Education + Advocacy = Change

Click a topic below for an index of articles:

New Material

Alternative Treatments

Help us Win the Fight!

Financial or Socio-Economic Issues

Health Insurance

Help us Win the Fight

Hepatitis

HIV/AIDS

Home

Institutional Issues

International Reports

Legal Concerns

Math Models or Methods to Predict Trends

Medical Issues

Occupational Concerns

Our Board

Projects

Religion and infectious diseases

State Governments

Stigma or Discrimination Issues

If you would like to submit an article to this website, email us your paper to info@heart-intl.net

 

~

any words all words
Results per page:

“The only thing necessary for these diseases to the triumph is for good people and governments to do nothing.”

 

Compensation for Occupational Injuries and Diseases Amendment Bill (B59-97)

26 August 1997

Contents

Introduction

COSATU wishes to use the opportunity of its submission to Parliament’s Labour Portfolio Committee on the Compensation for Occupational Injuries and Diseases Amendment Bill ("COIDA Amendment Bill") to re-emphasise the need for effectively enforced legislation to provide for the compensation of South African workers who are injured or who contract disease in the course of their employment. Such a legislative regime should be sensitive to the need to remedy South Africa’s history of racial discrimination, which in our workplaces has translated into the neglect the rights and interests of black workers in particular. COSATU therefore believes that workers’ compensation laws should be in line with the principle of redressing the historical inequities resulting from racial discrimination against workers. These laws should be aimed at alleviating the hardship resulting from work-related injuries and disease and the loss of capacity of injured and sick workers to earn a living.

The health and safety problems faced by South African workers require the serious and urgent attention of parliament. The years of neglect of worker health and safety needs to be counter-acted through active health and safety programmes guided by effective legislation. This would lead not only to improved conditions for working people, but would result in significant productivity gains and other beneficial economic spin-offs.

Where disease and injury do occur workers demand the security of knowing that effective systems have been put into place that will guarantee them compensation. At present, even though there has been some reform in the compensation legislation - from the Workmen's Compensation Act to the Compensation for Occupational Injuries and Diseases Act in 1994 - many workers suffering from work-related injuries and diseases do not in practice get access to compensation benefits.

This is exacerbated by the fact that there is no clear and accurate assessment of the levels of occupational injuries and diseases. Most official figures are outdated and reflect significant under-estimations, apart from not being comprehensive in their coverage. For example, the recent report of the Compensation Commissioner - which appears to be over a year late as it only covers the period until end February 1996 - relies on 1992 figures for 'loss of man-days' due to work-related accidents (which where the same figures used in the previous year's report). Accidents in the mining industry are not covered in these figures.

The lack of updated and accurate information concerning the health and safety of South African's at work is completely unacceptable. COSATU believes that the Labour Committee should - as part of its oversight function - recommend that the Department of Labour launch a thorough 'Investigation into the Health and Safety of South Africa's workers'. Research is needed into how many workers are being injured and are becoming ill at work, how many work-days are being lost as a result, what are the overall costs to the economy, and what proportion of cases are going unreported. Reliable information is a necessity if government is to fulfill its mandate of transforming the apartheid labour market.

Key areas of weakness in compensation regime

COIDA came into effect on 1 March 1994, replacing the Workmen’s Compensation Act 30 of 1941 ("WCA"). The COIDA Amendment Bill is the first set of amendments proposed to COIDA. It is also the first occasion on which legislation concerning workers’ compensation has come before the Portfolio Committee on Labour. COSATU, therefore, wishes to use this opportunity to highlight three key areas of weakness with the present compensation regime:

·         the lack of a remedy for historically excluded black workers,

·         the compensation regime's discrimination against low wage earners, and

·         the failure to provide protection for all workers, especially domestic workers.

No remedy for historically excluded black workers

When it came into effect in 1994, COIDA made significant improvements to the system for compensating workers for occupational disease. This has led to large increases in the number of workers who are able to claim compensation for diseases, including conditions such as noise induced hearing loss. However, the improvements to the law were not made retrospective and workers who were diagnosed as having contracted an occupational disease before 1 March 1994 cannot receive the benefit of these improvements.

Prior to June 1977 black workers were not paid pensions in terms of the WCA, regardless of the degree of their incapacity. (Workers classified as white, coloured and Indian who had a disability of more than 30% were at this time able to receive monthly pensions for the rest of their lives). When the WCA was amended, pensions were extended to black workers after June 1977. However, they were not given to workers who had been injured before that date. Some of these workers who have suffered the effects of this racist legislation for many years are still alive and are struggling under the most difficult circumstances to survive. COSATU believes that it is the responsibility of the present government to undo the discrimination caused by apartheid laws.

