By Lili Nupen
When President Cyril Ramaphosa announced that a national state of disaster has been declared in terms of the Disaster Management Act, 2002, industries across the country began embarking on an integrated and coordinated approach to prevent and reduce the further outbreak of COVID-19.
The mining sector and mining companies are under a legal obligation to create and maintain a safe working environment for mine workers, and must determine what this declaration means for them.
Under the Workplace Preparedness: COVID – 19 (SARS-CoV-19 virus) as released by the Department of Employment and Labour, mine workers are likely to be considered a medium exposure risk threshold. This category includes jobs where there is frequent and/or close contact (within 2 meters) of people who may be infected with the virus, but who are not known or suspected to be COVID-19 patients.
Employers must implement measures that will assist in combating and preventing an outbreak amongst its employees.
In addition, the Occupational Health and Safety Act, 1993 (“OHSA”) requires that an employer, as far as is reasonably practicable, must provide and maintain a working environment that is safe and without risks to the health of its employees. This includes taking steps to eliminate or mitigate any hazard or potential hazard.
In order to implement control measures, an employer’s existing risk assessment must be reviewed and updated taking into account the new hazards posed by exposure to COVID-19 in the workplace.
More specifically focused on mines is the Mine Health and Safety Act, 1996 (MHSA) which, like the OHSA, requires employers of mines to ensure, as far as reasonably practicable, that the mine is designed, constructed and equipped to provide conditions for safe operation and a healthy working environment, with a communication system and equipment necessary to achieve these conditions.
The employer is further required to, as much as possible, ensure that the mine is operated in a way that employees can perform their work without endangering their own, or other persons’ health or safety. The MHSA places a duty on every employer to identify hazards to health or safety which employees may be exposed to at work and to assess the risks, record them and make the records available to employees.
In light of the developing COVID-19 situation and the legislative and regulatory implications in the mining sector, the following practical suggestions for mines could help navigate these uncertain times:
- The employer must consult with the mine’s health and safety committee and the existing risk assessment should be reviewed and updated to cater for the new and current risk of COVID-19.
- Measures will then need to be implemented to give effect to the mine’s obligation to maintain a safe and healthy environment for its workers.
- Employees should immediately be consulted and advised that these processes are in place. They should also be advised of any interim measures to be followed pending the finalisation of the updated risk assessment.
- To the extent that there will be a temporary disruption in the operation or production, it is suggested that the mine should advise the Department of Mineral Resources and Energy of this. This should be recorded in writing, and if necessary, a section 102 application should be lodged requesting the consent of the Minister to amend the Mining Work Programme should it be necessary.
- If COVID-19 or the effects thereof, require the mine to drastically reduce its operations or to temporarily close (to go into care and maintenance) it is suggested that this be communicated to the DMRE as soon as possible. It should clearly be explained why these measures have been taken, and that they are intended to be of a temporary nature in response to the declaration of the national disaster and that the mine does not intend to trigger listed activity 22 of Listing Notice 1, 2014 (which deals with the reduction of operations by 90% and closure) but to resume operations once the disaster has subsided. This approach will mitigate the risk of a notice in terms of section 47 being issued, which may call for the mining right to be suspended or cancelled.
- Compliance with environmental legislation must continue during this time to ensure that there is no significant adverse impact on the environment.
There is a further duty on the employer to consult with the mine’s health and safety committee and to determine, and then implement, all measures necessary to eliminate, control, minimise and monitor the risk and to ensure the health and safety of all mine workers in the industry.