|
Dear Folks
As most of you know the mines are baring the (OHS) brunt of union and
government wrath at the moment. I naturally have my own ‘take’ on it and see
some elements of a feeding frenzy coupled with the usual union (NUM)
opportunism. Afterall it’s no secret that NUM is muscling its way in
everywhere – read Moses Mabhinda stadium – in an effort to boost their
membership. I didn’t know that the stadium was a mine or even on mining
ground! I personally have had enough dealings with NUM to notice that safety
is often just an excuse to cause trouble for employers. One of their
so-called gripes with management at that stadium is lack of safety or
compliance officers, a charge denied by management. To me it looks as if
they will use safety as a convenient issue particularly since the President
has ordered a complete safety audit of all mines in this country. They
invariably see safety as a
confrontational
issue, prejudge every incident with public condemnations concerning employer
negligence and have sank so low as to label mining accidents as ‘genocide’.
While it is true that employers have the resources to, within reason, ensure
workplaces are safe, their (NUM) members seem blissfully unaware that they
also have duties in law vis-à-vis safety and, even more so, explicit
rights such as the right to leave a dangerous workplace. I ask myself
whether Health & Safety Representatives, in particular full time Health &
Safety Representatives which are not obligatory appointments but one
exercised by most mines, invariably NUM members, are actually doing their
job? If they exercise this right and advise workers to leave a dangerous
workplace, they cannot even be discriminated against lest the mine incurs
the wrath of the Inspectorate. But they are quickly abuse this right when it
suits them – perhaps to extort more benefits from employers. In fact this
practice was recently exposed by the
Labour
Court in
NUM & others v Chrober Slate (Pty) Ltd [2007]
(LC).
While it cannot be denied that there are employers who care little for
health and safety at the workplace, most employers, particularly the large
corporations are not so naïve as to be told over and over again that
accidents costs. They are well aware of the negative publicity, potential
corporate governance implications, work shutdowns etc. Perhaps there is a
perception that mines deliberately orchestrate accidents causing shutdowns
which in turn result in a shortage of their mineral and a price increase?
Section 23
of the Mine Health & Safety (MHS) Act explicitly provides workers with the
right to leave a dangerous workplace. It also allows a Health & Safety
Representative to exercise this right with impunity provided it is
reasonably justified. Procedures must be in place to determine how this
right is exercised and how to resolve the issue once the right has been
exercised. The OHS Act, on the otherhand, does not explicitly allow workers
to leave a dangerous workplace.
Section 14©
obliges employees to carry
out any lawful order given to him and obey the health and safety rules and
procedures laid down by his employer or by anyone authorised thereto by his
employer, in the interest of health or safety, and
section 14(d)
provides that if any situation which is unsafe or unhealthy comes to an
employee’s attention, he or she shall, as soon as practicable, report such
situation to his employer or to the health and safety representative for his
or her workplace or section thereof, as the case may be, who shall report it
to the employer. Now if employees have a duty to obey a lawful order given
in the interests of health and safety, they, by implication, have the right
to refuse an unlawful (unsafe / dangerous) order.
The Minister of Labour also routinely exhorts workers to leave dangerous
workplaces but of late has also been focusing on workers’ roles in health
and safety. ‘Safety
is the responsibility of everyone. Every year we spend billions of rands
compensating injured workers through the compensation fund for accidents
that could have easily been avoided.
When injuries rise, production gets negatively affected, causing profits to
go down, which then results in jobs being lost.’
Worker's death: shameful and regrettable.
