By Pieter Colyn Head: Mine and Occupational Health and Safety and Warren Hendricks Executive: Mine and Occupational Health and Safety at ENS
The Mine Health and Safety Act, 1996 (the MHSA) in South Africa requires that the employer provide a working environment that is safe, as far as reasonably practicable, and is without risk to the health of its employees. It is therefore incumbent on the employer to implement a holistic health and safety management system, which includes the identification of hazards and assessment of risks, as well as take steps to mitigate or eliminate any hazards which employees may be exposed to at the workplace.
This is a dynamic process and requires a continuous, rather than stagnant, approach to risk management. In balancing the demands of the South African mining regulatory environment and the introduction of innovative technology for use at a mine, both employer and Original Equipment Manufacturers (OEMs) would be best placed to be mindful that the introduction of automated or semi-artificial intelligence systems at a mine and resultant negation of intervention by human resources, does not result in unanticipated oversight of potential risks, latent human error and liability associated with the implementation, operation, repair, maintenance of such systems.
In an ideal world, new technology is introduced gradually, as result of the natural evolution of industry developments and knowledge over time. However, in recent times, the need to advance has arrived more swiftly. By way of example, the recent regulatory requirements in the Mine Health and Safety Regulations (MHS Regulations), which mandate that trackless mobile machinery (TMM) at a mine must have automated means to avoid a collision, without human intervention, namely the so-called prevent potential collision system (PPCS), was promulgated with immediate effect. As such, employers in South Africa (in conjunction with OEMs) would have to be the forerunners in the investigation, design, installation, testing, certification and utilisation of such a system.
Largely, and for the purpose of the MHSA, the obligation to implement health and safety systems at a mine are placed on the employer. Practically, however, the employer will rely on suppliers, importers and/or OEMs to design, supply and manufacture products and equipment for use at a mine, as well as to play a significant role in the practical assessment of new products and equipment in particular mining environments. Each unique mining environment may yield different results.
Of relevance in this context, is section 21 of the MHSA which prescribes specific statutory health and safety obligations for OEMs in relation to their products and equipment used at a mine. Implicit in these obligations is the necessity to identify hazards and assess risks associated with the use of their products and equipment at a mine.
For OEMs, the importance of ensuring compliance with the statutory obligations in terms of the MHSA, should be primary to avoid potential contraventions of the provisions of the MHSA, but also to avoid unnecessary harm in relation to their industry standing of providing reputable products and equipment. Section 21(1)(a) of the MHSA, specifically provides that: “(1) Any person who-
(a) designs, manufactures, repairs, imports or supplies any article for use at a mine must ensure, as far as reasonably practicable-
(i) that the article is safe and without risk to health and safety when used properly; and
(ii) that it complies with all the requirements in terms of this Act”
Section 21(1)(a) of the MHSA, is applicable to “any article”, which term “article” is not defined in the MHSA, and may encompass a number of products and equipment. It is implicit by the term “without risk”, that one of these measures must include the conduct of a comprehensive risk assessment in relation to the contemplated or intended use of the product and equipment at a mine.
Although there is no particular provision in section 21 of the MHSA as to the manner in which the risk assessment should be conducted, this should be informed by the health and safety criterion “reasonably practicable” and the requirements of section 11 of the MHSA. Section 21(2) of the MHSA should also be considered, wherein in certain circumstances OEMs, and the like, may be relieved of their statutory obligations by means of a written undertaking entered into between the OEM and the person(s) willing to provide such an undertaking.
Generally, and practically, a product and equipment risk assessment should deal with, amongst others:
- a comprehensive risk rating table;
- identification of, and assessment of the hazards and risks in relation to the contemplated or intended use of the article at a mine. This would imply that a practical assessment or evaluation must be conducted by the OEM (in conjunction with the particular employer) in relation to the use of the article at a mine. This to ensure that appropriate and accurate risks and hazards are identified, assessed and may be dealt with accordingly through elimination or mitigation. For instance, a generic risk assessment in an OEM manual may not be deemed “reasonably practicable”, depending on the particular circumstances;
- the measures taken by the OEM and the recommended measures to be taken by the end user of the product or equipment, to mitigate, control or eliminate the hazards and risks should be recorded in the risk assessment;
- consideration must be given to the medium of communication of the risk assessment to the end user;
- the OEM should advise, and/or provide, the employer in relation to appropriate training to be provided to the employees at the mine, on the proper use of the products or equipment in a practical mining environment; and
- consideration should be given in relation to the manner that the risk assessment may be updated, from time to time, as circumstances change or further technological advancements are made.
Ensuring that a comprehensive risk assessment is prepared will provide a higher degree of protection of the health and safety of employees at work. Failure or neglect in this regard, may inevitably lead to potential and unwanted criminal or civil liability, as well as reputational damage in the mining industry.
