The Association of Mineworkers and Construction Union (AMCU) is ready for its appearance in the Labour Court tomorrow. This urgent application involves forcing the Department of Mineral Resources and Energy (DMRE) to set minimum standards for health and safety during the scourge of the Covid-19 coronavirus pandemic. While there is a high level of agreement between AMCU and the employers’ organisation, the Minerals Council, regarding the setting of national minimum standards, the DMRE and Department of Cooperative Governance and Traditional Affairs (COGTA) has opposed AMCU’s application.
AMCU will be in the Labour Court tomorrow, 29 April 2020 to argue for an order to compel the Minister of Mineral Resources and Energy, Honourable Gwede Mantashe to issue binding regulations to protect mineworkers from Covid-19. This, as mining bosses were given the green light to ramp up to 50% of production during Phase 5 of the national lockdown, with even more set to return after 1 May 2020 when Level 4 commences.
While has consistently declared its support for the mines ramping up production, this can only take place once national minimum standards are put in place to ensure the health and safety of workers during the Covid-19 pandemic.
Before approaching court, AMCU wrote numerous letters to the DMRE, pleading with the Minister to set health and safety standards for mineworkers, who are uniquely vulnerable to Covid-19. This vulnerability includes the peculiar risks posed by highly congested working areas with low levels of natural ventilation, coupled with the high levels of predisposition caused by silicosis and tuberculosis. AMCU fears this will lead to widespread infection amongst mineworkers as well as the vulnerable communities that host them. However, the Minister has ignored all AMCU’s pleas and proposals thus far, and therefore AMCU was forced to approach the court.
The current urgent application to the Labour Court was brought last week, and subsequently Judge Tlhotlhalemaje J ordered AMCU and the respondents to publish a notice for interested parties to join the court action, on their respective websites. This included the publishing of the notion of motion, founding affidavit in the name of AMCU General Secretary Jeff Mphahlele, as well as the various relevant annexures. [These documents can be viewed at www.amcu.co.za.]
Since that time, it became clear that some mining companies as well as the Minerals Council was interested in settlement, and a settlement offer was made to AMCU. AMCU engaged constructively and proposed certain amendments to the Standard Operating Procedure (SOP) proposed by the Minerals Council. These amendments were largely informed by AMCU’s panel of experts, namely Professors Rodney Ehrlich (UCT), Jill Murray (Wits), Rajen Naidoo (UKZN), Pam Sonnenberg (University College London), and David Rees (National Institute of Health), who were of the opinion that the SOP as it stands, lacks specificity. This related to factors such as the issuing of the correct standard of Personal Protective Equipment (PPE), the maintenance of proper social distancing measures including underground situations such as congested lift cages, as well as the supply of proper hand sanitiser at specific points in the workplace.
Only the DMRE and COGTA oppose the relief sought by AMCU, with the DMRE arguing that the current regulations are sufficient to protect mineworkers. These departments hold the view that individual mining companies should be allowed to regulate themselves.
“As AMCU, we want our State to take up its role as regulator,” said AMCU President Joseph Mathunjwa. “They must be impartial and look after the interests of workers as well. They cannot be player and referee at the same time,” Mathunjwa added.
The court case is set down for tomorrow at 10:00 via the Zoom remote meeting application, and AMCU will be represented by Adv Alan Dodson SC, Adv Michael Bishops and instructing attorneys Richard Spoor Incorporated.
“We remain positive that the judge will see the sense of our application, as well as the good faith in which it is brought. Mineworkers cannot be sent to the slaughterhouse so that mining bosses can ensure their profits and bonuses,” said Mathunjwa. “We need to know that workers are safe before they return to work and go underground,” Mathunjwa concluded.
The Association of Mineworkers and Construction Union (AMCU) has brought two court applications against the Department of Minerals and Energy (DMRE) for its lacking regulation of the safe return to work of workers in the mining and energy sector. The one application by the Union is heard at the Gauteng High Court today, while the other is set down at the Labour Court. AMCU is positive that their applications will force the DMRE to set national minimum standards for health and safety during the scourge of the Covid-19 coronavirus pandemic. Whilst the Union is supportive of a return to work and ramping up production, it will not support such if the safety of its members are not guaranteed by national minimum standards.
Yesterday, AMCU filed an urgent application to the Labour Court challenging Mineral Resources Minister Gwede Mantashe’s staggering decision to send more than two hundred thousand mineworkers back to the mines with no meaningful regulation to protect them from the scourge of Covid-19.
