Department of Labour OH&S executive manager Millie Ruiters, who heads labour inspection, told a SHEQ legal conference on the theme of risk tolerance and reasonable health and safety management, that DOL was ‘embarking on a road to zero’.
Her approach, supported by DMR Gauteng principal inspector Max Madubane, drew queries and criticism from lawyers, engineers, SHEQ practitioners and some industrial operators, who note that legislation required ‘reasonably practicable’ management, and that current business performance was within global norms, and exceeded the general South African risk prone culture.
Defending Anglo American’s ‘zero harm’ motto, championed by its CEO and backed by consultants Du Pont, an Anglo official explained that the corporate occupational health and safety motto implied a ‘zero tolerance culture, not a statistical goal’.
He noted that ‘zero harm’ continued the former Anglo motto of ‘OTTO’, which stood for ‘Zero Tolerance, Target Zero’.
Lawyers, along with many SHEQ practitioners and some leading behavioural academics, notably Corrie Pitzer, point out that the ‘zero’ concept and mottoes are misleading, unattainable, and are applied to compliance targets by legislators and inspectors.
DOL and CC priorities
Department of Labour OH&S executive manager Millie Ruiters, who holds and MSc in Occupational Hygiene and experience at Denel and Necsa, revealed state strategy, noting protection of vulnerable workers, social protection, legislation impact monitoring, departmental capacity building, and strengthening relations with industrial stakeholders like occupational health and hygiene practitioners, including Saioh, Sasom, Sashion, Nioh, and health and safety trainers.
Compensation Commissioner (CC) figures reveal that R2.7-b was paid to claimants and health service providers in 2008. Benefits total some R650-m per year.
Only half of South African employers are registered with the CC, numbering 380 244, implying that occupational incidents and diseases are under reported.
Annual reported industrial occupational injuries, excluding mining, number 203 711, while reported diseases number 1895. Employers fined for non reporting total 1748, and a further 1470 employers were reported to provincial authorities for prosecution, confirming under reporting.
“Injuries are slowly reducing”, said Ruiters. “We are redoubling our efforts to reduce injuries further.” Some SHEQ practitioners point out that official statistics are doubly deficient, due to non registration and non reporting, rendering inspectorate strategies a paper chase.
OHS Act review
In the current OHS Act review, the DOL aims to align legislation with Compensation Commissioner expenditure priorities, said Ruiters. She notes that noise induced hearing loss, NIHL, in the iron and steel sector, was a major expense to the CC.
The CSIR is studying the extent of NIHL in the iron and steel sector, and DOL plans to ‘assist employers’ to reduce this exposure.
The DOL and CC strategies are supported by several 2010 -2011 financial year inspection priorities, including exposure to NIHL, manual handling ergonomics, silicosis in agriculture and non-mining sectors, hazardous biological agents (HBSs), Asbestos Regulations amendment under HCS, chemicals labelling according to the Globally Harmonised Standards (GHS) to be promulgated in regulations, audit of approved inspection authorities (AIAs), training of inspectors, and an OHS Act amendment.
Some approved inspection authorities (AIAs) have been found to operate fraudulently, which Ruiters term ‘fly by nights’. Some delegates also raised questions with SHEQafrica.com about SHEQ auditor registration procedures, lack of suitably qualified auditors, and lack of awareness of auditor registration requirements among employers.
No inspectorate merger
The Labour minister’s advisory council met twice in June to initiate a draft OHS Act review, to present to the minister in September 2010. The initiative follows certainty that the OHS Act and Mine H&S Act, and the two sets of inspectorates, would not merge.
DOL had hired a legal contractor to draft legislation for a merged inspectorate, but stopped the process in July 2009, and the updated ‘areas and principles’ of the abandoned Bill would now be applied in the OHS Act review, Ruiters told SHEQafrica.com
Explaining the DOL ‘road to zero’ motto, she said a goal was required, irrespective of whether it would take 10, 15, 20 or 30 years to reach that goal.
Only 88 H&S inspectors
Some delegates queried administrative fines, burden of proof, and the number of inspectors. Ruiters explained that DOL had 1100 inspectorate positions, but only 88 H&S inspectorate positions, with a vacancy rate around 20%, leaving some 70 H&S inspectors, with some receiving training according to the priorities listed.
DOL inspectors nevertheless plan to conduct many inspections in 2010, including some 2000 inspections at farms, agricultural and other workplaces exposing workers to silica dust.
Max Madubane, DMR Gauteng principal inspector, noted that mining inspectors, in turn, should number 230, but only 190 posts were filled.
Sectors exposed to risks like fire, and noise, like the printing industry, would also be targeted by labour inspectors. DOL had met Federations of Unions of SA, Fedusa, representative Dennis George to discuss labour concerns in various sectors.
The latest published data of the DOL for 1999, show that in terms of fatality and injury rates, the most hazardous sectors are fishing, mining, and forestry.
Mining incidents static
Mining fatalities, injuries and incidents are not decreasing, but remaining static, and may even increase randomly if the current low level of employment reversed due to economic recovery.
Specialists supporting the view that mining health and safety losses were stuck on a plateau, rising and falling at random due to factors outside the control of traditional management or SHEQ interventions, include Corrie Pitzer and DMR mining safety manager, Tony Coutinho.
