Benjamin and Greef - Department of Commercial Law

Transcription

The South African
OHS Commissions
Benjamin and Greef
1997
Report Of The Committee Of Inquiry
Into A
National Health And Safety Council
In South Africa
Electronic Copy By
David W. Stanton
PDF File Version 1.0
October 2003
Notes
This electronic copy (Version 1.0 October 2003) of the Report of the
Committee of Inquiry into a National Health and Safety Council in South
Africa (1997) has been prepared from a photocopy of the original report. The
text was captured with a flat bed scanner (HP OfficeJet G85) and Optical
Character Recognition Software (OmniPage Pro 12). The captured text was
proofread in printed form and via text to speech. The file was exported to
Microsoft Word 2002 for text and layout editing and then published as an Adobe
PDF file.
Care was taken to ensure that the text in this PDF file is an exact reproduction
of the text in the original Committee report (some spelling errors have been
corrected). The Table of Contents was captured as images.
The author is grateful to Dr. Stuart Shearer, Gold Fields, and Dr. Charles
Mbekeni, COM, for proofreading the electronic copy.
If you spot any mistakes in this copy of the Benjamin and Greef Report please
notify the contact below who will correct the PDF file which is available on the
Internet (Commissions section at asosh.org).
The original report at the bottom of page 26 has some errors on the NCOH
directorates. These should be: Occupational Hygiene and Toxicology (Includes
Analytical Services and Technical Advisory Services), Occupational Medicine
and Epidemiology and Pathology.
Dr. David W. Stanton
Association of Societies for Occupational Safety and Health (ASOSH) and
Chamber of Mines of South Africa
Email: [email protected]
Web: http://www.asosh.org
21 October 2003
REPORT OF
THE COMMITTEE OF INQUIRY
INTO A NATIONAL HEALTH
AND SAFETY COUNCIL
IN SOUTH AFRICA
Presented to Mr Tito Mboweni, Minister of
Labour by:
29 MAY 1997
PAGE II
PAGE III
PAGE IV
PART A:
INTRODUCTION AND BACKGROUND
TO THE STUDY
(INCLUDING COMPARATIVE ANALYSIS)
CHAPTER ONE:
TERMS OF REFERENCE, INTRODUCTION AND SUMMARY
“The provision of an efficient occupational health and safety service in
South Africa, including compensation for injured and diseased workers, is
severely hampered by the lack of an overall national policy and
implementation strategy in this field. It is further hampered by the
fragmentation of responsibility across various governmental departments.
A consequence of this lack of co-ordination and fragmentation is that
occupational health and safety problems are under-reported and underregulated. As a result we do not have a clear picture of the state of
occupational health and safety in the country and the full extent of loss of
life and health problems caused by workplaces are effectively not
known.”1
(Minister of Labour, 1996)
1
INTRODUCTION
The regulation and promotion of occupational health and safety is the responsibility
primarily of three government departments: Labour, Health and Minerals and Energy.
Several other Departments, most significantly Transport, Environment, Water Affairs,
Agriculture, and Safety and Security have responsibility for aspects of occupational
health and safety or regulate matters that impact upon occupational health and
safety.2 This has resulted in a fragmentation of OHS policy and enforcement,
inadequate coordination between government agencies and an inconsistent body of
legislation. No single institution within the State has either the capacity, or the
responsibility, to assume the leadership role in developing and implementing an
overall health and safety policy applicable to all sectors of the economy.
Each Department has developed different approaches to the regulation of health and
safety. There is a lack of commonly understood demarcations between the functions
of the different Departments. This has significantly reduced the capacity of the state to
1
Minister of Labour, Terms of Reference of Committee of Inquiry, December 1996.
2
Because of its repeated use the words "occupational health and safety" are at times abbreviated as "OHS".
Report of the Committee of Inquiry into a National Health & Safety Council
Page 2
regulate both environmental and occupational health. It has also prevented the
optimal utilisation of the inspection resources within the different government
agencies. The absence of an overall policy has further prevented the development of
a synergistic relationship between South Africa’s health and safety prevention and
compensation agencies.
In its Five Year Programme of Action, the Ministry of Labour set the objective of
developing an overall national health and safety policy and strategy and the
establishment of a National Occupational Health and Safety Council.3 An investigation
into the establishment of a National Council was endorsed by the Cabinet on 15
February 1995. In November 1995, a tripartite steering committee was appointed with
the brief of “developing an overall national policy and strategy on OHS and the
creation of a National Occupational Health and Safety Council”. The Government
delegation consisted of representatives of the Departments of Labour, Health and
Mineral and Energy Affairs. On the 24th of April 1996 a meeting of the Task Group
chaired by the Director General: Labour, decided that a Committee of Inquiry be
established.
2
TERMS OF REFERENCE
The Committee of Inquiry consists of Mr Paul Benjamin of Cheadle Thompson and
Haysom, nominated by organised labour, and Mr Johan Greeff of the Chamber of
Mines of South Africa, nominated by Business South Africa. The Committee was
given the mandate 1.
to perform a situational analysis of existing legislation and administration
of the state of occupational health and safety and compensation in South
Africa that identifies:
3
Department of Labour: Programme of Action 1994 - 1998 (1994) at 18.
Page 3
1.1
the problems and the nature thereof;
1.2
the areas of disharmony/duplication/omission within Governmental
departments having an occupational health and safety function; and
2.
to perform a comparative analysis, with international norms, of present practices
regarding
the
administration
of
occupational
health
and
safety
and
compensation;
3.
to produce a report, with recommendations that would form the basis for
deliberations with all stakeholders.
3
OVERVIEW OF THE REPORT
Chapter Two of this Report contains a situational analysis of the legislation and
administrative agencies governing occupational health and safety and workers’
compensation in South Africa. It contains an overview of the functioning of the major
administrative agencies as well as key research institutions and non-governmental
organisations involved in the area of occupational health and safety and
compensation.
Chapter Three surveys international standards and comparative legislation in a
number of other jurisdictions on the problems highlighted in the Report and
summarises the major trends in the regulation of occupational health and safety
internationally.
The inadequate regulation of OHS in South Africa has severe consequences for the
Page 4
economy and the social fabric of our society. While the lack of comprehensive
statistics on the extent of occupational accidents and diseases makes it difficult to
gauge the full cost of OHS for the economy, conservative estimates based on the
available evidence indicate the costs are substantial. Chapter Four seeks to give
provisional indications of these costs by extrapolating from available sources.
Chapters Five to Twelve of the Report examine problems in the regulation of OHS in
South Africa, concentrating on areas of disharmony, duplication and omission within
the relevant government agencies. These Chapters focus on problems in the
regulation of occupational health and safety that stem directly from the absence of a
national policy or structure with responsibility for occupational health and safety. It
seeks to identify these shortcomings both in the legislative structure and in the
operation of the different state agencies that promote and enforce occupational health
and safety. Initiatives to reform the different components of the occupational health
and safety system are also described and analysed in these Chapters. These
Chapters focus on •
The operation of OHS inspectorates (Chapter Five)
•
The regulation of occupational health (Chapter Six)
•
OHS legislation and enforcement (Chapter Seven)
•
Compensation systems (Chapter Eight)
•
Participation in policy making (Chapter Nine)
•
Human resources (Chapter Ten)
•
Information and statistics (Chapter Eleven)
•
Research (Chapter Twelve)
•
Communication strategies (Chapter Thirteen)
Chapter Fourteen reviews the need for the development of a national OHS policy and
concludes that legislation should be enacted to establish a National Occupational
Health and Safety Council.
The Chapter also sets out the Committee’s
Page 5
recommendations on aspects of the operation of the Council including its
composition, functions, accountability and funding. It then makes recommendations
on the principles that should guide the Council in developing a national policy.
4
THE COMMITTEE’S METHOD OF WORK
In drawing up this Report, many stakeholders, organisations and individuals were
consulted, interviewed or supplied information on request. They are listed in Appendix
One and we thank them for their assistance. The Committee of Inquiry had no powers
to subpoena witnesses or information and did not hold public hearings. Its members
conducted informal interviews with, or requested information from, key participants in
the OHS arena. While the majority of those approached have been extremely
cooperative in supplying information and assisting the Committee, certain key
information has continued to elude the Committee or took an undue amount of time to
obtain. This factor should be taken into account in any future projects that are
commissioned in this area. The publication of Annual Reports are considerably
delayed and the data contained in these Reports is extremely limited. The Committee
has sought to obtain more recent and better information but again has not always
been successful in this task.
The Report draws upon a number of recent examinations of the operation of OHS
agencies. The most comprehensive of these is the Report of the Commission of
Inquiry into Health and Safety in the Mining Industry (the Leon Commission). The
practice of OHS in the mining industry is better documented than in any other sector
and for this reason is extensively referred to in the Report. Considerable reliance has
also been placed on the Report of the Department of Health’s Committee on
Occupational Health which was prepared in January 1996. These two documents
should continue to be used as resources in the future development of policy in this
area.
Page 6
No comprehensive study has been conducted of OHS agencies within the Department
of Labour. However, information has been obtained from the Master Medical Cost
Containment Plan commissioned by the Compensation Commissioner and the
International Labour Organisation’s (ILO) “Report on a Mission to South Africa:
Assessment of the Labour Inspection System” prepared in early 1996. While the latter
study is by its own admission based on a very limited period of observation, it is the
only independent scrutiny of the operation of the health and safety inspectorate within
the Department of Labour.
The Report is not a comprehensive report on the “state of the nation” of OHS in South
Africa. It concentrates on the consequences of the absence of an integrated OHS
policy and strategy. For this reason the focus is on two primary areas of disjuncture the lack of co-ordination between the three government departments with the principal
responsibility for OHS and the lack of integration between prevention and
compensation agencies and policies. The former issue manifests itself most strongly
in the regulation of occupational health and, for this reason, considerable attention is
paid to past and current initiatives to monitor and control occupational diseases.
As our terms of reference required, this Report has been prepared to assist the social
partners in their deliberations in the future direction of occupational health and safety
policy in this country. As a bipartite committee we have sought to produce a document
that will promote the development of consensus in this often neglected area and
contribute to the development of policies and laws that reduce death, injury and
diseases in the workplace.
Page 7
CHAPTER TWO:
AN OVERVIEW OF OCCUPATIONAL HEALTH
AND SAFETY LEGISLATION AND AGENCIES IN SOUTH AFRICA.
1
INTRODUCTION
OHS covers the full range of activities that seek to prevent occupational accidents
and work-related ill-health and ameliorate their consequences. The legislation and
administrative agencies regulating OHS are divided into those whose primary
purpose is to prevent occupational accidents and diseases and those that
compensate, or seek to rehabilitate, employees who suffer occupational accidents
and diseases.
An examination of OHS regulation must take account of the regulation in a number of
related areas. The regulation of OHS overlaps with, or is closely connected to, the
regulation of the environment as the same hazardous substances that can endanger
the environment can also endanger employees and the public. It also overlaps with
aspects of public safety such as the regulation of the different modes of transport as
much working activity involves transportation. It is also affected by aspects within the
broader body of labour law including the promotion of collective bargaining and the
regulation of employment security and minimum conditions of employment. The
compensation system impacts upon the broader health and social security systems.
This Chapter gives an overview of the major legislation and the administrative
agencies responsible for their enforcement and describes more briefly the operation
of the laws in these adjacent areas. The most important OHS laws are administered
and enforced by the following Departments Department of Labour -
Page 8
•
Occupational Health and Safety Act 85 of 1993 (“OHS Act”); and
•
Compensation for Occupational Injuries and Diseases Act 130 of 1993 (“COID
Act”).
Department of Minerals and Energy •
Mine Health and Safety Act 29 of 1996 (“MHS Act”).
Department of Health •
Occupational Diseases in Mines and Works Act 78 of 1973 ("ODMW Act").
2
DEPARTMENT OF LABOUR
2.1
The Occupational Health and Safety Act
The Occupational Health and Safety Act 85 of 1993 ("the OHS Act") is the principal
law regulating OHS in most sectors of the economy. It came into effect on 1 January
1994, replacing the Machinery and Occupational Safety Act 6 of 1983 ("MOS Act")
which had been the country’s first comprehensive OHS statute.
The OHS Act has a wider application than the MOS Act, covering all sectors of
employment, except the mining industry and merchant shipping (S.1 (3)). It also
covers any activities of self-employed persons that may pose a risk to others (S.9).
Certain sectors are covered by both the OHS Act and other legislation. For example
the OHS Act applies to the aviation industry but aviation accidents are investigated in
terms of the Aviation Act (S.24 (3) (c)). The OHS Act also excludes investigation by an
Page 9
inspector of a traffic accident on a public road, irrespective of whether it was in
connection with the activities of persons at work (S.24 (3) (a)).
The OHS Act is an enabling Act that provides a framework for setting and enforcing
occupational health standards. It establishes a tripartite Advisory Council on
Occupational Health and Safety (ACOHS) to advise the Minister of Labour on OHS
(s.2 and s.3) and promotes worker participation at enterprise level through a system of
elected health and safety representatives and safety committees.
The OHS Act places extensive duties on employers to provide and maintain healthy
and safe working conditions (s.8). They must identify the hazards present in the
workplace, evaluate their seriousness and take appropriate steps to reduce or remove
the hazards. The employees’ duties under the OHS Act extend to members of the
public whose health and safety may be affected. Employers must prepare health and
safety policies if directed to do so by the chief inspector4 (s.7). The chief executive
officer of every employer has the responsibility for ensuring that these duties are
complied with (s.16). These general duties must be complied with to the extent that
this is "reasonably practicable", a term that is defined in the Act.
A central feature of the Act is the system of elected health and safety representatives
and committees (s.17). Representatives must be elected at all workplaces with more
than 20 employees. The representatives’ rights include conducting inspections,
investigating worker complaints, participating in occupational health and safety audits,
accompanying an inspector during inspections, attending consultations between the
employer and inspectorate, as well as extensive rights to information. The employer is
required to consult with health and safety committees on health and safety matters.
4
No direction requiring the publication of occupational health policies has been issued.
Page 10
The Act is administered and enforced by an inspectorate, headed by a chief inspector
(s.27). The inspectors may enter any workplace to conduct an inspection,
investigation or hold a formal inquiry into any incident and issue improvement,
contravention and prohibition notices (s.29). The Minister of Labour may appoint any
person to perform the functions of an inspector under the control and direction of the
chief inspector.5 Significantly, this is not confined to persons within the public service.
The Act sets out the criteria for employers to report occupational health and safety
related incidents. Medical practitioners must report occupational diseases to the chief
inspector and the person’s employer.6
The OHS Act defines occupational health as consisting of three sub-categories -7
•
occupational hygiene (the prevention of conditions that may cause disease);
•
the biological monitoring of employees exposed to hazardous conditions; and
•
occupational medicine (the prevention, diagnosis and treatment of occupational
injury or ill-health).
Detailed provisions regulating occupational health and safety are found in regulations
made by the Minister. Local and international safety standards may be incorporated
into these regulations. Once incorporated, these standards have the force of law.
5
This power has been used to appoint members of the South African Police Services as inspectors.
6
During 1995, a total of 269 reports were received from medical practitioners
7
The division of occupational health into three sub-categories in the OHS Act is criticised by occupational health specialists.
In fact "occupational health" is an umbrella term of which the two key elements are occupational medicine and occupational
hygiene. Both disciplines involve biological monitoring.
Page 11
Standards used include those established by the South African Bureau of Standards
(SABS) as well as leading overseas institutions such as the Health and Safety
Executive of the United Kingdom and the National Institute for Occupational Safety
and Health of the USA.
2.2
Chief Directorate: Occupational Health and Safety
The Chief Directorate: Occupational Health and Safety in the Department of Labour is
responsible for the monitoring and enforcement of the OHS Act. Its role according to
its mission statement is to "interact with our social partners and encourage a tripartite
based, self-regulated system of managing occupational health and safety that is
underpinned by a philosophy of prevention".
The Chief Directorate has a staff complement of 25 and is located in Pretoria. It has
an approved establishment of 10 deputy-directors, 138 inspectors and 50
administrative support staff at the provincial offices and labour centres. The inspectors
are located in 12 offices with the largest complements being found at Johannesburg
(31 inspector posts of which 11 are vacant), Durban (25 inspector posts of which five
are vacant) and Cape Town (16 inspector posts of which two are vacant). The smaller
regional offices are Klerksdorp (six inspector posts of which four are vacant) and
Kimberley (five inspector posts of which one is vacant).
The Chief Directorate has three directorates: Health and Hygiene, Electrical and
Mechanical Engineering and Explosives and Civil Engineering. Deputy directors in the
three areas of responsibility are located in provincial offices. On average the
inspectorate has been operating with a 38 percent vacancy rate, which has been
ascribed mainly to the moratorium that was placed on the filling of vacant posts and
Page 12
the difficulty in recruiting suitably qualified technically-skilled staff.8 During 1996, a
total of 19 000 inspections were undertaken - this amounts to the inspection of 8% of
employers registered with the Compensation Commissioner. In addition, 10 500
incidents were investigated and 6 000 official visits undertaken.9
The Chief Directorate has engaged in a recruitment drive since the moratorium was
lifted in early 1996 with the result that 18 new inspectors were appointed by the end of
1996. As of February 1997, there were 33 vacancies, but by 15 May 1997 this figure
had risen to 44. With all posts filled, the personnel expenditure of the Chief Directorate
is estimated at R23,143 million. The 1997/98 budget allocation is R25,998 million, a
slight increase on the 1996/97 figure of R25,077 million. In contrast, the Chief
Directorate estimates its requirements for 1997/98 to be R33,851 million, indicating a
shortfall of R9,6 million. The Chief Directorate has proposed to obtain this shortfall by
the funding of specific inspection services in high-risk sectors by the Compensation
Fund as part of the development of closer links between the Chief Directorate and the
Compensation Office. These proposals are suggested as interim arrangements until a
National OHS Council has been established.10 This proposal raises significant issues
concerning the use of compensation funds to promote prevention activities (which are
discussed in Chapter 8).
The current minimum qualification requirement to be an inspector is a four-year postmatric qualification in a technical or occupational hygiene-related field. In 1992 the
Chief Directorate embarked on an affirmative action recruitment policy, recruiting
matriculants. Currently a complement of 20 learner inspectors are attached to the
establishment and are members of the Department. They are engaged in studies at
technikons and assisted by way of departmental bursaries. The Department loses
8
Department of Labour: Annual Report (1995) at 35.
9
Department of Labour: Business Plan OHS Programme 2: Department of Labour Strategic Plan for 1997-2000 (November
1996) at 32.
10
Department of Labour: Business Plan OHS Programme 2: Department of Labour Strategic Plan for 1997-2000 (November
1996) at 68.
Page 13
many of these recruits once qualified, to the private sector.11
The traditional focus of the health and safety inspectorate has been on occupational
safety. The majority of inspectors have an engineering background - usually matric
and four years technikon. While there are particular difficulties in recruiting personnel
with engineering qualifications, the capacity to also deal effectively with occupational
health issues, has been described as extremely weak.
The OHS Act provides for approved inspection authorities and accredited
organisations to perform certain tests and inspections prescribed by the Act. These
authorities and organisations must be approved by the chief inspector.
The Department of Labour has approved 36 approved inspection authorities to
conduct routine inspections of pressure vessels, boilers and pressurised systems; 170
individuals to perform elevator inspections; 400 organisations to train operators of
forklifts and cranes and 49 organisations to conduct occupational hygiene
surveillance.
2.3
Compensation for Occupational Injuries and Diseases Act
The Compensation for Occupational Injuries and Diseases Act ("the COID Act")
repealed the Workmen’s Compensation Act 30 of 1941 with effect from 1 March 1994.
It provides a system of ‘no fault’ compensation for employees injured in work-related
accidents or who contract occupational diseases. Employees are entitled to
compensation without regard to whether their injury or illness was caused by fault on
the part of their employer or any other person, but are prevented from claiming
damages for the injury or illness from their employer (including the employer’s
11
Department of Labour: Business Plan for 1997 OHS Programme 2 "Employment Equity Plan" at 2.
Page 14
manager). Compensation is paid out of the Compensation Fund to which all
employers must contribute. Fault does however play some role in the Act’s scheme:
additional compensation can be awarded if it is proved that an accident or disease
was caused by the negligence of the employer (or certain categories of managers and
fellow employees.)
Employers must register with, and contribute to, the Compensation Fund,
administered by the Compensation Commissioner whose office forms a part of the
Department of Labour. The Commissioner12 administers the Fund and adjudicates on
claims for compensation, subject to a limited right of appeal to the High Court. All
employers must register with the Commissioner and submit an annual return of their
employees’ earnings, for the purpose of assessing their contribution to the Fund.
Employers must report all occupational accidents to the Compensation Office within 7
days and occupational diseases within 14 days. The Commissioner has considerable
powers to penalise employers who do not comply with their obligations to submit
returns, pay their assessment or report accidents or occupational diseases.
The assessment paid by employers to the Compensation Fund is determined by the
remuneration paid to employees and the class of industry in which the employer
operates. These range according to the claims history of the sector. The average
assessment is R1,30 per R100,00 of the employee’s earnings.13 The Commissioner
may vary an employer’s assessment to reward the adoption of an active approach to
the prevention of accidents or to penalize employers with consistently poor safety
records. The Commissioner grants rebates on assessments to employers whose
12
A Bill approved by the Cabinet in March 1997 has proposed that responsibility for the administration of the Compensation
Fund should be transferred to the Director-General: Labour.
13
The Compensation Commissioner: Master Medical Costs Containment Plan states that this is low by international
standards.
Page 15
accident record is more favourable than that of employers in comparable businesses.
The Commissioner also has significant powers to use funds to promote the prevention
of occupational accidents and diseases. The Commissioner may found, establish or
subsidize organisations, bodies or schemes whose objects include preventing
accidents, encouraging occupational health or safety or providing rehabilitation
facilities for disabled employees. This has been used primarily to subsidise the
National Occupational Safety Association (NOSA).
The COID Act applies to all major categories of employees, except domestic workers.
It extended coverage to all employees regardless of earnings (previously employees
earning above a “ceiling” had not been covered). The state (including Parliament and
provincial governments) and larger local authorities, are classified as “employers
individually liable”, and are in effect self-insured for their obligations under the Act.
Two mutual associations are permitted to operate under licence from the Minister of
Labour. They are Rand Mutual Assurance Company Limited (RMA) in the mining
industry and the Federated Employer’s Mutual Association (FEM) in building and
construction. Employers insured with the approval of the Commissioner by a mutual
association for the full extent of their liability in terms of the Act are not required to pay
assessments to the Compensation Fund. No provision exists for new mutual
associations to be established.
Benefits are paid to employees who are temporarily or permanently disabled and to
the dependants of employees who die as a result of an occupational accident or
disease. Benefits are calculated on an employee’s earnings up to a ceiling which is
adjusted annually. Temporarily disabled workers who are unable to work can receive
75% of their earnings for a period of up to 24 months. An innovation introduced by the
COID Act is the requirement that employers must pay this compensation to
Page 16
employees for the first three months and reclaim it from the Fund. Compensation for a
permanent disability takes the form of a pension for an employee (whose injury is
assessed as creating a disability of greater than 30%) or a lump sum payment for
disabilities less than 30%. A constant attendance allowance can be paid to persons
who are totally disabled and who require the constant help of another person.
Dependants of deceased workers receive a pension and funeral costs are also
covered.
The COID Act introduced a number of innovations, including the creation of a
tripartite advisory Compensation Board. The Act has modernised the approach to
compensating occupational diseases, considerably extending the list of scheduled
occupational diseases. Regional medical panels can be appointed by the
Commissioner to assist in the diagnosis of occupational diseases. The system for
assessing disability and paying benefits contained in the Workmen’s Compensation
Act remains unchanged.
2.4
Office of the Commissioner of the Compensation Fund
The COID Act is administered by the Office of the Compensation Commissioner
located in Pretoria. The scheme is administered nationally and there are no regional
offices. The compensation schemes of the former TBVC territories have been
integrated into the national system. Staff of the Compensation Office are
remunerated out of the State Revenue Fund which is reimbursed for this expenditure
from the Compensation Fund. Administrative expenditure constituted R75 million,
8.46% of the total revenue for the 1994/5 financial year in comparison with 8.86% for
1993/4. The Compensation Office’s staff complement is approximately 730. There
were 56 vacancies as at 28 February 1995 and particular problems were
experienced because of shortages of debt collection staff.14
14
Compensation Commissioner: Annual Report (1995) at 17.
Page 17
The Fund’s revenue consists primarily of employers’ assessments and investment
income. Total revenue for 1994-5 was R890 449 million. The extension of cover to all
employees, regardless of their earnings, introduced by the COID Act has resulted in a
52.98% increase in the assessments paid. In 1994-5, the revenue exceeded
expenditure by R282 345 000. These amounts were used to increase the Statutory
Reserve Fund by R40 million, increase by R171 million the provision for outstanding
claims, and increase the amount set aside for rebates. Unaudited figures for 1995-6
and 1996-7 are:
Number of
employers
Assessments
Raised
Assessments
Collected
1996/97 (Current
unaudited)
224 223
R1 106 940 501
R994 815 618
1995/96 (Previous
unaudited)
183 712
R786 806 097
R680 511 442
The Fund’s two major expenses are on compensation and medical costs.
Compensation
Medical Costs
1996/97
R352 980 182
R429 875 849
1995/96
R300 805 000
R353 278 000
1994/95
R258 618 000
R268 381 000
1993/94
R193 716 000
R215 254 000
These figures reveal that medical costs have doubled from 1993/94 to 1996/97. Forty
percent of the medical expenditure consisted of payments to private hospitals. The
burgeoning medical expenses have led the Compensation Office to commission the
preparation of a Master Medical Costs Containment Plan.15 In 1995, 267 308 claims
15
This is a five year plan to contain the medical aid expenses paid by the Fund while at the same time ensuring appropriate,
cost effective care for injured workers. The Plan deals with strategies to control the cost of medical services purchased by the
Commissioner from the private sector.
Page 18
were reported to the Compensation Commissioner. During 1996, claims rose to 271
676. Less than 1 % of these claims are for occupational diseases.16 This runs counter
to international claims experience.
The COID Act provides for the appointment of medical advisory panels to advise the
Commissioner on occupational diseases and assist with the adjudication of
occupational diseases. The Act also provides for the appointment of assessors
nominated by business and trade unions to sit with the Commissioner or his delegates
in the adjudication of objections and claims for additional compensation. Almost three
years after the COID Act came into effect, neither the panels nor the assessors have
been appointed because of objections by the Director-General: Health (in the case of
medical panels) and the Minister of Labour (in the case of other assessors) to the
racial composition of these panels. These issues have now been referred to NEDLAC.
The Compensation Fund’s Business Plan for 199717 lists 7 objectives (1)
to generate sufficient revenue to meet the fund’s obligations;
(2)
to compensate employees within a reasonable time after accident reports;
(3)
to reimburse medical service providers within a reasonable time;
(4)
to maintain a healthy cash flow and sound financial position and reduce
potential fraud;
(5)
to render an efficient and uninterrupted information technology service;
16
The numbers cited refer to claims received during each year and not to the year that a particular accident occurs.
17
Department of Labour: Strategic Plan: 1997-2000 at 72 and 73.
Page 19
(6)
training and development of management and employees;
(7)
the prevention of accidents and occupational injuries and diseases.
2.5
The Mutual Associations
The two mutual associations which operate under the COID Act are Rand Mutual
Assurance Company Limited (RMA) and the Federated Employer’s Mutual
Association (FEM). The mutual associations operate in terms of a licence issued by
the Minister of Labour and are required to deposit securities with the Commissioner to
cover their liabilities in terms of the Act. The security may be used to make good any
default by a mutual association on its obligations. Both organisations are represented
on the Compensation Board.
2.5.1 The Federated Employer’s Mutual Association18
The FEM compensates workers for both occupational injuries and diseases within the
building and construction industry. Its coverage is limited to certain classifications
within the industry. FEM charges the same premium and utilises the same
assessment rates as the Compensation Commissioner.
In 1995 gross premiums received less reinsurance amounted to R 47,319 million,
while claims less reinsurance amounted to R38,373 million. Rebates of about R4
million were paid during 1995. Expenditure on accident prevention amounted to
R1,153 million.
FEM has sixty permanent staff members. It is supported by the Fedsure Group (of
which it is an affiliate) with regard to accounting, actuarial and other advice bureaux.
18
FEM: Annual Report (1995) and additional information supplied by FEM.
Page 20
All assessments of claims are referred to the Commissioner who requires this to
ensure uniformity of awards. Any doctor who treats an employee covered by FEM is
entitled to fill in a medical report.
To promote awareness on occupational health and safety issues FEM has introduced
internal schemes such as awards for employers who have adopted positive health and
safety measures.
2.5.2 The Rand Mutual Assurance Company Limited19
RMA’s compensation programme combines the statutory benefits contained in the
COID Act with a number of extra-statutory benefits, many of which have been agreed
through collective bargaining. These include increased benefits for the dependants of
deceased workers and the payment of pensions to black miners who were totally
disabled prior to the extension of pension payments to black employees in terms of
the Workmen’s Compensation Act on 1 June 1977. Since 1995, RMA has granted
higher pension increases than the Compensation Fund.
RMA has a total staff complement of 94. Branch offices are situated in the main
mining centres. The RMA’s claim finalisation objective is to finalise claims within 10
working days of the receipt of all claims documentation. Ninety per cent of medical
costs are paid within 30 days. Members of the Chamber of Mines who have policies
with Rand Mutual have special arrangements in terms of section 87 of COID Act to
provide medical aid to their employees. The number of incidents reported in 1996 was
41 425 compared to 34 900 in 1995.
Gross premium income for 1996 was R390,9 million, an increase of 9.2% from R358,1
19
RMA: Annual Report (1995) and additional information supplied by RMA.
Page 21
million in 1995. Policy benefits, however, increased by 10.6% from R276,4 million in
1995 to R305,8 million in 1996.
Administrative expenditure was 6% of gross premium income for 1996. RMA does not
operate a system of merit rebates but determines premiums according to a member’s
claims experience in accordance with sound insurance underwriting methodologies.
RMA has sought to extend cover to additional employers in the mining industry.
Requests to do so, supported by both the employer and trade unions, have been
rejected by the Commissioner.
While RMA is represented on the Compensation Board and interaction between the
Commissioner, FEM and RMA can occur at that level, this has not translated into
common objectives on issues such as:
•
role in accident prevention;
•
the advisability or otherwise of merit rebates;
•
integration of statistical data for reporting purposes;
•
investment strategies.
2.6
Labour Legislation
A number of other aspects of labour legislation have a direct impact upon the
regulation of health and safety (a)
Basic Conditions of Employment Act
The Basic Conditions of Employment Act 3 of 1983 regulates the working hours
of employees as well as other minimum conditions of employment such as
meal intervals, annual leave and maternity leave. A draft Basic Conditions of
Page 22
Employment Bill was approved by the Cabinet in April 1997.20 The Bill has it
origins in a Green Paper published by the Department of Labour in February
1996.21 The draft Bill stresses the close connection between conditions of
employment, hours of work and the promotion of health and safety. The draft Bill
proposes a general duty on employers to take account of health and safety
considerations when arranging working time and requires the Minister of Labour
to issue a Code of Good Practice on the Arrangement of Working Time to
provide guidance to employers and employees. The Minister will also have the
power to make regulations limiting working hours on health and safety grounds.
The Bill’s emphasis on the link between hours of work and health and safety is
also shown in the approach to employees who work at night and pregnant
employees.
(b)
The Labour Relations Act
The Labour Relations Act 66 of 1995 (“the LRA”) protects employees from unfair
dismissal and requires that all dismissals be substantively and procedurally fair.
The legal protection of employment security impacts upon the regulation of
health and safety as it regulates the obligations of employers to permanently
disabled workers, including those injured in work-related accidents or who have
contracted an occupational disease. An employee may be dismissed for a
reason connected with the employee’s conduct or capacity or based on
operational requirements. “Incapacity” includes the inability by an employee to
perform his or her work on account of injury or illness. An employer’s obligation
to a disabled worker unable to perform his or her previous job is dealt with in
terms of s.10 and 11 of the Code of Good Practice: Dismissal, published in
Schedule 8 to the LRA.
20
21
GG 17945 of 18 April 1997.
Department of Labour: Green Paper: Policy Proposals for a New Employment Standards Statute, GG 17002 of 23 February
1996.
Page 23
In cases of permanent incapacity the employer, in consultation with the employee and
his or her representative, must ascertain the possibility of securing alternative
employment or adapting the duties or work circumstances to accommodate the
employee’s disability. The Code requires employers to pay particular consideration to
the requirements of employees injured at work or who are incapacitated by a work
related illness.
(c)
Employment Equity Legislation
The Green Paper on Employment and Occupational Equity proposes that
employment equity plans should include a programme to facilitate the
employment of disabled workers.22
3
DEPARTMENT OF HEALTH
3.1
The Chief Directorate: Occupational Health23
The Chief Directorate: Occupational Health consists of the Chief Director of the
National Centre for Occupational Health (NCOH); and the facilities established to
serve the ODMW Act, namely the Medical Bureau for Occupational Disease (MBOD),
its subbureaux and contracted service arrangements. The budget for 1996/1997 of the
Chief Directorate: Occupational Health was R26,328 million of which a total of
R13,400 million went towards administration of the ODMW Act. The total budget has
remained at approximately the same level for 1997/98. As the costs of administering
the compensation system have increased, this has resulted in a smaller proportion of
the Chief Directorate’s budget being available for promotion and prevention activities.
22
Department of Labour: Green Paper: Policy Proposals for a New Employment and Occupational Equity Statute, GG 17303
of 1 July 1996 at 37.
23
Information from Department of Health: Proposed Restructuring of the Chief Directorate: Occupational Health (January
1996).
Page 24
The Chief Directorate has three distinct sets of functions -
1.
To contribute to inter-sectoral governance, policy formulation, standard setting,
coordination and promotion of equity in occupational health. To ensure that the
potentially large resources of the general health services are entrained at
national, provincial and district levels; and to promote personnel development
in key disciplines;
2.
To provide appropriate national support and referral level services, including
research and surveillance, information dissemination, advisory services, health
hazard evaluations, specialised analytic services in occupational hygiene,
biochemistry and toxicology (including quality assurance), and selected
training programmes;
3.
To fulfill the obligations of the ODMW Act. i.e. through the MBOD’s certification
and autopsy service. The MBOD’s autopsy service includes removal of heart
and lungs at sites throughout the country; the transport of these organs;
pathological examinations and the compilation of medico-legal reports and the
establishment and funding of an infrastructure of services at which miners can
be medically examined and have their documents submitted for certification.
The Department of Health nominates two members to the Advisory Council for
Health and Safety, which advises the Minister of Labour in terms of the OHS Act,
and one member to the Compensation Board, which advises the Compensation
Commissioner.
