World Leader in Pla tinum What are the legal implications ...a highly male dominated activity and...

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World Leader in Platinum

Pregnancy at Work

Legal, ethical and physical implications

Lettie La Grange


What are the legal implications?1. Constitution:

– “9(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic and social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth”

– “22 Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law.”

– “23 (1) Everyone has the right to fair labour practices.”


2. Employment Equity Act (EEA)

• Section 6 of the EEA prohibits unfair discrimination as follow:– “No person may unfairly discriminate, directly or indirectly,

against an employee, in any employment policy or practice, on one or more grounds including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth”.

• Section 6(2) of the EEA provides a defense to a claim of unfair discrimination, namely:

-- the distinction, exclusion or preference of any person on the basis of an inherent requirement of the job.


3. Basic Conditions of Employment Act 75 of 1997 (“BCEA”)25 provides that a pregnant employee is entitled to at least four (4) months’ consecutive maternity leave.

“26(1) No employer may require or permit a pregnant employee or an employee who is nursing her child to perform work that is hazardous to her health or the health of her child.”

• “26(2) During an employee’s pregnancy, and for a period of six months after the birth of her child, her employer must offer hersuitable, alternative employment on terms and conditions that are no less favourable than her ordinary terms and conditions of employment, if:

• (a) the employee is required to perform night work, as defined in section 17(1) or her work poses a danger to her health or safety or that of her child; and

• (b) It is practicable for the employer to do so.”


4. Code of Good Practice on the Protection of Employees during Pregnancy and After the Birth of the Child.

It is clear that the employer is obliged to take responsibility for the health of the employee in these circumstances. The employer may not allow an employee to work within an area where there are risks to the foetus, the unborn child or the employee herself. In terms of Section 26(2) of the BCEA the employer must offer alternativework if it is practical to do so.


5. Mine Health and Safety Act 27 of 1996 and the Occupational Health and Safety Act 85 of 1993

• The employer is also required to provide and maintain a work environment that is safe and without risk to the health of employees. This is broad enough to include risks to the reproductive health of employees. Risk assessments need to be done.

• The RISK of exposure needs to be assessed through risk assessment of all specific jobs in the process division to determine what is potentially hazardous to the health of a pregnant worker or a worker nursing a child. Such work could be detrimental to the health of both the pregnant worker and her unborn child.

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What are the Ethical implications?• Looking at it from different perspectives


“is it a boy(XY) or a girl(XX)?”

Social, Societal, Economic, Cultural,Ethnic, Perceptual, Issues around gender job or

role stereotypes

Will we ever get to equality??


Men are different from Women.

That would seem to be self-evident. They are different in aptitude, skill and behaviour, but then, so is every individual

person. So why do we make such a fuss about it?

Well, why not?

Women are very different from men physically and biologically, and pertinently in one specific aspect - namely that they can fall

pregnant and thus become two people that must be considered, the mother and the baby with very specific risk factors


Dilemma• Most women can continue working during pregnancy. How long

depends on the nature of the job and personal risk for medical or obstetric problems.

• OH –concerns are around biological and physiological issues arising out of pregnancy and interacting with workplace hazards and risks

• BUT – is this what we are achieving?

OH is primarily focused on PROTECTING the individual

and NOT discrimination


Women’s rights in general compromised-aggravating pregnancy discrimination

• Access to jobs:– Discrimination based on marital status, such as in agricultural

sector in SA. Married women farm workers, for example, denied employment contracts in their own names, such that their jobs are dependent on those of their husbands. Women farm workers' access to housing also determined by their relationship to a man.

– Until 1997 women were prohibited from working underground in mining in SA and most of the world (ILO Convention)

• Socio-economic: – Women often paid less than their male counterparts for the same

type of work or work of equal value, reinforcing their economic dependency on men, making women more vulnerable to violence in their homes, workplace and farms.

– Pregnancy aggravates economic impact due to unpaid maternity leave etc


Unfair labour practices at Work:

In 2005, 4,449 pregnancy discrimination charges were filed with the employment federal commission's regional attorney in New York related to unlawful dismissals either during a pregnancy orimmediately after returning from maternity leave

A survey in the United Kingdom found that roughly 30,000 pregnant women, or 7 percent of the total number of pregnant women in the work force, lose their jobs every year and five times that number are harassed or suffer financial loss. Only 3 percent of women who encounter problems take their cases to a tribunal.

Is OH partisan to such unfair discrimination?

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• Many transnational corporations still require women to undergo pre-employment pregnancy testing, with the aim of denying pregnant women work.

