37.2 Agreement South Africa
The rules define a client as anyone for whom construction work is done. For a contractor who does not work in the construction industry or who does not have the expertise and experience required for a construction project, compliance with these obligations may not be practical. In addition, the text of the regulations states that these obligations should not be “delegated” to a designated “primary contractor” or a designated “contractor.” Sub-regulations 5 (6) and (7) of the regulations provide for the designation in writing of a competent person acting on behalf of the adjudicating entity as an agent. However, clients would be advised to check whether a written appointment and the terms of an underlying warrant contract are sufficient to protect themselves from possible liability that could result from an OHASA breach. In general, an employer can avoid liability if it can prove that the worker acted without authorization and outside the jurisdiction and that the employer has taken all reasonable steps to prevent the conduct in question. In accordance with section 37, paragraph 2, of oHASA, this section also applies to an “agent” of an employer or user (the “agent” is defined as “agent” in section 1 oHASA). However, article 37, paragraph 2 of OHASA provides that an employer can evade responsibility for an agent`s conduct by entering into a written agreement on ohASA`s compliance procedures and procedures. An agreement with the representative should include, among other things, the following issues: failure to reach an agreement with a representative in accordance with Article 37, paragraph 2 of OHASA may give rise to possible liability. Ensuring a clear and unequivocal agreement in this regard will provide a higher level of security and a means by which the parties can resolve their relationships during the construction project. Given the client`s potential liability for the behaviour of his representative, it would be wise to enter into a similar agreement to regulate the relationship between the client and the agent.
In cases where the client does not have the expertise and experience to carry out a construction project, such an agreement would be essential to protect the interests of the contractor. In the construction sector, there is a practice in which an agreement, under Article 37, paragraph 2, of OHASA, is reached between the “employer” and a “contractor” (who would also be an “employer” for the purposes of OHASA) when the contractor`s workers work in a workplace.