed person regarding –

(a) HCA release prevention;

(b) the wearing of personal protective equipment;

(c) the wearing of monitoring equipment to measure personal exposure;

(d) reporting for health evaluations and biological tests as required by these regulations;

(e) the cleaning up and disposal of materials containing an HCA;

(f) housekeeping at the workplace, personal hygiene and environmental and health practices; and

(g) information, instruction and training as contemplated in regulation 3.

 

 Assessment of Exposure

 

(1) An employer or self-employed person must, after consultation with the relevant health and safety representative or relevant health and safety committee, cause an assessment to be made immediately, and thereafter at intervals not exceeding two years, to determine if any employee may be exposed by any route of intake.

 

(2) The employer must inform the relevant health and safety representative or relevant health and safety committee in writing of arrangements made for the assessment contemplated in subregulation (1), give them reasonable time to comment thereon, and ensure that the results of the assessment are made available to the relevant representative or committee who may comment thereon.

Air Monitoring

 

(1) Where the inhalation of an HCA is concerned, an employer contemplated in regulation 5(4) must ensure that the measurement programme of the airborne concentrations of the HCA to which an employee is exposed, is –

 

(a) carried out in accordance with the provisions of these regulations;

(b) carried out only after the relevant health and safety representative or relevant health and safety committee has been informed thereof and given a reasonable opportunity to comment thereon;

(c) carried out by an approved inspection authority; and

(d) representative of the exposure of an employee to the airborne HCA in accordance with the provisions of subregulation (2).

 

 

 

Medical Surveillance

 

(1) An employer must ensure that an employee is under medical surveillance if –

(a) the employee may be exposed to an HCA listed in Table 4 of Annexure 2;

 

(b) the exposure of the employee to any chemical agent hazardous to his or her health is such that an identifiable disease or adverse effect to his or her health may be related to the exposure, there is a reasonable likelihood that the disease or effect may occur under the particular conditions of his or her work, and there are techniques to diagnose indications of the disease or the effect as far as is reasonably practicable; or

 

(c) the occupational health practitioner recommends that the relevant employee should be under medical surveillance, in which case the employer may call on an occupational medicine practitioner to ratify the appropriateness of such recommendation.

 

(2) In order to comply with the provisions of subregulation (1), the employer must, as far as is reasonably practicable, ensure –

(a) that an initial health evaluation is carried out by an occupational health practitioner immediately before or within 14 days after a person commences employment, where any exposure exists or may exist, which comprises –

 

(i) an evaluation of the employee’s medical and occupational history;

(ii) a physical examination; and

(iii) any other essential examination which, in the opinion of the occupational health practitioner, is desirable in order to enable the practitioner to do a proper evaluation;

 

(b) that, subsequent to the initial health evaluation contemplated in paragraph (a), the relevant employee undergoes examinations as contemplated in paragraph (a)(ii) and (iii), at intervals not exceeding two years or at intervals specified by an occupational medicine practitioner.

 

(3) An employer may not permit an employee, who has been certified unfit for work by an occupational medicine practitioner, to work in a workplace or part of a workplace in which he or she would be exposed: Provided that the relevant employee may be permitted to return to work which will expose him or her, if he or she is certified fit for that work beforehand by an occupational medicine practitioner.

 

(4) The employer must record and investigate the incident contemplated in subregulation (3) in compliance with regulation 8 of the General Administrative Regulations.

 

Respirator Zone

 

An employer must ensure –

(a) that any workplace or part thereof under his or her control, where the concentration of an HCA in the air is or may be such that the exposure of an employee working in that workplace exceeds the restricted limit without the wearing of respiratory protective equipment, is zoned as a respirator zone;

 

(b) that a respirator zone is clearly demarcated and identified by a notice indicating that the relevant area is a respirator zone and that personal protective equipment as contemplated in regulation 11 must be worn there; and

 

(c) that no person enters or remains in a permanent respirator zone unless he or she is wearing the required personal protective equipment.

