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Mine Health and Safety Act, 1996 (Act No. 29 of 1996)

Regulations

Guideline for a Mandatory Code of Practice

Right to Refuse Dangerous Work and Leave Dangerous Working Places

Part A : The Guideline

1. Foreword

 

1.1 At the MHSC OHS Summit held in November 2011, the stakeholders adopted an action plan aimed at improving various aspects of health and safety at mines. As part of implementing the 2011 Summit Action Plan, the MHSC subsequently instructed MRAC to develop a draft guideline on the RRDW for the South African mining sector. This guideline has its origins in that request.

 

1.2 Under common law employers are required to provide and maintain a work environment that is safe and without risk to the health or safety of employees. This is reflected in section 2 of the MHSA which requires the employer to 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.

 

1.3 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/she 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 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.

 

1.4 Section 23(1)(a) of the MHSA partly reflects the common law mention above. It gives employees the RLDWP if circumstances arise which, with reasonable justification, appear to that employee to pose a serious danger to the health or safety of that employee or if the health and safety representative responsible for that working place directs that employee to leave that working place. The fact that section 23 does not mention the RRDW does not mean employees do not have that right. This guideline will cover both these rights.

 

1.5 This Guideline was informed by two studies conducted by the Centre for Sustainability in Mining and Industry (CSMI) of the University of the Witwatersrand, i.e. International Legislative Review "The Right to Refuse Dangerous Work” (August 2013) and a Sector Wide "Quantitative and Qualitative Study on The Right to Refuse Dangerous Work” (September 2013).

 

1.6 Section 23(2) of the MHSA requires the employer, after consulting the health and safety committee at the mine, to determine effective procedures for the general  exercise of the rights granted by section 23(1). The purpose of this guideline is to assist the employer in drawing up its COP so that it contains such effective procedures for the general exercise of the RRDW and the RLDWP and that the employer complies with section 23(2).