Coutinho demonstrates a rise in diamond sector fatalities and injuries, to place the lack of notable improvement in general mining health and safety performance of the last few years in perspective. “Safety performance is consistently static, despite major initiatives like the MOSH programmes led by the Chamber of Mines and some leading employers.
Small improvements could be accounted to lower levels of employment and production during the recent economic dip. Some SHEQ practitioners fear that discontinuity of some operations, areas and employment, could take a toll in SHEQ losses when economic recovery spurs production growth, likely to be led by resources development in Africa backed by eastern demand.
DMR launches Samsha
Coutinho notes lack of incident and occupational diseases data, saying the DMR “do not have a data handle on occupational diseases” yet. DMR is standardising enforcement in the nine regions of SA by using an automated internet-based system named Samsha.
Responding to queries about administrative penalties, Coutinho said a guideline to the 2009 Act would soon be published, marking a return to administrative penalties. Samsha would standardise inspection formats, audit forms, and presumably risk tolerance.
Milestones to ‘zero’
Chamber of Mines sustainability officer Sietse van der Woude queries the DMR assessment of mining SHEQ performance, saying that the industry had reduced the fatality rate from 0.3 to 0.15, or 270 to 165, since agreeing on a tough set of measures ‘aimed at zero’, named the 2013 milestones.
Coutinho explains that 2009 and 2010 figures show little change, while employment had reduced from 600 000 workers to 516 000 workers, gold sector showing few signs of improving, and diamond sector losses rising.
“We need major interventions in the corporate culture and behaviour, to stem repetitive incidents, for example, related to transport, handling, electrocution,” Coutinho told the interactive conference.
Abolish ‘zero’ motto
Willem le Roux, occupational health and safety law specialist at legal firm Brink Cohen Le Roux, chaired the conference, hosted by LexisNexis in June 2010. He reminded inspectors and business delegates that there would always be errors in planning, plant, processes and operation.
“New entrants to a sector or job or site, usually learn from their own errors, seldom from others. With many new entrants we should expect to never see ‘zero harm’ or zero error, there would always be an incident, injury and fatality rate and loss statistics.”
Industries are accountable under the Occupational Health and Safety Act of 1993, or Mine Health and Safety Act of 1996. The issue in renewed contention is the level of risk acceptable to government agencies, before taking measures against employers, like temporarily closing operations.
“Zero fatalities and zero harm are not achievable, considering the hazards associated with the work environment in mining, forestry, fishing and other industries. Unfortunately, a zero harm safety target is often confused with a legal compliance standard,” Le Roux said.
Le Roux argues that the government’s ‘zero harm’ approach resulted in the unlawful closure of entire mines and contributed to a 10% to 14% drop in productivity, exports and profits in mining in the last year.
“It has become vital to debate the measure of risk allowable across various industries,” Le Roux told the conference during a debate on risk tolerance in law, by referring to the legal criterion of a ‘reasonable person.’
H&S legislation require ‘reasonably practicable’ measures, not absolute measures. “Why aim at an unachievable target, instead of setting meaningful goals”, Le Roux asked the conference.
“Reasonable persons are not timorous, fainthearted, in trepidation of injury, but venture, engage and take reasonable changes,” he cited case law. “Reasonable people and organisations plan, prepare, gain and apply knowledge and experience in a moderate and prudent way.
“Inspections are often selective, and business stoppages could likewise be unfair, reactive, leading employees to disengage from their responsibilities, and cause disruptions to aggravate risks during subsequent startup.”
Le Roux argued for charging wilfully negligent employees, since every member of a corporate body had legal responsibilities. Since compliance could never be absolute, the state had to prove negligent and unlawful behaviour for example, to support a charge of culpable homicide.
“Safety compliance requires a holistic approach. If one device or safety measure was lacking, or one employee acted negligently, that does not make the entire workplace unsafe”, Le Roux said.
“Training and experience or operators should be considered against workplace and equipment conditions, since working conditions are never perfect, and workers should cope with reasonable conditions.”
Systems should be designed to reduce the effect of likely human errors, commented Chamber of Mines sustainability official Sietse van der Woude, in line with an international mining and metals industry guideline. Thus plant, procedures and skills should each add to ensuring safety.
Leeways in legislation are unfortunately often abused by employers, said Max Madubane. “Affordability of safety measures is taken into account when the Minerals and Petroleum Resources Development Act, MPRDA, considers licensing a mine.
The state attempted last year to introduce mining licence suspension or withdrawal as a safety assurance measure, but business blocked the measure since it would be open to abuse, especially if the power of closure was placed in the hands of the inspectorate.
“A conflict of interest arises if the mining licensing authority and the inspectorate, enforcing legislation, were the same department,” Le Roux explained. He supported the intention to set up an independent health and safety institution, already provided for in the Mine H&S Act, on par with a geoscience body, with its own funding.
Max Madubane replied that the initiative for a mining H&S body was “not stopped, but paused”. The Construction Regulations amendment draft, out for comment in May and June 2010, contains provisions for setting up a construction industry body along the lines of the UK HSE or the USA incident investigation body, as reported by SHEQafrica.com in late 2009 and June 2010.
Thabo Gazi, chief inspector of the Department of Mineral Resources, was billed to attend, but was absent.
PHOTO; Department of Labour OH&S executive manager Millie Ruiters says the DOL is ‘embarking on a road to zero’.