Minerals Council of South Africa and mining trades unions on COVID-19 related issues in the mining industry

Meeting report

The Chairperson noted that the Committee will only be dealing with the issue of the corona virus pandemic in order to ensure that it has the participation of all the stakeholders.

An apology from Ms N Hlonyana (EFF) was noted. She was still not well and she will join the Committee again next week.

The Chairperson said that the Committee had invited the representatives from the Minerals Council and they had also invited organised labour. The Committee received a letter from organised business in mining in the form of the Minerals Council requesting that they [have an opportunity to brief the Committee]. Because of the operation of virtual meetings, the Committee felt they also needed the views of organised labour in the mining sector.

The Chairperson asked everyone in the meeting to bear with him and to stick to their allocated time as the meeting cannot continue past twelve o’clock. The Committee felt that if they only invited organised business and not organised labour there would have been a lot of misunderstanding.

Presentation by the Minerals Council of South Africa

Mr Roger Baxter, the Chief Executive Officer (CEO), Minerals Council, stated that the Minerals Council had a small team and their presentation would be brief. Mr Baxter had with him Dr Thuthula Balfour, Head of Health, Mr Nikisi Lesufi, Senior Executive Environment, Health and Legacies and Mr Motsamai Motlhamme, Head of Employment Relations.

Mr Baxter stated that they have taken risk based approach to put all the preventable and mitigation controls in place to help get industry back to work to save lives and livelihoods. They were doing this in a preventative and controlled manner. The Council has had extensive engagement with the Department and with unions to make sure that they manage the pandemic the best they can. They have seen this as a shared responsibility. He noted that this was a “black swan event” which has caused unprecedented economic disruption, certainly for the mining industry.

As early as February the Minerals Council started engagement on the different protocols. The Council provided a lot of information to their members in order for their members [the mining companies] to do preparatory work.

Dr Thuthula Balfour, Head of Health, Minerals Council, said that we all started this year with work plans which have now drastically changed because of Covid-19. As stated, in February already the Council started with communication, well before South Africa had its first case on 5 March. The Council immediately put out their ten-point plan to their members. This focused on the prevention of the disease and ensuring that companies had the necessary consumables. For instance, the mining industry immediately focused on ensuring adequate Personal Protection Equipment (PPE) supplies. The Council focused on education and informing employees so when the disease hit that they had systems in place. Before the Department of Mineral Resources and Energy (DMRE) produced their guideline the Council already had their own guideline for workers returning to work after the lockdown. The DMRE guideline is what is guiding them now, for instance with protocols to follow when employees are returning from pandemic epicentres. The Council also put out a guide on the use of PPE. The industry decided to use three-ply masks because of the congregation that happens in mining. They felt that it would be the best way to protect their workers.

The testing rate globally is about 1.5% of the population. In South Africa as a whole the testing rate is about 1.98% while in the mining sector it is 2.7%. They just wanted to illustrate the fact that the mining sector is testing more than the average.

Mr Motsamai Motlhamme, Head of Employment Relations, Minerals Council, noted that since early March before the lockdown, the Council engaged the National Economic Development and Labour Council (NEDLAC) in order to set up the Covid-19 Unemployment Insurance Fund (UIF) benefit. They have been assisting members on the regulations that government has issued.

Mr Nikisi Lesufi, Senior Executive Environment, Health and Legacies, Minerals Council, spoke about the return of mineworkers to work, specifically highlighting the return of foreign mineworkers. These foreign workers will be screened in their home countries and will then be transported through the border to quarantine facilities in South Africa. There are about 3 000 employees who will return from Mozambique and 8 000 employees from Lesotho. This will be done in a phased process as the border posts do not want to be overwhelmed.

Mr Tebello Chabana, Senior Executive: Public Affairs and Transformation, Minerals Council, highlighted that the pandemic exacerbated the inequalities that already exist in society. Mining companies have come to the assistance of communities. They have assisted with providing equipment for testing. They have provided water which has been critical. They have also helped with food parcel distribution to particularly vulnerable communities. They have provided the Committee with a document which outlines how the mining companies have been assisting communities.

Mr Baxter concluded the presentation by briefly highlighting some statistics. He also noted that the industry has been doing a huge amount of work, working with the government, working with organised labour in order to manage the pandemic. The fact that they are screening and testing and picking up cases shows that the systems that are in place are working.

Presentation by UASA

Mr Franz Stehring, Divisional Manger: Minerals, UASA, noted an apology from Mr Jacques Hugo, UASA CEO, who could not make it due to a last minute NEDLAC meeting. The challenges that they have encountered are the asymptomatic cases. Hence the request from their side that random sampling be done. Another challenge is proper consultation from certain companies. He noted a situation where vulnerable employees cannot return to work but they also cannot claim to get their salaries. There is a plea from UASA to the Parliamentary Portfolio Committee to try and look at an amendment to include vulnerable employees.

There is a situation with marginal mines. Some of the marginal mines do not have the financial backing to comply with the guidelines. A specific example is Village Main Reef; they do not have the necessary funds to start up. Hence they cannot pay their employees and currently they have [issued notices of retrenchment of staff in terms of] section 189 of the Labour Relations Act (LRA). UASA requested that the Committee look into the situation of the marginal mines.

