Is a trade union entitled to inspect my business for Covid-19 readiness?

As more and more employers get ready to return to work as lockdown restrictions ease, many are being approached by trade union officials insisting that they disclose to them their workplace readiness plans. Some even demand that they be allowed to inspect the employer’s premises in order to assess whether the appropriate hygiene and social distancing protocols have been put in place. There are several regulations which pertain to making information and other plans available to employees – and by extension, their representative trade unions:

DISASTER MANAGEMENT ACT, 2002 REGULATIONS ISSUED IN TERMS OF SECTION 27(2) OF THE DISASTER MANAGEMENT ACT, 2002:

Regulation 16

“Movement of People

(6) All industries, businesses, entities, both private and in the public sector, which are permitted to operate during Alert Level 4, must

(b) develop a plan for the phased in return of their employees to the workplace, prior to reopening the workplace for business, which plan must correspond with Annexure E and be retained for inspection and contain the following information:

  • which employees are permitted to work;
  • what the plans for the phased -in return of their employees to the workplace are;
  • what health protocols are in place to protect employees from COVID-19; and
  • the details of the COVID -19 compliance officer

COVID-19 OCCUPATIONAL HEALTH AND SAFETY MEASURES IN WORKPLACES COVID-19 (C19 OHS), 2020

Regulation 16

“Administrative Measures:

16.Every employer must establish the following administrative measures:

16.1 It must undertake a risk assessment to give effect to the minimum measures required by this Directive taking into account the specific circumstances of the workplace;

16.2 If the employer employs more than 500 employees, that employer must submit a record of its risk assessment together with a written policy concerning the protection of the health and safety of its employees from COVID-19 as contemplated in section 7(1) of OHSA to:

16.2.1 Its health and safety committee established in terms of section 19 of OHSA; and

16.2.2 The Department of Employment and Labour.

16.3 It must notify all workers of the contents of this Directive and the manner in which it intends to implement it.

Guided by the provisions set out above, an employer is under a clear obligation to undertake a risk assessment and implement a plan based on this assessment. Furthermore, the regulations have been drafted in a manner which implies that employers ought to be very open and honest with regard to the sharing of information – both with regard to general information being made to employees regarding COVID-19 but also in respect of the specific plans being put in place to prevent the spread of the virus in the workplace.

However, this ‘information sharing’ obligation on the employer’s part does not extend so far as to entitle trade unions to consultation with the employer regarding the content of plans or policies or require that an agreement be reached with the trade unions prior to returning to work.

Businesses should foster sound industrial relations and consider providing the trade union with the information as it has requested, whilst at the same time making it very clear that the contents of any COVID-19 plan or policy and the return to work is not subject to consultation with them or their approval.

For assistance with return to work risk assessments, plans or related issues, contact us at gordon@gordonangus.co.za.