Chapter II Health and Safety at Mines

2. Employer to ensure safety

1) The employer of every mine that is being worked must--

1. ensure, as far as reasonably practicable, that the mine is designed, constructed and equipped-

   1. to Provide conditions for safe operation and a healthy working environment; and

   2. with a communication system and with electrical, mechanical and other equipment as necessary to achieve those conditions;

2. ensure, as far as reasonably practicable, that the mine is commissioned, operated, maintained and decommissioned in such a way that employees can perform their work without endangering the health and safety of themselves or of any other person;

3. compile an annual report on health and safety at the mine including the statistics on health and safety that must be kept in terms of this Act and the annual medical report referred to in section 16; and

4. if the employer is a body corporate, and employs more than 50 employees, publish and distribute the report referred to in paragraph (c), in an appropriate form, to the body corporate's shareholders or members.

2) The employer of a mine that is not being worked, but in respect of which a closure certificate in terms of the Minerals Act has not been issued. must take reasonable steps to continuously prevent injuries, ill-health, loss of life or damage of any kind from occurring at or because of the mine.

2A. Chief Executive Officer charged with certain Functions

1) Every chief executive officer must take reasonable steps to ensure that the functions of the employer as contemplated in this Act, are properly performed.

2) Without derogating from any responsibility or liability of the chief executive officer in terms of subsection (1), the chief executive officer may entrust any function contemplated in the said subsection to any person under the control of the chief executive officer, which person must act subject to the control and directions of the chief executive officer.

3) If the employer is a body corporate, the functions of the chief executive officer contemplated in subsections (1) and (2) may be performed by a member of the board of the body corporate designated by the board.

4) Subsections (1), (2) and (3) do not relieve an employer of any duty imposed on employers by this Act.

5) Every person appointed in terms of section 3 or 4(1) must perform their functions subject to the control and direction of the chief executive officer or the person contemplated in subsection (3).

3. Employer must appoint manager

1) The employer of every mine that is being worked must-

1. appoint one or more managers with the qualifications as may be prescribed to be responsible for the day to day management and operation of the mine, and if more than one manager is appointed, ensure that the managers' functions do not overlap;
2. supply the managers with the means to perform their functions; and
3. take reasonable steps to ensure that the managers perform their functions.

2) The appointment of a manager does not relieve the employer of any duty imposed on employers by this Act or any other law.

3) If no manager is appointed in terms of subsection (1), the employer must perform the functions of a manager in terms of this Act.

4. Employer may entrust functions to another person

1) An employer may appoint any person except a manager to perform any function entrusted to the employer by sections 2 and 3 of this Act.

2) An employer who appoints a person under subsection (1) must notify the Chief Inspector of Mines of that appointment within seven days, and must include in that notice-

1. the name of the person appointed;
2. the nature of the person's functions; and

3. the names of the manager or managers over whom that person has control.

   (The Chief Inspector of Mines is appointed in terms of section 48 and his functions are set out in section 49.)

3) An employer who appoints a person under subsection (1) must-- a supply each person appointed with the means to perform their functions; and b take reasonable steps to ensure that they perform their functions.

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.

5. Employer to maintain healthy and safe mine environment

1) As far as reasonably practicable, every employer must provide and maintain a working environment that is safe and without risk to the health of employees.

2) As far as reasonably practicable, every employer must-

1. identify the relevant hazards and assess the related risks to which persons who ark not employees may be exposed; and

2. ensure that persons who are not employees, but who may be directly affected by the activities at the mine, are not exposed to any hazards to their health and safety.

   (Negligent failure resulting in endangerment to a person at a mine is an offence. See section 86.)

6. Employer to ensure adequate supply of health and safety equipment

1) Every employer must-

1. a supply all necessary health and safety equipment and health and safety facilities to each employee; and
2. maintain, as far as reasonably practicable, that equipment and those facilities in a serviceable and hygienic condition.

2) Every employer must ensure that sufficient quantities of all necessary personal protective equipment are available so that every employee who is required to use that equipment is able to do so.

3) Every employer must take reasonable steps to ensure that all employees who are required to use personal protective equipment are instructed in the proper use, the limitations and the appropriate maintenance of that equipment.

(Employees have a duty to use and take care of personal protective equipment and other health and safety facilities. See section 22. Interference with health and safety facilities is an offence. See section 84. Employees must not be made to pay for health and safety facilities. See section 24.)

