Dear Folks

July has come and gone and I owe you a newsletter. It’s not that I have been lazy. I just have never worked so hard in my career. And naturally that’s a good thing as it keeps me away from the fleshpots of Johannesburg. On the other hand it is most probably safer to hang out there than going to a fast-food outlet where there is an ever present danger of being robbed. Safer I guess than declaring your financial status at ORT International! And while we, beleaguered citizens and tourists alike, glance anxiously over our shoulders as we go about our daily business lest we become another statistic, our Minister of Mineral & Energy in cahoots with her colleague from the Department of Labour lambastes employers for their dismal safety performance. While unsafe working conditions cannot be condoned, it has become a ritual for politicians and unions alike to threaten and admonish employers every time an occupational incident occurs. Scant regard is paid to the sub judice rule and prohibition notices are issued often more as a punitive measure than an instrument to designed to address and remove a threat to health and safety. Prohibition notices and its section 54 MHS Act equivalent, invariably halt production and have a cost implication. They are essentially pre-emptive instruments and are rightly issued almost on a daily basis in the construction industry. In some instances these notices are served, post an incident, despite it being quite obvious that there is no threat to health or safety from equipment particular where negligent behaviour is the root cause. The biggest culprits in that industry are the ‘bakkie brigade’, the SMME’s identified in the draft Occupational Health & Safety Bill policy document which states “the significant growth of the SMME sector poses significant challenges for OHS policy. Department of Labour inspections reveal that a high proportion of small employers do not comply with labour legislation, including OHS laws. Overseas studies indicate that small businesses have significantly higher accident rates than larger businesses in the same sector. A high proportion of small employers do not have capacity to take preventative measures to prevent injury and particularly occupational disease. The National OHS Authority proposes this policy will have to develop strategies to create an OHS culture among the SMMEs and to enable them to comply with OHS standards.”

The Department of Labour does not have the capacity to monitor OHS compliance levels of SMMEs and it is unlikely that it will be able to act effectively and pre-emptively in this regard in the foreseeable future. This, despite the impressive number of ‘labour law’ inspections conducted by them in the year 2006. The numbers of ‘genuine’ OHS audits by the Department of Labour are blurred because inspections often focus on other, more socially popular, labour laws such as the Employment Equity Act. Infringements of the Employment Equity Act also carry draconian fines up to 100 times steeper than those imposed for negligently killing people which, in turn help bolster the coffers (fleets of BMWs) of the State. The same applies to the poaching of perlemoens. The penalties for poaching this sea snail exceed those impose for culpable homicide ten fold. Perhaps in our next lives we should all come back as perlemoens and enjoy better protection than we enjoy as mere mortals. You can’t hijack a perlemoen or rape a perlemoen. But then again humans are poached on a daily basis. You can’t deny it despite the fact that the authorities have refined the art of denial. Deny crime is out of control, deny HIV causes AIDS, deny there is a refugee crisis, deny Mugabe is an idiot. Perhaps the word should be denaai because ultimately we all get screwed!

I am told that the proposed amendments to the Construction and General Health & Safety Regulations will be promulgated this month. Watch this space. Draft General Health & Safety Regulation 6 ‘Prevention of transmission of HIV, Hepatitis Virus and other Blood-borne diseases’ is one of them. Apparently one of the major proposed changes to the Construction Regulations will be the placing the duty of informing DoL of Construction Work onto the client as opposed to the current situation where the duty lies with the principal contractor.

I would like to thank all those who attended my Open Workshops for their support. I will address a separate letter of thanks to them hyperlinked to this newsletter. Also to Foseco, Metallica, Volkswagen and Huntsman for inviting me to present them with in-house OHS Legislation Workshops. My thanks to Schindler Lifts for coming aboard as a Subscriber.

I’ll be away for a well deserved break from 16 to 29 August. Should you wish to contact me try the Raffles Hotel in Singapore.

As always

Your Devil’s Advocate

PS. Remember folks “All animals are equal, But some animals are more equal than others.” George Orwell. Animal Farm. Think of those irritating individuals in the VIP Protection Unit, bloated with self importance, wearing tacky dark glasses a la Haiti, clutching their earplugs while scanning the horizon, who fly around in black BMWs with blue lights flashing, ignoring the rules of the road, even though they have no VIPs in their cars? They, like taxis, have decided that they are above the law. They should be driving opels as General Motors is a Subscriber client!

Some interesting articles the past month.

SA's mine deaths in the spotlight. IOL of 25 July 2007.