Page 25
3.2
National Centre for Occupational Health (NCOH)
The NCOH was established as the Pneumoconiosis Research Unit in the 1950s as
part of the South African Institute of Medical Research, with the brief of carrying out
statutory autopsies in terms of the (then) Silicosis Act on miners, and conducting lung
research into mining lung disease. It was subsequently transferred to the Council for
Scientific and Industrial Research and then to the Medical Research Council and
expanded its research into non-mining industry. The, Department of Health inherited
the NCOH in 1979 and in 1983 the jointly appointed post of Professor in Occupational
Health at Wits and Chief Director was established. The Chief Director serves as head
of the NCOH. While the NCOH is not currently a statutory organisation, the draft
National Health Bill provides for the statutory establishment of the NCOH.24
The broad functions of the NCOH are to provide support and referral level services to
the occupational health system as a whole, including the public and private
occupational health services and the enforcement agencies. Distinct national support
and referral level functions of the NCOH have been identified as provision of •
Advisory services - including consultancy and medico-legal services;
•
Training - involving capacity building in collaboration with training institutions
and provision of specialist training;
•
Research & surveillance - including contributing to coordinating and priority
setting;
conducting
national
research
projects
surveillance schemes for key occupational conditions.
24
Draft National Health Bill, Provisional Draft 9, (6 November 1996)
and
developing
model
Page 26
•
Laboratory - including conducting priority laboratory-based analyses and
assessments where these are of limited availability elsewhere;
•
Technical information dissemination -
involving collaborative proactive
campaigns to improve practice in key industries or sectors; building network of
practitioners to support information dissemination;
•
Produce standards, guidelines and protocols - including those regarding
specialised laboratory procedures and toxicology;
•
International liaison - involving the development of agreements at national and
sub-national level;
•
Health hazard evaluation - involving selected priority evaluations where these
cannot be done regionally, -
•
Occupational health indicators - including identifying valid indicators of
occupational health practice and health service performance indicators;
•
Formulate concrete programmes to develop capacity in the provinces - in
collaboration with advisory committee to the Chief Director: Occupational
Health.
Current restructuring of the NCOH will provide 70 scientists, technicians and
practitioners to perform these functions. It has been proposed that the restructured
NCOH will have three directorates: Occupational Hygiene and Toxicology;
Occupational Medicine, Epidemiology and Pathology Analytical Services; and
Occupational Hygiene, Epidemiology and Technical Advisory Services. The
restructuring will establish national support and referral systems for the occupational
health system as a whole.
Page 27
The NCOH has run an Eastern Cape Project to develop occupational health services
in the province. This project provided these services on an ad hoc basis until the end
of March 1997. It has now been replaced by the comprehensive consultancy and
advisory services developed by the Eastern Cape Department of Health and Welfare.
3.3
Occupational Diseases in Mines and Works Act
The ODMW Act provides for the compensation of mineworkers who contract certain
occupational diseases. These are primarily pneumoconiosis, tuberculosis and chronic
obstructive pulmonary disease. Prior to 1984 it was administered by the Department
of Mines. Three institutions within the Department of Health provide the services
required for the compensation system established by the ODMW Act. These are the
Medical Bureau for Occupational Diseases, the office of the Compensation
Commissioner for Occupational Diseases and the Pathology Division of the National
Centre for Occupational Health.
Prior to March 1994, compensation under the Act was paid according to race with
white workers receiving up to 13 times as much as black workers with similar medical
conditions. From 1 March 1994, this discriminatory system was replaced with an
earnings-based system of lump-sum compensation payments.
Certification can take place after an applicant has been examined by the MBOD or in
facilities on those mines which are authorised to conduct their own examinations. The
Act provides for two degrees of compensation: for permanently disabled workers and
temporary benefits for workers receiving treatment for tuberculosis. The improved
benefits introduced in 1994 apply retrospectively and are therefore available to exmineworkers who are now diagnosed as having contracted a compensable disease.
Page 28
The 1994 amendments also changed the system for the compensation of
tuberculosis; compensation now occurs on account of disability and not merely
diagnosis. This has resulted in a significant decrease in the number of employees
compensated.
The office of the Compensation Commissioner for Occupational Diseases which
administers the ODMW Act is a sub-directorate of the Department of Health. The staff
complement of the office consists of 28 people. There are eight vacant posts at
present. The Office is as yet not computerised.25
The ODMW Act sets up a fund which is administered by the Commissioner and which
derives its income from levies received from the owners of controlled mines and
works. The levies are determined according to the number of risk shifts worked in a
particular mine or works. The total assessments paid by the mines for 1994-5
amounted to R22,812 million, increasing to R38,049 million in 1995/96. In addition, the
state contributes to a separate state Compensation Fund. This Fund is used for the
payment of pensions to white miners who contracted an occupational disease prior to
1973, for compensation to employees of mines or works that were run by the state or
that have closed down. In 1997/98 R12,700 million has been budgeted for this
purpose; this is a decrease on the figure for the previous financial year of R16,350
million.
According to the 1995 Annual Report, there has been a dramatic decline in the
number of employees receiving benefits. For example, while in 1993-94, a figure of 1
984 persons are recorded as receiving benefits for first degree disability diseases, the
1994-95 figures, which include those workers who have been awarded benefits after
the amendment to the Act, amount to only 352 and the 1995/96 figures to 1 095. The
Annual Report contains no explanation for this decline in the number of beneficiaries.
However, the Compensation Commissioner has explained the drop in the number of
benefits as due to a change in administrative procedures. Workers must fill in-an
25
Report of the Compensation Commissioner for year ended 31 March 1995 and information supplied by the Compensation
Commissioner.
Page 29
application form for benefits which they receive only after certification by the MBOD has
been completed. In the past, the required paperwork was completed, in the case of
black workers, when the worker was examined by a medical specialist and the
documentation was then sent to the Office of the Commissioner. This change in
procedure has a negative impact on migrant workers who return to the rural areas
when they are ill.
Figures presented in the Report show a discrepancy between the number of
certifications that take place in a given period with the number of benefits awarded for
the same period. According to the Commissioner this is as a result of the backlog in
the processing of claims. While the backlog before the 1994 amendment, amounted to
about three months it has increased to a nine month period.
3.4
Medical Bureau for Occupational Diseases (MBOD)26
The MBOD has its origins in the Silicosis Board, later the Pneumoconiosis Board,
established by succeeding Acts covering compensation of lung diseases in miners. It
currently functions in terms of the ODMW Act. Its administration was transferred from
the then Department of Mines to the Department of Health in 1984. It has a staff
complement of 76 persons plus an additional 20 support staff. The MBOD also does
certification work for the Office of the Compensation Commissioner under the COID
Act by non-statutory arrangement.
The MBOD has sub-bureaux at Welkom, Rustenburg and Witbank. The closure of the
sub-bureaux is currently under consideration.
26
Information from Department of Health: Report of the Committee on Occupational Health (January 1996).
Page 30
The ODMW Act requires the MBOD to perform medical examinations for the initial
certification of fitness of prospective mineworkers, periodic examinations for the
renewal of the certificates and examinations to determine eligibility for compensation
benefits. The MHS Act now stipulates that the responsibility for determining employee
fitness before and during employment and supplying certificates, rests with the
employer. The MBOD will, as a result, function as a centre for benefit examinations.
For this purpose, the Bureau has retained the capacity to perform lung and x-ray tests.
All mineworkers, including former mineworkers, are entitled to be medically examined
at no cost to determine whether they have a compensable disease. The MBOD may
refuse to perform the examination if the employee has been medically examined in
terms of the ODMW Act in the past six months.
Two panels of medical practitioners are established to adjudicate on applications for
compensation benefits under the ODMW Act. The Medical Certification Committee,
chaired by the Director of the MBOD, determines whether a mineworker is entitled to
compensation. Its findings are subject to review by the Medical Reviewing Authority
for Occupational Diseases.
At the time of preparing this report, the ODMW Act has not yet been amended to
create consistency with the MHS Act and the MBOD’s obligations to conduct initial,
periodical and exit examinations overlap with those of the MHS Act.
Three factors will determine the future functioning of the MBOD. These are the
enactment of the Mine Health and Safety Act, the possible merger of the two
compensation funds (under the COID Act and the ODMW Act) and the reservoir of exmineworkers
who
are
potential
beneficiaries
under
the
ODMW
Act.
Page 31
3.5
Epidemiology Research Unit (ERU)27
The ERU research unit was established in 1979 as a result of an initiative by the
Chamber of Mines in terms of section 120(2) of the ODMW Act to conduct research
on occupational diseases among mineworkers. In the past, its research focused on
diseases such as silicosis, asbestosis, cancers, respiratory and hearing disorders
among white mineworkers. It is funded by the Ministry of Health from the Research
Account established by the ODMW Act from levies raised in terms of s.63(1), and at
the Minister’s discretion from monies appropriated by Parliament. The ERU currently
has funding up until April 1998 when the new Safety in Mines Research Advisory
Committee (SIMRAC) arrangements come into force: its funding arrangements after
that are unclear.
In 1994 a new Director was appointed to the Unit and four senior scientists have
joined the Unit. The ERU has been in the process of restructuring and prioritising its
work. In so doing the Unit has taken the following considerations into account:
1.
The need to identify and address the most important diseases as they affect all
mineworkers through the building of a data base of disease on the mines in
relation to the work history of miners.
2.
The need to carry out research that would lead to effective and sustainable
management of diseases on the mines and reduce the burden of disease on the
mines.
3.
The need to have a thorough understanding of the social circumstances of
miners and of their knowledge and perceptions of disease i.e. social sciences to
become an essential part of the work of the ERU.
27
Information supplied by Dr. Brian Williams, Director ERU.
Page 32
4.
The need to address the significant burden of disease amongst ex-miners and
establish the extent of such disease amongst rural communities in this regard.
3.6
Technical Cooperation Programme with the World Health Organisation
(1996 - 2003)28
This program was authorised by the WHO and the Department of Health in the third
quarter of 1996 to strengthen the capacity of the Government to develop and
implement occupational health programmes at all levels. The programme consists of
key national workshops on policy and strategy, research, education and training,
primary health care, AIDS, bridge building between the inspectorates and trade
unions, and key provincial workshops to kick start occupational health and safety
activities in the provinces. Under the occupational health and safety training
programme, a wide variety of courses are being funded including specialised training
for the Departments of Health, Labour, Minerals and Energy and provincial and local
authority staff. These include courses on •
Audiometry and noise measurement;
•
Benefit examinations (lung function, x-ray reading);
•
B readers for ILO classification of pneumoconioses;
•
Biological agents (water contamination, regulations for hazardous biological
agents);
•
Biological monitoring;
•
Occupational epidemiology;
•
Ergonomics;
28
Information supplied by Dr. David Stanton, Head Occupational Hygiene and Toxicology Division, NCOH.
Page 33
•
Introduction to occupational health management;
•
Introduction to occupational health and safety (for trade unions);
•
Responsible and safe use of pesticides;
•
The British Examining Board in Occupational Hygiene (BEBOH) core modules:
occupational hygiene foundation, risk assessment, and hazardous
substances.
3.7
Environmental Health Officers (EHOs)29
Regional and local authorities employ environmental health officers to perform
environmental health services. There have been proposals to expand the functions of
EHO’s to include OHS. This is discussed in Chapter Six.
Local authorities are subsidised by the national government to provide environmental
health services in accordance with section 26 of the Health Act 63 of 1977. The
activities which are subsidised include the regulation of business premises, foodsafety, and hazardous substances.30
The escalation of salaries in local authorities over the past few years has widened the
gap between the local authorities’ expenditure on environmental health and the
subsidies received. In some instances local authorities receive less than 10% of the
costs for environmental health services through these subsidies. This is creating
serious financial difficulties, especially for the smaller local authorities with limited
financial ability.
There are about 2 100 EHOs nationally. Most are employed in the health sector and
registered with the South African Medical and Dental Council. Although they visit work
places to inspect activities such as the preparation of food they have no enforcement
powers in terms of the OHS Act, although the Act permits the delegation of functions
to them.
29
Information supplied by Provincial Administration: Western Cape Department of Health; Department of Health: Report of
the Committee on Occupational Health (January 1996); Gauteng Department of Health: Environmental / Occupational Health
Section.
30
Government Notice R2714 of 14 December 1984.
Page 34
Number of Environmental Health Officers31
PROVINCE
Western Cape
Eastern Cape
Northern Cape
Free State
KwaZulu/Natal
North-West
Gauteng
Mpumalanga
Northern Province.
RSA
NUMBER
350
233
61
139
300
100 (estimated)
630
136
152
± 2100
Training for EHOs is provided by technikons who offer a National Diploma, National
Higher Diploma as well as B.Tech in Environmental Health. During the past decade
there has been an increasing emphasis on occupational hygiene in the training of
EHO’s, although the occupational hygiene component of various diplomas in
environmental health varies between technikons. A fourth year option in occupational
hygiene is now available for the B.Tech degree. According to the Report of the
Committee on Occupational health, this will meet the academic level required for
operational competence in the field of OHS.
It has been proposed that in view of the need to expand the inspectoral and educative
activities of the state and to fit in with a district model of occupational health provision
favoured by the Department of Health, it is imperative that the Departments of Health
and Labour find ways to integrate the activities of EHOs at district level with those of
the OHS inspectorate and occupational health services.
31
Department of Health: Report of the Committee on Occupational Health (1996) at 38.
Page 35
The Director for Environmental and Occupational Health and Safety for Gauteng
envisages the following role for EHO’s within each health district (a)
Primary identification of occupational exposures. Proper assessment will have
to be carried out in each health district to determine what activities take place
within each health district.
(b)
Primary assessment of occupational exposures. This includes monitoring and
evaluation of certain exposures and recommendations to limit these. This
would also imply the setting up of health and safety committees at workplaces.
(c)
If recommendations are not adhered to, it would be referred to the Department
of Labour’s Regional Office for further action.
It should be noted that plans to group local government structures together by the
Department of Health need to be coordinated with the Department of Labour’s plans
to restructure its Labour Centres. It is not clear if this restructuring coincides with the
envisaged groupings of the Department of Health.
3.8
Hazardous Substances Act
The Hazardous Substances Act 15 of 1973 is administered by the Department of
Health. Under the Act the Minister may declare certain substances as hazardous.
Hazardous substances are declared as Group I, II, III or IV hazardous substances.
Groups I and II relate to substances of a toxic, corrosive, irritant, strongly sensitizing
or flammable nature. Groups III and IV relate to electronic products and radioactive
material. Section 8 of the Act provides for the appointment of inspectors by the
Director-General of Health. The powers of inspectors of Group I and II hazardous
substances may be exercised by authorised persons who are employees of local
Page 36
authorities, the SAPS or the office of the Commissioner for Customs and Excise. The
Minister has extensive regulatory powers. These include the power to regulate:
•
the manufacture, modification, importation, storage, transportation, dumping
and other disposal of any grouped hazardous substance; the application of a
grouped hazardous substance for any specific purpose;
•
the safety precautions to be taken for the protection of certain persons (such as
employees or those likely to be exposed to grouped hazardous substances)
from injury, ill health or death;
•
the keeping of records and the submission of statistics and reports about the
manufacture, use or sale of grouped hazardous substances; the premises on
which they are used, sold or installed or persons employed in connection with
hazardous electronic products;
•
the notification of cases or suspected cases of poisoning, intoxication, illness or
death of persons who have been exposed to grouped hazardous substances;
•
the control over the dumping or disposal of radioactive waste.
The regulations relating to the control of electronic products may be grouped as
follows (a)
those relating to the licensing of electronic products capable of emitting ionizing
radiation and of the premises on which they are to be used;
(b)
regulations relating to the protection of radiation workers;
(c)
regulations relating to the protection of patients.
Page 37
4
DEPARTMENT OF MINERALS AND ENERGY (DME)
4.1
The Mine Health and Safety Act
The Mine Health and Safety Act, 29 of 1996 (“the MHS Act”) came into effect on 15
January 1997. It replaces the Minerals Act, 50 of 1991 as the legal basis for the
regulation of occupational health and safety in South Africa’s mines. Regulations on
occupational health and safety made under the Minerals Act remain in effect under the
MHS Act. Provision is made for the application of sections of the Occupational
Diseases in Mines and Works Act, 78 of 1973 regulating the control of occupational
health hazards in mines, to be suspended or varied. At the time of preparing this
report, these sections of the ODMW Act are still in force.
The MHS Act flows from an extensive policy review which orginated in the
Commission of Inquiry into Health and Safety in Mines (“the Leon Commission”) which
held hearings in 1994 and published a report and recommendations in April 1995. The
MHS Act was developed during extensive tripartite consultations involving the
Department of Minerals and Energy and employers and trade unions in the mining
industry and was also the subject of extensive hearings conducted by the
Parliamentary Portfolio Committee on Minerals and Energy. This resulted in legislation
which enjoys a high level of acceptance among employers and workers in the mining
industry. The MHS Act represents, after the Labour Relations Act, 66 of 1995, the
most significant legislative achievement of institutional tri-partism in South Africa to
date. It has been said that:
“the MHSA will substantially alter the culture and politics of health and
safety activities in the mining industry, thereby contributing significantly
to the aims of the RDP in the areas of health, housing, education and
employment in society as a whole ... It can be regarded as a new
constitution for the mining industry. As such it is a major achievement in
legislative terms.”32
32
P Lewis & M Jeebhay: "The Mines Health and Safety Bill - a New Era for Health and Safety in the Mining Industry"
(1996) 17 Industrial Law Journal 429.
Page 38
It replaces an archaic and inadequate system with one that compares favourably with
international standards and contemporary legislative trends internationally. It draws
extensively on the ILO Mine Safety and Health Convention 177 of 199533. Certain
provisions are also based on the OHS Act.34
The MHS Act places the principal duties to provide a healthy and safe workplace on
the owners and managers of mines. It requires the implementation of a systematic
approach to the identification, assessment and control of hazards. The employers’
duties to identify, assess and control risks are set out in greater detail than in the OHS
Act, as are obligations to provide training to employees. Mine managements must
investigate accidents, diseases and other health-threatening occurrences to ascertain
their direct and indirect causes and to seek to prevent recurrences. The legislation
also requires that mines have systematic programmes to monitor occupational
hygiene conditions and to conduct medical surveillance of employees.
The Act provides for a system of worker participation centred on health and safety
representatives and committees. Trade unions have a central role in the regulation of
OHS at mines and the appointment of full-time health and safety representatives is
provided for. The right of workers to refuse to perform dangerous work is entrenched
in the Act and mines are required to establish procedures for the effective exercise of
this right.
33
The text of the Convention 177 and Recommendation is reproduced with a commentary in (1995) 16 Industrial Law
Journal 1333.
34
The difference between OHS Act and MHS Act are discussed in Chapter Six.
Page 39
A tripartite Mine Health and Safety Council has been established with three
permanent committees. These are:
•
the Mining Regulation Advisory Committee;
•
the Mining Occupational Health Advisory Committee; and
•
the Safety in Mines Research Advisory Committee.
The powers of the Mine Health and Safety Inspectorate are recast in the Act and new
approaches have been developed to the investigation of accidents and occurrences
that threaten health and safety.
The Leon Commission recommended that the Mine Health and Safety Inspectorate
(MHSI) should be a separate administrative agency within the DME.35 Formerly each
region was under the control of a regional director who had responsibility for all
matters
regulated
by
the
Minerals
Act.
The
Commission
made
detailed
recommendations in Chapter 11 of its Report for the restructuring and upgrading of
the Inspectorate and restructuring of its powers to enforce OHS only.
35
Commission of Inquiry into Safety and Health in the Mining Industry Report (1995); Volume 1 at Paragraph 11.1.2.
Page 40
4.2
The Mine Health and Safety Inspectorate (MHSI)36
The MHSI is headed by the Chief Inspector, who has the rank of a Deputy DirectorGeneral. The Chief Inspector is responsible for establishing and applying health,
safety and mine equipment standards and for promoting the application of those
standards. The Chief Inspector is assisted in these functions by a head office staff of
27, of which 3 posts are currently vacant. The Director-General: Minerals and Energy
remains the accounting officer for the program promoting mine health and safety. The
total budget allocation for the promotion of mine health and safety in 1997/98 is
R51,105 million. Although this is a small decrease compared to the budget allocation
for 1996/97 of R52,267 million, it represents a significant increase on figures for
previous years. This is as a result of the implementation of the recommendations of
the Leon Commission of Inquiry.
The Mine Health and Safety Inspectorate operates in all 9 provinces. Every region
consists of sub-directorates: Mine Health and Safety and Mine Equipment Safety.
Each regional department is headed by a Principal Inspector. Currently the
establishment has 79 filled posts and vacant posts number 41.
The Sub-directorate: Mine Health and Safety monitors the application of health and
safety standards at mining operations, through inspections, investigations, inquiries
and promoting employer and employee involvement in occupational health and safety.
The sub-directorate: Mine Equipment Safety monitors the application of safety
standards with regard to mine equipment.
The establishment of a Directorate: Occupational Medicine is currently the subject of
36
Information supplied by Department of Minerals and Energy Annual Report (1995) and by Chief Inspector: Mine Health
and Safety.
Page 41
discussion by the Mine Health and Safety Council’s Mining Occupational Health
Advisory Committee (MOHAC). It is envisaged that a Deputy Chief Inspector of Mines:
Occupational Health (Chief Director level) will report directly to the Chief Inspector of
Mines. In addition, the Directorate: Mine Environmental Control has been transformed
into the Directorate: Occupational Hygiene. Another Directorate: Occupational
Medicine will also be established. The Directorates will be headed by a Principal
Inspector and Medical Inspector, both at Director level. The envisaged 12 Inspectors
enforcing occupational hygiene will be based in the regions reporting directly to the
Principal Inspector: Occupational Hygiene, while the occupational health practitioners,
who will function as regional medical inspectors will report directly to the Medical
Inspector. Proposals concerning the Medical Mining Inspectorate are in the process of
submission to the Public Service Commission.
To meet training and recruitment needs, the DME set up a training programme for
pupil inspectors in January 1996. The main requirement for admission to the
programme is a matric certificate with mathematics and science as fully passed
subjects. Theoretical semesters are alternated by practical training at the
Department’s regional offices and at mines throughout the country. The course
covers the following disciplines: mining; mining machinery; mine environment; mine
surveying; occupational hygiene and health. Fifty persons were recruited to the
course.
4.3
Safety in Mines Research Advisory Committee (SIMRAC)
The Minerals Act required employers in the mining industry to pay a levy, calculated
on accident frequency rates to fund safety research. SIMRAC, which consisted of
representatives of mining employers was established to advise the Director-General
on the allocation of these funds for research projects. The annual budget of SIMRAC
is some R40 million. To date SIMRAC’s focus was on safety-related research as
research on occupational diseases was funded through a levy in terms of the ODMW
Act.
Page 42
Under the MHS Act (section 44(3)), SIMRAC is transformed into a permanent tripartite
committee of the Mine Health and Safety Council. It must advise the Council on
occupational health and safety research, including •
criteria for determining the funding of health and safety research;
•
the need for research into health and safety at mines;
•
research projects, including priorities of projects, costs, assessment,
ratification and execution;
•
communication and publication of research results;
•
the management of the cost of the overall programme.
SIMRAC is required to prepare an overall programme of relevant health and safety
research for the MHS Council to consider, on an annual basis. No other sector of the
economy has an equivalent structure for the funding of OHS research.
4.4
Nuclear Energy Act
The Nuclear Energy Act, No. 131 of 1993, is administered by the DME. It provides,
inter alia, for the continued existence of the Council for Nuclear Safety (“CNS”). The
CNS is a statutory body which is separate from other inspectorates in the DME.
The objective of the CNS is to exercise control over activities in the nuclear fuel cycle
with a view to safeguarding persons against nuclear damage. The handling and use of
radioactive material outside the nuclear fuel cycle is regulated by the Department of
Health in terms of the Hazardous Substances Act 15 of 1973.
Page 43
Nuclear installations must, in terms of the Act, obtain a licence. Certain mines,
predominantly Witwatersrand type gold mines, also have to acquire licences. The
CNS has appointed inspectors to monitor compliance with both the Act and licence
conditions. The Act permits the authority to conduct inspections to be delegated to
other parties (such as the chief inspector appointed under the MHS Act), but this has
not been done.
The control and management of the affairs of the CNS rests with the Council which is
appointed by the Minister. No employee of an organisation licensed under the Act may
be a member of the Council.
The application of this Act further fragments the administration of OHS in South Africa
and (a)
impacts upon the environmental management systems under the administration
of the DME, the Department of Labour, the Department of Water Affairs and the
Department of Environmental Affairs and Tourism, leading to further duplication;
(b)
provides for compensation arrangements for nuclear damage which extends
compensation provision in South Africa for work-related occurrences to at least
three Acts.
A Nuclear Regulation Bill, intended to replace the Nuclear Energy Act is currently
being drafted.
Page 44
5
REHABILITATION INSTITUTIONS37
In integrated OHS systems, vocational rehabilitation is one of the three pillars of an
integrated OHS system (the other two being prevention and compensation). In South
Africa there is a low level of provision of rehabilitation services. Where rehabilitational
units do exist (i.e. in Gauteng, Western Cape, KwaZulu/Natal and Mpumalanga) they
lack a specific focus on occupational injuries.
Rehabilitation centres were established in Durban and Johannesburg through the
intervention of the Compensation Commissioner. The Durban Centre is operating
successfully and in 1993 treated a total of 2 807 patients. The Johannesburg centre
has been closed due to what the Compensation Commissioner describes as a “lack of
cooperation from medical practitioners and patronage”. The Commissioner has
purchased land on the East Rand to develop a new centre. The Commissioner has
made arrangements for injured employees to receive treatment at the Rand Mutual
Hospital in Johannesburg.
State provision of rehabilitation services is not organised specifically to focus on
occupational injuries. The majority of provincially-funded and regional hospitals have
occupational therapists and physiotherapists whose patients include some with work
related disability. Many are referred from other services in the hospital such as
orthopaedics. Some clinics, notably hand clinics at academic hospitals, are staffed by
multidisciplinary teams.
Other provincial services of relevance are audiometric assessment and rehabilitation
of workers with noise-induced hearing loss by audiologists and speech therapists, and
advice and counselling provided to workers with occupational injury or disability by
social workers.
37
Information supplied by Office of the Compensation Commissioner and the Department of Health: Report of the Committee
on Occupational Health (January 1996)
Page 45
In the private sector, with the exception of the mining industry, rehabilitation services
are a neglected area. The referral links between general practitioners and orthopaedic
surgeons
involved
in
the
acute
management
of
injured
workers,
and
physiotherapist/occupational therapists who could provide rehabilitation, remains
undeveloped. Mining industry rehabilitation centres are at the Rand Mutual Hospital,
Johannesburg and the Ernest Oppenheimer Hospital, Welkom. Both offer extensive
rehabilitation services.
6
RESPONSIBILITY FOR ENVIRONMENTAL HEALTH AND PUBLIC SAFETY
6.1
The Department of Transport
The Department of Transport is responsible for the regulation of health and safety in
areas specifically excluded from the purview of the OHS Act. These sectors are
principally regulated by:
•
The Aviation Act 74 of 1962;
•
The Merchant Shipping Act 57 of 1951;
•
The Road Traffic Act 29 of 1989.
The need for coordination in areas of interface and possible overlap between the
Transport Department and other relevant Departments is highlighted by the proposal
in the Draft White paper on National Transport Policy to consider the establishment of
a Maritime Safety Agency.38
38
Department of Transport: White Paper on National Transport Policy (August 1996) at 11.
Page 46
The transport of hazardous substances has particular relevance to both occupational
and public health and safety. This is currently controlled by regulation but the
Department of Transport is in the process of drafting legislation in this regard.
6.2
Department of Environment and Tourism
The Department of Environment and Tourism took over the administration of the
Atmospheric Pollution Prevention Act 45 of 1965 from the Department of Health. The
Act provides for the prevention of the pollution of the atmosphere and establishes a
National Air Pollution Advisory Committee. The Act aims to control noxious or
offensive gases; atmospheric pollution by smoke, atmospheric pollution by dust and
by fumes emitted by vehicles.
The Act is not primarily focused on occupational health and safety, but its effective
implementation could lessen the impact of industrially related occupational illnesses.
There are certain factors however, which suggest that effective enforcement is not
attainable at present. There are currently only six inspectors appointed for
enforcement purposes and their jurisdiction in relation to hygiene and atmospheric
pollution is not adequately defined in the Act.
In addition, the Act does not contain any provision for the Minister to make regulations
or incorporate guidelines or schedules in laws.
6.3
Department of Water Affairs and Forestry
The Department of Water Affairs and Forestry administers the Water Act 54 of 1956
which includes provisions for the purification and disposal of water used for industrial
purposes and for the prevention of water pollution. The need for interfacing between
the enforcement measures of this Department and others concerned with
occupational and public health and safety is evident. For example, both the Council for
Page 47
Nuclear Safety and the Department of Water Affairs and Forestry are involved in
testing the uranium content in water. The absence of coordination between these role
players is evident from the fact that while the Council for Nuclear Safety has
determined an exposure limit, the Department of Water Affairs and Forestry utilises a
threshold limit.
6.4
Department of Agriculture and Land Affairs
The Department of Agriculture and Land Affairs administers the Fertilizers, Farm
Feeds, Agricultural Remedies and Stock Remedies Act 36 of 1947 which provides for
regulation of the use of pesticides. The Act provides for the designation by the
Minister of an officer in the Department as the Registrar of Fertilizers, Farm Feeds,
Agricultural Remedies and Stock Remedies who is responsible for the licensing and
registration of fertilizers, pesticides and other substances falling under the Act. A
recent study indicates extremely low levels of reporting of occupational accidents in
the agricultural sector.39
6.5
Regulation of Explosives
The Explosives Act, 26 of 1956 administered by the Department of Safety and
Security regulates the manufacturing, storage, transport, import, export and use of
explosives. The Minister of Safety and Security is empowered to appoint inspectors to
apply the provisions of the Explosives Act and the Commissioner of the SAPS may
deputise persons to act as inspectors.
There is an overlap in responsibility on control of OHS regarding explosives. The
transportation, storage and use of explosives at mines is regulated in terms of the
39
See Chapter Eleven.
Page 48
MHS Act. Currently, regulations are being drafted in terms of the OHS Act to regulate
the manufacture of explosives in factories.
There are a number of grey areas where the Department of Safety and Security
control security of explosives but do not address OHS aspects. These include •
control over transport and use of ammonium nitrate based blasting agents
used for the so-called “on-site blasting” where sensitising agents are added
during pumping of the high energy fuel into the blast hole;
•
pumping of sensitized explosive product underground in mines;
•
safety of workers and the public during surface blasting;
•
registration and licensing of surface blasting operators;
•
safety of explosive vehicles;
•
safety of packaging for transport of explosives;
•
classification of explosives; and
•
registration of factories using chemicals which were declared explosives such
as chlorates and ammonium nitrate.40
7
PRIVATE SECTOR ORGANISATIONS
7.1
National Occupational Safety Association41
NOSA was established through a joint venture with business and the Compensation
Commissioner on 11 April 1951 and registered in terms of s.21 of the Companies Act
as a public company not for gain, with the aims of -
40
Information supplied by the Department of Labour.
41
Information from the NOSA.(1995) Annual Report and discussion with Mr J Bone, Managing Director.
Page 49
•
preventing occupational accidents and diseases and endeavouring to eliminate
their causes and results in commerce and industry on a national basis;
•
dealing with all matters and questions on occupational safety in South Africa
and to act as an advisory body on all such matters.
NOSA operates in the following health and safety fields - training, product supervision,
and safety management systems.
The Board of Directors of NOSA comprises •
The Compensation Commissioner and his Deputy;
•
The Managing Director of NOSA;
•
Seven representatives of NOSA regional forums;
•
Three selected representatives.
There are no trade union representatives on the Board.
NOSA has a staff complement of 260 persons located in 14 regions and 9 subregions. Its annual budget is R40 million. The Compensation Commissioner funds
25% of this budget. The contribution by the Commissioner is just more than 1 % of the
total revenue of the compensation fund.
NOSA has also established operations in Australia, the United States of America,
Chile and Hong Kong.
NOSA operates a safety management system incorporating audit procedures. On 1
March 1995, NOSA introduced its new auditing system for its safety management
system, incorporating national and international criteria. The new procedure consists
of pre-audit activities and unannounced physical audits as well as night audits. The
Page 50
system is specifically structured to measure worker involvement and participation.
NOSA also presents training on occupational health and safety issues in the regions
as well as at the NOSA Safety Academy. During 1996, a total number of 38 663
candidates attended courses. Health and safety practitioners licensed by NOSA to
conduct specific NOSA training courses, rendered training to 22 116 candidates.
7.2
Non-Governmental Organisations (NGOs)42
A number of NGO’s provide support and have developed a capacity among trade
unions in dealing with health and safety issues on a provincial and national basis. In
addition, the Universities of Cape Town and Natal run workhealth clinics.
These organisations include •
Industrial Health Research Group (IHRG) Cape Town
The IHRG’s main brief is to provide services to the trade unions in all aspects
of health and safety. At its workers’ clinic, occupational diseases and disability
due to injuries are assessed and assistance is given to file for compensation
claims. Medical screenings and audits are done on request from unions or
management. Chemical and physical hazards are investigated and solutions for
workplace improvements developed. The IHRG does research, advises on
policy development and runs education workshops for workers and their
representatives. Health and safety information is also produced by means of
posters, booklets and pamphlets.
•
The Industrial Health Unit (IHU) Durban
The IHU assists management and unions with workplace related health and
42
Information supplied by organisations and the Department of Health: Report of the Committee on Occupational Health
(January 1996).
Page 51
safety issues. It runs a workers’ health centre and conducts workplace
inspections and surveys. Education and training services are also offered to
the various industrial sectors. Research and information dissemination on
various aspects of OHS are conducted by the Unit. The IHU conducts
workplace
inspections
and
surveys
providing
follow-up
reports
and
recommendations for improvements.
•
Industrial Health and Safety Education Project (IHSEP) East London
The major focus of IHSEP is the adequate training of health and safety
practitioners in order to improve the conditions at workplaces. The empowerment of workers through the development of their health and safety skills is
also a major commitment of IHSEP. The project organises health and safety
courses for health and safety representatives.
•
Industrial Aid Society (IAS) Johannesburg
The IAS provides litigation and counselling services to help workers
understand their legal rights and other problems that occur at work. The
society assists workers to secure UIF benefits, compensation for injuries on
duty, employment contracts, notice, leave, sick pay, certificates of services and
pensions.
•
Workhealth Clinic - Groote Schuur Hospital and University of Cape Town
The Workhealth Clinic is a multidisciplinary occupational medicine referral clinic
situated within the Respiratory Clinic, Groote Schuur Hospital and under the
auspices of the University of Cape Town. Any suspected work-related health
disorder may be referred to the clinic where the emphasis is on evaluation,
diagnosis and therapy. Where appropriate, compensation claims are initiated.
