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Department of Mineral & Energy (DME) News. |
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DA submits PAIA application for release of mining safety report.
The Citizen of 19 November 2008. 'The Democratic Alliance
on Tuesday submitted an application in terms of the Promotion of Access to
Information Act (PAIA) to compel the presidency to release the mining safety
audit report to the public. The audit was
commissioned by former president Thabo Mbeki last year in December following
a series of deaths and accidents across the country’s mines, DA spokesman
Hendrik Schmidt said. The minerals and energy
department completed the audit in August promising it would “be released
soon”. More than three months after the department completed the audit, it
had still not been made public, he said. President
Kgalema Motlanthe had been sitting on the report for almost a month since
receiving it from the department. The public
deserved to know the exact causes of mine deaths and what steps were being
taken to make working conditions in South Africa’s mines less dangerous,
Schmidt said. “Mining is the heart of our country’s
economy. But it is driven by the hard work and the willingness of thousands
of mineworkers to put their lives at risk every day.”
The scale of mine deaths due too poor compliance with
mining safety regulations posed a serious threat to the viability of this
key sector and caused untold human suffering. “This
year more than 145 mineworkers have already died on duty as a result of
unsafe working conditions.” Government had promised
to tackle the causes of mine deaths for many years, yet it was now
squandering an opportunity that would enable it to do so, he said.
Schmidt also urged Parliament to use this last session of
the year to speedily consider the Mine Health and Safety Amendment Bill,
which provided for more strenuous mining health and safety requirements.
Chamber warns of possible dire consequences of amendments to health and
safety law. Mining News of 12 November 2008. 'Chamber
of Mines CE Sipho Nkosi has warned that, if “draconian proposals” in the
Mine Health and Safety Amendment Bill – which would empower mines inspectors
to close down a mining site following a fatal or serious nonfatal accident –
were implemented, there would be damaging consequences for the industry.
The Bill has been approved by the National Assembly and is
now before the National Council of Provinces. The
Amendment Bill, if it became law, would make it obligatory for an inspector
of mines to close down a mining site where a death, serious injury or
threatening illness occurred, and there was no provision in the Bill, even
when the site had been made safe, for this prohibition to be lifted, said
Nkosi. This, according to him, indicated that
closure would exist in perpetuity. Further, if
inspectors found operational sites where there was potential for mining
activity to cause death, injury or damage to health, work may be prohibited
at all such sites. “With these prohibitions set to
endure in perpetuity, there is good reason to believe that, unless the
proposals are amended, an extensive range of mining activity in South Africa
will [be] permanently prohibited,” said Nkosi at the Chamber’s annual
general meeting, held in Johannesburg last week.
Another proposed provision, he said, created a new offence for an employer,
a CEO, a manager, an agent or an employee who would have contravened, or
failed to comply with, the new Act, thereby causing death, serious injury or
illness. A fine of R3-million or a period of imprisonment not exceeding five
years, or both, would be imposed on persons found guilty of offences falling
in this category. Nkosi said that, should these
provisions be implemented, one of the consequences would be the loss of
highly skilled managerial and supervisory employees. “Many will choose to
export their skills to somewhere else in the world where they are not faced
with the threat of imprisonment and inflationary fines for events over which
they have no realistic control,” he added. He
stressed that the proposed legislation, which, many claimed, was based on
similar legislation in the UK, did not take into consideration that
companies in the UK only faced criminal charges if there was a gross breach
of care by management, and that, in several respects, it went far beyond
what should “reasonably be expected and will have major unintended
consequences in respect of its impact on the viability of the industry and
the willingness of skilled staff to work in the industry”.
Nkosi said that legal advice taken by the Chamber from
senior counsel indicated that these new provisions were unconstitutional.
While the Chamber was not opposed to legal provisions aimed
at preventing serious or repeated transgressions of safety requirements, and
the mining industry needed to accelerate its march towards zero harm, the
Chamber had difficulty with the legislation which, it believed, failed to
comply with the Constitution. “It is the function of
government to make the law and there is universal acceptance that while
statutory provisions are imperative to ensure that business is conducted in
a legitimate and responsible manner, it must also avoid a level of punitive
ferocity with the potentially unintended consequence of effectively
discouraging economic activity that delivers tangible benefits to a country
and its people,” he concluded.