The last point is regarding the notices that various mines have used in terms of section 189 of the LRA. The Minister has asked some of the mines to retract some of those notices. Some of the mines have simply not retracted these notices. When they go the Commission for Conciliation, Mediation and Arbitration (CCMA) with retrenchment consultations, they sit with the situation where there is the Mineral and Petroleum Resources Development Act (MPRDA) on the one side and section 210 of the LRA on the other side. Section 210 of the LRA states that if there is a conflict of law, the LRA, subject to the Constitution, will supersede any other law. There have been a number of court cases that have pronounced in favour of the LRA because of section 210. Therefore, they sit with a situation that during the Covid-19 period there are mines that have issued section 189 notices and they have to proceed with them.

Presentation by Solidarity

Mr Gideon Du Plessis, General Secretary of Solidarity, highlighted the impact on mineworkers. One of the things that had a major impact is the no work no pay principle, especially on mineworkers employed by contractors. Prior to Covid-19, workers already risked job losses due to Eskom and other factors impacting the mining industry. Now there are additional costs such as the cost of PPE.

Matters of concern include the spread of fake news. The presence of co-morbidity factors in mine workers is high and the biggest challenge is getting 450 000 people to work. The most critical part is that time when these workers move from their home to their workplace. There are a lot of asymptomatic cases which increases the risk drastically. Another matter of concern is the opening up of downstream business. New challenges are the complaints of workers of having to wear a mask all day.

Even before the Guidelines there was a lot of engagement with the Minister and his Department on health and safety matters. Many mining companies were also very proactive and did more than what were required by the Codes of Good Practice.

Solidarity requested that shop stewards be trained as inspectors. At the big mining houses, they have plans in place if there is suddenly a big spike in numbers.

Presentation by Association of Mineworkers and Construction Union (AMCU)

Mr Xolani Bokoloshe, National Chairperson: Health and Safety, AMCU, stated that Mr Matthew Grant, AMCU’s health and safety officer, would be doing the presentation.

Mr Grant acknowledged the important role that mines are playing in the current crisis. He noted the important role that mines play in employment and AMCU looks forward to mines ramping up production to full capacity. AMCU believes that it is imperative to test mine workers and mining communities. They are aware of the difficulties around testing. Their concern at the moment is any outbreak hotspots and the main challenge is the agility to manage such a situation. They would have to quickly resolve such a situation because the situation could escalate very quickly.

There are some reports of employers not supplying employees with hand sanitizer and not disinfecting the workplace. Some members are reporting that transportation is not being properly disinfected. Some employees have been asked to pay for testing or quarantining, AMCU opposes such practices. There have been cases where employees have had to reuse masks due to shortages of PPE. Some employees have been forced to take annual leave, AMCU opposes such practices. Sick leave can be used, but not annual leave.

It is vital that mineworkers are able to go back to work as many mineworkers support big families. They are pleased to hear about the progress being made in bringing workers back. AMCU recommend that all retrenchments be suspended because the impact of retrenching a mineworker is just too detrimental. It is great of great concern that some mines are not being sanitised.  

Mr Bokoloshe stated that some mines are not ready to comply with regulations. Some mines have shortages of PPE and masks. He also highlighted the issue of the 50% [of the mining workforce] which has still not been recalled. People are frustrated that it may take up to three months to recall the remaining 50%. They requested that the Committee assist with this situation.

Presentation of National Union of Mineworkers (NUM)

Mr Kolekile David Sipunzi, General Secretary of NUM, said the Minerals Council had been very cooperative, but the real problem was that some companies are a law on themselves. He noted that Dr Balfour stated that Correctional Services are releasing prisoners due to congestion. The mining industry is very labour intensive. Why is the mining industry doing the opposite and bringing more people back to work? However, they do acknowledge that the situation needs to be balanced with workers who need employment. Therefore, they do support gradually bringing workers back to work but extra measurers should be taken. If regulations can dictate how many people are allowed in a taxi, why can the regulations not dictate how many people are allowed in a cage? A major concern is the high amount of asymptomatic cases. NUM are concerned about the effect of the lockdown on some companies, which are retrenching workers.

Mr Makgabo William Mabapa, Deputy General Secretary, NUM, noted that when they raise concerns they are not fighting anybody, but they have to take responsibility and respond to this pandemic. There are many companies that have shown that they are serious in prioritising safety. He further noted that even before Covid the mining of chrome was under pressure. He urged the DMRE and relevant departments to assist them particularly in the mining of chrome. The markets for diamonds are also currently a problem. Even if production is taken to 100% they will not be able to make a living if there is no market. NUM was pleased to hear that most mines will still pay June salaries, but the situation is uncertain for July and August. AMCU and Solidarity raised many of the challenges already. He stated that the Department is weak in its response. They have written to the DMRE requesting intervention with mines that are not complying, but they are not receiving responses from the Department.

Discussion

The Chairperson thanked all for their presentations and then called on Members for questions. Both sides were called to present to the Committee to get the full picture. He requested that Members focus on the necessary information that they want and to give all due respect to the people who were invited to present. The Chairperson stated that he would never limit the questions or views of Members, but he asked that Members do not undermine, humiliate or disregard any of those who presented. Could all the Members respect those who presented to the Committee.

