Section 54 vs 55: Enforcing Efficiency For SA’s Safety Laws
The South African government’s move over the years to intensify the use of Section 54 work stoppages in the mining industry has been met with much outcry from facets of industry – while the safety of mine workers always remains of utmost significance, questions regarding the competency and efficiency of the implementation of Section 54 stoppages still arise.
At the outset, any law, including Section 54 of the Mine Health and Safety Act (MHSA), has its place in terms of governance and should always be complied with and given prominence as required by any piece of law.
In terms of Section 54, “If an inspector has reason to believe that any occurrence, practice or condition at a mine endangers or may endanger the health or safety of any person at the mine, the inspector may give any instruction necessary to protect the health and safety of persons at the mine, including but not limited to, an instruction that – operations at the mine or a part of the mine be halted; and the performance of any act or practice at the mine or a part of the mine be suspended or halted, and may place conditions on the performance of that act or practice.”
But the question over the past few years has been the ability of Department of Mineral Resources’ inspectors to judge efficiently such situations that require the implementation of Section 54, with government strongly arguing, and of course with good reason, that no loss in production is equivalent to a life lost. In fact, Minister of Mineral Resources Susan Shabangu is on record stating that that it “is mischievous to regard Section 54 as the only contributor to the loss of production”.
In fact, 421 audits and 8632 inspections were carried out in 2012/13. By the end of September 2013, 5052 inspections and 257 audits had been conducted, with almost 3000 more inspections and 140 more audits planned to be completed before the end of 2013/14.
This was stated in National Treasury’s Budget 2014: National Estimates of Expenditure, which identified a sub-programme – Health and Safety Regions. The sub-programme is responsible for audits, inspections and inquiries related to enforcing the MHSA and its provisions; and examination services for the certificate of competency to contribute to skills development in the mining sector. These processes play a critical part in ensuring that mine employees work in conditions that comply with health and safety regulations.
Government, some two years ago, did take into consideration the concerns of industry, and agreed to a training programme for the Mine Health and Safety Inspectorate, which had to be aligned with the revised Enforcement Guidelines, as well as clearly defining for inspectors if they have to take a decision on whether to stop operations at one shaft or all the shafts of a particular mine.
In light of this, the question arises again, is progress being made in inspectors making the appropriate [and correct] call for Section 54 work stoppages?
Section 54 vs 55?
Warren Beech, head of mining at global law firm Hogan Lovell, believes that the need for a balanced approach to safety in mining must also call for the use of Section 55 of the MHSA.
Section 55(1) of the MHSA provides as follows that: ““If an inspector has reason to believe that an employer has failed to comply with any provision of this Act, the inspector may instruct that employer in writing to take any steps that the inspector considers necessary to comply with the provision; and specifies in the instruction.”
Beech states: “Indeed Section 54 work stoppages may have improved the attitude towards safety and a safety culture over the past few years. However, there are cases where a Section 55 instruction could have been issued by an inspector, as opposed to closing an entire mining operation in terms of Section 54. Closing a mining operation is not always an answer to every challenge experienced on a mine.”
This is why Beech is advocating for the right balance to be struck when contemplating appropriate action, and in particular whether a Section 54 work stoppage is necessary, or whether a Section 55 instruction is more appropriate.
By no means is he implying that Section 54 stoppages have no place in a work environment, in fact he lauds South Africa’s MHSA, which often ranks high among similar legislation internationally.
“He explains that, in many instances, where a Section 54 instruction has been issued, a Section 55 instruction could have been issued and the area of concern could have been addressed more effectively through a Section 55 instruction.
“This is without the significant impact that a Section 54 instruction often has, including an impact on the morale of the team, the health and production rhythm of the team, which is vital to health and safety in the industry, and the remuneration of employees, which often includes a safety bonus component.”
He explains that instead of issuing a Section 54 instruction, which impacts on the entire workforce, it will be more appropriate to issue an instruction in terms of Section 55, which does not have these impacts, or which only impacts on the working area which is of concern and the relevant crew members.
Striking the balance
In striking the balance, he believes that all stakeholders in the industry need to address three levels of commitment that are fundamental in the mining value chain. The first is to ensure that training of the country’s inspectorate continues, with a significant emphasis placed on the practical experience of inspectors, for example, internship programmes, particularly in relation to the running of a mining operation.
Second, there is need for commitment from industry to ensure employees are adequately trained in health and safety to better understand the consequences of unsafe work practices.
Third, communities and employees need to harness a culture of safety.
“Safety begins at home and if this practice is carried into the work space, it could also avoid unnecessary work challenges.
“All of these factors, together with the inspectorate making the correct call of enforcement between Section 54 or 55, will enable the country to pursue a safer mining industry,” Beech concludes.
FAST FACTS: Expenditure trends
- The spending focus over the medium term will be on ensuring that mine companies and employees comply with MHSA (1996) by conducting inspections, audits, inquiries and investigations in order to provide a framework to manage health and safety risks in the mining sector.
- Through the Mine Health and Safety Regions sub-programme, the department expects to conduct 25 188 audits and inspections over the medium term.
- Between 2010/11 and 2013/14, expenditure on travel and subsistence increased in the Mine Health and Safety Regions sub-programme due to the travelling costs incurred by inspectors.32 614 audits and health and safety inspections were conducted in the same period.
- Inspections are labour-intensive and require extensive travel, which explains the expected continued high spending on compensation of employees and travel and subsistence over the medium term.
- The programme had 67 vacancies on its funded establishment of 314 posts, with 15 posts additional to the establishment at the end of November 2013.
- To further enhance the capacity to conduct inspections and despite the difficulty experienced in attracting suitably qualified personnel, the department expects to fill the vacancies over the medium term.
[Source: National Treasury’s Budget 2014: National Estimates of Expenditure]