In the case of Association of Mineworkers and Construction Union v Minister of Mineral Resources and Energy and Others, the Labour Court ordered the Chief Inspector of Mines ("Chief Inspector") by no later than 18 May 2020 to publish a notice in the Government Gazette containing guidelines in terms of section 9(3) and 49(6) of the Mine Health and Safety Act 29 of 1996 ("the MHSA"); and in terms of section 9(2) requiring employers (as defined in the MHSA) to prepare and implement a code or codes of practice, to mitigate the effect of the outbreak of COVID-19 on the health and safety of employees (as defined in the MHSA) and persons who may be directly affected by the disease at the mine. A copy of our bulletin on the judgment of the Labour Court is available here.

In compliance with the Labour Court order, on 11 May 2020, the Chief Inspector issued draft Guidelines for the Compilation of a Mandatory Code of Practice for the Mitigation and Management of the COVID-19 Outbreak ("Draft Guidelines") for public comment. According to the Draft Guidelines, interested and affected parties are invited to submit written representations on the Draft Guidelines by no later than 14 May 2020. 

The purpose of the Draft Guidelines is to provide guidelines to be applied by employers in preparing and implementing a code or codes of practice, to mitigate the effect of the outbreak of COVID-19 on the health and safety of employees and persons who may be directly affected by the disease at mines.

In terms of the Draft Guidelines:

• an employer (as contemplated in the MHSA), will be required to prepare and implement a code of practice on COVID-19;

• the code of practice must comply with the guidelines issued by the Chief Inspector, including regulations and guidelines issued in terms of the Disaster Management Act, 2002 and any other relevant guidance with regards to COVID-19;

• failure by an employer to prepare or implement a code of practice in compliance with the guidelines issued by the Chief Inspector will be a contravention, a criminal offence and a breach of the MHSA.

According to the Draft Guidelines, the objective is to assist employers to establish and maintain COVID-19 mitigation and management programme at mines, which if properly implemented and complied with, would procure the health and safety of the mine’s employees in relation to curbing the spread COVID-19 as employees return to work. The Draft Guidelines provide a proposed format and content for an employer’s code of practice and provide that the following key elements must be addressed in the code of practice:

• risk assessment and review;

• start-up and ongoing procedure for mines;

• COVID-19 mitigation and management programme;

• monitoring and reporting;

• compensation for occupationally acquired COVID-19.

In addition to the code of practice, employers are also required to prepare an implementation plan for the code of practice that makes provision for amongst others, programmes and schedules that will enable the proper implementation of the code of practice. Further, amongst others, employers are required to keep the code of practice and related documents readily available at the mine for examination by any affected person. Employers are also required to ensure that all employees are fully conversant with those sections of the code of practice relevant to their respective areas of responsibilities.

Employers are, in terms of section 9(4) of the MHSA, required to consult with their health and safety committee and any other interested and affected person on the preparation, implementation and revision of a code of practice. The Draft Guidelines recommend that an employer must, after consultation with employees in terms of the MHSA, appoint a committee to draft the code of practice.

Please click here for a copy of the Draft Guidelines.

If you require assistance in submitting comments or should you have any questions on the Draft Guidelines, please contact the Fasken mining team.

We will continue to keep you updated with any developments in the mining industry.