More
Minerals and Energy rapped for not finding
inspectors. Cape Times.
'THE Department of Minerals and Energy has been rapped over the knuckles by
MPs for spending millions of rands advertising posts and then failing to
find crucially needed safety inspectors for mines'.
Compliance is not optional. Cape Times.
'One of the most important risks facing an organization today is compliance
risk, which is the risk of not meeting the requirements or non conformance
with laws., rules regulations, prescribed practices, internal policies, and
procedures, or ethical standards. According to ANSA Jordaan, chief executive
of risk management company Exclaim! Compliance, “the volume of regulatory,
legislative, and corporate requirements being instituted is rapidly
increasing each year. There is currently a substantial number of Acts that
have application to all South African companies and organizations, even
small and medium-sized companies. These including the :
The Companies Act (New
Companies Act to be released soon);
Occupational Health and Safety Act;
Competition Act;
Broad-based black
economic empowerment regulations;
Financial Services
Intermediary Services Act (FAIS Act);
National Credit Act and
various taxation statutes
What happens if the
organization is not compliant? Jordaan explains: Fines and penalties could
be incurred. For example, the Prevention of Organised Crime Act includes a
penalty of a fine of R1 billion or imprisonment for a period of up to life.
‘Civil action for damages for breach of statutory duty are also a
possibility, for example in the case of the Occupational Health and Safety
Act. In most cases this legislation provides for a fine or other penalty
when someone fails to perform a statutory duty but the courts allow a person
injured by a breach of a statutory duty to seek compensation for their
injury Then there is reputational damage to the organization. The challenge
all organizations face is the management of their overall compliance within
a trusted and secure framework.
New legislation to enforce health and safety rules in mines.
Busrep. 'A maximum fine of R1 million and a
maximum term in prison of five years can be imposed according to new
legislation guarding mine health and safety that was tabled in parliament
last week. In terms of the memorandum of the Mine
Health and Safety Amendment Bill, tabled by minerals and energy minister
Buyelwa Sonjica, the ordering of compliance with the Mine Health and Safety
Act would form the core business of the mine health and safety inspectorate.
The chief inspector of mines would have wide statutory powers and inspectors
would be able to enter any mine at any time, conduct inspections, question
persons and examine documents. If dissatisfied with
conditions at the mines, inspectors could order compliance, give
instructions for improvement within a specified time, conduct further
investigations and recommend prosecution when an offence has been committed.
The amendment bill seeks to amend the act to review the
enforcement provisions, tighten offences and strengthen penalties.
Last week Thabo Gazi, the deputy director-general and chief
inspector of mines with the department of minerals and energy, said the
standard of adherence with safety was worrying. He noted that President
Thabo Mbeki had ordered a safety audit of 333 mines, which was expected to
be handed in by the middle of next month. Deaths in mining accidents rose 11
percent during 2006 to 221 incidents, the minerals and energy committee
heard. Gazi told MPs that the intention of the legislation was not to punish
transgressors, but to prevent accidents. The tendency was for mining firms
to keep reasons for accidents confidential to protect themselves from
prosecution. This legislation required that confidential accident reports be
made public. Gazi reported that the average age of safety experts on mines
was moving higher. In terms of the legislation,
money received by the chief inspector of mines in payment of fines must be
paid into a fund established and controlled by the chief inspector and used
for the promotion of health and safety in the mining industry.
Click
here for a copy of the Bill.
Mine closures must be lawful - specialist attorney.
Mining News. By Willem le Roux. Le Roux says that the
health and safety standards which apply to the mining industry in South
Africa are generally of a high standard. Accident prevention does, however,
remain a complicated matter in that accidents are caused very often by a
large number of factors, some of which may not be proved at an accident
investigation and inquiry.
Although it should be the objective of all employers to
achieve a zero fatality rate, one must bear in mind that many legitimate
economic activities involve some risk of harm. Le Roux points out that a
changing environment is associated with increased risk, such as the
activities in mining, fisheries, forestry, transport, building and
construction. Le Roux comments that the Department
of Minerals and Energy (DME) has resorted to extreme measures in its
attempts to reduce accidents. The mining industry has experienced a very
large number of mine closures brought about by instructions of the DME to
close mining
operations subsequent to an accident.
Click here for full article.
I agree.
