Lesson 3 – The right to refuse dangerous work and leave dangerous working places

1.  GENERAL INFORMATION

1.1  Mine location
BARBERTON MINES (PTY) LTD, (BML) consists of three underground mining operations within a radius of 15km of Barberton, within the Barberton magisterial district. The mines fall under the area serviced by the lowveld and escarpment regional service council.
 

1.2  Commodities produced
The mine product is sulphide concentrate containing large amounts of arsenopyrite and free gold, which are processed at a central biological oxidation plant at Fairview mine. The target product is gold.

 

1.3  Mining methods
The following mining methods are currently used at the individual mines:

 

1.3.1  Sheba
The open stoping method and support standard is characterized by flatter dipping narrow or wide ore bodies where gravity cleaning is not possible; and the mechanised breast updip cut and composite fill stoping and support method lends itself to cases where the mineralized structure is steeply dipping, of variable width and in competent host rock.

1.3.2  Fairview

a)Full Shrinkage Mining and Support Standards are used whenever a narrow, steeply dipping shear in competent host rock is encountered;

b)The Open Stoping Method and Support Standard is characterized by flat dipping narrow or wide ore bodies where gravity cleaning is not possible; and

c)The Mechanised Breast Updip Cut and Composite Fill stoping and support method lends itself to cases where the mineralized structure is generally steeply dipping, of variable width and in competent host rock.

2. TERMS AND DEFINITIONS

In this Guideline for a COP or any amendment thereof, unless the context otherwise indicates.

“COP” means Code of Practice

“DMR” means Department of Mineral Resources;

“BML” means Barberton Mines Limited

“EMPLOYEE” means any person who is employed or working at a mine;

“MHSA” means Mine Health and Safety Act, 1996 (Act No. 29 of 1966) as amended;.

“MHSC” means the Mine Health and Safety Council;

“MRAC” means the Mining Regulation Advisory Committee;

“OHS” means Occupational Health and Safety;

“RLDWP” means the right to leave a dangerous working place;

“RRDW” means the right of refusal to do dangerous work;

“Reasonable Justification” means that the employee has some objective information that makes him or her to believe there are unsafe conditions at the working place or the work done is unsafe to the extent that there is an imminent and serious danger to the health and safety of person at that working place. The employee does not have to be correct in his or her knowledge or believe, but such believe should be reasonable given the information of the employee. These principles apply to both the RRDW and RLDWP.

 

 

3. RISK MANAGEMENT

In compliance with Section 11 of the Mine Health and Safety Act, Act No. 29 of 1996, risk assessments have been conducted in all operations to ensure that the principles of the reasonable man have been fulfilled. The risk assessments have been reported by means of:

• Baseline Risk Assessments;
• Issue Based Risk Assessments; and
• Continuous Hazard Identification.

 

During the Risk Assessment process, the following has been taken into consideration:

• The severity and scope of the hazard or risk concerned;
• The state of knowledge reasonably available concerning that hazard or risk and of any means of removing or mitigating that hazard or risk;
• The availability and suitability of means to remove or mitigate that hazard or risk; and
• The costs and benefits of removing or mitigating that hazard or risk.

 

Upon finalisation of the risk assessments, the Joint Health and Safety Committee were also consulted on the outcomes as well as the envisaged steps taken in order to:

• Eliminate any recorded risk;
• Control the risk at source;
• Minimize the risk; and
• In so far as the risk remains –

–Provide for personal protective equipment; and

–Institute a programme to monitor the risk to which employees may be exposed.

This information is then communicated with the training fraternity to ensure that employees who are exposed to specific hazards and associated risks are training as required by Section 10 of the Mine Health and Safety Act, Act 29 of 1996.

 

 

4. ASPECTS TO BE ADDRESSED IN THIS COP

The legislative background relating to the RRDW and RLDWP

 

4.1  The common law

4.1.1  Employers are required to provide and maintain a work environment that is safe and without risk to the health or safety of employees.

