Women in mining: Caught between a rock and a hard place

The plight of women working in the mining sector is well documented.[1] Some of the biggest challenges are sexual harassment and violence, a lack of underground toilet and changing facilities, certain physiological limitations, ill-fitting uniforms and unsuitable equipment. These problems persist, despite the fact that, in terms of the 2004 Mining Charter, women have to make up 10% of a mine’s workforce.

The precarious position of pregnant women working in the mining industry was highlighted in a recent case before the Labour Court, Manyetsa v New Kleinfontein Gold Mine (Pty) Ltd.[2] Tshegofatso Manyetsa worked for the mine as an underground electrician since November 2009. From March 2010 onwards, she was employed as a plant electrician in the mine’s Metallurgical Department. Her area of work is considered hazardous due to exposure to cyanide, ionising radiation, hazardous gases, etc. In May 2014, Ms Manyetsa advised her supervisor that she was pregnant. The mine’s Maternity Leave and Women in Risk Areas Policy prohibited pregnant women from working in high risk areas. In accordance with the policy, Ms Manyetsa had to be moved from her area of work and the company had to make every effort to find suitable, alternative risk-free work for her. Despite their efforts, they could not find a suitable alternative position for her at the same terms and conditions of her current position. Therefore, in June 2014 she was placed on unpaid leave for the remaining five months of her pregnancy.

Ms Manyetsa approached the Labour Court for a declaratory order that the mining company’s conduct constituted unfair discrimination on the grounds of her pregnancy, as contemplated in section 6(1) of the Employment Equity Act 55 of 1998. She sought compensation for damages, as well as actual monetary loss in terms of section 50(2) of the said Act.

The Court had to determine whether the company’s abovementioned policy contravened the provisions of section 26(2) of the Basic Conditions of Employment Act 75 of 1997 (“BCEA”). Ms Manyetsa argued that the BCEA guaranteed her suitable, alternative employment at the same terms and conditions of her current position. However, a close reading of the BCEA reveals that the company is only obliged to provide such employment ‘if it is practicable for the employer to do so’. Therefore, the company is required to make a genuine effort to find suitable alternative employment for the pregnant employee, but the BCEA does not go as far as guaranteeing the availability of such employment. Furthermore, the company is not required to create such a position where one does not exist.

Reluctantly, the Court, therefore, had to dismiss Ms Manyetsa’s claim, as the company’s policy did not contravene the provisions of the BCEA. The Court took great pains to state that inadequacies in current legislation are the cause for the precarious position in which Ms Manyetsa found herself. In aiming to strike a balance between a pregnant employee’s right against unfair discrimination and an employer’s duty to ensure safe working conditions for that employee, the legislation fails to cater for situations where the employer is unable to provide suitable alternative employment.

The International Labour Organisation’s Maternity Protection Recommendation R191 of 2000 covers situations left unaddressed by the lacuna in South African law. Article 6(2) of Recommendation provides that if the employer is unable to eliminate the risk to the pregnant employee or provide her with suitable alternative employment, she must receive paid leave. Unfortunately, South Africa has not yet ratified this Recommendation or the related Maternity Protection Convention C183 of 2000.

As a result of the lacuna in our law, pregnant mine workers face potential economic hardship. Quoting from Mashava v Cuzen & Woods Attorneys,[3] the Court in the present case confirmed that the purpose of the legislation should be ‘to ensure as far as possible that female employees are not disadvantaged, as they traditionally have been, by virtue of them being women and the child-bearing members of the human race’.

Written by Louie van Schalkwyk