The consistently high death toll of workers in South Africa's mines was of great concern, Minerals and Energy Minister Buyelwa Sonjica said on a visit to AngloGold Ashanti's Moab Khotsong mine near Orkney on Wednesday. The two deaths there over the weekend had brought to four the toll at the mine, said Chief Inspector of Mines, Thabo Gazi, who accompanied Sonjica on an underground tour of the accident site. He said there had been an unconfirmed 110 deaths on mines since the start of the year. There were 199 deaths in all last year. Of the deaths this year, 58 were at gold mines, said Gazi. He said AngloGold Ashanti operations accounted for 25 of the fatalities in 2006. So far this year there had been 14 deaths at the company's seven operations in the country. Gazi said targets aimed at reducing fatalities were set by the government in conjunction with the industry and labour in 2003. These stipulated a 20 percent decrease year-on-year. While there was a 16.5 percent drop in 2004, there had been no improvement in 2006 and 2007 was "basically the same". "We are where we were last year. It doesn't seem we are getting the improvement [we hoped for]," he said. Profits could not come before people's lives, Sonjica said at Moab Khotsong, adding that while mines had to improve health and safety, inspections had to be tightened too. She said company chief executive officers and accounting officers had to be held accountable for the fatal accidents in mines. They needed to do more to reverse the trend. In a statement, the department of minerals and energy said it would co-operate with the justice department to ensure legal compliance by mine owners and operators. "Operations which have no health and safety plans will be stopped and we will consider the withdrawal of mining licences where operations are failing to comply with health and safety requirements," the department said. The department ordered a complete shut down at Moab Khutsong after Friday's incident in which three miners were trapped underground when a seismic event triggered a fall of ground 3 000 metres down the shaft at 4.40am. A miner was rescued immediately afterwards with minor injuries and was taken to hospital in a stable condition, but the other were found dead on Sunday. The shut down order has since been partially lifted to allow blasting in areas other than the development end where the fall occurred and two adjoining areas, said National Union of Mineworkers (Num) general secretary Frans Baleni, who joined the minister and chief inspector on their visit. Gazi said an investigation and inquiry was being conducted into the incident. By Wednesday, teams had recovered 46 hopper-loads of fallen ground from the scene and there was still a lot more ground to move, Gazi said, adding that one hopper could carry about six tons. Gazi said the improvement of safety systems at the mine would be handled by the department's regional office. NUM's Baleni said it had emerged on Wednesday that this was the first seismic event at the mine, and as a result it had not had in place the support systems normally used where there was seismicity. The seismic event, of only 0.7 magnitude, should not have had as big an impact, he said. Baleni used his visit to the mine not only to brief workers on the presence of the minister and chief inspector, but on the progress of wage talks in the sector. He said talks with the Chamber of Mines on wages in the gold sector took place on July 23, with talks in the coal sector on July 24. Num would meet with the Chamber again on August 1.

'Death mine' still closed. IOL of 25 July 2007. 'Confusion was evident on Tuesday over whether AngloGold Ashanti's Moab Khotsong mine, near Orkney, would remain closed after two miners died in a weekend ground fall. "Normal operations will resume from this evening," announced AngloGold Ashanti, only to be contradicted minutes later by chief inspector of mines Thabo Gazi who maintained that: "The mine is still closed." Gazi blamed a "miscommunication at regional level" for the mixed message. AngloGold Ashanti spokesperson Steve Lenahan explained that the mine was issued on Tuesday with a Section 54 order prohibiting all blasting in its single shaft. While it did not ban loading, hauling, or hoisting, Lenahan pointed out that: "You can't produce if you can't blast." Usually, Section 54 orders were limited to the immediate area where an incident had taken place. It was after consultations with the minerals and energy department's Orkney officials and trade unions that the order was lifted - and AngloGold Ashanti had a letter to this effect, said Lenahan. The company's understanding was that the Section 54 order now applied only to the development end where the fall of ground took place, he said. A development end is a new tunnel being driven into the rock for the purposes of future mining activities. Gazi and minerals and energy department director-general Sandile Nogxina will visit the mine on Wednesday to try and determine what went wrong. They will also brief the media on safety concerns at mines. The normal procedure when there were deaths was to conduct a formal inquiry, Gazi said. He was aware that seismic activity was being blamed for the ground fall, but said a lot of mines were seismic and these "normally take precautions". The activity at Moab Khotsong was of "very low" 0,7 magnitude. This suggested that support was not up to scratch, Gazi said, but emphasised that this had not been proven and was just one of the things he would need to take "a serious look at". Three miners were trapped underground at Moab Khotsong mine on Friday when a seismic event triggered a fall of ground 3 000 metres down the shaft at 4.40am. A miner was rescued immediately afterwards with minor injuries and was taken to hospital in a stable condition. However, the second miner was found dead underground at 2am on Sunday and the body of the third missing miner was located at 9am.