It is therefore proposed that the Labour Committee initiate a special amendment to COIDA to provide for compensation to be paid to all workers who suffered permanent disability in excess of 30% before June 1977 and who due to the racist legislation did not receive compensation. We believe the following process should be set in motion to ensure justice for these workers-

·         a special compensation fund should be established for the purpose of extending benefits to these workers;

·         a tri-partite committee should be established to monitor the extension of benefits to these workers and in particular to develop mechanisms for tracing these workers;

·         every worker who is identified as falling into a category qualifying for these benefits should receive:

* a monthly pension on the same basis as workers who are permanently injured after June 1977;

* a lump sum as compensation for the period for which they did not receive benefits; and

* the right to costs of all medical aid arising out of their injury or disease.

Compensation regime discriminates against low wage earners


The benefits provided by the Act operate unfairly against lower paid and manual workers for the following reasons-

·         all compensation payments are based on a percentage of the employee's earnings thus ensuring that lower paid workers receive less compensation than higher paid workers;

·         compensation payments are not based on the loss of a worker's earning capacity but on a percentage assessment of the injury. This also acts unfairly against manual workers who may suffer an injury for which the percentage disablement is as low as 25% (for instance the loss of a thumb) but who are unable to return to employment and who are dependent on their compensation for the rest of their lives.

It is, therefore, proposed that the Labour Committee initiate a special amendment to COIDA to provide for a scaling-up, or top-up, of compensation benefits to be paid to low wage earners.

Compensation regime fails to protect domestic workers

Despite an in principle agreement between COSATU and the then Minister of Labour in 1992, that compensation and unemployment benefits should be extended to workers in the domestic sector, such extension has as yet not been put into place. The failure of the apartheid regime to carry out its agreements, should be rectified by our democratic government, by amending COIDA to include domestic workers. Furthermore, there is a strong argument for the view that the exclusion of domestic workers from COIDA amounts to a breach of these workers' access to their constitutional right to social security.

At present, we are unaware of government plans to extend COIDA's protection to include domestic workers. As the Unemployment Insurance Task Team has proposed that domestic workers be included under the provisions of the Unemployment Insurance Act, this would be a good opportunity to also extend the protection of COIDA to cover domestic workers.

COSATU, therefore, calls on the Labour Committee to initiate a special amendment to COIDA to provide for the extension of compensation benefits in cases of occupational injury and disease to workers in the domestic sector.

Proposed amendments to the COIDA Amendment Bill

This section is divided into two parts: substantive amendments and technical amendments.

 

Substantive Amendments

Section 1(o) of the Amendment Bill


It is proposed that a definition of "permanent disablement" be inserted in the Act as s1(o), reading as follows-

"'Permanent disablement', in relation to an employee, means the permanent inability of such employee as a result of an accident or occupational disease for which compensation is payable to perform the work in which he or she was employed at the time of such accident or the commencement of such occupational disease, or to resume work at a rate of earnings not less than that which he or she was receiving at the time of such accident or at the commencement of such occupational disease."

The Amendment Bill introduces a new definition of disablement which is: "Disablement means temporary partial disablement, temporary total disablement, permanent disablement or serious disfigurement, as the case may be."

The Amendment Bill introduces definitions of 'temporary partial disablement' and 'temporary total disablement' in clauses 1(m) and (n) of the Amendment Bill. However, no definition is introduced of the term 'permanent disablement', which is a major shortcoming in the Amendment Bill. For this reason, COSATU believes that the Amendment introduced by clause 1(f) of the Amendment Bill will perpetuate the unacceptable manner in which permanently disabled workers are compensated unless a definition of permanent disablement is included in the Act.

Section 17(a) of the Amendment Bill
COSATU opposes the removal of minimum compensation for temporary total disablement. Therefore, we propose that s17(a) relating to s47 of the principal Act be amended as follows:

"Compensation for temporary and total disablement shall be calculated on the basis set out in item 1 of Schedule 4 subject to the prescribed [a] minimum and maximum amounts [prescribed by the Minister by notice in the Gazette, after consultation with the Board]."

Insertion of Section 17(e) to the Amendment Bill
We propose the following amendment to section 47(5)(a) and (b) of COIDA, to be inserted as 17(e) of the Amendment Bill, to extend the period of payment:

"47(5)(a) Periodical payments shall take place for so long as the temporary total disablement continues, but not for a period exceeding [12] 24 months.

(b) If such disablement continues for longer than [12] 24 months, the commissioner may order the continuation of those payments for such further periods as he may determine."