 

Records

 

An employer must –

(a) keep records of the results of all assessments, air monitoring, and medical surveillance reports required by regulations 5, 6 and 7, respectively: Provided that personal medical records may be made available to only an occupational health practitioner;

 

(b) subject to the provisions of paragraph

 

(c), make the records contemplated in paragraph (a), excluding personal medical records, available for inspection by an inspector;

 

(c) allow any person, subject to the personal written consent of an employee, to peruse the records with respect to that particular employee;

 

(d) make the records of all assessments and air monitoring available for perusal by the relevant health and safety representative or relevant health and safety committee;

(e) keep all records of assessments and air monitoring for a minimum period of 30 years;

 

(f) if the employer ceases activities, hand over or forward all records by registered post to the relevant regional director; and

 

(g) keep, for at least three years, a record of the investigations and tests carried out in terms of regulation 12(b) and of any repairs resulting from these investigations and tests.

 

 Control of Exposure to Hazardous Chemical Agents

 

(1) An employer must ensure that the exposure of an employee is either prevented or, where this is not reasonably practicable, adequately controlled: Provided that –

 

(a) where there is exposure for which there is a restricted limit, the control of the exposure must be regarded as adequate if the level of exposure is below that limit or if the relevant area is zoned and the level of exposure is reduced to below that restricted limit by means of adequate personal protective equipment only after the level has been reduced to as low as is reasonably practicable by any other means than personal protective equipment; or

 

(b) where there is exposure for which there is a maximum limit, the control of the exposure must be regarded as adequate if the exposure is at a level as low as is reasonably practicable below that maximum limit: Provided that in the case of temporary excursions above the control limit, the employer must ensure –

 

(i) that the excursion is without a significant risk from exposure;

(ii) that the excursion is not indicative of a failure to maintain adequate control;

(iii) that during the excursion, the area is temporarily demarcated and prescribed and identified as contemplated in regulation 8(b); and

(iv) that the provisions of regulation 11 are complied with.

 

(2) Where reasonably practicable, the employer must control the exposure of an employee by –

(a) limiting the amount of an HCA used, which may contaminate the working environment;

(b) limiting the number of employees who will be exposed or may be exposed;

(c) limiting the period during which an employee will be exposed or may be exposed;

(d) using a substitute for an HCA;

(e) introducing engineering control measures for the control of exposure, which may include –

(i) process separation, automation or enclosure;

(ii) the installation of local extraction ventilation systems to processes, equipment and tools for the control of emissions of an airborne HCA;

(iii) use of wet methods; and

(iv) separate workplaces for different processes; and

 

(f) introducing appropriate work procedures which an employee must follow where materials are used or processes are carried out which could give rise to exposure of an employee, and which procedures must include written instructions to ensure –

(i) that an HCA is safely handled, used and disposed of;

(ii) that process machinery, installations, equipment, tools and local extraction and general ventilation systems are safely used and maintained;

(iii) that machinery and work areas are kept clean; and

(iv) that early corrective action may be readily identified.

 

Personal Protective Equipment and Facilities

 

(1) If it is not reasonably practicable to ensure that the exposure of an employee is adequately controlled as contemplated in regulation 10, the employer must –

 

(a) in the case of an airborne HCA, provide the employee with suitable respiratory protective equipment and protective clothing; and

 

(b) in the case of an HCA which can be absorbed through the skin, provide the employee with suitable non-HCA impermeable protective equipment.

 

(2) Where respiratory protective equipment is provided, the employer must ensure –

 

(a) that the relevant equipment is capable of controlling the exposure to below the OEL for the relevant HCA;

(b) that the relevant equipment is correctly selected and properly used;

(c) that information, instructions, training and supervision, which is necessary with regard to the use of the equipment, is known to the employee; and

 

(d) that the equipment is kept in good condition and efficient working order.

 

(3) An employer must, as far as is reasonably practicable –

(a) not issue any used personal protective equipment to an employee, unless the relevant protection equipment is decontaminated and sterilised;

(b) provide separate containers or storage facilities for personal protective equipment when not in use; and

(c) ensure that all personal protective equipment not in use is stored in only the place provided therefor.

 

(4) An employer must, as far as is reasonably practicable, ensure that all contaminated personal protective equipment is cleaned and handled in accordance with the following procedures:

 

(a) Where personal protective equipment is cleaned on the premises of an employer, care must be taken to prevent contamination during handling, transport and cleaning;

 

(b) where personal protective equipment is sent off the premises to a contractor for cleaning purposes, the equipment must be packed in impermeable containers;

 

(c) the impermeable containers must be tightly sealed and must have a clear indication thereon that the contents thereof are contaminated; and

 

(d) the relevant contractor must be fully informed of the requirements of these regulations and of the precautions that must be taken for handling contaminated personal protective equipment.

