Mine health and safety runs deep June 2018

By KENNETH COSTER AND CAMERON RAJOO, Published in Mining

It was surprising to see how quickly various people not only criticised but also condemned the management of a large mining house after the tragic accident in which seven persons died after 13 miners were trapped following seismic activity. This condemnation must be seen in context – the cause of the accident, which may be the result of natural phenomena, has yet to be determined.

This reaction stands in stark contrast to our experience of mining companies on issues of health and safety. In our view, clients bend over backwards to ensure that they operate as safely as is reasonably practicable. The cost of health and safety systems, including world class systems which are in place, are supplemented with an almost fanatical devotion to compliance. According to the statistics provided by the Department of Mineral Resources, in 2003 there were approximately 270 fatalities that resulted from mining accidents. By the end of October 2017, this number had decreased to 75 fatalities. We await the official figures from 2018. These numbers show that a concerted effort is being made by employers to strive towards the normative position of Zero Harm. The data compiled on mine fatalities per annum does not distinguish systems failures from accidents arising from behavioural conduct of individuals.

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For some time now mining companies have implemented health and safety protocols that even include their head offices. While it may appear that employers are going overboard, it is essential to produce a culture of health and safety throughout an organisation.

Mining companies are required to comply with the MHSA, as far as "reasonably practicable". What is actually meant by the term "reasonably practicable"? Reasonably practicable is defined in s102 of the MHSA as:

"practicable having regard to –

(a) the severity and the scope of the hazard or risks concerned;
(b) the state of knowledge reasonably available concerning that hazard or risk and of any means of removing or mitigating that hazard or risk; (c) the availability and suitability of means to remove or mitigate that hazard or risk; and
(d) the costs and the benefits of removing or mitigating that hazard or risk."

Based on the definition alone, the legislature must have taken full cognisance that mining, especially underground mining, is dangerous and expensive. This does not mean that health and safety campaigns such as Zero Harm should not be adopted as the cornerstones of health and safety culture, but rather it should be appreciated that this is a normative goal to strive for.

While the intentions of the Mine Health Safety Inspectorate may be commendable pursuant to their duties under the MHSA, the practical implications of the protocols often lead to widespread inefficiencies in the mining environment – specifically, the Inspectorate's protocol for investigating fatal and reportable accidents. Recently the Inspectorate has suspended certificates of competency of managerial employees when accidents occur. The employees are prevented from participating in any further health and safety decisions until the suspension is lifted. These suspensions may be ultra vires considering the MHSA's prescripts as to who is authorised to suspend or revoke a certificate of competency and do not follow the prescripts of natural justice as required by employment law. They are often counter-productive as managerial employees may have the best available expertise to implement the necessary corrective measures, especially in cases where an accident was caused by human error. While there are situations where suspensions of certificates may be warranted, in the absence of some prima facie evidence, the result of a suspension may be the alienation of management and labour, at the very time that trust should be regained and built on.

How should the relationship between the regulator, organised labour and industry be managed in the South African mining industry, which has for some time experienced what could be termed anni horribiles?

The answer does not lie solely with the mine owners. The Inspectorate must be adequately resourced and provided with the means to ensure that compliance is efficient. The duration of some section 54workstoppageinstructionsunderlinetherealeconomiccostofinefficient regulation.

Business is ready to work with the regulator and organised labour. Criticisms should not be made by parties unless they are in possession of all the facts – it is time that the mining industry worked together as a whole for the good of both the industry and the economy.

Coster is a Partner, Employment Health and Safety practice of, and Rajoo a Candidate Attorney with Webber Wentzel.

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