Legal Liability for Supervisors (MHS Act) PDF

SAFETY AND TRAINING SOLUTIONS 16/MQA/0400/AC4/29-513 LEGAL LIABILITY FOR SUPERVISORS (MHS ACT) LEARNER GUIDE Safety and Training Solutions, PO Box 219, Menlyn, 0063 Tel: (012) 996 1381, Fax: 086 612 7392, E-...

SAFETY AND TRAINING SOLUTIONS 16/MQA/0400/AC4/29-513 LEGAL LIABILITY FOR SUPERVISORS (MHS ACT) LEARNER GUIDE Safety and Training Solutions, PO Box 219, Menlyn, 0063 Tel: (012) 996 1381, Fax: 086 612 7392, E-mail: [email protected] 16/MQA/0400/AC4/290513  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I N IPage N G 2S of O L107 UTIONS © Copyright 2005 SAFETY AND TRAINING SOLUTIONS (PTY) LTD All rights reserved Printed in South Africa Published by Safety and Training Solutions (Pty) Ltd PO Box 219, Menlyn, Pretoria, 0063 Worldwide publishing and distribution rights held by Safety And Training Solutions (Pty) Ltd, PO Box 219, Menlyn, Pretoria, 0063. No part of this document may be reproduced by any means, nor transmitted, nor translated into a machine language without prior written permission of the publisher. The information contained in this reference material is distributed as a guide only; it has been compiled from sources believed to be reliable and to represent the best current opinion on the subject. No warranty, guarantee or representation is made by Safety And Training Solutions as to the absolute correctness or sufficiency of any representation contained in this reference material, and Safety And Training Solutions assumes no responsibility in connection therewith; nor can it be assumed that all acceptable risk control measures are included herein, or that other measures may not be required in particular or exceptional conditions or circumstances. While Safety and Training Solutions does not undertake to provide a revision service or guarantee accuracy, we shall be pleased to respond to your individual requests for information at any time. Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I N IPage N G 3S of O L107 UTIONS INDEX Page 1. : Learning Outcomes 4 2. : Introduction to the Mine Health and Safety Act 5 3. : Definitions 10 4. : Nature and content of the Mine Health and Safety Act 12 5. : Index to the Regulations 14 6. : Objective of the MHS Act 18 7. : General duties of the Employer 18 8. : Duties and Right of the Employee 21 9. : Appointments and Competencies 25 10. : Trackless Mobile Machines 40 11 : Requirements when Flammable Gas is detected 47 12 : Requirements of Flexible Trailing cables 48 13 : Requirements regarding Dust control 48 14 : Requirements regarding the supply of water 49 15. : Health and Safety Representatives 49 16. : Risk Assessments 52 17. : Incident Reporting 54 18. : Incident Investigation 58 19. : Planned Task Observations 59 20. : Education and Training 60 21. : Occupational Hygiene 61 22. : Occupational Health 61 23. : Manufacturers Liability 65 24. : Hazardous Substances 66 25. : Introduction to the Regulations 69 26. : Statutory Compliance: Criminal and Civil Liability 72 27 : Codes of Practice 79 28. : Personal Protective Equipment – Legal Reference 84 29. : Contractors – The Legal Positions 85 30. : Powers and functions of the Inspectorate 90 31. : Offences and Penalties 100 Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I N IPage N G 4S of O L107 UTIONS LEGAL LIABILITY FOR SUPERVISORS (MHS ACT) SAQA US UNIT STANDARD TITLE NQF LEVEL CREDITS 110205 Demonstrate knowledge of the Mine Health and Safety Act, 2 5 regulations and definitions LEARNING OUTCOMES Learners, who have completed the training, will: Have a clear understand of the aims of the MHS Act, 29 of 1996 Be able to explain the aspects of the MHS Act, 29 of 1996 Be able to explain the aspects of the Regulations Understand the content of various definitions Understand his/her roles and responsibilities with regard to compliance with the MHS Act THE STATUTES These are the statutes on which this course is primarily based: 1. The Mine Health and Safety Act 29 of 1996 and Regulations 2. The Minerals Act 50 of 1991 and Regulations Reference will also be made to other legislation that could have an impact on the dominant theme of this course, namely Health and safety in the mining industry, the most notable legislation would be the Occupational Health and Safety Act 85 of 1993 and Regulations and the Labour Relations Act 66 of 1995. Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I N IPage N G 5S of O L107 UTIONS INTRODUCTION TO THE MINE HEALTH AND SAFETY ACT The Mine Health and Safety Act 29 of 1996 (MHSA) is a very complex statute regulating health and safety at the workplaces. It thus reflects the standards society expects when it comes to workplace health and safety. It is commonly accepted that there will always be some form of ‘risk’ exposure at the workplace, and the Act accordingly recognizes this. It however expects every person at a workplace to do all that they can to minimize the chance of an accident or incident at the workplace. In short, it expects every person to act like a reasonable person when it comes to the maintenance of health and safety at their workplace. Health and Safety at a workplace is a team effort involving everyone from top level management to the lower rank employees. Experience has shown that many employees still believe that health and safety is only the problem of senior management. The legal view is that this is not what one would expect of a reasonable employee, and any employee holding such a belief risks being penalised in terms of the Act. WHY THE NEED FOR LEGISLATION? A reasonable employer (i.e. a normal employer) would accept that he has an obligation to continuously protect his employees against unnecessary hazards that may endanger their health and safety. This would be a social as well as a moral norm. But why the need for legislative control? 1. The Act Creates a Standard The health and safety at a workplace is definitely a team effort and could only be achieved when all the players involved ensure that they know the legal rules and play accordingly. The legal rules and penalties for disobeying the rules create a standard that everyone can and should be aware of. Without such a standard, one’s approach to health and safety would be subjective and this would create confusion among the players. Not all the employers or employees share the same values with regard to occupational health and safety and the Act has been necessary in the past, to bring irresponsible employers and employees to justice. 2. Society Demands the Act Unfortunately major disasters stimulate the public and employee’s awareness of occupational health and safety. Tragically this happens often in South Africa’s mining industry. The Vaal Reefs disaster of May 1995, in which 104 lives were lost, as the result of a locomotive crashing through its safety barriers, and down the shaft, invoked greater public outcry than any previous mine accident. Therefore the state, which is a representative of the public, has to act on such public outcry by for example drafting legislation designed to prevent workplace disasters. Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I N IPage N G 6S of O L107 UTIONS 3. If There Were No Act The following statement made by the Judge in [Barker v Union Government] may serve as an indication of the possible consequences if there were no act: “Absolute safety under all circumstances is not guaranteed to the labourer by the contract of employment. The employer is not an insurer. He is not bound to furnish the safest machinery, or to provide the best possible means for its operation, in order to relieve him from responsibility.” 4. Normal Legal Remedies Are Not Adequate The employment contract of the employee itself would not provide him/her with much recourse against his/her employer for an injury sustained at work. He/she could consider bringing a civil claim for the injuries against his employer but to do so he would have to prove, on a balance of probabilities that his employer’s negligence resulted in his injuries. This situation could cause many employees to not bother because the employee pursuing a civil remedy could possibly be exposed to victimization, or the threat of losing his job. Such a scenario would not necessarily motivate the employer to take all reasonable steps to safeguard the health and safety of his employees. Thus the need for legislation that makes an irresponsible attitude towards workplace health and safety a criminal offence. BACKGROUND OF THE MINERALS ACT The statutory regulation of health and safety in the mining industry can be traced back to the Mines and Works Act 27 of 1956. The Mines and Works Act consisted of the Act and several regulations. The Act itself consisted of only 21 sections. The regulations were made to regulate specific problems and situations that occurred in the mining industry, most issues were addressed in these regulations. The Mines and Works Act, No 27 of 1956 got repealed by the Minerals Act on 1 January 1992 with the exception of Section 9, which was a restriction on Sunday work and other relevant definitions. The Minerals Act did however not repeal all the regulations made in terms of the Mines and Works Act, most of the well known regulations is still in place. Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I N IPage N G 7S of O L107 UTIONS 1. Individual liability The concept of individual liability for workplace incidents were created by the Mines and Works Act. The owner of the Mine or Works could now do an appointment in writing for a manager in terms of Regulation 2.5.1 because provision was made for this. Regulation 2.5.1 stated that each mine and works should be under a manager who would be responsible for the control, management and direction of the mine or works. Insofar as responsibility for health and safety was concerned, the manager had the following functions: He had to take all reasonable measures to comply with and enforce the requirements of the Minerals Act as well as with the orders given by inspectors in the interests of health and safety and to ensure that employees observe them. He had to take all reasonable measures to provide for the safety and proper discipline of the employees. He had to prevent the employment of incompetent workmen for dangerous work. (This provision is however still in force under the Minerals Act). The Minerals Act had in essence retained the most important and sufficient of the above, although the duties and responsibilities of the mine manager, which was now provided for, in terms of section 31 of the Act itself, were more strongly formulated. Section 31 forms part of the now repealed Chapter 5 of the Minerals Act. The Mines and Works Act also provided for the appointment of subordinate managers in terms of Regulation 2.6.1. The Minerals Act retains this provision. A subordinate manager is appointed to assist the manager in the control, management and direction of a mine or works and has the same responsibilities as the manager, but for a reduced area of responsibility. The manager's responsibilities were redefined with the enactment of the Minerals Act, as were the responsibilities of a subordinate manager. This was done to demonstrate that more was expected from management with regard to occupational health and safety. Notwithstanding the above, the Engineer in charge was effectively the person held responsible for what occurred at a workplace. The reasoning behind this is that by virtue of his background, he is the most competent person to explain, for example why a particular installation has failed. The problem therefore was that the manager still controlled the provision of health and safety resources, and because the inspectors did not really hold him accountable, he was, invariably, not inspired to be generous in the provision of such resources. The reformulation of the Manager’s duties and responsibilities, as mentioned above, was intended to address this issue. Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I N IPage N G 8S of O L107 UTIONS 2. Administration The Government Mining Engineer Deputy and Assistant Government Mining Engineer, inspectors of mines and inspectors of machinery supervised the Mines and Works Act. The inspectors were the officials that practically administered and policed the Act at the workplace. They had wide ranging powers and even had jurisdiction, under certain circumstances, to convict and sentence contraveners of regulations and/or special rules. The inspector could, however, impose a fine only and not a jail sentence. The employer had the right to withhold payment of wages from a contravener who failed to pay his fine, and to pay the amount over to the inspector. There was a special provision requiring an inspector to pay all fines received over to the State Revenue Fund. The Minerals Act was, in turn, administered by the Director-General of the Department of Mineral and Energy Affairs. The application of the Act's provisions was done under the direction of and was subject to the instructions of a deputy director (generally known as the Government Mining Engineer). Regional Directors were appointed on a regional basis and were to a great extent autonomous in their regions. They had a multitude of functions and were assisted by a Regional Mining Engineer and other officers. 3. Offences and Penalties The Mines and Works Act made a person guilty of an offence if he, by his act or his omission, caused serious bodily injury to any other person. The maximum fine was R 1 000 and only if he failed to pay this fine, could he be sentenced to jail for a period not exceeding twenty four months i.e. a jail sentence was not really a threat as long as he had enough funds to pay the R 1000 fine. The Minerals Act had a similar provision although it added the requirement of negligence. The fine was R 15000 initially, but the Minerals Amendment Act did away with these limits. What is important though, is that the Minerals Act provided that a jail sentence of 2 years could be imposed without the option of first paying a fine. NATURE AND CONTENT OF THE MINERALS ACT Health and safety forms an integral part of most of the provisions of the Act, although health and safety is now addressed primarily by the Mine Health and Safety Act. For example, the chapter on authorization to prospect and to mine may, when first considered, have very little to do with health and safety, but it plays an important role in the assessment of the boundaries of a mining area i.e. to ascertain which health and safety legislation is applicable. Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I N IPage N G 9S of O L107 UTIONS The Minerals Act is now intended to regulate the issues of mining which do not necessarily deal with health and safety, as is summed up in the revised objective: “...To regulate the prospecting for, and the optimal exploitation, processing and utilization of minerals;... To regulate the orderly utilization and the rehabilitation of the surface of land during and after prospecting and mining operations; and... To provide for matters connected therewith....” INDEX TO THE MINERALS ACT Chapter 1: Definitions: Chapter 2: Administration of the Act Sections 2 to 4 provide for the division of the republic into regions for administration purposes, as well as the appointment of Directors: Mineral Development (previously regional directors). Chapter 3: Authorization to Prospect and To Mine Sections 5 to 16 regulate the right to prospect and to mine, the issuing of prospecting permits, the issuing of mining authorization, etc. An in-depth knowledge of these provisions is not needed. Chapter 4: Optimal Exploitation and Utilization of Minerals Sections 17 to 25. These provisions have very little to do with health and safety as this chapter has, as its primary aim the protection and optimal use of our natural resources. Chapter 5: Safety and Health Sections 26 to 37. This chapter was previously of prime importance for the purposes of health and safety. This chapter was, however, repealed by the promulgation of the Mine Health and Safety Act, which not only addresses health and safety issues previously included in this chapter, but also additional health and safety requirements. Chapter 6: Rehabilitation of Surface Sections 38 to 42. This chapter was extensively revised by the Minerals Amendment Act, 1993. Issues addressed include rehabilitation, environmental management, and the removal of buildings. Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I NPage I N G 10 SOofL107 UTIONS Chapter 7: Transitional Provisions Sections 43 to 50. The issues dealt with include the continuation of prospecting rights, the deproclamation of land, the continuation of mining rights, etc. The right to certain diamonds is vested in the state. Chapter 8: General and Miscellaneous Provisions SOME IMPORTANT DEFINITIONS Hazard Is something that has the potential to cause loss, harm or detriment to people, equipment or the environment. (A condition or practice with the potential for harm) Risk Risk is the likelihood of a hazard occurring and the consequences thereof Hazardous Area Is an work area in which there is a potential for loss or harm to people, the environment or equipment, occurs Waiting Place For the requirements of the Regulations. Awaiting place means waiting places provided by the manager for persons prior to entering any workplace, and by means approved by the principle inspector in writing, prevent persons entering a workplace until being instructed to do so by the miner after declaring the workplace safe Self Propelled Machinery Means any self propelled mobile machine that is used for the purpose of performing mining, transport or associated operations underground or on surface at a mine and is mobile by virtue of its movement on wheels, skids, tracks, mechanical shoes or any other device fitted to the machine, but excludes rail bound equipment, scraper winches, mono rail installations, static winches, draglines, winding machinery installations, track mounted conveyors and any equipment attached thereto; Explosion Protected Apparatus Explosion protected apparatus means any apparatus designed