He further requested that when Members ask questions that they are specific to which sector questions are addressed or even more specific the entity. Also that Members do not take longer than five minutes when asking questions. He requested that guests take note of each question which is relevant to them. When the Members are done with their questions, guests will have an opportunity to respond to those questions. If they do not get to all the questions and responses by the end of the meeting, the Chairperson suggested that the Committee decide how to proceed with those questions and responses.

Mr M Mahlaule (ANC) stated that he had no questions.

Mr K Mileham (DA) directed his first question to Mr Baxter from the Minerals Council. He noted the higher testing percentage than the general population which is good thing and he felt that it should be extended and rolled out further. His question was whether there is more that the members of the Minerals Council could do to assist in curbing the outbreak of the pandemic? The second question also to Mr Baxter was what is hindering the recovery of the mining sector?

To UASA, they mentioned a conflict between the Labour Relations Act and the Mineral and Petroleum Resources Development Act, he wanted clarity as to what exactly was this conflict? What was the problem that they were having with those two pieces of legislation?

To AMCU and NUM, both unions raised issues with specific and individual mining companies, he wanted to know what steps they have taken to deal with those non-compliant mines? What actions have they taken to ensure compliance?

Lastly, as a general question, he wanted to know what action will arise from today’s discussion? Who was going to take what they were discussing in the meeting and turn it into recommendations and action items?

Mr D Mthenjane (EFF) mentioned that he was unable to hear some of the things that were said today. His first question was addressed to the Minerals Council. They said the aim of the Minerals Council was to serve their members and promote their interests. He asked what exactly is an organisation in mining because it seems more like they are just serving the interests of capitalism. Because it more of a window dressing that the Committee is receiving in the presentation. They talked about the serious issue of the pandemic. The Committee hears what the Council is doing, but it is not enough. The Council is letting all workers going back to work when there is a serious pandemic. There are new cases every day. The numbers are increasing at the mines. The Council is not doing enough. For example, the workers have families and of all the workers that have tested positive, nothing has been done with regard to their families. The Council does not seem worried about their families; they are only worried about profit.

The Council also did not mention anything about medical aid. Many workers do not have medical aid. What have they done to help workers to get medical aid? They should have seen by now how difficult it is if a worker does not have medical aid. They are dealing with many other diseases other than Covid-19. There are many other diseases in the mines. They are not assisting workers. Medical aid is not a privilege but it is something that someone must have. In the mines it is a rough situation for human beings to be under, they need to be protected.

Further there are many complaints from workers in all the provinces. For example, in the Northern Cape there were complaints from the Kuruman mine, Kalagadi mine and Sepedi mine. There were complaints from those workers there. So he was wondering whether the Mineral Council goes to those mines that he just mentioned. The workers are complaining that they are not being treated fairly, they are not being transported fairly and that there are no measures in those mines and if they are there, they are not enough. The issue of transportation is a prevalent issue. He wanted to know whether the Mineral Council does routines checks at these mineral mines.

The Chairperson stated that Mr Mthenjane’s time was over and that he would give him 15 more seconds to finish what he wanted to say.

Mr Mthenjane said on the unions’ side, the Committee is not hearing anything effective from them. The Committee agrees with AMCU and the NUM in saying that the mines are not ready. They also agree on the issue of the 50%. One of his colleagues raised this issue when the Department met with the Committee. The aim of the employers is to retrench the other 50%. AMCU found out about this and the Committee agrees with them. The issue of 50% is not good for workers.

The NUM seems to know everything. Last year they came to the Committee and they presented nicely, the Committee even commended them. They seem to know everything, but they do not taking action. AMCU took the Department to court to block them from bringing workers back to work, but NUM was not doing the same thing. Yet they are here telling the Committee about the problems, but, Mr Mthenjane said, he does not see them acting.

Ms V Malinga (ANC) applauded the Minerals Council for also considering the communities where the miners are coming from while they are doing their work. They assisted with ambulances, paramedics, the distribution of food parcels and provision of water in schools. She wanted clarity on the ten-point plan which was circulated to Council members before lockdown occurred. How is it that some mines do not have PPE? How can a mine complain that PPE is expensive when mines have to provide their miners with PPE? This time around it might be different because you have to include masks and all others things that are needed in this pandemic. NUM are saying that the Department is weak because they have not responded to their letters? Why are they saying the Department is weak?

In their presentation AMCU recommended that all mines be deep cleansed and sanitised, also accommodation and transport. She thought the MHSC (Mine Health and Safety Council) was seized with this matter, in terms of deploying inspectors to check the mines if they meet the regulations as outlined by the Department as to how the mines should operate. They were also saying that Correctional Services were giving parole to people to do away with congestion in their correctional facilities, why are the mines doing the opposite and requesting more people to come back to work. She thought the regulations are being adhered to. The regulations require that there should be social distancing, sanitising and screening and testing and that quarantine facilities should be available at all these sites. She asked whether the MHSC has checked that all these mining houses are adhering to the regulations that are set out.

What is the stance of the Minerals Council on the positive cases reported in the industry? What are their mitigation measures to limit more infections?