 

(5) Subject to the provisions of subregulation (4)(b), an employer must ensure that no person removes dirty or contaminated personal protective equipment from the premises: Provided that where contaminated personal protective equipment has to be disposed of, it is treated as HCA waste as contemplated in regulation 15.

 

(6) Subject to the provisions of the Facilities Regulations, an employer must, where reasonably practicable, provide an employee who is using personal protective equipment, as contemplated in subregulation (1), with –

 

(a) adequate washing facilities, which are readily accessible and located in an area where the facilities will not become contaminated, in order to enable an employee to meet a standard of personal hygiene consistent with the adequate control of exposure, and to avoid the spread of an HCA;

 

(b) two separate lockers, separately labelled “protective clothing” and “personal clothing”, and ensure that the clothing is kept separately in the locker concerned; and

 

(c) separate “clean” and “dirty” change rooms if the employer uses or processes an HCA to the extent that the HCA could endanger the health of persons outside of the workplace.

 

Maintenance of Control Measures

 

An employer must ensure –

 

(a) that all control equipment and facilities provided in terms of regulations 10 and 11 are maintained in good working order; and

 

(b) that thorough examinations and tests of engineering control measures are carried out at intervals not exceeding 24 months by an approved inspection authority.

 

Prohibitions

No person may, as far as is reasonably practicable-

 

(a)     use compressed air or permit the use of compressed air to remove particles of an HCA from any surface or person;

 

(b)     smoke, eat, drink or keep food or beverages in a respirator zone or permit any other person to smoke, eat, drink or keep food or beverages in that zone;

 

(c)     use statements such as “non-toxic”“non-harmful”“non-polluting” or “non-hazardous” or similar statements indicating the HCA as not hazardous, or any other statements that are inconsistent with the HCA’s GHS classification on the label or packaging of any HCA; and

 

(d)     manufacture, procure, use, handle or store within the workplace-

(i)     a prohibited HCA as listed in Table 1 of Annexure 2;

 

(ii)     ozone-depleting substances provided for in the Regulations regarding the Phasing-Out and Management of Ozone-Depleting Substances, published as Government Notice No. R. 351 of 8 May 2014; and

 

(iii)    persistent organic pollutants prohibited by the Prohibition on the Import, Export, Possession, Acquisition, Sale, Use and Disposal of Agricultural Remedies, under section 7 of the Fertilizers, Farm Feeds, Agricultural Remedies and Stock Remedies Act, 1947 (Act No. 36 of 1947), published as Government Notice No. R. 862 of 29 July 2016.

Classification of hazardous chemical agents

The manufacturer or importer of a chemical agent must, before it is supplied to a workplace-

(a)     determine whether the chemical agent is an HCA by carrying out a hazard assessment referencing the cut-off values provided in Tables 4 and 5 of Annexure 1;

(b)     if the substance, mixture or article is an HCA, ensure that a GHS classification is carried out for the HCA; and

(c)     review the GHS classification should a change in the composition of the HCA be made.

Safety data sheet

(1)    Subject to section 10(3)(b) of the Act and regulation 14, a safety data sheet for an HCA must be-

(a)    prepared by an importer or manufacturer before manufacture and, if this is not reasonably practicable, immediately after manufacture but before import: Provided that the safety data sheet is-

(i)      GHS compliant;

(ii)     classified for the HCA, in accordance with regulation 14;

(iii)    reviewed at least once every five years;

(iv)    amended whenever necessary to ensure that it contains correct and current information, aligned to its GHS classification required by regulation 14(c), which includes new data regarding the hazard presented by an HCA that changes its classification in a category or subcategory of a hazard class or results in its classification to another hazard class; and

(v)     given the most recent applicable date, which may be the date of first issue, review or amendment;

(b)     provided by a manufacturer or importer to-

(i)      a supplier of the HCA to a workplace; and

(ii)     any person who is likely to be affected by the HCA;

(c)     provided by a supplier of the HCA-

(i)      when the HCA is first supplied to the workplace;

(ii)     if the SDS for the HCA is amended; and

(iii)    to any person at the workplace if they request the SDS; and

(d)     obtained by the employer from the manufacturer, importer or supplier of the HCA and provided to-

(i)      any person who is involved in using, handling, or likely to be exposed to, the HCA at the workplace;

(ii)     any person at the workplace who needs the information to assess risk related to health and safety;

(iii)    any health practitioner who needs the information to treat a person who has been exposed to the HCA; or

(iv)    an emergency service  professional who  requires the information to fulfil his duties as an emergency respondent.