Click here for my newsletter about
'trigger happy'
Prohibition Notices or
mine closures.
DME and DoL have been
acting like cowboys and employers must use the courts to make a stand!
Click here 'Employer's Rights- make
a Stand'. Rustenburg Platinum Mines took DME on and won in
Rustenburg Platinum Mines Ltd v Chief
Inspector of Mines & another (T).
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Department of Labour (DoL) News.
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Probe into collapsed Roodepoort building begins. SABC of
19 November 2008. 'Structural engineers are expected to
begin their assessment today of the building which collapsed in Little Falls
in Roodepoort, west of Johannesburg last week.Three workers were killed and
three others injured in Thursday's collapse of a partially completed
building. The Labour Department says that it has a
security company that is ensuring that no activity is taking place at the
site until investigations into the collapse of the three-storey building are
completed. “We are also investigating the actual
operation itself, the business, the contractor that is building that site to
ensure that all their plans, their permission, their certificates everything
is in order and we should have a clearer picture by Tuesday or Wednesday in
the week,” says department's spokesperson, Kenny Fick.
How companies cheat workers. IOL of 19 November 2008. 'A
growing number of large employers are resorting to outsourcing in order to
bypass labour legislation, a Wits University report commissioned by the
Department of Labour has revealed. The report also
paints a damning picture of big mining and manufacturing companies' tendency
of contracting service providers who exploit their workers in order to
maintain their profits. Speaking at the release of the report into the
labour market on Tuesday, Wits Professor Edward Webster said there was a
growing informalisation of the labour market in the country.
Webster said the department needed to intervene in the
practices of large manufacturing companies in the supply chain. "What we are
seeing is a growing tendency by the large employers to outsource services
because then they do not have to pay out proper wages and benefits to
employees. "Workers are employed on contract by the
service providers and they find themselves at the bottom of the economy," he
said. Webster said the notion about two economies
existing was a misrepresentation of what was really happening.
"The so-called two economies are directly related. This
report is presented through the notion that South Africa is divided into two
economies; a first economy of modern establishments and decent work, and a
second economy consisting of a range of precarious and vulnerable forms of
work and survival activities. This is misleading. It is wrong to see the
informal sector merely as a set of survival activities performed by the poor
and destitute," he said. Webster said this was also
demonstrated in the liquor business, where a large SA Breweries truck that
delivers stock to an unregistered tavern "is directly involved with the
informal sector and was making money from the business".
Substandard products entering SA on the rise, NRCS warns.
Eng News of 28 October 2008. 'An increasing number of
products failing to comply with South African standards are entering the
local market, the National Regulator for Compulsory Specifications (NRCS)
warned on Monday. “With globalisation, there are a
lot of products that are entering South Africa, which do not comply,” said
Moses Moeletsi, acting CEO of the NRCS, formerly known as the regulatory
division of the South African Bureau of Standards.
This comes as electrical distribution and automation company Schneider
Electric South Africa recalled its snapper adaptors and multiplugs bearing
the Clipsal brand. The company stated that the NRCS
has determined that the snapper adaptor and multiplugs were noncompliant
with the South African National Standard’s specification.
Moeletsi said that when a product or commodity did not
conform to compulsory certification imposed on those products, the board
would take a decision to recall the products under Section 15 of the NRCS
Act. However, he said the recall of the snapper
products were not done under this regulation, but was done on a voluntary
basis by Schneider. “If we are satisfied with the recall, then we would not
recommend that the board should invoke a Section 15.”
Meanwhile, Moeletsi said that no specific country was
responsible for the rise in substandard imports entering the South African
market. “We do not have a specific country which we
can target. Almost all countries, including Europe, America, and China bring
substandard products into the country,” he said in an interview.
Moeletsi added that once products have been regulated, with the assistance
of the SABS, it was easier to control imports of substandard products. “What
we can do is make sure that the import of those products are ceased. If they
are not ceased, then we will request the particular organisation to keep
them in a specified place. Once this is done, we will seek to issue a
directive that states the products should be physically destroyed or must be
returned to the country of origin.” He added that
the destruction or return of the products to the country of origin was
usually enough incentive for companies not to become repeat offenders. “We
believe that if we destroy or return to the country of origin, most of the
companies suffer in terms of the profit the would have made.”
