Poorly written laws may find employers in hot water

2015-02-20 14:38

The government has embarked on a new plan to create job opportunities by forcing people already in a job, to register with some or other council they will establish for this purpose. Some of these future plans include the Environmental Impact Assessment Practitioners and the Career Development Practitioners. One plan, already written into law, is the registration of the Construction Health & Safety Practitioners.

But the process is riddled with errors and could result in employers finding themselves at the wrong end of the law.

Construction Regulation 8(6) prohibits an employer from appointing a Construction Health & Safety Officer, if that person is not registered with the SACPCMP. This in itself prohibits jobs.

The irony is that no law requires a person to register with the SACPCMP. You are basically forced into a registration system you may not be able to afford, but if you don’t, your chances of getting a job in construction is nil.

The Department of Labour (DOL) appointed the SACPMCP as the approved statutory council for this purpose in February 2014, without establishing if the council actually have legal grounds to enforce the registration.

According to their website, the South African Council for Project and Construction Management Professions (SACPCMP) is a Juristic person established by Section 2 of the Project and Construction Management Act (Act No 48 of 2000).

This Act, commences on a date proclaimed by the President in the Gazette. To date there has been only one proclamation by the State President in Government notice R36 in Gazette 27828 of 22 July 2005 whereby Sections 4(1), 4(2) and 26 commenced. The rest of the Act has not yet been put into operation.

There is thus no legal reason or requirement for an individual to register.

Section 42 of this (non-existent) Act, which is a “transitional arrangement” states that “any person practising in any of the categories contemplated in section 18, may continue to practise as such and is deemed to be a registered person until a date determined by the Minister by notice in the Gazette.

Once again there has been no date published by the Minister (of Public Works) as to a deadline, and the Council has issued an extension of time for Candidate Construction and Project Managers to be qualified by December 2018.

Employers must foot the bill for registration

As there is no legal duty on a practitioner to register, employers cannot insist on their registration unless the employer pays for it. The duty to appoint a registered person lies with the employer, and as such any fees payable to comply with the law, is for the account of the person having the duty of compliance.

Refusing to employ a person where not registered, without offering to pay for it, is unlawful.

A H&S officer reported on social network, LinkedIn, that his employer told that if he does not register he will be told to leave the company. "A loaded gun is being held to my head for this rubbish".

And  rubbish it is indeed. More than 230 practitioners have signed a petition to get the law changed, but the DOL remains in Ostrich mode. This surely is the greatest infringement of the basic human right to work and choose your profession the SA government has ever legalised.

But it does not end here.

To maintain the registration, the employer will have to pay for conferences and workshops, air fare, accommodation and all incidental costs in order to keep the person registered.

But, typical of the construction industry, where there is a law, they will break it. And employers are passing their legal duty of employing a registered person, onto the jobseekers.

The Blind leading

The DOL fails to understand their own legislation. This tells us that they did not write it. They just “stamped” it.

In an undated Joint Press release of the DOL, Dept of Public Works and the SACPCMP, the “Department of Labour wishes to announce that all those working in the built environment are expected to comply with the Construction Regulations 2014. Regulation 3 and 5 (7)(b) will come into effect on the 7 August 2015. The Chief Inspector allowed an eighteen (18) month period which commenced from 7 February 2014 for competent persons to register with the SACPCMP, which was deemed to be sufficient and a reasonable time in which to do so.”

However, when one reads the regulations, the term “Construction work” does not only apply to the “Construction Industry” but also applies to Mining, Manufacturing, Telecommunications, Utilities like Telkom & Loadshedding SOC Ltd and Railway operator – Transnet Ltd. In fact, the ambiguity of the regulations makes it impossible to rule out any industry as even banks will perform “construction work” from time to time.

The three body Partnership are convincing practitioners to register and “...encourage applicants to apply to the SACPCMP early, as registration is mandatory in order to practice in the field of CHS.” This for reasons as mentioned above is a blatant and out-right lie!

Stop work!

A favourite expression of most Construction Health & Safety Agents when they arrive on site and find something missing from the site documentation. But come August 2015, the phrase will bite the entire country in the family jewels.

According to the SACPMCP, “Non-registration will have serious consequences in an essential part of the South African economy”. But why should that become the practitioner’s problem? Employers need to seek legal advice, as potential jobseekers will be well within their rights to report any “letters of regret” to the CCMA.

You cannot refuse a person a job, because they failed to perform a duty they do not have. It is the same as refusing a person a job for failing to register his /her cat or dog; there is no such responsibility in the Construction regulations.

In August 2015, many companies will apply for a Construction Permit, only to find the DOL cannot issue them as there are not enough registered CHS Agents.