4.1.2  Arising from this entitlement to a safe working environment, employees have the RRDW under common law. (There are certain exceptions, e.g. policemen, firemen, security guards, pilots, etc. who are specifically employed to do certain dangerous work). This right entails  not only that the employee is entitled to leave a working place where he has reason to believe that the working place is unsafe (the RLDWP), but also that an employee is entitled to refuse to do work in a working place that is safe, but in which there is equipment,  machine, device or thing the employee is required to use or operate which is likely to endanger himself/herself or any other employee (the RRDW). Put differently, the RRDW can be exercised either by refusing to do the required work but remaining in the working place, or by refusing to do the required work and leaving the working place.

 

 

4.1.3  The MHSA

 

4.1.4  Section 2:

The employer of every mine that is being worked must:

a)Ensure, as far as reasonable practicable, that the mine is designed, constructed and equipped:

i.To provide conditions for safe operation and a healthy working environment; and

ii.With a communication system and with electrical, mechanical and other equipment as necessary to achieve these conditions

b)Ensure, as far as reasonably practicable, that the mine is commissioned, operated, maintained and decommissioned in such a way that employees can perform their work without endangering the health and safety of themselves or any other person.

 

4.1.5  Section 6:

Every employer must:

a)Supply all necessary health and safety equipment and health and safety facilities to each employee; and

b)as far as reasonable practicable, that equipment and those facilities is in a serviceable and hygienic condition

c)Every employer must ensure that sufficient quantities of all necessary personal protective equipment are available so that every employee who is required to use that equipment is able to do so

d)Every employer must ensure take reasonable steps to ensure that all employees who are required to use personal protective equipment are instructed in the proper use, the limitations and the appropriate maintenance of that equipment.

 

4.1.6  Section 10:

As far as reasonable practicable, every employer must:

a)Provide employees with any information, instruction, training or supervision that is necessary to enable them to perform their work safely and without risk to health; and

b)Ensure that every employee becomes familiar with work-related hazards and risks and the measures that must be taken to eliminate, control and minimise those hazards and risks.

c)As far as reasonable practicable, every employer must ensure that every employee is properly trained to deal with every risk to the employee’s health and safety that:

i.Is associated with any work that the employee’s has to perform; and

ii.Has been recorded in terms of section 11.

d)In the measures necessary to eliminate, control and minimise those risks to health and safety;

e)In the procedures to be followed to perform that employee’s work; and

f)In relevant emergency procedures

 

4.1.7  Section 11:

Every employer must:

a)Identify the hazards to health or safety to which employees may be exposed while they are at work;

b)Asses the risks to health or safety to which employees may be exposed while they are at work

c)Record the significant hazards identified and risks assessed; and

d)Make those records available for inspection by employees

e)Every employer, after consulting the health and safety committee at the mine, must determine all measures, including changing the organisation of work and the design of safe systems of work, necessary to:

–Eliminate any recorded risk;

–Control the risk at source;

–Minimise the risks; and

In so far as the risk remains;

–Provide for personal protective equipment; and

–Institute a programme to monitor the risk to which employees may be exposed

a)Every employer must, must as far as practicable, implement the measures determined necessary in terms of subsection (2) in the order in which the measures are listed in the paragraphs of that subsection.

b)Every employer must:

–Periodically review the hazards identified and risk assessed, including the results of occupational hygiene measurements and medical surveillance, to determine whether further elimination, control and minimisation of risk is possible; and

–Consult with the health and safety committee on the review

 

4.1.8  Section 22:

Every employee at a mine, while at that mine, must:

a)Take reasonable care to protect their own health and safety;

b)Take reasonable care to protect the health and safety of other persons who may be affected by any act or omission of that employee

c)Report promptly to their immediate supervisor any situation which the employee believes presents a risk to the health or safety of that employee or any other person, and with which the employee cannot properly deal;

d)Co-operate with any person to permit compliance with the duties and responsibilities placed on that person in terms of this Act; and

 

4.1.9  Section 23

The employee has the right to leave any working place whenever;

a)Circumstances arise at that working place which, with reasonable justification, appear to that employee to pose a serious danger to the health or safety of that employee; or

b)The health and safety representative responsible for that working place directs that employee to leave that working place;

c)Every employer, after consulting the health and safety committee at the mine, must determine effective procedures for the general exercise of the rights granted by subsection (1), and those procedures must provide for:

–Notification of supervisors and health and safety representatives of dangers which have been perceived and responded to in terms of subsection (1)