Another recourse, Moeletsi added, was for the NRCS to take
the issue to court. “In terms of the law, we can also seek to redress to the
court because it is a criminal offence to bring products into the country
that do not comply with the standards. A jail term could be issued.”
An industry standard was set when industry participants, or
the NRCS request the involvement of the SABS. The industry participants and
SABS would then combine efforts to come up with an industry standard.
Moeletsi said that from NRCS’s perspective, the standard should include
regulatory aspects, and once it has been published, it will be recommended
that the Minister of Trade and Industry make the standard compulsory.
If these substandard
articles are unsafe and non-compliant
section 22 of the OHS Act could
apply and the marketers of such articles held liable. If they are used at
work, section
10 of the OHS Act could apply even to the importers. RHL.
Workers disunited by 'thuggery'. By Terry Bell. Busrep of 6
October 2008. 'Leading unions fragmented by drive for
positions, patronage Political manipulation and a drive for positions, power
and patronage are threatening the stability of at least two of the country's
major trade unions.
More
Isn't it about time the
unions also take workplace safety more seriously. They use every incident as a
propaganda tool and fail to embrace the mechanisms in the OHS & MHS Acts to
assist employers in creating a safe and healthy working environment. It seems as
if their only contribution to safety is to bleat after every incident while
their time is consumed by political agendas! RHL.
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Coming not that soon....The National Occupational Health &
Safety Draft Bill, 2005. |
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What is the objective of this Bill?
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The objective of this proposed
Act is to prevent death, illness or injury being caused to persons in
workplaces, working activities and the use of plant or machinery.
In order to achieve this objective, the proposed Act –
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requires employers and other persons who conduct
businesses or undertakings to identify, assess and prevent or minimise
risks to health and safety;
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requires workers and self-employed persons to work in a
healthy and safe manner;
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enables employees to participate in health and safety
matters in the workplace through health and safety representatives and
health and safety committees;
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establishes a National Health and Safety Authority to
promote, monitor and enforce compliance with the proposed Act;
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provides for inspectors to be appointed to inspect
workplaces and to conduct investigations and inquiries to improve health
and safety;
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promotes a culture of health and safety; promotes
training in health and safety; promotes research on health and safety;
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encourages co-operation and consultation on health and
safety between the State, the Authority, employers, employees and their
respective representatives;
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gives effect to the Republic’s obligations in terms of
public international law in respect of health and safety.
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DoL
website.
'Website questions will be answered within three
days, the home page will be updated daily, new information will be found on
the home page, annual reports, legislation and ad hoc reports will be
available for downloading.' Dr Vanguard Mkosana. (former DG DoL).
More |
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Has much
changed
since the various OHS
Commissions of Inquiry, in particular the
Benjamin and Greef
Committee of Inquiry of 1997, delivered an indictment of the OHS
authorities in SA?
Click here
and judge for
yourself.
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Strict penalties proposed for
corporate homicide.
Legislation ignores human
nature. Mining News. 'Proposed new legislation
that merges the Occupational Health and Safety Act No. 85 of 1993 (OHSA)
and the Mine Health and Safety Act No. 29 of 1996 (MHSA) threatens to
impose draconian penalties on corporations and frighten away foreign
investment in the country, warns pre-eminent mining and health and
safety lawyer Willem le Roux. During 2005 the Department of Labour
drafted the National Occupational Health and Safety Bill (NOHSB), which
has now been released to the public. If passed, this bill will establish
corporate homicide as a criminal offence in South Africa. It also says
that corporate homicide is not a substitute for culpable homicide, which
means that corporations (companies and close corporations) may be
charged with both. The NOHSB will also merge the OHSA and the MHSA,
which along with the Criminal Procedure Act of 1977 currently define the
extent to which corporations can be held liable for their employee's
actions. "In terms of the South African common law, corporations cannot
be held criminally liable.
Click here
for more.
Click
here for the UK Corporate Manslaughter and
Corporate Homicide Act 2007.
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Section 35 of the COID Act 'protects'
employers against civil suits by employees. Can you waive this immunity? And why
would you as an employer?
It happened in
Jiya v Durban Roodepoort Deep
Ltd [1999] (W) but in this case
it pertained to the
Occupational Diseases in Mines and Works Act 78 of 1993.
