Are workplace laws too rigid? Can we improve our results? How can we balance safety and profitability? We will answer these questions and more.

Are the Occupational Health and Safety Act, COID Act, and other laws that regulate workplace safety too rigid? Or is there room for improvement when it comes to how the laws are applied and implemented? 

A distinction is made between health and safety laws which are aimed at securing health and safety in the workplace, and the health and safety laws which provide for compensation in relation to occupational diseases and injuries, including fatal accidents.

There are two primary pieces of legislation which are aimed at securing health and safety in the workplace, namely the Occupational Health and Safety Act (OHSA), No. 85 of 1993 and the Mine Health and Safety Act (MHSA), No. 29 of 1996. The MHSA applies to mines and some works, as defined in the MHSA, while the OHSA applies, generally, to other work places (subject to certain exceptions).

With regard to compensation, the Compensation for Occupational Injuries and Diseases Act (COIDA), No. 130 of 1993 applies to the occupational diseases contained in the Schedules to COIDA, and to occupational injuries, including fatal accidents. A specific compensation mechanism is created under the provisions of the Occupational Diseases in Mines and Works Act (ODIMWA), No. 78 of 1973, for the specified compensatable diseases which are identified under ODIMWA.

In relation to the OHSA and MHSA, there have been ongoing debates over many years regarding whether the mechanisms and structures under the OHSA and MHSA are too rigid and do not, as a result, achieve the intended purpose – occupational health and safety. For example, in relation to the MHSA, mining companies have repeatedly requested greater flexibility and self-regulation. These representations have largely been successful and the MHSA regulations provide for self-regulation, in several respects, including the hazard identification and risk assessments (HIRAs) that must be carried out, and the various measures to be implemented to address the identified hazards and the assessed risks so as to ensure that incidents and accidents do not occur and persons are not exposed to hazards to their health. However, the Mine Health and Safety Inspectorate (MHSI) has argued that the self-regulation has not worked, and the MHSI refers to the recent upward trend in fatal accidents on mines as proof of this. In the years where there was an improvement, the MHSI generally argues that this was a result of their increased enforcement, including the issuing of the "stop notices" under Section 54 of the MHSA.

In our experience, many of the accidents, including fatal accidents, can be attributed to non-compliance with the provisions of the MHSA or OHSA, the regulations and the extensive health, and the safety systems which are implemented in support of compliance with the MHSA and OHSA. It is more of a case of the existing system not being complied with or implemented rather than system failures.

My view is that both the MHSA and OHSA provide good frameworks for compliance, including appropriate self-regulation and flexibility. The emphasis needs to shift "back to basics" with an emphasis on ensuring that persons at all levels at mines or other workplaces understand why something is being done, in addition to being trained on what has to be done. Understanding why a particular risk assessment is necessary, or why compliance with a particular rule is critical, is essential in my view, to improved compliance with both the MHSA and OHSA.

Can a better balance be struck between worker safety and the need for companies to remain competitive locally and internationally? 

Health and safety is not negotiable. The health and safety of workers in a workplace needs to take absolute priority, and profits cannot overshadow health and safety. There is of course a distinction between profit and profitability. Where companies are not profitable, this tends to have a significant impact on health and safety in the workplace because this inevitably results in restructuring, with the consequences that flow from this, such as disruption to "working rhythms," reduced supervision, reduced number of employees in a crew, etc.

When it comes to profits, they cannot be driven at the expense of health and safety, and we have seen a significant change over the last 18 to 24 months where investors are increasingly basing decisions on health, safety and environmental compliance, and in many instances, with full acknowledgment that profits may be impacted by compliance.
Even if stakeholders do not subscribe to compliance with the MHSA and OHSA, on moral or legal   grounds, most mature stakeholders, including companies, employers and investors, understand that the fallout from a single fatal accident can be extensive not only to the bottom line but also reputationally.

In my view, the balance is shifting to the emphasis on health, safety and environmental aspects with the understanding that there may be a reduction in profits.

Even where the "cost" of compliance in relation to health, safety and environment impacts on profitability, my experience is that most stakeholders are not prepared to compromise on health and safety, and would rather focus on sustaining profitability through alternative mechanisms.    

If yes, how can the balance be improved?  

As mentioned above, in my view, a balance is being achieved organically as a result of changing sentiments and approach to compliance globally. In my view, this is the appropriate method of achieving balance, organically and dynamically, rather than being forced through legislative changes. Organic change is, in our experience, generally more successful because it tends to be based on the buy-in of all relevant stakeholders.

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