for use in a hazardous area and includes Flameproof Apparatus, Intrinsically Safe Apparatus and Increased Safety Apparatus Ventilation District Means a section having its own independent intake airway commencing from the main intake airway, and its own independent return airway terminating in the main return airway Accessible Working Means any place in or on a mine where access can be gained and has not been permanently sealed off or where caving has taken place Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I NPage I N G 11 SOofL107 UTIONS 2. BACKGROUND TO THE MINE HEALTH AND SAFETY ACT Chapter 5 of the Minerals Act previously regulated health and safety at a mine. It was however felt that Chapter 5 did not deal with this issue sufficiently enough. Certainly, the frequency and seriousness of mining disasters seemed to support this view. In particular, the Merriespruit disaster of 1994, in which the wall of a slimes dam collapsed, moved the Government to appoint a commission of inquiry into health and safety in the mining industry. This commission was under the chairmanship of Mr. Justice R.N. Leon. The commission's mandate was to investigate all aspects of the legal regulation of health and safety in the mining industry as defined in the Minerals Act No 50 of 1991, and it subsequently made recommendations to the State President on possible improvements to existing regulatory legislation and the implementation of these changes, in the light of prevailing circumstances within the mining industry. 1. Recommendations Of The commission The recommendations of the commission not only related to amendments to be made in the Minerals Act 50 of 1991, but also to the drafting of a new Act. The recommendations were as follows: 1. A new Act, devoted to health and safety in the mining industry only, should be drafted. 2. The existing regulations under the supervision of the Mining Regulation Advisory Committee (MRAC) should be upgraded. 3. New regulations should be drafted concerning the following: Accidents caused by falls of ground. Accidents from Haulage and Transport Underground. Occupational Health. Coal Mine Explosions and Respirable Dust. Restructuring of the Department of Mineral and Energy Affairs. 4 Regulations dealing with occupational health in mines should be promulgated as soon as possible. These regulations require, inter alia, that the mine owners provide medical surveillance for the diseases on the mine; and the mine manager ensures that the owner's surveillance scheme is properly operated, and that adequate records are kept, and supplied (subject to medical ethics). Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I NPage I N G 12 SOofL107 UTIONS 5 A Mine Health and Safety Council must be established to advise the Minister on all matters relating to health and safety in mines, the relevant legislation and the enforcement thereof. 6 The owner must appoint those persons slotting in between the manager and the owner in the hierarchy, e.g. consulting engineers. 7 A system of health and safety representatives should be established at each mine, with at least one representative per 100 non-managerial employees. The manager, in consultation with the workforce should facilitate their election, and define the workplaces to be covered. 8 One or more Mine Health and Safety Committee(s) should be established by the manager at each mine, after consultation with workplace representatives. 9 The mining industry should develop a methodology for assessing the most serious hazards at the workplace. 2. Drafting of the new Act During 1995 the Parliamentary Mineral and Energy Affairs Portfolio Committee supported the recommendation for the drafting of a new Act and shortly thereafter the Cabinet approved the implementation of this recommendation. The Mine Health and Safety Bill was subsequently drafted by MRAC. MRAC is a tripartite body comprising of members of the state, employers and employees that was established on a voluntary basis. The main objects of the Bill were to promote and protect the health and safety of all persons employed or working at mines. THE ACT: A NEW APPROACH The main goals and features of the Act are as follows: To promote a culture of health and safety; To provide for the enforcement of health and safety measures; To provide for appropriate systems of employee, employer, and State participation in health and safety matters; To establish representative tripartite institutions to review legislation, promote health and enhance properly targeted research; To provide for effective monitoring systems and inspections, investigations and inquiries to improve health and safety; Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I NPage I N G 13 SOofL107 UTIONS To promote training and human resources development; To regulate employers’ and employees’ duties to identify hazards and eliminate, control and minimize the risk to health and safety; To entrench the right to refuse to work in dangerous conditions; and To give effect to the public international law obligations of the Republic relating to minimizing health and safety. The most important feature of the Act is the style of drafting. The traditional method of drafting long hard- to-understand paragraphs has been replaced by more reader friendly language. NATURE AND CONTENT OF THE MINE HEALTH AND SAFETY ACT This Act is dedicated solely to health and safety within the mining industry, which was not the case with the amended Minerals Act. The promulgation of the Mine Health and Safety Act did not have the effect of repealing the Minerals Act. It did however repeal the chapter devoted to Health and Safety in the Minerals Act (Chapter 5), thereby creating a "New Minerals Act", dealing only with the prospecting of minerals, their utilization and processing, rehabilitation of land and matters connected therewith. The Mine Health and Safety Act consist of 106 sections, which are divided into 8 chapters. Chapter 1 Objects of Act Chapter 2 Health and Safety at Mines Chapter 3 Health and Safety Representatives and Committees. Chapter 4 Tripartite Institutions Chapter 5 Inspectorate of Mine Health and Safety Chapter 6 Minister’s Powers Chapter 7 Legal Proceedings and Offences Chapter 8 General Provisions Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I NPage I N G 14 SOofL107 UTIONS NATURE AND MINE HEALTH AND SAFETY ACT REGULATIONS The Mine Health and Safety Regulations were originally mostly derived from the Minerals Act 50 of 1991. Regulations of the Minerals Act that deals with health and safety matters are continuously being repealed and incorporated into the Mine Health and Safety Act. In addition, a number of new regulations, unique to the MHS Act, have been promulgated in the last few years and will continue to be promulgated from time to time. The result of this state of affairs is that it is now crucial that management always keeps up to date with what is published in the Government gazette. Index to the Regulations: Chapter 1 - Appointments and Administration Chapter 2 - Duties and Responsibilities Chapter 3 - Electricity Chapter 4 - Explosives Chapter 5 - Fires and Explosions Chapter 6 - Health and Safety Representatives and Committees Chapter 7 - Inspectorate of Mine Health and Safety Chapter 8 - Machinery and Equipment Chapter 9 - Mine Environmental Engineering and Occupational Hygiene. Chapter 10 - Miscellaneous and General Provisions Chapter 11 - Occupational Medicine Chapter 12 - Offshore Installations Chapter 13 - Outlets, Ladder ways and Travelling Ways Chapter 14 - Protection of the Surface and the Workings Chapter 15 - Qualifications and Competencies Chapter 16 - Rescue, First Aid and Emergency Preparedness and Response. Chapter 17 - Surveying, Mapping and Mine Plans Chapter 18 - Tripartite Institutions Chapter 19 - Underwater Mining Chapter 20 - Definitions Chapter 21 - Forms Chapter 22 - Schedules Chapter 23 - Reporting of Accidents and Dangerous Occurrences Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I NPage I N G 15 SOofL107 UTIONS ADVISORY COUNCIL ON THE MINE HEALTH AND SAFETY ACT Essentially 3 parties have a role in giving effect to the mining legislation: a) Department of Minerals and Energy It implements and administers the legislation. It appoints the Inspectorate which has the role of “policeman” i.e. checking compliance with the Acts. b) Employer and Employees They are responsible for carrying out compliance with the legislation. c) Mine Health and Safety Council The Tripartite setup Chapter 4 of the Mine Health and Safety Act provides for the establishment of an advisory council consisting out of: Five members representing employers in the mining industry; Five members representing the employees in the mining industry; Four members representing departments of the State; and The Chief Inspector of Mines who must chair the council. These 15 members represent management, workers and the state. The Mine Health and Safety Council advises the Minister on health and safety matters. It consists of three permanent committees: i) Mining Regulation Advisory Committee. (MRAC) ii) Mining Occupational Health Advisory Committee. (MOHAC) iii) Safety in Mines Research Advisory Committee. (SIMRAC) Sections 45 and 46 of the Mine Health and Safety Act provide for the establishment of the Mining Qualifications Authority. Like the abovementioned Council, it consists of 15 members from management, workers and the state. This council’s functions are mainly as follows: They seek registration as a body responsible for generating education and training standards and qualifications; They seek accreditation as a body responsible for monitoring and auditing achievements; They propose education and training standards and qualifications to bodies; They generate education and training standards and qualifications; They also monitor and audit achievements in terms of the standards and qualifications; and they perform the function of a sector education and training authority. Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I NPage I N G 16 SOofL107 UTIONS WHERE THE MINING LEGISLATION APPLIES The Occupational Health and Safety Act (OHSA) apply as a general rule, except in respect of: mine (both the place and the activity) mining area works The mining legislation applies to these three zones and any person who enters them. These could be described in the following manner: “Mine” (verb) making excavations or boreholes, or exploitation of any mineral in any other way for the purpose of winning a mineral prospecting in connection with winning a mineral (i.e. looking beyond the area where a mineral is being won ) “Prospecting” intentionally searching for any mineral (this involves disturbing the earth by excavations or drilling) “Mine” (noun) excavation in the earth (this includes earth under the sea or other water) boreholes ( except boreholes drilled for water ) any other area where a mineral is being exploited includes all structures, machinery and roads found in such an area of excavation, and used for the purpose of extracting minerals “Mining area” includes the area adjacent to the mine also includes non-adjacent areas, provided that - they are connected to the mine by means of a road, railway, conveyor belt etc. which is owned by the mine, and is continuous; - they are under the control of the person/body who has authorization to mine; - they are used in connection with the mining operation. includes the land on which the continuous connection is situated Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I NPage I N G 17 SOofL107 UTIONS “Works” Any place, excluding a mine, where the following will be carried out: training and central rescue station the transmission and distribution of power to a consumer any operation connected to the above These definitions are not comprehensive, and the Minerals Act and Mine Health and Safety Acts should be consulted. The important thing is to know whether an operation can fall into any of these definitions. Examples of where OHSA would apply include: housing on the mining area; mining hospitals and clinics adjacent to the mining operational area; schools on the mining area; and recreational facilities on the mining area central research laboratories in the neighbouring town (Provided that these areas are not used in direct connection with mining activities). “Only if as these areas are connected to a mine by a public road” OHSA NOT EXCLUDED BY THE DEFINITIONS Section 103 - The Occupational Health and Safety Act, 1993 (Act No. 85 of 1993), is not applicable to any matter in respect of which any provision of this Act is applicable. Note, however, that in terms of Section 80 (1) the Minister may declare any provision of this Act to be applicable to the mines. Furthermore, the Act has certain regulations that could be used as precedents, e.g. the format of a material safety data sheet (GAR 7) construction regulations housekeeping and facilities regulations Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I NPage I N G 18 SOofL107 UTIONS OBJECTIVE OF THE MHS ACT (Chapter 1) The objects of this Act are- (a) to protect the health and safety of persons at mines; (b) to require employers and employees to identify hazards and eliminate, control and minimise the risks relating to health and safety at mines; (c) to give effect to the public international law obligations of the Republic that concern health and safety at mines; (d) to provide for employee participation in matters of health and safety through health and safety representatives and the health and safety committees at mines; (e) to provide for effective monitoring of health and safety conditions at mines; (f) to provide for enforcement of health and safety measures at mines; (g) to provide for investigations and inquiries to improve health and safety at mines; and (h) to promote - (i) a culture of health and safety in the mining industry; (ii) training in health and safety in the mining industry; and (iii) co-operation and consultation on health and safely between the State, employers, employees and their representatives. CHAPTER 2 Section 2 - Employer to ensure safety 1)(a) The employer must ensure that as far as is reasonably practicable, that the mine is designed, constructed and equipped to provide a healthy and safe working environment, and with a system of communication, and mechanical/electrical equipment that will achieve this purpose. (b) The employer must ensure that as far as is reasonably practicable, the mine is operated (from commissioning to decommissioning) in a way that employees can work without danger to their health and safety and that of others. (i) The employer must compile an annual health and safety, and medical report. (ii) The employer must compile an annual report to shareholders, incorporating the abovementioned reports. 2) The employer of a mine that is not being worked, but in respect of which a closure certificate has not been issued, must take reasonable steps to continuously prevent injuries, ill-health, and loss of life or damage of any kind from occurring at or because of the mine. Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I NPage I N G 19 SOofL107 UTIONS The Mine Health and Safety Act defines “Chief Executive Officer” as: the person who is responsible for the overall management and control of the business of the employer The Mine Health and Safety Act defines employer as “owner”; The Mine Health and Safety Act defines “owner” as (in relation to a mine): the holder of a prospecting permit or mining authorization issued under the Minerals Act, if a permit or authorization does not exist, the person for whom the activities of a mine are undertaken, but excludes an independent contractor if neither of the above, the last person who worked that mine or that person’s successor in title Sections 2 (1) and (2) would be regarded as the duties of the employer, summarized in a few paragraphs. These paragraphs represent what the employer would be undertaking, as his active contribution towards maintaining health and safety. Section 2 (1) (a) (ii) requires an effective communication system i.e. it is not merely a practical requirement, but has legal prescription. In this regard, it is essential that the employer maintain structured liaison with the mines - and that this liaison be documented (as proof of compliance). Flow diagrams tend to be a useful aid. Sections 2 (1) (c) and (d) require the employer to compile an annual medical report. No guidelines have ever been issued by the Medical Inspector as to the format, or even what content these reports should have. The ultimate aim of these reports is to assist the Mine Health and Safety Council (notably MOHAC) in compiling a general dossier of the state of health in the mining industry. Section 2 (a) (2) highlights the fact that statutory liability for a mine, in terms of the mining legislation, only ceases where the closure of the mine has been formalized by the issue of a closure certificate. Thus, where a mine ceases to operate, and the cessation is intended to be permanent, it would be expedient to arrange the closure certificate as soon as possible thereafter. Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I NPage I N G 20 SOofL107 UTIONS Section 5 - Employer to maintain a healthy and safe mine environment 1) The employer must, as far as is reasonably practicable, provide a working environment that is safe and without risk to employees’ health. 