Currently the Witwatersrand High Court has reserved judgment in a matter which
could have a huge impact upon compensation involving occupational diseases.
More.
Abrahams / Indigo Cosmetics (Pty) Ltd[2008] (NBCCI).
Section 8 of the OHS Act requires
employers to provide employees with a safety and healthy working environment.
This includes protecting employees against aggressive and abusive behaviour by a
fellow employee.
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Boer v Momo Developments CC & another [2005] (T) |
Mr. Boer (plaintiff) sued
Momo Developments CC and another individual (defendants)
for an amount arising from their failure to register him as an employee in
terms of the Compensation for
Occupational Injury and Diseases Act 130 of 1993. Upon sustaining a work
injury, the plaintiff alleged that he would have been entitled to the amount
claimed but for the defendants' failure.
An exception was raised to the particulars of claim, to
the effect that they did not disclose a cause of action in that the
plaintiff was not entitled to seek the declaratory order which he did. This
in turn hinged on whether the plaintiff was a creditor of the defendants.
Held that
sections 22(1) and
35(1)
of the Act were decisive of this matter. The provisions therein stated that
an employee will not have a claim for damages from the employer in
circumstances such as those in casu. Even where an employer has failed to
register the employee in terms of the Act, the employee is not prevented
from claiming compensation from the Commissioner. The employer will be
subject to fine, but cannot be sued by the employee. The exceptions were
accordingly upheld.
Click here for full Law Report.
Mr Makra a section manager testified on behalf of the respondent. Mr
Moholi was charged for failing to follow safety instruction on 24 October
2006. Mr Gojo was charged for a similar offence. There was an explosion on
24 October 2006. As a consequence one employee sustained severe injuries to
the extent that his arm had to be amputated. A total of seven employees were manning the area where the safety
standards were compromised. Two employees on plating duties were not guilty
of any wrong doing. So was the trainee operator. One employee was
reprimanded while three employees including the applicants were dismissed. The manufacturing process is characterised by the spillage of powder. The
spillage may because of friction and impact that may lead to an explosion.
It is a safety requirement that there should be wet mats at all stages of
the process to damp the spillage as an explosive deterrent. An added safety
measure is that after every two runs, the operators must stop the process to
clean the rails. The applicants were trained in the safety regulations and
were competent operators.
The applicants' undoing on the day was that they were working at an
unsafe speed and without adhering to safety standards. The investigations
indicated that the applicants failed to stop the machines for cleaning
purposes but instead carried on running production. The tipper operator namely, Mr Moholi disregarded the rule against mixing
spilled powder with fresh powder aimed at preventing impact and friction
which had the potential of causing an explosion. This was a serious safety
breach that endangered the life of the applicant and other employees. The
applicant had admitted during the investigation that he failed to decant the
spillage as contemplated in the safety standard. The applicant (Mr Moholi) was in a position of authority to the extent
that he was authorised to call a halt on the proceedings where breach of
safety regulation existed. The procedure regarding the investigation of the
explosion that took place is that permission to investigate must be granted
prior to conducting an investigation. The permission is granted by the chief
inspector of the Department of Labour. He commenced the investigation soon
after permission was granted. The investigations were followed by the
disciplinary hearings against the applicants. The cleaning standard was set out in documents which were common
knowledge to all concerned employees. Investigations have established that
no other person was guilty of flaunting the safety rules except the
applicants. The company disciplinary record reveals that stringent
disciplinary action was taken in all cases of non-adherence to safety
procedures. The applicants were given written notice of their dismissal
following ratification of the dismissal by the business team management.
Click here for full Law Report.
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SM & CWU obo Mpulo / Plexicor (Pty) Ltd[2007] (MEIBC) |
Safety regulations required that the applicant wear earmuffs at all
times. In addition her employer had a rule that it was an offence to
negligently not wear earmuffs. The applicant had received a warning and a
final written warning for failing to wear her earmuffs. When she was
confronted with her failure she hurled abusive language at her employer's
safety manager. Following a disciplinary enquiry she was found guilty of
negligence in failing to wear her earmuffs, and of impertinent and rude
conduct. She was dismissed. In this arbitration hearing she denied that she
was not wearing her earmuffs when she was given a final warning. She
provided explanation of why she had temporarily without earmuffs on other
occasions. She contended the dismissal had not been an appropriate sanction,
given her many years of service. Held that the issues were whether the
applicant had broken a workplace rule which was valid and reasonable; and
whether dismissal had been an appropriate sanction. In view of the
inconsistencies in the evidence provided by the applicant and her witness it
appeared to be common cause that the applicant had neglected to wear
earmuffs, or to wear them properly. She had threatened the safety manager.