•
Occupational Health Programme, Department of Community Health,
University of Natal
The programme runs an occupational medicine clinic based at King Edward
Page 52
Hospital which serves as a referral centre to diagnose and manage
occupational diseases, workplace rehabilitation of patients or workplace
modification and assistance with compensation. Research is conducted by the
programme: into relevant aspects of occupational health and support is given to
other researchers. Consultancy services are provided to factories and trade
unions.
NGOs which have focussed on servicing trade unions have historically been reliant on
foreign funding and have received no financial support from the state or the
Compensation Fund. The change in focus of donor funding since 1994 has made their
situation even more precarious. The Workplace Information Group which operated in
Johannesburg has closed down because of funding and its resources have been
taken over by the Chemical Workers Industrial Union.
Annual budgets of these NGOs range from R500 000 to R1 million depending on staff
complement and the technical nature of the services they provide. A number of public
interest law firms and NGO’s assist workers with legal problems in connection with
health and safety. These include the Legal Resources Centre, university based legal
aid clinics and the Black Sash.
7.3
Other OHS Service Providers43
Key societies and associations dealing with occupational health and safety include
the •
Association of Societies for Occupational Safety and Health (ASOSH);
•
Chemical and Allied Industries Association (CAIA)*;
•
Construction Industry Occupational Health and Safety Forum (CIOHSF);
•
Ergonomics Society of South Africa (ESSA);
•
Institute of Occupational Hygienists of Southern Africa (IOHSA)*;
43
Information from Dr. D Stanton, NCOH.
Page 53
•
Institute of Safety Management of South Africa (IOSM)*;
•
Mines Medical Officers’ Association of South Africa (MMOA);
•
Mine Ventilation Society of South Africa (MVSSA)*;
•
National Association for Clean Air (NACA);
•
National Occupational Health and Safety Association (NOSA)*;
•
Occupational Hygiene Association of Southern Africa (OHASA)*;
•
Safety First Association*;
•
South African Acoustics Institute (SAAI)*;
•
South African Radiation Protection Society (SARPS)*;
•
The South African Society of Occupational Health Nurses (SASOHN)*;
•
The South African Society of Occupational Medicine (SASOM)*.
*ASOSH member
ASOSH is the only body which represents the majority of occupational health and
safety practitioners through its member societies and includes, in addition to the
above, the South African Institute of Environmental Health (SAIEH) and the Chamber
of Mines represented by the Chamber’s Mine Safety Division. ASOSH’s main
objective is to coordinate the activities of its members and act as a collective voice for
them.
Many of these societies contribute to the dissemination of information and engage in
cooperative work to broaden the information base. A current example is the
Surveillance of Occupational Respiratory Diseases in South Africa (SORDSA)
programme which involves SASOM and the South African Pulmonology Society
(SAPS) in conjunction with the NCOH.
Page 54
CHAPTER THREE:
A COMPARATIVE ANALYSIS OF INTERNATIONAL NORMS,
AND PRACTICES ON OCCUPATIONAL HEALTH AND SAFETY
1
ILO STANDARDS
The major source of international standards on occupational health and safety are
found in the Conventions and Recommendations of the (ILO). These are adopted by
the annual International Labour Conference on the basis of a two thirds majority.
Once adopted, Conventions must be drawn to the attention of national Parliaments
and are open to ratification. There is no obligation on member states to ratify them
but, should they choose to do so, Conventions have the full force of a treaty in
international law. Recommendations are not susceptible of ratification, and do not
have the force of international law. Usually, Recommendations flesh out the primary
obligations set out in a Convention. However they are also used when there is
insufficient support for the adoption of a Convention at a given time.
The protection and promotion of health and safety has been a central aspect of the
work of the ILO. The obligation of “adequate protection for the life and health of
workers in all occupations” was appended to the ILO constitution in 1946. Until the
1980s this principle was expressed almost exclusively by standards dealing with the
needs of specific occupational groups and occupational hazards. However in 1981 the
International Labour Conference adopted its first general occupational health and
safety standard in the form of the Occupational Safety and Health Convention
(No.155) which applies to all branches of economic activity.
Page 55
1.1
Occupational Safety and Health Convention 155 of 1981
The Convention draws extensively on the recommendations of the Robens Committee
which
reported
to
the
British
government
in
1972
and
whose
principal
recommendations were given effect by the Health and Safety at Work Act (UK)
1974.44
Convention 155 articulates the principles for a national policy on occupational health
and safety and sets out the actions to be taken by the state, employer and trade
unions at national and workplace level. Each state that ratifies the Convention is
called upon to formulate, implement and periodically review a coherent national policy
on occupational safety, occupational health and the working environment. This must
be done in consultation with the most representative organisations of employers and
workers.
Convention 155 provides that national policy should indicate the respective functions
and responsibilities of public authorities, employers, workers and others and should
recognise the complementary character of these responsibilities. It should be
reviewed at regular intervals to identify major problems and identify effective methods
for prioritising and dealing with these problems.
In order to give effect to national policy, laws and regulations must be developed and
enforced. There must be an adequate and appropriate system of inspection and the
enforcement system must provide adequate penalties for the violation of laws and
regulations. The Convention also requires states to take measures to provide
guidance to employers and workers so as to help them to comply with their legal
obligations.
44
Creighton, B " Occupational Health and Safety Regulation" in Quinlan, M (ed) Work and Health: The Origins,
Management and Regulation of Occupational Illness (Australia 1993) at 292.
Page 56
The Convention provides that employers should be placed under a wide-ranging duty
to ensure the health and safety of the workforce so far as is reasonably practicable
(Article 16). Those who ‘design, manufacture, import, provide or transfer machinery,
equipment or substances for occupational use’ are also to be placed under very broad
duties in relation to their activities. (Article 12)
Further obligations on employers provide four core rights for workers. These are:
•
The right to appropriate training in occupational health and safety and the
working environment; (Article 14)
•
The right to arrangements ensuring worker participation and cooperation in
occupational health and safety; (Article 19)
•
The right to receive information concerning the correct installation and use of
machinery and equipment and the correct use of substances and the right to
receive information on hazards and instructions on how to avoid them; (Article
12)
•
The right to refuse dangerous work. A worker who has reasonable justification
to believe such work presents an imminent and serious danger to his or her
health and who removes him or herself from a work situation must be
protected against undue consequences. (Article 13)
1.2
Occupational Health Services Convention 161 of 1985
In 1985 the ILO adopted Convention 161 concerning Occupational Health Services.
States are required to formulate a national policy on occupational health services in
consultation with the most representative organisations of workers and employers.
The functions of occupational health services include:
Page 57
•
identification and assessments of risks;
•
surveillance and monitoring activities;
•
the giving of advice in organisation and design of workplaces;
•
programme development and testing and evaluation of health aspects of new
equipment;
•
contribution to measures of vocational rehabilitation;
•
advice on occupational health, safety and hygiene and ergonomics. (Article 5)
The responsibilities of the occupational health service do not reduce the responsibility
of each employer for the health and safety of employees. The Convention provides
that measures must be implemented with due regard to the right of workers to
participate in OHS matters.
1.3
Labour Inspection Convention No. 81 of 1947
The Labour Inspection Convention is of particular relevance to the enforcement of
OHS standards. It provides for a system of labour inspection in industrial workplaces
and, optionally, in mining, transport and commercial undertakings. Its provisions cover
the organisation and operation of inspection services, staffing, training and working
conditions, equipment, inspection visits and reports on inspection activities. Other
provisions deal with the role of labour inspectors and their powers and obligations.
The Convention has been ratified by some 118 countries. Powers provided for
inspectors
in
South
African
legislation
broadly
comply
with
the
Page 58
Convention. It has been strongly recommended that South Africa ratify this
Convention.45
1.4
Other ILO Conventions on occupational health and safety
There are numerous other conventions dealing with health and safety.46 Some of the
more recent conventions are:
•
The Radiation Protection Convention 115 of 1960
•
The Guarding Of Machinery Convention 118 of 1963*
•
Hygiene (Commerce and Offences) Convention 120 of 1964
•
The Maximum Weight Convention 127 of 1967
•
The Benzene Convention 136 of 1971
•
The Occupational Cancer Convention 139 of 1974
•
The Working Environment (Pollution, Noise and Vibration) Convention 148
of 1977 *
•
The Occupational Health and Safety (Dock Work) Convention 152 of 1979
•
The Asbestos Convention 162 of 1986
•
The Safety and Health in Construction Convention 167 of 1988
•
The Chemicals Convention 170 of 1990
•
The Prevention of Major Industrial Accidents Convention 173 of 1993
•
The Mine Safety and Health Convention 176 of 1995
The current approach favoured by the member nations of the ILO can be gauged from
the most recent conventions dealing with particular hazards. For example, the Safety
and Health in Construction Convention reveals the acceptance of a risk management
approach similar to that adopted by the European Economic Community. Employers
in the industry are required to guard against health hazards by replacing hazardous
45
46
International Labour Office: Report on a Mission to SA (January, 1996) at 32.
The application of the Guarding of Machinery Convention (No. 119) and the Working Environment (Air Pollution, Noise
and Vibration) Convention (No. 148) are surveyed in "Safety in the Working Environment: General Survey by the Committee
of Experts on the Application of Conventions and Recommendations" (Geneva, 1987).
Page 59
substances with harmless or less hazardous substances wherever possible, or by
technical measures applied to the plant, machinery, equipment or process. Only
where neither of these measures is possible, may the employer resort to measures
such as personal protective equipment and protective clothing. The Convention also
recognises the significance of the design of workplaces and the working environment where possible the design and construction of plant, machinery and equipment should
take account of ergonomic principles. This approach is also found in the recent Mine
Safety and Health Convention which has had a major impact on the development of
the new South African Mine Health and Safety Act.
The Conventions adopted in the 1990s also reveal the higher international awareness
of the hazards posed by the increased manufacture and use of chemicals. The
Chemicals Convention stresses rights to information. All chemicals must be labelled
and marked and chemical and chemical safety data sheets must be provided to
employers for all hazardous chemicals. These should contain essential information
about the identity of the substance, supplier, classification, hazards, safety
precautions and emergency procedures.
1.5
Conventions on workers’ compensation and vocational rehabilitation
The Workmen’s Compensation (Occupational Diseases) Convention of 1934 was the
first Convention to contain a schedule of diseases and toxic substances. Ratifying
states had to undertake to consider those diseases and poisonings listed in the
schedule as occupational diseases (Article 2). South Africa ratified the Convention in
1952. However, the Convention has been superseded by Convention 121 of 1964 (the
Employment Injury Benefits Convention) which contained a revised list of occupational
diseases. The list of occupational diseases was again revised in 1980 and this served
as the basis for preparing the schedule for occupational diseases in terms of the COID
Page 60
Act. South Africa has not ratified this Convention but is in a position to do so. In view
of the diversity of existing national systems of compensation of occupational diseases,
the Convention gives ratifying states an option between three possibilities: either the
establishment of a list of occupational diseases comprising at least those enumerated
in the Convention or the adoption of a general definition of occupational diseases
which would be broad enough to cover at least those listed in the Convention, or a
combination of the two formulae.
Convention 121 also requires ratifying states to prescribe a definition of “industrial
accident” including the conditions under which commuting accidents are considered to
be industrial accidents. It further requires the introduction of a workers compensation
scheme which includes the provision of medical care and allied benefits. Schedule
Two of the Convention deals with periodical payments to standard beneficiaries laying
down the percentage of normal income which the beneficiaries should receive.
The Vocational Rehabilitation and Employment (Disabled Persons) Convention 159 of
1983 requires signatories to formulate, implement and periodically review a national
policy on vocational rehabilitation and the employment of disabled persons.
2
OHS LEGISLATION
2.1
Enabling legislation
Health and safety legislation in many countries has developed within a new framework
in the past three decades. This has consisted of the drafting of general enabling
legislation that:
•
lays down general duties on employers, workers and suppliers of materials;
•
establishes basic rights for workers and their representatives;
Page 61
•
creates new structures through which standards may be developed;
•
rationalises the legislative structure and reforms the administration and
enforcement of the law.
The origins of many of these reforms are to be found in the Robens Committee of
Inquiry which reported in Britain in 197247 and advocated an “enabling approach”
which sets out certain general duties and establishes a mechanism for fleshing out
these duties.48
The Robens’ influence is evident in Commonwealth jurisdictions in particular and has
had a major impact on developments in this field in both Australia and New Zealand.
In 1985, occupational health and safety in New Zealand was regulated by 27 Acts,
with over 40 sets of subsidiary regulations administered by 5 separate departments of
state. In that year the Advisory Council on Occupational Safety and Health was
established and set up a working party to examine existing legislation and to develop
principles which could form the basis for comprehensive legislation governing all work
activities.
The Occupation Health and Safety Bill subsequently introduced by a Labour
administration in 1990 had as one of its main features the repeal of most existing
statutes relating to occupational health and safety and the replacement of these by
one statute containing a series of general provisions supported by more specialised
codes of practice and regulations. This legislative framework has survived subsequent
changes in government and regulatory policy.49
47
Report of the Committee on Safety and Health at Work (1970-72), Chairman Lord Robens.
48
See Mathews, John "Health and Safety at Work. Australian Trade Union Safety Representatives Handbook", 2nd edition,
Pluto Press, Australia 1993 at 23.
49
See Mazengarb's Employment Law, Butterworths, New Zealand section 6000. 1- .10
Page 62
The ‘framework’ act approach is also evident in the Scandinavian countries. For
example in Denmark, the Working Environment Act of 1979 lays down the functions
and duties of the institutions, authorities and persons responsible for the working
environment in all sectors except domestic work and the armed forces.50 Detailed
rules are formulated by way of administrative regulations issued by the Minister of
Labour.51
South Africa has seen a partial application of certain of the Robens’ recommendations
through the enactment of the OHS Act.
2.2
From “Goal Setting” to “Risk Assessment”
What made the Robens approach fundamentally different was a shift in emphasis
from prescriptive to goal-setting legislation. The prime reason for the shift lay in what
has been termed the “built-in obsolescence” of rule-based regulation - that is that
regulation designed to regulate the use of particular equipment or technology will
become outdated with changes in equipment or technology.52
The development of a goal setting approach was the dominant legislative trend in the
first decade after the publication of the Robens Report. Subsequently, there has been
a move towards a more detailed prescription of the employer’s general duties to
identify and control hazards. The most significant legislative instrument of this type
has been the Framework Directive on Safety at Work of the European Community
(89/391 of 12 June 1989). Its influence is evident on the British Management of Health
and Safety at Work Regulations of 1992.
50
Sanctions Commission of the European Communities Director-General Employment Industrial Relations and Social
Affairs: Labour Inspection in the European Community Health and Safety Legal Systems (1992) at 36.
51
Danish Working Environment Service: Working environment in Focus (1992) at 3.
52
Health and Safety Executive (UK) 20 Years into the New Era: Some Reflections (1995).
Page 63
This approach incorporates a more modern and sophisticated conception of risk
management. It is also a response to the perceived failure of “goal setting” legislation
to give sufficient direction to employers or to require the adoption of a systematic
approach to the control of hazards. The difference in these two approaches can be
illustrated by a comparison of the employers’ duties in South Africa’s two OHS Laws:
the OHS Act embodies the goal-setting approach found in the 1974 British Health and
Safety at Work Act while the MHS Act’s more detailed provisions embody a more
sophisticated risk management approach.
3
OHS INSTITUTIONAL ARRANGEMENTS
There are essentially four primary institutional models governing OHS although in
practice these models do not exist in pure form. These are:
A.
Statutory Agency
A specific Agency is statutorily established with the specific objectives of
administering occupational health and safety legislation. This is established
outside of existing government ministries although the extent of the
independence and the mechanisms for political accountability vary. Policy,
research and compensation issues may, or may not, be functions of the agency.
The tendency is for sector specific inspection capabilities to be maintained.
Statutory agencies established in the United Kingdom and Denmark are
reviewed. As is common in Europe, these agencies have no responsibility for
workers’ compensation which is administered through the social security
system.
The Zimbabwean model which is also reviewed is an example of a statutory
agency which embraces compensation and obtains its objectives from an
overall national policy.
Page 64
B.
Integrated Scheme
In an integrated scheme a single agency has responsibility for administering
compensation and occupational health and safety legislation. Separate divisions
of the agency are responsible for prevention and compensation and, in certain
systems, there is a separate division dealing with rehabilitation.
The term “prevention” extends to more than physical inspections and includes
education, training and research. Prevention is vertically integrated into a
holistic prevention system. The Workcover Scheme of Victoria and New South
Wales (Australia) and the Workers Compensation Board system of British
Columbia (Canada) are examples of integrated systems. In these systems the
costs of administering the prevention division are met wholly or partly from the
contributions to the compensation fund.
C.
Parallel Ministerial Institutions
The minister of labour (or equivalent) administers occupational health and safety
legislation in general industry. Specific sectors such as mines, aviation, the
marine
environment
and
off-shore
installations
may
have
dedicated
inspectorates reporting to ministries other than labour.53 South Africa is an
example of this model. The best application of this system limits the number of
sectors reporting to different ministries and provides that one ministry has
overall responsibility for policy formulation and administration. Specific line
department responsibility for health and safety may continue even where a
national agency has been established. This may include areas of OHS such as
mining or offshore installations.
53
The consolidation of all matters relating to a particular industrial activity under one authority can be problematic. For
example, it has been argued that in the USA dual responsibility for mineral development and mine health and safety, led to a
conflict of interests: "This conflict manifested itself in budgetary considerations, personnel considerations and in policy
matters generally. Safety enforcement frequently received less attention and less budgetary support in favour of development.
This is natural because safety and health frequently are a cost without immediate return, while development and utilization
tended to produce an immediate return, or the promise of a increased return in the future." Letter from JD McAteer (Assistant
Secretary of Labour, Mine Health and Safety) (February 17 1989).
Page 65
D.
Integrated Ministerial Institution
The ministry of labour is responsible for administration of occupational health
and safety as a whole but different divisions in the ministry administer the sector
specific regulation. Legislation may take the form of a single Act (for example,
Ontario, Canada) or separate laws (United States of America).
Comparative research reveals a wide range of institutional arrangements governing
OHS. A common feature of these arrangements is the existence of a National Council
or Commission established to guide OHS policy. Countries which have created such
structures include54:
•
France:
A
tripartite
Higher
Council
for
the
Prevention
of
Occupational Hazards is supported by a small permanent
commission and a number of specialist committees;
•
Netherlands:
The tripartite Social Economic Council advises the Minister
for Social Affairs and employment on health and safety at
work.
•
Australia:
The tripartite National Occupational Health and Safety
Commission was established by statute in 1985;
•
USA:
The National Advisory Committee on Occupational Safety
and Health was set up under the OSH Act and consists of
management, labour, OHS professionals and members of
the public.
54
A number of councils are discussed in more detail in 3.1 below.
Page 66
•
Costa Rica:
A National Occupational Health Council was established
consisting of employer and employee representatives as
well
as
representatives
from
relevant
government
departments;
•
Belgium:
The
Supreme
Council
for
Safety
and
Health
and
Improvement at the Workplace is a bipartite structure that
advises the Minister of Labour and Employment.
3.1
Comparative Models
3.1.1 Zimbabwe
Zimbabwe has a relatively developed legislated infrastructure of employer,
worker and state responsibilities in occupational health. This includes a
Factories and Works Act, Hazardous Substances Act, mining legislation,
specific Employment Council Safety Regulations on construction safety and the
more recently passed Statutory Instrument 68 of 1990 (SI 68). SI 68 sets out the
duties of manufacturers, employers and workers and provides for the
establishment of safety committees and of health and safety supervisors and
representatives at workplace level. In addition, the tripartite Zimbabwe
Occupational Health and Safety Council (ZOHSC) has established more
detailed guidelines on the rights, duties and functions of workplace level safety
structures and personnel.
The legislation does not however cover all workplaces. The Factories and
Works Act is still in operation and excludes workplaces employing less than 15
workers and certain occupational sectors, like trading and agriculture. While SI.
Page 67
68 applies to all workers in a contract of employment, as in many countries its
coverage of the small scale sector is poorly monitored.
On an institutional level, the National Social Security Authority (NSSA) , a
tripartite authority under the Ministry of Labour plays a key role. It is responsible
for the administration of an employer - funded social security scheme which
includes a separately budgeted workers’ compensation scheme. Monies from
the workers’ compensation fund are used to finance health and safety
promotion, services, research, the health and safety inspectorate and other
state-run OHS services.
In 1993, a tripartite Zimbabwe Occupational Health and Safety Council
(ZOHSC) was established with equal government, employer and employee
representatives under NSSA. One of its first activities was to establish
guidelines on shopfloor work organisation and to begin a survey of current
training activities and needs. The key areas for action in Zimbabwe in the recent
period have been identified as:55
•
The establishment of a co-ordinated institutional framework for various
OHS activities (inspection, insurance and occupational health services)
through a parastatal and of a tripartite council for promotion and
resolution of OHS issues;
•
Development of a legal framework for workplace and national tripartite
cooperation on OHS and involvement of employment councils and
workplace bipartite structures in promotion of OHS, including negotiation
of OHS standards and their enforcement;
55
Loewenson, Rene, OHS in Zimbabwe, Paper delivered to the conference 'Occupational Health in Southern Africa' 28
August to 2 September 1994 and ZOHSC Annual Reports (1995 and 1996).
Page 68
•
Cooperation between NSSA services and other Ministry and agency
services (i.e. between the inspectorates with the Standards Association
and other inspectorates) towards a multi agency coordination of OHS
work;
•
Investment of compensation funds in promotion and prevention work, and
substantial training activities by state, union and employers groups,
NGO’s, bipartite councils etc;
•
Development of a national data base, library and publication on OHS
from the NSSA;
•
Involvement of university, NSSA, union and NGO education of
professionals towards upgrading professional input to and recognition in
OHS, and establishment of various research fora and activities;
•
Development of a national health and safety policy and unified health and
safety legislation;
•
Development of a tripartite agreed guideline for training of safety
representatives and safety officers;
•
Improvement of the status of occupational health professionals, including
the establishment of a diploma in OHS.
Stakeholders in Zimbabwe continue to be involved in a lengthy process of OHS
policy formulation. In a draft policy document dated December 1996, the
Zimbabwe Occupational Health and Safety Council emphasised that the
revision of OHS law in Zimbabwe is long overdue:
Page 69
”A new legal framework is needed to incorporate the principles of the
national OHS policy, the views of the tripartite partners, ILO Convention
155, and to bring Zimbabwe in line with the general review of OHS law
taking place in the SADC region.”
It is proposed that one of the components of the revised law will be to provide
for the establishment of an advisory council and a tripartite administrative
structure. The tripartite partners proposed in a 1996 workshop on the legal
revision that occupational health be unified under a tripartite OHS executive,
with all occupational health activities coordinated through one structure. It has
also been proposed that the tripartite council be provided for in law, and the
principles for a unified health and safety Act have also been discussed. The
current ZOHSC Constitution, ILO Convention 155, the Guidelines on
Workplace Rights and Activities, and other tripartite agreements provide inputs
to the legal review currently underway.
3.1.2 Southern Africa56
Developments in Zimbabwe can be usefully contrasted with other Southern
African countries. In Zimbabwe the development of integrated administrative
structures was not accompanied by a general modernisation of legislation.
Lesotho and Namibia both have comprehensive Labour Codes drawn up with
the assistance of the ILO. These contain a chapter on occupational health and
safety which establishes the legal framework and specifies the general rights
and duties of employers and employees. These provisions are made applicable
to particular sectors at such time as existing legislation is repealed.
56
Source: Loewenson R Occupational Health and Safety Legislation in Southern Africa: Current Trends (University of Cape
Town: Development and Labour Monographs 1/96).
Page 70
The establishment of tripartite OHS Councils is also evident in the sub-region.
These exist in law either as independent bodies or within general labour
advisory councils in Namibia (Labour Act section 7), Lesotho (Labour Code
Section 100) and Swaziland (Employment Act section 18).
All countries of the sub-region have inter-ministerial responsibility for health and
safety standards. There is little cross referencing in the current laws between
different acts except for references to exemptions in coverage where other acts
cover specific sectors (such as mines). Draft Namibian OHS regulations
provide for administration by both health and labour ministries of specific areas
of the law but not for a clear mechanism of coordination between them. In
countries such as Zambia, Zimbabwe and Namibia the coordination between
different administering authorities and the mechanisms for defining a single
centralised authority is still under discussion. It has been noted that there has
been pressure within the SADC Employment and Labour Sector for a
commitment among SADC member states to have a common OHS standard in
the region. The trend in the region has been identified as moving towards a
more comprehensive, coordinated and participatory system.
3.1.3 United Kingdom57
In 1974, in the wake of the Robens Report, the Health and Safety at Work Act
was enacted which set up new institutions providing for the progressive revision
and replacement of existing health and safety law. Two new institutions were
created by the Act : the Health and Safety Commission (HSC) and the Health
and Safety Executive (HSE).
57
Sources: European Commission Senior Labour Inspectors' Committee Labour Inspection (Health and Safety) in the
European Union - A Short Guide (1995); Health and Safety Executive (UK) 20 Years into the New Era: Some Reflections
(1995).
Page 71
The HSC is a body of up to ten people appointed by the Secretary of State for
Employment after consultation with organisations representing employers,
employees, local authorities and other role players. The Commission is
responsible for setting out the practical aims of its operational arm, the HSE
and for formulating overall policy for labour inspection to be implemented by the
HSE. Its brief also covers the conducting of research, fostering of training and
the organisation of an information and advisory service.
The HSC has a mandate to monitor legal provisions to ensure that those in
force are the most appropriate and to submit proposals on new regulations or
legislative amendments to the Secretary of State for Employment. It reports on
the implementation of its objectives by the HSE through an annual report
addressed to the Secretary of State for Employment.
While the HSC reports principally to the Secretary of State for Employment, it is
also under an obligation to report to a limited extent to the Secretaries of State
for Agriculture, Trade and Industry, Environment, Transport and the Home,
Scottish and Welsh Offices.
The HSC has a statutory duty to have an extensive process of consultation
before recommendations are made to the Government. In its final stage this
involves public consultation on all new regulatory proposals. To this end
advisory committees were established. These were initially focussed on
particular industries and later extended to cross-industry subjects. In 1995
there were 18 such committees. Thirteen of these are ‘industry’ based (e.g.
Ceramics, Construction); seven are ‘subject’ based (e.g. Dangerous
Pathogens, Toxic Substances).
Page 72
The HSE is the operational arm of the HSC and is responsible for the day-today inspection of workplaces and enforcement of health and safety legislation.
The Executive is a body of three people appointed by the Commission with the
consent of the Secretary of State for Employment. HSE’s work force totals about
4,500 and includes inspectors, other professional staff such as doctors, nurses
and scientists, policy and administrative managers and non-specialist support
staff.
Although the Executive is the operational arm of the HSC it is a distinct body
with specific statutory responsibilities of its own, particularly in the enforcement
of health and safety law. The Commission cannot direct the HSE regarding
enforcement practice in individual cases except by direction of the Secretary of
State for Employment.
The HSE was created from an amalgamation of fourteen separate organisations
located in six separate government departments. In evaluating the process of
creating the HSE, commentators stress the problems of overcoming previous
administrative divides. A major advantage of a single unified authority ought to
be better cross-fertilisation and sharing of technical knowledge, expertise and
experience between different sectors. Central policy control ought to give the
collective whole of the organisation a higher public profile than the individual
constituents might otherwise manage on their own. However the legacy of
administrative
division
does
persist.
The
historic
divisions
between
inspectorates are a case in point:
“There is considerable loyalty to past allegiances and some of the
tribal elements preventing better and more effective sharing of
approaches which Robens hoped would disappear in a new
unified Inspectorate still persist.”58
58
Health and Safety Executive (UK): 20 Years into the New Era: Some Reflections (1995) at 14.
Page 73
The functions of the HSE include intelligence gathering, analysis and
dissemination, inspection and investigation; research and international contact;
the creation of law, guidance and standards and the provision of advice.
The HSE is involved in extensive policy work. In 1995 there were three policy
divisions: Strategy and General, Safety Policy and Health Policy. In 1996 the
creation of a Risk Assessment Policy Unit and a Small Firms Unit was on the
HSE’s agenda.
The Health and Safety Laboratory (HSL) has a key role to play to meet HSE’s
long term needs for specialised and demonstrably independent high quality
scientific capacities. The HSL became an internal agency in 1995. Its primary
function is to undertake forensic and reactive work relating to particular and
immediate hazards. Its performance in this role is critically dependent on its
research programme.
The HSE regards its educational role as crucial. It currently publishes over 400
items annually, ranging from simple free leaflets aimed at employees to more
comprehensive guidance, codes of practice, accident and incident reports on
audits or inspection initiatives and research material.
The third major force in the United Kingdom health and safety system is the 461
Local Authorities who also have statutory responsibility for the enforcement of
health and safety law in the services section covering distribution, retailing,
offices, hotels and catering and leisure. Local Authorities carry out the
enforcement functions in accordance with guidelines issued by the HSC which
they are obliged to follow. By agreement the Local Authorities provide
information to both the Commission and the Executive.
Page 74
3.1.4 British Columbia59
Two features of the British Columbia system are particularly noteworthy. First,
the Workers Compensation Board (WCB) is an independent crown corporation
outside of any department of government. Secondly, the WCB is responsible
for both prevention, compensation and rehabilitation activities.
The supervision of mine health and safety remains the responsibility of the
Department of Mines and Energy.
The WCB’s Board of Governors is appointed by the Lieutenant Governor of the
province. It is financed in full by compensation assessments against employers
in British Columbia imposed and collected by the WCB. The Ministry of Labour
and Consumer Services as well as the Ombudsman of the province provide
general oversight of the WCB.
In 1991 amendments to the Workers Compensation Act changed the
governance and organisation of the WCB. It replaced the prior Commissioner
with a 15-member politically-balanced Board of Governors, created a new
Appeal Division and the new position of President and Chief Executive Officer.
These changes separated the policy making, appellate and administrative
functions of the old Commissioners. While the Board of Governors retains full
policy-making authority, the handling of final appeals vests in the new Appeal
Division and the organisation’s administration in the new Chief Executive
Officer Position.
59
Source: Rest, KM and Ashford NA Occupational Safety and Health in British Columbia: An Administrative Inventory
(1992).
Page 75
OSH Division
The Occupational Safety and Health (OSH) division is the principal
organisational unit within the WCB. It deals with workplace health and safety
and with the implementation of the occupational safety and health mandates of
several pieces of legislation and accompanying regulations. The Division
provides safety and health services to assist employers in fulfilling their
responsibility to provide a safe and healthy work environment. It is divided into
three departments and four sections:
Field Services Department
The Field Services Department’s mission is to assist employers and workers in
fulfilling their responsibilities under the Workers Compensation Act, the
Workplace Act, as well as regulations. This it does through consultation,
education and enforcement. It also has to provide the WCB with industrial and
technical information to assist in regulation review and claims adjudication
processes.
Research and Standards Department
This
Department
assists
in
the
planning,
design,
development
and
implementation of regulations, standards, guidelines, policies, and procedures.
It provides OHS information to the Board, industry, labour and the general public
on occupational safety and health. The Department also makes available
laboratory services and administrative support to the blasters certification and
the divers examination programmes and is the home of the variance and
sanction review activity of the OSH division.
Page 76
Occupational Health Department
The Occupational Health Department has the task of identifying and reducing
the incidence and severity of occupational disease in British Columbia. It assists
in the accurate assessment and management of claims for occupational
disease. The Department operates the Board’s hearing conservation and
audiology programs. It is involved in the medical certification of miners,
commercial divers and blasters and provides in-field services to other
departments and divisions of the WCB. However most of the Department’s
activities relate to claims, leaving little time for prevention-oriented activities.
Education and Training Section
While work-place education is conducted by safety and hygiene officers of the
Field Service departments, the OSH Division also has a centralized Education
and Training Section. Its mission is to provide in-service and external education
and consultation services consistent with ensuring, that employers fulfill their
responsibility to provide a safe and healthy working environment. The Section
trains new safety and hygiene officers, develops printed and audiovisual
educational material for field officer use, and conducts educational programmes
for stakeholders.
Engineering Section
The Engineering Section seeks to identify occupational safety and health
hazards that can be reduced or eliminated by engineering means and to
recommend appropriate action to be taken by the Board, industry and the
engineering profession. It provides consulting reports and standards to the
Board, employers and other professionals to support OSH regulations. It also
assists field officers during workplace inspections and accident investigations
and provides advice on the acceptability and adequacy of structures, machines,
equipment and tools.
Page 77
First Aid Section
The primary function of the First Aid Section is to manage the Board’s first aid
certificate programmes in order to develop knowledgeable and efficient
Industrial First Aid attendants. Through technical support of other OSH
Departments, the First Aid Section aims to ensure that employers provide the
required first aid services, equipment and facilities to workers. The Section
develops the course work and manuals used by independent first aid instructor
training programmes and conducts the certifying examinations for first aid
attendants.
Administration Section
The OSH Division has an Administration Section which maintains a variety of
OSH databases, both administrative and technical. It provides information and
reports to the Division and the Board through its information systems.
3.1.5 Denmark60
Under the Danish Working Environment Act 1975, the Ministry of Labour is
Denmark’s supreme administrative authority in the field of health and safety at
work. Subordinate to the Ministry is the Working Environment Service (WES)
consisting of a Directorate, the Institute of Occupational Health and 14 Regional
Inspectorates, all managed by a Director-General.
The Directorate is responsible for the overall planning and coordination of the
WES’ work. It drafts rules and guidelines for enterprises, deals with complaints
and assists the Ministry of Labour, particularly with the preparation of legislation
and with replies to parliamentary questions. The Directorate also collaborates
with other central government authorities and the two sides of industry.
60
Source: Danish Working Environment Service: Working Environment in Focus (1992).
Page 78
The Institute of Occupational Health performs research and studies for the
WES, occupational medicine clinics and enterprises. It also establishes
techniques for measurements in the working environment and evaluates
measurements performed externally.
The Directorate of the WES has four Sector Offices with a multi-disciplinary
staff, including health personnel, technicians, lawyers and administrative
personnel.
These Offices cover the following sectors:
•
Iron and metal industry and graphic industry;
•
Building and construction, transport and wholesale;
•
General industry, food, beverages and tobacco industry, agriculture etc
•
Office and administration, shops, service industry, health and social
services, and education.
In addition to the Sector Offices, there is a project organisation made up of
seven secretariats: Legal Affairs, International Affairs, Biotechnology, Economic
Analysis, Approvals, Campaigns, and Risks. Special ad hoc project groups are
set up as the need arises.
The information services of the Directorate are combined into an information
services centre consisting of information, training, library and documentation
services.
Page 79
3.1.6 United States61
Like Denmark, the United States has an in-Ministry authority for OHS. The
Occupational Safety and Health Administration (OSHA) is located in the
Department of Labour and is headed by one of the seven assistant secretaries
of labour in the department. Responsibility for mine safety and health
administration under the Federal Mine Safety and Health Act of 1977 also lies
with the Department of Labour.