Mr M Wolmarans (ANC) stated that from the Minerals Council part, there is a balanced feel as to where they are, what they have planned, and what they have executed with their members. They also mentioned some of the challenges which include the question of salaries of miners who worked for the first 21 days, but the major challenge was the applications for salaries in May. He wanted clarity in how far they were with the Department in that regard? He was aware that they mentioned that they will have challenges for June month end, but how far are they in that regard?

In terms of transport they are playing a very important part. Mr Wolmarans had the opportunity to make a turn at the offices of Teba in his area of the North West, especially Rustenburg. He could hear the correspondence and information that relates to people coming from outside of South Africa, from Lesotho or Mozambique and they were seized with it. However, in what they have presented and what the unions are saying there are some discrepancies that they would have to sort out. Most of the unions’ presentations circled around communication between the members of the Minerals Council and the employees. Some do not know where they stand in terms of their salaries and they do not know what is expected of them health wise and the communication with unions themselves. If the unions are taken on board in terms of planning and the entire communication, he requested that the Minerals Council talk to that part.

In terms of spacing which have been articulated by Solidarity, more especially from female mine workers. They found in some areas, like Impala there were protests around the actual spacing in the actual cages. How far have they gone to ensure that miners adhere to this requirement? Was it still a challenge? Some of the mines would not make the cage to go up and down the whole day in order to save on electricity. How far have the unions gone, to make sure that this requirement is adhered to?

He expressed some concern around the 50% recall by the mines. How long would this take? Would it go beyond the three months? What happens in the meantime? He noted the NUM raised an important point. The Committee would have to look into this. The communities are always having the problem of lots of communication towards the Department and no response back. It is now raised by the unions as well. It might be a problem in solving a lot of the other issues that are happening around the mining communities and the mines and the labour. He wondered if the Department could look deeper into the issue of non-response.

He thought the presentations were balanced in what they already knew, what they have seen on television and what challenges they have seen. He wanted to align himself with what Mr Mileham has said. After all the deliberations, what are they [the Committee] going to get out of this engagement?

Ms C Phillips (DA) addressed her first question to the Minerals Council. She wanted to check whether [the results of] tests that the mines are carrying out are automatically included in the provincial stats that are given out? If so, would it be possible to get a breakdown of tests that are carried out, which are carried out by the province or privately and which are carried out by mines? Her colleague Mr Mileham has covered her question as to what is hindering the restart up and growth of the mining sector.

She wanted to know if there had been any cases of reinfection - where someone recovered and then contracted the virus again?

Mr S Kula (ANC) noted that there was an issue raised by AMCU that there is not enough information given on the number of disinfections that happens around transport and accommodation of mine workers. He wanted to understand from the Minerals Council what is the difficulty in sharing this information with organised labour? In his view there should not be any difficulties.

The other concern was around the return of mineworkers. It was said that more than 3 500 workers will be returning from Mozambique and almost 8 000 from Lesotho. This is coupled with the expectation that we experience a peak in July/August and already they are facing challenges. How do they plan to handle this large influx of employees?

There was also an issue raised around the vulnerability of female workers in cages due to overcrowding. What was the Council’s plan in addressing this? He did not think that this should be tolerated, where female workers are placed at a vulnerable position in their workplaces.

He expressed concern that AMCU had noted shortages of PPE. What is the Council doing to address this particular concern? If they already have shortages of PPE and they are still expecting an influx of workers, there will be problems.

Another concern is workers coming from hotspot areas. There are reports that they are not being tested. He wanted to know from AMCU, how accurate are these reports and have they been verified? Another concern was the lack of healthcare for contract workers. What were the plans of the Council to address this challenge of neglecting contract workers? It might add on the increase of the infection rate in the mining sector.

There was a concern raised by NUM about the inability to observe social distancing in cages, which is in contravention of the regulations. What are the plans of the Council in ensuring that this problem is addressed? How can they welcome workers from other countries if they are unable to manage the issue of social distancing now? How do they plan to manage it going forward?

There should never be any ambiguity about what they say as a Committee. There are some amongst them who have an ill-conceived misgiving about opening up the economy. This remains but a mere minority view.

The Chairperson said that this matter will be taken up by the Committee. He wanted to clarify a few issues. At that stage there was no position [taken by the Committee] with regard to the presentations that were made. Members were just asking questions. They have to still discuss to all agree or disagree on the presentations. The Chairperson would give the answer toward the end, the answer cannot be from any one person in the Committee. It has to be from the Committee itself on how to handle to process going forward.

The Chairperson said he wanted to give his observations. He wanted to know why all the entities were so quiet on the role, mandate and intervention that is supposed to be done by the tripartite Mine Health and Safety Council, where all stakeholders are supposed to sit. Is there a problem? He thought by now they would get the report as far as each stakeholder was concerned. He did not think the mandate of the Health and Safety Council should be reduced to advising the Minister. He got worried when he did not receive the response as to what they do.

He did not get the sense that there had been serious interventions as to what role each stakeholder should play. How do they do monitoring of the implementation and compliance? What role does organised labour play in terms of monitoring compliance with all the requirements that have been set down?

What are the advantages and disadvantages of the 50% return to work, if the 50% return to work and there is no capping of production levels and profit margins? In terms of future projections, he wanted to understand how they will manage the 50% return to work?