She had been correctly convicted of these two charges. Held that a
commissioner should not interfere with an employer's sanction unless it was
warranted, and even if the commissioner disagrees with the sanction. In the
absence of compelling argument in mitigation, the sanction of dismissal was
upheld. There had been no evidence of procedural unfairness. The application
was dismissed.
Click here for full Law Report.
Whilst in the employ of the
bank, an employee sustained
injury to her back in a motor vehicle accident. That necessitated the bank's
creating an alternative position for her as she could no longer perform her
previous duties. However, some 2 years later, the bank dismissed her
for incapacity which resulted in high absenteeism and low productivity.
She referred a dispute to arbitration, where her dismissal was
found to be unfair, and 6 months' salary was awarded. The present application
was for the review of the arbitration award. Held that
she was to be regarded as a person with a disability.
She therefore was constitutionally guaranteed the rights to equality, dignity
and fairness. The court examined the steps taken by the bank in dealing with the
third respondent's problem, and then set out the law regarding dismissal due to
incapacity. On a conspectus of the evidence, the court could find no grounds to
interfere with the arbitrator's finding. The application for review was thus
dismissed.
Joy Mining Machinery Division of Harnischfeger (SA) (Pty) Ltd v NUMSA &
others [2002] 9453 (LC)
Guidelines for HIV Testing by Employers.
|
No-one is immune to prosecution in terms of the OHS
Act, yet it is mostly employers and users of plant and machinery who are
exposed to criminal prosecution. The reason for this is to be found in the
extensive duties which the OHS Act imposes upon them, thereby creating a
host of legal rights for employees
(sections
8)
and (13),
persons in general
(section
9),
recipients of articles and substances utilised at a workplace, clients for
whom articles (structures) are designed, erected or installed.
(Section
10) and read with the Construction
Regulations). Criminal liability emanates from the infringement of these
statutory rights by employers or users. Juristic persons or corporate
bodies along with natural persons such as the CEO and his or her team of
section 16(2)
“Assigned Persons’ are regarded
as employers and users for prosecution purposes.
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Subscriber Newsletter : January 2007 : The NOH&S Draft Bill, 2005.
'Contractors'. |
One of the most vexing issues in the current
OHS Act pertains to contractors or mandataries.
Section 37 of the OHS Act potentially
punishes employers for the OHS crimes of their mandataries. It contains a
presumption-in-law which presumes that employers actually committed
the offences of their mandataries and potentially punishes them. This
presumption can be rebutted if the employer can demonstrate that it did
not (1) permit the questionable act or omission, connive with the
mandatary to circumvent the law, (2) the employer can show that the
mandatary acted outside its scope of authority and, finally (3)
that the employer took reasonable steps to prevent it. I refer to them as
the Three Hurdles which employers need scale to prevent ‘activating’ the
presumption and being prosecuted for the crimes of the mandatary.
Subscribers
Click
here for full newsletter.
|
Subscriber Newsletter : The National
Occupational Health & Safety Draft Bill of 2005. |
extract...'An interesting, yet not new, introduction is Corporate Homicide
and Corporate Negligent Occupational Injury. I say it’s not new since we
have had both for as long as I can remember. Corporate Homicide has been
made possible through
section 332 of the Criminal Procedure Act
read with the common law crime of culpable homicide while Corporate
Negligent Occupational Injury exists in
section 38(2) of the OHS Act read with
section 332 of the Criminal Procedure Act. Corporate Negligent Injury is
contained in
section 86 of the MHS Act. As you all
know, outside OHS legislation, it is not a crime to negligently injure
someone. Intentional injury is assault which is a common law crime. (it’s
sadly also very common). I predicted that the draft Bill will see an
erosion of the Right to Remain Silent similar to
section 63 of the MHS Act. Persons can be
indemnified against prosecution and such persons will then be compelled to
answer incriminating questions or deprived of the Right to Remain Silent.
Penalties will sky rocket and Administrative Fines (outside the courts)
introduced along the lines of the MHS Act'.
