On 1 May 2020, in the case of Association of Mineworkers and Construction Union ("AMCU") v Minister of Mineral Resources and Energy and Others, the South African Labour Court, ordered the Chief Inspector of Mines ("Chief Inspector"), by no later than 18 May 2020, to publish a notice in the Government Gazette containing Coronavirus (COVID-19) specific health and safety guidelines for the mining industry, in terms of the Mine Health and Safety Act, 1996 ("MHSA").
The application was brought by AMCU and heard before van Niekerk J on 29 April 2020 and 30 April 2020.
AMCU sought urgent relief in the form of an order compelling the Minister of Mineral Resources and Energy ("DMRE Minister") to declare COVID-19 a health hazard in terms of section 76(1) of the MHSA, in the alternative, requiring the Chief Inspector to issue a guideline for the compilation and implementation of a mandatory code of practice to prevent and/or limit the exposure to COVID-19 at working places at mines, in accordance with sections 9(2), 9(3), read with section 49(6) of the MHSA and in the further alternative, that the regulations published under the Disaster Management Act, 27 of 2002 ("DMA"), issued in terms of the Government Notice 318 of 18 March 2020, as amended, be declared to be constitutionally invalid and set aside.
On 16 April 2020, the Minister of Cooperative Governance and Traditional Affairs issued amended regulations in terms of the DMA, which in effect declared all mining operations as ‘essential services’ and therefore exempted all mines from national lockdown regulations, subject to certain conditions. These included a requirement that all collieries that supply Eskom must continue to operate at full capacity, and that other mining operations operate at a reduced capacity of 50% during the lockdown, subject to having COVID-19 health protocols in place.
On 29 April 2020, the DMRE Minister issued directions in terms of the DMA ("DMRE Directions"). According to the DMRE Directions, in implementing Regulation 11K of the DMA Regulations every employer conducting mining operations and activities in connection therewith at a mine, is required to implement appropriate measures to protect the health and safety of employees in respect of COVID-19. Such measures must be contained in a standard operating procedure which must be developed in consultation with organised labour or worker representatives at the mine. In the development of such standard operating procedure, the following must be applied:
- the relevant guidelines issued by the World Health Organisation;
- directions and guidelines issued by the National Department of Health;
- guidelines issued by the National Institute of Communicable Diseases; and
- the risk-based approach embedded in the Guiding Principles of Prevention and Management of COVID-19 in the South African Mining Industry issued by the Chief Inspector of Mines of the Department of Mineral Resources and Energy on 29 March 2020.
AMCU contended that there are half a million mineworkers across South Africa, which means that over 250 000 mineworkers would soon return to work and returning mineworkers would face intense risks of COVID-19 infection. Despite this risk, the DMRE Minister and the Chief Inspector have decided not to exercise their powers under the MHSA to impose binding obligations on employers to protect mineworkers from the COVID-19 pandemic. Furthermore, AMCU argued that regulations concerning mining that have been passed by the Minister of Cooperative Governance and Traditional Affairs are woefully inadequate to ensure that mineworkers are protected from COVID-19. AMCU argued that this failure will jeopardise the health of a quarter million mineworkers, as well as their host communities.
Consequently, AMCU sought to review and set aside the Chief Inspector’s decisions not to enact guidelines in terms of section 9(3) of the MHSA.
The DMRE Minister and the Chief Inspector raised a number of grounds to oppose the relief sought by AMCU, including amongst others:
- that the COVID-19 pandemic is a public health matter rather than an occupational health issue. They contended that the risk presented by COVID-19 remains best controlled through regulatory measures under the DMA.
- that AMCU had not established that unless the Chief Inspector compels employers in the mining industry to implement mandatory codes of practice, employers will not protect the health of workers. Further, they disputed that there is a need for a single detailed set of national standards.
- that even if AMCU’s assertion that employers ought to be compelled to implement measures under section 9 of the MHSA is correct, the DMRE Minister has issued directions requiring every employer carrying out activities to implement appropriate measures to protect the health and safety of workers, which measures must be contained in a standard operating procedure, developed in consultation with organised labour or worker representatives at the mine concerned. In other words, the existing regulatory regime is both sufficient and adequate.
All the parties agreed that there was a need for urgent, detailed, binding national standards to guide employers and protect mineworkers against the hazards presented by COVID-19to return to work in the mining industry. However, AMCU and the DMRE Minister and the Chief Inspector disagreed about which statutory mechanism should be employed to achieve that purpose.