Section 47(5)(a) gives an employee who has a temporary total disability the right to receive compensation for 12 months and thereafter the Commissioner has discretion to extend the payment of compensation for that disability. If the temporary disability continues for more than 24 months, the Commissioner may treat it as a permanent disability. COSATU believes it is inappropriate that an employee's right to a benefit should, after a period of 12 months depend on the discretion of the Commissioner (as at 47(5)(b) presently) and proposes that this should be extended to 24 months.

Insertion of Section 18(c) to the Amendment Bill
If an injury or illness has unusually consequences for an employee, because of the special nature of the employee's occupation, and the Commissioner considers that the percentages of disablement that he would otherwise have adopted is inadequate, the Commissioner may adopt such higher percentage he deems equitable."

This provision was in section 39(3) of the Workmen's Compensation Act 30 of 1941 and was left out when COIDA was introduced in 1993. There is no justification for its omission and its omission has potentially disastrous consequences for permanently disabled workers. It removes a necessary area of discretion, which results in undue hardship.

Section 21(d) of the Amendment Bill
Section 54(1)(c)(iv) of the principal act should be amended as follows-

"the pension payable to a [dependent] child referred to in paragraph (d) of the said definition shall lapse at the end of the month in which such [dependent] child reaches the age of 18 years, except where the child is unable to earn an income owing to physical or mental disability, or dies or marries before reaching the age of 18 years, or until the child completes secondary education, or while the child is undergoing tertiary education, and it could reasonably have been expected that the employee would have contributed to the maintenance of that child, whichever age is the higher;"

The Act provides for the payment of pensions to the dependants of workers killed in accidents or who die due to occupational diseases, most importantly their widows and children. The pension payable to a child ceases when the child is 18, or if the child dies or is married before that age. The Act then provides for a pension to be paid to a child over 18 only if the child is unable to earn an income owing to a physical or mental disability and the employee would have been expected to contribute to the support of that child.

It is extremely harsh to deprive children of workers who have been killed in work related accidents, or by work related diseases, of their pensions when they turn 18. This prevents any children in this category from completing schooling or tertiary education. The amendment proposed above requires the payment of a pension to a child in the following circumstances-

·         while the child is continuing to undergo secondary education; and

·         if the child is undergoing tertiary education and it could reasonably have been expected that the employee would have contributed to the maintenance of that child.

Insertion of Section 23A to the Amendment Bill
Section 57(1) of COIDA should be amended as follows:

"57(1) The Minister may on the recommendation of the commissioner by notice in the Gazette increase the monthly pensions payable in terms in terms of section 49 and 54 by such percentage as he may so determine, which percentage may not be less than the inflation rate as measured by the consumer price index during the preceding year: Provided that at least 60 days before any such increase a notice shall be published in the Gazette ..."

This amendment is necessary in order to provide for monthly pensions paid to permanently disabled workers and dependants of deceased workers to be adjusted to accommodate for the decrease in their purchasing power. Historically, pensions have been adjusted at well below the rate of inflation. Studies show that from 1982 (when this policy was introduced) to 1992, the rate of adjustment was 37% of the inflation rate. The purchasing power of pensions is therefore well below their initial value.

The Commissioner's present policy is to make an annual adjustment of 7%. (In contrast, benefits paid to mineworkers compensated for diseases under the Occupational Diseases in Mines and Works Act 78 of 1973 were adjusted this year by 9.3% (GNR 1074 GG 18182 of 8 August 1997).) It is the view of COSATU that if the increase received by workers who depend upon pensions is below the rate of inflation, those workers are in effect having their pensions reduced. We therefore believe that it is an essential right that the adjustment must be at least in line with inflation.

Section 24 (a) of the Amendment Bill
We propose that paragraph 24(b) should be revised as follows:

"24(b) that the employee has contracted a disease other than a disease contemplated in paragraph (a) and that such disease has arisen out of and in the course of his or her employment."

COSATU opposes the Amendment Bill's proposed amendment to section 65 introduced in clause 24 of the Amendment Bill, which unnecessarily limits the circumstances under which compensation for diseases is allowed to "exposure to a substance emanating from(the) workplace…". The qualification introduced by the proposed new section 65(1)(b)(i) is an unnecessary limitation on the right to compensation for occupational diseases - compensation must be paid in respect of all diseases which arise out of and in the course of an employee's employment. This is an issue upon which labour and business were in agreement during the NEDLAC negotiating process.