Instead of regulating, the Department of Mineral Resources and Energy has issued permits allowing mines to operate if they comply with the “directive from the Minister’s speech.”
“This is totally unacceptable”, said AMCU President Joseph Mathunjwa. “The Minister’s decision is an abdication of his duty to protect mineworkers’ lives under the Mine Health and Safety Act. While some mining companies may well take good measures, it is not enough for the Minister to rely on all companies’ voluntary goodwill. This is reckless and will endanger the lives of many”, he added.
AMCU has previously in numerous correspondences to the DMRE expressed its concern that this state of affairs will lead to the infection of mineworkers, who are uniquely vulnerable to Covid-19 given the nature of the workplace and the hidden pandemic of lung diseases such as silicosis and tuberculosis that mineworkers face because of previous government failures to protect mineworkers from mining companies. AMCU fears this will lead to widespread infection amongst mineworkers as well as the vulnerable communities that host them.
AMCU’s repeated pleas that the Minister issue regulations have all been ignored.
“We have tried our level best to show the Minister that our submissions are made in good faith, and that it is the only way to ensure the health and safety of mineworkers”, said Mathunjwa. “Even some progressive employers agree with us that we need a national standard that is binding on all mines. They simply ignored our letters, and even letters from our legal teams, so now we are forced to go to court”, he said.
AMCU’s application is supported by an expert opinion from some of South Africa’s foremost experts in public health and occupational medicine: Professors Rodney Erlich, Jill Murray, Rajen Naidoo, and David Rees. Their expert opinion concludes:
“The original question required of us of was whether at a national level, adequate measures have been put in place to ensure that mineworkers will return to a working environment that is not harmful to their health and safety or the communities where they reside.
If the decision is made to return to work and without more from the Department of Mineral Resources and Energy, we must conclude that the current instruments described do not adequately address the safety concerns of mineworkers, their families and extended communities. More is required.”
“It is very disappointing that the honourable Minister, the Chief Inspector of Mines, and the Minerals Council (formerly known as the Chamber of Mines) immediately opposed our application. It is hard to believe that they will send mineworkers underground with no proper health and safety regulations being in place”, said Mathunjwa. “We again call on the honourable Minister to act decisively under the Mine Health and Safety Act to protect the lives of mineworkers and the communities where they live,” Mathunjwa added.
AMCU has brought two applications against the DMRE. The first one was to set aside the Minister’s decision to exempt 129 mines from the Covid-19 regulations for being essential mining services. This issue has become less urgent since the amended regulations announced by the Minister of Cooperative Governance and Traditional Affairs, Honourable Dr Nkosazana Dlamini-Zuma on 16 April 2020. This case will sit today at the Gauteng High Court in Pretoria, and AMCU will formally remove the matter from the urgent role, to be argued later during the normal course.
The second application is to the Labour Court, and it is heard over two days. This afternoon at 14:00 will be part A of the application. It is purely procedural and seeks orders regarding how AMCU is giving notice of the application to the mining industry as a whole. Next Tuesday, on 28 April 2020 will be part B of the application. Then AMCU will seek a final order that either the Minister or the Chief Inspector have failed to issue binding regulations to be gazetted, and ordering them to do so.
“We are very positive about our prospects of success in these cases”, said Mathunjwa. “It is as clear as daylight that there needs to be minimum standards for the health and safety of mineworkers to protect them against this virus, and that these standards must be set at national level to be binding on all mines. We are not opposed to the mines ramping up for production and for the workers to return to work, but safety must come first. Since these amended regulations has now become law, we have urged our members to comply but reminded them of their right to refuse to work in dangerous conditions”, Mathunjwa concluded.
The Association of Mineworkers and Construction Union (AMCU) is highly disappointed in the amended regulations pertaining to the exemption from the lockdown regulations of minerals and energy as announced this afternoon. The Union says that the conditions for the health and safety measures to be put in place are inadequate, and reiterates its call for a national task team to determine minimum standards for the sector as a whole.
This afternoon the Minister of Cooperative Governance and Traditional Affairs (COGTA), Honourable Nkosazana Dlamini-Zuma hosted a press conference to announce amendments to the regulations issued in terms of the Disaster Management Act. These amendments included amendments to the scope and effect of the mining and energy sector being exempted from the national lockdown regulations. These amendments were further clarified by the Minister of Mineral Resources and Energy, Honourable Gwede Mantashe.
“As AMCU, we are very disappointed in the DMRE [Department of Mineral Resources and Energy] for not using this opportunity to include minimum health and safety standards in the amendments to the Covid-19 regulations, in terms of the Disaster Management Act. Once again, we see that the issue of profits is more important than the health and safety of workers”, said AMCU President Joseph Mathunjwa.
Part of the amendments are the deletion of the word “essential” form the term “essential mining”, which now renders all mining activities as exempted from the national lockdown. This means that, where the previous definition mentioned coal, gold, gold refinery and essential mining, it now allows for all commodities to be mined.
“It is clear to us that the DMRE again bowed to the pressure of the mining bosses to give a blanket permission to start mining”, said Mathunjwa. “We can understand that food, health, security and even IT [information technology] can be seen as essential services, but how can mining be regarded as an essential service?”, Mathunjwa asked.
The amendments also allow for mines to ramp up their production to 50% during the lockdown, and then more thereafter, while setting certain conditions for health and safety measures for workers when returning to the mines from their homes.
“We don’t have problem with returning back to work, but the guidelines on what the mines must do are totally inadequate”, said Mathunjwa. “Many questions beg answers, such as: What will be done to ensure social distancing in the cages? What type of masks will be issued and how often? Who will inspect the quarantine facilities at mines? These so-called conditions in the amendments are far too vague to be binding and enforceable on the mines, and we predict serious problems during the ramp-up of operations”, he added.
On 8 April 2020, AMCU called on the DMRE to establish a task team consisting of all stakeholders and health experts to arrive at a national Code of Practice (COP) for dealing with the Covid-19 pandemic. AMCU proposed that this COP should be gazetted as national regulations, which will be binding on all companies in the sector. AMCU included several aspects that need to be covered in such regulations.
“We still call for the establishment of a national task team to set minimum health and safety standards which is binding on all mining operations and can be enforced”, said Mathunjwa. “We will spare no resource to ensure that our members are guaranteed to be safe and healthy before they return to work”, Mathunjwa concluded.
The Association of Mineworkers and Construction Union (AMCU) demanded from the Minister of Mineral Resources and Energy (DMRE) to establish a task team to coordinate the response to Covid-19. The Union demands that this task team focuses on developing national standards for managing the coronavirus in the sector, including the introduction of enhanced Personal Protective Equipment (PPE) to workers and minimum standards regulating the identification and mitigation of the associated risks. AMCU reminds the DMRE of its regulatory role, especially when it comes to balancing the interests of employers and that of employees.
AMCU today wrote to the Minister of Mining and Energy, Mr Gwede Mantashe to table its demands on how to deal with the Covid-19 coronavirus in the mining and energy sector. Part of the substantial submissions by AMCU includes a demand for the establishment of a task team to address the current Covid-19 pandemic.
AMCU proposed that this task team should consist of the Chief Inspector of Mines, Mr David Msiza, as well as representatives of the Minerals Council and registered trade unions. The task team must also receive technical advice from the National Institute for Occupational Health (NIOH), the National Institute for Communicable Diseases (NICD) as well as the Minister of Health, Mr Zweli Mkhize.
The main focus of the task team would be to develop a national Code of Practice (COP) of managing Covid-19 in the sector, which can then be customised at company level. This national COP must then, as AMCU demands, be gazetted to become a regulation and a safety standard for the sector.
“As AMCU, we will not support any ramp-up of operations at mines before these regulations are agreed upon and gazetted accordingly,” said AMCU President Joseph Mathunjwa. “We can simply not afford to let mineworkers die due to a lacking and uncoordinated approach to this pandemic by the individual mines”, Mathunjwa added. “It is also not only mineworkers who will be affected if Covid-19 is not contained properly, it will also affect the medical employees at mines, the communities as well as South African society at large”, he said.
In its submissions, AMCU reminds the Minister of the rights of workers in terms of the Mine Health and Safety Act (MHSA) to refuse to work in dangerous conditions. It sets out the steps to be followed in terms of the Act to address the mitigation of risk before work can be continued. AMCU proposes that a specific and enhanced standard of Personal Protective Equipment (PPE) be made compulsory for all mining operations, in combination with strategies to mitigate risk and manage identified infections.
“We appeal to the DMRE to step up to the plate and fulfil its role as regulator of the mining and energy sectors”, said Mathunjwa. “It has never been more important for the Department to manage the conflicting interests of workers and employers. It is time to work together to ensure the long-term sustainability of the sector. We believe our proposals are both realistic and attainable, and we trust that the DMRE will see the sense of it all”, Mathunjwa concluded.
