JOHANNESBURG (miningweekly.com) – The newly gazetted guideline to prevent, mitigate and manage the Covid-19 pandemic on mines is largely a restatement of what has already been adopted by the mining industry.

Most of the requirements of the code of practice (COP) mandated in the gazette already form part of the standard operating procedures (SOP) of the 77-member Minerals Council South Africa.

The gazetted COP and the mining industry’s SOP are thus largely aligned.

“Ninety-nine per cent of it is what the Minerals Council put in place. The Minerals Council was very proactive, I must say. Quite some time before the implementation of the lockdown, they prepared the SOP and distributed it to members,” ENSafrica mine and occupational safety executive consultant Willem le Roux told Mining Weekly in an interview.

But Le Roux expressed the view that two of the guideline’s stipulations present misinterpretation possibilities.

“There are a couple of things that could have been phrased better,” he said.

One of these is the requirement under paragraph 8.3.1.1, on page 22 of the gazette.

This states that in considering management of Covid-19 infection transmission, the employer must consider ensuring that employees returning from areas regarded as Covid-19 epicentres are quarantined for 14 days before they return to work.

“On the face of it, it’s very rigid but we must keep in mind that it states that the employer must consider it. So, it’s not that the employer must apply it in each and every instance.

“My further problem is that it is not clear what an epicentre of Covid-19 is. When you look at the media and the Department of Health, they refer to epicentres of Covid-19 as any place where Covid-19 has been contracted.

“In certain cases people refer to epicentre hotspots. Now the word hotspot tells you that the incidence of Covid-19 in that area is a significant problem,” he said.

His recommendation is that the employers and the Department of Mineral Resources and Energy (DMRE) should interpret 8.3.1.1 as follows:

“First of all, employers must do risk assessment under Section 11 of the Mine Health and Safety Act and they must take into account particularly whether or not the infected person comes from an area where there is a significant risk of Covid-19 infection. That will be your hotspot.

“Secondly, they must take into account whether the person displays Covid-19 symptoms, and thirdly, whether the person has been in contact with others who have contracted the virus.

“Those are three factors that they must take into account, together with the remainder of the prevention, mitigation and management procedures, such as screening, sampling from time to time or sampling at least those who display Covid symptoms.

“Of concern is that the DMRE safety and health inspectors may interpret 8.3.1.1 as needing to enforce that employees returning from areas regarded as epicentres of Covid-19 are quarantined for 14 days before they return to work.

“What if there is insufficient place to accommodate those employees for 14 days? Or, if physical distancing requirements are not enforced?" Le Roux queried.

He urged that that a flexible approach be adopted to 8.3.1.1.

“If you must quarantine a person and there's not sufficient space to do so, the person must be given the opportunity to self-isolate for 14 days or go home.

“But otherwise, I think there’s not really a problem with the guideline, which is largely as was drafted by the Minerals Council,” he reiterated.

On the question of criminal liability, which is referred to in the last three lines of paragraph 2.1, it is stated that failure by the employer to prepare and implement the mine’s COP in line with the guideline constitutes a criminal offence and a breach of the Mine Health and Safety Act (MHSA).

“So, you must draft a COP, which must be consistent with the guidelines, and you must implement the COP, but it doesn’t say that a breach of a provision in the COP is a criminal offence. As long as employers draft and implement the COP, it’s fine. What is a criminal offence is the failure to prepare and implement a COP and not a mere failure to comply with a procedure contained in the COP," Le Roux noted.

“Why this approach is flexible is that it can be mine specific. You don't want one rigid set of regulations that apply to all mines, whether opencast or deep underground mines, labour intensive or mechanised, whether it's a small mine or a big mine.

“You would like the employer to look at his own situation to keep in mind the guideline and to draft the COP based on his requirements. It is also flexible because the employer can amplify, substitute and carry on," Le Roux said.

The court has already pronounced on how the close proximity of mine underground transport is addressed. In terms of clause 4.2.1 (g) of Annexure A to the court order granted by Judge Van Niekerk on May 1, the cage transport problem is addressed with the use of personal protective equipment (PPE) designed to shield them during the travel period, when it is not possible to keep the required physical distance.

"In terms of the order employees who are not able to physically distance as required, such as on underground transport, must be provided with appropriate masks in line with National Institute for Communicable Diseases' guidelines and Minerals Council South Africa guidance on PPE for Covid-19 pandemic, dated April 21. This order applies until such time when codes of practice have been drafted and lodged with the Chief Inspector of Mines in terms of section 9 (5) of the Mine Health and Safety Act. It is important to keep in mind that the terms of the order were agreed to by all the parties to the court application, including the Minister of Mineral Resources and Energy and the Chief Inspector of Mines," Le Rouw explained to Mining Weekly.

COMPREHENSIVE DUTIES

Fasken attorneys Neil Searle and Owethu Mbambo stated in a media release to Mining Weekly that the guideline sets out comprehensive and often complex duties to be addressed by employers in their mandatory COPs. 

The Fasken release recalled that the guideline was issued following an order handed down by the Labour Court on May 1.

The court directed Chief Inspector of Mines David Msiza, in consultation with the Mine Health and Safety Council, to develop the guideline for employers in the mining industry regarding the preparation and implementation of a COP for the prevention, mitigation and management of Covid-19. 

The guideline applied, the release said, to all mines employees and contract employees in the South African mining industry that might be exposed to Covid-19 in the performance of their duties.  

It stated that employers were obliged under Section 9(2) of the MHSA to prepare and implement a COP addressing the pandemic. They were required to consult with the mine’s health and safety committee and any other affected parties on COP preparation, implementation or revision, and the guideline recommend that employers appoint steering committees of competent persons to draft the COP. 

Risk assessment, startup and on-going procedure for mines, the Covid-19 management programme, monitoring and reporting and compensation for occupationally acquired novel corona virus must be addressed in the COP.

The guideline also set out detailed information on the preparations an employer must undertake before employees return to the mine’s premises as well as when they return. 

These preparations include developing a procedure for the management of the return to work of employees after the lockdown, as well as the history of Covid-19 in employees’ areas of residence during the lockdown, through the use of a questionnaire. 

The employer must utilise a risk-based method and a staggered approach to prioritise the return to work of employees.  A return-to-work medical must also be implemented that includes the completion of the questionnaire, as well as checking on vital signs such as temperature, blood pressure, and a glucose assessment for known diabetics. 

A Covid-19 compliance officer must be appointed to provide oversight on the implementation of the guideline, with  each mine submitting monthly reports to the principal inspector of mines. 

COP and related documents must be kept readily available at the mine for examination by any affected person in terms of the guideline, which comes into effect on May 25.