Dear Subscribers 

I assume that all of you must have received the Devil’s Advocate’s Newsletter in which I took a brief look at the National Occupational Health & Safety Integration Bill. Click here to refresh your memories. The NOH&S Bill will establish an integrated occupational health and safety policy for South Africa and thereafter an autonomous National Occupational Health & Safety Authority which will be charged with the development and implementation of an integrated health and safety system established by the national policy. We arrived at this space via an international ILO Convention which, inter alia, will compel government to drastically improve its inspection, enforcement and punishment of OHS violations. Of course it’s all very well to create an autonomous OHS Authority with specialised OHS inspectors to police OHS matters at the workplace but where will we find these specialists? Will government match the salaries of the private sector? Will they try and recruit all the alienated specialised inspectors who left? They surely cannot use the current bunch of non-specialised ‘Labour Law” inspectors for OHS matters since the International IOL Conventions call for specialised (read forensic) investigators. They cannot expect the mining inspectors to investigate industrial accidents across the board. 

The real reason for rehashing the NOH&S Integration Bill in this newsletter is to highlight some of the comments contained in the Executive Summary of the National Occupational Health and Safety Policy against the backdrop of Rustenburg Platinum Mines Ltd v Chief Inspector of Mines & another [2006] (T).  Here the question of levies based on Risk Factors was addressed by the Transvaal High Court. As you know in the mining industry an additional source of income is generated by the State in the form of levies based on a Risk Factor which is determined by the Chief Inspector of Mines. (Sometimes incorrectly as ruled in the above case).  

The facts of this case are briefly that a miner with AIDS had sustained a knee injury while working on the applicant company's mine. He subsequently died. In terms regulation 35.2 drafted under the provisions of the Mine Health and Safety Act 29 of 1996 (the MHS Act) the first respondent, the Chief Inspector of Mines, is required to establish a "safety risk factor" for every mine based on statistics of injuries and fatalities. The mine is then required to pay levies based on its safety risk factor to statutory bodies established under the MHS Act. The Chief Inspector included the death of the miner as a fatality. It was common cause that it was unlikely that the miner would have died if he had not had AIDS. The applicant therefore applied to have the inspector's decision set aside in terms of the provisions of the Promotion of Administrative Justice Act 3 of 1996 (PAJA). The court held, inter alia, that a decision relating to compensation for a mining accident in terms of section 22(1) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 is different to the statutory provisions authorising the Chief Inspector to fix the safety risk factor of a mine. In determining whether compensation under COIDA is payable the law with regard to causation can be applied to determine, in law, whether the death resulted from the accident. In the case of safety risk assessment it had to be remembered that death would not normally have occurred in this instance. The safety risk could not simply be connected to the fact that a fatality occurred as a result of an accident. Therefore any decision of this court as to the manner in which the first respondent applied her mind in order to determine the applicant's safety risk would have no bearing on any decision made under COIDA for compensation. Held, on the merits, that in terms of the definition of "risk" in the MHS Act the Chief Inspector of Mines had to bear in mind the likelihood of the consequence, taking into account the particular incident. This would have meant taking into account the number of miners with AIDS. This she had not done. By failing to do so the inclusion of the fatality did not reflect a true safety risk. Her decision was not rationally connected to the purpose of the Act. The application to set it aside succeeded. 

With the creation of the National Occupational Health & Safety Authority the Mine Health & Safety Inspectorate will be combined with the Department of Labour’s Inspection & Enforcement Service. And that begs the question. What will happen to the Levy System based on a mines’ Risk Factor? Will only a sector of industry be subjected to levies with the non-mining sector be exempted? Will government abandon the Levy System completely or will it be broadened to include other industries? In my opinion the latter is probable and, with the AIDS pandemic still impacting negatively on the workforce for the foreseeable future, the question of causality and AIDS will become a issue for industry in general. The wording of the Executive Summary of the National Occupational Health & Safety Policy is quite telling. While bemoaning the acceptably high cost on South Africa that OHS accidents and diseases impose, the Policy calls for improved research capacity. This research capacity, funded by a Risk Factor Levy already exists in the mining industry and can readily be expanded to incorporate industry in general. Or it can target certain industries using a workforce or turnover formula. Another proposition in the Policy document is the funding of OHS activities through a combination of financing through fiscus, employer compensation contributions and other employer levies and donations. 

Watch this space. I’ll be keeping a close eye on developments and will keep you briefed. 

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Kind regards

Raynard