How does South Africa’s Mine Health and Safety Regulatory Instrument fare as an enabler in the promotion of training of mineworkers on Mine Health and Safety?

Introduction

In the previous blog piece, the International Labour Organization’s Article 6 of the Convention on Safety and Health in Mines 176 of 1995 (‘Convention 176’) was discussed. The blog assessed how South Africa performs in giving effect to Convention 176’s requirement to manage risks associated with mining operations. What emerged was that South Africa’s performance is well aligned to the Convention 176 requirements for the management of risks associated with mining operations. The Mine Health and Safety Act 29 of 1996 (herein, ‘MHSA’) makes provision for rigorous risk identification measures at the originating source. The MHSA also provides for risk management and mitigating measures through the mandatory provisioning of personal protective equipment and standard operating procedure training to all mine workers exposed to mining operation associated risks.

In this blog piece the focus is on how South Africa performs in giving effect to Article 10 of Convention 176. Article 10 of the Convention 176 places an obligation on employers (i.e., mining companies) to ensure that mineworkers are adequately trained, supervised and located while working underground. In the unfortunate event of accidents, employers have a positive statutory duty to investigate, remediate and prepare an accident report. Convention 176 is however, silent on what specific procedures must ensue once such accident report is consolidated. It leaves the articulation of such a process to sovereign lawmakers, to enact laws and regulations that outline the process to follow once the report is consolidated.

South Africa’s regulatory response regarding Mining Operations’ Health and Safety Measures

Section 10(2) of the MHSA requires the employer to ensure that every employee is adequately trained in respect of mine safety and health precautions. The reasonableness standard associated with the discharge of this obligation is that of ‘reasonable practicability’. As discussed in the previous blog, the criterion for assessing ‘reasonable practicability’ considers among others, the severity and scope of the specified hazard or risk; the state of knowledge reasonably made available concerning such hazard or risk, as well as any means of removing or mitigating such risk.  Section 10(2) further outlines four instances in which the employer must ensure that employees are adequately trained on health and safety standards related to the particular mine where they operate.

First, employers must ensure that employees are adequately trained to deal with risks associated with their personal health and safety. Second, employers are obliged to effect measures aimed at eliminating, controlling and minimizing risks associated with employees’ health and safety. Third, employers must ensure that employees are adequately trained in the mine’s bespoke operational procedures necessary to carry-out their work in a safe manner. Four, employers must ensure that employees are adequately trained in the mine’s bespoke emergency procedures. This obligation differs from the first obligation enunciated in Section 10(2)(a) of the MHSA, which serves as a general obligation to ensure that employees in the mines have the necessary skills to undertake their work safely. This fourth obligation as enunciated in Section 10(2)(d) of the MHSA, obligates the employer to ensure that employees in the mines are particularly well-versed in the specific mine’s emergency procedures.

To give effect to the aforementioned requirements of the MHSA, the mining industry employs training programmes geared at capacitating mine employees, with the necessary skills to undertake underground mining operations. Corporates such as DCG Africa Skills offer “accredited competency based” training programmes accommodating mine workers at all levels. Hervé Kisula of DCG Africa Skills, in an interview with Trent Roebeck of Mining Weekly, made the following remarks:

“Entry-level workers gain foundational skills to secure employment and perform tasks safely; experienced artisans are able to upskill, remain compliant and take on more technical responsibilities; and supervisors are developed to manage teams and ensure operational continuity and performance…”

Such training of mineworkers across all competency levels, helps capacitate them to deal with risks associated with their work, and thus carry-out their work in a safe manner.

Section 10(3) of the MHSA outlines the periodic requirements for employee training. The section obligates employers to ensure that employees undergo the abovementioned training at four distinct intervals:

1. Before they commence work.
2. At intervals during the subsistence of their employment contract, as determined by the employer.
3. Before significant changes are introduced to the mine methodology, layout, procedures and machinery.
4. Before significant changes are made to the nature of the employee’s work.

The employer is further obligated to investigate accidents and thereafter report them. The Mine Health and Safety Regulations (herein, ‘MHS Regulations’) identifies three classes of accidents, namely; fatal accidents, accidents resulting in mine workers being incapacitated for four to fourteen days, as well as accidents resulting in mine workers being incapacitated for more than fourteen days.

• Fatal accidents are to be reported promptly to the Principal Inspector of Mines via Forms 10 and 11 of the MHS Regulations.
• Accidents resulting in mineworkers being incapacitated for four to fourteen days, are to be promptly reported to the Principal Inspector of Mines via Forms 10 and 11 of the MHS Regulations.
• Accidents resulting in mine workers being incapacitated for more than fourteen days, are to be reported monthly to the Principal Inspector of Mines using Form 12 of the MHS Regulations.

Section 91(1B)(b) of the MHSA provides that failure to comply with any regulation of the MHSA will attract a fine or imprisonment as may be prescribed. This signifies the legislature’s commitment to ensure strict compliance with enacted mine health and safety laws.

In ensuring that the ethos of the MHSA prevails [i.e., achieving health and safety in mines], the legislation further places concomitant obligations that complement those of the employer, upon mine employees, to ensure compliance with  Convention 176 health and safety requirements. This is important in achieving the objective of ensuring health and safety in the mines. Section 22 of the MHSA in giving effect to the object of Section 10, outlines six responsibilities assigned to mine employees insofar as health and safety is concerned.

First, employees are expected to take ‘reasonable care’ to protect their [own] safety. Second, employees are further expected to take ‘reasonable care’ in protecting the health and safety of other persons, where such employees’ actions (or inaction) may affect such other persons. Third, employees are expected to take care of protective personal equipment, as well as any other safety equipment serving the purpose of ensuring health and safety for employees. Fourth, employees are expected to report any incidents or hazards that could serve as a risk to the health and safety of other employees and themselves. Fifth, employees are expected to comply and co-operate with any person entrusted with duties and responsibilities in accordance with the MHSA. Lastly, employees are further expected to comply with prescribed health and safety measures.

The extension of health and safety responsibilities to mine employees gives efficacy to the obligation placed on employers to train employees on health and safety procedures. The responsibilities placed on mine employees is useful to ensure compliance with the health and safety safeguards put in place by the employer, as failure to comply with these responsibilities amounts to a statutory offence [as enumerated under Section 91 of the MHSA].

Key Takeaways

South Africa’s current mine health and safety principal regulatory instrument, the MHSA, serves as an enabler in the promotion of employee health and safety in the mining sector. The regulatory requirement for mine health and safety training places obligations on employers to provide health and safety training to mine employees, before and after commencing their employment at the mines. The MHSA makes provision for the reporting of accidents using designated accident report forms. The MHSA also places an obligation on mine employees to adhere to the health and safety safeguards provided by the employer. This collective responsibility of ensuring health and safety in the mines, shared between the employer and employees is one of the key features of Convention 176.

The MHSA further outlines a distinction between accidents that bear an immediate or a short-term effect on the employees and those having a long-term effect. Accidents bearing a short-term effect must be reported using Forms 10 and 11 of the MHS Regulations, whereas those bearing a long-term effect must be reported using Form 12 of the MHS Regulations.