Pressure mounts as Dept of Labour turns a deaf ear

2015-01-08 12:09

Pressure is mounting on the Department of Labour’s initiative to force Health & Safety (H&S) Officers to register as Project & Construction management professionals, as the petition launched by the National Institute of Organisational Compliance Consultants (NIOCCSA), gains more support.

In February last year, the DOL promulgated the new Construction Regulations and one of the new requirements is that employers may not appoint Health & Safety Officers unless they are registered with the SA Council for Project & Construction Management, in effect creating a barrier of entry into the job market.

 The DOL, in partnership with the Department of Public Works, and its Council for the Built Environment, have created a monster for themselves, believing that professionalising a fragmented and diversified profession via registration with a non-related council, will be supported by the H&S fraternity.

NIOCCSA launched an e-petition in December to stop the process, after the DOL failed to respond to their proposal to review the regulations to exclude non-professional H&S officers from the process.

H&S practitioners are up in arms. They do not want to be subjected to writing essays, tests and exorbitant registration and membership fees, just for the right to work, as entrenched in Section 22 of the Constitution of South Africa.

The blame game has started after the fatal collapse of the Thongathi Mall in November 2013, where H&S compliance was blamed and safety officers labelled as incompetent. H&S practitioners defended  this, by in turn blaming the industry and education system for allowing 2 and 3 day training courses to become the “norm” in H&S Education, and not allowing for the tertiary education of these practitioners.

Even experienced H&S professionals are opposing the process, as they have studied at great expense, worked for 10 or more years and now have to be subjected to writing reports and explaining to an unknown panel appointed by the SACPCMP to prove their competence.

This is yet to become a very hot topic, as more and more practitioners joins the cause to stop the process in its tracks. Questions are being asked in public forums, questioning the validity of the Council as the Act (Act 48 of 2000) in terms of which it is established has not been promulgated to its full extent.

Andrew Winder, legal director for NIOCCSA said “We could only find Sections 4(1), 4(2) and 26 of the Project and Construction Management Act has been commenced according to the proclamation issued by the State President in Notice R 36 in Government Gazette  27828 dated 22 July 2005. No other records could be found, commencing the rest of the Act, including the creation of “Special Categories” in terms of Section 18(1)(c) of this Act. In effect, the entire thing is legally null and void and can at best be viewed as the SACPCMP as a Voluntary Association for Project and Construction Management Professions. Until we can find the proclamation to commence the rest of the Act, we have no reason to believe the SACPMCP has any statutory authority to enforce registration on anybody.”

NIOCCSA proposed to the DOL to withdraw its approval of the SACPCMP as regulator for Construction Health & Safety Managers and Officers, which was published with the new Construction Regulations in February 2014. In this approval, the DOL appointed the SACPCMP to register construction health & safety practitioners in three categories; Agents, Managers and Officers.

Whilst the appointment of “Construction Health & Safety Manager” is not a requirement in the Construction Regulations, and their regulated scope of work is the same as for Officers, it allows for Officers with higher education and more experience to be issued with a higher ranking title.

Nevertheless, both categories; manager and officer, are fulltime employed practitioners and are not allowed to practice in the upstream activities of the Construction Process. As employers carry the liability for legal compliance, there is no need for these levels of practitioners to be regulated and subjected to re-assessment and annual fees.

The top category; Agent, has also become a bone of contention among the H&S professionals, as civil, mechanical and electrical engineers, architects, quantity surveyors, building managers and design engineers are also “allowed” to register as Construction Health & Safety Agents, cutting away at the size of the job market supposedly to be served by educated H&S professionals.

This sparks rage among the H&S fraternity and questions the Constitutional validity of the process. Section 22 of the Constitution allows for a profession, trade or occupation to be regulated by law, but the seemingly vast number of professions that are now to be regulated, makes it hard to believe that that the process is aimed at regulating a single trade or profession.

Statutory Regulation not effective, enforceable

The SACPMCP recently published a Board Notice, granting exemption to Project Managers and Construction Managers, not meeting the minimum education standards for registration, until December 2018. If these professionals are taking 10 years to meet the education requirements, how long will it take the H&S regime? It makes the process all the more questionable in terms of its “sold-to-believe” primary objective – to protect the public interests.

I think the public could not care less about the competencies of engineers, architects and h&S officers. All they need to know, is that a mall will not collapse under their feet while Christmas Shopping.