Insertion of Section 28A to the Amendment Bill
Insert the following as a new section 81(3) in the principal Act:

"A health and safety representative elected in terms of the Occupational Health and Safety Act 85 of 1993 or the Mine Health and Safety Act 29 of 1996 and a trade union representative elected in terms of section 14 of the Labour Relations Act 66 of 1995 shall have the right to inspect:

a.      any register or record that the employer is required to maintain in terms of this Act, and

b.      any notice or information that the employer is required to make."

The purpose of this section is to allow an elected worker representative in terms of labour and health and safety legislation to assist with ensuring that employers comply with their obligations in terms of the Act. This amendment will bring COIDA in line with the Labour Relations Act and health and safety legislation, as well as the Constitution.

 

Section 33(a) of the Amendment Bill
We believe that it is appropriate that the period for lodging objections against decisions of the Commissioner be extended from 90 days to 6 months. Our justification for this is that a decision is often only communicated to workers some time after it has been made and the 90 day period is inadequate to allow workers, and their unions, to assess the complexities of these cases to determine whether to lodge an objection.

Section 91(1) should be amended as follows:

"Any person affected by the decision of the Director-General or a trade union or employer's organisation of which that person was a member at the relevant time may, within [90 days] 6 months after such decision, lodge a complaint against the decision with the commissioner in the prescribed manner."

Technical amendments

We have been legally advised that the following technical amendments are required to the COIDA Amendment Bill.

At Section 1(g): The definition of earnings must include reference to Section 67.

At Section 7: "after consultation with the Board" should be inserted at the end of section 8(4)(b)

At Section 25: Section 69 of the principal Act should be amended as follows:

"The Minister may on the recommendation of the Director-General and after consultation with the chairperson of the medical advisory panels and the Board, amend Schedule 3 by notice in the Gazette, also with retrospective effect, in respect of the description of diseases and work".

At Section 26: Section 70(1) of the principal Act should be amended as follows:

"The Director-General after consultation with the Board may on a regional basis appoint medical advisory panels which will consist of as many members as he or she may deem necessary to - ".

At Section 13: Section 36(2) of the principal Act the first use of "damages" should be "compensation".

Representation on Compensation Board

Business has argued against the terms of Section 11 of the COIDA Amendment Bill on the basis that it has three representatives on the Compensation Board ("the Board") whereas labour is entitled to be represented by five persons. Labour on the other hand has consistently argued that business and labour do indeed have equal representation on the Board as business has five representatives - three from employers' organisations (s11(g)) and two from the Mutual Assurance Companies (ss11(d) and (e)) - and labour has five representatives.

During the NEDLAC negotiations, labour offered to allow employers' organisations to increase their representation to five, only if:

·         The mutual assurance companies do not have representation on the compensation board, or

·         The Act contains a provision that the mutual assurance companies must be administered by a board consisting of equal numbers of representatives of employers and employees, and

·         The mutual assurance companies should be represented on the board by a representative of employers in the industries covered by the fund and a representative of employees.

As business and labour could not agree on these proposals, labour's argument - that the Bill as it presently stands provides for equal representation of business and labour on the Board - has won favour with government. We are confident that the Labour Committee will lend its support to this aspect of the Bill.

Conclusion

COSATU wishes to thanks the Labour Portfolio Committee for the opportunity to make a submission on this important Amendment Bill. As we explained at the beginning of this submission we believe that some fundamental policy shifts are necessary if the compensation regime is to begin to offer effective security to the bulk of South Africa's workers and if it is to compensate injured and sick workers excluded historically on the basis of their race.

The legislation provides for a new dispensation, which makes the Compensation Fund more accountable- through closer control by the Director-General of Labour. We hope that the Labour Committee - will involve itself in reviewing the effectiveness of this new Compensation regime. Furthermore, we trust that the detailed amendments which we have proposed will be carefully considered by the Committee.


 

Summary of recommendations

Addressing Key Weaknesses

·         The Portfolio Committee on Labour should recommend that the Department of Labour launch a thorough 'Investigation into the Health and Safety of South Africa's workers'.

·         The Portfolio Committee on Labour should initiate a special amendment to COIDA to provide for compensation to be paid to all workers who suffered permanent disability in excess of 30% before June 1977 and who due to the racist legislation did not receive compensation.

·         The Portfolio Committee on Labour should initiate a special amendment to COIDA to provide for a scaling-up, or top-up, of compensation benefits to be paid to low wage earners.

·         The Portfolio Committee on Labour should initiate a special amendment to COIDA to provide for the extension of compensation benefits in cases of occupational injury and disease to workers in the domestic sector.

