Health and safety in the workplace: How important is it?

24 Jun 2019

A distinction is made between health and safety laws which are aimed at securing health and safety in the workplace, and the health and safety laws which provide for compensation in relation to occupational diseases and injuries (including fatal accidents).

There are two primary pieces of legislation which are aimed at securing health and safety in the workplace, namely the Occupational Health and Safety Act, No. 85 of 1993 (“OHSA”) and the Mine Health and Safety Act, No. 29 of 1996 (“MHSA”). The MHSA applies to mines and some works, as defined in the MHSA, while the OHSA applies, generally, to other work places (subject to certain exceptions).

With regard to compensation, the Compensation for Occupational Injuries and Diseases Act,No. 130 of 1993 (“COIDA”) applies to the occupational diseases contained in the Schedules to COIDA, and to occupational injuries (including fatal accidents). A specific compensation mechanism is created under the provisions of the Occupational Diseases in Mines and Works Act, No. 78 of 1973 (“ODIMWA”), for the specified compensatable diseases which are identified under ODIMWA.

In relation to the OHSA and MHSA, there have been ongoing debates, over many years, regarding whether the mechanisms and structures under the OHSA and MHSA, are too rigid, and do not as a result achieve the intended purpose i.e. occupational health and safety. For example, in relation to the MHSA, mining companies have repeatedly requested greater flexibility and self-regulation. These representations have largely been successful, and the MHSA and its Regulations, provide for self-regulation, in several respects, including the hazard identification and risk assessments (HIRAs) that must be carried out, and the various measures, to be implemented, to address the identified hazards and the assessed risks so as to ensure that incidents and accidents do not occur and so that persons are not exposed to hazards to their health.

However, the Mine Health and Safety Inspectorate has argued that the self-regulation has not worked, and the Mine Health and Safety Inspectorate refers to the recent upward trend in fatal accidents on mines as proof of this. In the years that there was an improvement, the Mine Health and Safety Inspectorate generally argues that this resulted from increased enforcement by the Mine Health and Safety Inspectorate, including the issuing of the “stop notices” under Section 54 of the MHSA.

In our experience, many of the accidents (including fatal accidents) can be attributed to non-compliance with the provisions of the MHSA or OHSA, the Regulations, and the extensive health and safety systems which are implemented in support of compliance with the MHSA and OHSA i.e. it is more of a case of the existing system not being complied with (systems not being implemented) rather than system failures.

Our view is that both the MHSA and OHSA provide good frameworks for compliance, including appropriate self-regulation and flexibility. The emphasis needs to shift “back to basics” with an emphasis on ensuring that persons at all levels at mines or other workplaces, understand why something is being done, in addition to being trained on what has to be done. Understanding why a particular risk assessment is necessary, or why compliance with a particular rule is critical, is essential, in my view, to improved compliance with both the MHSA and OHSA.

Health and safety is not negotiable. The health and safety of workers in a workplace needs to take absolute priority, and profits cannot overshadow health and safety. There is of course a distinction between profit and profitability. Where companies are not profitable, this tends to have a significant impact on health and safety in the workplace because this inevitably results in restructuring, with the consequences that flow from this, such as disruption to “working rhythms”, reduced supervision, reduced number of employees in a crew, etc.

When it comes to profits, profits cannot be driven, at the expense of health and safety, and we have seen a significant change in recent years where investors are increasingly basing decisions on health, safety and environmental compliance, and in many instances, with full acknowledgment that profits may be impacted by compliance. Even if stakeholders do not subscribe to compliance with the MHSA and OHSA, on moral or legal grounds, most mature stakeholders, including companies, employers and investors, understand that the fallout from a single fatal accident can be extensive not only to the bottom line, but also, reputationally.

In our view, the balance is shifting to the emphasis on health, safety and environmental aspects with the understanding that there may be a reduction in profits.

Even where the “cost” of compliance in relation to health, safety and environment impacts on profitability, our experience is that most stakeholders are not prepared to compromise on health and safety, and would rather focus on sustaining profitability through alternative mechanisms.

A balance is being achieved, organically as a result of changing sentiments and approach to compliance, globally. In our view, this is the appropriate method of achieving balance, organically and dynamically, rather than being forced through legislative changes. Organic change is, in our experience, generally more successful because it tends to be based on the buy-in of all relevant stakeholders.

See also:

• Eversheds Sutherland growing the South African office – New mining and infrastructure team
• Psychological disorders? Judgment of Ockert Jansen v Legal Aid South Africa
• Ambit of inspector powers under Section 54 of the Mine Health and Safety Act 29 of 1996 clarified
• Determining compensation for general damages

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)