Click here for full newsletter.
|
OHS Practitioner
Newsletter : February 2007 : The Draft National Occupational Health &
Safety Bill, 2005 : 'Investigations and Inquiries'. |
'In this newsletter I will look
at the official investigations and (formal) inquiries which may be held
into workplace accidents or contraventions of the Bill. Unlike the
provisions pertaining to contractors or mandataries which takes its cue
from the OHS Act, it would seem as if the Bill has borrowed heavily from
the MHS Act as regards investigations and inquiries. It does not mean,
however, that non-mining employers or employers who fall within the
jurisdiction of the OHS Act would have to adapt too much. I have always
preferred the provisions of the MHS Act that pertain to investigations and
inquiries and considered the OHS Act provisions antiquated and even
unconstitutional. To this very day DoL stubbornly refuses to furnish
employers with their reports post an investigation or inquiry, using an
array of feeble excuses.
Click here
for full newsletter
|
Subscriber
& OHS Practitioner Newsletter : April 2007 : 'Employees Right to sue
Employers'. |
In
Crown Chickens (Pty) Ltd
t/a Rocklands Poultry v Rieck [2007] (SCA)
the Supreme Court of Appeal firmly
establishes the legal right of persons who are placed in employment via
labour brokers to sue their
‘employers’ for damages. The implications of this case is that negligent
employers may have to part with more money than originally anticipated in
the event of an occupational accident involving such workers. Since
the advent of the COID Act in January 1994, (negligent) employers have
enjoyed immunity against civil suits for damages by employees or their
dependants in the event of an occupational injury or death. This
controversial provision has not gone down well in many quarters as it
erodes established delictual rights which persons have enjoyed for
centuries and which persons (employees) still enjoy in many other
countries. In fact it is / was so controversial that this prohibition had
to be tested in the Constitutional Court before it finally was accepted.
You should all by now be familiar with the celebrity constitutional court
case of
Jooste v. Score Supermarket Trading (Pty) Ltd
(1998) CC where an employee of Score Supermarket Trading
challenged the prohibition on civil suits by employees
as imposed by section 35 of the COID Act. At the
time even the Judge President of the
Eastern Cape High Court felt that
section 35 of the COID Act was
unconstitutional since it, inter alia, discriminated between
employees and members of the public or third parties – who do enjoy the
right to sue should they suffer injury at a workplace.
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signpost indemnities.
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Subscriber
Newsletter : June 2007 : The NOH&S Draft Bill : 'The Health &
Safety Management System'. |
 While
neither of the OHS & MHS Acts explicitly require union members to be
health and safety representative and committee members, it is obviously
the intention of the legislator. This has also become the norm,
particularly in the mining industry. Unfortunately, with the possible
exception of NUM, trade unions have not entirely embraced this golden
opportunity to collaborate the employers via the Health and Safety
Management System perhaps, because they cannot move past their adversarial
posturing. Some employers too have only paid lip service to this system
and it merely serves as an employer rubber stamp. To counter this
lethargy, the NOH&S draft Bill seeks to elevate the status of the
health and safety
management system. Public
corporate bodies will be required, in terms of
section 12 to appoint a Health &
Safety Director whose functions will include, inter alia, to
monitor on a regular basis the implementation and
effectiveness of the company’s health and safety management systems, the
health and safety performance of the company, ensure that the company’s
management systems provide for effective reporting and monitoring of the
company’s health and safety performance and to report to the board on any
significant health and safety failure and on recommendations for changes
to the company’s health and safety management systems. While these
explicit duties are not listed in
section 11 as responsibilities of
the CEO, it is naturally implied that the establishment such a system
forms part of the CEO’s duties and failure to establish and ensure its
proper functioning, could result in prosecution of the corporate body or
even the CEO personally. The appointment of a Health & Safety Director
will also not absolve the CEO of the duty of ensuring compliance with the
Act. In fact in Part One of the Bill entitled ‘Criminal Offences’ it is
stated that a company commits the crime of
Corporate Homicide
if a death occurs and it is due to, inter alia, the failure to
implement a Health and Safety Management System. The same principles apply
to (corporate) Negligent Occupational Injury. Naturally, or perhaps
hopefully, a death or injury at the workplace would have to be linked to
the failure of a health and safety system and conviction would not be
automatic merely because the system did not exist. That would catapult us
into the realms of strict liability.
