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Kusasalethu safety concerns – NUM

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Health and safety standards at Harmony Gold’s Kusasalethu gold mine are “very questionable”, the National Union of Mineworkers said on Monday.

“As a union, we are deeply concerned about the trend that continues to threaten the lives of many workers in Harmony operations,” NUM national health and safety secretary Erick Gcilitshana said in a statement.

“We call upon this mining house to pull up its socks and improve its health and safety system to prevent re-occurrence of these fires or these operations are heading to a disaster.”

Gcilitshana was responding to the rescue of 486 workers brought to surface safely on Sunday after an underground fire.

Company spokeswoman Charmane Russell said she would respond to NUM’s statement later on Monday.

In February 2014 eight people died in an underground fire at the company’s Doornkop mine.

“Once again we call upon the DMR (department of mineral resources) inspectorate to quickly investigate the source of this fire and other contributing factors,” Gcilitshana said.

“The workers must be united in dealing with their health and safety in the mining industry and use their hard-won worker rights that NUM fought for to be legislated.”

However, trade union Solidarity commended Harmony for swiftly ensuring the safety of mineworkers.

“The successful rescue operation sets a good example to the rest of the industry of how emergency situations should be responded to,” Solidarity’s occupational health and safety division head Paul Mardon said in a statement.

“The incident once again highlights the importance of mine safety as well.”

Mardon said in light of the successful rescue effort that mine safety had improved significantly over the past 12 years.

The improvement could be attributed to the commitment of employers, organised labour and government, who had been joining forces since 2003 to improve the quality of occupational health and safety, he said.

“Although significant progress has been made in respect of health and safety in South African mines, there is still a lot of room for improvement.

“The mining industry is and will always be dangerous and is faced with numerous challenges. These challenges include, among other things, illegal mining and inadequate training of health and safety representatives.”

Harmony said on Monday that all operations were temporarily suspended after the fire. Russell said a joint investigation by the mine and the DMR had started.

“Employees do have access to counselling after a situation like this. Everyone was evacuated on Sunday and no injuries were reported.”

All 486 employees underground at the time were brought to the surface safely.

“We are extremely grateful that all of our colleagues have been brought to surface, without injury,” CEO Graham Briggs said in a statement on Sunday.

“This is to the credit of our systems, employees, the unions, and mine management who have worked tirelessly over the past 12 hours.”

All workers would be sent for observation to make sure they were physically healthy.

The fire started on the mine’s 75 level, approximately 2300m below surface, around 9.40am on Sunday. It had since been contained.

Some of the miners used refuge bays which had fresh air, water and telephone communication to surface. The fire was believed to have started during maintenance work on a bulk air cooler.

Article provided with the kind courtesy of www.citizen.co.za

 

POPI and consent - don’t get caught in your own net

By Gillian Lumb, Director, Kara Meiring, Candidate Attorney, Cliffe Dekker Hofmeyr

 

2020 has given rise to many challenges for employers. The Protection of Personal Information Act 4 of 2013 (POPI) poses yet another challenge. Employers have a grace period of one year as of 1 July 2020 within which to ensure their compliance with POPI. 

 

POPI distinguishes between the collection, storage and processing of personal information and special person information. Special personal information includes e.g. an employee’s race or ethnic origin, health or sex life, religious or philosophical beliefs and trade union membership. Securing an employee’s consent is one of the basis on which an employer can lawfully process both general and special personal information of its employees.

 

It is crucial for employers to understand the meaning and interpretation of consent within the context of POPI. While employers may hope for a “quick fix” to ensure compliance and trust that including a broad, “catch all” consent in employees’ contracts of employment will be suffice – this may not prove to be adequate in every instance. A general consent may be sufficient to cover some of the personal information that will be processed during the course of an employee’s employment, however employers should be aware of the risks associated with relying on blanket consents in every instance. 

 

Section 1 of POPI defines consent as “any voluntary, specific and informed expression of will in terms of which permission if given for the processing of personal information”. Written consent is not expressly required. However, it will be for the employer in its capacity as responsible party to show that it has secured an employee’s consent where it is relying on consent. In the circumstances it is advisable for employees’ written consent to be secured. 

 

The requirement that consent be voluntary, specific and informed means that there should not be any pressure or force placed on an employee to consent. The employee should also be sufficiently aware of the content of the processing given the requirement that the consent is informed.

 

The Information Regulator has yet to give guidance on the interpretation of consent in terms of POP. In all likelihood it will have regard to the General Data Protection Regulation 2016/679 (GDPR) which requires that the consent is unambiguous and must be given by a clear affirmative act. It may well be that the Information Regulator interprets consent restrictively in keeping with the GDPR.

 

In the circumstances clauses relating to the processing of personal information in employees’ contracts of employment which are aimed at securing employees’ consent to the processing, should at minimum set out the nature and scope of the personal information that is to be processed, the reason for the processing, consent to further processing, consent to collection from a source other than the employee and consent to the transfer of the information. The employees must be able to understand in clear language what they are consenting and the extent of the consent. Where necessary provisions should also be made specifically for the processing of special personal information.

 

Employers should bear in mind that POPI does not demand consent in every instance and that processing may take place without consent where e.g. the processing is required in terms of law, or for the purposes of protecting a legitimate interest of the employee.

 

Employers will need to determine on a case by case basis whether the processing which they wish to conduct falls within the scope of the consent which they may have secured from an employee in his or her contract of employment or whether they will need to rely on one of the other basis set out in POPI. 

 

Both special and general personal information may be processed lawfully if the processing is necessary for the “establishment, exercise or defence of a right or obligation in law”. This would cover instances where e.g. an employer processes employees’ personal information to comply with its obligations under the Employment Equity Act.

 

An employer can process general personal information without an employee’s consent where such processing either protects a legitimate interest of the employee, or is “necessary for pursuing the legitimate interest of the responsible party or of a third party to whom it is supplied”. While the term “legitimate interest” is not defined in POPI, it is likely that the Information Regulator will seek guidance from the GDPR in this regard. The GDPR has established a three-pronged test in interpreting “legitimate interest” which considers purpose, necessity, and balance. It first asks, “Is there a legitimate reason or purpose for the processions?”, secondly “Is processing the information necessary for that purpose” and thirdly “Is the legitimate interest overridden by the interests of the data subject?

 

A determination is made as to whether there is a “legitimate interest” for the purposes of processing personal information based on the answers to these three questions.

 

So as not to fall foul of the provisions of POPI it is recommended that employers develop internal policies that will assist them in determining whether in each instance, personal information to be processed is covered by the general consent clause in an employee’s contract of employment alternatively, by one of the other basis for lawful processing. In the absence thereof, the employer will need to prepare and secure a further consent from the employee.

 

For more information, please contact Gillian Lumb at   

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com

 

 

 

 

 

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