Mine Health and Safety Act amendment due in 2013

A SA Department of Mineral Resources (DMR) Mine Health and Safety Act amendment is due in 2013. Some changes under discussion are posted here.

Among the proposed amendments is a definition change, that ‘Occupational Health Practitioner’ would mean an Occupational Medical Practitioner.

Mining employer may have to appoint a part-time or full-time person qualified in occupational hygiene techniques, to conduct occupational hygiene services, including measurements, analysis, interpretation and reporting at a mine.

Formal health and safety training of all employees could be made compulsory by a review of section 10, and definitions in the Mine Health and Safety Act.

mine health and safety act
Safety training may become compulsory in amended Mine Health and Safety Act

DMR minister Susan Shabangu said earlier this year that proposed amendments to the Mine Health and Safety Act would be tabled in cabinet for approval. The review would also clarify certain definitions and expressions.

Mine Health and Safety Act Sections under review

The following is an extract from a Mine Health and Safety Act amendment draft, subject to consultation, state legal processes and cabinet approval. This post serves only as background to the amendment process, and has no legal authority.

SA Mine Health and Safety Act review draft proposals of 2012 include several sections, as listed below by [current text in square brackets]>, and draft amendments following arrows.

2 B (2) The Chief Executive Officer must be (b) responsible for the health and safety of employees and persons who are not employees, but who may be directly affected by the activities at the mine.

2 B (3) Where the employer is not a company, an owner of a mine must be responsible for the health and safety of employees and persons who are not employees but who may be directly affected by the activities at the mine.

2 B (4) The employer must:
(a) inform the Chief Inspector of Mines, in writing, within seven days of the appointment of the chief executive officer;
(b) information to the Chief Inspector of Mines must include:
(i) name of the chief executive officer;
(ii) nature of the Chief Executive Office’s functions;
(iii) area of responsibility

The rationale for this review item is that the CEO will represent the employer and also be accountable for health and safety in terms of the Mine Health and Safety Act, and to ensure that the functions of the employer are performed by an owner of a mine, if such employer is not a company.

2 B [(3) If no manager is appointed in terms of subsection (1), the employer must perform the functions of a manager in terms of this Act.]> DELETE. The rationale for this review item is to prevent employers who do not have prescribed qualifications and technical ability to perform the functions of a mine manager.

7(6) If the employer appoints or employs a contractor to perform any work within the boundaries of the mining area, mine, or works, as the case may be, such employer remains responsible for compliance with this Act.

9 (8) INSERT> Every employer must comply with requirements of the code of practice that has been prepared and implemented…

10 (1) [As far as reasonably practicable]> Every employer must:
(2) [As far as reasonably practicable, e]> Every employer must ensure that every employee is properly trained…
(4) The employer must keep record of formal training provided for in respect of each employee in terms of subsection 2[.]>INSERT> , at the mine.

11 (5B) Every employer must notify the Principal Inspector of mines of any accident or occurrence at a mine that results in:
(a) serious injury;
(b) serious illness; or…

12 (1) The employer must [engage]> appoint on [the]> a part-time or full-time basis the services of a person qualified in occupational hygiene techniques [to measure levels of exposure to hazards]> for the conducting of occupational hygiene services, including but not limited to measurements, analysis, interpretation and reporting at the mine:

12 (4) INSERT> The employer must supply the person referred to in subsection (1) with the means to perform his or her functions.

Mine Health and Safety Act Occupational Health and medical amendments draft

13 (3) Every employer who establishes or maintains a system of medical surveillance must:
(a) [engage]> appoint on [the]> a part-time or full-time basis the services of:
(i) an Occupational Medical Practitioner; and

(ii) INSERT> […deleted by Act 74 of 2008.]> in so far as it is necessary, other Occupational Health Practitioners holding a qualification in occupational health recognised by the South African Nursing Council;

13 (4B) INSERT> The information submitted in terms of sub section 4A must include:
(b) his or her professional registration [practice] number; and
(c) whether the Occupational Medical Practitioner is [engaged]> appointed full time or part time…

13 (4B) INSERT> (d) confirmation of registration of the Occupational Medical Practitioner’s qualifications with the Health Professional Council of South Africa.

13 (4C) INSERT> An employer must ensure that the Occupational Medical Practitioner issues a Certificate of fitness for work for every medical examination conducted in terms of subsection (2), paragraph (c)

20 (4) The medical practitioner referred to in subsection (3) must report to the Medical Inspector who must then consider the appeal and:
(a) confirm, set aside or vary the decision or finding of the occupational medical practitioner; or
(b) substitute any other decision or finding for that decision or finding, within 60 days after the lodging of the appeal, and notify…

20 (8) INSERT> The Occupational Medical Practitioner referred to in subsection (1) must, within a period of 7 days of the decision or finding, inform in writing, the:
(a) employee that he or she has been found unfit to perform work and that the employee has the right to appeal the decision or finding to the Medical Inspector within a period of 30 days; and
(b) Medical Inspector, of the reason(s) for such a decision or finding.

