Mine Health & Safety Amendment Bill: deliberations

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Mineral Resources and Energy

04 September 2008
Chairperson: Mr E Ngcobo (ANC)
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Meeting Summary

The session was scheduled for deliberations on the Mine Health and Safety Amendment Bill, but the major part of it was in fact devoted to an examination of the background to certain aspects of Mine Health and Safety, following a request to the Department of Minerals and Energy for such information. The Department made a presentation around such factors as employee compensation, legal sanctions, and regulatory capacity. The Department said that much had been achieved by the Mine Inspectorate in dealing with conditions that undermined mine health and safety, and noted some of the problems around the strengthening of education and training, including the poaching of inspectors by the industrial sector, and the unwillingness of some inspectors to undergo further training. The complex processes to achieve actual payment of the fines was also outlined. Members noted that the fact that inspectors had to work alongside three separate Departments responsible for three pieces of legislation could be confusing, and asked about the incentives and contractual arrangements for retention of inspectors, whether the successes were due to larger numbers of inspectors in the field, the costs of advertising posts, the necessity to get a larger portion of the budget for this purpose and for skills training, and how the records of training would be kept.

Members then proceeded to discuss the clauses in the Bill that had been amended, and the Department highlighted clauses 20, 55D and 55E and the question of fines. The principle of employer liability was discussed in some detail. Members reiterated that mine owners should no longer be absolved from liability. The National Union of Mineworkers had suggested that an omission by a mine owner should be automatically deemed as culpable until proven otherwise, but the legal advisers did not agreed that clauses supporting criminal procedures should be inserted in the Bill, as they were dealt with elsewhere, and that their suggestions would interfere with the jurisdiction of the Courts.  Members suggested that the Committee be presented with written statements of both the DME and the NUM positions. The unacceptably high rates of death and disablement among mine workers in South Africa, and the lack of means to hold mine owners and managers liable were recurring issues. A further set of amendments would be prepared for discussion by the Committee on 9 September.

Meeting report

Minerals Sector Profile: Department of Minerals and Energy (DME) Briefing
Mr Thabo Gazi, Chief Inspector of Mines, DME, noted that the Committee had requested facts and figures to support changes to the Bill, especially those pertaining to non-compliance with health and safety regulations, and fines. He proceeded to sketch out for the Committee some factors that contributed to the dangers of mining in South Africa. These included the depths at which gold and platinum mining was performed - soon to reach 4 kilometres in some mines - and the labour-intensive nature of mining operations. He identified two Acts intended to regulate compensation for miners affected by disease or injury: the Occupational Disease in Mines and Works Act (ODMWA), and the Compensation for Occupational Injuries and Diseases Act (COIDA). These Acts were administered by the Departments of Health and Labour respectively.  ODMWA benefits could be applied for by ex-miners, and provided for compensation for certified diseases such as tuberculosis and noise-induced hearing loss. COIDA compensated for occupational lung diseases, and was based on a no-fault system, which meant that there would be compensation even if the worker incurred disease through his own fault. COIDA required that claimants cede all further civil rights, so that if compensation was received the claimant could not then proceed to make a further civil claim by way of the courts. Mr Gazi related that a worker had recently claimed R 2 million from Anglo Ashanti as compensation for silicosis, but the Court upheld the R16 000 paid out by COIDA and set the larger claim aside.

Mr Gazi took the Committee through a series of diagrams with figures that indicated that the DME inspectorate had made progress with the enforcement of compliance, in such matters as stoppage orders, investigations and the issuing of fines. He made it clear, however, that the actual payment of fines proceeded very slowly. The current system allowed much room for appeal. An inspector would impose a fine, and the mine would appeal to the Chief Inspector, and then to the courts. It could take two to three years to get a fine paid.

Mr Gazi turned to the issue of regulatory capacity. He pointed out that there was a shortage of inspectors out in the field to investigate non-compliance with health and safety regulations. It had proved difficult to train an adequate body of inspectors, and to induce them to remain in the service of the DME. Once they were securely employed, many inspectors then showed insufficient motivation to further improve their qualifications, or they would leave to pursue more lucrative opportunities in the commercial industry.

Training of inspectors was approached in terms of a human resource development plan. A bursary scheme had been developed to train female inspectors. It had proved difficult to predict how many candidates placed in a learning institution as first year students would actually complete their courses. The facilities for training mining inspectors in South Africa were still largely undeveloped. The DME desired development, and initiatives had been launched. 23 learners had been placed out at mines. Joint ventures had been entered into with Wits University, South African Management Development Institute (SAMDI), and Advanced Management Development Programme (AMDP).

Advertising for posts proved costly, and vacancies were hard to fill. Furthermore, Mine Health and Safety had the highest termination rate in the industry. Reasons cited for people leaving were salaries and benefits (42%); a desire to be supervisors and managers (27%); a lack of career pathing (26%); lack of recognition (16%); working conditions (12%), and no opportunities for decision making (12%).