7. Employer to staff mine with due regard to health and safety

1) As far as reasonably practicable, every employer must-

1. ensure that every employee complies with the requirements of this Act;
2. institute the measures necessary to secure, maintain and enhance health and safety;
3. provide persons appointed under subsections (2) and (4) with the means to comply with the requirements of this Act and with any instruction given by an inspector;
4. consider an employee's training and capabilities in respect of health and safety before assigning a task to that employee; and

5. ensure that work is performed under the general supervision of a person trained to understand the hazards associated with the work and who has the authority to ensure that the precautionary measures laid down by the employers are implemented.

   (Employees have a duty to comply with health and safety measures. See section 22.)

2) The employer may appoint any person with qualifications as may be prescribed to perform any function of the employer in terms of this Act.

3) The appointment of a person under subsection (2) does not relieve the employer of any duty imposed on employers by this Act.

4) An employer may appoint any person with qualifications as may be prescribed to perform any function of the employer in terms of this Act.

5) The appointment of a person under subsection (4) does not relieve the employer of any duty imposed on employers by this Act.

8. Employer must establish health and safety policy

1) Every employer must prepare a document that-

1. describes the organisation of work;
2. establishes a policy concerning the protection of employees' health and safety at work;
3. establishes a policy concerning the protection of persons who are not employees but who may be directly affected by the activities at the mine; and
4. outlines the arrangements for carrying out and reviewing policies.

2) The employer must consult with the health and safety committee on the preparation or revision of the document and policies referred to in subsection (1).

(The requirements for establishing a health and safety committee are set out in Chapter 3.)

3 The employer must-

1. prominently and conspicuously display a copy of the document referred to in subsection (1) for employees to read; and
2. give each health and safety representative a copy of the document.

9. Codes of practice

1) Any employer may prepare and implement a code of practice on any matter affecting the health or safety of employees and other persons who may be directly affected by activities at the mine.

2) An employer must prepare and implement a code of practice on any matter affecting the health or safety of employees and other persons who may be directly affected by activities at the mine if the Chief Inspector of Mines requires it.

3) A code of practice required by the Chief Inspector of Mines must comply with guidelines issued by the Chief Inspector of Mines.

4) The employer must consult with the health and safety committee on the preparation, implementation or revision of any code of practice.

5) The employer must deliver a copy of every code of practice prepared in terms of subsection (2) to the Chief Inspector of Mines.

6) The Chief Inspector of Mines must review a code of practice of a mine if requested to do so by a registered trade union with members at the mine, or a health and safety committee or a health and safety representative at the mine.

7) At any time, an inspector may instruct an employer to review any code of practice within a specified period if that code of practice--

1. does not comply with a guideline of the Chief Inspector of Mines; or
3. is inadequate to protect the health or safety of employees.
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10. Employer to provide health and safety training

1) As far as reasonably practicable, every employer must--

1. provide employees with any information, instruction, training or supervision that is necessary to enable them to perform their work safely and without risk to health; and
2. ensure that every employee becomes familiar with work-related hazards and risks and the measures that must be taken to eliminate, control and minimise those hazards and risks.

(Employees must not be made to pay for health and safety training. See section 24.)

2) As far as reasonably practicable, every employer must ensure that every employee is properly trained--

1. to deal with every risk to the employee's health or safety that--

   1. is associated with any work that the employee has to perform, and

   2. has been recorded in terms of section 11;

2. in the measures necessary to eliminate, control and minimise those risks to health or safety;
3. in the procedures to be followed to perform that employee's work; and
4. in relevant emergency procedures.

3) In respect of every employee, the provisions of subsection (2) must be complied with--

1. before that employee first starts work;
2. at intervals determined by the employer after consulting the health and safety committee;
3. before significant changes are introduced to procedures, mining and ventilation layouts, mining methods, plant or equipment and material; and
4. before significant changes are made to the nature of that employee's occupation or work.

11. Employer to assess and respond to risk

1) Every employer must--

1. identify the hazards to health or safety to which employees may be exposed while they are at work;
2. assess the risks to health or safety to which employees may be exposed while they are at work;
3. record the significant hazards identified and risks assessed; and
4. make those records available for inspection by employees.

2) Every employer, after consulting the health and safety committee at the mine, must determine all measures, including changing the organisation of work and the design of safe systems of work, necessary to--

1. eliminate any recorded risk;
2. control the risk at source;
3. minimise the risk; and

4. in so far as the risk remains--

   1. provide for personal protective equipment; and
   2. institute a programme to monitor the risk to which employees may be exposed.

