The Importance Of Understanding The MHSA

The obligation imposed on an employer by the Mine Health and Safety Act of 1996 (MHSA) to provide and maintain, as far as is reasonably practicable, a working environment that’s safe and without risk to the health of employees, is extensive.

While the measures to be taken to achieve this vary, depending on the nature of the particular operation, it’s important that such an obligation is not underestimated by the employer, especially when dealing with small-scale operations.

Tyla Foster, an executive at law firm ENS’s Mine and Occupational Health and Safety Department, says when considering economic, social and government requirements, specifically focusing on the social element relevant to business, mining companies must be in a position to confidently state to other stakeholders that it provides a safe working environment as prescribed by the MHSA.

“Of importance is that the obligation of providing a safe environment does not only apply to employees working in or at a mine, but also applies to the communities neighbouring the mine, to the extent that they may be directly affected by the activities at the mine,” she says.

“Of course, it must be remembered that the operations that constitute a mine are broadly defined in the MHSA. The MHSA does not distinguish between a large-scale mining operation and a small-scale mining operation. Ultimately, there are general obligations that fall on every employer, and then there are specific obligations depending on the activities performed at the mine.”

Foster says the activities performed in an underground mine vs opencast pit vs prospecting-related activities generally differ, and so attract different health and safety obligations. So all employers in these different types of operations will have a general obligation to ensure that the working environment is safe and without risk to employees’ health.

However, where mining operations make use of railbound equipment, the employer is required to ensure compliance with the provisions of the MHSA regulating the safe use of such equipment; similarly with trackless mobile machinery, among others.

Where mining operations don’t use such equipment, then that obligation is not applicable to that operation.

This is why it is imperative that mining companies consider the provisions of the MHSA, in order to properly note what is applicable to their own operations, and to ensure that measures are put in place to ensure compliance with the MHSA.

Important obligations

“While there is a general obligation to provide a safe working environment, this further encompasses other related obligations. These include the requirement to provide health and safety training to employees, to provide employees with the necessary health and equipment (including personal protective equipment), and to conduct regular risk assessments, among others.

“The MHSA does not prescribe, for instance, what employees must be trained in. The obligation is to provide employees with, among others, information and training that is necessary to enable them to perform their work safely and without risk to health.

“Here, the content of the training provided to employees is determined by the employer, as the employer is best placed to make the exact determination around the risks that are most relevant to their specific operations and the measures needed to address such identified risks.”

It’s up to the individual company to establish a health and safety management system that encompasses not only employee training, but also the appointment of trained, competent managerial and supervisory personnel, implementation of standards and procedures, audits, inspections and follow-ups, ensuring it meets MHSA obligations.

“This is necessary to make sure there is compliance not only with the mining company’s own requirements, but also those of the act itself,” says Foster.

Failure to comply

The key to successfully complying with the MHSA, and ensuring the obligations imposed by the act are not underestimated, lies in properly considering the activities the mine undertakes, and the risks associated with such activities. And then determining what measures need to be put in place in order to eliminate, control or minimise the identified risks.

“It is also worth warning newcomers to the industry, and junior miners too, that the obligations under discussion apply equally to them. An operation that is newly established, or potentially small in scale, does not absolve the employer of its responsibility to meet the health and safety obligations imposed by the MHSA,” she says.

The aim of implementing the measures outlined in the MHSA is to, among others, minimise injuries and prevent deaths in the workplace.

“In addition, the MHSA gives certain powers to inspectors employed by the regulatory body (Department of Mineral Resources and Energy) to visit the operation. Under certain circumstances they can issue a compliance notice or a closure notice.

“A compliance notice is where the employer is instructed to implement measures within a prescribed timeframe to rectify non-compliance observed with the MHSA. A closure notice is where the operations or portions thereof are stopped until instructions issued to protect the health and safety of persons at the mine are complied with.”

The challenge here, she says, is one of potential financial and reputational harm for the affected organisation. “If production is halted for extended periods of time, there will obviously be an impact on the company’s profitability, while safety-related challenges may also reflect poorly on a company’s reputation.”

So it’s vital to implement a health and safety management system, along with continual monitoring thereof, to ensure it remains successful, she says.

Community welfare

The MHSA further provides that the employer must ensure, as far as is reasonably practicable, that people who are not employees, but who may be directly affected by the mine activities, are not exposed to any hazards to their health and safety.

“Meeting these obligations requires active engagement with community leaders, and constant communication and awareness. It is also about ensuring effective warning signage, and securing the mine property effectively, to prevent accidental – and potentially hazardous – intrusions by community members,” she says.

Ultimately, mining companies must be familiar with the obligations imposed by the MHSA, and employ trained and competent employees who understand the mining operations, to assist the employer with identifying and mitigating hazards and risks involved with the operation.

“ENS believes it is very much about getting the right people in the right positions to be able to quickly determine the measures to be taken to ensure a safe working environment. Whether you employ the right people or obtain the services of a third-party consultant, it is ultimately a cost that you will have to expend in order to provide a safe working environment.

“This is because the consequences of failing to comply are far greater – both in terms of potential injury or loss of life, and also the possible financial implications and reputational damage.

“That’s why ENS recommends that companies focus from the outset on achieving compliance with the provisions of the MHSA, promoting a culture of health and safety among employees, and together working towards creating working environments that are healthy and safe.”