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OHS Practitioner
Newsletter : May 2007 : The CEO & the Health & Safety Director. |
I continue to look at aspects of the National Occupational
Health & Safety Draft Bill. After the prolonged debate surrounding
section 16 of the OHS Act, in
particular the assignment of duties emanating from the CEO in terms of section
16(2), I’m sure many of you will be curious as to the future scenario. Will the
proposed new Act place more onerous duties on the CEO, clarify the manner in
which the CEO creates a team to assist in his or her duty of ensuring compliance
with the Act and finally lay the delegation vs. assign debate to rest.
Will it oblige an entirely new system resulting in a massive OHS organisational
restructure? The good news is that no real major changes are proposed. The CEO
will still be the person ultimately responsible to ensure compliance as it
currently is the case with both the OHS and MHS Acts. However, via an almost
innocuous subsection, CEOs may find themselves more easily in trouble than
before. That is to say if a CEO does not decide to transfer all his or her OHS
obligations to another member of the Board, something which the current MHS Act
does allow in
section 2A(3).
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OHS Chat
& Skinner Newsletter : September 2007 : 'Sounding the Alarm'. |
The Honourable Minister of
Labour said on Friday that ‘No worker should die on duty and is
concerned over the number of deaths in the workplace. Spokesperson Zolisa Sigabi
said that by March 2007, 350 workers had died in the workplace. A Mozambican
national, Americo Diaz, recently died at a construction site in Brooklyn,
Pretoria after slipping and falling two floors to his death. "Preliminary
findings by the department of inspectors revealed that the area where he was
working did not have guard rails to protect workers from falling off," Sigabi
said. Diaz was working as a foreman for Ohlhorst Africa Pty Ltd, a construction
company. "There is no worker who should die on duty especially not due to
non-compliance with labour laws," Mdladlana said. Sigabi said labour inspectors
were continuing with investigations into the incident'. I say nobody
(read 50 murders a day) should die unnaturally full stop - especially at the
hands of criminals! Where does their loot go? Perhaps a minimum sentence of 15
years for anyone buying or possessing stolen property will help. And while the
President is on a firing and suspending spree he should give Nqakula the boot.
Selebi may be arrested anyway? The Minister of Health, thanks to a fast tracked
new liver and who has now taken to holy communion (wine), seems to have the
staying power of Robert McBride and Truman Prince. Let’s think of an analogy.
Mbeki is the group CEO of a company. Nqakula the MD and Selebi the GM. The
fatality rate (murders) are unacceptably high at the workplace. (Country). The
unfazed MD admonishes persons who whinge about the high fatality rate to leave
the company. The GM is suspected of colluding with suppliers of cheap
non-compliant PPE and is served with a notice by DoL. The group MD, whose
struggle credentials are impeccable (Mbeki), steps in and uses his influence to
make the Notice disappear. The official from DoL (Pikoli), who served the
Notice, is suspended and the company continues operating with impunity. The
beleaguered workers resort to buying their own PPE to safeguard their lives and
are offered no tax relief. The Group CEO maintains there is no crisis within the
company. He blames it all on the previous inequitable economy,
a boring and convenient lament designed to stifle any dissention. Afterall
who wants to be accused of complicity! And afterall his company is hosting a big
economic conference in 2010 and he doesn't want to scare potential participants.
The Board of Directors continue to support the CEO lest they lose their perks
and the fund managers continue to keep their clients happy. The unions remain
mum since they are all in bed together. They toyi-toyi and sing songs glorifying
the instruments that cause workplace deaths and routinely go on destruction
rampages in the streets with impunity while stretching the (all ready thin)
policing authorities to the limit. As a result they are unable to effectively
police other unsafe workplaces.
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Newsletter : July 2007 : OHS Legislation :
Employer Rights - Make a Stand'. |
For many years now I have been concerned by OHS Inspectorates', in the form of
DoL’s Inspection & Enforcement Service and particularly DME’s Mine Health &
Safety Inspectorate’s approach to investigations of workplace incidents. They
seem to regard themselves as a law unto themselves with scant regard for the
rights of employers (corporate bodies & individuals). A particularly irritating
practice has been the unilateral determining of dates for (OHS
Act /
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