section 37(2) of the act is concluded between the so-called “employer” and a “contractor” (who would also be an “employer” for the purposes of the act) in circumstances where the employees of the contractor perform work at a workplace. By means of such an agreement, the contractor as “mandatory” of the employer agrees that it shall be responsible for the duties and obligations in terms of the act, and the regulations binding in terms thereof, as far as such duties and obligations relate to the work that is to be performed at the workplace. The employer may therefore escape liability, provided that it has agreed in writing to the arrangements and procedures with the contractor to ensure compliance by the contractor with the provisions of the act.
Given the potential liability that may be imputed to the client in relation to the conduct of its agent, it would be prudent that a similar agreement is concluded to regulate the relationship between the client and the agent. In circumstances where the client may not possess the expertise and experience required for a con- struction work project, such an agreement would be essential to protect the interests of the client.
What should be included in an agreement contemplated in terms of section 37 of the act? An agreement with the agent should, among others, deal with the following:
The health and safety obligations of the agent as the client, as provided in the regulations. The agreement should also provide for the specific and/or other administrative duties the client may require the agent to fulfil for the construction work project.
The agreement should set out the obligations of the agent in relation to the principal contractor and any other contractors at the workplace.
The agreement should contain an acknowledgment by the agent that it possesses the necessary qualifications, competency, expertise and experience in relation to the construction work project to be undertaken. In addition, the agent should acknowledge its proficiency with the provisions of the act and the regulations binding in terms thereof.
The agreement should provide for the interaction between, and reporting by, the agent (at periods stipulated in the agreement and as required) to the client on any health and safety issues relating to the construction work project. This is important to ensure that the client has systems, such as monthly or ad hoc meetings, external audits and inspections, in place to follow up on the performance of the mandate by the agent.
To the extent that it is not dealt with in the underlying agreement of mandate, the agreement should provide for appropriate indemnities or warranties by the agent in relation to compliance with the provisions of the act and the regulations binding in terms thereof.
Failure or neglect on the part of the client to conclude an agreement with an agent as contemplated in terms of section 37(2) of the act may lead to potential liability for the client. Ensuring that an unambiguous agreement is prepared will provide a higher degree of certainty and a means by which the parties may regulate their relationship for the duration of the construction work project.
An employer may escape liability for the conduct of a mandatory by concluding a written agreement