Are pre-existing conditions of people returning to work taken into consideration? Or is it just a question of everyone should come back to work? It might be critical to consider this.

His last concern was the management of expanded or extended testing and screening plans. Is there an expanded or extended existing testing plan? This question was addressed to the Minerals Council.

Responses

Mr Baxter started off by answering the Chairperson’s questions. He stated that the Council is not quiet about the Mine Health and Safety Council, they did mention it in their presentation. They have had very active participation in the council with all the unions represented there. Lots of discussions are held on each of the different facets of how they manage these issues around standard operating procedures. Dr Balfour has been actively involved in the discussions that have been taking place there.

On the interventions around the different roles and responsibilities of the different people, the mines inspectorate and Chief Inspector of Mines, was listening in on the session. There has been a lot of activity in the mine inspectorate going out and inspecting mines and a number of unannounced inspections by the Chief Inspector and the Minister. They have been giving the Minerals Council feedback as to which operations have problems and which operations are doing well. It is important to know where the gaps are and the unions also need to play that role in feeding back where things are not working as well as they possibly should.

On the 50% return to work side, the challenge was that in large scale surface operations, they could have 50% employment back and they could be producing at 60% or 70% of production capacity. In the deeper level mining operations if they only have 50% employment they have a large number of people who are in all the ancillary services on surface, so you may end up with only having 30% of production crew in place. So even if they have 50% of their labour back, they only have 30% of production taking place. For many of the deep level operations like platinum and gold it is not viable for them. They are doing it in a phased manner as companies try to ramp up production because many of these companies particularly the deeper level operations literally have to operate for three weeks [of every month] just to break even with their cost structures given their large scale fixed costs. Gold mining is an example where fixed costs are 71% of the costs of those particular companies. Getting companies back to sustainable running positions is key and he can give the Committee a categorical input now. Bringing back some of the foreign migrant workers is a really important part of the equation of helping those companies because people from different areas have different sets of skills which they bring into the mining mix. Getting companies back to sustainable operating levels is needed in order to make them viable. This is not about chasing profits; this is about companies being viable.

The National Disaster regulations have indicated that people with co-morbidities should either be working from home or not be brought back from an exposure point of view. He is hoping that Dr Belfour and Mr Lesufi could better answer this particular question.

Mr Lesufi started with the foreign worker issue as to why they are bringing them back while there is a crisis in the making. The first point is when the lockdown was declared, all borders were closed. There was no access point for any foreign employees to come back. Because of the skill sets that some of the foreign workers have, the Minerals Council decided on a plan to have a phased return of the foreign work force in a very strict and coordinated manner. That is why they engaged the Department of Health early on. The principles of that engagement were that the workers were going to be screened in their home countries and when they arrive in South Africa they are going to be quarantined for fourteen days. Those are the conditions they will be complying with. So as soon as the go ahead is given for them to be able to come back they will be quarantined for fourteen days. But they will not be quarantined for fourteen days all at once because of the bottle necks at the borders. As he mentioned only 400 employees per day can go through the border post of Mozambique and only 390 per day can go through the border post of Lesotho. The return of these employees will be staggered over a fourteen day period. All the medical services will be provided at the quarantine facilities. The companies undertake on-boarding activities after those workers have been quarantined. There is no chance that the workers will bring back any problems.

Mr Baxter referred to the Chairperson’s mention of the testing sites and the management of a testing plan. They will come to back to the co-morbidities. From the mining industry’s side, they have to work within the national protocols. There is the National Institute for Communicable Diseases (NICD) Protocol on screening and testing and effectively you have to screen first if a person presents with any symptoms or if you suspect that they maybe Covid-19 positive or they have been exposed to someone. They then have to be tested and quarantined. Tracking and tracing around that person and anyone that may have been in contact with them is then tracked and traced and then obviously quarantined and tested at the same time. The challenge is that at the same time, the country itself has a significant shortage of test kits. The National Health Laboratory Service has a daily capacity of about 30 000 people. It has been getting up to 18 000 to 20 000 people a day, but there is a backlog. The private sector laboratories have about a 20 000 testing capability per day. From the mining testing side, when they do testing of employees it has been done through the private laboratory side as opposed to the National Laboratory side. There is a limit on the amount of tests that can take place on any day or in any given period simply because of the shortage of machines and test kits the laboratory services etc. We are all aware there are some constraints. From the mining industry side, they are doing the screening, they have screened 261 000 workers that have come back into the system. They have done just under 13 000 tests of workers that they thought may be symptomatic or may be exposed. The have also done some random testing, particularly if they are coming back from hotspot areas to also try and pick up cases. They try to manage it with the systems and national protocols the best they can. Just to highlight that they have been testing about 30% higher than the South African average test rate and they are doing it because they are using the private labs. At the same time there is a lot of cooperation between them and the National Laboratory Services and the NICD. This is an area where they are trying to do as much as they can, working with local, provincial and national departments of health in how they manage the particular programme.

In response to the question as to what they are doing as the Minerals Council, they have a Health Policy Committee in place with a lot of sharing of information and understanding of protocols and they are trying to escalate where possible where companies have the capability of testing not only in the labour force itself, but also in communities.