3) Every employer must, as far as reasonably practicable, implement the measures determined necessary in terms of subsection (2) in the order in which the measures are listed in the paragraphs of that subsection.

4) Every employer must--

1. periodically review the hazards identified and risks assessed, including the results of occupational hygiene measurements and medical surveillance, to determine whether further elimination, control and minimisation of risk is possible; and

2. consult with the health and safety committee on the review.

5) Every employer must--

1. conduct an investigation into every--

   1. accident that must be reported in terms of this Act;
   2. serious illness; and

   3. health-threatening occurrence;

2. consult the health and safety committee on investigations in terms of this section;
3. conduct an investigation in co-operation with the health and safety representative responsible for the working place in which the investigation takes place;

4. on completion of each investigation, prepare a report that--

   1. whenever possible, identifies the causes and the underlying causes of the accident, serious illness or health-threatening occurrence;
   2. identifies any unsafe conditions, acts, or procedures that contributed in any manner to the accident, serious illness or health-threatening occurrence; and

   3. makes recommendations to prevent a similar accident, serious illness or health-threatening occurrence; and

5. deliver a copy of the report referred to in paragraph (d) to the health and safety committee. If there is no health and safety committee the employer must deliver a copy of the report to the health and safety representative responsible for the working place.

6) An investigation referred to in subsection (5) may be held jointly with an investigation conducted by an inspector in terms of section 60.

(Section 60 empowers an inspector to investigate health and safety hazards if instructed by the Chief Inspector of Mines or requested by a trade union, a health and safety representative or a health and safety committee.)

7) If there is no health and safety committee at a mine, the consultations required in this section must be held with--

1. the health and safety representatives; or
2. if there is no health and safety representative at the mine, with the employees.

12. Employer to conduct occupational hygiene measurements

1) The employer must engage the part-time or full-time services of a person qualified in occupational hygiene techniques to measure levels of exposure to hazards at the mine--

1. if required to do so by regulation or a notice in the Gazette; or

2. if, after assessing risks in terms of section 11(1), it is necessary to do so.

2) Every system of occupational hygiene measurements must--

1. be appropriate, considering the hazards to which the employees are or may be exposed; and

2. be designed so that it provides information that the employer can use in determining measures to eliminate, control and minimise the health risks and hazards to which employees are or may be exposed.

3) The employer must keep a record of all occupational hygiene measurements in terms of subsection (1) in a manner that can be linked as far as practicable to each employee's record of medical surveillance.

13. Employer to establish system of medical surveillance

1) The employer must establish and maintain a system of medical surveillance of employees exposed to health hazards--

1. if required to do so by regulation or a notice in the Gazette; or
2. if, after assessing risks in terms of section 11(1), it is necessary to do so.

2) Every system of medical surveillance must--

1. be appropriate, considering the health hazards to which the employees are or may be exposed;

2. be designed so that it provides information that the employer can use in determining measures to--

   1. eliminate, control and minimise the health risk and hazards to which employees are or may be exposed; or

   2. prevent, detect and treat occupational diseases; and

3. consist of an initial medical examination and other medical examinations at appropriate intervals.

3) Every employer who establishes or maintains a system of medical surveillance must--

1. engage the part-time or full-time services of--
   1. an occupational medical practitioner; and

   2. in so far as it is necessary, other practitioners holding a qualification in occupational medicine recognised by the Interim National Medical and Dental Council of South Africa or the South African Interim Nursing Council;

2. supply the practitioners with the means to perform their functions; and

3. keep a record of medical surveillance for each employee exposed to a health hazard.

4) An employer may engage the services of a medical practitioner to perform the functions of an occupational medical practitioner in terms of this Act until the services of an occupational medical practitioner can be obtained.

5) An occupational medical practitioner must take every measure that is reasonably practicable to--

1. promote the health and safety of employees at the mine; and

2. assist employees in matters related to occupational medicine.

6) If any employee is declared unfit to perform work as a result of an occupational disease, the employer must conduct an investigation in terms of section 11(5).

(Employees have the right to challenge a decision that they are unfit to perform work. See section 20.)

7) If an employee is temporarily unfit to perform work as a result of any occupational disease, but there is a reasonable expectation that the employee's health will improve so that the employee can return to work, the occupational medical practitioner must record that fact and notify both the employer and employee of it.

8) The employer must--

1. retain the records referred to in sections 12(3), 13(3)(c) and 14(2) until the mine closes; and
2. when the mine closes, deliver those records to the Medical Inspector.