DoL. 9 October 2007. 'Barely a fortnight after Labour Minister Membathisi
Mdladlana had sharply criticised the lack of adequate safety measures in the
construction sector, another worker has died tragically under similar
circumstances in Waterkloof, Pretoria yesterday. Coleman Ngcezu (33) was
allegedly stacking bricks on a scaffolding platform, four stories up when he
plunged to his death, head first to the ground. Preliminary investigations
revealed that the platform that Ngcezu was working on had no barricades and
that the scaffolding structure was 'shaky'. Ngcezu was reportedly not
wearing any safety harness, only a hard hat and a pair of safety boots. Two
weeks ago, a Mozambican national, Americo Diaz, died at a construction site
in Pretoria, after slipping and falling two floors to his death. The
accident was also attributed to inadequate safety measures in place. Zolisa
Sigabi, the Department of Labour spokesperson said, "Both workers' deaths
were regrettable and shameful, and could have been avoided. Employers and
workers alike must work together to ensure a safe work environment. It is
also incumbent upon workers to take responsibility of their health and
safety.
They should refuse to work under dangerous
conditions."
She said workers need to ensure that they have workplace safety
representatives in place to be the eyes and ears of the department.
I have always maintained that, despite the rhetoric, the unions have never
fully come onboard vis-à-vis health and safety. In their eyes it’s a
management problem. In fact I have often sat opposite NUM representatives at
MHS Act inquiries into fatal accidents and have noticed the glee in their
eyes every time they score a cheap ‘political’ point off mine management
while remaining mum (or is that NUM(B)) about their own role in health and
safety. Perhaps they need to be made aware of their role and perhaps the
latest initiative by DoL will go some way to help.
Health and safety training for union reps.
DoL. 7 November 2007. 'Following last week's iron and steel national
inspection campaign, the labour department in KwaZulu-Natal is to embark on
an initiative aimed at training 50 union representatives by the end of
November 2007 on health and safety issues across the province. The training
will cover different aspects of the Occupational Health and Safety Act and
prepare unions with the knowledge on how to develop a plan of action to
implement health and safety measures in the workplace. This will also
include drawing up a framework for a health and safety agreement between
both workers and employers. This comes in response to a formal request from
the National Union of Metalworkers of South Africa (Numsa), a recognised
trade union in the iron and steel sector that has an estimated 35 000
members in the KwaZulu-Natal region. The union which has shown a keen
interest in health and safety issues in the province has requested the
department to train 30 shop-stewards, 17 organisers and three officials at
this stage. The union joined forces with labour inspectors in the province
last week when a whopping 655 employers in the iron and steel sector were
inspected for occupational health and safety compliance. Out of the
workplaces visited, an alarming 489 employers, 75 percent, were found not to
be complying with the law. A total of 418 contravention notices, 23
improvement notices and 13 prohibition notices were served on non-compliant
employers. It was also found that 94 incidents were reported to the
department by employers from those that were inspected. Follow up
inspections will be conducted in all instances where notices have been
served and if there is still non-compliance, there will be no hesitation
from inspectors to recommend prosecution. During the five day blitz
inspection campaign that took place country-wide last week, Department of
Labour Minister, Membathisi Mdladlana, stressed the importance of workers
playing a proactive role in ensuring their own workplace safety. "Safety is
the responsibility of everyone. Every year we spend billions of rands
compensating injured workers through the Compensation Fund for accidents
that could have been easily avoided," he said. "When injuries rise,
production gets negatively affected causing profits to go down, which then
results in jobs getting lost," he said.
Section 34
of the draft National Occupational Health & Safety (NOH&S) Bill proposes to
expand the explicit right to leave a dangerous workplace to all workplaces.
I still have a problem with the word ‘dangerous’. It’s not defined in either
the MHS Act or the NOH&S draft Bill. Surely working underground at 3 km is
per se dangerous? Is dangerous necessarily unsafe? It also proposes in
section 50
the option of full time Health & Safety representatives along the lines of
section 26
of the MHS Act.
In
NUM & others v Chrober Slate (Pty) Ltd
[2007] (LC)
certain workers downed tools and went on strike. They were subsequently
dismissed. They took their employer to the Labour Court citing unfair
dismissal. One of their arguments, an after thought according to the Judge,
was that they was that they were working in an unsafe environment and merely
exercised their right to refuse to do dangerous work. This argument was
dismissed and so were they.
For more OHS News
click here.
Regards
Raynard |
