Coronavirus – Does the Mine Health and Safety Inspectorate and the Department of Employment and Labour have the power to issue Compliance Instructions, Force Majeure, and Covid-19 as an Occupational Disease?

• South Africa
• Africa

• Employment law
• Health and safety

25-03-2020

On 17 March 2020, we sent out an e-Brief:

Occupational Health and Safety: COVID-19 (click here to access this e-brief) where we discussed the responsibilities which are placed on employers in terms of the Mine Health and Safety Act, No. 29 of 1996 (“MHSA”), and the Occupational Health and Safety Act, No. 85 of 1993 (“OHSA”) regarding the health and safety of employees in the workplace, and other persons who may be directly affected by activities at a particular workplace/operation.

As we have continued to engage with our clients on a daily basis, various concerns have been raised, including (a) whether, under the MHSA, the Mine Health and Safety Inspectorate could issue compliance instructions in terms of Section 54 and/or 55 of the MHSA i.e. the so-called “stop notices”, and whether the Department of Employment and Labour can issue compliance notices in terms of Section 30 of the OHSA, (b) whether COVID-19 is a force majeure event which would entitle one or more of the parties to an agreement to suspend obligations under the agreement on the basis of force majeure, and (c) whether COVID-19 is regarded as an occupational disease, including for compensation purposes.

In this e-Brief we address these three questions.

Can the Mine Health and Safety Inspectorate issue an instruction in terms of Section 54 and/or 54 of the MHSA and can the Department of Employment and Labour issue compliance notices in terms of Section 30 of the OHSA?

The state of disaster that has been declared in terms of the Disaster Management Act, No. 57 of 2002 (“the Disaster Management Act”), and the Regulations that were promulgated on 18 March 2020 in terms of Section 27(2) of the Disaster Management Act (“the Regulations”) apply across South Africa, and to all sectors, including the Mining and Natural Resources Sector.

The Mining and Natural Resources Sector will therefore be required to comply with the Regulations.

The responsibilities which are placed on employers (the entities that hold the rights to prospect or mine), remain in place, and as we mentioned in our e-brief: South Africa’s Mining and Natural Resources Sector is Resilient (e-brief available on our website), employers in the Mining and Natural Resources Sector will need to conduct a comprehensive hazard identification and risk assessment (“HIRA”) process (based on management of change, where practically possible), which, amongst others, takes relevant information into account, including the Regulations, the measures announced by President Ramaphosa on 15 March 2020, the “10-point plan” announced by the Minerals Council of South Africa and the Minister of Mineral Resources and Energy, Mr Gwede Mantashe, and the Guidelines issued by the Department of Employment and Labour, as source information for the HIRAs, that will ultimately determine the measures to be implemented, to address the health and safety responsibilities contemplated in the MHSA.

Section 54(1) of the MHSA provides that if an Inspector has reason to believe that any occurrence, practice or condition at a mine endangers or may endanger the health or safety of any person at the mine, the Inspector may give any instruction necessary to protect the health and safety of persons at the mine, including but not limited to an instruction that (a) operations at the mine or a part of the mine be halted, (b) the performance of any act or practice at a mine or part of a mine be suspended or halted, and may place conditions on the performance of that act or practice, (c) the employer must take the steps set out in the instruction, within a specified period, to rectify the occurrence, practice or condition, or (d) all affected persons, other than those who are required to assist in taking the steps referred to in paragraph (c) be moved to safety.

Even in normal circumstances, the Inspector must have good reason to believe that the act, occurrence, etc. endangers or potentially endangers health or safety. The Inspector must act rationally, reasonably, and the instruction given must be proportionate i.e. the steps required from the employer, must be proportionate, to the potential harm to health or safety.

These same considerations will apply to the COVID-19 threat and will depend on the circumstances of each situation.

The ability of the Mine Health and Safety Inspectorate to issue instructions in terms of Section 54 of the MHSA have not been suspended, under the Disaster Management Act.

It is essential for employers in the Mining and Natural Resources Sector, with the support of their stakeholders, including the trade unions, to engage frequently with the Principal Inspector in the relevant region, to discuss and understand the thinking of the Mine Health and Safety Inspectorate, in the region, and how the Mine Health and Safety Inspectorate, in the region, intends addressing key aspects such as the use of alcohol testing in the workplace (most mines have suspended the use of instruments such as alcohol testers in line with broader measures to avoid transmission of COVID-19).

