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South Africa: OHS Act section 37(2)

Section 37(2) agreement (mandatary agreement)

A section 37(2) agreement is a written agreement between an employer, such as a client or principal contractor, and its mandatary, such as a contractor, setting out the arrangements and procedures to ensure the contractor complies with the Occupational Health and Safety Act. Without it, the employer can be held liable for offences committed by the contractor on its behalf.

Section 37(1) makes an employer answerable for its employees' offences under the Act unless it proves it took all reasonable steps. Section 37(2) applies the same to mandataries, such as contractors, unless the parties have agreed in writing on the arrangements to ensure the contractor complies. That written agreement is the section 37(2) agreement.

SafetyFileBuilder files the signed agreement in the safety file, links it to the client and project, and can draft one from the client's requirements for both parties to check and sign.

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By the SafetyFileBuilder team · Checked against the law on

What the Occupational Health and Safety Act says

“The provisions of subsection (1) shall mutatis mutandis apply in the case of a mandatary of any employer or user, except if the parties have agreed in writing to the arrangements and procedures between them to ensure compliance by the mandatary with the provisions of this Act.”
Occupational Health and Safety Act 85 of 1993, section 37(2)

What a section 37(2) agreement usually covers

  • The parties, the contract and the site or work it applies to
  • That the contractor is an employer in its own right and will comply with the Act and its regulations
  • The client's health and safety specification and site rules the contractor must follow
  • Appointments, competence, PPE, medicals and training of the contractor's people
  • Incident reporting, inspections and the right to stop unsafe work
  • Signatures of authorised people for both parties, with the date

Every client is different: the AI works from your client's own list.

Also called

37(2) agreement · mandatary agreement · section 37 2 agreement · OHS Act 37.2

Your responsibility

SafetyFileBuilder helps you compile and keep your documents. It does not give legal or safety advice: check the requirements that apply where you work, and a competent person checks and signs what the AI drafts.

How to put one in place

  1. Use the client's own section 37(2) template if it has one; most large clients do.
  2. Check that the scope, site and contract in the agreement match your work.
  3. Have it signed by someone authorised to bind your company, often the CEO or a 16.2 appointee.
  4. File the signed agreement in the safety file and keep it for the length of the contract.

How SafetyFileBuilder helps

  1. Start a projectName the job. The AI asks where the work is and who the client is.
  2. Upload the client's requirementsTheir index, checklist or contractor standard. The AI sets up the headings to match.
  3. Add your documentsCertificates, medicals, licences, insurance, policies. The AI reads them, files each under the right heading and notes expiry dates.
  4. Let the AI draft the restScope of work, method statements and risk assessments, written for this job, for a competent person to check and sign.
  5. Hand it in, keep it currentDownload the finished file in the client's order. You're told before anything runs out.

No subscription: start with 100 free AI credits; your company, people, certificates and files are free to keep, and you buy more AI credits from US$5 and pay only for what the AI does. Available in 18 languages.

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Questions

Is a section 37(2) agreement compulsory?

The Act does not order the parties to sign one, but without a written agreement the employer stays liable under section 37(1) for the contractor's acts or omissions, so clients almost always require it.

What is a mandatary?

Someone who works for another under an agreement, such as a contractor, as opposed to an employee.

Is one agreement per contract or per project?

It depends on the client: some sign one per contract, others per project or site. Follow the client's requirement.

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