Dear OHS Practitioners

My first newsletter to you after the new year and I’m continuing dissecting the NOH&S draft Bill of 2005. You will recall that in my last newsletter I looked at the proposed provisions for internal investigations and the privilege that the reports emanating from such investigations may enjoy.

In this newsletter I will look at the official investigations and (formal) inquiries which may be held into workplace accidents or contraventions of the Bill. Unlike the provisions pertaining to contractors or mandataries which takes its cue from the OHS Act, it would seem as if the Bill has borrowed heavily from the MHS Act as regards investigations and inquiries. It does not mean, however, that non-mining employers or employers who fall within the jurisdiction of the OHS Act would have to adapt too much. I have always preferred the provisions of the MHS Act that pertain to investigations and inquiries and considered the OHS Act provisions antiquated and even unconstitutional. To this very day DoL stubbornly refuses to furnish employers with their reports post an investigation or inquiry, using an array of feeble excuses. This despite the constitutional right to information. I am sure that a court would rule in favour of employers if DoL was taken on in terms of the Promotion of Access to Information Act. Be that as it may, when the Bill becomes law the National Occupational Health & Safety Authority (NOH&SA) will be duty bound to furnish employers and other interested parties (health & safety representatives, health & safety committee, registered trade unions or even employees) with a copy of the inspector’s report. Employers may even be obliged to prominently and conspicuously display a copy or extract of the report.

The NOH&S Authority will be under no legal obligation to investigate or inquire into incidents unless instructed to do so by the Chief Executive (Chief Inspector) of the Authority or required by regulation. This is a departure from the MHS Act where section 65 compels the Chief Inspector of Mines to conduct an inquiry into all fatal workplace incidents. This may not be a bad thing. With the disintegration of DoL’s OHS investigative branch and the rapidly deteriorating situation within the Mine Health & Safety Inspectorate, an inquest court could be better equipped to officially inquire into all unnatural deaths. But then again the judicial system is also taking strain. The bottom-line is that the promulgation of the NOH&S Bill will not solve our OHS problems. Government does not have the capacity or will-power to rectify years of erosion within DoL. And now DME (MH&S Inspectorate) apparently is starting to run on empty. It will take lots of money and determination to create an effective National OHS policing authority and I don’t expect this Bill to be promulgated into law soon. Wasn’t the National Occupational Health & Safety Integration Bill, the forerunner to this Bill, supposed to be passed by parliament last year? South Africa is also duty bound, in terms of an International Treaty, to report progress every two years to the IOL (International Labour Organisation) in this respect but it’s doubtful whether this really constitutes pressure on government.

As with previous OHS legislation, there are in the Bill two formal investigative procedures whereby OHS incidents, health and safety threats and contraventions of OHS legislation may be pursued via, inter alia, questioning. The Investigation and the Inquiry. (Questions may also be asked by inspectors during inspections of the workplace and this will be dealt with in a separate newsletter). With both Investigations and Inquiries questions may be posed to persons who must answer them to the best of their abilities. Persons may refuse to answer questions which are self-incriminating but may, at inquiries, be deprived of that right in certain circumstances. The presiding officer at an inquiry may issue a directive excluding evidence from being used in a criminal proceeding and disciplinary hearing and persons involved are compelled to answer even self-incriminating questions. The person presiding at an inquiry may direct that any evidence given by a person during an inquiry may not be used for the purposes of any criminal or disciplinary proceedings against that person, except in criminal proceedings on a charge of perjury against that person. When a directive has been issued under sub-section (3), the person involved is not entitled to refuse to answer any relevant question only on the grounds that the answer could expose that person to a criminal charge or disciplinary proceedings. I assume that persons may only be compelled to answer self-incriminating questions pertaining to the excluded / unrecorded / protected evidence. These persons, whose evidence is subject to a directive, are not granted blanket indemnity and may be subsequently prosecuted.

