DEPARTMENT OF MINERALS AND ENERGY - Mining Safety

1 1 Guideline for enforcement of the Mine Health and Safety ActDEPARTMENT OF MINERALSAND ENERGYM inerals and ENERGY for Development and ProsperityMINE HEALTH AND Safety INSPECTORATEG uideline forEnforcement of theMine Health and Safety Act_____Chief Inspector of MinesISSUE DATE: January 20052 Guideline for enforcement of the Mine Health and Safety ActEnforcement GuidelinesContaining: enforcement principles withGuidelines for controlling risk associatedwith non-compliance andfor determining the appropriate action totake in cases of for enforcement of the Mine Health and Safety ActForewordForewordThis guideline document has been developed for use by theMine Health and Safety Inspectorate (hereafter referred to as'the Inspectorate') and will be reviewed from time to time, toincorporate new developments where guidelines are intended to assist the Inspectorate inachieving a clear and consistent approach to the enforcementof the Mine Health and Safety Act of 1996 (hereafter referred toas 'the Act').

2 The Act introduced the concepts of risk assessment andoccupational health and Safety (OHS) management systems inthe Mining industry and this in turn, increased inconsistencies ininterpreting the Inspectorate's enforcement responsibilities, bothwithin and between the various regional make full use of this document, which is the result ofmuch hard work and which represents the current collectivewisdom of the A HermanusCHIEF INSPECTOR OF MINES4 Guideline for enforcement of the Mine Health and Safety ActIntroductionIntroductionEnforcement involves identifying contraventions; bringing theseto the attention of the offender/s; requiring preventive or remedialaction and where necessary, applying stakeholders in the Mining industry contribute to creating asafe and healthy industry. Whilst employers are primarilyresponsible for providing safe and healthy workplaces, theDepartment of MINERALS and ENERGY is the lead agent in: Ensuring the health and Safety of workers and the publicaffected by Mining ; Developing policies and legislation; Promoting awareness of health and Safety amongst allstakeholders; Encouraging co-operation and continuous improvementin health and Safety ; and Promoting, monitoring and enforcing legislation andinitiating prosecution in terms of the Mine Health andSafety Act of 1996 (Act No.)

3 29 of 1996).5 Guideline for enforcement of the Mine Health and Safety ActEnforcementEnforcementPurposeThis document outlines the guidelines upon which enforcementdecisions are made and aims to achieve: Consistency in the enforcement of the Act by regionaloffices of the Inspectorate; A structured framework for decisions concerning the levelsof enforcement ; and Appropriate and timely enforcement enforcement will in turn contribute to: A systematic and effective risk assessment andmanagement practice in the Mining industry; and The effectiveness and efficacy of the principles of enforcementThe following principles apply when deciding on the measuresto be adopted to ensure compliance with the provisions of theAct: Objective: enforcement action must achieve clearoutcomes; Proportionality and responsiveness: enforcement actionmust be appropriate, responsive, timely and the level ofaction taken commensurate with the risk and potentialimpact;6 Guideline for enforcement of the Mine Health and Safety Act Transparency: enforcement measures must be transparentto enable stakeholders to understand what constitutes non-compliance with the provisions of the MHSA, as well astheir own obligations; Consistency, impartiality and non-discriminatory: enforcement action must be fair, consistent and equitable,taking into account the attitude towards health and Safety ,and actions of the alleged offender and any history ofprevious incidents and breaches of the MHSA; Targeting: Regulatory measures must be directed primarilyat those whose activities generate considerable risk and/or serious harm to health and Safety .

4 Due process: The principles of justice must be observedand enforcement carried out within the powers andprocesses of the legislation; and Policy compatibility: enforcement must be compatible with,and carried out within, other government policies andstatutory measuresThe seriousness of an offence must be judged against thefollowing criteria: Magnitude of a contravention; Failure to comply with an instruction; Ineffective preventative health and Safety managementsystems to prevent harm; Inadequate measures required to achieve compliance; and Previous history of for enforcement of the Mine Health and Safety ActA graduated series of options are adopted with consultation andverbal directions as the starting point, progressing throughstatutory instructions to order compliance, or to an order to haltor suspend operations at a mine or an affected area of a mine;and finally, the recommendation of an administrative fine orprosecution for failure to graduated series of options is generally referred to as theEnforcement Pyramid.

5 The pyramid refers to the series ofescalating alternatives, corresponding to successively moreserious circumstances (see figure).The enforcement Pyramid8 Guideline for enforcement of the Mine Health and Safety ActHierarchy of enforcement measuresTo facilitate the prevention of work-related death, injury and ill-health, the Inspectorate may make provision for formal or informalmeans of and educationThis tier of enforcement takes the form of: Letters to mine employers and mine equipment suppliersand/or manufacturers, advising of statutory obligation andrecourse issues; Education programmes or counselling sessions in the formof formal/informal meetings with stakeholders; Discussions within the tripartite structures; and Reviewing, modifying or upholding a previous regarding occurrences, practices orconditions that endanger or may endanger health andsafetyAn Inspector may give any instruction to protect the health and/or Safety of any person/s at a mine, bearing in mind the provisionsof the guidelines issued in terms of Section 55G(1)(b) of the to halt or suspend operations at a mine or an affectedarea of the mine must be issued to address any immediate riskof harm to the Safety or health of persons at a mine (Section54(1) of the Act).

6 9 Guideline for enforcement of the Mine Health and Safety ActAll oral instructions must be confirmed in writing at the earliestopportunity and provision must be made for prior representationfrom stakeholders, except when the delay caused by allowingrepresentation could endanger the health or Safety of enforcing compliance with anyprovisions of the ActWritten instruction to order compliance within a specified periodmay be issued to an employer to address any identified breachof legislation (See section 55(1) of the Act).Administrative finesAn Inspector may recommend an administrative fine if s/he hasreason to believe that an employer has failed to comply with anyprovision contemplated in section 91(1B) of the cases were the following circumstances exist, an Inspectormust recommend a fine, if s/he does not, s/he must give reasonsfor not making a recommendation in writing to the PrincipalInspector.

7 Contraventions or failures that pose a high risk of harm topersons directly affected by the activities at a mine; or A category of non-compliance contemplated in theguidelines issued in terms of Section 55G; or Knowingly exposing persons to serious hazards; or Repetitive failure to comply with instructions issued in theinterest of health and for enforcement of the Mine Health and Safety ActProsecutionProsecutionProsecution may be recommended to the Director: PublicProsecution if the Inspectorate is satisfied there is sufficientadmissible and reliable evidence that an offence has will be usual practice to recommend prosecution of an employerwhere the offence resulted from his/her actions or omissions,bearing in mind the provision of section 91(1A) of the , the Inspectorate will also consider any part played inthe offence by employees of the company, including directorsand following factors should be used to help decide whether torecommend prosecution: How much the outcome could have been anticipated; The extent of the offender's intentional negligence; The offender's attitude.

8 And The recommendation's deterrent assessment of a combination of all the relevant factors willdetermine if there is sufficient cause for prosecution to applying the law impartially and in a fair and consistent manner,it is necessary to consider the: Legal rights of the alleged offender; Interests and rights of victims; and Interests and rights of the for enforcement of the Mine Health and Safety ActThe application of enforcement actionThe level of risk and the immediacy of the problem to be resolvedwill determine the level of enforcement to be enclosed chart lists the steps to be taken and the factors tobe considered, in determining the appropriate for enforcement of the Mine Health and Safety ActNotes