2) The employer must as far as is reasonably practicable: identify the hazards and assess the risks to persons other than employees, and ensure that persons other than employees who may be directly affected by the activities of the mine are not exposed to health and safety risks. Although Section 5 refers to “employer”, the general duties are equally applicable to all persons who help him run a mine - including the employer. After all, the general duties would be too much for one person to cope with. Section 5 could be seen as the overall requirements of the Mine Health and Safety Act summarized in a few sentences. Section 5 must be cross-read with the objectives of Section 1, especially: Section 1 (d) - “provide for employee participation …” Section 1 (h) (I) - “a culture of health and safety …” The employer must note the value of indemnities that visitors are required to sign. The employer will be responsible for their health and safety while they are present on the site. If negligence can be proved by the visitor, an indemnity will not protect the employer against a civil action. What is regarded as healthy and safe is not left completely to the discretion of the employer and the Mine Health and Safety Act requires him/it to co-operate with, and give feedback to, the Mine Health and Safety Council and Inspectorate. Note Section 5 (2) widens the statutory duty of ensuring health and safety to include persons other than employees, e.g. the residents, visitors and even trespassers on the mines. This means risk assessment exercises must include a focus on visitors and the community at large, e.g. slime dams and nearby villages. Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I NPage I N G 21 SOofL107 UTIONS 4. THE DUTIES AND RIGHTS OF EMPLOYEES These are set out in Section 22 & 23 of the Act and are as follows: DUTIES: a) Take reasonable care to protect their own health and safety. Examples include: wearing the PPE issued to them not taking chances or shortcuts when doing the work not coming to work intoxicated b) Take reasonable care to protect the health and safety of other persons who may be affected by any act or omission of that employee. Examples include: ensuring no unauthorized person comes close to machinery that is being tested warning visitors of on-site hazards and not letting them wander about unescorted reminding employees to wear their PPE c) Use, and take proper care of the protective clothing, equipment and facilities provided for their health and safety. Examples include: properly using a lockout procedure not using safety shoes as soccer boots on weekends not vandalizing machine guards or symbolic signs Note: The instruction given to an employee must be reasonable, and have the purpose of ensuring health and safety. Ordering the employee to do something dangerous would be unreasonable, and also unlawful in terms of MHSA. (Refer to Section 83(1)) Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I NPage I N G 22 SOofL107 UTIONS d) Immediately report any situation which they believe to be a health and safety risk to their immediate supervisor, and which they cannot sort out themselves. Situations to report on would include: damaged machine safeguards faulty machinery design flaws in a modified tipper truck e) Co-operate with any person to help him comply with his duties and responsibilities in terms of the Act. Examples include: carrying out proper Planned Task Observations reporting design flaws in the plant or machinery reporting problems encountered with a safe work procedure f) Comply with any prescribed health and safety measure. Examples include: following safe work procedures wearing the prescribed PPE and obeying symbolic signs not ignoring barricades provided for a machine Notwithstanding the fact that employees are to comply with the stated duties, no employee can comply with these duties if he is unaware thereof. This situation immediately places the onus on the employer and supervisor to ensure that all employees are instructed and trained in these duties prior to being permitted to perform work at the mine. The supervisor, for his part, would have to continuously check that the employees understand and remember their duties. Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I NPage I N G 23 SOofL107 UTIONS EMPLOYEES RIGHTS: Section 23 - Employees’ right to leave a dangerous working place. 1) The employee has the right to leave any the workplace whenever - he believes, with reasonable justification, that there is a danger to health and safety, and/or the Health and Safety Representative orders him to do so. 2) The Employer must in consultation with the Health and Safety Committee draft a procedure dealing with the following: The notification to supervisors and Health and Safety Representatives of the danger Employee participation in resolving the workplace danger Inspector participation Alternative work for the employee Warnings to other employees who work in the same workplace Regulation 8.3.2 of the Minerals Act Regulations has always had such a provision. This regulation, however, did not provide the employee with the right to leave the workplace, but placed the responsibility on the employee to report the dangerous situation to his immediate supervisor. This Regulation, clearly, did not provide the employee with the right to make his own decision as to the safety of the workplace. Although the legislators of the Mine Health and Safety Act provide employees with the right to decide to leave a dangerous working place, it is realized that employees could easily abuse this right. The provision has thus been made that the mine employer is to consult with the established health and safety committee in order to determine effective procedures for the effective exercise of this right. Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I NPage I N G 24 SOofL107 UTIONS PROCEDURE WHEN HEALTH AND SAFETY IS ENDANGERED WORKER HAS REASON TO BELIEVE WORK IS LIKELY TO ENDANGER HIMSELF OR ANOTHER PERSON WORKER Promptly reports circumstances to supervisor, remain in safe place SUPERVISOR Investigate in presence of the worker and an H & S committee member Agreement and / or resolution DISAGREEMENT Worker continues to refuse Worker has reasonable grounds to believe RETURN TO work still likely to endanger himself or WORK another worker WORKER SUPERVISOR Remains in safe place unless assigned to Notifies plant loss control manager reasonable alternative work or given other Disputed equipment or workplace not to be used directions pending investigation and decision pending investigation and decision PLANT LOSS CONTROL MANAGER Investigate in presence of employee, supervisor and employee representative PLANT LOSS CONTROL MANAGER Gives decision to employee and supervisor as soon as is practicable RETURN TO WORK CORRECT PROBLEM Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I NPage I N G 25 SOofL107 UTIONS 5. APPOINTMENTS AND COMPETENCIES The mining legislation requires that all employees are competent, especially the appointees. If they are not competent then their appointment would have very little value anyway. Ineffective appointments will result in undue exposure for the manager, an inefficient health and safety system and a real possibility that the Act's provisions may unknowingly be contravened, (note Regulation 2.10.2 which provides that the manager must not allow incompetent/inexperienced persons to perform work where persons’ health and safety may depend on proper performance.) There are three main categories of competency: Competency as defined in terms of Minerals Act Regulation 1. Whenever the mining legislation refers to a competent person, it refers to"..... a person who : 1) has the knowledge, training, skills and experience to organize the work. 2) is familiar with the legal provisions which apply to the work. 3) has been trained to recognize any potential or actual danger to health or safety in the work. 4) has an appropriate certificate of competency where required by the regulations." Certificated competency in terms of Section 1 means the holder of an appropriate certificate of competency issued in terms of Regulation 28 by the Director-General. Only certain appointments require a certificate of competency (notably, the engineering appointments). Special competency requirements referred to in the regulations require the nomination of specific appointees. This is usually the case where the regulations do not state that the appointee needs to be a competent person as defined, but it sets its own competency requirements that may or may not correspond with the definition of a competent person. ACCOUNTABILITY Being appointed in terms of the Mining legislation does not necessarily make an employee criminally liable. The Mining legislation makes any contravention of its provisions an offence which means that any employee, who contravenes the Act, can be held criminally liable. It is only when an appointee has failed to carry out a duty imposed on him in terms of his appointment, that he will be liable by virtue of his appointment. FORMAT OF APPOINTMENTS No appointment form can be comprehensive enough to include all the legal duties an appointee is expected to fulfil. This is true even where some sections or regulations may create the need for a specific appointment. One runs the risk of leaving out important specific and general duties by trying to list duties comprehensively in a letter of appointment. Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I NPage I N G 26 SOofL107 UTIONS REPORTABLE APPOINTMENTS In certain cases a report must be made to the Principal Inspector of Mines (formerly known as the Regional Director) within three days of any appointment made. Copies of any appointment letters must accompany the report. The following appointments must be reported: 1) Section 4(1) Employer Representative - reported to the Chief Inspector of Mines 2) Mine Manager - reported to the Principal Inspector by the employer 3) Subordinate Manager 4) Engineer in General Charge 5) Mine Surveyor 6) All engineering appointments or related ‘competent persons’ appointments 7) Chief and Safety officers 8) Environmental control officer Schedule 4 - Transitional Provisions The importance of this schedule is that it makes any statutory duty/appointment, in terms of the Minerals Act and Regulations, a statutory duty/appointment in terms of the Mine Health and Safety Act as well. Thus, an appointment in terms of these regulations is not merely done, as the wording in the regulations suggest, helping the manager comply with the regulations, but also to assist the employer in compliance with the Mine Health and Safety Act. APPOINTMENTS PROVIDED FOR Representatives of the Chief Executive Officer Section 2A - Chief Executive Officer’s (CEO) Duties 1) The CEO must take reasonable steps to ensure that the employer’s functions in terms of this Act are properly discharged. 2) The CEO may entrust any of his functions to any person. This person would be under the control of the CEO and must act according to his instructions. 3) If the “employer” is a body corporate (company), the Board of Directors may nominate a person to perform the functions of a CEO in terms of this Act (i.e. where the nominated person is not the CEO himself). 4) Nominating such a person does not relieve the employer/Board of any liability in terms of this Act. 5) The nominated person must act according to the CEO or the Board’s instructions Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I NPage I N G 27 SOofL107 UTIONS This is the only Section where a clear reference is made to “Chief Executive Officer” (normally the human representative acting on behalf of the mining group). Elsewhere in the Act, where the various Sections refer to “employer”, the true meaning is that the CEO has the liability for ensuring compliance with the sections. Section 2A (3) provides for the nomination of a person other than the normal CEO as the person ultimately responsible for ensuring compliance with the provisions of the mining legislation. This person must be a board member, and would become the “CEO” for the purposes of the Mine Health and Safety Act. Section 2A (4), is the adoption of the principle of vicarious liability (the employer is responsible for the actions of the employee), into the Mine Health Act. Generally, the principle of vicarious liability is a common law doctrine, and would not apply in a statute, unless the statute expressly provides for this to be the case. Section 4 – An employer may entrust functions to another person. 1) An employer of the mine may appoint any person, except a manager to perform any function entrusted to the employer in terms of Section 4 of this Act. 2) An employer must notify the Chief Inspector in writing within 7 days of the appointment of any person in terms of subsection (1); the manager or managers over whom that person has control; and the nature of that person’s functions. 3) The employer must supply the persons appointed under subsection (1) with the means to perform their functions; and take reasonable steps to ensure that they perform their functions. 4) The appointment of a person under subsection (1) does not relieve the employer of any duty imposed on employers by this Act or any other law. The amendment to the Mine Health and Safety Act has resulted in the mine manager’s role being redefined to that of “day to day activities”. The responsibility for those activities, which would not be “day to day to day to day”, has shifted to the employer. Such activities would include providing the annual budget of a mine as well as major reconstruction work (i.e. Capital/Turnkey projects). Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I NPage I N G 28 SOofL107 UTIONS Section 4(1) enables the employer to appoint persons to assist him in ensuring compliance with the provisions of Sections 2 and 3 of the Mine Health and Safety Act. Sections 2 and 3, deal with, inter alia, the commissioning and construction of the mine, which would typically form part of the responsibility of a Group consulting Engineer or Metallurgist (a category of appointees the Department of Minerals and Energy intends to ‘target’ with statutory responsibility). Section 7 – An employer must appoint staff to the mine with due regard to health and safety. 1) The Employer must, as far as is reasonably practicable to do the following: a) Ensure every employee obeys the requirements of the Act. b) Institute the necessary measures to ensure healthy and safety. c) Provide appointed persons with what they would need to carry out the requirements of the Act, or the Inspector. d) Evaluate the employee’s training and competence before allowing him to carry out a job function. e) Ensure an employee is supervised by a person who understands the risks involved in the job, and who would know what precautionary measures are required for the job. 2) The employer may appoint qualified persons to carryout a job function. 3) The employer remains potentially liable, even though he has appointed persons to carry out a job. Section 7 gives the Employer the power to decide how many people he needs to help him run the mine. This power is not absolute. If the employer does not use it “reasonably” and ensure there is adequate staff, the Inspector could step in and decide how many persons he must appoint. Section 7 (1) (a) means that an employee must obey any instruction given by the employer. In reality, it would be the supervisor who gives the instruction. Note, the instruction must be reasonable and in the interests of health and safety. Section 7 (I) (d) basically repeats Minerals Act Regulation 2.10 which holds that the Employer must not allow incompetent persons to carry out a job. For the supervisor, who would help the Employer in this regard, this means a duty to carry out checks on a workplace to ensure that all the employees there know how to perform their job, and that they do so competently. Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I NPage I N G 29 SOofL107 UTIONS 2. The Manager Previously, the mine manager was deemed to be responsible for all operations taking place at a mine. Thus, notwithstanding that the Mine Health and Safety Act originally provided for the mine owner to be the person/body ultimately responsible for ensuring health and safety, the focus of statutory prosecution tended to remain with the manager. The amendments to the Mine Health and Safety Act are primarily intended to redirect the focus of ultimate responsibility for compliance (and threat of statutory sanction) from the mine manager to the “employer” and his/its representatives, namely the Section 4(1) and 7(2) appointees. As part of this amendment, the mine manager’s responsibility has been redefined as focusing on “day to day responsibilities”. This would include issues such as, the induction of employees, risk assessment and medical surveillance programs: all “normal” activities of mining. Meaning of “Manager” Mine Health and Safety Act Section 102 defines a Manager as: "..... any competent person as defined in the regulations, appointed in terms of section 3(1)(a)" Minerals Act defines a Manager as: "..... the person appointed to be responsible for the control, management and direction of a mine or a works and includes the terms “General Manager”. Functions, Duties and Responsibilities The Manager's functions, duties and responsibilities in general are outlined in broad terms in Section 3. The effect of these is that a manager will: a) Be responsible for the control and management of, and direction of the employees at the mine. The term "employee" includes an independent contractor. The manager will do so, by appointing prescribed competent persons dictating policy on health and safety aspects ensuring the existence of health and safety systems. Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I NPage I N G 30 SOofL107 UTIONS b) Take all reasonable measures to ensure the safety and health of employees and proper discipline at the mine. The manager will do this by installing systems which have a purpose to ensure, as far as reasonable, the safety and health of employees at the mine; appointing competent persons; incorporating health and safety in the disciplinary code. (c) Take all reasonable measures to ensure that the provisions of this Act are complied with in relation to his mine. The manager will do this by ensuring the following: All employees are aware of the existence of the Acts and regulations. Non-compliance with the Acts is not tolerated. Competent persons have been delegated the duty to ensure that the requirements dictated by legislation are adhered to within their individual areas of responsibility. A sufficient number of Regulation 2.9.2 assistants have been appointed to assist in ensuring compliance. The need to make appointments Section 7 4) The manager may appoint qualified persons to carry out any of his job functions. 