20 (9) The Medical Inspector must, after receiving an appeal lodged under subsection (1) confirm receipt of the appeal to the employee who has lodged the appeal and also informs the employer that the Medical Inspector has received an appeal from an employee of such mine.

Mine Health and Safety Act safety advisory committee amendments draft

41 (2) A Committee, ad hoc committee or subcommittee may where necessary be established, which committee may include the:
(a) [the]> Mining regulation Advisory Committee;
(b) [the]> Mining Occupational Health Advisory Committee; and…

This revision aims to ensure that the research advisory committee covers both safety and health issues in the ammended Mine Health and Safety Act.

42(1) The Council consists of:
(a) five [members]> persons representing employers in the mining industry;
(b) five [members]> persons representing employees in the mining industry;
(c) [four members]> five persons representing Departments of the State; and
(d) the Chief Inspector of Mines who must chair the Council.

43 The Council must: (a) advise the Minister on health and safety at mines [, including but not limited to, any legislation on mine rehabilitation in so far as it concerns health and safety]> DELETE PORTION

Mine Health and Safety Act inspection amendment draft

47 (3) The Minister must appoint an officer with prescribed qualifications and appropriate experience as Principal Inspector of Mines, for each region contemplated in subsection (2).

47 (4) The Minister must appoint:
(a) an officer with prescribed qualifications and experience as a Medical Inspector; and
(b) officers with prescribed qualifications and experience as Inspectors.

47 (5) The Minister must furnish a prescribed Certificate to the Medical Inspector and to each Inspector.

47 (6) To further the objectives of this Act, the Minister may:
(a) enter into agreements with other persons; and
(b) authorise a competent person or a competent independent person to perform any or all the functions of an Inspector.

47 (7) The Minister must furnish a prescribed certificate to each person authorized under subsection (6) (b) of this Act the Chief Inspector of Mines may;
(a) enter into agreements with other persons; and
(b) authorise a competent independent person to perform any or all the functions of an inspector.

48 (5) The Chief Inspector of Mines must furnish a prescribed certificate to each person authorised under subsection (4) (b).]> (7) INSERT The Chief Inspector of Mines may issue instructions or directives on any matter affecting health and safety of employees at the mines or any persons who are not employees but who may be directly affected by the activities at the mines…

49A (1) [The funds of the mine Health and Safety Inspectorate consist of:…]> DELETE
49 B (1) [The Chief Inspector of mines must co-ordinate the exercise of the functions of the Mine Health and Safety Inspectorate with other organs of state.]>DELETE

54(1) If an Inspector [has reason to believe]> observes 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 any persons at the mine, including but not limited to:
(5) Any instruction issued under subsection (1) (a) must either be confirmed, varied or set aside by the [Chief]> Principal Inspector of Mines as soon as practicable.
(6) Any instruction issued under subsection (1) (a) is effective from the time fixed by the Inspector and remains in force until set aside by the [Chief>] Principal Inspector of Mines or until the inspector’s instructions have been complied with.

55C INSERT> Use of administrative fines 55C(1) Money received by the Principal Inspector of Mines in payment of fines imposed in terms of section 55B must be paid to a fund established and controlled by the Council.

55 (4) INSERT> Any person, adversely affected by a decision of a Principal Inspector of Mines, a decision contemplated in section 55B, may appeal against that decision to the Labour Court.

55 (4) INSERT> (4) No person may apply to Labour Court for the review of an administrative decision except a decision contemplated in section 55B, unless that person has exhausted the appeal process contemplated in section 57.

(5) INSERT> Sections 6, 7(1) and of the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000), apply to any Labour Court proceedings contemplated in this section.

59 (1) An appeal against a decision under either section 57[, 57A]> or 58 does not suspend the decision.

59 (2) Despite subsection (1):
(a) an appeal in terms of section [57A or 58] against a decision to impose the fine suspends the obligation to pay the fine, pending the outcome of the appeal; and
(b) the Labour Court may suspend the operation of the decision, of the Chief Inspector of Mines, pending the [determination of the matter] outcome of the appeal, if there are any reasonable grounds for doing so.