Substantive Amendments to the Bill

·         It is proposed that a definition of "permanent disability" be inserted in the Act as s1(o), reading as follows-

"'Permanent disablement', in relation to an employee, means the permanent inability of such employee as a result of an accident or occupational disease for which compensation is payable to perform the work in which he or she was employed at the time of such accident or the commencement of such occupational disease, or to resume work at a rate of earnings not less than that which he or she was receiving at the time of such accident or at the commencement of such occupational disease."

·         The removal of minimum compensation for temporary total disablement is opposed. It follows that s17(a) which refers to s47 of the principal Act be amended as follows:

"Compensation for temporary and total disablement shall be calculated on the basis set out in item 1 of Schedule 4 subject to the prescribed [a] minimum and maximum amounts [prescribed by the Minister by notice in the Gazette, after consultation with the Board]."

·         It is inappropriate that an employee's right to a benefit should, after a period of 12 months depend on the discretion of the Commissioner (as at 47(5)(b) presently). It is, therefore, proposed that this should be extended to 24 months, to be inserted as 17(e) of the Amendment Bill, as follows:

"47(5)(a) Periodical payments shall take place for so long as the temporary total disablement continues, but not for a period exceeding [12] 24 months.

(b) If such disablement continues for longer than [12] 24 months, the commissioner may order the continuation of those payments for such further periods as he may determine."

·         The following provision was in section 39(3) of the Workmen's Compensation Act 30 of 1941 and was left out without justification when COIDA was introduced in 1993. It is proposed that it is inserted as Section 18(c) to the Amendment Bill:

"If an injury or illness has unusually severe consequences for an employee, because of the special nature of the employee's occupation, and the Commissioner considers that the percentages of disablement that he would otherwise have adopted is inadequate, the Commissioner may adopt such higher percentage he deems equitable."

·         The following amendment at section 21(d) of the Amendment Bill requires the payment of a pension to a surviving child in the following circumstances: while the child is continuing to undergo secondary education; and if the child is undergoing tertiary education and it could reasonably have been expected that the employee would have contributed to the maintenance of that child. Therefore, Section 54(1)(c)(iv) of the principal act should be amended as follows:

"the pension payable to a [dependent] child referred to in paragraph (d) of the said definition shall lapse at the end of the month in which such [dependent] child reaches the age of 18 years, except where the child is unable to earn an income owing to physical or mental disability, or dies or marries before reaching the age of 18 years, or until the child completes secondary education, or while the child is undergoing tertiary education, and it could reasonably have been expected that the employee would have contributed to the maintenance of that child, whichever age is the higher;"

·         Monthly pensions paid to permanently disabled workers and dependants of deceased workers should be adjusted to accommodate for the inflation rate and the related decrease in their purchasing power. Section 57(1) of COIDA should be amended as follows:

"57(1) The Minister may on the recommendation of the commissioner by notice in the Gazette increase the monthly pensions payable in terms in terms of section 49 and 54 by such percentage as he may so determine, which percentage may not be less than the inflation rate as measured by the consumer price index during the preceding year: Provided that at least 60 days before any such increase a notice shall be published in the Gazette ..."

·         The qualification introduced by the proposed new section 65(1)(b)(i) should be deleted as it is an unnecessary limitation on the right to compensation for occupational diseases - compensation must be paid in respect of all diseases which arise out of and in the course of an employee's employment. Section 24(b) should be revised as follows:

"24(b) that the employee has contracted a disease other than a disease contemplated in paragraph (a) and that such disease has arisen out of an in the course of his or her employment."

·         COIDA must stay in line with the level of transparency outlined in the Labour Relations Act. The following as a new section 81(3) in the principal Act:

"A health and safety representative elected in terms of the Occupational Health and Safety Act 85 of 1993 or the Mine Health and Safety Act 29 of 1996 and a trade union representative elected in terms of section 14 of the Labour Relations Act 66 of 1995 shall have the right to inspect:

a.      any register or record that the employer is required to maintain in terms of this Act, and

b.      any notice or information that the employer is required to make."

·         In order to extend the period for lodging objections against decisions of the Commissioner be extended from 90 days to 6 months. Section 33(a) should be amended as follows:

"Any person affected by the decision of the Director-General or a trade union or employer's organisation of which that person was a member at the relevant time may, within [90 days] 6 months after such decision, lodge a complaint against the decision with the commissioner in the prescribed manner."

Representation on the Compensation Board

·         The Portfolio Committee on labour should support the Bill's present provisions which provide for equal representation of business and labour on the Compensation Board, comprising five representatives of labour and five representatives from business (3 from employers' organisations and 2 from the mutual assurance companies). It is, therefore, recommended that the allocation of representatives in s11 of COIDA remain unchanged.

 

 

 

Email: