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Although trending lower, lung disease incidence in SA mines still ‘alarmingly high’

BREATH OF FRESH AIR New legislation and other measures will go a long way towards reducing the incidence of lung disease in the mining sector

Photo by Bloomberg

SOUND DECISION Given that the incidence of noise-induced hearing loss and other occupational diseases increased in the mining sector in 2017, compared with 2016, government’s decisions to amend compensation legislation and recommit to ‘zero harm’ are welcome moves

16th November 2018

By: Nadine James

Features Deputy Editor

     

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With the reaffirmation of tripartite commitments at the 2018 Mine Occupational Heath and Safety Summit and the publication of the Compensation for Occupational Diseases Act (Coida) Amendment Bill, both in October, it is clear that the regulatory authorities, including the departments of Labour and Mineral Resources, are trying to address the high incidence of occupational diseases in the mining industry.

The summit, which was hosted by the Department of Mineral Resources (DMR) in Benoni, on Gauteng’s East Rand, sought to share insights on mine health and safety for the betterment of the industry. One of the aspects highlighted was that, according to the DMR’s data, there were significantly more cases of occupational diseases – tuberculosis (TB), silicosis and noise- induced hearing loss (NIHL) – than fatalities caused by safety incidents.

During his presentation at the summit, acting chief inspector of mines Xolile Mbonambi said 69 workers had lost their lives from January to October, compared with 70 during the same period last year. The total fatality count for 2017 was 88, while the count for 2018 to date is 74. Further, 652 workers contracted silicosis in 2017, compared with 635 in 2016, while 2 247 contracted TB, down from 2 580 in 2016, and 1 141 were confirmed to be struggling with NIHL, compared with 966 in 2016.

A new report from the Institute of Race Relations, ‘Deep and Dangerous: Health and Safety in Our Mines’, authored by Anthea Jeffery and released in December, notes that silicosis is a major problem in the gold and coal sectors, in particular. It adds: “So, too, is pulmonary TB, which can be triggered by exposure to silica dust (though many other factors are relevant too). The employees most vulnerable to these diseases are those who blast rock and sand, such as mineworkers and stone cutters.”

She explains that silicosis typically takes 15 years to develop and for its symptoms to become apparent. Accelerated silicosis, by contrast, commonly manifests within ten years. Silicosis worsens over time, even after exposure to silica dust has ended.

Further, about 80% of South Africans are infected with latent TB, and about 1% of the population develops active TB every year, one of the highest rates in the world.

In a statement released after the summit, Minerals Council South Africa noted that the inroads against TB in the mining sector were largely attributable to Masoyise iTB, a multistakeholder initiative that had resulted in an increase in the number of employees screened for TB and HIV, leading to early diagnosis and treatment.

Additionally, in April, former acting chief inspector of mines Mthokozisi Zondi introduced new guidelines under Section 49(6) of the Mine Health and Safety Act – the Guidelines for the Compilation of a Mandatory Code of Practice for an Occupational Health Programme on Personal Exposure to Airborne Pollutants. The guidelines enable mines to compile a code of practice, which, when properly implemented, may protect mineworkers by monitoring and reducing exposure to airborne pollutants.

The DMR anticipates that these and other measures will go a long way towards mitigating exposure to TB and other lung diseases, which, while trending lower in the longer term, remain alarmingly high.

Worker Compensation

In South Africa, besides Coida, workers who contract occupational diseases may be compensated under the Occupational Diseases in Mines and Works Act (ODMWA). This Act provides compensation for miners and former miners afflicted with occupational lung diseases. It is administered by the Medical Bureau for Occupational Disease and provides for postmortem benefits if a miner is found to have suffered from an occupational disease, even if it was not the cause of death.

The Act provides for the payment of lump-sum benefits determined by the level of impairment and does not make any further pension provision. All medical expenses, including those related to the treatment of the lung disease, are paid by the mine owner.

According to Jeffery, those who receive compensation under the ODMWA cannot claim compensation under Coida, which covers occupational injuries and diseases in all industries, including mining – specifically, those not covered by the ODMWA, with NIHL being a case in point.

Jeffery notes that the existing ODMWA formula provides for lump-sum benefits of about R47000 for a worker found to be suffering from a compensatable disease in the ‘first’ degree. Mineworkers suffering from a compensatable disease in the ‘second’ degree who have not yet received any other benefit under the Act are entitled to a lump sum of about R105 000.

In 2016, well before their 2018 R5-billion silicosis settlement with former gold miners, the six mining companies that comprise the Occupational Lung Disease Working Group – African Rainbow Minerals, Anglo American, AngloGold Ashanti, Goldfields, Harmony Gold and Sibanye-Stillwater – released a fact sheet that compared the benefits under the ODMWA with those under Coida.

The fact sheet states that one of the gold mining companies’ key focuses is to move current and future mineworkers from the ODMWA compensation system to the Coida compensation system, because, under Coida, mineworkers who become sick or are injured when they are still employed are eligible for substantially higher compensation than employees who suffer from an occupational lung disease and currently fall under the ODMWA.

Jeffery and the working group agree that compensation under the ODMWA is inadequate, which is likely why law firm Richard Spoor Attorneys is preparing a class action suit on behalf of South African coal workers suffering from pneumoconiosis, also known as black lung disease.

The Coida Amendment Bill was published on October 18 and members of the public have 60 days from the date of publication to comment on the proposed amendment.

Law firm ENSafrica mine and occupational health and safety director Willem le Roux tells Mining Weekly that the most important changes envisaged in the Amendment Bill relate to the extent of penalties imposed on an employer in the event of noncompliance with the requirement to report an accident; a proposal that the costs associated with the rehabilitation, reintegration and early return to work of employees be paid from the Compensation Fund; the appointment of inspectors to question employers, inspect documentation and issue compliance orders; and financial reporting to the Minister and Parliament. It is also proposed that Coida’s ambit be extended to include domestic employees.

Le Roux explains that Coida is applicable to employers in and outside the mining industry. The Act relates to compensation for work-related injuries and diseases, except diseases that are compensatable in terms of the ODMWA.

“The Amendment Bill envisages the appointment of inspectors who will have wide powers of questioning and inspection to ensure compliance with Coida. “However, the relevant provisions do not provide that a person questioned has the right not to incriminate himself or herself [or] that the answer given by such a person may not be used in criminal proceedings that may follow.”

Failure to grant protection to an employer in this regard will be unconstitutional, he states.

Another worrying aspect is that the Amendment Bill does not indicate what the qualifications of an inspector should be. “This is of extreme concern, as the Amendment Bill gives an inspector the power to issue a compliance order. Such an order must, in terms of the provisions of the Amendment Bill, also set out the maximum fine that may be imposed on the employer for failure to comply with the provisions of Coida.”

Le Roux recommends that the right to impose a fine should be reserved for the commissioner and that the inspector should merely make a recommendation to the commissioner. Further, an employer should have an opportunity to present his or her case to challenge the imposition of a fine.

As far as financial control and auditing of the Compensation Fund are concerned, Coida provides that the director-general submit a copy of the balance sheet to the Minister, who has to table the balance sheet in Parliament within 30 days. “It is worrying that the Amendment Bill intends to relax the reporting requirement. It is now proposed that the commissioner merely submit the yearly financial statement, together with the yearly report, to the Minister and that it is no longer necessary to table the same in Parliament.”

Further, Coida currently provides that notice of an accident be given to the commissioner within seven days. The Amendment Bill proposes that, in the event of failure to do so, the employer must be liable to a penalty of 10% of the declared yearly earnings for that particular year. Le Roux says this new provision is “draconian”.

He notes that the Amendment Bill does not give the commissioner any discretion to impose a lessor penalty, adding that the proposed provision is extremely onerous and will lead to the creation of a negative investment climate in the country. “A clear message will be sent to new investors that employment is accompanied by very harsh penalties for the employer and the same message will be sent to existing investors. This will undoubtedly lead to disinvestment and the discouragement of future investments, which our country can ill afford.”

Le Roux says it is clear that the regulatory authorities are trying to curb the high incidence of occupational diseases and injuries and increase the compensation for workers who are injured at work and those who contract occupational diseases.

However, based on Le Roux’s views and the comments by Jeffery, more reflection on the Amendment Bill is required.

Edited by Martin Zhuwakinyu
Creamer Media Senior Deputy Editor

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