No extension of time

SAIOSH, one of the voluntary associations in cahoots with the SACPCMP, issued a newsletter to their members wherein Thobile Lamati (Director general of Labour) told delegates at the Saiosh KZN conference that there would be “No further extension of time for registration come the 6th of August 2015”.

“Saiosh had a meeting with the SACPCMP where we were presented with statistical evidence that indicated that there is a delay at the SACPCMP end but that the problem cannot be fixed by the SACPCMP” the newsletter read.

The Blame Game – Part II

The SACPCMP firmly believes “The registration of CHS professionals is critical intervention in terms of enhancing CHS in the sector, and the urgent need to reduce injuries, fatalities, and disease”. CHS Practitioners however do not share their belief as they are not responsible for slab collapses, silo collapses, and houses falling apart. While the CHS profession has to defend itself from false statements like these, the SACPCMP will soon have to get their defences ready for failing the Construction Industry in delivering “competent” registered persons from August 2015. At the end of October 2014 only 42 applicants have completed the full process and are just awaiting their outcome letters.

According to Council member, Doug Michell, the registration process takes 4 months longer than what they told the DOL. In their original presentation, the process was 6 to 8 weeks. This has now changed to 4 to 6 months. The SACPCMP will soon suffer the blame they so willingly dished out. Just apply for a permit. You and 60 odd others will get it, the rest will wait for the SACPCMP to “produce” more competent people in their magic transformation machine.

The SACPCMP is in trouble, and knows it

The Council cannot deliver on the market demands if they perform a proper job.”Verifying the competence of CHS professionals in the construction sector is one of the critical objectives of the Department of Labour” according to the Press release. How this “verification” process are dealt with is unknown, but most reputable verification agencies will tell you to verify a qualification can take up to two months, depending on the response from the issuing Educational institute. It appears that a number of people were spared the process and have been appointed as “Assessors” to ascertain the “competencies” of applicants.

Ripley’s believe it or not? The person you want to appoint; was he or she properly assessed or simply fast-tracked to please the DOL and industry demands?

Being a registered person, only means you have successfully convinced the assessors of your competency. Perhaps at the lower levels of CHS Manager and Officer, the written exam proves a bit more credible, provided of course, you did not attend the “how to pass the exam” course offered by the Institute of Safety Management, but succeeded based on your own abilities and knowledge.

CPD – Cash Production Department

Continuous professional development is a process where you keep on improving your skills level. Everybody in SA does this from age 7 to 18 to advance from Grade 1 to 10, and then enter the job market.

If you are lucky enough to hold a National Diploma or B degree, you will automatically get 15 CPD points toward the maximum 100 to be registered. But, you can save yourself 3 years of expensive study by simply attending a few conferences and earn 15 points. As long as you cede your freedom of choice and attend a conference endorsed by the SACPCMP, you will be allowed to keep your job.

“Incompetent persons performing construction works and practicing in CHS or those excluding CHS on projects increases risk and the high levels of loss currently experienced in the sector” Unless of course they are registered and paid for their right to work. But the SACPCMP will not issue “Licenses” at random.

Player and referee in its own game

Applicants will be graded according to the criteria for each level. It is obvious then that many applications will only be registered as CHS Officers or CHS Managers and not CHS Agents. So if you were running a consulting firm for the last 10 years, you will have to close your doors if you get a lower grade than CHS Agent. And if you have any money left, you can pay the SACPCMP to review their decision. The more they fail, the more they earn.

One would have assumed that a transparent and credible process will allow for an appeal to be handled “externally” to the SACPCMP but in the absence of the rest of the PCMP Act, the commencement date of which is still to be proclaimed by the President, the Council can do as they feel appropriate.

Peaceful Civil Disobedience

The CHS profession need to take a good look at the risks they face with the registration process.

If they register and jump through all the hoops before August, and allow employers to pressure them into paying for it themselves or face unemployment, it will be a life long expense.

If they simply refuse to give in to the pressure, the entire SA economy will be negatively affected albeit to a lesser degree as government approved load shedding.

Whichever path you choose, you loose!

To date, the question “What do you get out of it?” remains unanswered. There is absolutely no benefit to the practitioner to be registered. It is just a form of Tax; a cost of working in SA.

But think positive. You get to travel to Jhb three times a year, stay in a hotel and sleep during 3 days of conferences and earn 15 CPD points. Or, you can enrol for a degree and study your butt off and earn 15 points.

Why on earth would you study? After all registration is the answer to incompetence, not education. You are registered and the SACPCMP declared you competent. What is the issue? No more accidents, no more slabs and silos falling down, and no more need for higher education institutes. Well done SA!

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