The Legal Framework for Health and Safety Training Providers
I would like to start with a simple disclaimer: I’m neither an attorney nor an accountant. Nor am I highly experienced in the legislation I refer to. My understanding is based on the opinions of those who are.
The question “Am I allowed to provide Health and Safety Training before receiving QCTO Accreditation or DEL Approval?” frequently arises from those wondering whether they are permitted to conduct Occupational Health and Safety training without being approved, accredited, verified, registered, certified, or as a formalized, recognized training provider.
In short, the answer is in almost all cases YES. However, in a few rare instances, the answer is simply, NO.
Constitutional Rights and Occupational Health and Safety
The following thoughts should encourage further research and debate:
Those familiar with the Constitution of South Africa will recognize that the Bill of Rights addresses:
- Freedom of trade, occupation, and profession
“Every citizen has the right to choose their trade, occupation, or profession freely. The practice of a trade, occupation, or profession may be regulated by law.”
So, one could rationally assume that unless prohibited or regulated by law, you may voluntarily and legitimately perform the services of an Occupational Health and Safety training provider for and on behalf of, or as an employer, in the fulfillment of their wide range of duties. These services must meet the requirements of the Consumer Protection Act [Act No. 68 of 2008] and the relevant OHS legislation.
Governing Legislation for Health and Safety Training
In South Africa, Occupational Health and Safety training is governed predominantly by the aging OHSA, Occupational Health and Safety Act [Act No. 85 of 1993] and various Regulations or the MHSA, Mines Health and Safety Act [Act No. 29 of 1996].
In particular, Sections 8 and 13 of the pre-constitution OHSA require that the employer provide Health and Safety training to their employees, to ensure they are familiar with the dangers, hazards, and risks in their workplaces.
To quote:
Section 8 General duties of employers to their employees: [extract]
- (1) Every employer shall provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees.
- (2) Without derogating from the generality of an employer’s duties under subsection (1), the matters to which those duties refer include in particular:
- (2) (d) establishing, as far as is reasonably practicable, what hazards to the health or safety of persons are attached to any work which is performed, any article or substance which is produced, processed, used, handled, stored or transported and any plant or machinery which is used in his business, and he shall, as far as is reasonably practicable, further establish what precautionary measures should be taken with respect to such work, article, substance, plant or machinery in order to protect the health and safety of persons, and he shall provide the necessary means to apply such precautionary measures;
- (2) (e) providing such information, instructions, training and supervision as may be necessary to ensure, as far as is reasonably practicable, the Health and Safety at work of his employees.
It is important to note the OHSA generally does not dictate WHO MAY facilitate training, but merely THAT IT MUST be presented. It can confidently be presumed that either the employer, a delegated employee, agent, or service provider may present the training on behalf of the employer.
The legislation rarely stipulates the qualifications of the trainer or facilitator.
It should also be noted that the legislators do not provide a distinction between the words information, instructions and training. This would be left up to the reader or court of law to interpret.
Section 13 Duty to inform
Without derogating from any specific duty imposed on an employer by this Act, every employer shall:
as far as is reasonably practicable, cause every employee to be made conversant with the hazards to his Health and Safety attached to any work which he has to perform, any article or substance which he has to produce, process, use, handle, store or transport and any plant or machinery which he is required or permitted to use, as well as with the precautionary measures which should be taken and observed· with, respect to those hazards.
Definition of converse
”Familiar with or knowledgeable about something”
To engage in conversation.
Synonyms for “conversant”
Abreast | Acquainted | Knowledgeable | Practiced | Proficient | Skilled | Versed
Broad Categories of Training and QCTO Qualifications
You may therefore legitimately provide information, instructions, training, and supervisory training. Training may fall in one or more of these categories:
[1] Life Skills Training provided to individuals who belong to community, sporting, youth groups, etc. and voluntarily receive training. Examples could include be non-regulated, non NQF credit bearing First Aid and Firefighting training. A Certificate of Attendance, Compliance or Participation can be issued as these First Aiders are not appointed in terms of the General Safety Regulation #3.
