Discussion on the Mine Health and Safety Act (29 of 1996)

1.    Jurisdiction of the Occupational Health and Safety Act  & Mine Health and Safety Act

a.    The Occupational Health and Safety Act, 1993 (Act No. 85 of 1993), is not applicable to any matter in respect of which any provision of the Mine Health and Safety Act is applicable (section 103 of the MHSA);
b.    The Occupational Health and Safety Act  does  not apply in a mine, a mining area or any works as defined in the Minerals Act (section 1 of the OHSA);
c.    This means that medical examinations done under the auspices of the authority of the ‘occupational health practitioner’ as defined in the Occupational Health and Safety Act are not applicable or valid on a Mine.
d.    This also means that the construction regulations of the OHSA do not apply on a Mine.

2.    Duty of medical surveillance

a.    The onus to ensure that risk-based medical surveillance occurs at a mine lies with the employer(the Mine) (Section 13(1)): ‘the employer must establish and maintain a system of medical surveillance…
b.    For this purpose the employer must (section 13(3)(a)) engage the services of an occupational medical practitioner & (b)supply the practitioner with the means to perform his/her functions & (4A) inform the Principal Inspector of Mines, in writing, of the appointment of the occupational medical practitioner.
c.    The employer must also (Section 13(8)) retain the records of the medical surveillance.
d.    The occupational medical practitioner appointed by the Mine (as employer) is therefore the only person who can do medical surveillance and certify risk workers as fit to be exposed to the Mine’s occupational H&S risks (including risks of construction).
e.    The medical tests done by a nursing practitioner or by a nursing agency are not valid on a Mine.

3.    Medical testing by nursing practitioners not legally permitted

Whilst I understand Dr Danie Ungerer’s pragmatic approach on this issue (‘Whether you accept the outside MS or do it yourself is up to you. To repeat a fairly new audio or spiro is a question as time and money is involved’) because it makes business sense, the legal position places the following constraints on acknowledging any information emanating from the medical testing done by the Nursing Agency:
a.    No Nursing Agency is registered with the HPCSA and any medical testing done by such an entity is thus not legally compliant to the Health Professions Act;
b.    Nursing Practitioners in South Africa are not permitted or registered with the Nursing Council to perform medical testing independently and their acts are therefore not legally compliant to the Nursing Act;
c.    The Mine’s liability for compliance with the MHSA (iro Medical Surveillance)  is assigned to the OMP; this means that the OMP is accountable for the correct execution of the Mine’s duties. It would be cavalier to accept the contents and quality basis of tests done under conditions which the OMP has no control over(e.g. calibration of equipment, competence of tester), by nursing practitioners whose competence is not verifiable by the OMP and who may legally not even be registered to do the tests.

4.    S 37(2)-OHSA Mandatary Agreement not applicable on a Mine

a.    For completeness I want to mention an exception applicable in the OHSA only, which is the Section 37(2) mandatary agreement;
b.    This agreement permits for one employer (call it the client-employer) to enter into an agreement of procedures and arrangements with another employer (the contractor-employer) and thereby ensuring that the accountability for the H&S of employees of the contractor working at the client remains (in fact, reverts) to the contractor and not (as the OHSA and MHSA dictate to occur automatically) revert to the client.
c.    This mandatary arrangement does NOT apply in the MHSA; therefore medical certificates of fitness of employees of a contractor issued by the OMP appointed by the contractor are not valid on a Mine.

5.    The relevant legal references are below.

Mine Health and Safety Act, 1996

Chapter 8 General Provisions

103. Occupational Health and Safety Act, 1993, not applicable
The Occupational Health and Safety Act, 1993 (Act No. 85 of 1993), is not applicable to any matter in respect of which any provision of this Act is applicable.

Occupational Health and Safety Act  Section 1; Workplace

Any premises or place where a person performs work in the course of his employment.

2.    The Minister may by notice in the Gazette declare that a person belonging to a category of persons specified in the notice shall for the purposes of this Act or any provision thereof be deemed to be an employee, and thereupon any person vested and charged with the control and supervision of the said person shall for the said purposes be deemed to be the employer of such person.
3.    This Act shall not apply in respect of --
a.    a mine, a mining area or any works as defined in the Minerals Act, 1991 (Act No. 50 of 1991), except in so far as that Act provides otherwise;
b.    any load line ship (including a ship holding a load line exemption certificate), fishing boat, sealing boat and whaling boat as defined in section 2(1) of the Merchant Shipping Act, 1951 (Act No. 57 of 1951), or any floating crane, whether or not such ship, boat or crane is in or out of the water within any harbour in the Republic or within the territorial waters thereof, or in respect of any person present on or in any such mine, mining area, works, ship, boat or crane.

Mine Health and Safety Act, 1996

Chapter 2 Health and Safety at Mines

13. Employer to establish system of medical surveillance

1)        The employer must establish and maintain a system of medical surveillance of employees exposed to health hazards--
a)        if required to do so by regulation or a notice in the Gazette; or
b)        if, after assessing risks in terms of section 11(1), it is necessary to do so.

2)        Every system of medical surveillance must --
a)        be appropriate, considering the health hazards to which the employees are or may be exposed;
b)        be designed so that it provides information that the employer can use in determining measures to--

i)          eliminate, control and minimise the health risk and hazards to which employees are or may be exposed; or
ii)         prevent, detect and treat occupational diseases; and

c)        consist of an initial medical examination and other medical examinations at appropriate intervals.

3)        Every employer who establishes or maintains a system of medical surveillance must--
a)        engage the part-time or full-time services of--

i)          an occupational medical practitioner; and
ii)         [deleted by the Mine Health and Safety Amendment Act No. 74 of 2008];

b)        supply the practitioners with the means to perform their functions; and
c)        keep a record of medical surveillance for each employee exposed to a health hazard.

4)        [deleted by the Mine Health and Safety Amendment Act No. 74 of 2008].

4A)     The employer must inform the Principal Inspector of Mines, in writing, within seven days of the appointment of the occupational medical practitioner.

4B)     The information submitted in terms of subsection (4A) must include-

a)        the name of a occupational medical practitioner;
b)        his or her practice number; and
c)        whether the occupational medical practitioner is engaged full time 10 or part time .

5)        An occupational medical practitioner must take every measure that is reasonably practicable to--
a)        promote the health and safety of employees at the mine; and
b)        assist employees in matters related to occupational medicine.

6)        If any employee is declared unfit to perform work as a result of an occupational disease, the employer must conduct an investigation in terms of section 11(5).
(Employees have the right to challenge a decision that they are unfit to perform work. See section 20.)

7)        If an employee is temporarily unfit to perform work as a result of any occupational disease, but there is a reasonable expectation that the employee's health will improve so that the employee can return to work, the occupational medical practitioner must record that fact and notify both the employer and employee of it.

8)        The employer must--
a)        retain the records referred to in sections 12(3), 13(3)(c) and 14(2) until the mine closes; and
b)        when the mine closes, deliver those records to the Medical Inspector.

Dr. J.N.R. LAPERE
M.D.(Louv.) D.B.G (Stell.) L.L.M. (UPE)