• Women's reproductive functions perceived to be in the way at work,

• In many instances stated in policy documents that women workers have an obligation to inform their employers of their pregnancy status.

• IS THIS GOOD OR BAD?

• How morally and ethically defendable are your decisions?


Are any of you partisan to the following?

• Denying employment because of pregnancy?• Terminating employment because of pregnancy?• Denying promotion because of pregnancy?

Then you seriously need to review on what basis, what intent, how fair that is and most importantly how pregnancy and employment benefits (pay, maternity leave, pension, medical) are managed in your workplace?

Employees have full right to be informed, trained and participate in decisions affecting their health, their pregnancy and all socio-economic impacts consequent to falling pregnant.

Genetic counselling and family planning services must be available


Women miners underground at AmandelbultOn the left is Sonia Matcharo a loco driver and Cecilia Duduzile a boilermaker2004

1st Principle: Health and Safety will not be compromised


1.Health must be protected– Physical (Lifting heavy loads (pre-term birth), Vibration, heat, cold, noise, ionizing radiation);– Ergonomic (Physically strenuous work, prolonged sitting or standing or physical & mental

strain);– Chemical (Gas - Carbon monoxide, liquids, solids such as lead (infertility, teratogenic, pass

to infant through breastfeeding), mercury, organic solvents, tobacco, alcohol, herbicides, pesticides); and

– Biological ( Hepatitis, HIV, TB, Toxoplasmosis, brucellosis, rubella, chickenpox etc) hazards

2.Safety –injury must be prevented– Heat tolerance

• health risk but also safety risk– Impaired work capacity and errors of judgment

• Unfit or unable to perform specific job exposes individual and pregnancy to harm– Physical ability

• Lifting of heavy goods- back injuries, pre-terminal labour etc

What are the physical implications?


• Mining was a male dominated industry and hostile to women’s participation in work

• Women were rarely employed in mining as it was considered to be a highly male dominated activity and women were considered unfitfor the hard labour of working in the mines.

• Most of the jobs of women on mines related to either administrative or to menial lower rank activities like sweepers, cleaners or attendants in the mining offices.

• The PPP available were unsuitable for women posing significant risk of workplace injuries to women.

• Women's workplace health problems are frequently compounded by getting more of the same at home - the "double jeopardy" of domestic work, which can mean a second shift of lifting, responsibility and chemicals topping of those experienced all day at work.

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Riah Maphanga works in the laboratory at the Modikwa platinum concentrator

2nd Principle - safe placement of women prior to pregnancy

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1.All jobs were specifically assessed for risk for women and suitable jobs identified2.By doing individual physical assessmentsit is ensured for starters that there are no healthor physical constraintspresent when employing the person, minimizing risk when pregnantand until disclosedto employer

Categories

Type of work

Criteria

Cat A

Manual material handling: Consists of 34 - 66 % of the work shift (daily exposure) Work environment: Manual material handling takes place in restricted work environments (ceiling heights of 0.850 m - 1.5 m) Heat exposure: Daily exposure to high environmental heat loads for more than 34 % of the work shift Production / non production related: Work tasks are imposed by a process (directly linked to production)

Cat B

Manual material handling: Consists of 34 - 66% of the work shift (daily exposure) Work environment: Manual material handling takes place in unrestricted work environments Heat exposure: Daily exposure to high environmental heat loads for more than 34% of the work shift Production / non production related: Work tasks are imposed by a process (directly or indirectly linked to production)

Cat C

Manual material handling: Load handling consists of less than 34% of the work shift on a daily basis or more than 34% of the work shift on an occasional basis Work environment: Unrestricted work environments or supervisory work in restricted work environments Heat exposure: Occasional exposure or daily exposure in case of supervisory work Production / non production related: Work tasks are indirectly linked to production

Cat D

Manual material handling: Load handling consists of less than 34% of the work shift - occasional load handling Work environment: Unrestricted work environments and or occasional exposure to restricted work areas Heat exposure: Occasional exposure Production / non production related: Work tasks are indirectly linked to production

Cat E

Manual material handling: Load handling limited to loads of up to 10 kg, occasional exposure Work environment: Unrestricted. Work tasks take place in a seated/standing work position for 50 % of the work shift

Very heavy

Heavy

Moderate

Light

Sedentary


Physical HazardsBody Mass Index of Females tested

26

3733

2.4

0

10

20

30

40

50

OBESE OVER WEIGHT NORMAL UNDER WEIGHT

BMI Catergories

Per

cent

age

BMI = mass/height2

Result Interpretation Description

< 15 Emaciated Unsuitable; temporary withdrawal of certificate of fitness

15 - 19 Underweight Suitable with no medical contra-indications

20 - 25 Normal OK

26 -29 Over weight Warning

30- 35 Obese (overt risk factor) Suitable with no medical contra-indications

> 35 Exclusion Unsuitable; temporary withdrawal of certificate of fitness pending an acceptable BMI


