BUILD­ING TRUST

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW -

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

Pic­ture: iS­TOCK

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