14. Record of hazardous work

1) The employer at every mine must keep a service record, in the prescribed form, of employees at the mine who perform work in respect of which medical surveillance is conducted in terms of section 13.

2) The employer must deliver to the Medical Inspector a copy of the relevant part of the record kept in terms of subsection (1)--

1. when an employee whose name appears in that record ceases to be employed at that mine; or
2. when required to do so by the Chief Inspector of Mines.

15. Record of medical surveillance

1) An employee's record of medical surveillance kept in terms of section 13(3)(c) must be kept confidential and may be made available only--

1. in accordance with the ethics of medical practice;
2. if required by law or court order; or
3. if the employee has consented, in writing, to the release of that information.

(Improper disclosure of confidential information is an offence. See section 87.

(Breach of confidence may result in an administrative sanction. See section 39.)

2) Any person required to maintain an employee's record of medical surveillance must --

1. store it safely; and
2. not destroy it or dispose of it, or allow it to be destroyed or disposed of, for 40 years from the last date of the medical surveillance of that employee.

16. Annual medical reports

1) Every occupational medical practitioner at a mine must compile an annual report covering employees at that mine, giving an analysis of the employees' health based on the employees' record of medical surveillance, without disclosing the names of the employees.

2) The annual report compiled in terms of subsection (1) must be given to the employer, who must deliver one copy of the report to each of--

1. [Paragraph (a) deleted by s.9 of Act No. 72 of 1997];
2. the health and safety committees, or if there is no health and safety committee, the health and safety representatives; and
3. the Medical Inspector.

17. Exit certificates

1) If an employee was subject to, or was required to be subject to, medical surveillance in terms of this Act and such employee's employment at a mine is terminated for any reason, the employer must arrange an exit medical examination of the employee.

2) The examination referred to in subsection (1) must be held before, or as soon as possible after, termination of employment.

3) The employee must attend the examination.

4) The occupational medical practitioner conducting the examination must--

1. produce an exit certificate with respect to that employee indicating the results of all medical surveillance and the presence or absence of any occupational disease; and
2. enter a copy of the exit certificate into the employee's record of medical surveillance.

18. Costs of examination

The employer must pay the costs of all clinical examinations and medical tests performed in terms of this Act unless this Act expressly provides otherwise.

19. Employees' right to information

1) An employee may request, and the employer must then provide, a copy of the record or of any part of it that--

1. is being kept in terms of sections 12(3) and 13(3)(c), and

   (Section 12(3) instructs the employer to keep a record of all occupational hygiene measurements so that they can be linked to each employee's record of medical surveillance.

   Section 13(3)(c) instructs every employer to keep a record of medical surveillance for each employee exposed to a health hazard.)

2. relates to that employee.

2) The occupational medical practitioner conducting an examination in terms of section 17 must provide the employee with a copy of the exit certificate Prepared as a result of that examination.

20. Employee may dispute finding of unfitness to perform work

1) An employee may appeal to the Medical Inspector against--

1. a decision that the employee is unfit to perform any particular category of work; or

2. any finding of an occupational medical practitioner contained in an exit certificate prepared in terms of section 17.

2) An appeal under subsection (1) must--

1. be lodged with the Medical Inspector within 30 days of the relevant decision or finding, or such further period as may be prescribed; and
2. state the grounds of the appeal.

3) When the Medical Inspector receives an appeal under subsection (1), the Medical Inspector must choose a medical practitioner who is not employed by the employer of the employee, and arrange for that employee to be re-examined by that medical practitioner, at the cost of the Chief Inspector of Mines.

4) The medical practitioner referred to in subsection (3) must report to the Medical Inspector, who must then consider the appeal and--

1. confirm, set aside or vary the decision or finding of the occupational medical practitioner; or

2. substitute any other decision or finding for that decision or finding.

5) Nothing in this section precludes an employee from--

1. obtaining and paying for a medical opinion from any other medical practitioner; or

2. pursuing any other legal remedy.

6) For the purposes of this section, " employee" includes any applicant for employment who has previously been employed at a mine.

21. Manufacturer's and supplier's duty for health and safety

1) Any person who--

1. designs, manufactures, repairs. imports or supplies any article for use at a mine must ensure, as far as reasonably practicable--

   1. that the article is safe and without risk to health and safety when used properly; and

   2. that it complies with all the requirements in terms of this Act;

2. erects or installs any article for use at a mine must ensure, as far as reasonably practicable, that nothing about the manner in which it is erected or installed makes it unsafe or creates a risk to health and safety when used properly; or

3. designs, manufactures, erects or installs any article for use at a mine must ensure, as far as reasonably practicable, that ergonomic principles are considered and implemented during design, manufacture, erection or installation.

