Photo Album by Msizi Nyalungu - National Department of Health
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REGULATING & ENFORCEMENT
PROVISIONS UNDER MINE AND
Photo Album HEALTH ACT (Sections 54, 55,
55(d))
by Msizi Nyalungu Dr Lindiwe Ndelu
Introduction Hygiene Statutory Returns
REGION AIRBORNE NOISE HEAT COLD STRESS
2015 2016 2015 2016 2015 2016 2015 2016
WC
69 83 61 67 19 29 73 79
NC
TABLE593.2.1(a) COMPLIANCE
89 REPORTING
56 85 27 51 43 74
FS
42 61 38 49 19 23 31 38
EC
36 32 33 32 25 21 18 27
KZN
64 71 59 69 21 39 41 56
MP
140 116 135 110 55 64 75 60
LP
64 57 59 54 13 31 36 40
GP
97 114 92 97 35 73 67 92
NW(K)
122 126 99 88 31 78 71 90
NW(R)
127 114 125 114 48 63 107 94
TOTAL
820 863 757 765 293 472 562 650
Introduction…cont.
100
90
80
70
60
% Heg A
50
% Heg B
40 % Heg C
30
20
10
0
Gold Chrome Coal Copper Iron Ore PGM Diamonds Manganese Other Total RSA
FIGURE 3.2.1.1.2(a): PERCENTAGE EXPOSURE TO NOISE PER
EXPOSURE CLASSIFICATION BAND PER COMMODITY IN 2016
100
90
80
)
70
60
% Heg A
50
% Heg B
40 % Heg C
30
20
10
0
Gold Chrome Coal Copper Iron Ore PGM Diamonds Manganese Other Total RSA
FIGURE: 3.2.1.1.2(b): PERCENTAGE EXPOSURE TO NOISE PER
EXPOSURE CLASSIFICATION BAND PER REGION IN 2016
100
90
80
70
60
% Heg A
50
% Heg B
% Heg C
40
30
20
10
0
WC NC FS EC KZN MP LP GP NW(K) NW( R) Total RSAFIGURE: 3.2.1.1.3(a): PERCENTAGE EXPOSURE TO THERMAL STRESS/HEAT
PER CLASSIFICATION BAND PER COMMODITY IN 2016
100
90
80
70
60
% Heg A
50 % Heg B
% Heg C
40
% Heg D
30
20
10
0
Gold Chrome Coal Copper Iron Ore PGM Diamonds Manganese Other Total RSAFIGURE: 3.2.1.1.3(c): PERCENTAGE EXPOSURE TO THERMAL STRESS/COLD
PER EXPOSURE CLASSIFICATION BAND PER COMMODITY IN 2015
120
100
80
% Heg A
60
% Heg B
% Heg C
40
20
0
Gold Chrome Coal Copper Iron Ore PGM Diamonds Manganese Other Total RSATable 3.2.2.1(a): Annual Medical Reports (AMRs) per region and by commodity: 2015 and 2016
Graph: 3.2.2.1 (b): Total employees and medical surveillance reported: 2015 and 2016
Table 3.2.2.1 (b): Occupational diseases reported from the Annual Medical
Reports (AMRs) per region: 2015 and 2016
2015 2016 2015 2016 2015 2016 2015 2016 2015 2016 2015 2016 2015 2016 2015 2016
Region % change
Sil Sil PTB PTB Sil+TB Sil+TB NIHL NIHL CWP CWP Asb Asb Other Other Total Total
EC 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0%
FS 295 311 499 502 28 19 116 118 0 0 2 0 10 71 950 1021 7%
GR 204 112 999 735 17 2 176 184 0 0 1 0 87 54 1484 1087 -27%
KZN 5 2 43 21 0 0 16 5 1 0 0 0 0 0 65 28 -57%
LP 1 1 94 75 0 0 148 87 4 1 4 8 1 7 252 179 -29%
MP 48 30 275 254 3 5 187 139 48 57 3 2 70 53 634 540 -15%
NC 3 0 114 56 0 4 274 29 0 0 4 5 10 14 405 108 -73%
NW (K) 97 103 133 156 19 8 110 37 0 0 0 0 108 113 467 417 -11%
NW (R) 178 73 1607 769 0 0 452 355 0 0 0 2 17 25 2254 1224 -46%
WC 4 3 9 12 2 0 14 12 0 0 0 0 0 1 29 28 -3%
TOTAL 835 635 3773 2580 69 38 1493 966 53 58 14 17 303 338 6540 4632 -29%Graph: 3.2.2.1 (e): Occupational diseases reported from Gold mines: 2015 and 2016
revious year.