The OSHA is one of three agencies set up within federal government to
administer the OSH Act. The OSHA is required to set occupational safety and
health standards and to conduct inspections of workplaces covered under the
Act. The agency has the power to issue citations against employers and to
assess penalties for violations. It is organised at national, regional and area
levels.
An independent quasi-judicial review board, the Occupational Safety and Health
Review Commission (OSHRC) consists of three members appointed for six-year
terms. It rules upon all challenged enforcement actions of the OSHA.
The National Institute of Occupational Safety and Health (NIOSH) is a national
institute which serves both OHSA and MHSA. It is responsible for developing
and recommending occupational safety and health standards. The agency is
specifically required to publish a list of all known toxic substances and the
concentrations at which these substances exhibit toxic effects. In order to
accomplish these tasks, the NIOSH is authorized to conduct research and
experimental programmes in occupational health and safety, promote the
61
Sources: Ashford NA & Caldart CC Technology, Law and the Working Environment 1991; Ashford NA Crisis in the
Workplace: Occupational Disease and Injury 1982.
Page 80
training of an adequate supply of research personnel, and conduct hazard
evaluations.
The NIOSH is obliged to consult with the Secretary of Labour in developing
plans for research, in preparing criteria documents and in conducting training
and employee education programs. It has been noted that these requirements
give NIOSH a role that is more supportive than authoritative. This is particularly
true in the standard-setting area where OSHA can either accept or reject, in
whole or in part, the recommendations for standards proposed by NIOSH.
In addition to these three agencies, section 7 of the Act establishes a National
Advisory Committee on Occupational Safety and Health which consists of
representatives of management, labour, occupational safety and occupational
health professions and the public. This Committee is required to advise, consult
with and make recommendations to the Secretary of Labour and the Secretary
of Health and Human Services on matters relating to the administration of the
Act. The Committee serves strictly in an advisory capacity and has no
administrative capacity. The Secretary of Labour may also appoint other
advisory committees to aid in the setting of standards.
3.1.7 Malaysia62
The Factories and Machinery Department (FMD) in the Ministry of Labour is the
government agency primarily responsible for plant and machinery safety on
industrial premises. It is responsible for the enforcement of the Factories and
Machinery Act (1967), to ensure the safety and health of workers in the
workplace, especially with respect to mechanical hazards and industrial
hygiene. The FMD also carries out special projects in selected industries and
62
Reich M.R. and Okubo T eds 'Protecting Workers' Health in the Third World - National and. International strategies, 1990
at pp 50 - 62; K Subramaniam, Malaysian Trades Union Congress OHS in Malaysia paper delivered to the United
Steelworkers of America National Health and Safety Conference, 1991.
Page 81
as a result develops various regulations. Another role the Department is taking
on is the running of training courses on general and specific aspects of OHS for
its own staff, union members, workers and management.
The Ministry of Health is also involved in the administration of legislation aimed
at safe-guarding the health of workers through its Occupational Health Unit.
Besides its enforcement role the Unit provides consultative services, with
particular emphasis on the medical aspects of occupational health. It also
undertakes promotional and educational activities for doctors, public health
nurses and inspectors.
There is a joint inter-Ministry Standing Committee on occupational health
comprising the Occupational Health Unit, the Industrial Hygiene Department of
FMD, the Social Security Organisation (responsible for administering the
workers’ compensation scheme), the Chemistry Department of the Ministry of
Science, Technology and Environment, and the Institute for Medical Research.
This committee coordinates and monitors activities such as workers exposure to
dust, chemicals and noise.
The National Productivity Centre of the Ministry of Trade and Industry offers
training programmes on industrial safety. The prime object of these courses is to
highlight the important relation between safety and production efficiency. The
centre also provides in-plant training on industrial safety and participates in
safety campaigns organised by factories.
In 1985 the government established the National Advisory Council for
Occupational Safety and Health. It consists of representatives of workers,
Page 82
employers and organisations whose activities are directed towards the
promotion of OHS. The function of the Council is to advise the Minister on the
formulation, implementation and reviewing of a national policy on OHS. The
Council consists of a Chairperson, 7 members representing government
departments, 6 members representing employers organisations, 6 members
representing the unions, 2 members representing the universities, one each
representing the Malaysian Society for Industrial Safety, the Institution of
Engineers Malaysia and the Malaysian Medical Association.
It is difficult to obtain detailed information on the work that has been carried out
by the Council. The Council has recommended that a new OHS Act be drafted
with wider application than the Factories and Machinery Act of 1967 and that a
new National Institute for OHS be established. The objectives of such an
Institute have been listed as to provide:
•
education and training, initially focused on the manufacturing sector;
•
consulting services;
•
a centre of information;
•
the initiation and coordination of research and a strengthened reporting
system for occupational diseases;
•
a focal point for the development of strategies of prevention in given
industries.
3.1.8 Hong Kong63
The Department of Labour is primarily responsible for the regulation of OHS.
Legislative requirements are enforced by the Factory Inspectorate Division
63
England J Industrial Relations and Law in Hong Kong OUP 1989 chap 13; Report of the Commissioner for Labour (1995)
Hong Kong.
Page 83
(FID), the Occupational Health Division and the Pressure Equipment Division.
The FID also provides training and advice to industry through its Safety Training
Centre.
The Occupational Health Division provides an advisory service to the
government and public on matters concerning the health of workers and the
hygiene of workplaces. It is also involved in training and promotion activities.
The OHD comprises the Occupational Medicine Unit (OMU) and the
Occupational Hygiene Unit (OHU). The staff of the OMU are responsible for
conducting medical examinations required under the Employees Compensation
Ordinance. The occupational hygienists of the OHU deal with the identification,
evaluation and control of physical, chemical and biological hazards.
In August 1988 the Occupational Safety and Health Council was established by
ordinance on recommendations submitted by a tripartite working group. The
function of the Council is to advise the Government regarding promotion of
safety, awareness, education and training and consultancy and to develop OHS
strategies and programmes. The Council is financed by a levy on employers of
1 per cent of the premium of the compulsory insurance policy taken out to cover
employees’ compensation.
4
WORKER PARTICIPATION
Whatever the particular institutional model in place for the administration of
occupational health and safety, an important determinant of the success of any
system is the level of bipartite collaboration between management and labour. This
can take place at sector and enterprise level. Below we look at initiatives in Denmark
and Ontario.
Page 84
4.1
Denmark64
In Denmark, the Working Environment Service exerts its influence through Sector
Safety Councils. At the enterprise level an Internal Safety Organisation is operative.
All enterprises with 10 or more employees (20 or more in the case of office work) have
a statutory duty to establish an Internal Safety Organisation.
The core of the Internal Safety organisation is the Safety Group which consists of the
foreman/supervisor and the employees’ safety representatives. A Safety Group is set
up for each department as a principal rule, but several departments may also choose
to have a joint Safety Group. The tasks of the Internal Safety Organisation are to
chart the individual working environment and establish action plans for problemsolving. The Internal Safety Organisation must also comply with safety regulations
and report and investigate occupational injuries.
Section 9 of the Working Environment Act provides that newly elected members of a
Safety Group must participate in a specified safety training course.
4.2
Canada: Ontario
A majority of Canadian jurisdictions require firms to establish joint committees with
elected worker representatives as vehicles for worker participation in reducing work
related disease and injury and improving the workplace environment. Ontario was
one of the first jurisdictions to promote joint committees, at first voluntarily, then as
mandated since 1978.
Ontario has evolved towards an ‘internal responsibility system’ in occupational health
64
Danish Working Environment Service: Working Environment in Focus (1992).
Page 85
and safety. This system seeks to empower both management and employees through
joint committees which take mutual responsibility for reducing hazards and injuries in
the workplace.
Recent amendments to the province’s health and safety legislation created a bipartite
authority - the Workplace Health and Safety Agency. It has the power to establish and
administer a unique certification process with mandatory training for members of
health and safety committees. It has also proposed an accreditation system for
employers who operate successful health and safety programmes and policies.
A Canadian commentator65 notes that historically the concept of labour and,
management as ‘equal partners’ in the workplace was associated almost exclusively
with unionization and collective bargaining. The most vociferous opposition to the
legislated joint committees came from non-union and smaller firms. After five years
experience with mandated joint committees in Ontario, a 1986 Advisory Council found
that management members of JHSCs were quite positive in their assessment of
committee relationships and the functioning of committees.
In Ontario, management have seen the evolution towards ‘self-regulation’ of the
internal responsibility system as a positive feature. There has been a growing
emphasis on empowering the workplace parties as a method of reducing the need for
government intervention. However unions argue that the purely advisory nature of
these committees disempowers worker representatives in a situation where
management chooses to ‘stonewall’ recommendations and gives low priority to the
work of the committee.
In a similar vein, a union health and safety expert has argued that there is “a need for
mechanisms which would provide workers with greater influence over health and
65
Paper by Bernard, Elaine Works Councils In North America? Mandated Joint Committees in Occupational Health and
Safety in Canada 1-38.
Page 86
safety decisions, and the enhancement of the external system of enforcement”.66
5
INSPECTORATES
5.1
A unified system?
One of the key issues regarding the efficacy of the inspectorate system is that of dual
systems versus the concept of a one-stop inspectorate. A one-stop inspectorate has
the capacity to monitor and enforce a variety of legislation, for example minimum
employment standards as well as OHS. Dual systems involve a number of specialised
inspectorates either accountable to one or more Ministries. An ILO report argues that
experience in many countries shows that even cooperation between two departments,
under one ministerial authority dealing with similar issues is rarely attainable to a
satisfactory degree.67
Dual systems tend to have their origins in historical rather than functional reasons.
Their productivity is not as a rule, commensurate with that of integrated systems
operating under similar conditions. The trend, it is suggested, in a considerable
number of industrial countries, has been in favour of establishing single, integrated,
comprehensive state labour inspection systems with functional responsibility for all
aspects of labour protection.
66
Dematteo, B 1991 "Health and safety Committees: The Canadian Experience" New Solutions (1, No.4) at 15.
67
International Labour Office: Report on Mission to SA (January 1996) at 4.
Page 87
Another ILO report68 which addresses labour inspection problems in the Central and
East European countries (CEECs) found that the highly inefficient disparity and lack of
coordination between different inspection bodies persists, in particular the dichotomy
between occupational safety and health inspection services. The Report argued that
this situation “impedes any effective preventative approach to labour protection and
the development of an integrated view of working environment problems.”
Despite the policy preference for a unified system, in practice the enforcement of
health and safety legislation rarely rests on one government department. For example,
in Denmark69 while the Working Environment Act applies to all sectors of industry, in
certain sectors its implementation lies with departments other than the Department of
Labour. Oversight of health and safety on sea-going ships lies with the Department of
Trade whilst aviation is the responsibility of the Department of Transport. Health and
safety on off-shore installations is monitored by inspectors from the Department of
Energy. The Ministry of Labour has an agreement with the Institute of Radiation
Hygiene, a part of the Department of Health, to monitor the use of ionising and nonionising radiation at work.
The Dutch model is singled out for praise by an ILO senior inspector’s Report.70 Here,
recent re-organisation in the Ministry of Social affairs and Employment has unified
different sectors of the labour inspectorate within a single body (i.e. health and safety,
wages, conditions of employment inspectorates). Responsibility for enforcing health
and safety legislation in certain industries still falls outside of the powers of this body
(the I-SZW).
68
Richthofen W. Von, 'Developing a Prevention Culture', Paper delivered to ILO/Hungarian State Labour Inspectorate
High-Level Tripartite Meeting on Labour Inspection Reforms in CEEC's, Hungary May 1996.
69
Labour Inspection (Health and Safety) in the European Union, Senior Labour Inspectors' Committee, November 1995.
70
Page 88
The duty of monitoring standards of health and safety in salt mines, gas exploration
and off- shore oil sites lies with a mine inspectorate who form part of the Ministry of
Economic Affairs. Inspection in the road transport sector (e.g. haulage and taxi
companies, water transport sector and fishing and air transport sectors) is carried out
by inspectors from the Ministry of Transport. However, overall responsibility for health
and safety legislation and the formulation of policy remains with one Ministry, the
Ministry of Social Affairs and Employment.
5.2
The issue of Training
One of the reasons for the survival and development of the HSC/E in Britain is
considered to be the endorsement by stakeholders from across the spectrum of the
quality of service delivered by the HSE staff.71 The personnel complement of the HSE
reflects a high level of professionalism and expertise. The variety of disciplines
represented among its staff reflects upon the range of tasks the body carries out.
Among the HSE inspectorate, there are specialist and non-specialist-inspectors (the
first often recruited with extensive industrial experience and chartered or equivalent
status in a wide range of disciplines), the second recruited at graduate level. These
inspectors can seek specialist advice from other sectors of the HSE staff which
include scientists, lawyers, statisticians, economists, information officers, doctors,
nurses, psychologists and engineers. There are cells of expertise in subjects as
diverse as ergonomics, stress corrosion cracking, expert systems, fluid dynamics and
behavioural psychology.72
Educational and training requirements for new recruits to the HSE is of a high
standard.
71
Health and Safety Executive (UK) 20 Years into the New Era: Some Reflections (1995) at 21.
72
Page 89
For example, recruits to the local authority inspectorate are required to have the
appropriate qualifications for university entrance and most are recruited from school at
18 years of age. They then undertake a four year vocational degree course in
environmental health which includes a health and safety component. Recruits who
already possess a good honours degree in a scientific discipline can undertake a two
year Masters degree course in environmental health which is available at two
universities. The ability to communicate effectively at all levels is considered an
important requirement.
The training period for new inspectors is just over two years. During that time the
inspector will receive a mix of formal academic training, a job related programme of
tutorials and on the job training in the practical skills of inspection. Training for
established inspectors is also provided.
The high standard of qualifications amongst the inspectorate is evident in other
European countries. In Denmark73 the staff of the field force of the Working
Environment Service, as of 1995, consisted of:
•
graduate engineers, about 45 in post
•
mechanical engineers, about 90 in post
•
staff with a craft training in the use of machinery or in construction, about 60 in
post
•
73
therapists or nurses with four years training, 39 in post
Page 90
Additionally there are 4 medical doctors, 5 pharmacists and 38 graduates in
economics, law or psychology.
Initial training for all new recruits extends over a period of at least one year. All attend
the formal training courses, while each follows an individual programme as well. This
is drawn up following an assessment of their training needs and bearing in mind their
previous experience and background and the job they are to do in the Working
Environment Service. There are also a number of training opportunities for established
inspectors.
The skills pool as well as the level of funding available in countries such as Denmark
are objective factors which contrast with the conditions prevalent in developing
countries, as well as in the CEECs. It is evident that the status of health and safety
personnel amongst stakeholders and within the broader community directly impacts
upon the success of building a culture of prevention in the society as a whole. In turn,
pressure on health and safety organisations from an educated public helps to sharpen
the service provided. For example, in the United Kingdom, since the establishment of
the HSE, there has been a more critical and challenging attitude prevalent to much of
what the organisation does. This has shown itself in the demands for more
information, more reassurance and for visible activity, competence and determination
by inspectors and others.74
5.3
Approaches to Enforcement
An Australian commentator has noted that the classic dilemma of an enforcement
agency is whether to punish or persuade. Should these agencies aim to prosecute
and punish the violations which they uncover in the course of their inspections, or
74
Page 91
should they seek to persuade violators, by means of education, exhortations and
warnings? No matter what balance is struck between punishment and persuasion as a
means of achieving compliance with regulations, a key factor of efficacy is the activity
of the health and safety agency and the resources available to the inspectorate.75
In those areas where resources have been concentrated, notable improvements in
health and safety have been achieved. In the US coal mine industry, for example,
health and safety has been shown to be directly affected by the size of the
government budget allocated to coal mine regulation. In Australia a dramatic success
story is the virtual elimination of black lung disease from underground coal mining as a
result of strenuous enforcement efforts by the regulatory authorities.76
The recognition that resource allocation and effective institutional arrangements are
key to successful regulation does not detract from the importance of policy choices
regarding the enforcement system. The efficacy of administrative rather than criminal
enforcement is of particular importance in enforcement policy.
Societies do not generally view health and safety violations as criminal in the strict
sense. Safety regulations are designed to forestall the possibility of harm. In this
respect they are like traffic regulations. The violation of such a regulation is not in itself
harmful, it simply increases the likelihood of a harmful occurrence. Of course,
breaches of some types of OHS regulations can normally be expected to produce
some form of harm, for example those relating to hazardous substances.77
75
Hopkins A "Approaches to Safeguarding the Worker" in Quinlan M (ed) Worker Health: The Origins, Management and
Regulation of Occupational Illness (1993) at 172/3.
76
Hopkins A "Approaches to Safeguarding the Worker" in Quinlan M (ed) Worker Health: The Origins, Management and
Regulation of Occupational Illness (1993) at 174.
77
Hopkins A "Approach to Safeguarding the Worker" in Quinlan M (ed) Worker Health: The Origins, Management and
Regulation of Occupational Illness (1993) at 171.
Page 92
In a number of countries, administrative enforcement of health and safety regulations
is regarded as more effective than a purely criminal law-based system. This is in
recognition of the fact that there are limitations to a prosecution-based approach. In
the USA, Canada, Sweden and other countries in Europe, enforcement agencies have
been given the power to impose significant administrative fines on employers.
Studies have indicated that a system of administrative penalties is more able to
identify employers who warrant sanction, attaches greater weight to a firm’s
compliance history and does not reserve penalties for offences that actually result in
injury or deaths. These penalties reflect ‘observed conditions’ and are imposed as a
result of inspections.78
It has been noted that “A prosecution may be useless where a violation is continuing and
results from circumstances that are difficult to change, or impossible to
change immediately. For example, if an industry is operating at high
levels of contamination, the situation may not be so immediately
hazardous as to require a closure order, but it may require sanctions to
bring about remedial action. In some of these situations, the only
sanction available may be a penalty assessment payable monthly and
continuing until the situation is remedied.”79
The amount of the administrative penalty and the situations when it is imposed are
important in regard to the success of the system. The American Occupational Safety
and Health Act (OSH Act) classifies violations as non-serious, serious, failure to
abate, repeated and willful. For non-serious violations fines are discretionary. For
serious violations a fine is compulsory, while repeated and willful violations carry
substantial penalties.80
78
See e.g. RM Brown 'Administrative and Criminal Penalties in the Enforcement of Occupational Health and Safety
Legislation' (1992) 39 Osgoode Hall Law Journal 691.
79
80
T G Ison Compensation Systems for Injury and Disease: The Policy Choices ( Butterworth’s 1994).
Kelman S, Regulating America, Regulating Sweden: A Comparative Study of Occupational Health and Safety Policy (MIT
Press, 1981) at 181.
Page 93
The US employer is fined for failure to abate when that employer has previously been
cited for a violation and the violation has not been corrected after the period permitted
for abatement. In 1990, the OSHA formalised a new policy under which an employer
is cited for each individual violation, rather then clustering all similar violations together
before assessing the penalty. The net result has been the imposition of very large civil
penalties. This policy has been used most often to achieve settlements in which a
corporation agrees to remedy its violations throughout all of its facilities.81 An
American trade union has commented on the effectiveness of this approach ”Where OSHA has focussed its enforcement efforts, workplace injuries,
illness and fatalities have declined significantly ... At individual work sites
where OSHA has inspected and cited and penalized employers for
violations, injury rates have declined an average of 22 per cent ... But
where OSHA has focused little attention, and compliance has been
largely voluntary, injury and fatality rates have changed very little.”82
The American approach is to relate fines to the number of violations rather than to
their consequences. In British Columbia, penalties are graduated depending on the
nature of the violation and the size of the firm’s payroll.83 The guidelines for application
of sanctions in British Colombia include:
•
mandatory consideration of a penalty assessment in high-risk work situations;
81
Kauff SE, "Compulsory Disclosure of Hazards, Emergency Planning and Training in the Workplace: India's Factories Act
and the United States' Hazard Communication Standard" (1996) 17 Comparative Labour Law Journal.
82
United Mine Workers of America, Report on Health and Safety (September 1995).
83
Rest KM and Ashford NA Occupational Safety and Health in British Columbia: An Administrative Inventory (1992) at
107.
Page 94
•
mandatory consideration of a penalty assessment where in the opinion of the
inspector, workers have knowingly been exposed to serious hazards;
•
mandatory consideration of penalties in situations of previous non-compliance
with regulations or orders and where persuasive means have failed.
In Europe the approach to quantifying the penalty has been to take a number of
factors into account. For example, in Italy, fines may be multiplied by the number of
employees affected by the provisions which have been infringed. In Portugal, the
quantum of any fine is graduated by the number of workers involved, the gravity of the
offence and the company’s known turnover. The fine must be situated within a
minimum/ maximum band laid down in the relevant legal text.84
The administrative enforcement system incorporates review and appeal proceedings.
In British Columbia there are both informal and formal avenues of appeal for
employers who disagree with the results of an inspection. The first level of contest
about the imposition of a penalty assessment occurs at an informal administrative
review. The decision here is appealable by an employer to an administrative appeal
division. Employer defences include that on a balance of probabilities, the employer is
actively pursuing a programme of compliance or that the penalty order resulted from
the independent action of workers who have been properly instructed, trained and
supervised.85
It is certainly arguable that the institution of criminal prosecutions draws the resources
of the inspectorate away from other tasks. There are severe difficulties in
84
85
"Labour Inspection in the European Community Health and Safety Legal Systems" at 200 and 284
Rest, JM and Ashford NA Occupational Safety and Health in British Columbia: An Administrative Inventory (1992) at
xxv and xxvi.
Page 95
securing convictions for offences other than those involving technical breaches of
regulations because of the standard of proof required in criminal cases.
Criminal enforcement does however remain necessary in certain instances.
Administrative enforcement is designed to ensure that management systems for
health and safety are established and complied with. But it is necessary to limit this
system to the regulatory offence. The importance of retaining criminal prosecutions for
some offences has been underlined by American commentators who have called for
the American system to extend the liability for criminal penalties to encompass both
serious bodily injury and fatalities.86
6
WORKERS COMPENSATION
National workers’ compensation schemes take a variety of forms. Most systems of
workers’ compensation in Europe are heavily integrated with the general social
security system and are being funded in the same way as general sickness benefits .
New Zealand’s scheme is part of a national no-fault scheme, which covers all
accidents, not just work accidents. Of the 136 countries who have workers’
compensation, only three organise their schemes on a sub-national level. These are
Canada, the United States of America and Australia.
Workers’ compensation arrangements originally focused on paying compensation to
those suffering injury in the course of their employment. More recently, the role such
arrangements can play in prevention has been emphasised. In addition, increasing
attention is being paid to rehabilitation and return to work.87
86
See McGarity and Shapiro Workers at Risk: the Failed Promise of the Occupational Safety and Health Administration at
220.
87
Australian Industry Commission "Workers' Compensation in Australia, vol 1: Report (1993) at XXII.
Page 96
6.1
Integrated Schemes
The focus on prevention has led to support for integrated OHS and compensation
systems. For example, the Australian Industry Commission88 found that a number of
arguments favour a centralised authority co-ordinating prevention, compensation and
rehabilitation . These are:
•
all three functions have the same overall objective, to minimise the total costs
of work-related injury and illness;
•
it facilitates developing better statistics and research;
•
it enables better targeting of prevention efforts in areas not adequately
addressed by workers’ compensation;
•
it allows potential economies of scope to be realised; and
•
it improves accountability.
The Australian Workcover Scheme (New South Wales) resulted from the
amalgamation of the Occupational Health and Safety Inspectorate with the
Compensation and Rehabilitation Administration. The rationale for combining the
Inspectorate and the Workers Compensation Administration is that their functions are
complementary. The activities of the Inspectorate can help reduce worker’s
compensational costs by targeting establishments with bad claims records for
intensive investigation. At the same time, workers’ compensation provides a system of
incentives which the authorities can use to encourage employers to improve their
health and safety standards. Rehabilitation comes under the same organisational
88
Australian Industry Commission "Workers' Compensation in Australia, vol 1: Report (1993) at 54 & 55.
Page 97
umbrella because of the potential contribution which effective rehabilitation
programmes can make to getting workers back to work and thus reducing employers’
compensation costs.
Workcover is self-funding, that is, funded not from government budgets but primarily
out of workers’ compensation premiums. Introducing the new system in Parliament,
the responsible Minister claimed it would:
”Increase the return to industry and the State from the significant
investment in occupational health and safety; enable the Government,
together with occupational health and safety professionals, to set the
occupational health and safety agenda; provide the means by which the
State’s occupational health and safety resources can be focused on
workplaces, work accidents and work practices that are of greatest cost
to industry and place upward pressure on Workcover premiums;
establish one body that should be accountable for movements in
Workcover premiums; provide an opportunity to upgrade the quality of
co-ordination and management of occupational health and safety
resources.” 89
The Workers’ Compensation Board (WCB) of Quebec, Canada is an agency of the
government, but is administered independently under enabling legislation, and has its
own Board of Directors. (Under legislation recently introduced, the WCB will change
its name to the Workplace Safety and Insurance Board (WSIB), on July 1, 1997). The
WCB is funded by employer premiums according to the measure of risk in the industry
to which the workplace belongs. Operations of the WCB deal with workers’
compensation claims, including compensation, rehabilitation and return to work for
injured workers.
The Workers’ Compensation Act of British Columbia also provides for an integrated
OHS and compensation system. Under the Workers’ Compensation Board, an
administration provides insurance, an adjudicating tribunal, rehabilitation services and
enforcement of OHS. The Workers’ Compensation Board of British Columbia was
89
Fahey, Legislative Assembly Debates (New South Wales), 1 August 1989, p. 8824.
Page 98
created by the Workmen’s Compensation Act, 1916. The original draft of the Act did
not envisage a prevention system centralised in the Board. Rather, it provided for
each class of industry to make and enforce rules under the Board’s general
supervision. The draft was reviewed by a Committee of Investigation, whose report
(commonly known as the Pineo Report) was presented on 1 March 1916. This report
concluded that the making of rules and enforcement should be under one Board, but
that the Board should consult with worker and employer representatives in making the
rules. The Report stated at page 9 “Experience has shown that the advantages of having the prevention of
injuries go hand in hand with the administration of medical aid and
compensation to the injured workman have been made. We advocate
making this important subject of accident-prevention one of the principal
departments of the Board. In our opinion the ultimate, if not the
immediate, aim in this Province should be the centralising of these and all
similar inspection activities under the Board, so that the same body which
is brought into immediate touch with accidents and their causes shall also
have charge of the fostering of these conditions which tend to do away
with the possibility of accidents and make the payments of compensation
unnecessary”.
Based on the British Columbia experience, it has been noted that -
(i)
The cost of operating the health and safety inspectorate is borne by the
employers as opposed to the general taxpayer when the inspectorate is part of
the compensation system. In this regard primary benefits to government are
that -
(a)
inspectorate resourcing is not in competition with government’s higher
social priorities;
(b)
a higher quality inspectorate is possible because wage levels are not
caught up in a comparative process to other government ministries.
Page 99
The overall cost to employers is relatively small. In British Columbia for
example it is less than 10c per $100 payroll. The penalty system operated in
British Columbia allows an additional premium to be applied to employers
where serious or repeated non-compliance with the regulations is identified.
The system is very efficient from a resource input perspective and the fines
provide a reduction in the costs of compensation to employers as a whole.
(ii)
The wealth of data from a compensation claim data base can be extremely
important to preventative strategies. An agency can never have sufficient
resources to inspect every workplace. Research of data provides targeting
information so that resources can be applied to workplaces with the highest
injury rate to achieve maximum effectiveness. The data allows for occupational
hygiene issues and trends to be identified. Knowledge of the cost of injuries
provides a powerful tool to motivate management of a workplace to participate
meaningfully in prevention strategies.
(iii)
While most enforcement agencies have an "activity” emphasis (i.e. how many
inspections, penalties and prosecutions have been achieved), linkage to the
compensation system allows a “results” orientation. The strategies and
interventions can be linked to targeted reductions in injury rate, fatalities,
absolute number of claims and severity (duration) of injury and the outcome or
results monitored.
(iv)
Premium rates can provide prevention incentives at workplace level.
(v)
The compensation system benefits from the inspector’s expertise and
knowledge of the workplace when work-relatedness of a claim is questioned.
Page 100
(vi)
Causality research of data drives research and development priorities.90
6.2
Discrete compensation schemes
While the trend appears to be towards developing integrated systems for OHS and
compensation, many jurisdictions do maintain a formal separation of these functions.
Below we look at the Wisconsin model91 in some detail in order to exemplify the type
of administration that can maintain a well functioning system.
The Wisconsin system is generally regarded as a successful low-cost scheme. It is a
model based on private insurers overseen by a state regulator.
The Worker's Compensation Division of the Department of Industry, Labor and Human
Relations (DILHR) is the agency that is primarily responsible for the administration of
workers’ compensation. Appeals of division decisions are reviewed by the Labor and
Industry Review Commission (LIRC). This is an independent agency that is attached
to the DILHR for administrative and budgetary purposes. Further appeals are made to
the circuit court , the court of appeals, and ultimately the state supreme court.
The attorney-general’s office investigates and prosecutes cases involving fraud and
defends the special funds. The Office of the Commissioner of Insurance monitors
workers’ compensation carriers and the division’s Bureau of Insurance Programs
approves self-insured employers. Revenues obtained from assessments are held and
dispersed by the state treasurer. Referrals for vocational services are made to the
Division of Vocational Rehabilitation within the Department of Health and Social
Services.
90
From comments received from Ralph W McGinn, Vice-President, Prevention Division, Workers Compensation Board of
British Columbia.
91
Information from Ballantyne, DS and Telles CA Workers' Compensation in Wisconsin: Administrative Inventory
(Workers Compensation Research Institute, 1992).
Page 101
The Worker’s Compensational Advisory Council advises the DILHR and the division
on policy issues and develops a biennial legislative package. Of the members of this.
Council only the five labour and five management representatives have voting rights.
Voting control means that other interest groups must seek the endorsement’ of labour
and management to bring proposals to the legislature for action. The non-voting
members include three insurers and two legislators. The division administrator serves
as ex-officio chair.
The Worker’s Compensation Division implements the decisions arrived at by the
Council. The division’s primary responsibilities include preventing and resolving
disputes, monitoring claims, maintaining records, enforcing insurance requirements,
handling self-insurance requests, and administering special funds. In 1991 division
staff consisted of the equivalent of 101 full-time positions.
The Bureau of Claims Management is responsible for maintaining all records
pertaining to injury and occupational disease claims, as well as all correspondence
related to these claims. Within the Bureau the Claims Processing Section examiners
open claims, set up computer files, and perform basic monitoring. Wage analysts
spot-check claims to verify that the proper wage is used to calculate benefits.
The Bureau’s Claims Analysis and Compliance Unit (within the Claims Control
Section) provides information to, interprets administrative rules for, and helps workers
and other system participants through written and telephone contacts. To help resolve
misunderstandings and prevent the need for hearings, correspondents often contact
employers, insurers, and medical care providers in response to a worker’s request for
help. The Bureau’s Data and Research Section handles all of the division’s
automation and produces statistical reports and analyses as requested.
Page 102
The Bureau of Legal Services comprises the bureau director, two supervising
attorneys and 19 administrative law judges who hear and decide claims for benefits,
and approve compromise agreements and attorney’s fees. In addition to holding
hearings and writing decisions, judges in Wisconsin resolve disputes over medical
payments by reviewing submissions from the parties and issuing written decisions.
Administrative appeals of judges’ decisions are handled by commissioners at the
Labor and Industry Review Commission.
Administration of the workers’ compensation system is funded with revenues collected
through an assessment on insurers and self-insured employers. The assessment rate
is determined each year by dividing the net operating cost of administering the system
in the current fiscal year by the total amount of indemnity benefits paid on cases
initially closed in the previous calendar year. The assessment charged to each insurer
and self-insurer is calculated as the amount of indemnity benefits paid multiplied by
the assessment rate.
The Worker’s Compensation Act of Wisconsin (Chapter 102) authorises eight different
types of benefits:
•
Medical benefits
•
Temporary total disability (TTD) benefits
•
Temporary partial disability (TPD) benefits
•
Permanent total disability (PTD) benefits
•
Permanent partial disability (PPD) benefits
•
Disfigurement benefits
•
Death benefits
•
Rehabilitation benefits
Wisconsin’s ability to pay reasonable benefits at lower-than-average cost results from
Page 103
system features that promote return to work and prevent litigation and attorney
involvement. Key system features identified as working in combination to provide
incentives for early return to work are:
•
the fact that employers face much larger PPD liabilities if they do not offer the
worker a job paying at least 85 per cent of pre-injury earnings than if they do;
•
workers face a financial incentive to return to a well paying job rather than
delay return to work in the hope of a greater payout;
•
employers are fined for unreasonable refusal to hire injured workers;
•
with evidence from a doctor that the worker is no longer injured, insurers and
employers may unilaterally cut off benefits; and
•
Wisconsin requires a greater degree of impairment to receive PPD payments
than other states.
7
FUNDING PREVENTION AND PROMOTIONAL ACTIVITIES
Comparative research indicates that funding for prevention and promotional activities
is not restricted to allocations from the fiscus. Many countries utilise monies levied
from employers by workers compensation and other social insurance schemes. Some
of the arrangements of this type are briefly referred to below:
Page 104
7.1
Washington USA92
In January 1990 the State of Washington established project SHARP (Safety and
Health Assessment and Research Program). The Department of Labor and Industries
oversees both the state OSHA plan and the workers compensation law. SHARP was
conceived as a programme to identify emerging safety and health issues before
workers are exposed to hazards. Eleven full time staff were authorised with an initial
budget of $1.3.million. The programme is funded 50% by the State Accident Fund and
50 per cent by the Medical Aid Fund.
7.2
Connecticut USA93
Connecticut operates a Division of Worker Education under the jurisdiction of the
Workers’ Compensation Division. The Division provides educational services to
employees. It also loans certain equipment to workers, free of charge, for the purpose
of measuring noise, monitoring air quality etc. It is financed by an assessment of .2 of
one percent of benefits paid by insurers and self-insurers in the previous year.
7.3
Western Australia94
The Workers’ Compensation and Rehabilitation Commission (Workcover) of Western
Australia allocates a proportion of its income earned through premiums paid by
industry to research and prevention. For example in 1995 the Commission agreed to
fund the establishment of a Manual Handling Resource Centre which will assist
industry develop solutions for manual handling problems. WorkCovers’ 1994/95
Annual Report also records the completion of a five year research programme into
cancer prevention for high risk subjects previously exposed to asbestos.
92
See Workers Compensation: A Resource Manual from the AFL-CIO.
93
See Workers Compensation: A Resource Manual from the AFL-CIO
94
WorkCover Annual Report 1994-1995.
Page 105
7.4
Hong Kong95
The Occupational Safety and Health Council established by ordinance to promote
safety, education, training and develop strategies and programmes on OHS is
financed by a levy on the employer of 1 per cent of the premium of the compulsory
insurance policy that must be taken out to cover employees compensation. The
insurer collects the levy and then remits it to the Council.