–Participation by representatives of employer and representatives of the employees in endeavouring to resolve any issue that may arise from the exercise of the right referred to in subsection (1)

–Participation, where necessary, by an Inspector or technical advisor to assist in resolving any issue that may arise from the exercise of the right referred in subsection (1)

‒Where appropriate, the assignment to suitable alternative work of any employee who left, or refuses to work in, a working place contemplated in subsection (1); and

‒Notification to any employee who has the to perform work or is requested to perform work in a working place contemplated in subsection (1) of the fact that another employee has refused to work there and of the reason for that refusal.

d)If there is no health and safety committee at a mine, the consultation required in subsection (2) must be held with:

‒The health and safety representatives; or

‒If there is no health and safety representative at the mine, with the employees.

e)The Minister, by notice in the Gazette, must determine minimum requirements for the procedures contemplated in subsection (2)

 

4.1.10  Section 30:

A health and safety representative may:

• Represent employees on all aspects of health and safety;
• Direct any employee to leave any working place whenever circumstances arise at that working place which, with reasonable justification, appears to the health and safety representative to pose a serious danger to the health and safety of that employee;
• Assist any employee who has left a working place in terms of section 23;
• Identify potential hazards and risks to health and safety;
• Make representations or recommendations to the employer or to a health and safety committee on any matter affecting the health and safety of employees;
• Inspect any relevant document which must be kept in terms of this Act;
• Request relevant information and reports from an inspector;
• With the approval of the employer, be assisted by or consult an adviser or technical expert who may be either another employee or any other person
• Attend any meeting of a health and safety committee:

–Of which that representative is a member; or

–Which will consider a representation or recommendation made by that representative

 

4.1.11  Section 31:

The employer must provide health and safety representatives with:

• The facilities and assistance reasonable necessary to perform their functions;
• Training that is reasonable required to enable them to perform their functions; and
• Time off from work, without loss of numeration, to attend any training course that is agreed or prescribed

 

4.1.12  Section 32:

Every employer must notify the health and safety representatives concerned and, if there is a health and safety committee, the employee co-chairperson of that committee;

• In good time, of inspections, investigations or inquiries of which an inspector has notified the employer; and
• As soon as practicable, of any accident, serious illness or health-threatening occurrence, or other dangerous event.

 

4.1.13  Section 83:

No person may discriminate against any employee for:

• Exercising a right in terms of this Act or in terms of a collective agreement contemplated in this Act
• Doing anything that the employee is entitled to do in terms of this Act or in terms of a collective agreement contemplated in this Act.
• Refusing to do anything that the employee is entitled to refuse to do in terms of this Act or in terms of a collective agreement contemplated in this Act
• Refusing to do anything that the employee is prohibited from doing in terms of this Act or in terms of a collective agreement contemplated in this Act; and
• Standing for election, or performing any function, as a health and safety representative or a member of a health and safety committee.

 

4.1.14  Section 91:

Any person, including an employer, who contravenes, or fails to comply with. Any:

• Provision of this Act
• Regulation; or
• Condition, suspension, notice, order, instruction, prohibition, authorisation, permission, consent, exemption, certificate or document determines, given, issued, prescribed or granted by or under this Act by the Minister, Chief Inspector of Mines, inspector, any person authorised under section 49(4) or any person to whom power has been delegated or the performance of any duty has been assigned under section 96, commits an offence and is liable to a fine or imprisonment as may be prescribed.

 

4.2  Summary of Major hazards

Table of the Major Health and Safety Hazards identified in terms of BML Risk Assessments which may give rise to Employees having to exercise the RRDW or RLDWP

4.3  Procedure for employees to exercise their RRDW and RLDWP

 

4.3.1  Notification by Employee

Any employee who, with reasonable justification, exercise the RRDW or RLDWP must immediately:

• Notify that employee’s immediate supervisor and the health and safety representative for that working place, and if they are present at or near the workplace of his/her actions and the reasons for it; and
• Notify other employees if there may be a serious danger to their health or safety.
• If the immediate supervisor is not present, the employee must notify as soon as possible and at least before the end of the shift, the supervisor of that immediate supervisor, or another easily contactable mine official of at least equivalent rank.
• If the health and safety representative for that workplace is not present, the employee must notify another workplace health and safety representative or a full time health and safety representative, or any member of the safety department within the vicinity.
• The health and safety representative will in conjunction with the competent A worker/miner/team/leader/shift boss re-do a workplace examination/declaration report.
• Should any circumstances arise at the working place which appear to the employee to pose danger to the health and safety of the employees, they must withdraw as per regulation 23.1a.