(2)     Paragraphs (a) and (b) of subregulation (1) do not apply to a manufacturer or importer of an HCA who has not manufactured or imported that HCA in the past five years.

(3)     The information in the GHS compliant safety data sheet must be presented using the following 16 headings in the order given below, as may be updated from time to time:

(a)     Section 1: identification of the substance/mixture and of the company/undertaking;

(b)     Section 2: hazards identification;

(c)     Section 3: composition/information on ingredients;

(d)     Section 4: first-aid measures;

(e)     Section 5: firefighting measures;

(f)     Section 6: accidental release measure;

(g)     Section 7: handling and storage;

(h)     Section 8: exposure controls/personal protection;

(i)      Section 9: physical and chemical properties;

(j)      Section 10: stability and reactivity;

(k)     Section 11: toxicological information;

(l)      Section 12: ecological information;

(m)    Section 13: disposal considerations;

(n)     Section 14: transport information;

(o)     Section 15: regulatory information; and

(p)     Section 16: other information.

Labelling of hazardous chemical agents

(1)    With regard to the labelling of an HCA-

(a)     a manufacturer or importer of an HCA must ensure that the HCA is correctly labelled as soon as practicable after the HCA is manufactured or imported;

(b)     a supplier of an HCA may not supply an HCA if it is not correctly labelled;

(c)     a retailer of an HCA may not supply any consumer product containing an HCA to be used in a workplace if it is not correctly labelled; and

(d)     an employer must-

(i)      ensure that an HCA that is used, handled or stored at the workplace is correctly labelled;

(ii)     ensure that a container labelled for an HCA is used for only the use, handling or storage of that HCA;

(iii)    as far as is reasonably practicable, ensure that when an HCA is transferred or decanted at the workplace, from its original container into a destination container, the destination container is correctly labelled for that HCA; and

(iv)    ensure that an HCA within pipework is identified by a label or sign or in any other suitable manner, on or near the pipework, subject to the following:

(aa)     Where the product is a mixture of two or more HCAs, the intermediate or finished product name may be used for identification;

(bb)     sampling, loading points or any other termination point of a pipe, where during normal operations an employee may be exposed to an HCA, must be identified; and

(cc)     pipework, including the splitting of flanges, where an employee may be exposed during routine maintenance activities, should be identified as far as is reasonably practicable.

 (2)     Subject to the provisions of subregulation (1), an HCA is correctly labelled if the selection and use of label elements are in accordance with the GHS and if the HCA is packed in a container that has a label-

(a)      that includes-

(i)      the product identifier and, where applicable, the United Nations proper shipping name;

(ii)     the chemical identity of all the ingredients contributing to the final GHS classification of the HCA;

(iii)    the name, address, and business telephone number of the manufacturer or importer;

(iv)    an emergency telephone number where support is available; and

(v)     a signal word, hazard statement, precautionary statement and hazard pictogram consistent with the HCA’s GHS classification, made in accordance with regulation 14; and

(b)     that may include-

(i)      the quantity of the HCA in the package, unless this quantity is specified elsewhere on the package;

(ii)     the quantity of each HCA ingredient;

(iii)    any information about the hazards, and first-aid and emergency procedures relevant to the HCA, not otherwise included in the hazard statement or precautionary statement;

(iv)    first-aid measures; and

(v)     an expiry date, where applicable.

Packaging of hazardous chemical agents

(1)     Packaging for an HCA must satisfy the relevant requirements of the UN Transport of Dangerous Goods, with respect to packaging and fastenings, or, where applicable, the UN IMO International Maritime Dangerous Goods Code, including the following requirements:

(a)     The manufacturer or importer of an HCA must ensure that the HCA is correctly packed, as soon as reasonably practicable after manufacturing or importing.