7.5
British Columbia96
The Workers’ Compensation Board of British Columbia is an independent Crown
corporation and is financed in full by assessments against employers imposed and
collected by the Board. The staff appointed by the Board to administer the integrated
compensation and OHS system of the state are remunerated through payments from
the accident fund. (Section 86 Workers Compensation Act of 1979). A major role of
the Board is to contribute to standard setting, research and promotion of prevention in
the OHS field.
7.6
Zimbabwe
In Zimbabwe significant resources have been invested into the development of
awareness of OHS issues. This has been achieved by the state, initially through the
Minister of Labour and later through the tripartite National Social Security
Authority(NSSA), regularly allocating a proportion of workers compensation funds
95
96
England J Industrial Relations and Law in Hong Kong (1989) Chapter B.
Rest KM and Ashford NA Occupational Safety and Health in British Columbia: An Administrative Inventory 1992 at p. 47
and 247.
Page 106
towards programmes of awareness and training.97
7.7
Switzerland
The Swiss Federal Accident Insurance Act of 1981 penalises undertakings with a bad
safety record by imposing supplementary premiums. The proceeds of these are used
to fund occupational health and safety campaigns and occupational health and safety
research.98
8
CONCLUSION
This study has drawn on available literature on comparative OHS institutions and
legislation. Few sources, particularly in respect of developing countries go beyond a
description of the basic structures and applicable laws. It is therefore wise to approach
the material with a measure of caution. International labour lawyer Otto Kahn-Freund
sounds this warning in the following way “We cannot take for granted that rules or institutions are transplantable ...
any attempt to use a pattern of law outside the environment of its origin
continues to entail the risk of rejection. The consciousness of this risk will
not, I hope, deter legislators in this or any other country from using the
comparative method. All I have wanted to suggest is that its use requires
a knowledge not only of the foreign law, but also of its social, and above
all its political context”.99
Participants in the development of a national OHS policy will need to have a greater
97
Loewenson R OHS in Zimbabwe (1994) Paper to Conference on Occupational Health in Southern Africa
98
Perrin G Social Security and Occupational Risks ILO Encyclopaedia on Occupational Health and Safety at 2080.
99
O Kahn-Freund “On Uses and Misuses of Comparative Law” (1974) 37 Modern Law Review at 27.
Page 107
knowledge of comparative material than it has been possible for this study to provide.
The limited research we have been able to undertake does however suggest that
particular attention should be paid to the United Kingdom and Zimbabwe. It also
provides us with a basis on which to identify major international trends in occupational
health, safety and compensation systems. Some of these are •
The enactment of enabling legislation i.e., one major statute containing a series
of general provisions supported by more specialised codes of practice and
regulations;
•
The separation of policy and executive / administrative tasks relating to OHS;
•
The establishment of tripartite bodies to inform policy development and develop
a more participatory approach by the social partners at various levels;
•
The upgrading of professional input into OHS strategy through the involvement
of universities, professional bodies, NGOs, etc;
•
The identification of a preventative role for compensation agencies as part of
the general trend towards a more comprehensive OHS system;
•
The enhancement of OHS coordination by giving one ministry (usually labour)
overall responsibility for administration and legislative development of OHS.
PART B:
AN OVERVIEW OF PROBLEMS IN THE
REGULATION OF OCCUPATIONAL
HEALTH AND SAFETY IN SOUTH AFRICA
Page 108
CHAPTER FOUR:
THE COST OF OCCUPATIONAL ACCIDENTS AND
WORK-RELATED ILL-HEALTH
In South Africa a lack of definitive cost studies as well as the extensive underreporting of occupational accidents and work-related ill-health conceal the true costs
of occupational accidents and work-related ill-health. In this Chapter we seek to
estimate these costs to the South African economy and society. We start with an
overview of the available official statistics.
1
THE EXTENT OF OCCUPATIONAL ACCIDENTS AND DISEASES
In 1991, 1 682 employees are known to have died in occupational accidents. In the
same year 14 780 employees were permanently disabled as a result of occupational
accidents and 99 919 received compensation for temporary total disablement. The
Compensation Fund also provided medical aid for another 126 841 workers.100 The
greatest proportion of accidents occur in the industrialised provinces of Gauteng
(32%), Western Cape (21%) and KwaZulu/Natal (19%). The figures for Gauteng and
Western Cape are disproportionate to the size of the working population which is 24%
and 12% of the total working population respectively. More than 80% of injuries are to
men and more than 80% of cases are reported from urban areas. Sixty-nine percent
of all disabling injuries are to the arms, hands and fingers, injuries that have
particularly serious consequences for manual and semi-skilled workers.
The most hazardous industries are fishing, transport, mining, wood, building and
construction. This is illustrated by the following tables showing the accident frequency
100
These figures are drawn from the Compensation Commissioner: Report on 1991 Statistics - the most recent year for which
these figures are available. Readers wishing to obtain a fuller profile of occupational injury and disease are referred to Chapter
Three of the Report of the Department of Health Committee on Occupational Health (January 1996).
Page 109
rate and accident severity rate in the ten most dangerous sectors.
Occupational accident frequency rate
by Industry
Industry
Frequency
Rate (%)
Fishing
Transport
Wood
Mining
Building & Construction
Iron & Steel
Food, Drink & Tobacco
Glass, Bricks & Tiles
Printing & Paper
Local Authorities
30.36
18.48
14.57
12.00
10.15
10.08
9.59
9.49
7.81
7.46
All Industries
7.21
Occupational accident severity rate
Industry
Severity Rate
Transport
Fishing
Mining
Wood
Building and
Construction
Glass, Bricks & Tiles
Agriculture & Forestry
Diamonds, Asbestos,
Bitumen
Iron & Steel
Local Authorities
All Industries
4.14
2.94
2.67
2.01
1.93
1.48
1.36
1.19
1.18
1.14
1.11
Note: Accident frequency rate = Number of injuries/Number of worker-hours exposure (top ten industries)
101
Accident severity rate = Total time loss in days/Number of worker-hours exposure (top ten industries)
1995 figures for the number of fatal accidents reveal a similar trend Sector
Number of fatal accidents
Mining
533
Transport
492
Building and construction
114
Agriculture and forestry
82
Iron and steel
59
Timber
23
Occupational diseases are extensively under-reported and official statistics give an
incomplete picture of their prevalence. Changes in compensation legislation have
resulted in changing patterns of occupational disease claims. In 1991 there were 104
101
Report of the Department of Health Committee on Occupational Health (January 1996) at 35.
Page 110
successful claims for compensation for diseases scheduled in terms of the Workmen’s
Compensation Act. Of these 80 were for silicosis or asbestosis. In 1996, the number
of claims under the COID Act was 2 482 broken down as follows Occupational diseases reported under COID Act - 1996
Asbestosis
129
Silicosis
59
Pneumoconiosis
52
Pleural Thickening
29
Bronchopulmonary Disease
37
Byssinosis
16
Occupational Asthma
141
Dermatitis
305
Mesothelioma
52
Tuberculosis
205
Hearing impairment - noise induced
1219
“Major depression”/post traumatic stress
192
Fibrosis of the lung/lung conditions
14
Overstraining of muscular tendinous insertions
8
Other conditions
24
TOTAL
2482
Even then, this remains less than 1 % of total compensation claims. Changes in the
criteria for compensation under the ODMW Act which took effect in 1994 have
resulted in a sharp decline in compensable cases. The total number of compensable
cases has declined from 7 957 in 1992 to 2 032 in 1995/96. Due to a change in the
criteria for compensation, discussed in Chapter Two, the number of compensable
cases of tuberculosis declined from 5 220 to 694. According to the Report of the
Department of Health’s Committee on Occupational Health, the expected number of
Page 111
cases of occupational disease in South Africa is likely to be “of the order of tens of
thousands”.102
2
ESTIMATING THE COSTS OF OCCUPATIONAL ACCIDENTS AND WORKRELATED ILL-HEALTH
A 1986 ILO publication summarises the position as follows "Occupational accidents and diseases are costly. For the community as
a whole, they represent a burden which is constantly growing and which
affects the standard of living of everyone, to the point that one can well
ask whether the money spent paying for them would not be better used
in financing the efforts of all those who, throughout the world, are
devoting their knowledge and their research efforts to prevention.
This is one good reason among many why we should know as accurately
as possible the real cost of employment accidents and occupational
diseases. The results of research and the statistical data published in
many countries, especially the industrialised ones, provide a certain
amount of information which, however, shows how difficult it is to draw a
precise list of the numerous elements which make up this cost. While
some of these elements can be isolated and quantified easily, others are
much more difficult to perceive accurately. Different countries and
different authors use numerous methods - mathematical, statistical or
empirical - to define and assess these various elements.”103
The publication quantifies and assesses costs of occupational diseases and workrelated accidents as a ratio of gross domestic product (GDP). This macro approach
puts costs in national perspective.
The ratio of costs/GDP for various countries is shown in the table taken from the ILO
Report (at page 126). The ratio varies from 0,87 to 3,25.104
102
At page 7. An American study has suggested that in America there are 500 000 cases of occupational disease annually
among a workforce of 100 million (Markowitz S. Counting occupational illness. Draft report. Division of Environmental and
Occupational Medicine, Mount Sinai Medical Centre, New York, 1994). A British study estimates that a total of 2.2 million
people in Britain are estimated to have an illness caused by or made worse by work (over 5% of all adults who have ever
worked). Of these, about 1 480 000 were still economically active, that is 1 in 18 of the workforce; but for about 45% of these,
although they suffered some illness in the previous twelve months, it did not force them to take time off work.
103
Andreoni D The Costs of Occupational Accidents and Diseases (Geneva, 1986).
104
The calculation excludes the cost of prevention; if this were included the overall cost of occupational diseases and injuries
on the national economy would be significantly higher.
Page 112
Consequential cost of occupational injuries as a ratio of gross domestic
product
Country
Year
Cost (in
billions of
national
currency
units)
GDP (in
billions of
national
currency
units)
Ratio
Cost/
GDP
(%)
Belgium
1976
45
2 473
1.82
France
1977
51
1567
3.25
Germany
(Fed. Rep.)
1972
1972
12.4
20.0
829.7
829.7
1.49
2.42
Italy
1980
1967
33
1 057
1 630
94 274
2.03
1.12
United Kingdom
1969
-
-
0.87
United States
1973
1974
1977
14.0
15.3
20.7
1 548.5
1 528.8
1 779.2
0.91
0.94
1.17
A more recent and highly authoritative study on the cost of occupational accidents and
work-related ill-health has been undertaken by the British Health and Safety
Executive.105
The study itemises the costs of work accidents and work-related ill-health to
employers as including the following elements -
•
payment of compensation to injured workers (in South Africa this cost would
largely reflect in the employer’s compensation assessments);
•
costs of any medical treatment provided by the employer;
•
legal fees and administrative expenses;
105
Neil V Davis and Paul Teasdale The Cost to the British Economy of Work Accidents and Work-Related Ill-Health (HSE,
1994).
Page 113
•
loss of output (due to absence of injured or ill workers or plant damage) or
additional costs of maintaining output;
•
costs of replacing workers including costs of hiring and training;
•
costs of investigation (including lost output due to suspension of production);
•
costs of clearing up and repairing damage to plant and environment;
•
penalties payable for delays in meeting contract obligations;
•
fines or other penalties imposed by authorities and legal costs of proceedings;
•
loss of good will and reputation with work-force, customers and local
community.
This study concludes that the total costs of occupational accidents and work-related
ill-health are higher than had been previously believed because earlier studies had not
taken sufficient cognisance of costs which form part of the total costs to society.
These costs include •
the loss of current resources (materials, labour services and capital) which
would otherwise be available for other purposes;
•
an estimate of the annual costs of provision for major and infrequent accidental
loss;
•
the loss of potential future labour services from the victims; and
•
the loss of welfare occasioned by the pain, grief and suffering caused by injury
and disease, and premature death.
Page 114
The study concluded “The overall cost to the British economy of all work accidents (including
avoidable non-injury accidental events) and work-related ill health is estimated
to be between 6 and 12 billion pounds. This is equivalent to between 1 % and
2% of total Gross Domestic Product. This includes the property damage
incurred by industry (2,6 to 7.1 billion pounds), loss of potential output from
the reduction in the available labour force (around 3 billion pounds), the cost
of medical treatment (between 100 million and 450 million pounds) and
administration costs incurred by firms, insurance companies and the
Department of Social Security (around 600 to 1 200 million pounds). The total
costs to society as a whole, including the estimate made for the loss of
welfare resulting from pain, grief and suffering of individual victims and their
families is estimated at between 11 billion and 16 billion pounds. This is
equivalent to between 2% and 3% of total Gross Domestic Product, or a
typical years economic growth. Illness accounts for about 4 to 5 billion pounds
of this and accidents 6 to 11 billion pounds”. (At iv)
While neither study can be extrapolated directly to South Africa, they do provide
indicators of the debilitating effects on the national economy of occupational accidents
and work-related ill-health.
The 1996 Gross Domestic Product (GDP) for South Africa is R483 billion. Three
percent of the GDP is R14,5 billion and 4 percent is R19,3 billion. Even a one percent
reduction (relative to the GDP) in the costs of occupational diseases and accidents will
be sufficient to fund major capital projects and is a spur to employers, employees and
the state to participate in major prevention strategies. Whether such a reduction is
possible will have to be addressed in the design of prevention strategies.
The Committee has endeavoured to develop an indicator of the total costs by
extrapolating from known information. The table below seeks to estimate the total
costs of occupational accidents by positing a relationship of 1:1:5 between
compensation, indirect (or hidden) costs and property damage106. In addition we have
made use of the assumptions in the 1994 Health and Safety Executive study to
106
This method is proposed in a letter from NOSA dated 14 August 1996 to Mr S Pityana, Director-General: Labour.
Page 115
estimate the total costs of work-related ill-health (50% of the cost of occupational
accidents) and the total costs to society (50% of the total costs to the employer).
Estimated Cost of Work Accidents and Work-related III-health in South Africa
R Millions (1996)
Direct costs of accidents
1 415
Costs of compensation and medical aid107
Indirect (hidden) costs of
1 415
The hidden costs of accidents to employers are
assumed to be equivalent to the direct costs
(NOSA)108
Property damage
7 075
The cost of property damage is assumed to be
five times the direct cost of accidents (NOSA)
Work-related ill-health
1 415
The cost of work-related ill health are assumed to
be half the costs (direct and indirect) of accidents
(HSE)
Total costs to employers
11 320
Cost to society
5 660
The cost to society is assumed to be half the cost
to employers (HSE)
Total Costs
16 980
This represents 3.5% of the South African
GDP (1996)
accidents
The estimate of consequential costs takes into account the approximations in the
estimates and in the ratios. While the extrapolation of European and British data to
South Africa is problematic, the estimates above, nonetheless serve to illustrate the
quantum of costs associated with occupational accidents and work-related ill-health.
The absence of employees from work due to occupational accidents can also be used
to gauge the economic impact. In 1991, 2 797 719 working days were lost as a result
of absences caused by accidents compensated in terms of the. Workmen’s
Compensation Act. In contrast the average number of days lost annually because of
107
This figure reflects an estimate of the costs of compensation paid in respect of accidents in 1996. It is based on a total cost
of accidents in 1991 of R541 256 388 - adjusted to reflect increases in compensation and medical aid payments this reflects an
annual cost of RI 415 million. The cost of compensation includes periodical payments, the capitalised value of pensions, lump
sum payments and medical aid for employees who were covered by the Workmen's Compensation Act but excludes the cost of
medical treatment for employees in the mining industry covered by Rand Mutual Assurance Company Limited (Workmen's
Compensation Commissioner: Report on the 1991 Statistics (Table 7)).
108
These are all the costs to the employer except the costs of compensation and medical aid.
Page 116
industrial action between 1980 to 1993, was 1 289 684.109
Days lost due to occupational accidents110
Cause
No of cases
Days lost
Average
Temporary total
disablement
99 919
1 859 217
18.6
Permanent
disablement
14 780
935 650
63.3
Fatal
1 682
2 852
1.7
TOTAL
116 381
2 797 710
24.0
Direct State expenditure on occupational health and safety
The primary role of the State in the mitigation and prevention of work accidents and
work-related ill-health can be summarised as follows:
•
establishment of standards;
•
rendering an inspection service;
•
monitoring health and safety compliance;
•
provision of advisory services.
The resources allocated to the various departments to perform these functions for
1997/98 are -
109
Figures supplied by Department of Labour.
110
Workmen's Compensation Commissioner: Report on the 1991 Statistics (Table D).
Page 117
Department
Division
Amount (millions)
Health
Occupational Health
R12 111
Labour
Occupational Health and Safety of
Persons
R25,1
Minerals and Energy
Promotion of Mine Safety and
Health
R50,3
An analysis of the departmental budgets reveals that while the Department of Labour
has responsibility for establishing and enforcing occupational health and safety
standards in all industries other than mines, its total budget is approximately 50% of
that allocated to the Department of Minerals and Energy for performing the equivalent
functions in the mining industry. Employment in the formal sector (outside of mining) is
currently estimated at approximately 7.5 million, whereas current employment in the
mining industry is approximately 500 000. This discrepancy is further accentuated by
the fact that the Department of Labour expenditure on personnel for occupational
health and safety is R19,9 million compared to R35,8 million for the Department of
Minerals and Energy. The total government expenditure on preventative and
promotive occupational health and safety activities by the Departments of Labour and
Health is R36 million. One consequence of this is that (outside of mining) the ratio of
inspectors to employees is considerably less favourable than is found in most
countries at a comparable level of development. This is explored later in this report.
The total state expenditure of R87 million on providing preventative occupational
health and safety services equivalent to 5% of the premiums that employers are
required to pay to the statutory Workers’ Compensation Fund. These are depicted in
the following table.
111
The total budgetary allocation to the Chief Directorate: Occupational Health is R25 million of which some 55% (R13
million) is allocated for the administration of compensation under the Occupational Diseases in Mines and Works Act.
Page 118
Employer assessments paid to compensation funds
ORGANISATION
PERIOD
AMOUNT
(R million)
Compensation Commissioner
1 March 1995 to 28 February 1996
Rand Mutual
Calendar 1996
386
Federated Employer’s Mutual
Calendar 1995
47,3
ODMWA
1 March 1995 to 28 February 1996
TOTAL
1106,9
108,9
1649,1
These funds are in effect withdrawn from the economy for the purposes of
entrepreneurial development.112
The analysis shows a big difference between departmental budgetary allocations and
realisable savings. Continuation of the status quo will further debilitate-the national
economy: it is incumbent on the State to intervene in the fields of occupational health,
safety and compensation within the framework of a national policy which is integrated
with South Africa’s macro economic strategy.
A reduction in occupational accident and work-related ill-health should lead to a
reduction in premium contributions. This assumption is true in the case of an employer
who currently reports accidents and occupational diseases fully. The anticipated
impact on premium payments across employers in general is difficult to quantify as an
increased focus on occupational health and safety in the short-run could lead to a
higher level of reporting of occupational’ accidents and, particularly, work-related ill
health. Experience has shown however that when investigative attention focuses on a
topic, net benefits arise. Premium savings for the ranges 1-3% only are given in the
table.
112
The Compensation Commissioner is required by COIDA to invest funds with the Corporation for Public Deposits (interest
earnings 10,88% for 1995) and the Public Investment Commissioners (interest earnings of 11,06% for 1995). This compares
unfavourably with the investment returns obtained by the mutual associations - in 1996 Rand Mutual Association earned 16%
on its investments.
Page 119
Percentage Saving
1
Total Premium Income
(R1 million) (1996)
R1 649,1
Reduction
(R1 million)
16,49
2
R 1 649,1
32,98
3
R1 649,1
49,47
A further benefit to South Africa which, though not quantified, cannot be ignored is the
link between working conditions and product standards. It is difficult to conceive of
very detailed and stringent product standards on the one hand and only loose
concern for working conditions on the other. Logically, the two go together. Examples
abound in various industries on the link between better working conditions, higher
labour productivity, better quality work and healthier labour relations.
A report on labour and social conditions in the agricultural sector in the context of
futures negotiations on trade liberalisation, prepared by the ILO at the request of the
Government of Chile, is a good example of what lies in the agendas of many
countries: The report concludes that: “Improvements in working conditions are a
necessary prerequisite to modernisation and the opening of markets and they can
stimulate economic efficiency by raising labour productivity. Such improvement should
be considered as an investment rather than a social cost”.113
The ramifications and impact of accidents and occupational ill-health on the South
African economy cannot further be ignored and require attention, on both sociopolitical grounds and economic grounds.
113
ILO: La Justica Social en al deSarrolo Rural Chileno at 46.
Page 120
CHAPTER FIVE:
THE OPERATION OF PREVENTION AGENCIES
1
REGULATORY POLICIES
There is no consistent overall regulatory policy
All preventative health and safety agencies require a consistent regulatory policy to
guide their activities in promoting and enforcing health and safety. An examination of
the policies of the two principal OHS inspectorates in South Africa reveals the lack of
a common approach. The need to develop a coherent prevention strategy is a very
important argument for the development of a national OHS policy. In this Chapter we
examine the regulatory policies and in particular the use of the key concept of “selfregulation”.
The Leon Commission of Inquiry concluded that policies of “self-regulation”114 in the
mining industry had failed and that these policies, together with the lack of
enforcement capacity, contributed significantly to the poor health and safety record of
the mining industry115. The Commission cited the industry’s poor health and safety
record as evidence of the failure of self-regulation. The renewed commitment to active
state regulation and enforcement coupled with appropriate promotion of health and
safety is reflected in the Mine Health and Safety Act and the increased budgetary
allocation for OHS in the mining industry.
The Department of Labour, in contrast, expressly embraces “self-regulation” as the
114
The Commission described "self-regulation" as a legislative framework in which "legislation is agreed by tripartite process,
but the manager of the mine must retain a discretion with regard to details which are required to achieve the objectives in a
manner best suited to that particular mine" (at 6.9).
115
Commission of Inquiry into Safety and Health in the Mining Industry (1995) Vol 1 at paras 6.4 and 6.9.
Page 121
central element of its regulatory policy. It describes this as an approach in which
“dangers in the workplace must be addressed by communication and co-operation
between employer and employee” within a framework of minimum standards
embodied in the legislation. It is evident that different meanings are ascribed to the
term “self-regulation” and that this is a source of considerable confusion which
requires clarification.
All regulatory policies combine elements of “external” regulation (legally enforced
duties and standards policed by an inspectorate) and “internal” or “self” regulation.
This has been recognised since the seminal Robens Report.116 Robens used “self
regulation” to refer to a range of mechanisms that would stimulate a more active
approach to health and safety by employers and employees. These include structured
and informed worker participation through elected worker representatives and
committees, policies to educate employees on their rights, the development by
representative committees of sectoral codes of practice, and requirements for
employers to develop health and safety policies and plans.
While “self-regulation” in this sense recognises the limitations of law as a method of
regulating health and safety, it is not a deregulatory policy. It seeks to identify
appropriate forms of regulation and compliance monitoring. “Self-regulation” takes
place within a framework of nationally determined standards within which it is the
responsibility of the state to ensure that employers’ internal safety management
systems are working and to sanction those employers who do not comply with
statutory regulations.
The balance of internal and external regulation will vary between sectors. A British
study has concluded that sectors characterised by small firms, sub-contractors, low
pay, weak trade unionism and productivity improvements tend to have poor health and
116
Report of the Committee on Safety and Health at Work (1970-72) Chairman Lord Robens, at para 451.
Page 122
safety records.117 These are all factors indicating a strong role for external regulation.
The implementation of a successful, pro-active regulatory strategy needs an
appropriate balance of enforcement and promotion for each sector of the economy. It
also requires an understanding of the impact that changing forms of employment (for
instance, the increasing use of contractors) have upon health and safety in particular
sectors.118 These policies can only be implemented by an inspectorate with adequate
resources and which has the capacity to collect and analyse relevant information.
The inspectorate concentrates its activities on medium and large establishments,
particularly the manufacturing sector. The current accident and disease reporting
system through the COID Act are not significantly sensitive or reliable to provide an
adequate basis for the targeting of inspections. Many types of business remain
entirely or largely outside of supervision by the inspectorate: these include the
informal sector and agriculture. Problems of regulation in small business are
exacerbated by previous policies of deregulation effected in terms of the Temporary
Removal of Restrictions of Economic Activities Act 87 of 1986. The repeal of this Act
without the withdrawal of the notices promulgated in terms of it has left uncertainty as
to the application of many regulations to small business operating under the auspices
of the Small Business Development Corporation.119
In practice, the period since 1984 has seen an effective deregulation of many sectors
and of particular workplace hazards in South Africa. This has been true of the mining
industry and in sectors regulated by the OHS Act and amounts to an abrogation of the
responsibility to regulate. The Leon Commission attributed this to under staffing and
117
Dawson S et al Safety at Work: the Limits of Self-Regulation (Cambridge University Press, 1988) at 268.
118
The protection of contract workers is a further area where the approach of the OHS Act and the MHS Act differ. In terms
of the MHS Act, a mine manager is responsible to ensure the health and safety of all persons who work at a mine, including
employees of contractors.
119
Du Toit, D Workers in Small Businesses: A challenge for the Unions, Labour Law Unit: University of Cape Town (1992).
Page 123
under-resourcing of the mine health and safety inspectorate and the lack of a proactive enforcement policy and made recommendations to reverse this trend within the
mining industry. The ILO came to a similar conclusion in respect of the Department of
Labour, saying that it did not have the human resources or skills at its disposal to
promote a culture of OHS prevention.120
The successful implementation of a prevention culture will require the responsible
agencies to develop pro-active strategies to regulate health and safety. These should
be expressed by a prevention strategy which covers both “enforcement” and
“promotion”. Enforcement covers those activities and policies designed to ensure
compliance with health and safety standards. The key aspects of enforcement can be
viewed as standard-setting, inspection and compliance. Promotion, on the other hand,
covers those activities and policies designed to promote public awareness of health
and safety to encourage and motivate employers, employees and the public to adopt
a positive and pro-active approach. Its key aspects include communication strategies
and education and training.
Recommendation
Each health and safety inspectorate should develop a prevention strategy that is
consistent with the national health and safety policy
2
IMPLEMENTING A PREVENTION POLICY
The resources and activities of the health and safety inspectorate in the Department of
Labour are not adequate for the effective implementation of legislative policy in the
OHS Act.
The enactment of the MOS Act entailed a stated shift in the enforcement policy of the
120
International Labour Office: Report on a Mission to South Africa (January 1996): Assessment of the Labour Inspection
System at 7.
Page 124
Department from one of prescriptive regulation to one involving significant elements of
“self-regulation”. Although this has been the Department’s approach since 1984, the
changes in legislative policy have not been accompanied by a reorientation of the
activities and resources of the Department. The successful implementation of a
statute such as the OHS Act will require the inspectorate to undertake a range of
activities and provide a range of facilities such as •
developing appropriate guidelines and codes of practice;
•
collecting and analysing information to identify occupational health and safety
problems;
•
promoting and facilitating active worker participation in occupational health and
safety;
•
disseminating educational material concerning occupational health and safety, in
particular concerning the rights of workers in terms of health and safety
legislation;
•
promoting a culture of prevention and a high level of awrareness of health and
safety among employers, employees and the public;
•
monitoring the extent of adherence to regulations and standards;
•
making effective use of remedial orders and sanctions where necessary;
•
promoting the use of, and monitoring the activities of, approved inspection
authorities.
The ILO criticised the absence of demarcation of responsibility for policy-making and
enforcement within the Department of Labour and the inadequate resources available
for policy development. It described the inspectorate as being engaged in fire-fighting
without a directed pro-active policy.121 The lack of capacity for policy-making is
121
System at 15.
Page 125
reflected in a number of areas: the lack of an enforcement and prevention policy,
inadequate regulation and standards, and the lack of published guidelines. No
guidelines or codes of practice have been issued to interpret the duties of employers
to identify, assess and control health and safety hazards or to explain the operation of
the system of worker participation.122 The inspectorate has not yet implemented key
aspects of the OHS Act such as the requirement that employers prepare health and
safety policies although this is a central aspect of the Act’s approach.
Employers and trade unions within the mining industry have both expressed concern
at the failure of the MHS Inspectorate to develop guidelines for the application of key
aspects of the MHS Act such as the investigation of occupational accidents, diseases
and health threatening occurrences. This has resulted in different inspectors adopting
different approaches and placing different interpretations on the provisions in the MHS
Act.
Recommendation
The effective implementation of OHS legislation requires inspectorates to develop the
capacity to perform a range of functions beyond traditional inspectorial functions.
3
DECLINING ENFORCEMENT CAPACITY
Since 1984 the responsibilities of the OHS inspectorate within the Department of
Labour have increased but the inspectorate’s resources did not increase
concomitantly to meet the demands of additional functions.
122
Guidelines have been published on the application of Hazardous Chemical Substances Regulations, 1995. These
guidelines are based on the Guidelines produced by the British Health and Safety Executive.
Page 126
The development of modern health and safety legislation in South Africa commenced
with the enactment of the Machinery and Occupational Safety Act (MOS Act) in 1983.
The MOS Act, and to a greater extent the OHS Act, represent a partial adoption of the
“modern” approach to the regulation of health and safety reflected in documents such
as the Robens Report and ILO Convention 155 of 1983123. During the period since
1984, the Department of Labour has stressed the relatively modern and progressive
nature of its health and safety legislation. However, during this period, its capacity to
promote and enforce health and safety standards has been eroded.
The MOS Act increased the Department’s responsibilities from the supervision of
factories, machinery and building work to the majority of workplaces in the country,
including previously unregulated sectors such as the service sector and agriculture as well
as the activities of self-employed persons. Subsequently, the Department has
acquired responsibility for health and safety in the railways, in major works such as
Sasol and Iscor as well as the armed forces and explosives, without receiving any
increase in its staff complement. In 1994 with the coming into effect of the OHS Act,
the Department’s responsibilities for occupational health were expanded. The OHS Act
also covers the regulation of pollution generated by workplaces that affects the health of
the public. The Department’s jurisdiction overlaps with that of the Department of
Environmental Affairs and Tourism in terms of the Atmospheric Pollution Prevention
Act which itself has limited capacity (six inspectors nationally) to enforce its provisions. The
Department of Labour is also responsible for the protection of the public from safety dangers
posed by the use of machinery, e.g. elevators, escalators and machinery in
amusement parks.
These increases in responsibility have not been accompanied by corresponding
increases in the resources or personnel of the Department of Labour in respect of
occupational health and safety or in the introduction of appropriate training. This
difficulty is exacerbated by its inability (primarily the result of remuneration packages to
123
For a more detailed discussion see Chapter Three.
Page 127
recruit or retain sufficient numbers of trained personnel. The result has been that the
Department’s capacity to monitor and enforce health and safety standards has
declined significantly in the period from 1984. The ILO study concluded that the
Department of Labour has insufficient of an inspection presence to implement an
effective prevention policy.124
The validity of the ILO’s criticism is borne out both by a comparison of the
enforcement capacity of the Department of Labour with the Mine Health and Safety
Inspectorate as well as with inspectorates in developing countries. (This is discussed
later in this Chapter). The ILO estimated that there should be an immediate increase
in the number of posts for occupational health and safety inspectors from 166 to
200.125
The OHS Act permits the appointment of approved inspection authorities (AIA’s) to
perform health and safety inspection functions such as the inspection of hazardous
plant and machinery (boilers, lifts, cranes, etc) or taking occupational hygiene
measurements. The expanded, and properly monitored, operation of AIA’s will permit
the inspectorate to transfer resources away from traditional, and time consuming,
inspectorial functions to pro-active activities. The certification and operation of AIA’s
under the OHS Act requires that the inspectorate develop the requisite capacity to
certify and monitor their activities.
There is a need for strategies to be developed to make more efficient use of existing
resources. There have been significant initiatives to improve the reach and capacity of
all labour and health and safety inspectorates. This must be further examined and
included in developing an integrated national health and safety policy.
In the remainder of this section, we discuss one of these initiatives: the proposal by
the Department of Labour to develop a “one-stop” labour inspection service.
124
System at 15.
125
Page 128
Proposals for inter-sectoral collaboration between the Departments of Labour
and Health are discussed in the following Chapter.
The Directorate: Minimum Standards within the Department of Labour has proposed
the establishment of a Labour Inspection and Advisory Service. The proposal for this
service (described as a “one stop” service) envisages that inspectors within the
Directorate: Minimum Standards, would have the responsibility to monitor and enforce
compliance with labour legislation which establishes minimum conditions of
employment, including occupational health and safety. This “one stop” inspection
service would act as a “generalist” inspectorate and its activities would complement
those of the “specialist” inspectorates such as the OHS Inspectorate. As the ILO study
points out, the greatest cost in inspection services is the cost of getting the inspector
to the workplace. A “one-stop” inspectorate offers significant economies and will
greatly expand inspectorial presence.
The current proposals envisage that the inspection service would include a hierarchy
of inspectors who would be trained to perform different functions. The health and
safety activities would include checking that employers record and report accidents,
pay their compensation assessments, maintain first aid activities and have established
health and safety committees. Where these inspectors observe a breach of standards
or a dangerous condition they would advise the specialist OHS inspectorate. The
proposals also envisage the inspection service developing a cooperative relationship
with other inspection services such as those in local government.
The development of a one-stop inspectorate will increase and coordinate the
inspection resources devoted to monitoring compliance with basic prevention and
compensation obligations while at the same time freeing the capacity of “specialist”
health and safety inspectors to concentrate on key hazards. This will improve the
capacity of the inspectorate to identify high risk and problem areas and direct
resources accordingly.
System at 22.
Page 129
Recommendation
Strategies must be devised to enhance the enforcement resources of the
inspectorate. This must include making more effective use of existing resources.
4
THE REGULATION OF HEALTH AND SAFETY IN MINES
The mine health and safety inspectorate service is located within the Department
responsible for supervising economic aspects of mining.
The Leon Commission was critical of the capacity of the Department of Minerals and
Energy to enforce health and safety legislation. The Commission identified the
absence of a discrete health and safety inspectorate within the Department as a
reason why the interests of health and safety had been sacrificed to those of mineral
development and exploration. It therefore made proposals aimed at separating the
Mine Health and Safety Inspectorate from the remainder of the Department. These
proposals have been implemented together with other reforms aimed at enhancing the
inspectorate’s enforcement capacity in terms of the MHS Act which took effect on 15
January 1997.
The location of responsibility for mining health and safety within a Department
responsible for supervising all aspects of mining activity is a controversial topic and
reference is made to criticisms of this approach in Chapter Three. The implementation
of the new structure will have to be monitored to ascertain whether it creates sufficient
autonomy to ensure that the regulation of OHS in mines is not compromised by
considerations of exploitation and utilisation of mineral resources and that an
appropriate balance is struck.