 

 

4.3.2  Notification by workplace health and safety representatives

If the workplace health and safety representative directs employees to stop work and/or leave a working place, that representative must:

• Immediately notify the supervisor of that working place or, if he/she is not present, notify another supervisor or management official of at least equivalent rank.
• Notify any full time health and safety representative.

 

 

4.3.3  BML Specific Procedure

• The Safety Representative will once reported to him/her of the substandard condition do an inspection with the Competent A/Team Leader/Miner/Shift Boss on the working place/machinery or tools. Upon finding of such substandard condition/s and it became evident for the reasons why such employees refused to work in such danger area will immediately issue the supervisor with a withdrawal note / stop note that employees are to withdraw.
• Thereafter safety representative will notify all employees if they are close or nearby of his/her actions and the reasons for it.
• Also notify all other employees should there be a serious danger to their health and safety.

 

 

4.3.4  Evaluation of danger steps to be taken

• The supervisor or any other mine official present and the health and safety representative must meet as soon as practicable to evaluate whether there is any danger to the health or safety of employees which is serious and if so, to determine what steps, if any, should be taken to safely remove the danger to health and safety. If any such steps are determined
• The supervisor must ensure that the necessary steps are taken to make work and/or working place healthy and safe
• The supervisor must take
• Once those steps have been reasonable precautions to prevent unauthorised entry to any unsafe working place; and taken, the supervisor and the workplace health and safety representative must jointly advise the employee/s accordingly, where after the employees must return to the workplace immediately and/or start work immediately
• If, however it is agreed that no serious danger to the health of safety of the employee/s prevails, the employee/s will be required to return to the workplace and/or start work immediately
• If the persons contemplated in point 4 above are unable to agree on whether or not there is a serious danger and/or on the steps that need to be taken to remove any serious danger:

–The supervisor must notify a manager with responsibility for the section of the mine concerned; and

–The representative must notify the full-time health and safety representative and may request the assistance of a technical advisor.

• Thereafter, a meeting must be held involving the persons, to seek to resolve the issue that led to the refusal to work and/or employees leaving the working place
• If agreement is still not reached on whether there is a serious danger, and/or the steps that must be taken to remove any serious danger, management must arrange for the involvement of an appropriate technical advisor to assist the parties. Should agreement still not be reached following the involvement of such technical advisor the employer must make a final decision on all issues on which there is a disagreement after consultation with such technical advisor. Such decision must be in writing and must record the reasons for the decisions, highlighting the reasons where any employer decisions deviate from any recommendations by the technical advisor
• When agreement is reached on the steps that must be taken to remove the danger, or the employer has taken final decisions, the supervisor and the health and safety representative must:

i.Ensure that the necessary steps are taken to make the work and/or working place health and safe;

ii.Jointly advise the employees of the steps that are being taken; and

• Once the steps have been taken, jointly advise the employees accordingly, where after the employees must return to the workplace immediately and/or start work immediately.

 

 

4.3.5  Reassignment and Protection

Employees who has refused to work or have withdrawn from a working place:

• Must remain in the nearest safe place to that working place, unless directed otherwise by mine management; and
• May not be disciplined for exercising their right to refuse dangerous work and/or leave a dangerous working place unless they acted in bad faith, or refuse immediately to return to work once the work and/or working place is safe
• The management of the mine may require an employee who has refused to work and/or withdrawn, or who has instructed to stop work and/or withdraw from a working place, to perform suitable alternative work if the employee is competent and qualified to perform the work concerned
• Management may request another employee to do the work or to work in the working place, but if any employee is requested to do the work and/or work in the working place before the matter has been resolved, management must notify the employee:

i.That another employee has refused to do the work and/or work there; .

ii.Of the reason/s for the refusal;

iii.Of the reason/s why the employee is requested to do the work and/or work in that working place, given the other employee’s refusal; and

iv.That the employee has the same right to refuse as the first employee.

