The draft Mine Health and Safety Amendment Bill, 2013 (Bill) was published in Government Gazette no 37027 on 15 November 2013. Click here for a copy of the Bill including the Memorandum on Objects of the Bill.

The Bill seeks to amend the Mine Health and Safety Act, No. 29 of 1996, as amended (MHSA) so as to:

• rationalize administrative processes;
• review enforcement provisions;
• reinforce offences and penalties;
• amend certain definitions; and
• provide for matters connected therewith.

The Department of Mineral Resources' invitation to provide written submissions on the Bill within 60 working days of the date of publication provides an opportunity for stakeholders to participate in the content of the Bill before it is introduced to Parliament.

Some of the key amendments in the Bill include:

Further guidance in respect of personal protective equipment

In terms of the MHSA, employers are required to provide a variety of "suitable" personal protective equipment (PPE). The term "suitable" is defined in the Bill as "appropriate in terms of size and fit; type of workplace hazards; and purpose and nature of work to be undertaken".

This requirement is to be welcomed as it accommodates the needs of women working on mines. However, to demonstrate that these considerations have been taken into account, employers will need to ensure that PPE is properly assessed and appropriately considered in the applicable risk assessments.

The engagement of occupational hygienists

The Bill seeks to amend the current obligation that an employer engages an occupational hygienist. Under the Bill, employers must appoint, on a part-time or full-time basis, a person qualified in occupational hygiene techniques to perform occupational hygiene services at the mine.

Importantly, the Bill also includes a specific obligation that employers supply occupational hygienists with the means to perform their functions.

Medical surveillance systems and fitness to work

The Bill appears to allow the appointment of other occupational health practitioners holding a qualification in occupational health recognised by the South African Nursing Council. This is an addition to the current content of section 13 of the MHSA, which requires employers to engage an occupational medical practitioner either on a part-time or full-time basis. The Bill requires an employer to appoint an occupational medical practitioner, rather than engage, as is currently the position.

With regard to decisions of medical unfitness, the Bill seeks to introduce a time period of seven days within which the appropriate occupational medical practitioner must, upon finding that the employee is unfit to work, furnish the employee with a certificate to this effect. The notification must be in writing and must also be provided to the medical inspector, within the Mine Health and Safety Inspectorate, together with reasons for the decision taken.

Importantly for employers, the proposed amendments to section 20 of the MHSA seek to require the medical inspector to a) confirm receipt of any appeal against a finding of unfitness to work and b) inform the employer of the appeal.

Further, the medical inspector will be required to make a decision on the outcome of the appeal within 60 days. This is important, given that the Bill retains the requirement that an employee who has lodged such an appeal may not be dismissed on the grounds contemplated in section 20 relating to unfitness to perform work, pending the outcome of the appeal.

Training

The Bill proposes that employers be required to provide formal health and safety training. Formal training is defined as "any relevant training contemplated in section 10(2)" of the MHSA, which must be properly structured and assessable.

This, together with the proposed removal of the words "reasonably practicable" will have a significant impact on the way in which employers approach training.

Criminal penalties

The Bill proposes that any person who is a company that is convicted of an offence in terms of the MHSA may be sentenced to a fine not exceeding 10% of the company's annual turnover for the period during which the company failed to comply with the relevant provision, or to imprisonment not exceeding 10 years. There are a number of significant concerns with this proposed section. It is likely to be vehemently opposed in its current form.

The Bill proposes further that penalties for non-compliant employers convicted of an offence in schedule 8 of the MHSA be more stringent.

Other

Various other amendments will have a significant impact on employers. For example those relating to the:

• involvement of the Mines Health and Safety Council;
• establishment of a fund for monies paid in respect of administrative fines;
• definitions of "mine" and "mining areas";
• specific inclusion and references to contactors; and
• administrative process of dealing with instructions issued in terms of section 54 of the MHSA and instructions of inspectors.

Conclusion

While the Bill purports to be focussed on outputs rather than rule driven and prescriptive approaches, it is unlikely to achieve this goal in its current form.

Interested parties would be well advised to submit considered and substantive comments to ensure proper participation in the consideration of the Bill and its impact on employers. The Webber Wentzel Health and Safety team will be preparing substantive comments in this regard, which we hope to discuss in detail with our clients in the New Year.

Compiled by Kate Collier and Ntokozo Sibindi, Webber Wentzel.