The National Union of Mineworkers (NUM) has condemned platinum group metals miner Anglo American Platinum’s (Amplats’) “migration” from the Mine Health & Safety Act (MHSA) to the Occupational Health and Safety Act (OHSA) at some of its operations, calling it unlawful.

The union states that Amplats began the migration process last year, seeking to exclude the Waterval Smelter, Anglo Converter Plant, Precious Refinery, Rustenburg Base Metal Refinery and Mortimer Smelter from the regulatory regime of the MHSA and instead move that under the regulatory regime of the OHSA.

These operations were previously under the regulatory regime of the MHSA.

“When Anglo American sold its mines in Rustenburg to Sibanye-Stillwater in 2016 and Siyanda in 2018, we also ceased owning any of these mining rights. However, we do still own processing operations there and, as these aren’t associated with a mining right, the applicable health and safety laws governing these operations is now the OHSA and not the MHSA,” Amplats told Mining Weekly.

The NUM has argued that, regardless of who owns the mining rights, the refineries and smelters remain part of mining activities as defined in the MHSA.

Amplats, however, has said the migration is being effected to ensure better health and safety standards.

“The safety of our staff is our top priority. So, it is vital that each of our sites operates under the correct legal health and safety standards and framework,” the company said.

The NUM has accused Amplats of inventing the “migration process” – a concept the union says does not exist in law.

“Neither the MHSA nor OHSA provides for migration from one Act to the other. The only similar provision in law is Section 79 of the MHSA, which requires an employer to apply to the Minister to be exempt partially or in whole from the provisions of the MHSA. The Section 79 process requires the applicant to provide cogent reasons why such an exemption should be granted,” the union points out.

Meanwhile, Section 1(3) of the OHSA provides that the OHSA shall not apply in respect of a “mine, mining area or any works as defined in the Mineral and Petroleum Resources Development Act”.

The NUM has argued that Amplats has no such cogent reasons.

Since Amplats has not acceded to the NUM's demand to halt the migration, the union has launched an interdict application to the High Court in the hope that the migration will be declared unlawful.

“We served all of them, including the Ministers of [the] departments [of Mineral Resources and Energy and Employment and Labour], with court papers. However, none of them have filed court papers to indicate whether they support this unlawful conduct by Amplats or not,” NUM said.

“We call upon Minister Gwede Mantashe and Minister Thulas Nxesi, together with their Chief Inspectors, to file affidavits in court and declare their stance on this matter.”

The NUM has declared a dispute and launched an application in the High Court. It says it will pursue the matter as high as the Constitutional Court, if needs be.

“To enable the transition to the correct legal health and safety standard and framework, we have engaged in extensive consultation over the last two years with both our regulators and labour unions.

“The transition to compliance with the OHSA continues to provide our staff with healthy and safe operating standards and will have no bearing on employment opportunities at our operations, but simply allows the correct health and safety law to govern these operations,” Amplats stated.

The NUM special congress has reflected on the longstanding resolution tabled at the National Economic Development and Labour Council by the Congress of South African Trade Unions and other federations to merge the MHSA and OHSA.

“The NUM believes that MHSA is more protective of the rights of the workers compared to OHSA, in that the MHSA is more directive and well-regulated compared to OHSA. Accordingly, we call upon Parliament to expedite the process of promulgation of the merging of the two [pieces of] legislation,” the union says.