| 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. |
| 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, 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 belief 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 any 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. |
| (1) | The employer of every mine that is being worked must: |
| (a) | Ensure, as far as reasonably 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 those 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 of any other person. |
| (a) | Supply all necessary health and safety equipment and health and safety facilities to each employee; and |
| (b) | Maintain, as far as reasonably practicable, that equipment and those facilities in a serviceable and hygienic condition. |
| (2) | 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. |
| (3) | Every employer must 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. |
| (1) | As far as reasonably 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. |
| (2) | As far as reasonably practicable, every employer must ensure that every employee is properly trained: |
| (a) | To deal with every risk to the employee's health or safety that: |
| (i) | Is associated with any work that the employee has to perform; and |
| (ii) | Has been recorded in terms of section 11. |
| (b) | In the measures necessary to eliminate, control and minimise those risks to health or safety; |
| (c) | In the procedures to be followed to perform that employee's work; and |
| (d) | In relevant emergency procedures. |
| (a) | Identify the hazards to health or safety to which employees may be exposed while they are at work; |
| (b) | Assess 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. |
| (2) | 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: |
| (a) | Eliminate any recorded risk; |
| (b) | Control the risk at source; |
| (c) | Minimise the risk; and |
| (d) | In so far as the risk remains: |
| (i) | Provide for personal protective equipment; and |
| (ii) | Institute a programme to monitor the risk to which employees may be exposed. |
| (3) | Every employer must, as far as reasonably 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. |
| (a) | Periodically review the hazards identified and risks assessed, including the results of occupational hygiene measurements and medical surveillance, to determine whether further elimination, control and minimisation of risk is possible; and |
| (b) | Consult with the health and safety committee on the review. |
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; |
| (d) | 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; |
| (e) | Co-operate with any person to permit compliance with the duties and responsibilities placed on that person in terms of this Act; and |
| (1) | 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. |
| (2) | 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: |
| (a) | Notification of supervisors and health and safety representatives of dangers which have been perceived and responded to in terms of subsection (1); |
| (b) | 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); |
| (c) | Participation, where necessary, by an inspector or technical adviser to assist in resolving any issue that may arise from the exercise of the right referred to in subsection (1); |
| (d) | 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 |
| (e) | Notification to any employee who has 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. |
| (3) | If there is no health and safety committee at a mine, the consultation required in subsection (2) must be held with: |
| (a) | The health and safety representatives; or |
| (b) | If there is no health and safety representative at the mine, with the employees. |
| (4) | The Minister, by notice in the Gazette, must determine minimum requirements for the procedures contemplated in subsection (2). |
| (1) | A health and safety representative may: |
| (a) | Represent employees on all aspects of health and safety; |
| (b) | 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 or safety of that employee; |
| (c) | Assist any employee who has left a working place in terms of section 23; |
| (d) | Identify potential hazards and risks to health or safety; |
| (e) | Make representations or recommendations to the employer or to a health and safety committee on any matter affecting the health or safety of employees; |
| (f) | Inspect any relevant document which must be kept in terms of this Act; |
| (g) | Request relevant information and reports from an inspector; |
| (h) | 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; |
| (i) | Attend any meeting of a health and safety committee: |
| (i) | Of which that representative is a member; or |
| (ii) | Which will consider a representation or recommendation made by that representative. |
| (i) | An inspector to conduct an investigation in terms of section 60; or |
| (ii) | The Chief Inspector of Mines to conduct an inquiry in terms of section 65. |
| (k) | Participate in consultations on health and safety with: |
| (i) | The employer or person acting on behalf of the manager; or |
| (l) | Participate in any health and safety inspection by: |
| (i) | The employer or person acting on behalf of an employer; or |
| (m) | Inspect working places with regard to the health and safety of employees at intervals agreed with the employer; |
| (n) | Participate in any internal health or safety audit; |
| (o) | Investigate complaints by any employee relating to health and safety at work; |
| (p) | Examine the causes of accidents and other dangerous occurrences in collaboration with the employer or person acting on behalf of the manager; |
| (q) | Visit the site of an accident or dangerous occurrence at any reasonable time; |
| (r) | Attend a post-accident inspection; |
| (s) | Co-operate with the employer in the conducting of investigations in terms of section 11(5); |
| (t) | Participate in an inquiry held in terms of section 65; and |
| (u) | Perform the functions: |
| (i) | Agreed by the health and safety committee; or |
| (2) | The rights and powers referred to in subsection (1) apply to health and safety representatives referred to in section 25 (1) only in respect of the working places for which they are responsible. |
| (3) | The employer must provide health and safety representatives with: |
| (a) | The facilities and assistance reasonably necessary to perform their functions; |
| (b) | Training that is reasonably required to enable them to perform their functions; and |
| (c) | Time off from work, without loss of remuneration, to attend any training course that is agreed or prescribed. |
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:
| (a) | In good time, of inspections, investigations or inquiries of which an inspector has notified the employer; and |
| (b) | As soon as practicable, of any accident, serious illness or health-threatening occurrence, or other dangerous event. |
| (1) | No person may discriminate against any employee for: |
| (a) | Exercising a right in terms of this Act or in terms of a collective agreement contemplated in this Act; |
| (b) | 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; |
| (c) | 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; |
| (d) | 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 |
| (e) | Standing for election, or performing any function, as a health and safety representative or a member of a health and safety committee. |
| (1) | Any person, including an employer, who contravenes, or fails to comply with, any: |
| (a) | Provision of this Act; |
commits an offence and is liable to a fine or imprisonment as may be prescribed.
| 3.1 | The requirement under the common law and the MHSA for the employer to provide employees with safe and healthy working environment demands of employers to prepare and implement comprehensive hazard identification and risk management system. This is specifically reflected in section 11 of the MHSA. |
| 3.2 | The control measures implemented by the employer to address the significant identified hazards and risks should under normal circumstances be appropriate to protect employees from those identified significant hazards and risks. |
| 3.3 | It is only if the control measures fail, or if new unexpected significant hazards and risks arise for which the control measures are inadequate, and there is no other effective way of protecting the health or safety of endangered employees, that the RRDW or the RLDWP may be exercised. |
| 3.4 | Section 23(1)(a) of the MHSA gives an employee the right to leave a working place if 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. "Reasonable justification" is not defined in the MHSA, but means that the employee has some objective information that makes him or her believe there are unsafe conditions at the working place or the work to be done is unsafe to the extent that there is an imminent and serious danger to the health or safety of person at that working place. The employee does not have to be correct in his or her knowledge or belief, but such belief should be reasonable given the information of the employee. These principles apply to both the RRDW and RLDWP. |
