Sections 22 and 23 of the MHSA: what every employee must do, and when they may walk away

Section 22 of the Mine Health and Safety Act (MHSA) places six duties on every employee at a mine: take reasonable care of your own health and safety, take reasonable care of others, use and look after the protective equipment you are given, report promptly any risk you cannot deal with yourself, cooperate with the people who carry duties under the Act, and comply with prescribed health and safety measures. Section 23 gives every employee the right to leave a working place when circumstances give them reasonable justification to believe it poses a serious danger, or when the health and safety representative directs them to leave, and it obliges the employer to determine, after consulting the health and safety committee, a procedure for how that right is exercised and resolved. The employer's duties under sections 2 to 21 get most of the attention. Sections 22 and 23 are where the Act reaches the individual at the face.

This post covers what each section says, what the words mean on a working shift, and the records a mine should be able to produce for both.

Section 22 and section 23 at a glance

What is section 22 of the Mine Health and Safety Act?

Section 22, headed "Employees' duties for health and safety", applies to every employee at a mine, while at that mine. The six duties, in the order the Act lists them as 22(a) to 22(f):

1. Take reasonable care to protect your own health and safety.
2. Take reasonable care to protect the health and safety of other persons who may be affected by anything you do or fail to do.
3. Use and take proper care of protective clothing and equipment and any other health and safety facilities provided for you and for others.
4. Report promptly to your immediate supervisor any situation you believe presents a risk to your health or safety or anyone else's, and which you cannot properly deal with yourself.
5. Cooperate with any person so that they can meet the duties and responsibilities the Act places on them.
6. Comply with prescribed health and safety measures.

Two of these matter most for day-to-day records. Duty 4 is the legal root of hazard reporting: the employee is obliged to report what they cannot fix. Duty 3 is why the issue and condition of protective equipment is worth recording per person rather than per store.

What is section 23 of the Mine Health and Safety Act?

Section 23, headed "Employees' right to leave dangerous working place", gives an employee the right to leave any working place whenever:

• 23(1)(a): circumstances arise at that working place which, with reasonable justification, appear to the employee to pose a serious danger to their health or safety; or
• 23(1)(b): the health and safety representative responsible for that working place directs the employee to leave. Section 30(1)(b) gives the representative that power.

The right belongs to the employee. The test is reasonable justification as it appeared to that person at the time, not whether the danger is later confirmed.

Section 23(2) then turns to the employer. After consulting the health and safety committee, the employer must determine effective procedures for how the right is exercised. Those procedures must provide for:

1. Notifying supervisors and health and safety representatives of the danger that was perceived and responded to.
2. Employer and employee representatives taking part in resolving any issue the withdrawal raises.
3. An inspector or technical adviser taking part, where necessary, to help resolve it.
4. Assigning suitable alternative work, where appropriate, to an employee who left or refuses to work in that place.
5. Telling any employee who is asked to work in that place that another employee refused to work there, and why.

If the mine has no health and safety committee, section 23(3) says the employer consults the health and safety representatives, or the employees where there are no representatives. Section 23(4) has the Minister set minimum requirements for these procedures by notice in the Gazette.

Section 83 of the Act prohibits discrimination against an employee for exercising a right the Act grants. A withdrawal under section 23 is one of those rights.

What does this look like on a shift?

A crew member sees a hanging wall condition they do not like and stops. Under section 22 they must report it to their immediate supervisor because it is not something they can deal with. Under section 23 they may leave the working place, and the health and safety representative may direct the whole crew out. The supervisor and the representative are told, employer and employee representatives work on the issue, an inspector or technical adviser is brought in if they are needed, the ground is made safe or the crew is given other work, and anyone later sent into that working place is told that the crew refused it and why.

Nothing in that sequence is complicated. What goes wrong in practice is the record: the stop is not written down, the alternative work is not noted, the next crew is not told, and six months later nobody can show that the procedure was followed.

What records should a mine be able to produce?

For section 22:

• Hazard reports from employees, with who reported, when, where and what was done. On paper these live in a book at the waiting place; the useful version is a near-miss or observation record with a photo and a tracked corrective action.
• Protective equipment issue records per person, with condition and replacement.
• Training and induction records showing the employee was told what the prescribed measures are. Section 10 of the Act carries the employer's training duty.

For section 23:

• The procedure itself, the committee consultation that produced it, and evidence that employees were told about it.
• A record of each withdrawal: who left, why, who was notified, how it was resolved, and any alternative work assigned.
• The notice given to anyone later asked to work there, saying that another employee refused and why.
• Any inspector or technical adviser involvement, and what they advised.

The legal register template is a place to list these obligations next to the sections they come from, and the toolbox talk record is where the briefing on the procedure gets signed for.

Where can I read the full text of sections 22 and 23?

The consolidated Act is published free by SAFLII, the Southern African Legal Information Institute, both as a web page and as a PDF. Sections 22 and 23 are in Chapter 2, straight after the employer's duties. The Mine Health and Safety Council publishes the Act with its regulations. Check the amendment notes when you read it: section 23(2)(d) was substituted in 1997 and section 23(4) was added in 2008.

Where Inspecable fits

In Inspecable, a worker records a near miss or observation on the Android app with photo and video, offline, and the supervisor turns it into a corrective action with an owner and a due date. The section 23 procedure is kept as a document with versions, and each employee's read-and-acknowledge is recorded against the version they read. The legal register is seeded with MHSA obligations, so sections 22 and 23 sit beside the evidence that shows them met. For the Act as a whole, start with the complete guide to MHSA compliance.

To see it on your own procedure, start a 14-day trial on the Safety & Compliance edition, or book a 30-minute demo.