75 (1) For any reason relating to health or safety, the Minister may consult the Council and by notice in the Gazette, may prohibit or restrict any work or any exposure of a person to a substance or an environmental condition, [if (a) the Minister has consulted the Council on the prohibition or restriction;]> and [(b)] unless the Minister believes that the public interest requires the notice to be published immediately, the Minister has;

(3) The Minister [, after consulting the Council,]> may consult the Council on any decision to amend or withdraw a notice under subsection (1) at any time.

76(1) The Minister may consult the Council and by notice in the Gazette, may declare that an environmental condition or a substance present at a mine is a health hazard to employees who are or may be exposed to that condition or substance, [if (a) the Minister has consulted the Council on the issuing of the declaration;]> and [(b)] unless the Minister believes that the public interest requires the notice to be published immediately, the Minister has; (2) In connection with any health hazard, the Minister, may consult [after consulting]> the Council and by notice in the Gazette, may; …

76(2) The Minister, [after consulting]> may consult the Council [,]> and may cancel an exemption granted under subsection (1) at any time.

Mine Health and Safety Act amendment draft invokes OHS Act

80 [(1) After consulting the Council, t]> The Minister may consult the Council and by notice in the Gazette, may declare that any provision of the Occupational Health and Safety Act, 1993 (Act 181 of 1993), as amended, or any regulation made under that Act, or the provisions of any other Act or regulations, must apply to a mine.

92(4) DELETE [Any person convicted of an offence in terms of this Act for which no penalty is otherwise expressly determined, may be sentenced to a fine or to imprisonment for a period not exceeding six months.]

92 (5) Any person convicted of an offence in terms of any section or regulation [mentioned in Column 1 of Table 1 of Schedule 8]> may be sentenced to a fine not exceeding the maximum amount mentioned in Table 1 of Schedule 8 or to imprisonment for a period not exceeding the maximum period mentioned in [Column 2 of that Table opposite the number of that section]> Table 1 of Schedule 8.

96 (1) The Minister may delegate any power conferred upon the Minister by or under this Act, except the power of making regulations to the Director-General or Chief Inspector of Mines.

97 (1) The Minister, [after consulting]> may consult the Council and by notice in the Gazette may add to, change or replace any Schedule to this Act other than Schedules 2, 3 and, subject to subsection (5), Schedule 4.

97 (2) The Minister, [after consulting]> may consult the Council and by notice in the Gazette may add to this Act a further Schedule containing matters in respect of which health and safety committees may consult.

97 (4) The Minister [, after consulting]> may consult the Council and the Mining Qualifications Authority, by notice in the Government Gazette may add to this Act a further Schedule containing the constitution of the Mining Qualifications Authority and its committees…

97 (5) The Minister, [after consulting]> may consult the Council and by notice in the Government Gazette may add to Schedule 4 further items containing transitional provisions necessary for the implementation of this Act.

97 (6) The Minister, [after consulting]> may consult the Council and in consultation with the Minister of Health, by notice in the Government Gazette may add to this Act a further Schedule to suspend or vary the application of the Occupational Diseases in Mines and Works Act, 78 of 1973, except in relation to the determination or payment of compensation.

SA Mine Health and Safety Act definitions review draft

Some definitions would be added to the Mine Health and Safety Act, according to the review of 2012, intended for consultation and public comment in mid 2012;

“Board” means a board of directors of a company as defined in the Companies Act, 71 of 2008.

“Chief Inspector of Mines” means the officer appointed in terms of section 48(1) and includes any officer acting in that capacity.

“Employee” means any person who is employed by the employer or owner of a mine [or]> and such a person is working at a mine.

“Formal training” means relevant training that is accredited by the Mining Qualifications Authority, or recognised by the Chief Inspector of Mines, or non accredited training that is relevant, structured, assessable, and as contemplated in section 10, subsection (2) of this Act.

“Inspector” means an officer appointed in terms of section 49 (1)(c)] 47(4)(b) [a Medical Inspector and any Principal Inspector of Mines].

“Medical Inspector” means an officer appointed in terms of section 49(1)(b)] 47(4)(a)

“Occupational Health Practitioner” means an Occupational Medical Practitioner.

Mine Health and Safety Act fines review draft

26 Table 2 MAXIMUM FINES THAT CAN BE IMPOSED FOR CONTRAVENTIONS CONTEMPLATED IN SECTION 55B. The maximum fine that can be imposed in terms of section 55B of the Mine Health and Safety Act  may not exceed an amount of R1 000 000 or 10% of the employer’s annual turnover in the preceding financial year, as reflected in the last available financial statements, in the Republic, and the employer’s exports from the Republic, whichever is greater.
• The above is an extract from a Mine Health and Safety Act amendment draft, subject to consultation, state legal processes and cabinet approval. This post serves only as background to the Mine Health and Safety Act amendment process, and has no legal authority.

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