/ MEDIA STATEMENT / This content is not written by Creamer Media, but is a supplied media statement.
The Leon Commission of Inquiry was established in 1994 to investigate aspects of health and safety in the mining industry. A very important principle identified by the Commission was the disclosure of and access to information. This principle, which was incorporated in the Mine Health and Safety Act (“MHSA”), has been instrumental in promoting health and safety in the industry.
The reason for this is obvious: data is powerful, and the proper recording and disclosing of personal information is essential for employers in adherence to health and safety practices.
The Protection of Personal Information, 2013 (“POPIA”), which comes fully into operation from 1 July 2021, substantially impacts the recording and disclosure of information.
The MHSA also contains a vast number of provisions that require the disclosure of information. This includes:
- the compilation of an annual report on health and safety, including the statistics in this regard (section 2(1)(c));
- the establishment of a written health and safety policy, which includes arrangements for carrying out and reviewing policies (section 8);
- the recordal of formal training (section 10(4));
- the recordal of significant hazards and risks (section 11(1));
- the conduct of an investigation into a reportable accident, serious illness and health threatening occurrence and its recordal (section 11 (5));
- the delivery of such a report to the Health and Safety Committee and the Principal Inspector of Mines (section 11(5)(e));
- the keeping of a record of occupational hygiene and medical surveillance (sections 12 and 13);
- the supply of such records to the Principal Inspector of Mines;
- the entitlement of an employee to these records (section 19).
However, it is important to ensure that certain safeguards are in place to protect the interests of employer and employees. The legislature attempted to do so in the MHSA and other legislation, specifically the Promotion of Access to Information Act, 2000 ("PAIA") and POPIA.
PAIA intends to give effect to the constitutional right of access to information that is held by another person and that is required for the exercise or protection of any rights.
POPIA intends to promote the protection of personal information processed by public and private bodies, including employers. It introduces minimum requirements for the processing and disclosure of personal information.
Personal information includes biometric information (such as blood typing, finger printing and voice recognition) and information relating to race, gender, sex, age and physical and mental health. Such information is required in a large number of reports which an employer is obliged to keep and furnish to interested parties.
To protect the interests of employees, section 38 of the MHSA prohibits the disclosure of personal information relating to an employee, unless the employee consents, in writing, to such disclosure. The employee may however, not unreasonably withhold their consent.
Section 38(1)(a) of the MHSA protects legally privileged information. These provisions must, however, be read with the applicable provisions of PAIA and the POPIA.
PAIA provides that MHSA applies to the exclusion of any provision of other legislation that prohibits or restricts the disclosure of a record of a public body or private body and is materially inconsistent with an object, or a specific provision of PAIA (section 5 of PAIA). POPIA provides that it applies to the exclusion of any provision of any other legislation that regulates the processing of personal information and that is materially inconsistent with an object or a specific provision of the Act (section 3(2)(a)). However, this is subject to any other legislation which provides for conditions for the lawful processing of personal information that are more extensive than those set out in POPIA If those provisions are more extensive, then such extensive conditions must prevail.
Both PAIA and POPIA allow the disclosure of personal information if the person to whom it applies has consented in writing. However, the effect of other provisions of POPIA is that if the person to whom the personal information applies does not consent, then the processing (recording) of their information is allowed:
- if it is necessary to carry out actions for the conclusion or performance of a contract to which the data subject (the person to whom the personal information relates) is a party;
- if processing complies with an obligation imposed by law on the responsible party (the public or private party or any other person which, alone or in conjunction with others, determines the purpose and means for processing personal information);
- if processing protects a legitimate interest of the data subject;
- if processing is necessary for the proper performance of a public duty by a public body; or
- processing is necessary for pursuing the legitimate interests of the responsible party or of a third party to whom the information is applied.
All parties involved with the application of the MHSA, such as the Department of Mineral Resources and Energy, employers, employees and employee organisations, will be prudent to acquaint themselves with all three statutes before dealing with the recordal and disclosure of personal information.
Willem le Roux
ENSafrica | Mine and Occupational Health and Safety | Executive Consultant