Draft regulations for hazardous chemical agents issued by the government affect the fundamental rights of farmworkers and other farm dwellers, who are routinely exposed to high levels of toxic pesticides, particularly on wine and fruit farms. (Waldo Swiegers/Bloomberg via Getty Images)
Draft regulations for hazardous chemical agents issued by the government affect the fundamental rights of farmworkers and other farm dwellers, who are routinely exposed to high levels of toxic pesticides, particularly on wine and fruit farms.
This is the contention of a coalition of farmworker trade unions and civil society organisations, which have rejected the department of employment and labour’s
draft regulations on hazardous chemical agents under the Occupational Health and Safety Act.
Thembelani Nxesi, the former minister of employment and labour, published the draft for public comment on 5 April.
The coalition said the rights affected were the rights to fair administrative decision-making, democratic participation and a safe and healthy environment.
In their joint submission to the department’s director general, the African Centre for Biodiversity, the Commercial, Stevedoring, Agricultural and Allied Workers Union, the Women on Farms Project, the Ubuntu Rural Women and Youth and the UCT School of Public Health, among others, rejected the notice and comment procedure.
This included the requirement that they submit comments on the draft regulations in the prescribed format, because this was “procedurally unfair” under the Promotion of Administrative Justice Act. The minister and the department are required to hold public consultations with farmworkers, other people working and living on farms and in adjacent areas.
“Public consultation with farmworkers, including seasonal workers and farm dwellers is thus indispensable and will go a long way towards recognising and acknowledging not only the technical nature of these regulations, but, more importantly, the widespread non-compliance with South African occupational health and safety legislation and chronic lack of enforcement.”
Repeal of 2021 regulations
On 3 March 2021, the minister issued regulations for hazardous chemical agents to align with global practice under the United Nations Globally Harmonised System (GHS), which replaced the previous 1995 regulations.
These regulations decreed that labels and safety data sheets of pesticides must follow a standardised approach in communicating the hazards of the chemical. Hazards associated with a particular chemical, their nature and severity must be communicated through several mediums, including hazard statements, pictograms and signal words on both the label and the safety data sheet of the product.
“In a nutshell, these regulations provide for new safety obligations, chemical prohibitions and classification and labelling requirements, and were meant to come into effect and be implementable in September 2022,” the submission read.
“They require employers/farmers to assess the risk of any chemical agent used at a place of work, to put in place measures to control the risks associated with those chemicals, and to provide information and training to workers who are handling chemicals.”
Eighteen months after the regulations came into effect, the department published its new draft regulations. The intention is that they should repeal the regulation of hazardous chemical agents of 29 March 2021 and its amendment of 29 April 2022, among others. This would occur 18 months after the date of enforcement.
“The 2024 draft regulations comprise 22 pages of proposed new provisions, three annexures comprise 46 pages of tables, containing highly technical information relating to countless chemicals, and annexure four, which provides a link to draft hazardous chemical agent guidelines, comprising a further 27 pages.
“We have thus been required to comment on 95 pages within 90 days by way of a notice and comment procedure and then too, only in a prescribed format and in writing.”
‘Pesticide treadmill’
Any regulations that make it compulsory for an employer to provide a worker exposed to hazardous chemicals and pesticides with protective clothing and information will “continue to be flouted by employers”. Further, the state will “continue to turn a blind eye” and fail to ensure compliance and enforcement, the coalition said.
A 2017 Women on Farms project study showed that while 75% of farmworkers are exposed to pesticides, only 27% were informed about the health hazards posed, while 66% of workers said they had not received protective clothing.
“The department of labour will continue to cite the lack of inspectors to visit workplaces on South Africa’s farms. Most farmworkers, whose working conditions are more precarious than ever, have little chance of their complaints being investigated by labour inspectors,” the coalition said.
Farm workers are not provided with washing facilities at the workplace to deal with pesticide residues on their bodies and clothing, “thus taking home such residues to their families”. Studies have proven the elevated risks of chronic diseases linked to pesticides, including cancer, birth defects and learning disabilities in farming communities.
South Africa has more than 9 000 herbicide, insecticide and fungicide products registered for use and must “get off the pesticide treadmill”, the coalition said.
“As a start, and at the barest minimum, we are demanding that the minister of agriculture ban those 67 highly hazardous pesticides that are already banned in the European Union. Some of these pesticides include Roundup, Dursban, and Paraquat, which have been banned in the EU since 2007.”
Flawed, inexplicable
According to civil society network UnPoison, the “flawed and unexplained process” by the department to update the robust 2021 regulations threatens to remove much of the protection afforded to hundreds of thousands of people exposed to hazardous chemicals in the workplace.
“Although the previous regulations had room for improvement, the proposed update poses a dangerous increase of exposure to hazardous chemicals, and the question must be asked: why are these regulations being weakened and watered down, especially so soon after being passed?” it said.
UnPoison has called on the minister to withdraw the draft regulations.
Among the organisation’s concerns are an incomplete definitions list. “A harrowing example is that the very definition of a hazardous chemical agent is incomplete, with only Category 1 of the GHS classifications listed, and Category 2 and subcategories excluded.”
This means highly hazardous pesticides, both active ingredients and co-formulants, are not regulated under these regulations, it said.
The strength of the law comes down to definitions, the language used and how it can be interpreted. “Definitions and correct wording are critical aspects, reducing grey areas and blind spots in policy and regulations. Deficient definitions can be exploited, or result in unintended consequences,” Unpoison noted.
In the case of hazardous chemical agents, this “can be deadly” and excluding classes of chemicals from falling under these regulations “pose a dire threat of injury and mortal danger to innocent workers, who have no choice if they wish to keep their jobs”.
‘Extremely irresponsible’
Farmworkers would be disproportionately at risk if pesticides were not included in the regulations. This is “extremely irresponsible” of the department, UnPoison said.
Another concern is the very high thresholds for exposure in the workplace. “Limits in place in the 2021 regulations have been relaxed to extremely harmful levels in the proposed update, specifically regulation 7(2)(b), which for example relaxes the ratios of an HCA [hazardous chemical agent] ingredient from <10% to <15%. In the case of hazardous chemical agents, an increase of 5% is dangerous.”
UnPoison said a “similarly alarming metric” is that based on a risk assessment; if hazardous chemical agents are found to be 50% above occupational exposure limits, employers have 24 months to implement exposure reduction measures.
“Similarly, employers are only required to monitor hazardous chemical agent levels every two years if a risk assessment affirms hazardous chemical agents are a risk. UnPoison would argue that every six months for both scenarios is barely acceptable regarding exposing workers to hazardous chemical agents.”
The department had not commented at the time of publication.