The directive, which merely excludes the recording of certain evidence, is distinct from the (immunity) Certificate which the Chief Executive, in consultation with the National Prosecuting Authority (NPA), may issue to persons testifying at inquiries whereby they are granted (complete) immunity against prosecution but in exchange must answer all questions put to them even if they are self-incriminating. The protection extends not only to prosecution but also to administrative penalties as well as disciplinary action. It would seem as if directives and certificates are limited to inquiries and are not extended to investigations as is the case in the MHS Act. ‘For the purpose of enhancing the effectiveness of an inquiry, the Chief Executive, in consultation with the appropriate Prosecuting Authority, may issue a certificate that no prosecution may be instituted in respect of any contravention of, or failure to comply with, a provision of this Act related to the event that is the subject of an inquiry. If a certificate is issued, in terms of sub-section (1), no administrative penalty or disciplinary action related to the event being investigated in the inquiry may thereafter be imposed on or taken against any person questioned during the inquiry in terms of this Part. The Chief Executive must communicate in writing the protection afforded under sub-section (1) to all persons questioned during the inquiry. Persons questioned during the inquiry who are afforded protection under this section must answer every question to the best of their ability and may not refuse to answer any question on the grounds that the answer may be self-incriminating’.

Section 97 entitled ‘Initiating investigations’ reads:

(1) At any time an inspector may investigate –

(a) any accident or occurrence at a workplace that results in the death, injury or illness of any person;

(b) any occurrence, practice or condition concerning health or safety of persons at one or more workplaces;

© any actual or suspected contravention of, or failure to comply with, any provisions of this Act.

(2) The Chief Executive may instruct an inspector to investigate any matter contemplated by sub-section (1).

Section 100 entitled ’Reports on investigations’ reads:

(1) After completing an investigation, an inspector must prepare a written report of the findings, recommendations and any remedial steps undertaken or proposed.

(2) The inspector –

(a) must submit a copy of the report referred to in sub-section (1) to the Chief Executive;

(b) must supply a copy of the report to the employer and to the health and safety representative, health and safety committee, registered trade union or employee that requested the investigation; and

© may instruct the employer, or other responsible person concerned to prominently and conspicuously display a copy of the report or portion of it for employees to read;

(d) may submit, and if instructed by the Chief Executive, must submit the report together with relevant statements, documents and other information to the relevant prosecuting authority.

Another interesting inclusion is the prerogative afforded to the Chief Executive to report the findings of an investigation to the NPA. Currently in terms of section 30 of and section 32 the OHS Act, the findings of an investigation and formal inquiry must be reported to the NPA although, in terms of the MHS Act, the chief Inspector has a prerogative in both investigations and inquiries. This may be beneficial to employers in that the outcome of certain investigations may never reach the prosecutor’s desk. An inspector’s report after an inquiry, on the otherhand, must be forwarded to the ‘appropriate investigating authority’ which I assume is the NPA (prosecutors).

Section 101 is entitled ‘Initiating inquiries reads : ‘(1) The Chief Executive must direct an inspector to conduct an inquiry into any accident or occurrence at a workplace in respect of which an inquiry is required by regulation.

(2) The Chief Executive may direct an inspector to conduct an inquiry into -

(a) any accident or occurrence at a workplace, or in connection with working activities, that results in the death, injury or illness of any person;

(b) any occurrence, practice or condition concerning health or safety of persons at one or more workplaces; or

(c) any actual or suspected contravention of, or failure to comply with, any provision of this Act.

(3) If the Chief Executive is satisfied that there is a cause for concern on health or safety grounds, the Chief Executive must direct an inspector to conduct an inquiry into any matter referred to in sub-section (2) if requested in writing to do so by –

(a) a registered trade union with members at the workplace or workplaces;

(b a health and safety representative or health and safety committee at the workplace; or

(4) This section does not limit any other law regulating the holding of an inquest or other inquiry into the death of a person.

(5) It is not a requirement for the holding of an inquiry that –

(a) the subject matter of the inquiry has already been investigated in terms of this Part;

(b) that any investigation into the subject matter of the inquiry has been concluded’.

