South Africa and the rest of the world have faced formidable challenges over the last two years, caused by the Covid-19 virus, and the various variants thereof. 

Law firm ENSAfrica mine and occupational health and safety executive Pieter Colyn says measures taken in the South African mining industry to deal with Covid-19 have been pursued in the context of employers’ obligations to ensure, as far as reasonably practicable, the health and safety of employees working at their operations.

“Employers in the South African mining industry are obligated to implement health and safety management systems to ensure compliance with legislative obligations, which seek to ensure the health and safety of employees. Employers are required to comply with provisions of the Mine Health and Safety Act (MHSA), the Mine Health and Safety Regulations, and the Minerals Act Regulations,” Colyn comments.  

Employees are required to protect their own health and safety, and the health and safety of fellow employees, and must withdraw from working areas which are considered dangerous.

Inspectors from the Department of Mineral Resources and Energy (DMRE) are responsible for monitoring and enforcing compliance with legislative obligations. 

ENSAfrica occupational health and safety executive Celeste Coles stresses that health and safety requirements are not static, and are adapted according to changing environments, technology and information.

The Covid-19 pandemic is an example of the ever-changing environment that role-players in the mining industry are confronted with, and they are required to implement systems that deal with the pandemic. 

Section 9(2) of the MHSA provides that an employer must prepare and implement a code of practice on any matter affecting the health or safety of any employees, and other persons, who may be directly affected by activities at the mine, if required by the Chief Inspector of Mines.

The Chief Inspector publishes guidelines on different aspects and directs employers regarding the subject matter, structure and content. Colyn argues that, as the document is prescriptive regarding the content, particulars, structure and listed requirements, it is more similar to a directive. 

In May 2020, a document entitled ‘Guideline for the Compilation of a Mandatory Code of Practice for the Mitigation and Management of Covid-19 Outbreak’ was published by the Chief Inspector.

“The guideline detailed a number of mandatory measures that an employer was required to implement to prevent the transmission of Covid-19 at its operations, the management thereof at its operations, and steps to be taken owing to the fact that full mining operations resumed in the sector after a mandatory lockdown period.

“An amplified guideline document was issued in August last year entitled ‘Guideline for the Compilation of a Mandatory Code of Practice for the Prevention, Mitigation and Management of Covid-19 Outbreak’.”

Both guidelines reiterate the long-standing cornerstone of sound mining practice – the adoption of risk management, Coles states.

Risk management requires an employer to identify hazards and assess risks associated with identified hazards and implement control measures to eliminate the risks, or minimise risks, provide for personal protective equipment (PPE) and institute a programme to monitor risks to which employees may be exposed.

The focal point of the guidelines relates to the identification of working environments where the risk of transmitting Covid-19 may be prevalent and to adopt required measures to manage these risks.  Provisions are made for sanitisation, the issuing of required PPE, the limitation of the number of persons in confined spaces, and additional measures to ensure that persons maintain a socially acceptable distance from each other. 

Coles reiterates that “Employers are required to keep up to date with developments to combat the spread of Covid-19 and take cognisance of other legislation and best practices for the management of the outbreak. Employers are required to apply the guideline in conjunction with a number of other documents, including guidelines developed by global entity the World Health Organisation, and the National Department of Health and the National Department of Employment and Labour.”

By following risk management principles and recording the risk management criteria used in reaching a decided course of action in respect of the aspects requiring consideration, an employer will demonstrate consideration of circumstances facing work places in a South African context to facilitate that reasonably practicable measures have been implemented. 

Such codes of practice help to ensure that education and training are provided to employees, that measures have been taken to minimise the risk of infection, and that other additional safeguards are put in place to ensure that employees safeguard their own health and safety and the health and safety of their employees. 

“With the introduction of vaccinations in South Africa, and the directive issued by the

Department of Employment and Labour in terms of which employers are required to conduct a risk assessment relating to mandatory vaccination programmes in their working places, the mining industry has demonstrated a willingness to assist in providing and assisting employees to secure immunisation,” comments Coles. 

“The measures adopted in the mining industry to address Covid-19 are a demonstration of a commitment to ensure the ongoing health and safety of employees. The mining industry is a forerunner in ensuring a system to manage the threat that Covid-19 may pose to the health and safety of employees. Its ability to move forward in a constructive fashion and in cooperation with employees and government departmental institutions must be commended,” Colyn concludes.