[2] Legal Compliance Training could include Non-Unit Standard aligned or non NQF credit bearing, Employer, Employee, Supervisory, Health and Safety Representative, HIRA, Investigation Skills, etc., training. They are a few hundred Health and Safety training topics that may address both the employee and employer’s needs
To appreciate the broad range of risk-based training that may require to be presented, download this Employee OHS Training Needs Analysis / Risk Analysis Guide.
[3] Unit Standard Aligned Credit Bearing Training presented by a formally accredited QCTO training provider, using a team comprising of a registered Facilitator and Assessor.
Statement of Results
Credit bearing training is only completed on the receipt of a SOR Statement of Results once the QCTO has conducted the formal verification of the training process. Following that a Certificate of Competency may be issued, but not before then.
When Does Legislation Require QCTO Accreditation?
As one scans through the Regulations you will discover reference to the broadly defined word “competency”. When the regulation requires that an individual be deemed competent, it refers to SAQA or the NQF Act [National Qualifications Framework Act [Act 67 of 2008]].
Examples of this can be found in the Asbestos Abatement Regs, {First Aid] General Safety Regs, Diving Regs, Hazardous Biological Agents Regs, Construction Regs, Ergonomics Regs, Driven Machinery Regs, etc., where accreditation and or approval is required.
Some situations may also require that the training provider be “approved” by the DEL [Department of Employment and Labour]. This applies to First Aid and Driven Machinery, etc., training.
Quandary Relating to expired Unit Standard Aligned Training
It would stand to reason that the above courses have in the past been linked to a SAQA Unit Standard, however this is not necessarily always the case.
In a few instances Regulations were promulgated without a corresponding Unit Standard [or the hope of a Unit Standard ever being published]. As of 30 June 2023, all legacy qualifications and Unit Standards expired.
While a Unit Standard existed for Ergonomics “Risk Assessor” training, a Unit Standard has never been available in the case of training of general employees. This challenge apparently also extends to other training. COVID 19, Construction Regulation Legal Compliance and Asbestos Abatement are probable examples.
Registered Occupational Qualifications
Extracted from https://www.qcto.org.za/registered-occupational-qualifications.html
The development of occupational standards and qualifications is one of the QCTO’s main priorities in supporting learning for the workplace.
To date less than 400 QCTO qualifications have been developed to replace the now defunct 11,000+ SAQA Unit Standards.
Negotiating Client Requirements for QCTO Accreditation and Qualifications
When negotiating with a client, it is important to clarify whether a suitable QCTO qualification exists, whether the client requires a Certificate of Competency or will accept a Certificate of Attendance, whether the client is satisfied to wait for a few months before receiving the Certificate of Competency following the SETA/QCTO verification cycle, whether the client requires the course content to be customized to address the learner’s Specific Risk Profile in terms of Section 8 of the OHSA. A significant training Needs Analysis should be done hand in hand with the employer.
What if the Client Insists on Accreditation?
They say, “the client is always right”, but not if that is contradictory to your Constitutional Rights. Play safe and always educate, negotiate, and communicate, in order to satisfy your client’s needs.
It is always advisable to ensure this understanding is included in your quotation and invoice.
See the proposed contractual Letter of Agreement in the INTRA™ Operations Manual. [Available only to INTRA™ Licensees.]
So, when the question arises from those wondering whether they are permitted to conduct Health and Safety training without being approved, accredited, verified, registered, certified or as a formalized, recognized training provider. In short, the answer is in almost all cases YES. However, in a few rare instances the answer is simply, NO.
Achieving QCTO Accreditation with INTRA’s Expertise
In summary, navigating the complexities of Occupational Health and Safety training and QCTO accreditation in South Africa can be challenging. That’s where INTRA comes in. With our comprehensive training programs and resources, we guide you through every step of the process—from understanding the legal landscape to achieving QCTO accreditation. Our goal is to empower both employers and training providers with the knowledge and tools they need to meet and exceed regulatory standards.
Visit our website at safetytraininglicense.com to explore how INTRA can be your trusted partner in achieving excellence in Occupational Health and Safety training.
