MANAGING CONTRACTORS

1. MANAGING CONTRACTORS PERSPECTIVES FROM THE MHSA

2. INTRODUCTION • More work is being outsourced to contractors. • Management of contractors’ compliance with MHSA of paramount importance. • H&S compliance of the contractor must be a central selection criterion. • MHSA chapter 2 deals with health & safety at mines. • Employers, employees and contractors have obligations. • Employer must (sec 2): • As far as “reasonably practicable” ensure: • Mine is designed and equipped to provide safe operation and healthy environment; • Mine is operated in way that employees can safely work; • Compile annual H&S report

3. Appointment of Contractors- 1 • Delegation in terms of MHSA: • 1) Section 3 MHSA- Employer must appoint qualified Manager • Appointment does not relieve Employer from duties • Employer must take reasonable steps to ensure performance. • 2) Section 4: Employer may entrust its section 2&3 functions to another: • Section 2: Employer may appoint persons to design, construct and equip (2(1)(a)) or to commission, operate, maintain and decommission the mine (2(1)(b)); • Section 3: Duty to appoint Manager. • Employer must provide appointee with the means to perform its duties, and must take reasonable steps to ensure that duties are performed. • 3) Section 7(2): Employer may appoint persons. • 4) Section 7(4): Manager may appoint persons.

4. Appointment of Contractors- 2 • The appointment does not relieve Employer from duties. • Other functions may not be delegated: • Maintain healthy & safe mine environment (sec 5); • Supply H&S equipment (sec 6); • Assess and respond to risk (sec 11) • If person is appointed, notice to Chief Inspector (sec 4) • Within 7 days: • Name of person appointed; • Functions; • Names of managers over whom person has control.

5. Appointment of Contractors- 3 • Tender phase: MHSA provides guidelines for h&s requirements • Effective contractual relationships built on prevention, participation, responsibility and accountability. • Tender documents must state Employer’s h&s requirements • How does contractor comply with MHSA? • How will contractor manage the identified risks? • Will contractor conduct ongoing assessments and consultations? • How does contractor define the responsibilities and accountabilities of the two parties? • Contractor’s tender must specify adequate risk control measures, and price is only one of the factors to be considered.

6. Contractors’ Duties in the MHSA (1) • “Manufacturers” and “suppliers” share liability with employer. • Section 21: Any person who • Manufactures/repairs/supplies any article for use on a mine must ensure: • Article is safe and without risk when used properly; and • complies with all MHSA requirements.(21(1)(a) • Erects or installs any article for use at a mine must ensure: • Nothing in the manner of installation makes it unsafe or creates a risk.(21(1)(b) • Designs, manufactures, erects or installs any article must ensure that ergonomic principles are implemented during all phases.(21(1)(c)

7. Contractors’ Duties in the MHSA (2) • Description of manufacturer or supplier encompasses contractors providing goods and services. • Contractor only relieved of duty if: • Contractor designs/ manufactures/ repairs obo 3rd party; and • The 3rd party gives written undertaking to take specified steps that the article will be safe and without risk. • Person who designs/ constructs a building or structure must ensure, as far as reasonably practicable, that it is safe & without risk (21(3)) • Manufacturer/supplier of hazardous substances must ensure • 1)Substance safe and without risk • 2)Sufficient information is given about use, risks, precautions.(21(4))

8. Contractors’ Duties in the MHSA (3) • Section 21 important management tool • Employer to insist on proof of H&S compliance from request for quotation- phase. • Once contract is awarded, Employer must: • Communicate with contractor frequently and openly; • Review & monitor contractor’s H&S performance; • Refuse entry to contractors that do not comply; • Determine and deliver support; • Impose H&S standards through notices, assistance and termination of agreement if serious breach takes place. • The section also relates to Employer’s duty to • Provide a safe working environment; and • Take reasonable care for safety of employees and contractors

9. Employer’s Duty (1) • Employer has duty of care: • Must as far as “reasonably practicable” ensure that mine is designed, operated and equipped to provide safe operation and healthy environment; • Reasonably practicable having regard to: • Severity & scope of hazard/risk • State of knowledge available on hazard/risk • Availability of means to remove/mitigate • Costs & benefits of removing/ mitigating • Duty includes the proper management of contractors in terms of the MHSA

10. Employer’s Duty (2) • Not sufficient for Employer to appoint Contractors and expect compliance: • Must take active steps to ensure adherence to Act, such as: • Educating Contractors on MHSA; • Providing Contractors with means (sec 4(1)); • Impose proper standards (MHSA & regulations); • Terminate contracts where H&S standards are breached. • Remember: Employer has duty towards Employees AND Contractors.

11. Role of Contractors • As the quest for outsourcing gains momentum, more Contractors are appointed. • Some BEE contractors are entering new fields, may need assistance as far as H&S is concerned. • Employer must rely on guidelines set out in the MHSA to manage contractors.