The same principles apply in relation to instructions under Section 55 of the MHSA.

In summary, the state of disaster does not suspend the powers and functions of the Mine Health and Safety Inspectorate, including those under Sections 54 and 55 of the MHSA. The starting point is to engage, frequently, with the Principle Inspector in the region, to understand the thinking of the Mine Health and Safety Inspectorate. In addition, employers must focus on conducting comprehensive HIRAs, and implementing appropriate measures based on the “back to basics” principles that we discussed in our E-brief: Occupational Health and Safety: COVID-19.

Section 30 of the OHSA vests the inspectors of the Department of Employment and Labour with similar powers and the same principles will apply. Ongoing engagement with the office of the Chief Inspector is vital.

Is COVID-19 a force majeure event?

Many clients, including mining companies and contractors / service providers to the Mining and Natural Resources Sector have asked whether obligations in terms of the agreements can be suspended based on the force majeure provisions in the agreements.

While our preference is always to provide definitive answers to questions where practically possible, we can only say that whether COVID-19 is a force majeure event or not, will depend on the wording of the specific force majeure clauses in the agreements.

Many companies have already served force majeure notices, on the basis of COVID-19, and this has had dramatic impacts on transactions (including financing), supply chain (including in respect of personal protective equipment, one of the key components of the “10-point plan)”, and service delivery, generally.

Typically, force majeure clauses set out various events which would constitute force majeure events, but also include a “catch all” provision, which will need to be interpreted, carefully, based on the wording of the particular clause. In many circumstances, force majeure clauses include references to “natural disasters” or “natural events”, which may provide a good basis for claiming force majeure. Even if the force majeure clause does not have this wording, the force majeure clause may be sufficiently widely drafted so that a party can demonstrate that the force majeure event i.e. COVID-19, was not within its reasonable control, it could not reasonably have been avoided or overcome, and it was not directly or indirectly as a result of the negligence, conduct or default of the party affected by the force majeure. As is the case with force majeure, generally, the affected party must be in a position to demonstrate that it took reasonable measures to avoid COVID-19 transmission and/or spread, in its workplaces or operations where performance by the counter-party is required. The affected party must also continue to mitigate the effect of the force majeure event, in this case, COVID-19.

Where a party has closed off its workplaces / operations, voluntarily, this may complicate the circumstances and a party which does so voluntarily, will need to demonstrate that it did so, as part of its mitigation measures.

Is COVID-19 an occupational disease?

The Department of Employment and Labour issued a notice on “Compensation for occupationally acquired Novel Coronavirus Disease (COVID-19) under Compensation for Occupational Injuries and Diseases Act, No. 130 of 1993, as amended” on 20 March 2020 (“the Notice”).

The Notice specifically distinguishes between occupationally acquired COVID-19, and non-occupationally- acquired COVID-19.

Occupationally acquired COVID-19 is described as a disease contracted by an employee as defined in the Compensation for Occupational Injuries and Diseases Act, No. 130 of 1993 (“COIDA”) arising out of and in the course of his/her employment.

The Notice deals with occupationally acquired COVID-19 resulting from single or multiple exposures to confirmed cases of COVID-19 in the workplace or after an official trip to high risk countries or areas in a previously COVID-19-free individual.

The Notice confirms that a claim for occupationally acquired COVID-19 is as contemplated and provided for in Sections 65 and 66 of COIDA.

Certain occupations are described as very high-risk exposure occupations, and these include healthcare workers, laboratory personnel, and morgue workers. Other high-risk exposure occupations include healthcare delivery and support staff, medical transport workers, and mortuary workers involved in preparing bodies of persons who are known to have or suspected of having COVID-19 at the time of their death.

Medium exposure risk jobs include those that require frequent and/or close contact (within 2 metres) of people who may be infected but who are not known or suspected COVID-19 patients.

Low exposure risk occupations are those that do not require contact with people i.e. within 2 metres of persons suspected of being or being infected with COVID-19.

The Notice addresses how occupationally acquired COVID-19 is to be determined, and the compensation that is payable.

Non-occupationally- acquired COVID-19 is not compensatable under COIDA.

Please feel free to reach out to us, if you would like to discuss any of the topics in this e-Brief, further.