Mining giants put 'profit before people'. Busrep of 28 July 2007. 'The National Union of Mineworkers (NUM) has accused South African mining companies of putting profit ahead of the lives of ordinary workers. Speaking to the Mail & Guardian this week after the deaths of two mineworkers at AngloGold Ashanti's Moab Khotsong mine near Orkney, NUM general secretary Frans Baleni blamed the increasing number of mining deaths on the company's management. According to unconfirmed reports, since the beginning of this year there have been more than 110 deaths on South African mines. Last year alone, according to NUM, the industry recorded 199 deaths compared with 202 in 2005. Last week's incident at AngloGold Ashanti has brought to four the number of deaths at the mine since the beginning of this year. At Gold Fields 10 miners were killed, while 12 deaths were recorded at Anglo Platinum in the past few months. According to Anglo Platinum's spokesperson, Simon Tebele, about 56 miners have been killed since 2005. As a result a number of shafts have been closed. "Quite clearly there has not been a significant improvement in terms of improving the safety of our workers. "The bosses are concerned only about huge bonuses while poor workers are getting killed in the process. These accidents are reaching alarming proportions," said Baleni. This week's incident at AngloGold Ashanti prompted the department of minerals and energy to order a shutdown of the mine. Baleni said he supported minerals and energy minister Buyelwa Sonjica's position that chief executives and accounting officers should be held accountable for fatal accidents at their mines. He said when mining companies determine bonus payments, they should look at the level of fatalities at their companies. AngloGold Ashanti spokesperson Alan Fine acknowledged that the safety records of the mining companies were not up to standard and said his company had put plans in place to improve the situation. "The record deteriorated in 2006 after many years of improvement and we are concerned about that," Fine said. Baleni said the department should conduct investigations and deal with negligence. According to Business Day, the department this week warned that operations that had no health and safety plans would be stopped and the department would consider the withdrawal of mining licences where there was no compliance'.

Compensation Fund riddled with problems. Busrep of 27 July 2007. 'Despite a huge rise in payouts in the first six months of the year, the Compensation Fund is facing numerous problems that are crippling its systems to the point that it cannot even verify the backlogs. Of R839.7 million paid out for 506 651 claims, about two-thirds of the payouts went to healthcare service providers, not to compensation claimants. There were only 166 431 claims that were from workers while 340 220 were from doctors, according to compensation manager Fanie Kruger. Last year the fund only managed to pay out R2.1 million after accepting 159 237 claims. In addition to the backlogs, the poor filing system, lack of proper revenue generation and capacity constraints are the other key challenges that have been identified as hampering the work of the fund, which is a subsidiary of the department of labour. The fund has begun setting up a turnaround strategy that it wants to implement within two years. Pule Tsatsa, the project manager of the fund, is leading the team that is developing the strategy. Tsatsa, who joined the fund three weeks ago, said verifying how far the backlogs go was proving to be a challenge. "All along we have been using a manual filing system. That is why we are unable to verify the backlogs." Tsatsa said that they had claims dating back to the 1990s. They did not know whether the money had been paid, whether it had gone to the right account, or whether people were claiming twice for the same accident. Tsatsa said there was a possibility that fraud might have occurred and said if evidence was found they would be able to address it. "I am here to close all those gaps," he said. Anna de Freitas is one of the people who has experienced the frustration of waiting for the Compensation Fund. She is a widow of a truck driver who died of an occupational lung disease in 2004. De Freitas's compensation claim began in 2005, but she is yet to receive a cent. She has now sought the help of an employment lawyer at the Legal Resources Centre. "It has been a nightmare and a frustration. Since my husband died I have lost everything … because I needed money to pay for his medical bills," said De Freitas. De Freitas was told in November last year that she would be compensated. However, there has been a hold up because her husband's employer has not submitted the documents that are required. Tsatsa said that changing the filing system into an online one was crucial. It would also assist them in detecting employers who had not been paying their premiums. Premiums from employers are the only source of income for the fund. Employers are required to contribute premiums and tariffs are determined by the company's payroll'.

How safe are your appliances?

A clampdown on unsafe electrical appliances has seen a number of these products seized in the past few months, the SA Bureau of Standards (SABS) said on Tuesday. Technical specialist Alan Cohen said swoops had been made on at least 23 importers and manufacturers of unsafe electrical products since the beginning of the year. "Right now we are currently conducting inspections at major chain stores." Cohen of the strategic support services division of SABS Regulatory said major chain stores had been "very co-operative" during the operation. The appliances taken from major chain stores would be sampled and tested for compliance. Those manufactures and importers who were found guilty were restricted from selling some products, had their goods confiscated, fined and those with serious offences faced possible imprisonment. Appliances confiscated included stoves with faulty wiring, rice cookers with inaccurate instructions, hair clippers prone to overheating because of incorrect power ratings, and unsafe plugs and switches. Cohen said the clampdown came after investigations had shown that an increasing number of non-compliant electrical products was entering the local market. "A number of companies have acted responsibly and withdrawn their non-compliant products from the market voluntarily and have taken corrective action," said Cohen. "Unfortunately others have persisted in selling the products concerned, and obstructed the SABS in taking the necessary action." The objective was to remove all unsafe products from the market within three months, Cohen said.