Measures to monitor & reduce incidence of Occ Lung Diseases
• Standardised procedure for collection and management of statutory reports data.
• Continuous review of regional profile & follow up on identified priority mines.
Key areas
• Collaborate with region & engage with Head of Health, OMPs, H & S reps
at mines identified with high incidence of occupational lung diseases.
Key areas • DMR OH presentation of occupational lung disease trend analysis.
• Mine’s presentation of strategy.
• Discussions & engagements on presented mine’s strategy, interventions
Key areas and way forward.Measures to monitor & reduce incidence of Occ Lung Diseases
• Health and safety policy.
Focus areas • Training.
• Methodological standards for radiology.
• Screening methodology (spirometry / lung function testing).
Focus areas
• Medical surveillance (initial, periodic & exit).
Focus areas • Investigation of reported cases & statutory reporting.Reflection on existing measures
• MHSA.
Key areas • Guidelines on Mandatory COPs.
• Guidance Notes.
• Audit tools.
Key areas
• OH improvement strategy.
• Tripartite stakeholder engagements (RTFs, OH Dialogue, etc).
Key areasIntroduction • Employers are primarily responsible for providing safe and healthy workplaces • MHSI (Inspectorate) regulates and promotes occupational health and safety at mines by administering the Mine Health and Safety Act, 1996 (Act No. 29 of 1996), as amended from time to time (MHSA) • The primary objective of the MHSA is to ensure that mineral resources development in South African mines is carried out in a manner that is healthy and safe to employees and the public
• The enforcement procedure provides guidance for Inspectors on the enforcement measures used by the MHSI to enforce the legislation.
Procedure on enforcement Enforcement decisions are made and aims to achieve the following:- • Appropriate and timeous enforcement interventions • Consistency in the enforcement of the MHSA by regional offices of the Inspectorate; and • A structured framework for decisions concerning the levels of enforcement
Principles of Enforcement The following principles apply when deciding on the measures to be adopted to ensure compliance with the provisions of the MHSA:- • Objective: Enforcement action must achieve clear outcomes and be based on reliable evidence; • Proportionality and responsiveness: Enforcement action must be appropriate, responsive, timely and the level of action must commensurate with the risk and potential impact; • Transparency: Enforcement measures must be transparent to enable stakeholders to understand what constitute non-compliance with the provisions of MHSA, as well as their obligations;
Principles of Enforcement
• Consistency, impartiality and non-discriminatory: Enforcement action must
be fair, impartial, consistent and equitable
• Targeting: Regulatory measures must be directed primarily at those whose
activities generate considerable risks or serious harm to health and safety;
• Due process: The principles of administrative justice must be observed and
enforcement must be carried out within the powers and processes;
• Accountability: The MHSI is accountable to Govt, employers, employees and
the public for its actions; and
• Policy compatibility: Enforcement must be compatible with and carried out
within applicable policies.Figure 1: Enforcement Pyramid
EE
LICENCLLIS
EIGHT/PERMIT
MINING
PROSECUTION
SUSPENSION OF
CERT.
ADMIN FINE
NOTICE IN TERMS OF
SECTION 54 OR 55
WITHDRAWAL OF EXEMPTION,
PERMISSION OR APPROVAL.
INFORMATION AND EDUCATIONInformation and Education • Letters or directives to employers and suppliers; • Guidelines for mandatory COP and guidance notes; • Formal or informal meetings or workshops with all stakeholders; • Discussions within the tripartite structures; • Reviewing, modifying or upholding a previous instruction or directive; and • Newsletters and News Flashes.
Exemption, Permission or Approval
• The Minister may, in terms of Section 79 of the Mine Health and Safety Act, 1996, as
amended; exempt the employer of a mine from any or all the provisions of the MHSA, if
satisfied that the employer has consulted appropriately;
• The Minister may amend or withdraw a certificate of exemption at any time;
• The PIoM may grant exemption from any provision of any Regulation under the MHSA
and may withdraw such exemption if considered necessary in the interest of health &
safety.Withdrawal of Exemption, Permission or Approval
An inspector may after conducting an inspection, audit, or investigation at a mine, recommend
to the PlOM that an exemption, permission or approval from any regulation under the MHSA
be amended, suspended, or withdrawn.
• Failure to comply with terms and conditions of the exemption, permission or approval
• Repetitive and substantiated complaints relevant to the exemption, permission or approval
by mine employees or the public
• Dangerous occurrences, accidents or ill-health incidents relating to the exemption;
permission or approvalWithdrawal of Exemption, Permission or Approval
An inspector may after conducting an inspection, audit, or investigation at a mine,
recommend to the PlOM that an exemption, permission or approval from any regulation
under the MHSA be amended, suspended, or withdrawn.