(b)     For the purposes of paragraph (a), the expression “correctly packed” means-

(i)      that the packaging is in sound condition;

(ii)     that the packaging is durably and legibly marked;

(iii)    that the packaging will safely contain the chemical for the time the chemical is likely to be packed;

(iv)    that the packaging is made of a material that is compatible with the HCA and will not be adversely affected by the HCA;

(v)     that the packaging and fastenings are strong and solid throughout to ensure that they will not loosen and will meet the normal stresses and strains of handling; and

(vi)    that the packaging does not usually contain food or beverages and cannot mistakenly be identified as containing food or beverages.

(2)     Where a retailer supplies an HCA in a container that is supplied by the person purchasing the chemical, the retailer must ensure that the HCA is correctly packed or repacked as contemplated in subregulation (1).

(3)     Where a retailer supplies the person purchasing the chemical with a container, the retailer must ensure that the HCA is correctly packed or repacked as contemplated in subregulation (1).

(4)     The employer or self-employed person must receive, use, handle or store an HCA only if it is correctly packed as contemplated in subregulation (1).

(5)     An employer must-

(a)     as far as reasonably practicable, ensure that a container or a vehicle in which an HCA is transported is clearly identified as transporting an HCA; and

(b)     ensure that such transportation complies with the National Road Traffic Act, 1996 (Act No. 93 of 1996).

 

 

Disclosure of ingredient identity

(1)     Where an ingredient in an HCA causes the correct classification of the chemical, in terms of regulation 14(b) to include a hazard class and hazard category-

(a)     referred to in Table 4 of Annexure 1, the chemical identity of the ingredient detailed must be disclosed; or

(b)     referred to in Table 5 of Annexure 1, the chemical identity of the ingredient may be disclosed by its generic name if-

(i)      the identity of the ingredient is commercially confidential;

(ii)     the ingredient does not cause the correct classification of the hazardous chemical to include any other hazard class and hazard category in Table 4 of Annexure 1; and

(iii)    an OEL for the ingredient has not been established; and

(c)     in all other cases not included in subregulation (1)(b), the ingredient must be disclosed by its chemical identity.

(2)     The identity of the ingredient of an HCA in terms of subregulation (1 )(a), or the generic name of the ingredient of the hazardous chemical in terms of subregulation (1)(b), must be on the label and SDS.

(3)     Where an ingredient of an HCA must be disclosed in terms of subregulation (1)(a), the proportion of the ingredient to the hazardous chemical must be disclosed as follows:

(a)     Where the exact proportion of the ingredient is not commercially confidential, the exact proportion is expressed as a percentage of the chemical by mass or volume; or

(b)    where the exact proportion of the ingredient is commercially confidential, the exact proportion is expressed as a percentage of the chemical by mass or volume in terms of the following ranges within which the exact proportion fits:

(i)      < 10%;

(ii)     10 to 30%;

(iii)    30 to 60%;

(iv)    > 60%;

(v)     a range that is narrower than the ranges provided for in subparagraph (i), (ii), (iii) or (iv).

 

 

 

Disposal of hazardous chemical agents

An employer must, as far as is reasonably practicable-

(a)     recycle all HCA waste;

(b)     ensure that all HCA waste is classified and disposed of as waste in terms of the following legislation:

(i)     The Waste Classification and Management Regulations, 2013, published as Government Notice No. R. 634 of 23 August 2013; and

(ii)     the National Norms and Standards for the Assessment of Waste for Landfill Disposal, published as Government Notice No. R. 635 of 23 August 2013; and

(c)     ensure that all collectable HCA waste is placed in containers that prevent the likelihood of exposure during handling;

(d)     ensure that all vehicles, reusable containers and covers, which have been in contact with HCA waste, are cleaned and decontaminated after use in such a way that the vehicles, containers or covers do not cause a hazard inside or outside the premises concerned;

(e)     ensure that all employees occupied in the collection, transport and disposal of HCA waste, who may be exposed to that waste, are provided with suitable personal protective equipment; and

(f)     ensure that if the services of a waste disposal contractor are used, a provision is incorporated into the contract stating that the contractor must also comply with the provisions of these regulations.

 

 Offences and penalties

Any person who contravenes or fails to comply with any provision of regulation 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13,14, 14A, 14B, 14C or 14D shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding six months and, in the case of a continuous offence, to an additional fine of R500 for each day on which the offence continues or additional imprisonment of one day for each day on which the offence continues: Provided that the period of such additional imprisonment shall in no case exceed 90 days.