Contractors Legal Risk Assessment Responsibility when Doing Business with South African Mines

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ABSTRACT

The Mine Health and Safety Act came into operation on 15 January17. One of the groundbreaking sections that were included in the new Act is Section 1. In Section 1(1) (a) of the Act certain responsibilities are placed on any person who wants to conduct business with any mine.

It is clear that the legislator identified that the contractor would able to identify the issues that can be a contributing factor in accidents and cases of ill health associated with their products.

It can also be reasonably concluded that the legislator realised that, in most cases, the contractor would be in a better position to determine that an article is safe and without risk to health and safety when used properly.




In this article some of the pitfalls and solutions to some of the associated problems have been addressed.

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1. INTRODUCTION

As a result of circumstances prevailing in the mining industry during the early 10’s, it was realised by all stakeholders that health and safety performance needed to be improved, and new, different initiatives would be required to ensure sustainable improvements.

The Leon Commission of Inquiry into Safety and Health in the mining industry under the Chairmanship of Judge Ramon Leon was established during 14 to investigate the regulation of health and safety in the South African mining industry and to make recommendations on improvements to existing legislation. The recommendations had to include the implementation proposals in the light of prevailing industry and international standards.

The report published subsequent to the Leon Commission of Inquiry listed a number of shortcomings in the Minerals Act, 11 (Act No. 50 of 11).

These shortcomings were addressed by embarking upon a new tripartite process to draft the Mine Health and Safety Act that resulted in the promulgation of the Mine Health and Safety Act, 16 (Act No. of 16). The Mine Health and Safety Act came into operation on 15 January17.

One of the groundbreaking sections that were included in the new Act is Section 1. In Section 1(1) (a) of the Act certain responsibilities are placed on any person who wants to conduct business with any mine. This section states that

“ Any person who-

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

That the article is safe and without risk to health and safety when used properly, and

That it complies with all the requirements in terms of this Act.”

This Section has far reaching effects on doing business with any mine in South Africa. In this article some of the pitfalls and solutions to some of the associated problems will be addressed.

1. THE RESPONSIBILITY OF THE CONTRACTOR

For the purpose of clarity, designers, manufacturers, repairers, importers or suppliers, will be referred to as contractors for the remainder of this article.

When one analyses the content of this Section of the Act a number of questions comes to mind. The first and most important is “ What does this section requires a contractor that designs, manufactures, repairs, imports or supplies articles to mines to do, in order to prevent them from contravening the Act?”

In order to respond to this question one needs to understand the context of the requirements as well as the purpose of the inclusion of this section in the Act.

It is clear that the legislator identified that the contractor would able to identify the issues that can be a contributing factor in accidents and cases of ill health associated with their products. It is also significant that services and or processes are excluded from the provisions of this section of the Act.

It can also be reasonably concluded that the legislator realised that, in most cases, the contractor would be in a better position to determine that an article is safe and without risk to health and safety when used properly. This implies that the contractor would know, or will be able to determine, what the correct way of using an article is.

The question remains, how will the contractor know, or determine this? The statutory answer to this question can be found in Section 11 of the Act. This section clarifies what the Act deems as appropriate response risk. Before trying to address this issue some of the other questions needs to be answered.

REASONABLY PRACTICABLE

One such a question is, what is meant by reasonably practicable?

The Act requires that the contractor must, as far as reasonably practicable, do certain things. For example, if it is not practicable to put suggestions made into effect, the employer should explain the reasons.

Reasonably practicable can be described as meaning practicable having regard to �

(a) The severity, frequency and extent of the hazard or risk concerned;

(b) The state of knowledge reasonably available concerning that hazard or risk and of any means of removing or mitigating that hazard or risk;

(c) The availability and suitability of means to remove or mitigate that hazard or risk; and

(d) The costs and the benefits of removing or mitigating that hazard or risk.

This definition implies that the severity, frequency and extent of the risk is considered in order to prove that the contractor acted reasonably practicable in identifying whether the article is safe. It also implies that the proper procedure to use an article will be described.

ASSESSING THE RISK

From the above the question may be asked, “How is this achieved?” The answer lies in the methodology of identifying hazards and assessing risks.

Section 11 of the Mine Health and Safety Act gives a detailed description on the way employers have to deal with significant hazards and risk. The section includes a hierarchy of control that is aligned with the requirements as contained in the ILO convention C176.

This section requires that risks needs to be dealt with in the following sequence

• Elimination of the Risk

• Controlling of the Risk at Source

• Minimise the Risk

• In so far as the Risk remains

• Provide personal protective equipment and

• Institute a programme to monitor the Risks

There are a number of risk assessment models commercially available in the marketplace that claims compliance to the requirements of the Act. From the experience of the author, a number of these models do not fully address the risk assessment requirements of the Act, in that most of them only consider severity and frequency.

This is clearly posing a problem to contractors, as the Act also requires the extent of the significant risks to be considered by the contractor.

The NOSA facilitated model for risk assessment includes the consideration of the severity, frequency as well as the exposure to the significant risks in a practical manner.

One of the numerous outcomes of the NOSA risk assessment process is the generation of a process description or a detailed procedure of the activities being assessed. In addition to this the risk assessment process also produces a risk register that could ideally be included in the product information supplied to the mine with the product.

WHAT IS RISK ASSESSMENT?

The term risk assessment is commonly used in various ways to describe some method of identifying, understanding and controlling risks.

Risk Assessment can be described as a detailed and systematic examination of any activity, location or operational system to identify risks, understand the likelihood and potential consequences of the risks and to review the current or planned approaches to controlling the risks, resulting in instituting additional controls where required. Successful risk control can include outcomes such as improved safety, health, production, environmental protection, community acceptance, etc.

There are many ways to conduct risk assessment. One of the most common and accepted approaches in the occupational safety and health discipline is qualitative risk assessment. Qualitative risk assessment is part of regulatory requirements in many other countries for the improvement of occupational health and safety standards.

Qualitative methods of assessing risks do not try to establish numbers and black and white acceptability of risk like quantitative risk assessment. Qualitative risk assessment attempts to establish levels of risk only in relation to other risks, or a total system risk. As such, methods such as risk ranking are commonly used to establish relative levels of risk, ranging from a high rank to a low rank. This risk ranking is then used to allocate limited resources in an objective manner in order to reduce the risk.

CONCLUSION

Doing business with any mine in South Africa have been changed drastically since the introduction of the Mine Health and Safety Act in 16.

Traditionally the onus was on the mine to ensure that any article purchased was safe to use on the mine. With the inclusion of Section 1 in the Mine Health and Safety Act this responsibility was shifted to the contractor. Up to now most mines accepted articles from contractors without insisting on the accompanying risk assessment documentation. As the new Act becomes more and more established in the industry, and the supporting legislation are drafted, the mining Inspectors will start clamping down on mines and contractors not conforming to this type of non-conformance.

It is a known fact that the mining Inspectors have significantly changed their approach from physical inspections to a more holistic auditing type of approach. There are already a number of cases known where the mining Inspectors have utilised their significant powers to issue massive administrative fines or stopped mines from producing for non-conformance to sections of the Mine Health and Safety Act.

One can just imagine what the consequences to a contractor would be, should a mine receive an administrative fine of significant value, or being stopped for any length of time, as a result of a contractor not conforming to the requirements of Section 1 of the Act.

by

Dr. Carl Marx

risk@webmail.co.za



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