Ms N Mathibela (ANC) remarked that it could be confusing and disturbing to inspectors to have to work alongside Departments of Labour and Health when it came to compensation, and the Department of Justice during enforcement of compliance. She asked if there was no way to contractually oblige people trained as inspectors to remain with the DME.

Mr Gazi explained that the system in place was that a candidate would be obliged to work for DME for the same number of years after training as the training itself had been.

Ms G Babuseni, Principal Inspector of Mines, DME, added that the industry would poach people trained by and contractually bound to the DME, often as soon as their training was finished. The penalty incurred through breach of contract would then simply be paid by the new employer. She suggested that penalties could be made more stringent.

Mr T Mahlaba (ANC) applauded the progress made by inspectors in the number of fines and stoppage orders issued since 2005/6. He asked if this was due to a larger number of inspectors in the field, or whether the quality of work performed had improved.

Ms Babuseni replied that it could not be attributed to increased numbers, seeing that inspector capacity was still low. The improvement was due to greater focus. The Department had previously not achieved as well with more staff in the past.

Mr Mahlaba asked about the cost of advertising posts, and the danger of exceeding the budget.

Mr Gazi answered that advertisements were usually placed in a group to save money. In the public sector, there were line budgets. Fees were not transferable. Money granted for advertising could not be transferred to training. If jobs were not advertised, they could be taken away.

Mr O Monareng (ANC) remarked that the rule could not be that strict, if money for a certain purpose was not utilised. There was a general shortage of skills, and there had to be budgeting for skills development.

The Chairperson suggested that the Department budget more extensively for skills training.

Mr Gazi responded that the Department had set aside 2.5% of the total budget for training, but that there were competing priorities.

The Chairperson insisted that mining had to be central, and must be prioritised, and asked why Mr Gazi was not challenging the Department on this point.

Mr Gazi replied that such a challenge had indeed been made. There had been requests for the entire training budget to be channeled into mining.

Mr Mahlaba referred to the amendment that required employers to submit records of training. He asked if this meant that there would eventually be records of training for each worker, or just a general list. He noted that records of formal and informal training were essential, and that any loopholes had to be closed.

The Chairperson ventured that that training records would probably not be done on a personal basis. He feared that companies would ask government for money for training, take people on sightseeing tours, and record this as training.

Mr Monareng suggested that the Committee should now start to discuss the specific clauses in the Bill, as included in the presentation document. He reminded the Committee that this session was supposed to concentrate on discussing the Bill, and that hitherto there had only been a discussion of background factors. The DME had sat with the Bill during the previous night, and had incorporated certain other changes.

Mr Gazi proceeded to touch upon worker dismissal (clause 20), mining rescue services (clause 55D), and fines. He then proceeded to determination of employer’s liability (clause 55E). This clause had previously been deleted, but was now included again. The intention was to remove procedures that enabled employers to appeal endlessly. There were problems with the processing of cases by the justice system.

Ms Suraya Williams, Principal State Law Adviser, Office of the Chief State Law Adviser, elaborated upon employer liability. She referred to the treatment of liability in the Liquor Act, as an example of attributing blame or criminal liability. Under this Act, an owner of premises would be deemed culpable if there was an act or an omission, even if not caused by the owner, but which the owner had not tried to prevent. The clause dealing with employer liability had to be developed in a similar way, so that mine owners could no longer be absolved from liability. She mentioned that the National Union of Mineworkers (NUM) had raised this issue, and had come up with suggestions.

Mr C Kekana (ANC) agreed that strong liability clauses were needed. If they were not included in the legislation, then life would be seen as cheap. It was important that South Africa keep up with international standards in this regard.

Ms Phumelele Ngena, Senior State Law Adviser, Office of the Chief State Law Adviser, also made reference to the NUM insistence on  clauses defining employer liability. This suggested that there be a principle established in the Bill to the effect that an omission would be viewed as culpable, until contested. The onus would be on the employer to demonstrate that steps had been taken to prevent disaster. Ms Ngena declared, however, that the legal advisers did not concur with the NUM insistence that clauses supporting criminal procedure be included in the Bill. 

Mr Monareng suggested that the relevant insertions be made, in consultation with the NUM.

Mr Mahlaba commented that the issue was in the hands of the Committee. Anything that could decrease the carnage caused by lack of concern for safety had to be considered. However, it was necessary to have something in writing. He suggested that the Committee be presented with written statements of both the DME and the NUM positions.

Ms Williams maintained that the NUM position would interfere with the jurisdiction of the courts, as there was already provision made under the law to prosecute those who were culpable.

Mr Molefe informed the Committee of his concern that people were still being killed. He reminded Mr Gazi of his reassurance that the action would be taken to ensure that the Mines should not kill workers through carelessness and non-compliance.

Mr Mahlaba echoed these concerns. He desired to know if there was one clear answer to the question of how the Bill would prevent the deaths of mine workers.

Ms Ngena gave the undertaking that the amendments would be prepared for the session scheduled for Tuesday 9 September.

The Chairperson thanked all participants, and put it to the Committee that it had to be decided at the following session whether the Bill could be finalised during the current term.

The meeting was adjourned.


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