The Report of the Leon Commission, as well as the subsequent Commission of
Inquiry (also chaired by Mr Justice Leon) into the disaster at Vaal Reefs Gold Mine in
April 1995 has refocused public attention on OHS in the mining industry and led to a
Page 130
greater allocation of state funding to the MHS Inspectorate. As is indicated in Chapter
Four, a very considerable proportion of state resources devoted to OHS are expended
on the mining industry. The Leon Commission envisaged that the future direction of
mining OHS policy must occur within the framework of a broader national policy and
that the MHS Inspectorate must participate in the National OHS Council.126
The Leon Commission127 highlighted four critical areas in occupational health and
safety in which they recommended that urgent steps be taken:
•
accidents from falls of ground;
•
accidents from underground haulage and transport;
•
coal mine explosions; and
•
respirable dust.
Guidelines for the preparation of codes of practice have been, or are being
developed, in respect of the first three issues and a set of occupational health
regulations are being prepared.
There is extreme fragmentation of authority for the monitoring of occupational health
and safety and related issues in the mining industry. The application of the provisions
of the Nuclear Energy Act, the Explosives Act and the Hazardous Substances Act to
the mining industry are all monitored by separate inspectorates, applying different,
and sometimes conflicting, precautionary principles. In addition, environmental
inspections are required by the Minerals Act, the Water Act and the Atmospheric
Pollution Prevention Act, each with their own inspectorates.
126
Commission of Inquiry into Safety and Health in the Mining Industry Report (1995); Vol 2 at 4.
127
Commission of Inquiry into Safety and Health in the Mining Industry Report (1995) Vol 1 at 158-161.
Page 131
The Leon Commission of Inquiry highlighted the failure by both the Departments of
Minerals and Energy and Health to assume responsibility for regulating occupational
health in the mining industry. It pointed out that the lack of clearly demarcated
responsibility and the chaotic overlapping of legislation alluded to by the Erasmus
Commission persisted two decades later128. The Leon Commission was highly critical
of the under-developed state of the regulation of occupational health hazards in the
mining industry and the fact that many health conditions were effectively unregulated.
The Commission did not express a firm view as to which Department should assume
responsibility for the activities of the MBOD. Its concern was that the responsibility for
the regulation of occupational health should be clearly defined and that the
Department responsible should devote adequate resources for this purpose.129
The recommendations of the Leon Commission have led to a number of reforms
introduced by the MHS Act, including the creation of a “mine medical inspectorate”. To
develop the necessary expertise, a Sub-Directorate: Occupational Medicine has been
proposed. Its primary function is to monitor employer compliance with the Act’s
extensive duties in respect of medical surveillance and to adjudicate on disputes
concerning the fitness of employees to work.
In the initial proposals for the establishment of the mine medical inspectorate, it was
proposed that the MBOD should be transferred from the Department of Health to the
MHSI. This proposal was opposed by the Department of Health and will not be
implemented. The Department of Health is obliged to provide benefit examinations in
terms of the ODMW Act to the large numbers of ex-mineworkers who may have
contracted occupational diseases during their period of employment in the mining
industry. In addition, resources of the MBOD should be available to employees in all
sectors of the economy. The promotion of OHS in the mining industry must occur
128
Commission of inquiry into Safety and Health in the Mining Industry Report (1995); Vol 1 at para 4.1.5.
129
Commission of Inquiry into Safety and Health in the Mining Industry Report (1995); Vol 1 at para 4.11.6.
Page 132
within the framework of a national policy and should not occur at the expense of
protection in other sectors.
Recommendation
The development of OHS policies within the mining industry must be coordinated
within a national policy and the DME must participate fully with other Departments in
the formulation and implementation of the national policy.
5
THE SIZE OF THE INSPECTORATE: COMPARATIVE PERSPECTIVES AND
FUTURE TRENDS
A primary means by which the State can discharge some of its obligations in OHS, is
through inspections by competent inspectors. This section compares available
information on the number of inspectors appointed in developing countries with South
Africa.
The ratio of labour inspectors to total employee population for, primarily, developing
countries is:
NUMBER OF
INSPECTORS (1)
TOTAL EMPLOYEE
POPULATION (2)
RATIO
Brazil
3 199
39 997 736
1/12 503
Chile
538
3 295 350
1/6 125
Colombia
270
3 033 753
1/11 236
Honduras
107
1 728 600
1/16 155
Morocco
258
2 983 601
1/11 564
COUNTRY
Philippines
250
10 880 000
Sources: ILO: Yearbook of Labour Statistics,1994, and ILO data.
1:2
1/43 520
Whilst these figures do not necessarily reflect South African requirements and
conditions, they do serve as a measure of international practice.
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South African “formal” employment figures130 as at 30 June 1996 were:
SECTOR
NUMBERS
Non-agricultural formal
business
5 242 691
Public
1 919 219
Agriculture
880 000
TOTAL
8 041 910
The ratio of inspectors to the number of employees (excluding mining) employed in
the formal sector in South Africa is 1/58274. This calculation is based on the approved
establishment of 138 inspectors; however the fact that there is a high vacancy rate
among inspectors means that the actual ratio is even less favourable.
The following table shows the number of Department of Labour inspectors who would
be required to obtain the coverages in the countries listed:
COUNTRY
SA
EQUIVALENT
Brazil
Chile
Colombia
Honduras
Morocco
Philippines
643
1 313
716
498
695
185
INCREASE OVER
CURRENT (138)
505
1 175
578
360
527
47
ESTIMATED
ADDITIONAL COSTS
(R millions)
R 68,93
R 160,37
R 78,89
R 49,14
R 71,93
R 6,41
The table does not provide inspection competencies for the “informal” sector in South
Africa which is characterised by little or no regulation. Additional requirements based
on an informal sector employment percentage of 40% of persons employed in the
“formal” sector, follows:
130
Labour Statistics, Employment, Salaries and Wages, (Summary), June 1996: Central Statistical Services and the
South African Agricultural Union).
Page 134
COUNTRY
AMENDED S A
EQUIVALENT
Brazil
Chile
Colombia
Honduras
Morocco
Philippines
900
1 838
1 002
697
973
259
INCREASE OVER
CURRENT (138)
762
1 700
864
559
835
121
ESTIMATED
ADDITIONAL COSTS
(R million)
R104,00
R232,03
R117,93
R 76,30
R113,97
R 16,52
A further factor to consider when analysing inspectorate personnel requirements, is
employment and economic growth in the next decade. It has been estimated that a
growth rate of 5% could create about 300 000 additional jobs a year, which would
amount to a total number of jobs created between 1992 and 2004 of some 2.5
million. These projections are based on an increase in GDP of only 1,1% in 1994
rising to an average of 3,8% between 1995 and the year 2000.131
These growth projections would require the employment of 60 additional inspectors
by the year 2004 to maintain the current inspector/ employee ratio (including
provision for the informal sector). The cost of this would be R8,19 million (1997 rand
value).
The inspector/employee ratio for South Africa is the worst of any of the countries
shown. While the inspector/employee ratio of Chile, for example, could currently be
financially inhibiting, the current South African ratio cannot be judged desirable by
international standards. A compelling argument can be made for the appointment of
additional inspectors. However this must be placed in the context of the priorities of
health and safety enforcement agencies. At this stage there is a need for:
131
•
legislative revision
•
task allocation
•
competency determination
•
integration of functions
Guy Standing, John Sender and John Weeks Restructuring the Labour Market: The South African Challenge at 72.
Page 135
•
enhanced role of approved inspection authorities
•
potential use of contracted inspectors
•
objective setting.
It is not merely the number of inspectors which is critical but the quality of human
resources deployed. This is a function of training, supervision, management and the
quality of prevention strategies. Policy makers, inspectors and management will be
able to impact on health and safety performance if they “work smarter”. This can only
occur if there is a legal framework which enables and motivates inspectors, if they are
adequately trained, equipped with the latest technology and there is an integration of
the functions of inspectors across departments. A greater proportion of routine tasks
should be allocated to properly monitored approved inspection authorities or
contracted inspectors. Despite the capacity for enhancing the effectiveness of existing
inspectorates by these methods it must be borne in mind that if the number of
enforcement officials falls below a certain critical mass, the whole system will
disintegrate.
The technological, sociological, fiscal and administrative demands of the 21st century
require a holistic approach that recognises that inspectorate resources are but one
facet of a complex matrix which drives effective occupational health and safety
outputs. A review of inspectors’ tasks and hence competencies should span
departments and review existing resources in order to:
•
determine competencies
•
establish potential for multi-tasking and skilling
•
evaluate cross-departmental functions.
The position and role of inspectors will only be given impetus if there are agreed
objectives determined in a national forum and not by incremental adjustments to the
status quo.
Page 136
A saving of 30% on inspectorate staffing by establishing an enabling legislative
framework that both drives “smarter” work methods and integrates inspectorate
functions can translate into a cost saving of R24,2 million (1996 money values). This
is on the assumption that by the year 2004, an inspector /employee ratio of 1/25000
could be necessary but that “smarter work” methods reduces this to 1/35000 with a
resource saving of 177 inspectors.
Page 137
CHAPTER SIX:
THE REGULATION OF OCCUPATIONAL HEALTH
1
BACKGROUND TO THE REGULATION OF OCCUPATIONAL HEALTH
There is no co-ordinated approach to the regulation of occupational health or the
provision of occupational health services
The absence of an integrated policy has severely undermined the regulation of
occupational health in all sectors, including the mining industry. In 1975, the Erasmus
Commission of Inquiry132 called for the development of a unified approach to the
regulation of occupational health.133 The Commission documented in considerable
detail the scale of the problems associated with occupational health but little has been
done to implement its recommendations. As the Leon Commission has pointed out, in
the context of the mining industry, its findings and recommendations remain valid in
the 1990’s.
The Erasmus Commission pointed out that the absence of uniform and reliable
statistical data made it extremely difficult to gauge the prevalence or incidence of
occupational disease. The Commission was critical of what it termed the “indifference”
of employers to the prevention of occupational diseases, the low level of expenditure
on occupational health, the small numbers of industrial health staff employed in
industry, the low level of awareness of occupational health problems and the lack of
standards and norms.134
132
The Erasmus Commission's terms of reference were to investigate occupational health. It did not consider the need to
integrate responsibility for occupational health and safety.
133
Erasmus Commission of Inquiry on Occupational Health (1975) at para 27.1314(b).
134
Erasmus Commission of Inquiry on Occupational Health (1975) at para 27.1257.
Page 138
In considering the governance of occupational health, the Commission pointed out
that at that time at least eleven government departments had some measure of
responsibility for the regulation of occupational health ”All these bodies powers are defined in various Acts in which there is
considerable overlapping. This causes confusion among inspectors and
officers and is wasteful of manpower and money. Because one Department
does not want to interfere with the functions of another, it does not exercise
its lawful powers, and in the process industrial health sometimes falls
between two stools, and nothing is done about industrial health matters or
else a minimum is done after an unconscionable lapse of time.”135
The Commission recommended that the Department of Health should be assigned
responsibility for the “overall” control of all aspects of occupational health. “Overall”
control would include the responsibility for legislative and policy development. Other
government departments and institutions, including local government, would have
“direct” responsibility for the administration of occupational health in particular
sectors.136 This proposal represents an important consideration in the development of
an integrated approach to OHS.
In the early 1980’s the Department of Health published draft legislation to regulate
occupational health but no legislation was enacted as a result of this initiative. With
the coming into effect of the OHS Act in 1994, the Department of Labour asserted its
responsibility for the regulation of occupational health. The OHS Act is premised upon
an incorrect dichotomy between occupational hygiene and biological monitoring, on
the one hand, which the Department of Labour considered to be its responsibility and
occupational medicine which it considered to be the responsibility of the Department
of Health. The OHS Act is indicative of an historical approach in which each
Department has sought to define an exclusive area of jurisdiction over occupational
health. This has not led to the effective regulation of occupational health, nor does it
promote common understanding between the Departments of Labour and Health on
how to co-ordinate their activities in this area. There is as a result no coordinated
135
Erasmus Commission of Inquiry on Occupational Health (1975) at para 27.1268.
136
Erasmus Commission of Inquiry on Occupational Health (1975) at para 27.1283-90.
Page 139
approach to occupational health and an inefficient usage of available resources. This
has been identified as the major problem preventing improved regulation of OHS.
The White Paper on the Transformation of the Health System, published in April 1997,
recognises these problems and associates itself with initiatives to develop a
coordinated approach to OHS.
Recommendation
The effective regulation of occupational health and the provision of occupational
health services requires an integrated approach and the cooperation and combined
efforts of both Departments.
2
THE PROVISION OF OCCUPATIONAL HEALTH SERVICES
“A new legislative framework making provision for improved co-ordination
of the various components of occupational health and safety (OH&S) is
required. The creation of a co-ordinating body along the lines of a health
and safety agency with national and provincial components should result
from this framework. Such bodies are common around the world, and
there is need for one in South Africa. It will provide a forum for policymaking and standard-setting that is legitimate, credible and authoritative.
It will. also provide a setting within which a coherent policy framework for
OH&S practices in South Africa can be developed ...
Occupational health and safety is a multidisciplinary activity and falls
within the domain of a number of Government departments, business
and labour. The Department of Health supports the Cabinet
memorandum which initiated the investigation to establish a health and
safety agency at the national and provincial levels.”137
This section examines initiatives to deliver occupational health services as part of the
137
Department of Health: White Paper for the Transformation of the Health System in South Africa, GN667 GG17910 of 16
April 1997 at pp 146-148.
Page 140
national health system as well as the steps taken to develop a working relationship
between the Departments of Health and Labour.
Significant initiatives are under way to deliver occupational health services as part. of
the National Health system. The Committee on Occupational Health, appointed by the
Minister of Health has made proposals for the provision of occupational health
services by the Provincial Departments. It has proposed that each province should
appoint an Occupational Health Programme Manager and establish at least one
Occupational Health Unit. The Report stresses the importance of training personnel at
all levels in the recognition and diagnosis of work-related ill-health. The White Paper
on the Transformation of the Health System, published in April 1997, proposes that an
occupational health capacity must be created in all districts where there is substantial
industrial, productive or commercial activity. District-level occupational health services
must be integrated with the mechanisms for the delivery of comprehensive health
care.138 Primary occupational health services would be available through district
health facilities with systems for the referral of appropriate cases to more specialised
OHS facilities. Both documents emphasise the important role that can be played by
the more than 2000 Environmental Health Officers (EHO’s) currently employed by
local and provincial governments.
Several provinces have already prepared, and are implementing, frameworks for the
provision of occupational health services. These proposals will enable the health
system to interface with both compensation and prevention agencies. An improved
capacity to diagnose work-related ill-health will significantly improve worker access to
the compensation system; it will also enhance preventative activities by, improving
capacity to identify workplaces that are giving rise to problems.
The proposals stress the provision of occupational health services to employers and
138
Department of Health: White Paper for the Transformation of the Health System in South Africa GG 17910 of 16 April
1997 at 148.
Page 141
employees in the informal sector and in other small businesses that currently remain
outside of the regulatory net. These employers are generally unable to comply with
the requirements of the OHS Act and the MHS Act concerning occupational hygiene
monitoring and the supply of medical surveillance to affected employees. The
provincial plans envisage that this function will be performed by the EHO’s who
already conduct inspections of many of these businesses to monitor aspects of public
health such as food safety.
A further problem confronting several provincial health departments will be the need to
provide health services to ex-employees, primarily mineworkers residing in rural
areas, who have contracted occupational diseases and do not have easy access to
either benefit examinations or medical care.
3
DEVELOPMENT OF A WORKING RELATIONSHIP BETWEEN THE
DEPARTMENTS OF LABOUR AND HEALTH
A Task Team consisting of representatives of the Departments of Labour and Health
was established to make proposals to develop a working relationship between the two
Departments. The Task Team identified the functions of the two Departments and
defined functions which were either contested or did not fall clearly within the domain
of either Department. The Task Team then developed a set of principles for the
demarcation of responsibility of these functions which has been submitted to the
Director-Generals of Health and Labour for approval.
The principles recognise the primacy of the Department of Labour in the following
areas •
national coordination of OHS (it is envisaged that this will occur through a
National Occupational Health and Safety structure);
Page 142
•
leadership in coordinating OHS activity at provincial level;
•
OHS legislation (excepting the areas covered by the Mine Health and Safety
Act);
•
promulgation of regulations and standards in terms of the OHS Act (recognising
that the Department of Health will contribute to the formulation of regulations
and standards affecting occupational medicine practice and the provision of
occupational health services);
•
enforcement of occupational health and safety laws and regulations
(recognising that Environmental Health Officers (EHO’s), of the Department of
Health, are a valuable resource to support the Occupational Health and Safety
Inspectorate);
•
compensation for occupational diseases and injuries in terms of the COID Act
(recognising that occupational medicine expertise is required to assess cases
of suspect occupational disease and that the infrastructure of the general
health services and occupational medicine units are needed to identify and
submit cases).
The role of the national and provincial Departments of Health is to •
contribute to coordination and governance of occupational health through
participation in structures such as the proposed National Occupational Health
and Safety Council;
•
provide comprehensive occupational health services to unserved workers
(those not provided for by workplace occupational health services), particularly
those in the informal, small and micro business sectors; the agricultural sector
and the public sector (particularly health-care workers), and liaise with the
Department of Labour’s Occupational Health and Safety Inspectorate as the
need arises;
Page 143
•
provide occupational health referral services for complex problems requiring
specialised evaluation, in particular occupational medicine services in major
referral hospitals;
•
provide appropriate support services through the National Centre for
Occupational Health (NCOH). These services should support the national
system and be provided in partnership with the Department of Labour to avoid
duplication of resources;
•
contribute to human resource development in occupational health through the
establishment of appropriate training programmes for health-care providers.
The development of this set of principles represents the first meaningful attempt to
define the responsibility for providing an integrated health and safety service on an
inter-sectoral basis. This approach is consistent with the development of a national
OHS.
The Departments concerned will however have to make available the personnel and
resources to implement the co-ordinated approach envisaged by the set of principles.
These proposals offer the potential to greatly enhance the capacity of government to
both enforce and promote improved health and safety conditions and should be
developed further by the relevant Departments. A particular challenge of this approach
is the need to integrate a national competency (occupational health and safety as an
aspect of labour) and provincial competency (occupational heath as a health service)
as well as to coordinate the activities of national, provincial and local government.
Careful thought will have to be given to the role to be allocated to EHO’s. It has been
proposed that they could perform both health and safety promotion and enforcement
activities. These could include disseminating information, conducting occupational
hygiene measurements, monitoring compliance with health and safety (including
compensation) obligations and referring problems requiring investigation to the
Page 144
inspectorate. In designing their role (which may vary between provinces and between
economic sectors), consideration will have to be given to ensuring that any
enforcement functions they may perform do not impact negatively on their capacity to
promote health and safety awareness, particularly within the informal sector. These
proposals could be implemented without any legislative amendments as the Minister
of Labour is empowered to delegate functions under the OHS Act to provincial and
local authorities.
These principles reflect a recognition that the Departments of Labour and Health
share a common goal and responsibility for the regulation and promotion of
occupational health. This marks a significant shift from previous approaches and
provides the genesis for an effective inter-sectoral approach to the regulation of
occupational health.
Recommendation
An integrated approach to OHS involving the coordinated utilisation of the resources
of relevant departments should be developed. Particular attention will have to be paid
to the clear definition of the roles and duties of inspectors, the delineation of reporting
structures and appropriate training.
Page 145
CHAPTER SEVEN:
LEGISLATION AND ENFORCEMENT
1
A COMPARISON OF THE OHS ACT AND THE MHS ACT
There is no national health and safety law applicable to all sectors of the economy and
there are significant differences between the OHS Act and the MHS Act.
There are two principal health and safety acts: the Occupational Health and Safety Act
85 of 1993 and the Mine Health and Safety Act 29 of 1996. Separate regulations also
exist for: merchant shipping139, aviation, explosives, nuclear radiation and
environmental pollution.
Separate legislation has resulted in differential standards in different sectors of the
economy. Prior to the enactment of the Mine Health and Safety Act, certain standards
in the mining sector lagged a long way behind those introduced by the MOS Act in
1984 and the OHS Act in 1994. Examples of this include the absence of elected
health and safety representatives and committees, and the absence of a requirement
for employers to provide all health and safety equipment free of charge. Although the
Minerals Act was enacted in 1991, its approach to health and safety largely repeated
the provisions of the Mines and Works Act, a system that had been in operation since
1911. Arguments to modernise the system were rejected by the government of the
day.
The enactment of the MHS Act has reversed this imbalance revealing the
shortcomings of the OHS Act. The MHS Act draws on the OHS Act as well as on
contemporary “state of the art” documents such as the 1989 European Community
Framework Directive on Health and Safety and the ILO’s Mine Safety and Health
139
The definition of "merchant shipping" in the OHS Act and the Merchant Shipping Act are inconsistent resulting in health
and safety on certain vessels (fishing boats weighing less than 25 tons) being unregulated.
Page 146
Convention 177 of 1995.
The MHS Act’s principal innovations which place the Act in advance of the OHS Act
are •
a more detailed approach to delineating a system of risk management and the
training of employees;
•
according representative trade unions a central role in the regulation of OHS at
the workplace;
•
extended roles for elected worker representatives and committees and the
introduction of full-time health and safety representatives at larger mines;
•
new approaches to the investigation of accident, occupational diseases and
health-threatening occurrences by employers and the inspectorate;
•
entrenchment of the right of workers to withdraw from serious danger and the
requirement that mines establish procedures for the effective exercise of this
right;
•
the requirement that ergonomic considerations must be taken into account in
the design and manufacture of articles used in mines.
The differences in the two Acts’ approaches to risk management and worker
participation in OHS are discussed in the following two sections.
The MHS Act retains the Minerals Act approach of placing the general duties of care
Page 147
for health and safety upon the “owner” and “managers” of mines.140 They are
responsible for all persons who work on a mine, including the employees of
contractors. The OHS Act, on the other hand places the responsibility on the
employer. The owner of a plant who engages a contractor is not classified as the
employer of the contractor’s employees. This is an issue that requires further
investigation in the light of the extensive use of sub-contractors in hazardous sectors
such as construction.
The MHS Act places greater stress on occupational health than previous legislation
and there are detailed requirements for mines to establish systems for occupational
hygiene monitoring and medical surveillance. It also introduces a number of
innovations to improve the operation of the inspectorate.
The MHS Act has been drafted to achieve consistency with the Labour Relations Act
(LRA). Areas where this has been done include its referral of unresolved disputes,
including disputes over the disclosure of information, to the Commission for
Conciliation, Mediation and Arbitration (CCMA) for conciliation and, in certain cases,
arbitration. An employee who is discriminated against for exercising rights under the
MHS Act can institute action in the Labour Court. Under the OHS Act, the employee
would have to request the state to prosecute the employer for victimisation.
The Labour Court has exclusive jurisdiction in all cases (other than criminal
prosecutions) under the MHS Act. The Labour Court which was established by the
LRA has exclusive jurisdiction in labour matters and it is envisaged will develop
expertise in labour and related areas of law. In addition, the CCMA has a role in
seeking to assist parties to resolve disputes. In terms of the OHS Act, the Labour
Court may hear appeals from decisions of the chief inspector. Other legal proceedings
arising out of the OHS Act, for instance an interdict to require compliance with the Act,
or a review of a decision by the Minister in terms of the Act, are heard by the High
140
The National Union of Mineworkers and the Chamber of Mines have agreed in a collective agreement concluded in
January 1997 that the MHS Act should be amended and that the major responsibility for OHS under the Act should be
transferred to the employer.
Page 148
Court. (The duplication of judicial responsibility is exacerbated by the fact that all
matters arising from the COID Act, including appeals from decisions of the
Compensation Commissioner, in terms of the COID Act are heard by the High Court.
(This duplication creates the potential for the Labour Court and the High Court to
adopt different approaches to the interpretation of key areas of OHS law.)
Like the Labour Relations Act, the MHS Act has been drafted in “plain language”
greatly improving its accessibility to mine personnel. This includes designing forms in
a clear and user-friendly manner. It is a statute enacted during the new constitutional
era and key aspects of the Act such as the powers of the inspectorate are tailored to
comply with the Constitution.
The inconsistency in legislative framework is accentuated by the application of
different standards in regulations published under the two statutes. Examples where
the standards in regulation for the mining industry differ from those applicable to other
sectors include standards for elevators, lifting-gear and boilers.
The inconsistencies between the two compensation laws are discussed later.
Significantly, the coverage of the MHS Act and the ODMW Act are not consistent
because of different definitions of a “works”.141
This continued disparity in legislation, standards and structures cannot be justified and
the national policy will have to develop mechanisms to ensure the consistent
application of legislation and standards across all sectors. It is a cause of considerable
uncertainty and confusion: many businesses operate under both Acts, and there is a
considerable movement of personnel between the two jurisdictions. The Department
of Labour has included the revision of its legislation as one of its objectives for 1997
141
The definition of "works" in the ODMW Act is not consistent with that in the MHS Act. The Minerals Act 50 of 1991
adopted a narrower definition of "works" than that contained in previous mining legislation with the result that "works" (such
as Sasol and Iscor) fall under MOSA and then the OHS Act while remaining under the ODMW Act. Since the OHS Act
hazardous substances regulations came into effect these "works" have had to comply with the different, and inconsistent,
requirement of the OHS Act and the ODMW Act in regard to monitoring dust levels.
Page 149
and 1998. Key differences will have to be identified and to bring the legal regime for
industries covered by the OHS Act into line with the mining industry, amendments to
the OHS Act or new regulations incorporating these changes, drafted.142 The
Department of Labour can also make considerable use of the MHS Act to promote
improved health and safety practices among employees falling under its jurisdiction.
The more detailed approach of the MHS Act to risk management discussed in the
following section should be utilised as the basis for guidelines on the assessment and
management of hazards, spelling out the employer’s obligations under the OHS Act. A
provision to regulate the withdrawal of employees from serious danger should also be
introduced into the OHS Act as a matter of some urgency.
The creation of a single national health and safety statute should be a key element of
a national health and safety policy. It is however a goal to be aimed at in the medium
to long term. The harmonisation of health and safety standards should therefore
initially occur on an incremental basis. While there are significant shortcomings in our
legislation, the emphasis in the next few years must be directed as improving the
institutional capacity of our health and safety agencies. This proposal is in accordance
with the view of the Leon Commission that the creation of a single national OHS law
“would be premature while the state of law was so confused and unsatisfactory. When
the law in mining is put into a satisfactory state, a move into a large umbrella
organisation might be appropriate.”143
The creation of a single national OHS statute does not imply that there should be a
single health and safety inspectorate - international experience reveals that a national
statute has been introduced in countries with a wide range of different administrative
structures.
142
For instance, the approach of the EEC Framework Directive was incorporated into UK law by the Management of Health
and Safety at Work Regulations of 1992.
143
Commission of Inquiry into Safety and Health in the Mining Industry, Report (1995) Vol 1 at 8.3.1.
Page 150
Sectoral
inspection
competencies
remain
a
feature
of
unitary
legislation.
Recommendation
A national health and safety policy should lead to the enactment of a national health
and safety statute applicable to all sectors. The regulation of hazards specific to
particular sectors would be catered for through regulations and an inspectorate
appropriate to that sector. Until a national health and safety statute can be developed,
existing laws should be revised to create greater harmonisation and consistency.
2
RISK MANAGEMENT
Risk management is a central aspect of the approach of both the OHS Act and the
MHS Act but this has to date been inadequately applied.
Both the OHS Act and the MHS Act require employers to develop a systematic
approach to the identification and control of hazards to employees as well as to
members of the public who may be directly affected.144
The MHS Act sets out the employers’ general duties in greater detail and with greater
clarity than the OHS Act, particularly in regard to risk assessment, the management of
risks and hazards, the provision of health and safety training and the conduct of
investigations.145 The MHS Act embodies more modern and sophisticated concepts of
144
This approach has been described in the following terms "The first and overriding priority is to avoid risk: the design of new workplaces and processes should not utilise dangerous
processes where safe or less dangerous equivalents are available. Where hazards are discovered in a workplace, they should be
tackled at source so as to eradicate them. If this is not reasonably practicable, the risks must be minimised. ... Collective
measures to mitigate hazards that protect the entire workforce must be given preference ever individual protective measures.
Therefore, issuing personal protective equipment does not relieve an employer of its obligation to remove or mitigate hazards;
at all stages there is a continuing obligation to replace the dangerous by the less dangerous and, where reasonably practicable,
by the safe." (Source: Thompson & Benjamin South African Labour Law at G1-21).
145
In this respect the MHS Act, to a greater extent than the earlier OHS Act, conforms to ILO recommendations which
suggest that where the employers' duty is enshrined in law it should be drafted "in a way which is sufficiently specific that
employers have proper guidance in taking the necessary measures. This will also, of course, assist workers in defining and
protecting their own rights". (ILO: Safety in the Working Environment: General Survey by the Committee of Experts on the
Application of Conventions and Recommendations Geneva (1987) at 178.
Page 151
risk management than the OHS Act and its detailed “risk management” approach can
be contrasted with the more generalised “goal setting” approach of the OHS Act. The
MHS Act should now form the model for the effective implementation of risk
management in all sectors of the economy.146 The MHS Act empowers the chief
inspector to require mines, after consulting the health and safety committees, to
develop codes of practice on any aspect of occupational health and safety. The chief
inspector can issue guidelines for the preparation of codes of practice. There is no
equivalent provision in the OHS Act.
The MHS Act places an enhanced obligation on mine managers to investigate the
causes of accidents, occupational diseases and other health-threatening occurrences.
The MHS Act stresses that the purpose of investigation is to identify the “causes and
underlying causes” of the incident being investigated so as to make recommendations
to prevent a similar incident in the future. Significant changes have also been made to
the procedures for investigating accidents and occupational diseases by the
inspectorate. The presiding officer at an inquiry held in terms of MHS Act, may direct
that evidence given by a witness in an inquiry cannot be used in evidence at a criminal
trial or disciplinary proceeding against that person. Once this direction is made, no
person may refuse to answer a question on the basis that the answer may be selfincriminating (section 71). There is no equivalent provision in the OHS Act.
The effective implementation of the risk management approach contained in the MHS
Act and the OHS Act pose a considerable challenge for employers, employees and
the State. The Leon Commission’s analysis of the approach of the mining industry is
indicative of an approach to health and safety that is found generally among South
African employers -
146
Guides to the risk assessment process have been published. See, for instance, the Practical Guide to Risk Assessment
prepared by a tripartite working group sponsored by SIMRAC.
Page 152
“However, the recurring management apology, when paraphrased, claims
that - ‘the systems in place are fine and the accidents are due to human
errors’. There is no moral basis for this excuse. The theoretical solutions
are relatively obvious, but difficult and slow to implement in practice.
Management must engineer the systems so as to minimise the opportunity
for human error, and train all ranks of the workforce to act in accordance
with the sound procedures in place.”147
This focus on human error to the exclusion of systems is also prevalent among
inspectorates. The conducting of inquiries into accidents has focussed on attributing
responsibility to individual employees without examining the adequacy of the systems
used. The statistics published by the Department of Labour in its Annual Report
continue to attribute the cause of the majority of reportable incidents to fault on the
part of the injured or deceased person or to misadventure and dangers inherent to the
job.
PERSONAL CAUSES OF INCIDENTS - 1995148
CAUSE
Reportable
incidents
% of total
Incidents
Fatalities
% of total
fatalities
Defective plant or material
451
4.34%
36
4.07%
Contributory causes
177
1.70%
30
3.39%
Unfavourable and psychophysical working condition
176
1.69%
18
2.03%
Fault of management
891
8.58%
91
10.29%
439
49.60%
Fault of injured person
2 463
23.72%
Fault of supervisor
29
0.28%
6
0.68%
Unexpected starting of machinery
74
0.71%
4
0.45%
Fault of others
586
5.64%
43
4.86%
Joint fault
270
2.60%
11
1.24%
Misadventure
2 507
24.14%
101
11.41%
Danger inherent to work
1 058
10.18%
26
2.94%
Error of judgment
1706
16.42%
80
9.04%
TOTAL
147
148
10 388
885
Commission of Inquiry into Safety and Health in the Mining Industry Report (1995); Vol. I at para 3.5.
These figures are analysed in greater detail in Chapter Four. The lack of credibility of these figures is shown by the fact
that while 24% of reportable incidents are attributed to the fault of the injured person, 50% of fatal accidents are attributed to
the fault of the deceased employee.
Page 153
The significance of this shift is also revealed in a paper by two employees of a major
mining house ”Our society springs from an authoritarian mould and as a result undue
emphasis is placed on “finding the guilty party” and liability
considerations (often a reason for doing superficial internal
investigations of accidents). This pre-occupation with punishment rather
than prevention was reinforced by legislation. The recently promulgated
Acts have shifted the focus somewhat with the introduction of the
concepts of risk assessment, risk management and systems
management.”149
Recommendation
The national policy should provide for the development of guidelines for the
application of risk management strategies. These should pay particular emphasis to
the role of training and worker participation in risk management and the adequate
investigation of accidents, disease and other incidents.
3
WORKPLACE PARTICIPATION
The recent introduction of elected health and safety representatives and committees
has not yet led to the effective operation of systems of worker participation.
Previous administrations resisted worker participation in health and safety through
elected worker health and safety representatives and committees. This reform was
only introduced in 1994 by the OHS Act and the MHS Act in 1997, although it has long
been a central feature of international OHS standards. Under the MOS Act,
management had the right to appoint health and safety representatives. This was a
149
Hermanus MA and van der Bergh A - Health Safety and the Environment: Charting a new Course: Strategic Issues and
Challenges Facing a Major South African Mining Group (Conference Papers, Minesafe 1996) at 4.
Page 154
clear contradiction of the statute’s avowed policies of “self-regulation”. This reluctance
to enable workers to choose their health and safety representatives was coupled with
policies to exclude trade union participation in OHS.
The OHS Act requires employers to consult with trade unions over the nomination and
appointment of health and safety representatives, but does not accord a central role to
trade unions in this process. Although no detailed studies have been conducted, it
would appear that the system of representatives and committees under the OHS Act
have not functioned effectively. The reasons given for this include the absence of a
clearly defined role for trade unions and lack of training. Information supplied by trade
unionists indicates that in many plants, health and safety representatives continue to
be appointed by the employer. The Department of Labour has not issued guidelines
on the training of health and safety representatives. Studies in Canada and the UK
reveal that health and safety representatives and committees do not function
effectively without extensive training, assistance and back-up from trade unions.150
The MHS Act requires the elections of health and safety representatives and health
and safety committees. The rights and duties of representatives and committees are
based on the equivalent provisions in the OHS Act. A significant innovation is the
requirement upon mine owners to negotiate collective agreements with representative
trade unions (a union or unions representing the majority of workers at a mine) over
the setting up of these structures and other aspects of OHS, including the procedures
for the exercise of the right to refuse dangerous work. The MHS Act also introduces
full-time health and safety representatives at larger mines and disputes over the
number of full-time representatives may be referred to arbitration.