 

 

4.3.6  Participation by technical advisors

If a workplace health and safety representative request that a technical advisor participates in the resolution of the issue:

i.Management must not unreasonably withhold the approval required

ii.Management must give reasonable assistance necessary to enable participation by the technical adviser; and

iii.Access by any technical adviser will be in terms of existing recognition and procedural agreements between the parties and existing mine policies and procedures

 

4.3.7  Report

The supervisor and the workplace health and safety representative must each prepare a report, or may prepare a joint report, setting out:

i.The circumstances which arose a serious danger to the health or safety of an employee; and

ii.The steps taken to resolve that problem

iii. The report/s must be placed before the next meeting of the mine’s health and safety committee, which committee should monitor all instance of withdrawals.

 

 

4.3.8  Partial/Stop Note Procedures (See Annexure 1 in COP )

 

 

4.3.9  Aim of this Procedure

The aim of this procedure should be to ensure that the circumstances giving rise to any employee exercising the RRDW or RLDWP are addressed, and any disputes about them, are resolved as expeditiously as possible at the lowest possible level of the organizational structure, but with the matter being capable of being elevated, if it remains unsolved, to appropriate more senior levels until it is resolved at the highest level at the mine or by the employer

 

 

4.3.10  Organizational Structures (See Annexure 2 in COP)

 

 

4.4  Training

The COP must set out measures to be taken to ensure compliance with the employer’s obligations under training and employee’s obligation under employees’ duties for health and safety of the MHSA:

a)The content and frequency of such training (see also section 10(2)(b) of MHSA);

b)Employees’ right to information kept in terms of sections 12(3) and 13(3)( c) of the MHSA

c)Comprehensive training programme to assist employees to recognize any potential risks and hazards.

d)Employees are trained in the importance of reporting incidents

e)Employees duties for health and safety in terms of section 22 of the MHSA

 

 

4.5  Communication

This COP should set out a communication strategy that highlights management’s support for employees to exercise the RRDW and RLDWP under appropriate circumstances and that reinforces awareness amongst employees of this aspect of risk management. The communication strategy should identify the different target audiences, the appropriate language to be used for  each and could cover the following:

4.5.1  Regular communication bulletins and news letters

4.5.2  Regular awareness activities, which could include the following:

4.5.2.1  Print Media: Posters and pamphlets

4.5.2.2  Electronic, audio visual and new media: DVD clips at the shaft bank, SMS messages, email and digital media

4.5.2.3  Promotional media: T-Shirts, caps, helmet stickers and cards; and

4.5.2.4  Face to Face: tool box/safety talks and drama

4.5.3  Visible felt leadership, involving management

4.5.3.1  Complying with health and safety rules;

4.5.3.2  Regular discussions with all levels of employees;

4.5.3.3  Support for employees who have exercised the RRDW or RLDWP; and

4.5.3.4  Support for health and safety representatives who have requested employees to exercise the RRDW or RLDWP

 

 

PART D:  IMPLEMENTATION

 

 

1.IMPLEMENTATION PLAN

1.1  BML must prepare an implementation plan for this COP that makes provision for issues such as organisational structures, responsibilities of functionaries and programmes and schedules for this COP that will enable proper implementation of this COP.

 

1.2  The information to the comprehensive implementation plan must be graphically represented to facilitate interpretation of data and to highlight trends for the purpose of a risk assessment

 

 

2.COMPLIANCE WITH THIS COP

BML must institute measures for monitoring and ensuring compliance with this COP.

 

 

3.ACCESS TO THIS COP AND RELATED DOCUMENTS

3.1  BML must ensure that a complete that this COP and related documents are kept readily available at the mine for examination by any affected person.

 

3.2  A registered trade union with members at the BML Mines or where there is no such union, a health and safety representative on the mine, or if there is no health and safety representative, an  employee representing the employees on the mine, must be provided with a copy of this COP on delivery of a written request to BML management. A register is to be kept of such persons or institutions with copies to facilitate updating of such copies

 

3.3  BML must ensure that all employees are fully conversant with those sections in this COP relevant to their respective areas of responsibilities