These are just a few interesting observations about the proposed provisions pertaining to Investigations and Inquiries. I have hyperlinked (above) you to all the relevant provisions on my website which you can read in your own good time. I will be looking at this and more in my June Workshops in Cape Town, PE, Durban and Gauteng. I envisage two sessions, one looking at the current situation – a sort of stocktaking – and an afternoon session focusing on the Bill. Hope you will all be there. Those who stay for both sessions get lunch! Mailers will follow shortly and information posted on www.klasslooch.com

Click here for the previous OHS Practitioner Newsletter.

Click here for Subscriber Newsletter : The NOH&S Bill “Contractors’

Click here for latest OHS Chat & Skinner Newsletter.

Regards

Raynard

PS. Some interesting articles and official documents since my last newsletter.

‘Labour department says staff poaching a major concern. DoL. 7 February 2007. 'The Department of Labour was putting its house in order following successive qualified reports by the Auditor-General over the past few years, Director-General Vanguard Mkosana told Parliament today (Tuesday, 6 February 2007). Addressing the Standing Committee on Public Accounts (Scopa) on various issues within the department, Doctor Mkosana explained the perceived irregularities on some of the issues, including the high staff turn-over, which he said was due to the rampant poaching of highly skilled officials. Doctor Mkosana said while the trend remained a negative factor, it had not really affected the way inspections were being conducted but that mechanisms put in place had ensured more improvements. "There is a remarkable change for the better in as far as inspections are concerned. There has been an increase from 53 000 to 213 000 inspections conducted by the same number of officials over the last three years, and this can be attributed to the empowerment of inspectors with, among others, necessary tools of trade such as sufficient vehicles instead of having to share," he said. Regarding the vacancy rate in the department, the Director-General said the 1 009 vacancy figure that had prompted disclaimers from the Auditor General had in fact, not always been the true reflection as it included employees on internships, while the actual figure stood at 400. He told the Scopa panel that the department had managed to put in place mechanisms through which employee replacements are done swiftly. "At present we are keeping the vacancy rate at six percent which is a universally accepted norm and we are certain that our recruitment processes bring us the best candidates for the jobs," he said. Explaining complaints about alleged irregularities in the awarding of performance bonuses to some senior officials, Doctor Mkosana explained that the confusion had occurred when three officials were paid their bonuses in the year following the one they had actually been assessed. He conceded that the record keeping had been flawed, but added that the records in question were duly submitted to the Public Accounts Committee as soon as they were recovered in that same financial year. "Top managers forfeited their bonuses as a result. The picture has now qualitatively changed since then. This has opened our eyes and we are working on corrective measures to ensure this does not occur again," he said.

Death, injury rates soar in ‘stressed’ gold mines. Bday of 30 January 2007. 'Fatalities in the gold-mining sector had worsened, with mining houses seeking to cash in on a robust gold price by revisiting disused parts of their mines, Parliament’s minerals and energy affairs committee heard yesterday. The issue will also be highlighted at next month’s indaba on mine health and safety. The indaba was called by Minerals and Energy Minister Buyelwa Sonjica after the October disaster at AngloGold Ashanti’s Tau Tona mine near Carletonville when five mineworkers died in a rockfall. At the time Sonjica said the number of fatalities in the gold- mining industry was “unacceptable”. Mining Health and Safety Council acting chairman Mthokozisi Zondi told the committee that while there was a 26% drop in mining fatalities in the platinum sector in 2005-06, gold mining’s figures worsened. The council is a tripartite body representing government, labour and employers and is tasked with advising the minister on health and safety matters. “We have a very old gold-mining sector and are mining areas that are highly stressed,” he said. Acting chief inspector of mines in the minerals and energy department Thabo Gazi said that while the gold-mining sector employed 35% (155165) of all mineworkers, it was responsible for 51% (104 of the total of 202) fatalities in 2005-06 and 56% of all injuries (2324 of 3966). Gazi said the same regressive trend was evident in the gold sector again in 2006-07. The steady deterioration in the gold sector’s fatality performance was undermining the effort to bring SA’s safety record in line with international standards set by Canada, Australia and America. Government’s aim was to eliminate all gold-mining deaths by 2013, but this would require a 20% reduction in the fatality rate each year, Gazi said. The performance in 2005-06 was only a 16% reduction in the fatality rate from 0,25 deaths per million hours worked in 2004 to 0,21 in 2005 because of the gold sector. All other mining sectors, such as platinum, diamond and coal, had shown an improvement. Gazi also said that with commodity prices going up, mining houses had revisited dangerous mines. “The improvement in the economy comes at a cost of human lives.” Injury rates had also climbed as the mining industry turned towards mechanisation, he said. Other challenges facing the inspectorate were the loss of personnel. The department’s safety unit lost 75% of its top managers in one year to the private sector. Rising water levels in some closed mines in Gauteng could lead to disasters in neighbouring mines, Gazi warned. National Union of Mineworkers national secretary for health and safety Eric Gcilitshana said he was concerned about the slow pace of delivery of family housing units for mineworkers living in single-sex hostels. At the present rate of delivery it was unlikely the industry would meet its targets to have all workers living in family units or in townships by 2013, he said'.