2) Any person who bears a duty in terms of subsection (1) is relieved of that duty to the extent that is reasonable in the circumstances, if--

1. that person designs, manufactures, repairs, imports or supplies an article for or to another person; and
2. that other person provides a written undertaking to take specified steps sufficient to ensure, as far as reasonably practicable, that the article will be safe and without risk to health and safety when used properly and that it complies with all prescribed requirements.

3) Any person who designs or constructs a building or structure, including a temporary structure, for use at a mine must ensure, as far as reasonably practicable, that the design or construction is safe and without risk to health and safety when used properly.

4) Every person who manufactures, imports or supplies any hazardous substance for use at a mine must--

1. ensure, as far as reasonably practicable, that the substance is safe and without risk to health and safety when used, handled, processed, stored or transported at a mine in accordance with the information provided in terms of paragraph (b);

2. provide adequate information about--

   1. the use of the substance;
   2. the risks to health and safety associated with the substance,
   3. any restriction or control on the use, transport and storage of the substance, including but not limited to exposure limits;
   4. the safety precautions to ensure that the substance is without risk to health or safety;
   5. the procedure to be followed in the case of an accident involving excessive exposure to the substance, or any other emergency involving the substance; and

   6. the disposal of used containers in which the substance has been stored and any waste involving the substance; and

3. ensure that the information provided in terms of paragraph (b) complies with the provisions of the Hazardous Substances Act, 1973 (Act No. 15 of 1973).

   (The Hazardous Substances Act provides for the control of substances which may cause ill health due to their toxic or flammable nature.)

   (Negligent failure resulting in endangerment to a person at a mine is an offence. See section 86.)

22. Employees' duties for health and safety

Every employee at a mine, while at that mine, must--

1. take reasonable care to protect their own health and safety;
2. take reasonable care to protect the health and safety of other persons who may be affected by any act or omission of that employee;

3. use and take proper care of protective clothing, and other health and safety facilities and equipment provided for the protection, health or safety of that employee and other employees;

   (Employers have a duty to provide personal protective equipment for employees. See section 6.)

4. report promptly to their immediate supervisor any situation which the employee believes presents a risk to the health or safety of that employee or any other person, and with which the employee cannot properly deal;
5. co-operate with any person to permit compliance with the duties and responsibilities placed on that person in terms of this Act; and

6. comply with prescribed health and safety measures.

   (It is an offence to fail to comply with a duty under this Act. See section 91.

   It is an offence to discriminate against an employee who has asserted any right granted by this Act. See section 83.)

23. Employees' right to leave dangerous working place

1) The employee has the right to leave any working place whenever--

1. circumstances arise at that working place which, with reasonable justification, appear to that employee to pose a serious danger to the health or safety of that employee; or

2. the health and safety representative responsible for that working place directs that employee to leave that working place.

   (A health and safety representative has the right to direct an employee to leave a dangerous working place. See section 30(1)(b).)

2) Every employer, after consulting the health and safety committee at the mine, must determine effective procedures for the general exercise of the rights granted by subsection (1), and those procedures must provide for--

1. notification of supervisors and health and safety representatives of dangers which have been perceived and responded to in terms of subsection (1);
2. participation by representatives of employers and representatives of the employees in endeavouring to resolve any issue that may arise from the exercise of the right referred to in subsection (1);
3. participation, where necessary, by an inspector or technical adviser to assist in resolving any issue that may arise from the exercise of the right referred to in subsection (1);
4. where appropriate, the assignment to suitable alternative work of any employee who left, or refuses to work in, a working place contemplated in subsection (1); and

5. notification to any employee who has to perform work or is requested to perform work in a working place contemplated in subsection (1) of the fact that another employee has refused to work there and of the reason for that refusal.

3) If there is no health and safety committee at a mine, the consultation required in subsection (2) must be held with--

1. the health and safety representatives; or

2. if there is no health and safety representative at the mine, with the employees.

   (It is an offence to discriminate against an employee who has asserted any right granted by this Act. See section 83.)

24. Employees not to pay for safety measures

No person may make any deduction from an employee's wages, or permit an employee to make any payment to any person, in respect of anything which the employer is obliged to provide or to do in terms of this Act in the interest of the health and safety of an employee.