FWC ASSESSMENT-LOAD HANDLING CAPACITY

06.5

50

27.1

16.6

0

10

20

30

40

50

60

A B C-UPPER C-LOWER DCATEGORIES

Per

cent

age

Physical Hazards

A = Above average performanceB = Average performance (safe and productive)C+ = Potential but requires conditioning (will not be productive initially)C-- = Marked endurance limitation, could be at riskD = Incapable to perform the task safely.

FWC=Functional Work CapacityLoad of 25Kg

women


Comparison of initial overall pass rates between males and females

RFAC Pass rates

0102030405060708090

100

Lebowa Union Amandelbult RPM

perc

enta

ge

males

females


Female test outcomes according to the type of physical jobs recommended: a comparison

between 2005 and 2006.The % females recommended for different types of physical

work according to PWC test outcomes

8% 6% 8%17%

61%

10% 8% 11%

27%

45%

0%10%20%30%40%50%60%70%

Very heavy Heavy Moderate Light Sedenatry

Type of occupations

%

2005

2006

On average a 16% increase in female pass rates were recorded during 2006compared with the 2005 test outcomes.


Prevent exposure prior to falling pregnant

Depends on nature i.e. MDR TB, Hepatitis etc.

Infectious diseases

Prevent exposure prior to falling pregnant

Largely dependant on the nature of teratogenicity or toxicity

Hazardous chemicals, gas, dust, fumes, radiation,

Reduce, stop at 20 weeks

Depends on fitness. Risk of impaired fetal growth,Higher risk of carpal tunnel syndrome

Heavy labourShift work

ExcludeHypotension, risk to fetus, risk of preterm labour

Heat

20 weeksSpinal, joint, vascularLift heavy objects

20-24 weeksBalance, ergonomicsClimbing and ladders

20 weeksErgonomics, vascular, falling, balance, cervical insufficiency

Stooping and bending below knee level

24 weeksVenous, spinal, foot problems, risk of pre-term labour, cervical insufficiency, pre-term labour

Standing for a long time

RecommendedRisks

Common risks and recommended time of withdrawal

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Concentrators Reagent handling and mixing areasCrushers & screening

XanthateBetafrothRelated by-product such as CS2Slip & fallWhole body vibration (crushers)

No pregnant and breastfeeding female employees to be allowed in stated areas

Smelters(Waterval, Polokwane & Mortimer)

Furnace areasConverting areasFlash DryersAcid Plant

DustSO2Other emissions for operations such as CTPV


RBMR MC PlantNi/Cu TankhouseCobalt Plant

Various chemical exposure, incl. nickel.Slip and fall


PMR Level 2&3 Various chemical exposure

No pregnant and breastfeeding female employees to be allowed in Level 2&3 production areas of PMR

Research Laboratories

Fire assay Lead No pregnant and breastfeeding female employees allowed in areas where fire assay tasks are undertaken

No pregnant employee allowed to workBreastfeeding - allowed provided no chemical risk

All underground defined as risk work by DME

ALL jobsUnderground

Extract from Anglo Platinum’s operations’ risk assessment


3rd Principle: Reasonable Accommodation for Pregnancy


Challenges• There is a duty of care to provide a safe system of work to

woman of reproductive age, their unborn children and all working mothers who are breastfeeding

• At the same time the right to equal opportunities and fairness must be recognised.

• Employment of woman in their productive years requires specific action to ensure that there is no significant risk of exposure that may effect reproduction, health and safety before and during pregnancy, the unborn child as well as mother and child during breast feeding.

• Any work where there is exposure to physical, chemical, ergonomical or biological hazards must be considered potentially dangerous to the health of woman and determined by specific risk assessment.

• The potential of exposure to hazards at the workplace in process division poses specific risks to women

• All jobs need to be specifically risk assessed for pregnancy


• There are no barriers to the employment of women provided –– Inherent H&S requirements of the jobs are

met;– Risks attached to pregnancy are identified

through specific risk assessment;– Reasonable accommodation for pregnancy is

done, taking note of pregnancy complications; and

– Socio-economic impact challenges are addressed


4th principle: Address socio-economic impact as far as reasonable practicable

World Leader in Pla tinum What are the legal implications ...a highly male dominated activity and...

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