This integration of collective bargaining and health and safety representation is one of
the most significant changes of ethos introduced by the MHS Act. This integrated
150
See Dawson et al Safety at Work: the Limits of Self-Regulation (Cambridge University Press, 1988) at 55; Advisory
Council on Occupational Health and Occupational Safety (Ontario): Eight Annual Report (April 1, 1985 - March 31, 1986)
Vol 2 at x.
Page 155
approach is also reflected under the new LRA: trade union representatives are given
the right to monitor an employer’s compliance with legislation concerning terms and
conditions of employment which would include health and safety and compensation
laws. Workplace forums under that Act may perform, with the permission of the chief
inspector, the functions of a health and safety committee. Significantly, neither the
MHS Act or the OHS Act give health and safety representatives power to monitor their
employer’s compliance with compensation legislation although this could contribute to
the more effective operation of the compensation system.
Recommendation
A strategy must be developed to increase the effectiveness of worker participation in
OHS, particularly in sectors where there are low levels of participation.
4
ANALYSIS OF EXTENT OF UNDER-REGULATION
There is inadequate regulation of major health and safety hazards.
Health and safety is inadequately regulated in South Africa. The regulations made
under the OHS Act do not adequately cover the full range of hazards to which workers
in South Africa are exposed. As the Leon Commission pointed out, the failure to
develop standards on particular hazards results in a situation in which these hazards
are effectively unregulated. This comment applies equally to other sectors. The
Department of Labour’s Business Plan requires the development of new regulations in
important areas including major hazard installations.151 There are no plans to develop
regulations on crucial topics such as manual handling and ergonomics, aspects of
work that are now commonly regulated in other countries. Many other regulations, for
instance those on construction and building work are extremely dated and require
151
Department of Labour: Business Plan for 1997 OHS Programme 2; Programme Objective 11-4.
Page 156
significant revision to reflect the current realities of these highly dangerous sectors.152
Recent research has indicated that strategies for the regulation of lead have not
succeeded and require revision.153 The Leon Commission recommended that the
mining safety regulations be modernised and standardised.154
Inadequate resources are available for the process of regulation-making. An example
of this is the extreme delay that occurred in producing the general administrative
regulations under the OHS Act. Although the OHS Act came into effect on 1 January
1994, the new General Administrative Regulations which are required for the effective
operation of the Act were not gazetted until August 1996. Even then, key parts of the
regulations, such as the obligation to report accidents, are poorly drafted and
extremely difficult to understand.
The most significant recent regulatory innovation was the enactment of the
Regulations for Hazardous Chemical Substances on 25 August 1995. These
Regulations draw extensively on the equivalent United Kingdom regulations and
include guidelines for their implementation prepared by the British Health and Safety
Executive.
The development of these regulations illustrates possible strategies for the
improvement of regulation cover. Firstly, intelligent “borrowing and tailoring” of
regulations from other countries, with due cognisance of their appropriateness,
represents a cost effective method of improving regulatory coverage in South Africa.
Secondly, while
the regulation of hazardous chemical substances is of equal
relevance to the mining industry, the mining industry’s regulations approach to the
regulation of hazardous chemicals remains rudimentary by comparison. Regulations
152
This view was expressed by both employers and trade unions in these sectors.
153
See Ehrlich et al "Association of Lead Exposure with Renal Dysfunction but not with Blood Pressure among Workers in a
South African Battery Factory" (under review: Journal of Occupational and Environmental Medicine).
154
Commission of Inquiry into Safety and Health in the Mining Industry Report (1995) Vol 1 at para 12.1.3.
Page 157
of this type should be extended to all sectors, and a provision in the MHS Act permits
this. Thirdly, the regulations are complex and even with the published guidelines,
there is a need for educational material aimed in particular, at smaller enterprises that
may use chemical substances, and workers. It has also been noted that a lack of
laboratory capacity and occupational hygiene expertise severely restricts the
effectiveness of these regulations.
Recommendation
A comprehensive strategy for the development of new regulations and the revision of
regulations must be identified as part of the national occupational health and safety
policy.
5
ENFORCEMENT AND SANCTIONS
OHS legislation is inadequately enforced. This is a result of under-resourcing of the
inspectorates, the lack of enforcement policy and absence of appropriate sanctions.
The inadequate numbers of inspectors, insufficient technical training and the inability
to attract persons with engineering and other technical qualifications, inadequate
investigations and inquiries into accidents and other dangerous occurrences and the
inefficiency and lack of deterrent of the criminal law as the primary mechanism in the
imposition of sanctions, all contribute to a serious weakness in enforcement capacity.
The Leon Commission of Inquiry has remarked on the lack of enforcement capacity in
the Mine Health and Safety Inspectorate. The ILO study comments on the low number
of inspectors, inadequacies of criminal enforcement, and the absence of a national
enforcement policy and recommended that consideration be given to the
implementation of systems of administrative penalties.155
155
International Labour Office: Report on a Mission to South Africa (January 1996) at 15 and 16.
Page 158
Both the OHS Act and the MHS Act are enforced through criminal sanctions. Available
evidence indicates that criminal prosecutions have not been an effective deterrent
against employers who ignore or violate OHS standards. The lack of effectiveness of
criminal proceedings disempowers inspectorates and reduces the incentive placed
upon employers to improve health and safety.
Figures compiled by the DME on prosecutions in the mining industry under previous
legislation reveal that a small proportion of accidents lead to prosecutions and that
prosecutions are seldom instituted against those who carry the primary responsibility
for the safe operation of mines. During the period from 1986 to 1995, the inspectorate
recommended the institution of 1435 prosecutions, leading to 523 successful
prosecutions. As the table indicates, 80 prosecutions were recommended against
owners, directors, managers or engineers and 46 of these were successful. In
comparison, during the period 1986-1993 there were a total of 81 930 injuries and
5 371 fatalities due to accidents in the mining industry.156
PROSECUTIONS INSTITUTED FOR MINE SAFETY VIOLATIONS
(1986 -1995)
Category
Successful prosecutions
Prosecutions recommended*
i
180
46
ii
339
111
iii
914
366
Total
1435
523
Categories
i=
Owner, Director, Manager, Engineer
ii=
Mine Overseer, Shiftboss, Artisan, Electrician, Rigger, Foreman, Supervisor, Fitter
iii=
Miner, Team Leader, Driver, Labourer, Timberman, Onsetter, Stagehand, Contractor, Banksmen.
The decision to prosecute rests with the prosecuting authority and not with the
inspectorate. While the Department of Labour does not maintain comprehensive
prosecution statistics, information supplied by the Department shows that in less than
one in ten cases referred to the specialist industrial prosecutors in Pretoria,
prosecutions were instituted. Even where a prosecution is instituted, the most
156
Accident data reported in the Commission of Inquiry into Safety and Health in the Mining Industry Report (1995)
Page 159
common outcome is a small admission of guilt fine.157 Prosecutors generally have little
knowledge of health and safety laws. Health and safety cases are often allocated to
inexperienced prosecutors who often only receive the case on the morning of the trial
leaving them unprepared for the case.158 This has a debilitating and disempowering
effect upon the inspectorate and has led to a decline in recommended
prosecutions.159 The shortcomings of a system of enforcement of labour laws solely
reliant upon criminal enforcement has been recognised in government policy.
The LRA decriminalises breaches of minimum employment conditions established
under that Act and permits for their enforcement through arbitration. The draft Basic
Conditions of Employment Bill proposes to decriminalise non-compliance with
statutory basic conditions of employment and proposes that inspectors should have
the power to issue compliance orders and to impose fines upon employers who violate
standards. The imposition of fines would be subject to administrative review and an
appeal to the Labour Court.160
In January 1997, the National Union of Mineworkers and the Chamber of Mines
concluded an agreement in which they recorded their view that the introduction of an
appropriate system of administrative penalties could lead to an improvement in health
and safety standards. The agreement contains a joint recommendation to the DME to
introduce a system of administrative penalties for employers into the MHS Act during
1997.161 This recommendation has been accepted by the DME. The parties agreed
Vol 1 at Chapter Three.
157
Figures supplied by the Department of Labour, Witbank show that more than two-thirds of prosecutions instituted under
the OHS Act in the Witbank area result in the payment of a fine on admission of guilt. The average fine was R735 in 1995 and
R1145 in 1996. The average fine where the accused is convicted was R500 in 1995 and R555 in 1996.
158
Information supplied by Department of Labour: 2 December 1996.
159
In Witbank this led to a decline in recommended prosecutions from 68 in 1995 to 38 in 1996.
160
GG 17945 of 18 April 1997.
161
Collective agreement concluded in January 1997.
Page 160
that the majority of offences should be decriminalised but that non-compliance could
be sanctioned by the imposition of an administrative penalty upon employers. Criminal
prosecutions would continue to be brought in cases involving the negligent causing of
injury or death. Inspectors would have the power to recommend the imposition of
penalties; their recommendation would be subject to review by the principal inspector
in the region and Chief Inspector and an appeal to the Labour Court. The agreement
records the parties difference of opinion on whether a system of administrative
penalties should be applied for violations of OHS standards by employees.
International evidence indicates that these systems enhance the effectiveness of the
operation of an inspectorate162 but, at the same time, their operation requires a trained
and competent inspectorate with adequate resources to adjudicate disputes
concerning the imposition of administrative penalties.
Any
effective
administratively
enforcement
determined
policy
requires
sanctions
and
an
appropriate
penalties
with
combination
effective
of
criminal
prosecutions in cases involving injury or death. Neither element is currently present
and policies must be developed. Improving the capacity of prosecutions will require
the collaboration of the relevant Departments with the Department of Justice. The
establishment of a single national prosecuting authority headed by a National Director
of Public Prosecutions (as required by section 179 of the New Constitution) will allow
this to be pursued on a national basis.
Recommendation
The development of an efficient enforcement policy should include the development of
appropriate sanctions. This requires proposals to make prosecutions more effective as
well as to develop sanctions for which criminal prosecutions are not appropriate.
162
See R M Brown "Administrative and Criminal Penalties in the Enforcement of Occupational Health and Safety
Legislation" (1992) 30(3) Osgoode Hall Law Journal 691; T G Ison Compensation Systems for Injury and Disease: The Policy
Choices (Butterworths, 1994) at 54-58.
Page 161
CHAPTER EIGHT:
COMPENSATION FOR OCCUPATIONAL ACCIDENTS
AND DISEASES
1
INTRODUCTION
The basis of our workers’ compensation scheme is a historical trade off in terms of
which workers acquired the right to compensation from a state-run compensation fund
(regardless of fault) for injuries and ill health caused by work but forfeit the right to
institute civil claims for damages against their employer.163 Employers on the other
hand are protected against the possibility of damages claims being instituted against
them, in return for the contribution they make to the Compensation Fund. Employers
receive this protection regardless of whether they are registered with the Fund, pay
their assessments or comply with the obligation to report occupational accidents and
diseases. The Fund is entitled to recover the costs of compensation from these
employers.
This trade off is often ignored in the manner in which compensation schemes have
been administered in this country. The Compensation Commissioner has in the past
adopted the view that the fund should be administered for the benefit of employers.
This view ignores the fact that employees have made an equivalent contribution
through the loss of their right to institute civil claims and the Fund must be
administered in the interests of employers and employees. This trade off also
distinguishes worker’s compensation from other forms of social insurance, such as
unemployment insurance, in terms of which workers do not lose any equivalent
right.164
163
One significant benefit of the introduction of "no fault" compensation is that it reduces the need for litigation to establish
fault.
164
The removal of the right of employees to institute civil actions for damages against their employers for work-related
injuries and diseases has led employees to argue that the bar on instituting civil actions against their employers violates the Bill
of Rights, most notably the right to equal protection and benefit of the law. (The constitutionality of limits on the right to
Page 162
2
A COMPARISON OF THE COID ACT AND THE ODMW ACT
The operation of two workers’ compensation systems has produced administrative
and financial inconsistencies and inequality in benefits.
The approach to the financing of the administration of the two compensation schemes
differs. The costs of administering the COID Act (including the remuneration of
personnel) is borne by the Compensation Fund.165 On the other hand, the state pays
for the full cost of the administration of the compensation scheme in terms of the
ODMW Act. The payment to cover the costs of the ODMW Act Compensation Office,
the Medical Bureau for Occupational Diseases (MBOD), and the Pathology Division of
the NCOH in 1997/98 amounted to R15 million. The state also pays the cost of
compensation paid to mineworkers (white and coloured) who were entitled to a
pension before 1973 or who contracted an occupational disease at a mine that closed
before 1973. The contribution for this purpose in 1997/98 is R12,7 million, a decrease
of approximately R4 million from the previous year.
Historically, the compensation benefits paid under the ODMW Act have differed from
those paid under the COID Act. While formal racial discrimination was removed from
the Workmen’s Compensation Act in 1977, it remained a feature of the ODMW Act
until 1994. From 1973 to 1994 mineworkers were compensated by racially
discriminatory lump payments, with white miners at times receiving compensation as
much as 13 times higher than that paid to black mineworkers with equivalent
diseases.
bring damages claims has been a prominent feature of the debates concerning proposals to reform the Motor Vehicle Insurance
Act.)
In litigation in terms of the Canadian Charter of Rights it has been held that "The validity of the displacement (of the right of
employees to sue their employers) must be tested by the replacement - 'the right to compensation'. If this right is found not to
measure up to a point where it can be said that there is no discrimination or no unreasonableness or unfairness, then the
displacement will have offended s.15 (the right of equality before the law)." (Re a Constitutional Reference on the Validity of
Sections 32 and 34 of the Workers' Compensation Act, (1987) 67 Nfld. & PEIR 16,35.)
Mlomzale v Mizpah Boerdery (Pty) Ltd 1997 (3) BCLR 361 (C) reflects an unsuccessful, but not fully argued, attack on the
constitutionality of the compensation system.
165
The State contributes to the Compensation Fund in its capacity as an employer under the Act. It also contributes to the
administration of the Compensation Fund (R4,400 million in 1997/98) and covers the costs for medical expenses of state
employees covered by the COID Act (R8,272 million in 1997/98).
Page 163
The racial discrimination was removed from the ODMW Act by an amendment that
took effect on 1 March 1994, considerably improving the compensation entitlement of
black mineworkers. The Act as amended retains a system of lump sum compensation,
related to an employee’s earnings. In contrast, employees covered by the COID Act
with a disability assessed as being above 30%, and dependants of deceased workers,
receive a pension. The enhanced benefits under ODMW Act introduced in 1994 are
available to all mineworkers who have not previously been compensated or whose
condition has deteriorated entitling them to compensation on a higher scale.
Employees whose claims arises under the ODMW Act are prohibited from claiming
additional compensation but retain the right to sue their employer civilly.
Benefits under the ODMW Act are more accessible to workers than a claim for
compensation for an occupational disease under the COID Act. Partly, this is as a
result of the occupational health regime in the mining industry in terms of which
mineworkers in employment have, in most cases, better access to health services.
Importantly, the ODMW Act accords all mineworkers and ex-mineworkers an
entitlement to a benefit examination conducted by the MBOD at no cost to the
employee. There is no equivalent provision in the COID Act and an employee carries
the risk of having to meet the costs of any medical examinations if their claim for
compensation is rejected. The entitlement to undergo a benefit examination is,
however difficult to obtain for many mineworkers and ex-mineworkers. This applies to
mineworkers on certain small mines and to ex-mineworkers who were either not
examined on leaving the mining industry or have become ill after leaving employment
and have returned to rural areas where they have little or no access to medical
services and who are generally unaware of their statutory rights.166
166
The MHS Act regulates this by requiring that all employees are medically examined for the purpose of an "exit certificate"
when leaving the mining industry.
Page 164
The draft Bill which became the COID Act proposed the incorporation of the ODMW
Act into the COID Act. This proposal was not proceeded with because of opposition
(for different reasons) from both employers and trade unions in the mining industry.
The Director-General: Health has proposed that a single compensation fund should be
created and this view has also been accepted in principle by the Joint Task Team of
the Department of Labour and Health.167 However, this requires more than merely
extending the COID Act framework to the occupational diseases covered by the
ODMW Act as was proposed at the time of drafting the COID Act. That approach
would, for instance, deprive mineworkers of their right to a benefit examination; a point
that has been made by mining trade unions. Employers within the mining industry
have stressed the need for compensation liabilities under the ODMW Act to be
actuarially assessed before any merger occurs. The merging of the funds also raises
the issue of whether claims currently covered by the ODMW Act for employees at
mines insured through Rand Mutual should be administered by Rand Mutual or by the
Compensation Office.
Recommendation
The integration of the different compensation systems must be investigated as part of
the national OHS policy.
3
PROMOTION OF PREVENTION
The system of compensation in terms of the COID Act and the ODMW Act has not
maximised its potential to promote prevention activities.
Compensation systems do not contribute to the effective control and prevention of
health and safety hazards if their priorities are determined in isolation from those of
prevention.
167
Report of a meeting of the Task Team Department of Labour and Department of Health (29 September 1996).
Page 165
If, however, these priorities are jointly determined they can produce a synergy that
enhances compensation and prevention.
It is now generally acknowledged that the ODMW Act’s compensation system
contributed significantly to the poor control of health hazards in the mining industry as
noted by the Leon Commission. First, the extremely low levels of compensation paid
to black mineworkers under the ODMW Act prior to 1994, and the correspondingly low
compensation assessment paid by mines, meant that the compensation system
contained no financial incentive for employers to tackle dust problems in the mines.
The cost of the compensation system to employers is further reduced by the fact that
the State covers the cost of administering this compensation system. Second, larger
mines were permitted to monitor dust levels to determine their compensation levies. In
the case of small mines, the state performed this function. The method of
measurement adopted (gravimetric sampling) did not provide any meaningful feedback to effectively control hazardous dust levels. The result was a system in which
more was spent on determining air quality indices for mines for the purpose of
calculating contributions and on anatomical pathology than on either controlling and
rectifying hazardous conditions or on compensating workers. This approach has been
criticised by the Department of Health, the Leon Commission and the mining
employers and trade unions.
The absence of an integrated prevention approach has also been commented on in
the Compensation Commissioner’s Cost Containment Plan. Most of the persons
interviewed in the study stated that the Commissioner should place a greater
emphasis on the prevention of accidents, the promotion of workplace safety,
management of health and safety risks and on research. The consequences of the
absence of an integrated preventative strategy involving the prevention and
compensation agencies can be illustrated by examining the impact of one of the most
significant innovations introduced by the COID Act. Schedule 3 of the COID Act
includes all diseases due to “overstraining of muscular tendinous insertions” caused
by any work involving repetitive movements. Diseases of this type represent one of
Page 166
the most common cause of occupational diseases - in the United Kingdom, for
example, they account for more than 50% of claims for compensation for occupational
diseases.168 In 1996, only nine claims for compensation were received for
overstraining of muscular tendinous insertion in South Africa. While it is difficult to
assess the full extent of this condition among South African employees, it is accepted
that this represents a small proportion of the number of employees who can be
expected to have contracted this disease.
The most likely explanation for this low level of claims is that few employers or
employees are aware of this significant expansion of the right of employees to
compensation for scheduled occupational diseases. Inadequate attention has been
paid to communicating this significant benefit to employers and employees. In
addition, the scheduling of these types of diseases has not been accompanied by the
development of an appropriate preventative or communication strategy. There are no
regulations dealing with the factors that give rise to this condition, such as the
ergonomic design of working areas or the regulation of manual handling. The
problems are associated with increased absenteeism, decreasing productivity and
considerable pain and discomfort for employees. This is a significant illustration of the
consequences of a lack of coordination between prevention and compensation
agencies.
The COID Act envisages that the Fund promote prevention and key decisions in
prevention policy rest with the Compensation Commissioner.169 These include the use
of rebates and the variation of assessments to promote health and safety and the use
of the Compensation Fund to fund organisations that promote health and safety
purposes. These policies are not currently implemented in an optimal manner or as
part of an integrated approach to health and safety.
The system of rebates involves a major diversion of available funds away from
168
The prevalence and epidemiology of occupational diseases differ internationally. This figure is used to highlight the fact
that it is probable that there is significant under-reporting in South Africa.
169
These are among the powers that it is proposed to tranfer to the Director-General: Labour in an Amendment Bill approved
by Cabinet in March 1997.
Page 167
potential beneficiaries to employers without creating any significant incentive to
improve health and safety. While the Commissioner has previously adopted the view
that the rebate system has encouraged health and safety, the Cost Containment Plan
concludes that the system of rebates are ‘too long after the fact and as such is no
incentive to improve workplace safety’.170 This appears to be the first public record of
the failure of this system. Despite this, increasing amounts of money have been
devoted in recent years to the payment of rebates. The merit rebate scheme also
reflects an inability to accurately assess premium income: in the financial year ending
February 1995, the amount set aside for rebate payments was increased by R 63
million to R 266 million.
According to the Cost Containment Plan, the Compensation Office proposes to “do
away with the merit rebate scheme in its current format and to introduce an
experience rating approach, whereby assessments rates are much more differentiated
per individual employer on a frequency basis”.171 The use of enterprise-directed
compensation assessments as a means of encouraging and rewarding improved
health and safety performance is a complex and controversial issue which will not only
require careful consideration, as well as a sound and up to date statistical base,
before any changes are implemented. A significant argument against the use of
experience-rating as well as rebates is that it can be a disincentive for employers to
report occupational accidents and diseases. In addition, the long latency period of
many occupational diseases makes it inappropriate to apply experience-rating to the
compensation of occupational diseases. Any revision of the system of determining
employer contributions must be done as part of an integrated health and safety
strategy and not in isolation.
The Compensation Commissioner should play a key role in any health and safety
system as the timeous diagnostic and analytical identifier of trends in accidents and
diseases. The ability to develop a holistic, integrated preventative strategy depends
upon the performance of this task. It is necessary for the purpose of targeting
inspections, communications strategies, shortcomings in the regulatory framework
170
The Compensation Commissioner: Master Medical Costs Containment Plan at 26.
171
The Compensation Commissioner: Master Medical Costs Containment Plan at 26.
Page 168
and research. As yet there is no computer link up between the data base of the
Compensation Office and the relevant health and safety agencies. The quality of the
information available is dependant upon the level and accuracy of reporting. As is
indicated in Chapter Eleven, there is extensive under-reporting.
4
USE OF COMPENSATION FUNDS TO PROMOTE PREVENTION
The allocation of monies from the Compensation Fund to prevention activities is a key
aspect of the debate over the manner in which the compensation system can support
prevention goals. The Commissioner172 is empowered to use funds to establish or
support organisations that promote health and safety objectives or provide
rehabilitation. These powers, together with the purposes for which subsidies can be
granted, are set out in s.4 of the COID Act. The power to grant subsidies has been
used mainly to underwrite the operation of NOSA, an organisation established in
1951. In 1995 it received close to R 10 million and this funding was continued in
1996. The Compensation Board agreed that the Compensation Office should
advertise for other interested organisations and persons to apply for funding for
prevention activities. This was done in 1996 but no subsidies have yet been awarded
to other organisations. No criteria were published indicating the nature of the activities
that the Commissioner would support and a comprehensive policy has also not been
adopted indicating how funds from the Compensation Fund will be utilised to promote
health and safety.
The COID Act recognises that a portion of the funds of the Compensation Fund
should be used to fund preventative activities. The logic of this approach is that
appropriate and directed expenditure on prevention activities will ultimately lead not
172
A Bill approved by the Cabinet in March 1997 has proposed that responsibility for the administration of the Compensation
Fund should be transferred to the Director-General: Labour.
Page 169
only to a reduction in the employer costs by improving OHS performance, but also
reduce the hardship of employees. However, no comprehensive strategy has been
developed. The targeted use of compensation funds for enhancing civil society
participation in OHS and in building a culture of prevention is wide-spread
internationally and numerous examples are cited in Chapter Three.
In terms of the 1997 Business Plan of the Department of Labour, the Compensation
Fund will be utilised to fund three pilot projects to improve health and safety in high
risk sectors. This is part of a strategy within the Department to develop a closer
working relationship between the inspectorate and the Compensation Office.
To date, the Commissioner has extensively subsidised the operation of NOSA. The
functioning of NOSA and its funding by the Compensation Commissioner is an issue
of considerable controversy in the OHS field, which cannot be fully explored in this
report, but which must be addressed in developing a strategy for the efficient
utilisation of compensation funds to promote prevention activities as part of a national
OHS policy.
NOSA has been, since its establishment in 1951 the major beneficiary of the
Commissioner’s use of funds to promote health and safety. In 1995, NOSA received
R10 million (amounting to 25% of its budget) in funding from the Compensation
Commissioner.
NOSA is partly funded from the Compensation Fund but the majority of its income is
derived from fees charged to clients. This creates a dilemma as NOSA is driven by its
need to raise revenue by fee charging to cover three quarters of its budget, resulting
in a significant neglect of those without the means to pay fees but who still contribute
to the Compensation Fund.
NOSA’s activities have been one of the most controversial areas of health and safety
and it has attracted considerable criticism, particularly from the trade union
Page 170
movement.173 These remain significant issues for debate as the Department of
Labour’s Strategic Plan envisages that the educational aspect of the Department’s
promotion of “self-regulation” in health and safety will be performed by NOSA’s
educational activities.
NOSA gave evidence to the Leon Commission, and on the strength of this evidence,
the Commission was severely critical of its operation. The Commission’s conclusion
was that “although safety management systems may have made some contribution to
improving safety at some mines, they have become largely discredited in the eyes of
those employed at the mines and in public perception, because of the very large
disasters that continue to occur at mines with high star ratings, and their imperceptible
impact on the overall level of fatalities and major injuries in South African mines”.174
The Commission also queried whether it was appropriate for the Compensation Fund
to subsidise an organisation that has no worker representation on its Board without
making equivalent grants to workers’ safety organisations.
The Compensation Fund can make a valuable contribution to the development of a
dynamic sector of organisations outside of the state sector providing health and safety
services to employers as an essential part of effective OHS policy implementation.
These include NGO’s providing assistance and training to trade unions, associations
representing OHS professionals and employer and employee associations that
promote OHS.
Recommendation
The Compensation Fund’s proposed prevention policy must be developed as part of a
national strategy. All compensation agencies, including the mutual associations,
should participate in developing this policy. Key aspects of this would include the use
of funds to support the prevention of occupational accidents and diseases.
173
Lewis P "Going for the Stars ... or Crashing to the Ground", the Industrial Democracy Review, 1994 3 at 4.
174
Commission of Inquiry into Safety and Health in the Mining Industry Report (1995) Vol 1 at para 6.7.
Page 171
5
BENEFITS AND ACCESS TO BENEFITS
The compensation system results in a transfer of costs from employers to employees
and society. This is a result of the nature of the benefits provided by the COID Act and
the ODMW Act and the difficulties that many employees have in gaining access to
these benefits.
The health and safety system seeks to avoid social cost by preventing occupational
accidents and diseases. The compensation system seeks to apportion the costs of
accidents and diseases caused by work to employers. The failure of the compensation
system to achieve this purpose has been criticised by trade unions, service
organisations and commentators. This criticism is now reflected in government policy.
The White Paper on Social Welfare states that the limited scope and poor application
of the compensation system has ”resulted in the systematic transfer of costs from industry to the State
(especially to Welfare and to a lesser extent to Health). The compensation
system broke down completely in rural areas; rural families and
communities bore the burden of diseases and disabilities incurred in the
urban workplace which should have been compensated for by
employers”.175
This transfer of costs flows from both the nature of benefits provided by the COID Act
and the fact that many employees are unable, or have great difficulty, in accessing
these benefits or are not aware of their rights to benefits176.
175
Ministry for Welfare and Population Development: White Paper for Social Welfare: Principles, guidelines,
recommendations, proposed policies and programmes for developmental social welfare in South Africa (1996) at 59.
176
The Cost Containment Master Plan records the view of stakeholders interviewed that awareness among workers of their
right to compensation is very low and to improve this represents a major challenge to all stakeholders (at…..).
Page 172
The low level of claims received for occupational diseases indicates that the vast
majority of employees who contract work-related illnesses do not receive benefits. The
extended list of scheduled diseases under the COID Act has led to a significant
increase in the number of claims for compensation. However, the increased number of
claims represents a small proportion of the total incidence of occupational disease.177
The reasons include the low levels of occupational health expertise among the
medical profession, the lack of an integrated occupational health service and a lack of
knowledge among the medical profession, employers and employees. While higher
numbers of workers have in the past received the limited benefits paid under the
ODMW Act, the payments to black mineworkers were small. Recent studies
concerning the prevalence of compensatable diseases among ex-mineworkers
indicates a reservoir of former mineworkers who have received no benefits.178 Under
the 1994 amendments to the ODMW Act, these employees retain their right to
compensation but few have access to appropriate facilities, which is generally difficult.
The benefits provided in terms of the COID Act do not reflect the full cost of workrelated injury and disease. Compensation for permanent disability is calculated on a
tariff basis with a percentage of disability being assigned to the injury or disease. This
system has remained unchanged since 1941 and is less generous in its assessment
of disability than the approach of private insurers and pension funds.179 No account is
177
In the 1980's and 1990's an average of between 100 and 130 workers received compensation for occupational diseases
annually. The figures increased significantly in certain years due to the successful byssinosis (brown lung) campaign of the
National Union of Textile Workers. In 1996, a total of 2 482 workers have applied for compensation for occupational diseases
- approximately 50% of these claims were for noise-induced hearing loss. (These figures do not cover diseases compensated
under the ODMW Act.) See also Chapter Four.
178
See for instance: Trapido ASM et al - "Occupational Lung Disease in ex-mineworkers - Sound a Further Alarm (1996) 86
South African Medical Journal 559; T W Steen et al "Prevalence of Occupational lung Disease among Botswana men formerly
employed in the South African Mining Industry" (1997) 54 Journal of Occupational and Environmental Medicine and a
rebuttal by MAC La Grange "Occupational Lung Diseases in ex-mineworkers" (1996) 86 South African Medical Journal 841.
179
For instance, many disability insurance policies classify an injury resulting in "permanent total disability from following
usual occupation or any other occupation for which such person is fitted by knowledge or training" as being a 100%
disablement.
Page 173
taken of the employee’s loss of earning capacity or of employment as a result of the
disability and no payment is made for the pain and suffering associated with many
injuries (as is the case with persons injured in motor vehicle accidents). Many workers
who are permanently excluded from the workforce as a result of an occupational injury
or disease receive only a single lump sum or a pension that is a small portion of the
employee’s former earnings. The consequences of this are most severe for manual
and semi-skilled workers who may be rendered unemployable by a relatively minor
permanent disability. This has been commented on in the Green Paper on an
Integrated National Disability Strategy “So, even though there is some compensation for people who are
disabled through accidents at work, the money which they receive is in
most cases inadequate to meet their needs and does not compensate
for the loss of their job or their poor job prospects for the future”.180
It has been suggested that the measurement of permanent disability “should be based
on the loss of function sustained and resultant inability to perform work”.181 The
extremely limited availability of vocational rehabilitation for injured employees means
only a small proportion of employees who would benefit from rehabilitation are able to
access it. Trade unions have argued that the compensation system should provide
rehabilitation in a physical, economic and occupational sense.182
There is an extremely low level of claims for additional compensation based upon
managerial negligence which is permitted in terms of section 56 of the COID Act. In
1994-5, 182 claims were filed; this means that one in every 1500 accidents gave rise
to a claim for increased compensation. The small numbers of claims brought can only
be explained by the extremely low level of awareness that employees have of their
rights as well as the difficulties that employees, especially those who are not trade
180
GG 17038 14 March 1996 at p.44.
181
Rand Mutual Assurance "Guidelines to a Pragmatic Workers' Compensation Programme" at 7.
182
See M Hermanus "Testing the Limits of the Compensation System" (1992) 13 Industrial Law Journal 1364.
Page 174
union members, encounter in bringing claims of this type. A successful claimant is
entitled to be compensated for the full financial loss suffered as a result of an accident
and a successful claim can have significant financial benefits for the applicant.
The Commissioner’s approach to adjustment of pensions awarded to injured
employees and the dependants of deceased workers has also served to transfer the
costs of the lack of health and safety away from employers and is also an indictment
of the Compensation Fund’s investment strategies. Historically, pensions have been
adjusted at well below the rate of inflation. During the period from 1982 to 1992,
pensions increased at 37% of the rate of inflation.183 In recent years, the annual
increase has been closer to the rate of inflation, generally 7%: in contrast, in 1994-5
medical tariffs were increased by between 8,5 and 12,5%. However, the adjustments
have not been adequate to compensate for the past depreciations.184 (Significantly,
the annual adjustment of pensions does not even merit a mention in the most recent
Annual Report although the adjustment of medical tariffs does.)
Prior to 1977, the compensation paid to African workers and their dependants under
the Workmen’s Compensation Act was limited to lump sum payments and no
pensions were paid.185 It is not known how many workers fall into this category. This
illustrates how the historical inadequacies of the compensation system has deprived
many workers with permanent disabilities of equitable benefits and created greater
inequity. The entitlement of employees who have, been excluded from access to
equitable compensation and to medical treatment is a significant factor that must be
taken into account in developing a new health and safety system.
183
Siwendu, T "Adjustments to Pensions in terms of Section 43bis of the Workmen's Compensation Act" (1992) 13 Industrial
Law Journal 1377.
184
Rand Mutual Association has adopted a policy of utilising surpluses to raise the purchasing power of long standing
pensioners, particularly those injured before 1988 (Rand Mutual Association: Annual Report (1996) at page 8).
185
Rand Mutual Association provides pension benefits to totally disabled mineworkers who were injured prior to 1977. In
1996, the National Union of Mineworkers and the Chamber of Mines made an approach to Rand Mutual to extend this to all
workers injured before 1977 with a disability of greater than 30%. The financial implications of this request are currently being
considered.
Page 175
These aspects of the compensation system identified in this section illustrate that the
costs of workplace death, injury and disease have been partly displaced from
employers to employees, their families and other social welfare systems. This is a
significant failure of the health and safety system and has reduced the cost of
compensation to employers.
Recommendation
There is an urgent need for a thorough investigation of the benefits provided by the
compensation system. This must examine the type of benefits provided by
compensation laws and the ability of employees to gain access to those benefits.
6
THE ADMINISTRATION OF THE COMPENSATION FUND
The operation of the Compensation Fund is marked by back-logs in the collection of
assessment and the payment of benefits and medical costs.
As the Fund’s Business Plan and Annual Report reveal, the major priorities of the
Compensation Office include improving revenue collection, controlling medical costs
and expediting the payment of medical costs and benefits. While full discussion of the
administrative operation of the Fund is beyond the scope of this Report, these
problems are examined briefly because of their impact on the development of a
national OHS policy. The significance of this is borne out by the conclusion in the Cost
Containment Plan that the current workload of the Office, combined with a lack of data
and information, make it difficult to analyse trends and therefore restricts the
development and implementation of policy proposals.186 This impacts negatively on
the entire occupational health and safety system.
186
Compensation Commissioner: Master Medical Cost Containment Plan (1996) at 8.
