The draft Mine Health and Safety Bill, 2013 (the Bill) was published for comment in General Notice 1103 of 2013.
Essentially, the objects of the Bill can be categorized into two broad categories: administrative and related amendments, and enforcement and related amendments. The administrative and related amendments include, for example, defined appeal procedures, timelines for decision making on appeals, and amendments to definitions. The amendments in relation to enforcement and penalties, are wide-reaching, and are clearly aimed at giving the Mine Health and Safety Inspectorate additional mechanisms to enforce compliance with the provisions of the Mine Health and Safety Act (MHSA).
The key proposed amendments to the MHSA are:
- the insertion of Section 2B, which will require the employer of every mine that is being worked, to appoint a Chief Executive Officer, if the employer is a company, and which requires the Chief Executive Officer to personally perform all the functions of the employer, including making any appointments in terms of the Act;
- the proposed amendment to Section 10, which will place an absolute duty on the employer to provide health and safety training which is effective and assessable;
- the proposed amendments to Sections 75, 76, 78, and 80, which remove the obligation on the Minister to consult with the Mine Health and Safety Council, before issuing notices, impacting on health and safety amending schedules to the MHSA, and extending the provisions of other law relating to health and safety, to mines. The removal of this obligation effectively removes an important component of the consultation process with interested and affected parties, who are represented on the Mine Health and Safety Council; and
- the proposed amendment to Section 92, which provides that an employer which is a company, and which is convicted of an offence in terms of any section of the MHSA may be sentenced to a fine not exceeding 10 percent of the company’s annual turnover for the period during which the company has failed to comply with the relevant provision or to imprisonment not exceeding 10 years. Narrowing down the proposed amendments to the three primary areas of concern would be firstly, to “transfer” the responsibilities of the mining company to its Chief Executive Officer, who would be required personally to carry out the duties and functions; secondly, the proposed amendment of the maximum criminal fine that can be imposed on an employer that is a company, namely a fine not exceeding 10 percent of turnover,;and thirdly, the removal of the requirement of the Minister to consult the Mine Health and Safety Council before issuing notices affecting health and safety, amending or replacing schedules to the MHSA, and extending the provisions of legislation.
Some of the proposed amendments are likely to improve the situation of mine workers. For example, the proposed amendment to Section 6 will require the employer to ensure that personal protective equipment is suitable, taking into account size, fit, type of workplace hazards, and the purpose and nature of the work to be undertaken. Similarly, the proposed amendments to Section 10, will increase the responsibilities regarding health and safety training.
Having said this, the most significant potential consequences will be on the mining companies, particularly in relation to the position of the Chief Executive Officer, and the potential consequences (criminal fines), namely the imposition of a criminal fine related to a percentage of turnover.