Labour inspections to target Municipalities. DoL. 13 July 2007. 'Municipalities in Limpopo will come under sharp scrutiny next week, with Labour inspectors embarking on an intensive workplace blitz inspections to determine the level of compliance with safety laws. The week-long blitz inspection campaign, scheduled for between Monday and Friday (16 to 20 July), forms part of the department's ongoing drive to ensure safe and healthy workplaces. Inspectors will be particularly focusing on compliance right across the province, with special emphasis to parks and recreation facilities, water and sewage plant systems, electrical distribution system, risk assessment and driven machinery regulations. During the inspections, emphasis will be especially put on compliance with provisions of the Occupational Health and Safety Act and regulations. The exercise will be open to media'.

Construction work halted at the Department of Labour offices. DoL. 12 July 2007. 'Labour inspectors have halted building renovation work at its Durban Labour Centre premises due to the exposure of extremely high noise levels and dust particles to staff and members of the public who were trying to access services of the Department. Multinet Construction Company was served with a prohibition notice to immediately stop all work after inspectors discovered that a high frequency noise output was coming from an angle grinder being used for a whole eight-hour shift. Also, small air-borne dust particles were being deposited into the offices which could have resulted in serious health problems if inhaled and reached the lower respiratory tract. According to the Occupational Health and Safety Act, "Every employer shall conduct his undertaking in such a manner as to ensure as reasonably as practicable that persons other than those in his employment who may be directly affected by the activities are not thereby exposed to hazards to their health or safety." The company has been advised to look at implementing controls to eliminate the noise at the source or use an enclosure where it does not reach the present high levels that affect the health and safety of workers and the public. This should include the closure of dust entrance points. Administrative control measures are also to be explored where the renovation activities are to be performed after hours or over weekends when the offices of the labour centre are closed to the public. Labour inspectors will be regularly monitoring the contractor and only when satisfactory compliance is reached, the prohibition notice will be revoked'.

Companies need to be held to targets, says institute. Busrep of 12 July 2007. 'Laws fail to make SA's workers safe
By SLINDILE KHANYILE. Lenient occupational safety laws allowed local companies to get away with inadequate safety measures, the Southern African Institute for Occupational Hygiene said yesterday. Deon van Vuuren, the institute's president, said almost every industry in the country was dangerous if not properly controlled. People who worked in Mpumalanga, Limpopo and the North West were at most risk. Most mines and their refineries, as well as steel companies, the most dangerous industries, were based in those provinces. Most firms did not carry out risk assessments every two years, as required by law, because government inspections rarely took place, Van Vuuren said. "America and Europe are at least 20 times stricter than we are." Though the law was clear on what companies should do, it did not indicate how frequently government inspections should be conducted. "The quality of the inspections is very poor because occupational hygiene is a specialised field," said Van Vuuren. Just over 100 labour inspectors had to handle 15 different sets of regulations. Less than 20 inspectors specialised in occupational safety. David Rees, a professor of occupational health at Wits University, said: "We don't have a culture of health and safety, enforcement agencies are not adequately resourced and we do not have an overall strategy." The lack of trained personnel, lack of research and casualisation of jobs were also factors. Van Vuuren singled out exposure to vanadium, which is used in the stainless steel industry, as the worst case of occupational negligence he had seen. "It affects your upper respiratory system … Just like HIV/Aids, the person gets worse in later stages and all that companies do is redeploy the guy until he cannot work any more." The mining sector was better controlled. "There are very clear guides … Government checks those reports and if they are unhappy, they bring in their own assessors," said Van Vuuren. When risk assessors picked up danger, their obligation was only to warn the company; they had no legal duty to inform the government. "If you say anything, then you will be cut out of business. That is why in other countries, they do not use consultants like us; government has its own hygienists." This week it emerged at a labour department inquiry that Assmang was warned by hygiene firm Occutech as early as 1995 that it needed to reduce dust levels at its manganese smeltering plant in Cato Ridge. At least 10 Assmang workers have been diagnosed with manganism, a crippling condition. Fazel Randera, a health adviser to the chamber of mines, said the industry was working to improve health and safety. A major challenge was silicosis, caused by silica in gold mines. The industry aimed for 95 percent of mines to cut dust levels below the international benchmark of 0.1mg a cubic metre by next year. It wanted to ensure that people who started work on the mines from next year were not affected by silicosis. The department of labour did not respond to Business Report's questions'.