What was at issue was the reasonableness of the decision not to invoke section 9 of the MHSA - more specifically, whether the decision fails to meet the threshold for reasonableness that is set by section 6(2)(h) of Promotion of Administrative Justice Act 3 of 2000.
Van Niekerk J held that COVID-19is both a public health issue, and an occupational health issue. It requires both a public health response, and an occupational health response in the specific context of mines, which is what section 9 of the MHSA is designed to achieve. He added that applying section 9(2) and (3) of the MHSA to the circumstances of the COVID-19epidemic is entirely consistent with the purpose of the MHSA generally; and not applying sections 9(2) or (3) (or section 76) will tend to defeat these objects of the MHSA.
Van Niekerk further stated that it is self-evident that a code of practice under section 9 and the enforcement measures established by the MHSA provide an appropriate mechanism to address COVID-19 hazards effectively, with due deference to the position of particular mines and with appropriate degrees of flexibility.
Van Niekerk J further held that the guidance note issued by the DMRE and the DMRE Directions issued on 29 April 2020 are not in themselves adequate to meet the defined purposes of the MHSA, which include (i) the protection of the health and safety of patients at mines, (ii) the obligation on employers to identify hazards and to eliminate, control and minimise risks relating to health and safety, (iii) to provide for the effective monitoring of health and safety conditions at mines and (iv) to provide for the enforcement of health and safety measures at mines.
Van Niekerk J further said that the DMRE Directions contemplate only the development of the standard operating procedure (SOP) by every employer at a mine. There is no time limit for the implementation of the required SOP, and the DMRE Directions do not establish a mechanism for interim protection, nor is there any provision for review by the Chief Inspector or any compliance mechanism. In comparison, a code of practice issued under section 9 of the MHSA will have the advantage of a single, national standard in the form of guidelines issued by the Chief Inspector, a standard that is set after consultation with representatives of employees and workers in the industry. Any code of practice is furthermore subject to review by the Chief Inspector, who may instruct an employer to review any code of practice within a specified period in the event that the code does not comply with a guideline or is otherwise inadequate to protect the health and safety of employees
Moreover, Van Niekerk J held that:
“In my view, …the chief inspector’s failure to appreciate the concurrence of public and occupational issues presented by COVID-19 in the mining industry, and his decision not to invoke section 9 of the MHSA in the face of the profound threat to occupational health and safety and the inadequacy of the measures designed to address it, led to an unreasonable result or outcome, and his decision thus stands to be reviewed and set aside.”
In the circumstances, the Labour Court directed the Chief Inspector to publish a notice (the "Notice") in the Government Gazette containing guidelines in terms of section 9(3) and 49(6) of the MHSA and in terms of section 9(2) thereof requiring employers (as defined in the MHSA) to prepare and implement a code or codes of practice, to mitigate the effect of the outbreak of COVID-19on the health and safety of employees (as defined in the MHSA) and persons who may be directly affected by the disease at the mine, by no later than 18 May 2020.
The parties also agreed that, pending the publication of the Notice and the lodging of codes of practice with the Chief Inspector in terms of section 9(5) of the MHSA, and in addition to complying with any regulations and directions issued under section 27(2) of the DMA, all employers will, at a minimum, comply with the agreed interim SOP, which provides for minimum standards until the formal gazetting by 18 May 2020.
AMCU had also sought, as further alternative relief, the setting aside of the regulations published under the DMA insofar as they authorised mining, but the Labour Court did not make an order in that regard.
It must be noted that in terms of section 91(1B)(c) of the MHSA, read with section 91(1C) and section 55, a contravention of or failure to comply with any standard in any code of practice prepared in terms of section 9(2) renders the employer liable to an administrative fine. The only time non-compliance with a standard is not an offence is when the standard exceeds the compulsory standards set in the Chief Inspector’s guidelines, and the employer did comply with the compulsory standard in the guideline.
The DMRE Minister was further ordered to publicise the court order, by publishing a copy of the court order in the Government Gazette within 5 days. On 5 May 2020 the DMRE Minister published the court order for general notice in the Government Gazette.
The judgment in this case serves as a reminder to employers that, whilst it is important to ramp up production and protect the livelihood of employees, their health and safety is equally as important.
Please feel free to contact us should you require further details regarding the judgment and the court order.
We will continue to keep you updated with any developments in the mining industry.
Written by Godfrey Malesa, Mmaphuti Morolong, Stimela Mokoena, Fasken