By Kate Collier, Partner, Kenneth Coster, Partner & Mbali Nkosi, Senior Associate from Webber Wentzel
Proposed amendments to the Mine Health and Safety Act place greater obligations on employers, which is to be welcomed in some respects, but other amendments are problematic and may be open to legal challenge.
The draft Mine Health and Safety Amendment Bill, 2022 (the Bill), gazetted on 14 June 2022, is currently open for public comment.
Written representations and comments on the draft proposed changes must be submitted to the Department of Mineral Resources and Energy (DMRE) by 29 July 2022.
In our view, the Bill proposes some good and regrettably some very onerous and unattractive amendments to the Mine Health and Safety Act, 1996 (MHSA).
Amendment to definition of Employee
A key concept in the MHSA is the broad definition of "employee" and the incorporation / extension of an employer's duties towards the health and safety of all persons working on the mine. The proposed amendments narrow the definition of employee, to be "any person who is employed by the employer or owner of a mine and who is working at a mine". This is a fundamental shift in the obligations of the employer towards contractor personnel, but this change seems not to have filtered through to other key provisions and may create more questions than certainty if the Bill remains in its current form.
Amendment to the definition of Mining Area
The MHSA does not confirm its scope of application (which is unfortunate) but general principles indicate that it would apply to, or within, a mining area (subject to exceptions). The proposed amendment to the definition of Mining Area is therefore significant - excluding operations where a mineral is used in a manufacturing or beneficiation process on land adjacent or non-adjacent to the mining right area and where operations incidental to mining are being undertaking by the employer.
The appointment of a Chief Executive Officer
The MHSA requires that that the "chief executive officer" (CEO) take reasonable steps to ensure that the employer complies with its obligations in terms of the MHSA. The CEO is a defined term and, currently, is determined through a factual assessment of the person that is responsible for the overall management and control of the business, or where the employer is a company, if another person who is member of the board is designated to fulfil the duties of the CEO.
The Bill introduces the requirement that a CEO must be appointed in writing by the employer, irrespective of whether the duties of the CEO are to be performed by the de facto CEO or a member of the company's board of directors. If the MHSA is amended as proposed, employers must ensure that irrespective of the CEO being responsible in terms of the MHSA by virtue of law, or where a member of the board has been designated that its board resolves to furnish such person with a written appointment letter and that such written appointment is then issued.
The Bill proposes an addition to section 6 of the MHSA to the effect that every employer must ensure that sufficient quantities of personal protective equipment (PPE) are provided for employees, but also that that PPE is suitable. Employees who are required to use it must be able to use it effectively for personal protection.
Suitability is determined in the Bill to be:
- size and fit of PPE;
- type of workplace hazards;
- nature of work to be undertaken; and
What your COP says, is law
Section 9 of the MHSA is amended in the Bill by the introduction of a new section 9(8). This proposed amendment reads:
"Every employer must comply with the requirements of the code of practice by such employer, in terms of subsection (2) and (3)."
Currently, the MHSA requires that an employer prepare and implement a Code of Practice (COP) in line with a guideline issued by Chief Inspector of Mines. The proposed amendment takes this obligation further to ensure that once implemented that there is compliance with the requirements of the drafted COP. This will require greater levels of care in assessing the reasonableness and practicality of measures listed in COPs and non-compliance with the requirements of a specific COP is no longer merely an "internal' or disciplinary matter.