However, the underlying reason for this could possibly be that the SACPMCP has not yet received exemption from the Competition Commission in terms of its work rules for project and construction management professions.

Professional Associations may apply to have all or part of their rules exempted from Part A of Chapter 2 of the Act (relating to restrictive practices). Exemptions may be granted if the rules are not found to be anti-competitive in nature. Where these rules are anti-competitive, they must be justified as being reasonably required to maintain professional standards or the ordinary function of the profession.

This brings two questions to mind. The one being the question of which profession’s standards are the “rules” of the SACPMCP intending to maintain, as it accepts more than 5 different professions into its H&S category?

The second question is how would this affect a consultant working across multiple industries?

The SACPCMP registration only applies to the construction industry (Built Environment), but many H&S consultants practice in other industries as well, not just construction. In an already cut-throat market, H&S consulting is not susceptible to further anti-competitive practices. A consultant working in the construction industry will from August 2015 no longer be able to compete with his/her equally qualified counterpart in the manufacturing sector, due to the additional overheads brought about by registration costs, annual fees and maintenance of Continual Professional Development the process will bring about.

Education, Education, Education

The process also opened debate and criticism on the education system, and most H&S Practitioners agree this is the root cause of all problems in H&S.  In 1994, the newly elected government opened up the door to tertiary education for previously disadvantaged people, who where prevented from obtaining degrees. In terms of this big plan, tertiary qualification would be broken up into bite sized bits, referred to as Unit Standards in the National Qualifications Framework. These unit standards will allow a person to obtain formal training in various units, which in the end would equate to the same modules of a degree.

However, in H&S, these unit standards, became the be-all-end-all of education to become a H&S officer, and business bought it as if on a red hanger sale. Today, we have an estimated pool of 15 000 practitioners within the health & safety field, of which, according to the SACPCMP around 275 will meet the requirements to be registered as “Agents”.

End product pricing affects on Consumers

Health & Safety is already a large cost in the average product price paid by consumers, although most probably do not know this. Adding the cost of registration, annual fees, CPD, travelling and accommodation to attend workshops, loss of productivity due to time away from work to attend workshops etc, each and every construction contractor in SA will have to push up their prices, albeit unnoticeable in the short term.

Construction Death toll not reduced due to Brain Drain

As the very basis for this process, the DOL and partners justify their actions against the number of fatalities in construction. However, despite the good intentions, the entire process will not “increase” the level of education of any person within the next 5 years.

The proposed Continual Development of H&S practitioners requires them to maintain registration at 52 CPD points per year. If a practitioner attends 52 days of training, this target would be achieved.

How would 52 days of training in a five year period reduce fatalities? By 10%? So if we accept that in 2014 there were 83 deaths in construction, there will be 75, 68, 61, 55, and 50 in the next 5 years respectively. A total of 309!

Then we add the newly announced 10 year “Manhattan Project” in Modderfontein, the Eskom electricity issues, which may see an increase in construction activities of power plants, and more commercial & housing projects in the next 10 years, and this figure is yet to rise due to increase in worker numbers to build these projects.

Where will all the H&S officers come from? Most will be leaving the country to work in the UK and Middle East, where the qualifications they have are accepted without having to jump through money-wrapped hoops to get allowed to practice their rightfully chosen trade or profession.

DOL in Ostrich Mode

When looking at all of the above, and the Statement of Contention of the H&S fraternity published on the NIOCCSA website and other blogs, the various comments by H&S practitioners and professionals on social media and the rapidly growing opposition, the DOL seems to hide its head in the sand, pretending to be invisible.

NIOCCSA previously warned employers that they could face civil claims after the DOL failed to grant them exemption from the registration requirement in Construction regulation 8(6), and only days later, the DOL issued this exemption, calling it an “oversight”. This requirement now takes effect in August 2015.

This time around however, the DOL chose not to respond to the request submitted by NIOCCSA on 10 November 2014. This led to a formal appeal directly to the ministers of Labour, Public works and Public Enterprizes in December, to which no response has yet been received. NIOCCSA said it will wait for parliament to recover from their holiday blues before following up in the matter.

Organised Labour joins the debate

SARSU was established in 2014 by Jeremy Rundle, Monique Motloung and Ntuthuko Dumakude following a clear need for an organization dedicated solely to the Safety, Health, Environment and Quality practitioners. They were adamant that workers and in particular women, should organise themselves to unite and to protect workers’ rights.

SARSU is opposing the registration process and supports the Statement of Contention of the H&S practitioners.

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