Time is up for mining companies to make submissions concerning the proposed amendments to the Mine Health and Safety Act (MHSA), following the publication of the draft Mine Health and Safety Bill 2013, in November.

Law firm Hogan Lovells SA (previously Routledge Modise) mining head Warren Beech says the draft Bill aims to amend various sections of the Act, including various definitions, among others definitions of ‘employee’, ‘formal training’ and ‘mining area’, noting that the most pertinent of the sections the Bill aims to amend are sections 2, 10, 75, 76, 78, 80 and 92.

While having positive amendments, such as aligning the provisions of Section 2 with the provisions of the Companies Act, Beech says several of the amendments have, however, not been thought through carefully and could potentially not achieve their desired outcome of streamlining processes and “cleaning up” administrative aspects.

He points out that the most pertinent amendments in the Bill can be narrowed down to three primary areas of concern. The first is the proposed amendments to transfer the responsibilities of the mining company to its CEO, who would be required to personally ensure the health and safety of persons at the mine and carry out the duties and functions.

The second area is 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% of turnover.

The third is 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.

Beech explains that possible consequence of the insertion of Section 2B, specifically the proposed insertion of Section 2B(2), which requires the CEO to perform all the functions of the employer, is that it is not aligned with the current framework and structure of the MHSA, where the primary responsibilities are placed on the employer, as defined in Section 102 of the MHSA.

Beech points out that if Section 2B(2) is passed into law in its current format, there will be a contradiction between the responsibilities placed on the CEO and the remaining provisions of the MHSA, which place these responsibilities on the employer.

While it has been suggested that there is nothing untoward about the proposed amendment, as the company acts through its directors, officers and employees, and the proposed Section 2B(2) simply reconfirms this, it can, however, also be said that the proposed amendment represents a significant change from the current situation – in terms of Section 2A(1) of the MHSA, the CEO is simply required to take reasonable steps to ensure that the functions of the employer are carried out, as opposed to personally carrying out all the duties and functions.

Further, Beech says the proposed amendment to Section 2B(3)(b) further compounds the contradiction, as it will require the CEO to be personally responsible for the health and safety of employees and for persons who are not employees, but who may be directly affected by the activities at mining operations.

This responsibility is currently placed on the employer in terms of Section 5 of the MHSA and, once again, there will be a contradiction should the proposed Section 2B(3)(b) be passed into law, he says.

“Should Section 2B be inserted, it would require significant amendment to express what could be the intention of the Bill, namely to ensure that CEOs are appointed . . . so that they are designated in terms of Section 2A(3) of the MHSA.

Meanwhile, of most concern with regard to the proposed amendment to the maximum criminal fine that can be imposed on a mining company is the proposed Section 92(5)(b).

The maximum fine applying to any section of the Act, regardless of which section of the Act is applicable, and there being no distinction between compliance with more serious provisions and those that are not as serious, are concerns.

Also, the maximum fine for the period during which the company has failed to comply with the relevant provision does not take into account profitability.

Further, the reference to the period during which the company has failed to comply could be applicable across different financial or calendar years.

Beech says the proposed amendments are impractical and could impact significantly on the viability of companies.

Meanwhile, also impacting on the MHSA is the the proposed amendment of section 75, 76, 78 and 80, which removes the obligation on the Minister to consult with the Mine Health and Safety Council before issuing notices.

“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,” explains Beech.

However, he believes certain of the proposed amendments are likely to improve the situation of mineworkers.

One of these is the proposed amendment to Section 6, which pertains to the ‘customisation’ of personal protective equipment and will require the employer to ensure that personal protective equipment is suitable, taking into account size, fit and types of workplace hazards, as well as the purpose and nature of the work to be undertaken.

Similarly, the proposed amendments to Section 10, which will place an absolute duty on the employer to provide health and safety training, will increase the responsibilities of the employer regarding health and safety training.

The draft Mine Health and Safety Bill aims to make changes to the MHSA to streamline administrative processes, strengthen enforcement provisions, reinforce offences and penalties, amend certain definitions and provide for matters connected with these.