On the recovery of the mining sector, the country’s economy was in crisis even before Covid-19. There is a whole set of structural constraints. There was already a degree of a fiscal crisis with debt levels approaching 60% of GDP, very low levels of growth, investment sitting at 19% of GDP which is very low compared to where it should be, and an economy that over the last ten years have grown at an average of less than one and a half percent a year, which is not even at South Africa’s population growth. Mining remains a key sector for the economy. Again there have been a number of constraints. Electricity supply has been a massive issue. Probably 3% of South Africa’s production in 2019 was lost due to load shedding. That 3% makes a very big difference as to whether mines remain viable or not, particularly for marginal companies. Reviewing some of the constraints that the mines are currently facing, electricity supply is no longer as big an issue. A lot of work has been done within Eskom to help solve a number of the challenges. The Council have a lot of engagement with Eskom and with the DMRE on the energy side. That has become less of a constraint although it remains a risk. There has been a problem on the pricing side, where prices have gone up enormously and that has a big impact on the alloy industry. Mr Baxter said his colleagues from the trade unions mentioned their concerns around the section 189 notices that they are seeing in the smelting industry. From a pricing point of view some of the companies are no longer viable in terms of being able to produce ferrochrome in South Africa. In the immediate term it is about getting companies, particularly the deep level operations to sustainable operating levels. That means getting workers back in a phased manner and doing the proper screening and testing. It means ensuring that they have all the PPE in place. It means checking that they are following all the necessary statutory and their own self-imposed protocols to help manage the situation. Then there are a number of other constraints. Even if they could produce 100% they cannot export 100% of what they produce because there are constraints on the Transnet side. They have various challenges which they are dealing with. The Council are hoping that by the end of the year large portions of the sector will be back up to where they were almost pre-Covid.

In response to Mr Mthenjane’s question, the Mineral Council represents the companies responsible for more than 95% of the value of mineral production in South Africa. They do represent the interest of their members. They operate on a mandate from their members. They are not here to serve the interest of capitalism. Their members are mining companies. They work with them to try and help them be viable and to grow their investments in South Africa—to help grow their economic contribution in South Africa. The country gets a huge amount of the benefit from mining activities. The challenge here is that if mines are not operating, people are not going to get paid and a number of companies are going to close down. So saving lives and saving livelihoods by putting in place all the right preventative controls is very much what they are doing from the Minerals Council’s side.

In terms of the increasing number of infections, if they saw the same level of testing in any other sector in any of the provinces, they would see a similar prevalence rate. The fact that the mining sector is doing a lot more testing that many other sectors is due to the fact that their systems are working. They are doing the screening and testing and that is helping them understand the scale of the challenge. This is not about putting lives ahead of profit, it is about putting livelihoods and lives together. Because the real concern that South Africa faces going forward is that they have already lost a million jobs in the economy. If they do not get the economy back and working, up to three million jobs could be lost. That will add to the already ten million people that are unemployed. This will have a huge impact from a poverty perspective and clearly from a hunger perspective.

In terms of medical aid, the industry does have a comprehensive health care system in place. They have done a lot of work in the last twenty years in terms of managing the health care of their workforce. Last year the mines tested 90% of their employees for TB, and he was very pleased to inform the Committee that their TB prevalence rates are lower than the national average. That has been because of the significant effort that they have put into the process. Some employees have medical aids while some other do not. Some of those who do not have medical aids are accommodated through the health care systems that the industry provides. They are using the well-developed healthcare infrastructure of the mines to help manage the pandemic the best they can. There are various complaints from various workers, but it is important not to tar the whole industry with the same brush. Saying that they are getting complaints, it is not the entire industry that has challenges. Most of the companies are complying with the requirements. They are being inspected by the mines inspectorate and where there are gaps those can be brought to the attention of the DMRE. The inspectorate is doing their job, in the view of the Minerals Council.

He believed that the point being made that mines are not ready is a generalisation. The Council think that the mining industry is much better prepared than any other sector in the economy. Yes, there will be gaps here and there, but in general the industry has done a lot of work to ensure that it is prepared. And lots of work being is being done in the communities.

The Council have surveyed their members to see who might be short of PPE and are not aware of any of their members having shortages. If the unions want to bring to their attention mines which they think are not complying, they can do so. From the social distancing side of the rules, they have seen a de-densification of all mining areas including lift cages. There has been a 30% reduction of capacity in lift cages and a lot of the companies have done the work. Where they have de-densified lift cages, one of the crucial points there is making sure that people have the right PPE, so that they do not get infected even if they are amongst people who may be infected in lift cages.

In response to Ms Malinga’s question on rising infection rates, Mr Baxter said that there will be rising infection rates across the country as a whole. In mining their systems are working. The screening and testing systems are working. The quarantine and tracking and tracing systems are working. The industry is well prepared and they are implementing the standard operation procedures.

In response to Mr Wolmarans’ question, Mr Baxter said that, indeed there are many different challenges that the mines are facing. There are some challenges that Mr Motlhamme can address, but he did not think that they will have enough time and suggested that maybe they respond with a written input. In particular, about funding and the unemployment insurance. The Minerals Council delegation has taken on-board the comments on the communication issue and will refer it back to their members.

