Proposed changes to health and safety law may have unintended consequences

7th February 2014

By: Anine Kilian

Contributing Editor Online

  

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A top lawyer has warned that amendments proposed in the draft Mine Health and Safety Amendment Bill could result in huge financial repercussions for mining houses and possibly spark a pull-out from South Africa by foreign mining investors.

The Bill could also distract attention from the real and underlying causes of health- and safety-related incidents, thereby reducing the possibility of preventing similar incidents in future.

In an interview with Mining Weekly, ENSafrica mine and occupational health and safety director Willem le Roux says the proposed changes that could have “adverse and unintended consequences” include clauses that stipulate the maximum penalty to be imposed on those who contravene the Act and place more onerous training obligations on mining companies, as well as the definition of ‘owner’ throughout the Act.

While a maximum fine of R1-million may currently be imposed on a company for specified criminal contraventions of the Act, the draft Bill proposes increasing the fine to 10% of a company’s yearly turnover for the period during which it has failed to comply with the relevant statutory provisions.

Le Roux argues that such a fine would be excessive and that a court should not be restricted in exercising its discretion. He emphasises that the proposed maximum penalty applies to all contraventions of the Mine Health and Safety Act (MHSA), which means that the presiding judge or magistrate would have to regard all transgressions of the MHSA as being equally serious.

“This is, of course, not the case. Certain transgressions are more serious than others,” he says.
In terms of employers being obligated to train their staff, Le Roux says: “Section 10 of the Act currently requires an employer to, as far as is reasonably practicable, train employees to perform their work safely and without risk to their health. The employer must also ensure, as far as is reasonably practicable, that every employee becomes familiar with work-related hazards and risks, as well as the measures that need to be taken to address such hazards and risks.”

He points out that this provision is made more stringent in the draft Bill, as the employer is required to provide such training not only “as far as is reasonably practicable” but in all instances.
“The proposal to delete the requirement of reasonable practicability and to demand absolute compliance is too onerous. It also contravenes the International Labour Organisation’s Safety and Health in Mines Convention,” he states.

The proposed provision also requires all work-related training to be properly structured and assessable. Le Roux argues, however, that this requirement does not take into account informal job training, which is often best suited to mines’ training requirements.

Le Roux concurs that the definition of ‘owner’ in the MHSA needs amending – he believes that the attempt in the draft Bill is unsatisfactory, arguing that it will exacerbate difficulties which often arise.

The current definition identifies an employer, or owner, as being responsible for all activities and operations conducted independently by a contractor in the mining area of the employer. In such instances, employers have to apply to the Minister of Mineral Resources for exemption. Le Roux believes it is not ideal for mining companies to rely on exemptions in an industry where they are exposed to extensive and onerous obligations.

“It is important to reconsider and redraft the definition to exclude the owner from being responsible for independent operations performed in a mining area. The responsibility for health and safety in respect of such independent operations should be placed on the person performing them,” he comments.

Meanwhile, human rights lawyer Richard Spoor tells Mining Weekly that amendments to the Compensation for Occupational Injuries and Diseases Act (Coida) and the Occupational Diseases in Mines and Works Act (Odimwa) are necessary to ensure that mineworkers suffering from work-inflicted lung diseases are properly taken care of.

The Department of Health enforces Odimwa, while the Department of Labour enforces Coida, which, says Spoor, under- scores the widespread recognition that Odimwa is inadequate and inferior to Coida.
Coida provides compensation for mine- workers with a functional disability greater than 30%, including pensions and medical expenses, with the maximum pension under this law being equal to 75% of an employee’s earnings.

Spoor says that, in cases where a worker’s disability is permanent, which is almost always the case with lung disease, Coida offers a pension for life, which is periodically adjusted.

“However, Odimwa only allows for lump-sum benefits and only distinguishes between two levels of compensation. If a mineworker has a compensable disease in the ‘first degree’, which refers to a lung-function impairment of between 10% and 40%, he or she gets a one-off lump-sum benefit equal to R45 000,” details Spoor.

However, if an employee has a ‘second- degree’ lung disease, which refers to a lung-function impairment of between 40% and 100%, the maximum amount of compensation that an employee is eligible for is R105 000.

Spoor cites a Cabinet decision, taken in 2008, stipulating that the two laws should be integrated. However, nothing has happened in terms of the proposed merger because government and the mining industry cannot agree on who will be responsible for the payout of additional costs associated with improvements to the Odimwa scheme.

“The mining industry argues that it cannot be expected to pay that bill, as the law was created by government and government has provided for this legislation. That law cannot increase the amount of compensation and expect the mining industry to pay for the additional benefit, as it would be retrospective,” stresses Spoor.

He further notes that thousands of workers are suffering from lung diseases – such as tuberculosis and silicosis – with their compensation derived from a fund subsidised by levies paid by their former employer.

Meanwhile, the Global Health Justice Partnership (GHJP), a joint initiative of Yale Law School and Yale School of Public Health, released a report last month exploring possible solutions for the compensation of mineworkers who have contracted occupational lung diseases.

The report critically examines how other countries worldwide have addressed their obligations to compensate workers, specifically mineworkers who have contracted occupational diseases, thereby trying to inform policymakers and stakeholders trying to reform South Africa’s system.

The report highlights South Africa’s faulty compensation system, citing it as “harmful” to mineworkers and their families, who are meant to be protected by the system.

One of the major problems highlighted by the report is the “separate and unequal treatment” of mineworkers suffering from occupational lung disease under industry- specific compensation law, compared with the treatment of workers in other sectors.

he report also highlights the underfunding of the South Africa’s mineworkers’ compensation system, which, by conservative estimates, is more than R600-million below the level required to cover current liabilities.

Other challenges detailed in the report are difficulties faced in diagnosing mineworkers, owing to inadequate access to medical personnel and facilities; the difficulties claimants face when filing claims, including a lack of employment documentation; claimants’ distance from the centralised authority that must certify diagnosis and approve compensation; and a backlog of cases presented to that authority, which can lead to delays of four or more years.

Further, the report finds that giving effect to the claimants’ right to compensation requires effort on several fronts and the involvement of several entities, including the South African government, mining companies, labour unions, medical professionals and human rights advocates.

“Based on our review of policies and experiences in other countries, including the US, Germany, Canada, China, Australia, India, the UK, Indonesia and Ghana, we find that reform of South Africa’s compensation law and its full and appro- priate application should be the principal avenues for change,” says Yale Law School doctorate candidate Rose Carmen Goldberg.

She states that, in the short term, some obstacles could be overcome or mitigated through administrative efforts, such as forming a network of mineworkers’ advocates who can assist claimants with the application process.

Goldberg adds that, in the longer term, improving compensation funding mechanisms and raising benefit levels will likely require multistage legislative reform.

She further comments that a better compensation system can serve as a key component in the broader project of providing health justice for some of South Africa’s most vulnerable workers and their families.

“Our report shows that it is possible to build and maintain just compensation systems in a wide variety of circumstances worldwide. South Africa is no exception,” she concludes.

Edited by Creamer Media Reporter

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