• Failure to comply with terms and conditions of the exemption, permission or approval
• Repetitive and substantiated complaints relevant to the exemption, permission or
approval by mine employees or the public
• Dangerous occurrences, accidents or ill-health incidents relating to the exemption;
permission or approvalWithdrawal of Exemption, Permission or Approval cont...
• Changes in the legislation of relevance to the exemption, permission or approval;
• Changes in the available technology of relevance to the exemption, permission or
approval;
• Changes in the ownership of a mine of relevance to the exemption, permission or
approval;
• Abuse of the exemption, permission or approval.Section 54: Instructions
If an inspector has reason to believe that any occurrence, practice or condition at a mine
endangers or may endanger the health or safety of any person at the mine, the inspector
may give any instruction necessary to protect the health or safety of person(s) at the mine,
including but not limited to an instruction that:
• Operations at the mine or part of the mine be halted.
• The performance of any act or practice at the mine or a part of the mine be suspended
or halted, and may place conditions on the performance of that act or practice
The employer must take the steps set out in the instruction, within the specified period, to
rectify the occurrence, practice or condition.Section 54: Instructions cont...
The purpose of halting operations at a mine or part of a mine should be to allow time for the
employer to:
• Identify and analyse the root causes of any significant risks
• Determine and implement appropriate measures to protect employees
• Audit other working places for similar irregularities
• Implement health and safety management system to pro-actively identify and rectify non-
compliances
• Identify system failures
• Investigate the reasons for system failure
• Implement an action plan to prevent further recurrence of system failures.Section 54: Instructions cont... All affected persons , other than those who are required to assist in taking steps set out in the instruction (under the direct supervision of a member of management), be moved to safety. Any instruction issued that operations at a mine or part of a mine be halted must either be confirmed, varied, or set aside by the Chief Inspector of Mines, or his/her delegate, as soon as practicable. In the event where the employer is expected to make representations to the PIOM or his delegate regarding the uplifting of any statutory instruction, the PIOM or his/her delegate must at all times be available to attend to such representations
Examples of Gross Negligence ▪ A manager instructed a night shift to go underground to the top section even after fire was detected at the bottom section. Employees working in the top section were later exposed to harmful smoke which led to four workers being killed ▪ An engineer gave an instruction that a cage carrying an employee to be lowered down to a flooded position of a shaft. Later on the employee drowned and died whilst inside the cage. ▪ A supervisor instructed four employees to unblock an orepass whilst in the discharging point. Few minutes later a mud rush occurred and four employees were overwhelmed by mud and died instantly. ▪ Lack of compliance with some inspector instructions have lead to loss of life including several FOG fatalities.
Examples of Gross Negligence ▪ A manager takes a decision for blasting to take place whilst 60 workers were underground which could have resulted in a major disaster. ▪ Management allows for workers to be conveyed in a shaft with a unstable shaft barrel. The shaft had to be stopped for more than four months to make it safe. ▪ Inspectors continue to reveal mines being worked without proper or no secondary outlets. This is of great concern as about 3000 were trapped underground during 2007 for almost 24 hours as a result of a lack of a secondary outlet. Also, 33 miners were trapped for 69 days in Chile.
Examples of Gross Negligence ▪ A manager takes a decision for blasting to take place whilst 60 workers were underground which could have resulted in a major disaster. ▪ Management allows for workers to be conveyed in a shaft with a unstable shaft barrel. The shaft had to be stopped for more than four months to make it safe. ▪ Inspectors continue to reveal mines being worked without proper or no secondary outlets. This is of great concern as about 3000 were trapped underground during 2007 for almost 24 hours as a result of a lack of a secondary outlet. Also, 33 miners were trapped for 69 days in Chile.
Recommend and impose Admin Fine (Sections 55A & 55B)
• An inspector may make a recommendation in writing to the PIOM that a fine be imposed
on an employer who has failed to comply with any provision contemplated in Section
91(1B).
• The PIOM, after considering the recommendation and any representations by the
employer may disregard the recommendation or impose a fine or refer the matter to the
Prosecuting Authority.