5) The manager remains potentially liable, even though he has delegated persons to carry out his job functions. A manager is required to make various appointments. Most of them are prescribed and a manager has no choice. Failure to make these appointments constitutes an offence and in addition the manager will be deemed to be responsible as if he is the prescribed appointee himself. Provision has also been made for the manager to voluntarily appoint various people. If he fails to do so, it would not be an offence although he may still be deemed responsible for non-compliance of the regulations if no person was appointed to be responsible for compliance. It is advisable, to make use of regulation 2.6.1 and 2.9.2 and for the manager to appoint enough competent persons to assist him in his functions. Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I NPage I N G 31 SOofL107 UTIONS 3. Subordinate Manager Minerals Act Regulation 2.6.1 "The manager may appoint one or more competent persons as subordinate managers to assist him in the control, management and direction of the mine or works and every such person shall, to an extent to be clearly defined in his letter of appointment, have the same responsibilities under the regulations as the manager : Provided that the appointment of such persons shall not to be taken to relieve the manager of any personal responsibility under the regulations". Functions, Duties and Responsibilities A subordinate manager will have the same responsibilities as the manager, in relation to the subordinate manager's area of responsibility. The manager retains responsibility for the mine as a whole. Regulation 2.6.1 requires that the extent of a subordinate manager's responsibility is clearly defined. A subordinate manager must assist the manager in the control, management and direction of the mine and will have the same responsibilities as the manager with regard to his area of responsibility. 4. Regulation 2.9.2 Assignees Regulation 2.9.2 enables the mine manager to appoint various employees to assist him "in enforcing such observations of the Regulations". These assistants are appointed so that compliance will be enforced. Although not a popular statement, they may be equated to policemen or traffic wardens. With the above in mind, for an effective appointment, a Regulation 2.9.2 assistant should have the necessary authority to enforce compliance. Regulation 2.9.2 assistants were sometimes regarded as a junior subordinate manager. They were made responsible for almost anything in the Minerals Act ranging from the issuing of mining authorization to assisting the manager in forwarding all required statistical returns. Nature of the Regulation 2.9.2 Appointee The category of persons normally forms the middle-rank or supervisory level. They are usually considered the most crucial category of persons as far as implementing health and safety at a workplace is concerned because their general function is to translate vague or general directions as well as specific instructions from the managerial level into procedures or systems. Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I NPage I N G 32 SOofL107 UTIONS The Regulation 2.9.2 appointment is a general category i.e. mid-rank supervisory level with power to give instructions. As such, a wide variety of appointments are made in terms of this regulation. Typical examples include: Foreman - All Categories Metallurgists General Engineering Supervisors Assistant Plant Supervisors Technician Superintendents Conversely, many appointments are made in terms of a specific regulation, with functions that are largely defined by the same set of regulations. Typical examples include: Safety Officers (Regulation 2.17.1) Mine Surveyors (Regulation 2.12.1) Subordinate Engineers (Regulations 2.13.3.1 and 2) Diving Supervisors (Regulation 30.3) Ambulance Officers (Regulation 24.5.1) The general characteristics of a Regulation 2.9.2 Assignee (i.e. power to give instructions, ability to translate general directives into specific workplace procedures or instructions), are ideally suited to appointments such as the abovementioned. The normal practice, therefore, is to appoint such persons in terms of the prescribed regulation as well as in terms of Regulation 2.9.2 (the latter serving to confirm their mid-rank status and power to give instructions, as may be required by the other regulations under which they have been appointed.) Level of Competence Required Regulation 2.9.2 merely states that a manager shall appoint such persons as may be necessary. It does not require the appointing of competent persons as defined. By implication, these appointees will have to be competent in the sense of possessing a good working knowledge of the Minerals Act and its provisions and the Mine Health and Safety Act. If they are not aware of or understand the provisions of the Acts, they cannot be expected to recognize non-compliance and enforce compliance. Ideally, all Regulation 2.9.2 appointees must undergo training as it is very difficult to enforce compliance when ignorant of all the general provisions. Regulation 2.9.2 appointees are advised to make use of the expertise of the Chief and other Safety Officers. Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I NPage I N G 33 SOofL107 UTIONS Nature, Functions and Duties As discussed above, a Regulation 2.9.2 assistant must assist the manager in enforcing compliance with the Act and Regulations. For this purpose, he will need to have a very good working knowledge of the Minerals Act and Regulations and Mine Health and Safety Act as this will be the standard against which he will identify non-compliance. He will also need to be vested with authority to either enforce compliance or to report contraveners to a senior manager if not to the mine manager himself. 5. Engineering Appointments Regulations 2.13.1 to 2.13.12 set out the requirements regarding the responsibility for machinery. Engineering appointees usually all qualify as competent persons as they are in possession of certificates of competency. A certificate of competency implies a good working knowledge of the provisions of the Mining legislation and knowledge of the Mine Health and Safety Act, Regulation 2.13.1 provides that at any mine or works where: the designated rating a machinery used in the generation of power combined with the power from external sources exceeds 2500Kw winding plants used for transporting persons are installed. An Engineer in general charge must be appointed (the manager has no discretion, here.). This person must have a certificate of compliance. Regulations 28.1.1 to 28.50 set out the requirements relating to certificates of competency in great detail. Of particular interest would be Regulation 28.22.1 to 28.24 which relate to Mechanical and Electrical Engineers’ certificates. Regulation 2.13.3.1 provides that the Manager may appoint one or more subordinate (area) engineer/s to assist the Engineer in general charge. This person would report directly to the Engineer in general charge, or via a subordinate engineer (Regulation 2.13.2 chief engineer), and Be responsible for carrying out the specific functions set out in his letter of appointment. The appointment of this person does not relieve the Engineer in general charge, or the subordinate engineer appointed under Regulation 2.13.3.2 of any potential liability. An area engineer must also have a certificate, although a non-certificated, but competent person may assume his responsibility up to 60 days in a 6 month period. Regulation 2.13.3.2 provides that the Manager may appoint subordinate (chief) engineers to assist the engineer in general charge in directing and controlling subordinate (area) engineers appointed in terms of Regulation 2.13.3.1 Such an engineer must at all times have a certificate. This engineer would have the same responsibility as the engineer in general charge although only for that area of responsibility demarcated to him. Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I NPage I N G 34 SOofL107 UTIONS As with all other prescribed appointments, an engineer's appointment must ideally not refer only to certain regulations. There are many provisions they need to be aware of, that have force of law but are not contained in the regulations. Some examples are: Codes of practice, permits, permissions, exemptions, directives, requirements relating to the supply and repair of machinery, etc. Again, engineers should be clearly advised on their respective areas of responsibility. The reporting structure must also be clearly established and all the necessary systems and documents must be supplied to them to enable them to carry out their responsibilities. Regulation 2.13.4.1 sets out the general responsibilities of the Engineer in general charge. The following would, in turn, be delegated to the subordinate engineers: safe installation and proper operation, running and maintenance of all machinery at the colliery safe erection and proper maintenance of all buildings, structures and tanks reasonable measures must be taken to ensure that − all appliances, mechanisms and guards are maintained in good condition − the Acts and Regulations relating to machinery are complied with − any apparatus which, while operating, poses a danger, is stopped. Although all of the Regulations are important, the following chapters have particular relevance to his responsibility: Chapter 6 - Outlets, Ladders and Travelling Ways Chapter 16 - Winding Chapter 17 - Elevators Chapter 18 - Traction Chapter 19 - Scraper Winch Installations Chapter 20 - Machinery - Special Safety Measures Chapter 21 - Electricity Chapter 22 - Boilers Chapter 23 - Pressure Vessels, Compressors and Refrigeration Plants From a health and safety perspective, the chapters of particular importance are Section 21 - Duties of the Manufacturer, Supplier Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I NPage I N G 35 SOofL107 UTIONS The Engineer's responsibility mainly relates to machinery. Machinery is defined in Section 1 of the Minerals Act as: "... any engine, boiler or appliance or a combination thereof which is situated on a Mines or Works and which is used or intended to be used : a) For generating, receiving, storing, converting, transforming, transmitting or distributing any form of power or energy; or b) For conveying persons, materials or minerals, in connection with operations falling under a mine or works." An engine is defined as: "... any appliance or combination of appliances whereby power, excluding man or animal power, can be applied to do mechanical work (.)" 6. Production Foremen Regulation 2.13.12, provides that persons with the permission of the Principal Inspector may control the proper running/operation of machinery and the installation and removal of machinery used for conveying persons. Such persons need to familiarize themselves with the Regulations pertaining to machinery, especially Chapter 20. The following are some of the more important Regulations to be aware of: Regulation 20.1.2 - continuous supervision Regulation 20.2 - prohibition of entry to safeguarded and fenced off areas. Regulation 20.3.2 - no entry to areas of installation Regulation 20.3.1 - no entry to fenced off dangerous places Regulation 20.5 - fencing or guarding of dangerous parts Regulation 20.8 - safety precautions for persons working near machinery Regulation 20.9.3 - power supply to be locked out during repairs and parts to be secured during repairs or maintenance. Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I NPage I N G 36 SOofL107 UTIONS 7. Shifts man Chapter 20 of the Minerals Act Regulations refers to special safety measures to be adopted in relation to machinery. It is sometimes the practice to appoint shifts men in terms of Regulation 20.1.1. The Regulation does not specifically provide that such a person has to be appointed. It merely states as fact that the operation of machinery shall be in the charge of a competent shifts man who will exercise effective control of any unskilled persons working under his direction. 8. Ganger / Miner in Charge (Regulation 2.9.2) The Ganger or Miner in charge is the main person of responsibility where supervision of blasting operations is concerned (as per Chapter 8 of the Minerals Act Regulations). His main duty is to ensure that a workplace where blasting is to occur is made as safe as possible before and after the blasting. He must also safeguard persons from dangerous areas, falling rocks, as well as remove the workers upon a complaint of danger by any worker. He must remain at the workplace until the shift has been removed. He must conduct regular inspections including tests for flammable gas. Regulation 8.10 sets out the duties with regard to explosives, misfired holes. He must report any gassing to the Manager, Mine Overseer or Shift Boss. Chapter 9 of the Minerals Act Regulations deals with the handling of explosives. Regulation 9.1.1 places this responsibility upon a competent person –“competent”, here, meaning holding a blasting certificate. Only this person is permitted to keep keys to the explosive’s container. He must register and count cases of explosives to be transported and ensure they are diligently transported. He must supervise cleaning of old explosives. Only he may open a container of explosives. Only he may conduct blasting operations. The Manager also has certain duties as regards assisting the Ganger. They are as follows: Provide security personnel to check for unauthorized removal of explosives. Supply the explosives. Authorize the destruction of old explosives. Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I NPage I N G 37 SOofL107 UTIONS 9. Mine Surveyor In terms of Regulation 2.12.1 to 2.12.12, provision is made for the appointment of a mine surveyor or a competent person who will assume the responsibility of a mine surveyor. If more than 200 persons are employed in the workings of any mine, mine surveying will be under the general charge of a certificated mine surveyor appointed in writing by the manager. If there are less than 200 persons so employed, mine surveying will be under the charge of either a certificated mine surveyor or a competent person. In terms of Regulation 2.12.7 the manager may appoint assistant certificated mine surveyors to assist the mine surveyor referred to in Regulation 2.12.1 Regulation 2.12.8 sets out the general duties of a surveyor. They are as follows: Inform the manager in writing when the face of a working area which is being advanced comes within an excavation, water, mine boundary or source of gas/ fumes Ensure the correct establishment of survey pegs and provide the manager with relevant survey data, in writing. The precautions must remain until a holding is effected or the face of the working recedes from the 15-meter distance. Keep a map of the underground workings, showing ventilation systems and airflow. The map shall never be more than 3 months out of date. In addition, the mine surveyor must familiarize himself with the provisions of Chapter 12, and sign the plans provided for in that chapter. 10. Environmental Control Officer Regulation 2.16.1 requires, in various instances, the appointment of an environmental control officer who must be a competent person with a qualification in mine environmental control. The manager may appoint or shall appoint, if so required by the Principal Inspector (Director: Mineral Development), more than one competent person provided that each ones area of responsibility is clearly defined in his letter of appointment. Regulation 2.16.1.3 sets out an environmental control officer's duties, functions and responsibilities. He must examine environmental conditions on the mine, and record the findings in a file or book. In addition, he must submit suggestions where unsatisfactory conditions are detected. He must sign this recording. The examination must cover the following areas: Air temperature and humidity The mine’s ventilated air Quantity of dust and gases in the air Noise and illumination levels Drinking and dust suppressing water Precautions against coal dust and flammable gas explosions Precautions against mine fires Learner Guide: Legal Liability for Supervisors  SAFETY AND TRAINING SOLUTIONS S A F E T Y A N D T R A I NPage I N G 38 SOofL107 UTIONS 11. Chief Safety Officer and Safety Officer Regulation 2.17.1 states that the mine manager shall, if there are more than 300 employees at a mine; appoint a safety officer who shall devote all his time to the functions assigned to a safety officer by or under the regulations. A safety officer has the following functions: Inspecting the workplace and machinery at regular intervals to ensure compliance with the Act, Ensuring that people are trained and qualified to work safely Ensuring the health and safety of all employees in general Reporting any threat or potential threat and, if necessary, taking preventative steps Maintaining an inspection register Investigating and reporting on certain accidents or occurrences Conducting meetings with safety representatives at least once a quarter Making recommendations on any matter relating to health and safety for submission by the manager to the Principal Inspector. Regulation 2.17.4 provides for the appointment of a chief safety officer if more than one safety officer has been appointed. The chief safety officer must, in addition to the functions of a safety officer, perform the functions of a chief safety officer as prescribed below: Directing certain accidents or occurrences to a safety officer for investigation Submitting copies of accident/occurrence reports to the mine manager Recording all accidents which resulted in a shift loss Identifying critical areas regarding health and safety Ensuring that people are trained regarding safety and health requirements Ensuring that the safety and health requirements are implemented Ensuring that safety officers inspect the critical areas at least every 30 days and lower risk areas at least every 90 days Endorsing the safety officer's records