Employer fined R50 000 or imprisonment for risking worker's life. DoL. 5 February 2007. Labour Minister Membathisi Mdladlana has welcomed the Odendaalsrus Magistrate Court ruling, against an employer who violated the Occupational Health and Safety Act (OHSA) regulations. In one of major breakthroughs in occupational health and safety related incidents, an employee of Zenco Engineering Company in Odendaalsrus, outside Welkom in the Free State, was last week found guilty and sentenced to pay a fine of R50 000 or 12 months imprisonment for exposing his employees to unsafe working conditions. The court had found that Willem Vosloo, the employer of Zenco Engineering Company contravened the OHS Act, after Jonas Ramotsehoa, a welder employed by the company was strangled to death by a drilling machine while trying to clean it in 2004. The Department of Labour instituted a formal investigation into the incident and a recommendation for a possible prosecution was referred to the National Public Prosecutions Authority. The Labour Inspector's findings during the formal investigation revealed that lack of training, supervision and proper work procedures of operating machinery were the main cause of the fatal incident. The deceased, then 64 years old sustained multiple head injuries as a result of the accident. The court found that Vosloo failed to conduct a risk assessment to establish hazards to health and safety and did not apply any precautionary measures for his employee when operating machinery as required by the General Machinery Regulations. The sentence was suspended for five years on condition that he will not be found guilty of the same offence within the set period. Regulation 4(1) of the General Machinery Regulations indicates that an employer or user of machinery shall ensure that every person authorised to operate machinery is fully aware of the dangers attached thereto and is conversant with the precautionary measures to be taken or observed to obviate such dangers.

Pretoria based company likely to be fined R100 000 for compromising workers safety. DoL. 14 February 2007. 'The Department of Labour is set to take drastic measures against a Pretoria-based construction company for defying a prohibition notice ordering the company to stop all construction work at a site in Pretoria West. Spokesperson Zolisa Sigabi has condemned the company's apparent absolute contempt of labour laws. "We are definitely pushing for prosecution. We will next week file the necessary court papers for court processes to start. We cannot stand such a defiance of our laws, but most importantly the utmost disregard for the health and safety of our workers. We view the situation very seriously hence we are pushing for prosecution." In terms of the original prohibition notice, labour inspectors charged the company - ARS Projects - of multiple violations of Occupational Health and Safety Act (OHSA), 1993. Among the offences, labour inspectors found the scaffolds did not meet the minimum requirements of scaffolds erection in accordance with construction regulations. Moreover, the Department of Labour also faulted the company for "allowing any person(s) to be at elevated positions without a fall protection plan in place and provision of safety harness." The company had also not provided their employees with personal protection equipment (e.g. hard hats, work suits, hand gloves, etc) or alternatively allowed them [employees] to work without the personal protection equipment (PPE). "Our follow up visits to the site revealed that the company was still engaging in the construction work despite the prohibition order in place. We are determined to set an example to others who could in the future be tempted to show such contempt over our laws. These are all serious offences in terms of the OHS Act, and pose a serious health and safety risk to the employees," Sigabi added. The company and its directors may face a maximum of R100 000 fine, or even an imprisonment term not exceeding a period of five years if successfully prosecuted'.