In response to Ms Phillips’ question, Mr Baxter said the tests that the mines do are incorporated into the National Health Care data when this is captured. There is a daily report which comes out on the Minerals Council’s website which lists the number of infections in the sector. As of the previous day they were sitting at 1 229 positive cases while they have tested 12 853. They have not been aware of any cases of reinfection. What has been interesting has been the number of asymptomatic cases that they have picked up in the system. But again, that just demonstrates that the mines’ systems are working. They certainly have not felt that the DMRE are absent. The DMRE are active in the mines inspectorate and the Council has engagements with the Minister, Director General and the senior team at the DMRE.

In response to Mr Kula, it is impossible to test every worker coming back. They are certainly screening every worker and then they test them if necessary based on the NICD protocol. Contract workers are treated exactly the same as permanent employees, they do not see a gap there. The return of foreign workers is done in a phased manner. Workers are screened before being transported by the companies and mines are managing this carefully. The systems are working and they are working closely with their partners and unions to manage this to best they can.

Mr Stehring responded to Mr Mileham’s question. In the mining industry there are two pieces of legislation. There is the Minerals and Petroleum Resources Development Act (MPRDA) and then then there is the Labour Relations Act (LRA) that deals with the labour relations issue. There is a situation with retrenchments, that section 189 of the LRA takes precedence over the MPRDA. They are trying and asking companies not to proceed with section 189 notices and the retrenchments. However, when they end up at the CCMA, the CCMA proceeds in terms of the LRA, that is in terms of LRA section 210 [which says that the LRA supersedes all other legislation in respect of labour issues]. It was the situation with Kangra Coal. The Minister requested that the company withdraw the section 189 notice and they did so. Kangra are waiting [out] Covid as per the Minister’s request. However, if they look at the situation in terms of Village Main Reef they are carrying on with the section 189 process and that is based on the fact that the courts have ruled – in the light of LRA section 210 - to say that the LRA takes precedence over any other Act except for the Constitution.

Mr Mileham requested clarity as to exactly what section of the MPRDA was being effected? Where was the conflict between section 210 of the LRA and what section of the MPRDA?

Mr Stehring stated that it was in terms of section 52 of the MPRDA and it refers to the fact that the companies need to report [any likely large scale retrenchments at a mine] to the Minerals Board and to the Minister.

The Chairperson asked if they could move on and deal with that issue later when they suggest what needed to be followed up.

Mr du Plessis replied to Mr Wolmarans’ point. When it comes to social distancing in cages, currently in general they are satisfied with compliance, but they do not want that to be an interim measure, but rather that they want it to be the new normal. That is something that they will drive to have implemented.

In response to the Chairperson’s comment on trade union involvement with compliance issues, the codes of practices and regulations in terms of emergency measures make one individual per company responsible to report to. Now in Covid-19 there are provisions for teams. The mines have all implemented Covid-19 task teams consisting of representatives from all the various trade unions and also management - mainly health and safety specialists. The role of the task teams is to do the screening and monitoring outside and inside the workplace. They report all the matters of non-compliance with social distancing, not wearing masks etc. This is an onerous task, because there are management representatives that have to report managers and trade union representatives that have to report fellow workers [for non-compliance]. The task team then has to deal with the disciplinary matters. They go back to the camera surveillance and monitor the camera records to confirm if there was non-compliance. It is a fairly comprehensive process, but it obviously differs from mine to mine.

All the unions are actively involved in the Mine Health and Safety Council. Since they are so involved they did not deem it necessary to report on the matters there because the Department plays the leading role there. It was the Mine Health and Safety Council that was responsible for the drafting of the guidelines, which were then debated, redrafted and issued. The MHSC does play an active role, and from a union perspective that is the platform that they use to hold the industry responsible for non-implementation or breaches of practices or guidelines. The MHSC plays an active role in ensuring compliance. The platform is also there for discussing new matters and the unions have tried to be proactive.

Mr Bokoloshe said that he will respond to the question as to what they are doing if there is non-compliance. They wrote several letters to the employers as AMCU and they did inform the DMRE about some of the mines.

Mr Grant clarified Mr Kula’s question regarding reports from hotspots and how reliable these reports are. The point they were making was that they were concerned about the agility and ability to react to when an outbreak occurs. They were not saying that they were receiving reports from hotspots. He also spoke to the non-complaint mines question. They have been writing letters to the non-compliant mines. The have a very extensive system where they contact the mines and inform the DMRE.

They are actively engaging at the Mine Health and Safety Council. They have looked at different forms of testing such as randomised testing or targeted randomised testing because they have these constraints. They do need more testing especially now that they will have a more mine workers coming back. It will increase, but there is a real danger of the infection spreading to nearby communities.

In terms of monitoring and compliance, as AMCU, for a lot of the processes that they follow, they track the reports right down to branch level to see what is at issue and they then communicate it to the Minerals Council and the mines. One of the issues they face is getting communication back from them. They would like to request from the Minerals Council directly more open communication and that they tackle the challenges together.

