Dear Subscribers

Many of you have asked me in the past which OHS legislation applies, the MHS or the OHS Act when, for example, construction work is being performed on mining ground. In other words when mining or undertaking a ‘works’ as defined are not being performed. Many have asked which inspectorate would be involved should there be an incident in the scenario mentioned above.

I have just managed to get hold of the attachment which is a Memorandum of Understanding between the Departments of Labour and Mineral & Energy. It is more-or-less self-explanatory.

What it does not really tell us is which Inspectorate will preside over the proceedings where, for example, an incident -let's say a fatal incident - occurs while construction work is being conducted on mining ground. Section 65 of the MHS Act demands an Inquiry along the lines of a section 32 Formal Inquiry of the OHS Act into any mining fatality, unlike its OHS counterpart where fatal incidents may be investigated more informally in terms of section 31 of the OHS Act. Inquiries or formal inquiries are far more in depth and rigid, unions actively participate through high-powered legal representation, families often have their own legal representation and all, including the presiding officer have the right to cross examine. The proceedings are also recorded. Legal argumentation post a formal inquiry have also become the norm. Click here for a simplified example of what we call Heads of Argument. My last MHS Act Heads of Argument comprised over 40 pages as one has to analyse all the evidence, comment on its veracity, quote precedents etc. (There are no real OHS or MHS Act precedents but, if a fatality occurs, the common law in the form of a potential charge of culpable homicide, comes into play and our Law Reports are riddled with culpable homicide precedents.

My sources inform me that an investigation or inquiry into an incident on mining territory, where the OHS Act has jurisdiction, will be led by the Mine Health & Safety Inspectorate and that the 'investigating' inspector from DoL will be called as an ‘expert’ witness. I relish this. Imagine subjecting the DoL Inspector to gruelling cross-examination! As we all know, the present crop of DoL Inspectors leave a lot to be desired. My guess is that they will have to rely on the few real experts that remain within DoL. So it may not be that easy. Would NUM demand to be represented? My guess is again yes and they really know how to perform! And I don’t just mean toyi-toyi!

I have also stumbled upon some interesting material for my next newsletter. It is based on the USA Constitution (Fourth Amendment – Right to Privacy, not having your property searched etc.) and the powers of their OHS inspectorate. An interesting case has ruled…….. You will have to wait. All I need tell you is that the USA Fourth Amendment to their Constitution is similar to our Section 14 of the Bill of the rights which reads…’ Privacy. Everyone (including juristic persons i.e. companies / employers) has the right to privacy, which includes the right not to have-

their person or home searched;
their property searched;
their possessions seized; or the privacy of their communications infringed.

Their OSHA inspectors have similar powers to ours. The question I pose now. Are the powers of an inspector as contained in section 30 of the OHS Act constitutional bearing in mind that the OHS Act preceded the Constitution? Bear further in mind that the Constitution always prevails over other legislation.

Regards

Raynard

PS. Your e-mail address may appear on either of the various Distribution Lists that I am utilising this time. Please don’t fret. Just hit the delete button if you receive it twice.

I must inform you that I will be switching website software shortly so expect hiccups. I expect tears.

For those of you who have time on their hands click on www.prevent-it.ca You could utilise it yourselves as a presentation on workplace safety. It is a great Canadian website.

Click here for the memorandum between DoL & DME.

Regards

Raynard