The Association of Mineworkers and Construction Union (AMCU) has written to the Minister of Mineral Resources and Energy (DMRE) to focus on the safety of workers as mining houses are getting ready to ramp up to limited production. The Union accuses the DMRE of deviating from the national lockdown measures announced by the State President, as well as of lacking consultation with trade unions and other stakeholders. AMCU says it must ensure that the health and safety of all workers are guaranteed, before mines and other companies can relax the national lockdown measures.
Reacting to an SMS notice for an engagement between the DMRE and trade unions planned for tomorrow, AMCU pointed out that Honourable Minister Gwede Mantashe had not yet responded to its previous correspondence. In this (previous) correspondence, AMCU raised a variety of concerns, including specifically the way in which the DMRE was departing from the national lockdown measures as announced by the State President, Honourable Cyril Ramaphosa.
AMCU indicated that President Ramaphosa was very clear when he said only essential services would continue during the 21 days, indicating that that the DMRE instead took the opportunity to expand the essential services exemption to a variety of other mining activities. The Minister was also criticised for unilaterally drafting a document for public consumption, without prior consultation with AMCU and other stakeholders, as well as not honouring his undertaking to provide AMCU with a list of mining operations which will continue to be operational during the lockdown.
“As we know, no such list was provided by the DMRE, and neither has the DMRE fulfilled its regulatory role to make an assessment on damages suffered due to this practice”, said AMCU President Joseph Mathunjwa.
In its letter to the Minister, AMCU says that the Minister’s invitation of all trade unions to a physical meeting in these times is highly irresponsible. Instead, AMCU proposes that this meeting be held via teleconference or other remote communication methods.
“It is hard to believe that the Minister would invite the top leadership of trade unions to a physical meeting in Pretoria during the national lockdown, when even government itself uses remote methods when they conduct press conference”, said Mathunjwa.
AMCU questions the genuineness of the proposed consultation scheduled for 7 April 2020, instead demanding that the Minister submits all the DMRE’s proposed plans in writing, so that the Union can make written submissions to these documents.
“We don’t understand why the DMRE could not take us into their confidence and provide us with their plans in writing, so that we can ensure that the process is fair,” Mathunjwa added. “The problem is that they [the DMRE] is highly reactive when it comes to these things. Already on 5 March 2020, AMCU called for a national Coronavirus Summit, but this gained no traction. Now everything must happen in haste, and workers are expected to return to work without the necessary safety precautions being in place”, Mathunjwa said.
AMCU says that it is becoming clear that the DMRE is under severe pressure from the Minerals Council to start with a premature ramp-up of operations under the guise of the essential services exemption. The Union bemoans recent negative consequences of the concessions made by the DMRE, including fatalities at coal and gold mines, as well as tensions at other operations like Kumba Iron Ore.
“We remain highly disappointed in the DMRE for its blatant flouting of the Covid-19 measures put in place by our State President. We are equally concerned about the job security of workers and the state of the South African economy at large. However, these concerns must never be addressed at the expense of the health and safety of workers. We have appealed to the DMRE not to succumb to the pressure of employers and thus flaunt the rights of the workers”, Mathunjwa explained.
“DMRE is between a rock and hard place,” said Mathunjwa. “On the one hand they are responsible for issuing mining licences, but on the other hand they are responsible for regulation which includes health and safety,” he added. “Under these circumstances, it clearly shows a conflict of interest. They cannot be player and referee at the same time”, Mathunjwa said.
News articles start stating that the economic pressures of the national lockdown might lead to mass retrenchments in the already embattled South African mining sector. This, since the recent investment downgrading of South Africa to sub-investment grade and the poor growth of the economy in the past decade.
“We don’t expect any job losses since job losses according to mine bosses are caused by protected strikes and, hence there are no strikes, we don’t expect them to start slashing jobs”, said Mathunjwa. “As AMCU, we will do everything in our power to ensure that the workers remain safe and healthy, and that their terms and conditions of employment remain unharmed during these trying times”, he added. “The silicosis experience we had in the past, should have been a learning curve for us”, Mathunjwa said.
AMCU requested the DMRE’s written proposals to reach it by close of business, today (6 April 2020). At the time of this statement being drafted, no response was received from DMRE.
AMCU has written several letters to a variety of employers in mining and other sectors, regarding measures during the national lockdown and the return to production post the lockdown. These engagements have had limited success.
“The current situation is quite simple, actually”, said Mathunjwa. “The mining bosses want to start working and make profits, and we want the workers to be healthy and safe. We must take all precautionary measures before the workers can return to work in a healthy and safe environment. AMCU will not allow the mines to become killing fields”, Mathunjwa added. “It is now to time practice what we preach when we say “safety first” to each other, concluded Mathunjwa.