Mr Sipunzi responded to Mr Mileham and explained what steps they have taken in terms of dealing with non-compliant mines. They engage with mines. As they were speaking , NUM is in engagement with a company in the coal sector. For example, people are having to work from home and getting a fraction of their salary. They are engaging on that and they do not agree. They are saying that person is working, even if it is from home. NUM believes in engagement. People can criticise them for being too patient, but as far as Covid-19 goes they are not compromising on their engagement.

Mr Mabapa noted that it was interesting that a parliamentarian said that they [NUM] should take Parliament to court. He asked why are parliamentarians are not doing their job? So that the union does not have to take them to court. He was asking why? When they look at the regulations, the regulation was talking about 50% at level four but at level three it was unclear. Companies can scale up to 100%. The regulations do not have clear guidelines as to what needs to be done. The regulations are done by the Department and the very same Portfolio Committee is responsible for the Department. What have the Committee done with the flaws that are in the regulations as the Committee? Before they want NUM to take them to court. The Committee is too afraid to go to the Department and say that there are flaws in the regulations and that they are causing problems. If the Committee engages with NUM, they can point out the flaws to the Committee. They can point out the misinterpretations, where even inspectors misinterpret the regulations. For example, one of the critical issues is that the regulations do not force payment. The labour unions worked very hard to force employers to pay. Many employers said that they were not going to pay, but then the unions forced them to pay. The flaws are there. The regulations do not force the mines to pay.

There is a serious problem if the Committee wanted to tell the unions that they do not know [about the conflict] between section 52 of the MPRDA and section 189 of the LRA. Those are the two sections of law that if truly speaking are contradicting each other. Employers run to section 189 because it is very simple and straightforward. They would issue section 52 and section 189 notices simultaneously. They will run will section 189 even when the section 52 process is not done. When Anglo wanted to retrench 14 000 employees, they went to court, but the court made a ruling that section 189 can run without impacting section 52. Companies do not conclude the section 52 of the MPRDA process, but they run to section 189 [of the LRA]. In 2015 there were a lot of section 189 [notices issued by mines]. There was a proposal that MPRDA section 52 must first be completed before a company can issue an LRA section 189 notice because it is at MPRDA section 52 where there is a lot of power to stop retrenchments. The unions have made a lot of noise; they have gone to NEDLAC. What has the Committee done? Companies just run to section 189 and by law there is no way to stop section 189 with section 52.

Mr Mileham raised a point of order. He clarified that the question he asked was what was the conflict between MPRDA section 52 and LRA section 189. As he saw it there was no conflict, they have to both be done. It was unacceptable for a guest of the Portfolio Committee to come and say that the Committee are not doing their job and that they do not know what they are doing. It is unacceptable. He asked what the conflict was and that was a perfectly reasonable question.

The Chairperson said the Committee had got the information that they needed from the presentations, but he also felt that he needed to clarify some points. He noted that section 52 of the MPRDA states that where prevailing economy conditions cause the profit to revenue ratio of the relevant mine to be less than 6% for a continuous period of five months or if any mining operations is to be scaled down or cease with the possible effect that 10% or more of the workforce or more than 500 employees (whichever is the lesser) are likely to be retrenched in any twelve-month period. This is an operational matter specifically relating to a specific workplace and if there is a proposal for an amendment in law it must be able to be tabled and be dealt with. The issue that was raised by UASA was to request a Committee of Parliament to also look at the possible conflict of the two sections. Should section 189 of the LRA simply be prioritised at the expense of section 52 of the MPRDA? That is what the Chairperson thought UASA was saying. The LRA falls squarely under [the portfolio committee on] labour and employment, but could this Committee look at it?

His understanding was that there was a statement by NUM that despite all these issues being raised that there has been no decisive action. The Chairperson understood that Mr Mthenjane said they have seen that AMCU have taken the Department to court when they were not satisfied by the process that had been followed. He did not say that the regulations were wrong or that the Committee should be taken to court.

It must be clear that no Portfolio Committee, especially the Portfolio Committee on Mineral Resources and Energy, is part of any NEDLAC process. The primary mandate is accountability. They have already invited the Department and they made a presentation and they then invited the Minerals Council. The Committee decided to be fair also invite the [labour] sector otherwise they will only come in August and their effective input will not assist the Committee.

The Chairperson noted that they still have outstanding minutes for adoption. The Committee had said they would leave consideration of the minutes until they get clarity on the Department’s strategy or approach in terms of Covid-19. He suggested that when they consider those minutes, they can have a discussion under matters arising as to what they want to see as the way forward.

In the meantime, the Committee will look at possible areas that can be considered. There is still an outstanding matter of the oversight that has been postponed. Amongst other things there is the question of whether to prepare a report that will be taken to Parliament which can be owned as a report of Parliament with regards to Covid-19.

Linked to that is the question that Mr Mileham has raised with regard to the challenges for the recovery of the sector post Covid-19. One of those issues would be to have a discussion on the experiences of Covid-19 and see if there is a possible conflict of legislation. Lastly on potential job losses they must look at general agreement. His view was that they could talk about the MPRDA and the LRA. They must also understand that there is a principled agreement of the sector to mitigate job losses. They must also look how far that has been implemented.

The Committee can deliberate on the issue when the minutes of the present meeting are considered. He requested that members keep their notes from today for the next meeting.

The Chairperson adjourned the meeting.