• The maximum fine that can be imposed per contravention in terms of Table 2 of
Schedule 8 of the MHSA, may not exceed an amount of R1 000 000.Factors to be considered before recommending a fine
• Level of risk to which employees are exposed and/or
• Steps taken by the employer to eliminate; control; minimize the risk posed by any
hazard; and/or
• Training and supervision of any employees associated with the non-compliance; and/or
• Employers’ health and safety risk profile; and/or
• Employers’ compliance record; and/or
• General neglect, or willful non compliance by the employer.Prosecution Prosecution may be recommended to the Director of Public Prosecution if the Inspectorate is satisfied that there is sufficient admissible and reliable evidence that an offence has been committed. Any person convicted of an offence in terms of MHSA may be sentenced to a fine or to imprisonment as may be prescribed. The maximum term of imprisonment for any person who, by a negligent act or by negligent omission, causes serious injury or serious illness to a person at a mine is 3 years (Section 86)
Suspension and Cancellation of Competency Certificates An inspector may after conducting an inspection, audit, investigation or inquiry at a mine, recommend to the Principal Inspector or request the Principal Inspector to recommend to the CIoM to suspend or cancel certain certificates of competency. When deciding whether to suspend or cancel a certificate of competency, the CIoM or PIoM will consider: • The seriousness of the transgression against the magnitude of the contravention; • Failure to comply with an instruction; • Previous history of non-compliance by the holder of such certificate
Accountability The Mine Health and Safety Inspectorate (Chief Inspector, Deputy Chief Inspector(s), Principal Inspectors, Senior Inspectors, and Inspectors) is accountable to the public for its actions. This means that inspectors must have policies and procedures against which they can measure themselves. A mechanism that is effective and easily accessible must be in place for dealing with comments and complaints arising from enforcements processes. The policies and procedures for dealing with comments and handling complaints; describe a complaints procedure and explain the right of appeal as indicated in the MHSA in case of statutory instructions.
Suspension or Cancellation of Mining Rights In terms of the Minerals and Petroleum Resources Development Act, 2002 (MPRDA), the Minister may suspend or cancel a mining right or permit if the holder thereof breaches any material terms and conditions of such right or permit. The terms and conditions of a mining right or permit include compliance with the relevant provisions of the MHSA. This enforcement measure is taken as a last resort after all the above enforcement measures have been instituted with no improvement on the part of the employer.
Appeals Any person adversely affected by a decision of an Inspector, except a decision contemplated in section 55B, may appeal against that decision to the Chief Inspector of Mines. A detailed process of appeal is covered in section 57 of the MHSA. Any person who is adversely affected by a decision of the Chief Inspector of Mines, either in terms of section 57(3) or in the exercise of any power under the MHSA, may appeal against the decision to the Labour Court. A detailed process of appeal is covered in section 58 of the MHSA.
Illegal mining. • Stakeholder Forums, established by the Minister, continue to implement measures to combat the illegal mining activities in the respective provinces. • Collaborate with the relevant law enforcement agencies through the National Coordination Strategic Management Team (NCSMT) to ensure that there is a national effort to combat illegal activities.
Due Process Section 3(2) of Promotion of Administrative Justice Act (PAJA) state that a fair administrative process requires an administrator to give: • Adequate notice and purpose of the proposed administrative action; • A reasonable opportunity to make representations; • A clear statement of the administrative action; • Adequate notice of any right of review or internal appeal, where applicable, and • Adequate notice of the right to request reasons.
Principles of Enforcement The following principles apply when deciding on the measures to be adopted to ensure compliance with the provisions of the MHSA:- • Objective: Enforcement action must achieve clear outcomes and be based on reliable evidence; • Proportionality and responsiveness: Enforcement action must be appropriate, responsive, timely and the level of action must commensurate with the risk and potential impact; • Transparency: Enforcement measures must be transparent to enable stakeholders to understand what constitute non-compliance with the provisions of MHSA, as well as their obligations; • Consistency, impartiality and non-discriminatory: Enforcement action must be fair, impartial, consistent and equitable
Completed Guidelines • Risk based Fatique • Fire Prevention • Thermal Stress • Cyanide • Prevention of Flammable Gas and Coal Dust Explosions in Collieries. • Prevention of Flammable Gas and Coal Dust Explosions in Other mines • TB Guidance Note
• OHS Data ▪ Occupational diseases are mainly attributable to occupational exposures on mines, and the burden of occupational diseases remains a concern. ▪ The need for quality data on occupational disease reporting by all operating mines is critical to develop meaningful trends and continually drive effective & synchronised strategies and INTERVENTIONS
OSH DAY 2017 The ILO’s campaign for 2017 World Day for Safety & Health at Work focused on the critical need for countries to improve their capacity to collect and utilize reliable OSH data.
All mine workers have a right to return from work
unharmed everyday”…
I• A collective effort is required to prevent harm on mine workers.
• Zero Harm is possible in the industry.
• It is only through a continued collaboration and adequately
responding to the changing landscape that Zero Harm can be
achieved in the mining sector.
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