Page 176
A number of reasons contribute to the Fund’s difficulties in collecting assessments:
many employers are not registered with the Fund187 and therefore do not contribute to
it, many registered employers do not pay their assessments and many do not pay
their full assessment. The Commissioner’s 1994-5 Report acknowledges the severity
of these problems and points out that audits conducted show that the majority of
employers understate the earnings of employees and therefore do not make their full
required contribution to the Fund188. While the Fund does have extensive powers to
enforce compliance and to penalise defaulters, the use of these powers is hampered
by the absence of a clear enforcement policy and staff shortages.
The COID Act requires employers to pay employees their compensation for the first 3
months of any period of temporary disablement and then recover the payment from
the Fund. However, it is estimated by the former Compensation Commissioner that
only 50% of employers comply with this requirement. Although this obligation was
introduced to expedite the payment of temporary disability benefits, in practice it has
led to delays in the payment of benefits to employees whose employers do not pay
the benefit directly to them. In practice, many employees use their normal sick leave
and many employers do not bother to reclaim these amounts because of the
administrative difficulties involved.
Employer non-compliance is a significant contributing factor to the delays involved in
the settling of cases. The administrative procedures of the COID Act are “employer
centred”, requiring employer cooperation for the settling of claims. This concerns not
only initial reporting of accidents or diseases, but also the supply of information such
as earnings levels required to finalise claims.
187
In terms of the 1995 Annual Report, 220 257 employers were registered with the Compensation Commissioner. While it is
not a direct comparison, there are 479 089 registered companies and closed corporations.
188
The definition of "earnings" in terms of the COID Act is unclear and allows a significant discretion to employers as to what
earnings are included for the purposes of calculating assessments. (This absence of a clear definition has the additional effect
that many employees are likely to be under compensated.) The understating of earnings reduces an employer's compensation
payments; on the other hand, as salaries are a deduction for the purpose of paying income tax, it is likely that employers reflect
their wage bill more accurately in tax returns. However, secrecy provisions in taxation legislation have to date prevented the
Commissioner from using this as a means of verifying returns.
Page 177
It is the employee who is penalised through delays in the settlement of claims. The
Fund’s limited use of its powers to enforce compliance, coupled with low levels of
employer compliance have the result of penalising the beneficiaries of the Fund
through delays in the payment of benefits.
These delays have been criticised by public interest law firms and medical
practitioners who have assisted workers in making claims. Considerable delays are
involved in the adjudication of occupational diseases claims as well as claims that are
referred to hearings including objections against the decision of the Commissioner
and claims for additional compensation. As the panel of medical assessors required
by the COID Act have not been appointed, cases involving lung diseases are referred
to the MBOD. The current delay is on average 18 months.189
The small number of officials in the Legal Section who conduct hearings nationally
with assessors is viewed as a further reason for the delays. Where significant
decisions emerge from hearings, these are not published, diminishing any precedent
value they may have for claimants and for the Compensation Office.190
Recommendation
The effective integration of the compensation system into a national occupational
health and safety system will require the development of strategies to enhance the
administration of the Fund and improve the level of awareness of employers and
employees of their respective rights and obligations.
189
It must be borne in mind that the increased number of claims being made under the COID Act will place further strain on
the capacity of the Compensation Office to adjudicate compensation claims. A study of byssinosis claims submitted in the
1980's indicated that these claims took an average of 13.8 months to adjudicate while appeals against a refusal to compensate
took a further 29.8 months to be adjudicated by the Commissioner's office (White N, Cheadle H and Dyer RB, "Workmens
Compensation and Byssinosis in South Africa", (1992) 21 American Journal of Industrial Medicine at 295-309).
190
See L Bozalek "The Workmen's Compensation Act: The Need for Guidelines" (1992) 13 Industrial Law Journal 1355.
Page 178
CHAPTER NINE:
PARTICIPATION IN POLICY MAKING
No institution has either the responsibility or the legal capacity to develop a national
health and safety policy for South Africa.
The right of representative organisations of employers and employees to participate in
the formulation, implementation and review of a national health and safety policy is a
cornerstone of international standards. This is most clearly articulated in the ILO
Convention concerning Occupational Safety and Health and the Working Environment
155 of 1983 which is discussed in Chapter Three.
In South Africa there is no participative national policy-making body charged with the
development of an integrated health and safety policy. On the contrary, the
fragmentation of legislative and administrative responsibility is mirrored in the myriad
of advisory bodies that currently exist.
The Advisory Council on Occupational Health and Safety (ACOHS) and the
Compensation Board operate in terms of the OHS Act and COID Act respectively and
advise the Minister of Labour, the Chief Inspector and the Compensation
Commissioner on the application of relevant legislation. The MHS Act establishes the
Mine Health and Safety Council, three permanent tripartite committees dealing with
regulations, occupational health and research, as well as the Mining Qualifications
Authority. Within the Department of Health, an Advisory Committee has also been
established in the Chief Directorate: Occupational Health (although there is no
statutory requirement) and the ODMW Act provides for an Advisory Board. The
responsibility of these bodies is confined to the ambit of their enabling legislation and
the sectors in which they operate. Within these institutions, there is a limited amount
of cross-departmental representation: for instance, the Department of Health is
represented on both ACOHS and the Compensation Board.
Page 179
The requirement in the NEDLAC Act that all “labour legislation affecting labour market
policy” be referred to NEDLAC for consultation has meant that all draft legislation on
health and safety must be referred to NEDLAC for tripartite consultation before being
tabled in Parliament.191 There is no framework to coordinate the activities of the
advisory bodies with NEDLAC and this has resulted in proposed legislation being
considered in more than one forum.
The health and safety advisory bodies are consensus-seeking institutions that do not
have decision-making powers. However, the composition and structure of these
bodies vary. Both ACOHS and the Compensation Board combine participation by
employers and trade unions with participation by experts appointed by the Minister.
The advisory bodies operating within the Department of Health are not fully tripartite.
The MHS Council consists of delegations of equal size appointed by government and
organised labour and business. The Council is required to liaise with other bodies
having responsibility for health and safety. The composition of the MHS Council
reflects the approach to tripartite institutions contained in the NEDLAC Act. The COID
Act does not regulate how mutual associations that operate in terms of the Act are
controlled. Rand Mutual has six employer directors and two nominated by mining
trade unions, while all directors of Federated Employers’ Mutual are employer
representatives.
The impact of representative tripartism on the arena of OHS has been limited. Neither
ACOHS nor the Compensation Board have become forums for the development and
debating of policy, nor have they enhanced levels of accountability. Delegates to
ACOHS have characterised its agenda as being legislatively driven, being concerned
in the main with the commenting on draft regulations prepared by the Department.
Consultations on the Compensation Board have been confined to a narrow range of
issues and the most significant policy initiatives of the Compensation Office have not
191
Section 5(1) of the NEDLAC Act 35 of 1994.
Page 180
been placed on its agenda. Major policy decisions have been made without reference
to the Board.
In the mining industry, the period since the publication of the Report of the Leon
Commission has seen the successful development of sectorial tripartism. The MHS
Act was developed by tripartite committees established by agreement on the
recommendation of the Leon Commission. The negotiation of the Act has been
described as the most significant achievement of institutional tri-partism, after the
Labour Relations Act. The statutory tripartite institutions created by the MHS Act are in
the process of being established. The implementation of the MHS Act has been
hampered by the fragmentation of authority and amendments to repeal superseded
provisions of the ODMW Act, (for which the Department of Health is responsible),
have not been finalised at the time of preparing this Report.
Recommendation
A national council with a mandate to develop a national health and safety policy must
be established. The Council should include representation from organised business,
trade unions and all the government departments responsible for administering health
and safety.
Page 181
CHAPTER TEN:
HUMAN RESOURCES
There is a lack of skilled OHS personnel in both the public sector and the private
sector.
The lack of sufficiently skilled and resourced personnel to carry out an effective policy
of prevention is a major problem facing the various sectors involved in OHS. A
number of reports and recommendations emanating from the Departments involved
underline the importance for all role players to develop an integrated policy to address
human resource needs across the spectrum of OHS activities. The shortage of skilled
personnel is exacerbated in the public service, where uncompetitive remuneration has
resulted in high vacancy rates and the inability to retain skilled staff in employment.
The health and safety inspectorate in the Department of Labour had a 38% vacancy
rate during 1995. A contributory factor to this situation is acknowledged by the
Department as being the difficulty in recruiting suitably qualified technically skilled
personnel. The Department has had particular difficulty in recruiting personnel with
engineering qualifications.192
The inability to recruit and retain technically skilled persons also has a negative impact
in developing a more representative inspectorate, based on the Department of
Labour’s affirmative action programme. The Department has a Learner Inspector
scheme, but its impact is limited by the fact that a high proportion of pupil inspectors
are expected to leave the inspectorate soon after completing their training. The MHSI
has also implemented a scheme for the training of pupil inspectors.
192
Department of Labour Annual Report (1995) at 35.
Page 182
This exodus is a result of the low remuneration of inspectors when compared with
private sector remuneration packages. It also reflects the scarcity of these skills in
society generally.
The Compensation Office has indicated that staff shortages are hampering its ability
to collect revenue and operate efficiently. Currently, the Compensation Office employs
50 contract employees, in addition to its core staff complement. The Compensation
Office does not receive any support from the fiscus. Its staff are paid out of the Central
Revenue Fund, but the Office refunds this amount to the Revenue Fund.193 The effect
of a lack of competitive packages has also been emphasised in the mining
inspectorate. The Leon Commission Report highlighted the problem of an
inadequately resourced inspectorate:
”Existing remuneration packages are inadequate to attract candidates of
the right quality and calibre in adequate numbers. The Commission
recommends that to ensure that suitable staff can be appointed... the
Inspectorate’s remuneration packages ... be related to remuneration in
the industry.”194
The recommendations of the Leon Commission were accepted by Cabinet which
approved the allocation of an additional R29,8 Million (approximately half of which was
for improved salaries) to the budget of the DME for the implementation of those
recommendations. The Public Service Commission has refused to implement the
recommendation on the grounds that this would create a precedent for other
specialised workers. The laws regulating the public service are in flux. The Green
Paper for a New Public Service Statute proposes granting greater authority to
government departments.195 These changes have the potential for ensuring more
appropriate conditions of employment.
193
The Katz Commission into the Taxation System has recommended that the SA Revenue Services be constituted as a parastatal organisation free from the control of the Public Service Commission. It can be argued that a similar approach would be
appropriate for a revenue-generating organisation such as the Office of the Compensation Commissioner which is not funded
from the fiscus.
194
Commission of Inquiry into Safety and Health in the Mining Industry Report (Vol 1) at 12.2.5.
195
See for instance: Green Paper on Policy Proposals for a new Public Service Statute (GG 17669 of 20 December 1996).
Page 183
The Report of the Commission of Inquiry into the Vaal Reefs Mining Accident (also
chaired by Judge Leon which reported in 1996) again reiterated the need to deal with
the problem:
”The Government Mining Engineer’s Department remains under
resourced and under funded despite the acceptance by the Cabinet of
the Report of the Leon Commission. The Commission strongly
recommends that the Cabinet seeks urgent ways and means of
preventing the Public Service Commission from stultifying or blocking
the decision of the Cabinet.”196
Wages paid to inspectors working in the Department of Labour are consistently lower
than those paid within the Department of Minerals and Energy. This had a particularly
negative effect upon the capacity of the Department of Labour. For instance, at the
time that responsibility for the supervision of “works” was transferred from the DME to
Labour, the latter was unable to attract the inspectors within the DME who had
formerly performed these functions, because this would have resulted in their
receiving lower salaries. In addition, inspectors employed by local government, such
as EHO’s, receive more attractive packages than inspectors with the Department of
Labour. This anomaly is further emphasised by the fact that while the Chief Inspector
for Mine Health and Safety is on the rank of a Deputy Director-General, the most
senior health and safety officials in the Departments of Labour and Health are one
rung lower at the rank of Chief Director. It is particularly striking that the largest of the
OHS agencies, the Compensation Office, which raises revenue in excesses of R1
billion and has a staff in excess of 700 should be under the control of a Chief Director.
The development of an integrated human resources policy can address this type of
anomaly and bring about the gradual standardisation of skills, training and
remuneration of the various inspectorates.
196
Report of the Commission of Inquiry into the Vaal Reefs Mining Accident (1996) at 63.
Page 184
In the occupational health service sector there is a serious shortage of personnel. It is
estimated that there are about 800 nurses in practice with some training in
occupational health. For the past two decades, medical graduates have been able to
acquire a Diploma in Occupational Health or Medicine as an additional qualification,
registrable with the South African Medical and Dental Council. It is likely, however,
that most doctors providing part-time services to workplaces, or treating occupational
diseases in private practice or in the public sector, do not have a qualification in
occupational health. This is one of the factors that has lead to the low level of
occupational diseases that are reported.
There is a critical shortage of occupational hygienists, and in particular professionally
qualified occupational hygienists, one of the key practitioners in risk assessment and
control. To date both the Department of Labour and the Department of Minerals and
Energy have not had a professionally qualified occupational hygienist on their staff.
The Department of Health until recent times had only one, now it has two! Courses
leading to the meaningful academic and professional qualifications in occupational
hygiene have until recent times been virtually non-existent.
In 1996 the British Examining Board in Occupational Hygiene (BEBOH) modules and
examinations were introduced into South Africa by Technikon Pretoria which allowed
persons to obtain for the first time in this country professional qualifications in
occupational hygiene. A great need exists for a University Masters degree (primarily
by course work) in Occupational Hygiene in South Africa to provide the necessary
education and training for graduates to become occupational hygienists. Such a
course could serve the Southern African region.
The need for effective policy coordination in determining the training needs is also a
key factor in harnessing and developing existing potential. The inclusion of more than
2 000 EHO’s into an integrated occupational health and safety service has the
potential to vastly expand the state’s capacity to supply health and safety services and
to enforce standards. Although their precise role has yet to be determined (and will
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vary) it is envisaged that their activities could include being “the key conduit for information dissemination. They could be the public
occupational hygiene practitioner for specific hazards in small
workplaces and in the informal sector (this sector will need actual
occupational hygiene services to control hazards). ...environmental
health officers could work with the inspectorate to extend enforcement
capacity by reporting workplaces not complying with regulation, and by
having selected enforcement duties.”197
It is recognised that upgrading of skills will be needed for many EHOs to take on an
expanded role. The upgrading could be done in conjunction with the Technikons, the
Department of Labour and the professional associations.
The promotion of human resource development in OHS practice involves the training
of EHO’s, occupational hygienists, safety and occupational medical and nursing
practitioners. Given the low level of development in these disciplines or areas, training
institutions are unlikely to meet the need without support from the state. The 1995
Report of the Committee on Occupational Health (Dept of Health) proposes that state
promotion of human resource development should include:
•
Passing regulations which require the use of qualified and certified practitioners
to promote a demand for such practitioners;
•
Identification and funding, in cooperation with training institutions, of service
sites in which aspirant practitioners can be trained. These include occupational
medicine referral clinics and public sector employee occupational health
services;
•
197
contract funding to facilities offering occupational health or safety training.
D Rees “Occupational Health Policy Proposals” (unpublished).
Page 186
A key aspect of human resources development that requires particular attention is the
health and safety training supplied to employees. The Leon Commission noted the low
levels of investment in OHS training in the mining industry. It also pointed out that
OHS training was an area in which there had been undesirable “self-regulation”198.
The Minerals Act merely set a general duty to provide training but gave no further
direction as to the content of training. The OHS Act also adopts this approach. One
result of this is that current training initiatives are not coordinated. The MHS Act
significantly changes this.
This has not deterred some training from going ahead. The Department of Labour
Inspectorates have, for example, been instrumental in developing training courses for
lifting machine operators in conjunction with the Institute of Materials Handling.
Further initiatives are the linkage with the Engineering Council of South Africa to
establish a register for “specific categories of work”.
Whilst these endeavours are commendable, they still suffer from lack, both of a
holistic approach as well as coordination, particularly between the DME and
Department of Labour.
The low level of investment in human resources development among semi-skilled and
unskilled workers should slowly yield as effect is given to the South African
Qualifications Act. Training, especially for semi-skilled and unskilled workers, should
flow from OHS policy requirements and be integrated with the Qualifications Act.199
Recommendation
Improving the skills of OHS professionals and giving an appropriate value to OHS
personnel are an important component of developing a culture of prevention. In the
longer term this will cut the costs to industry, and to broader society, caused by
occupational accidents and disease.
198
Commission of Inquiry into Safety and Health in the Mining Industry Report (1995) Vol 1 at 71-74.
199
See Department of Labour: Skills Development Strategy for Economic and Employment Growth in South Africa (March
1997).
Page 187
CHAPTER ELEVEN:
REPORTING AND STATISTICS
Because there is no national system for reporting accidents and occupational
diseases, the full cost of health and safety conditions for South Africa is not known.
The under-reporting of accidents and diseases hampers the development of
preventative strategies.
The accurate recording and publication of accident and occupational disease statistics
are required for a wide range of purposes •
to enable rate comparisons on an enterprise level;
•
to measure safety performance at the international, national, regional and
sector levels;
•
to provide information for the timeous design of accident prevention
programmes and the formulation of government, industry and labour policy
initiatives;
•
to identify causes of accidents and exposure to risk of various groups in the
worker population;
•
to quantify the effect upon sectors in the national economy.
A survey of the relevant official reports reveals the chaotic and unsatisfactory state of
statistical compilation in South Africa. Accident statistics are compiled and maintained
by the Departments of Labour, Mineral and Energy Affairs and Transport (in respect of
civil aviation, shipping and road traffic). The Compensation Office and the two mutual
associations compile statistics based on compensation claims and the Compensation
Commissioner for Occupational Diseases records claims for compensation made in
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terms of the ODMW Act.
There is no common criteria for reportability under the OHS Act and the MHS Act. The
OHS Act uses the broad term “incident” to cover accidents as well as other events that
affected, or could have affected health and safety. The MHS Act on the other hand
retains the term “accident” and the regulations require a range of “non-casualty”
accidents to be reported. The criteria for reportability of accidents differ - under the
MHS Act injuries that cause an absence of less than 4 days are not classified as
“reportable”, while under the OHS Act incidents causing employees to take off work
for less than 14 days need not be reported.
Certain work-related accidents are not reportable under any statute, for example,
fishing boats under 25 tons which are excluded from the OHS Act but not included
under the Merchant Shipping Act. Traffic accidents that occur on public roads in the
course of work are not reported to the health and safety inspectorate, but are reported
to the police as part of general road traffic reporting although some may be reported
for compensation purposes. It has been estimated that road traffic accidents are the
single greatest cause of work related fatalities, being responsible for approximately
one third of all occupational fatalities.200 Accidents in private households are reported
to the police who in turn refer them to the inspectorate for investigation if they are
work-related. As domestic workers are not covered by the COID Act, the
Commissioner’s statistics do not reflect accidents involving domestic workers.
The under-reporting of health occurrences is acute and there are no reliable figures
regarding the number of workers who are exposed to serious health hazards in the
workplace or who have contracted occupational diseases. This has attracted severe
criticism from the Erasmus Commission (in 1975) and the Leon Commission (in 1995).
200
J P Leger and I Macun "Safety in South African Industry: An Analysis of Accident Statistics", (1990) 11 Journal of
Occupational Accidents 197 to 220. The Department of Transport recorded that there were 9 935 fatalities due to road traffic
accidents in 1994-5.
Page 189
Although the introduction of the COID Act has resulted in a significant increase in the
number of claims for occupational diseases, under-reporting remains extensive. In
1996 there were 2 482201 claims of which 1 219 were for noise-induced hearing
impairment. At the other extreme, only 8 claims were made for over-straining of
muscular tendinous insertions, revealing the huge under-reporting of this common
occupational disease.
The problem of extensive under-reporting is not confined to occupational diseases.
The COID Act requires that all accidents must be reported by employers within 7
days. According to the Commissioner, the average reporting period is now in the
vicinity of 75 days. The Compensation Office records figures for accidents that are
brought to its attention by means other than an employer report of the accident.
Usually this will be because a medical practitioner submits an account or a query by
an employee or trade union. These figures reveal that a significant, and increasing,
proportion of accidents are not reported to the Compensation Office by employers.
Total claims
Claims reported by source
other than employer
1994
27 781
1995
38 523
267 308
1996
41 507
271 676
Two academic studies reveal the prevalence of under-reporting in both urban and
rural areas. A comparison of 8 502 deaths registered at a Cape Town mortuary over
an 18 month period during 1990-91 with the records of the Occupational Health and
Safety Inspectorate of the Department of Labour found that 28% of deaths identified
as being work-related had not been reported. 25% of occupational deaths in the
construction industry had not been reported and no fatal occupational injuries had
201
These figures are for claims made; not for successful claims.
Page 190
been reported in either agriculture or fishing.202 A similar study concluded over a 30
month period in 1990-1992 revealed that only 15% of 224 work-related deaths in 10
rural magisterial districts in the Western Cape had been reported to the Department of
Labour.203 The non-reporting of fatalities deprives families of many of the deceased
workers of the compensation benefits. This conclusion is consistent with figures
supplied by the Compensation Office.
Under-reporting of accidents may also be a manifestation of a tendency by both
employers and employees not to report less serious accidents, particularly those that
do not result in time off work. Improved administrative procedures in the mining
industry resulted in the number of incidents reported to RMA increasing from 34 900 in
1995 to 41 425 in 1996 even though there was a decline in the more serious
categories of incidents.204
The mining industry’s reporting requirements are such that it, of all industry sectors,
reports most accurately on occupational diseases and accidents.
The presentation of data in Annual Reports is inconsistent, and at times, misleading
and confusing. The change in the criteria for certification in terms of the ODMW Act
introduced in 1994 significantly changed the number of persons receiving benefits but
the Annual Report of the Compensation Commissioner for Occupational Diseases
contain no explanation for this change. The 1995 Department of Labour Annual
Report contains figures for accidents in the mining and fishing industries (neither of
which are covered by the OHS Act) without explaining how these figures relate to the
information published by the Departments of Minerals and Energy and Transport.205
202
Myers et al "Application of Two Secondary Documentary Sources to Identify the Under-Reporting of Fatal Occupational
Injuries in Cape Town, South Africa", American Journal of Industrial Medicine, 26: 521-527 (1994).
203
Schierhout, Midgeley and Myers "Occupational Fatality Under-Reporting in Rural Areas of Western Cape Province,
South Africa" (1997) (unpublished).
204
205
Rand Mutual Association: Annual Report (1996) at 7.
Provisional accident statistics supplied by the Department of Labour for 1996 indicated that 591 fatal accidents were
reported to the Department, a decline of 349 from the previous year. It would appear that this represents further evidence of
the unreliability of reporting rather than evidence of a decline of such a magnitude in fatal accidents.
Page 191
The reports published by the Compensation Commissioner are also difficult to
interpret. It is not clear often whether particular figures also include all accidents
reported to the mutual associations as well as state departments and the self-insured
municipalities. There is also a considerable delay in the publication of statistics. While
the Compensation Office produces the most comprehensive accident statistics, these
are published some five years in arrears and are currently only available up until 1991.
The Annual Reports, particularly of the two Compensation Offices, are uninformative
and do not address the concern of employees or employers.
The 1980 Wiehahn Commission recommended that compensation and accident
reporting statistics should be streamlined “to rationalise the reporting of accidents and
to ensure that the statistics obtained are tailored to meet the requirements of both the
Workmen’s Compensation Commissioner and the Directorate: Occupational Health
and Safety.”206 The general administrative regulations published under OHS Act in
August 1996 will permit this to occur.
The Commission of Inquiry into the Vaal Reefs mining accident207 was critical of the
system of accident reporting in the mining industry and recommended that efforts
should be directed towards the development of a coherent national reporting system
for occupation injury and illness in consultation with the Department of Labour, the
Central Statistical Services and other relevant organisations. In the course of the
investigation it emerged that the regulations did not require an incident in which a
locomotive plunged down a shaft, without causing injury, to be reported. The
Commission was critical of the report form which was unclear and recommended that
the terminology used in the report form should follow the recommendations of the
206
207
Complete Wiehahn Report Lex Patria (1982) Part Four 3.12.13 at 376.
Report of the Commission of Inquiry into the Vaal Reefs Mining Accident (1996) at 64.
Page 192
International Labour Organisation regarding the classification of accidents. The quality
of report forms is of central importance to the accident reporting system, as well as the
training of personnel and health and safety representatives to complete these forms.
The accident data in the Department of Labour Annual Report contains separate
figures for the instrumental and personal causes of accidents. The latter figures show
what has been described as an “ideology of misadventure”. A high proportion of
accidents are attributed to dangers inherent in work and where personal responsibility
is ascribed, it is ascribed to the injured worker, and to a considerably lesser extent, the
employer. As is indicated previously, this approach to statistics reveals an approach to
accident analysis which is out of keeping with the sophisticated concepts of risk
management and the health and safety systems approach found in both the MHS Act
and the OHS Acts.
Data on OHS in departmental reports appears in different formats with different
information sets and with different objectives. Comparison of rates between industries
and even sectors of different industries, are difficult if not impossible. No use is made
of the “Standard Industrial Classification of all Economic Activities” and this hinders
comparison with other countries. The data often does not permit calculation of
parameters such as frequency and incidence rates. Rates, rather than absolute
numbers, are essential for comparative purposes across time periods and industry
sectors as well as for prevention programmes. Rates can only be calculated if details
of the number of workers, their place of employment and if possible, time of exposure,
are available.
The adequacy of an accident data base determines the extent to which the
requirements are met. There are in turn, three broad prerequisites for an adequate
data base •
Clear and unambiguous definitions of which accidents are to be included in the
Page 193
reporting;
•
A profile of each reportable accident (how, when, where, why, severity, etc.)
matched with a profile of the worker who has suffered the accident (age,
service, occupation, shift, etc.);
•
Current data on the aggregate (by firm and by industry) number of workers
within defined worker sub-groups (age, service, occupation, shift, etc.).
These data are required in order to calculate rates of accidents for sub-groups and
thereby to identify those who may be at high risk. The development of an adequate
disease reporting system will, in addition to the risk assessment, require the
introduction of medical surveillance systems.
The high incidence of under-reporting indicates the need to develop appropriate
indicators to measure improved OHS performance. Reported accidents and diseases
cannot be used as an accurate gauge of OHS performance until the levels of reporting
are shown to be consistently higher.208
Recommendation
A national accident and disease reporting system as well as criteria for the publication
of information must be developed as part of the national OHS policy. This must be
applicable to all sectors and conform to international standards.
208
Report of the Joint Federal-Provincial Inquiry Commission into Safety in Mines and Mining Plants in Ontario (1981), cited
in J Leger and I Macun "Safety in South African Industry: An Analysis of Accidental Statistics: (1990) 11 Journal of
Occupational Accidents at 197-220.
Page 194
CHAPTER TWELVE:
RESEARCH STRATEGY
There has been no coordinated, consistent or rigorous research strategy in
occupational health and safety in South Africa.
Most OHS research activity has been concentrated on safety issues in the mining
industry. As a result of the recommendations of the Leon Commission, the control and
direction of OHS research in the mining industry is undergoing extensive re-evaluation
and restructuring.
Within the Department of Labour, identification of research projects has been done on
an ad hoc basis primarily by members of the Directorate: Occupational Health and
Safety. These projects can be referred to the ACOHS. The 1995 Annual Report of the
Department of Labour makes no mention of any occupational health and safety
research.
Outside of the mining industry, there is no system of research levies. The 1997/98
budget allocates an amount of R119 000 to OHS research within the Department of
Labour. The majority of OHS research outside of the mining industry is undertaken by
the NCOH.
Significant research projects have been undertaken by researchers attached to
academic institutions. For instance, the Department of Community Health at UCT has
done important research on quantifying the extent of lead exposure in South Africa.209
This showed disturbingly high levels of kidney disfunction, and other health
209
Erlich R et al "Association of Lead Exposure with Renal Dysfunction but not with Blood Pressure Among Workers in a
South African Battery Factory" (under review: Journal of Occupational and Environmental Medicine).
Page 195
consequences, among workers exposed to increased levels of lead absorption. The
study revealed a need to reconsider the current regulations on the use of lead as well
as the need for education on health and safety measures among lead users and for
improved national surveillance. The problems identified by the study are prevalent
both in the formal sector and in the informal sector (in establishments such as informal
battery repair shops). Despite the publication of this research, it does not appear to
have led to a reconsideration or revision of the current regulatory approach by the
Department of Labour.
Safety research in the mining industry, under the Minerals Act, was funded by a levy
based on mine accident rates. The allocation of funding was controlled by the
Director-General of the then Department of Minerals and Energy who was advised by
SIMRAC, a body consisting of government and employer representatives. The Leon
Commission criticised the management, planning and direction of research in the
mining industry and a number of its recommendations have been implemented
through the MHS Act. The comments of the Leon Commission should be given
serious consideration in the development of a national OHS research policy applicable
to all sectors of the economy.
The Leon Commission recommended that research policy should be developed by a
tripartite body representative of government, employers and trade unions. SIMRAC
has now been established as a permanent committee of the Mine Health and Safety
Council, responsible for advising the Minister on the direction research should take.
The Commission also recommended ongoing independent review of the OHS
research programme by eminent researchers to ensure research is properly directed
and professionally conducted.
The Commission concluded that research should be financed by a levy paid by
employers. This levy should be based on accident rates, in the case of safety
research, and a health risk factor, in the case of health research. The Commission
was highly critical of the failure to pay adequate attention to research on occupational
Page 196
health issues and recommended in very strong terms that this imbalance should be
corrected.
The funding and direction of OHS research in sectors other than the mining industry
requires attention. The NCOH has initiated steps to develop a systematic approach to
occupational health research. A workshop sponsored in July 1996 by the World Health
Organisation (WHO) has proposed guidelines for mechanisms of prioritisation of
research, mechanisms of funding as well as coordination of research in occupational
health.
The implementations of the recommendations of the Leon Commission has led to the
current operation of the ERU becoming a subject of some controversy and debate. On
the one hand, representatives of the Chamber of Mines have expressed concern on
the type and priorities of research conducted by the ERU as well as on its funding
arrangements. These criticisms must be balanced against the comments by the Leon
Commission on the dearth of epidemiological research on health problems in the
mining industry. While the Commission did not produce a provisional list of research
priorities, it recorded that “a great deal of epidemiological and biostatistical research
remains to be done before effective control of occupational diseases can be
assured”.210
The participants in the tripartite process established to implement the MHS Act have
recommended that the research levy and research account established in terms of the
ODMW Act, which currently funds the ERU, should be transferred to SIMRAC and
dedicated to occupational health research.
This debate should not detract from the need for continued epidemiological research
and appropriate funds must be dedicated for this purpose. Members of the research
210
Commission of Inquiry into Safety and Health in the Mining Industry Report (1995) Vol 1 at para 4.8.7.
Page 197
community have expressed the view that it is not appropriate to allocate funding for
research of this type on a tender basis and that the funding arrangements must
ensure the maintenance of a proper research infrastructure.
Where the principal of dedicated funding is accepted, effective tripartite input into the
identification of research needs is essential. Mechanisms must be established to not
only ensure adequate project and budgetary controls, but to verify that project
duplication does not take place.
Recommendation
A national health and safety research policy must be established. This must cover the
prioritisation, funding and coordination of research. Mechanisms must be established
to ensure that research findings contribute to policy development.
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CHAPTER THIRTEEN:
COMMUNICATION AND PROMOTION
There is no comprehensive strategy to promote awareness of OHS as an issue.
A successful prevention policy requires the relevant government agencies to promote
and spread awareness among the public of their rights under the law as well as their
obligations. This applies to both employers and employees. There is a low level of
compliance with obligations and a low level of awareness of rights under the
preventative and compensation legislation. An example of successful promotion was
the popular education campaigns conducted by the Constitutional Assembly during
the negotiation of the Constitution. Likewise, the Department of Labour has
undertaken an extensive campaign to popularise the new LRA. This includes
distribution of inserts in newspapers and training of trade union shop-stewards. No
similar education or activity has been undertaken in respect of either the OHS Act, the
MHS Act or the COID Act. Publications in terms of the OHS Act and the COID Act
have been limited to rather legalistic summaries. Certain of the NGO’s and some trade
unions have published guides to health and safety directed at a worker audience.
The absence of a communication strategy is a significant contributor to the extensive
under-reporting of occupational diseases. It also has the effect of depriving many
employees of the benefits to which they are entitled. The failure to publicise the
extension of compensation benefits to repetitive stress diseases discussed above is
an example of this.
Internationally, there are many examples of successful communication strategies. The
British Health and Safety at Work Act envisages that a range of guidelines are
published to assist employers to interpret their obligations in terms of the Act. These
include approved codes of practice, guidelines and other explanatory documents. The
British Health and Safety Executive has produced 400 publications on OHS topics.
Page 199
One reason for this approach is the need to offer guidelines on the meaning and
application of broad general duties. For instance, the OHS Act requires employers to
provide “reasonable assistance, training and facilities” to health and safety
representatives. Yet there is no indication anywhere as to what these facilities should
be or what types of training should be provided.
Recommendation
The National Occupational Health and Safety Policy must include a communication
strategy designed to inform employers and employees of their rights and obligations,
to increase public awareness of OHS and to raise the public profile of OHS as an
issue.
PART C:
RECOMMENDATIONS
Page 200
CHAPTER FOURTEEN:
RECOMMENDATIONS
1
THE NEED FOR A NATIONAL OCCUPATIONAL HEALTH AND SAFETY
POLICY
The body of this report suggests the following -
•
occupational accidents and work-related ill-health impose a considerable cost
on the South African economy and society (the dearth of data results in this
cost being underestimated);
•
prevention policies to promote and enforce compliance with occupational health
and safety legislation are inadequately developed;
•
with the exception of the mining industry, a dwindling level of resources are
devoted to the prevention of occupational accidents and work-related ill-health;
•
there is a critical shortage of personnel to develop OHS policy and to enforce
OHS legislation while, at the same time, existing human resources are
inefficiently utilised;
•
the programmes of prevention and compensation agencies are insufficiently
coordinated. Compensation agencies do not adequately promote the
prevention of occupational accidents and work-related ill-health;
•
there is generally a low level of employer compliance with obligations in terms
of compensation legislation and a low level of employee awareness of rights in
terms of compensation legislation;
Page 201
•
there is inadequate reporting of occupational accidents and, to a greater extent,
work-related ill-health. This prevents the determination of the full extent of
these problems, the effective development of preventative strategies and
deprives employees of compensation benefits;
•
there is insufficient research on OHS and no coordinated research programme;
•
there is a severe shortage of skilled OHS personnel and no coordinated skills
training strategy to address this shortage;
•
there is no coordinated communication strategy to raise public awareness of
OHS and to promote active approaches among employers and employees.
As a result the practice of occupational health and safety across industries in South
Africa is uncoordinated, fragmented and a burden on resources.
Occupational health and safety are topical agenda items in an increasingly dynamic
industrial environment. New chemicals, processes, machinery and technology are
evidence
of
more
and
more
specialisation
in
science
and
engineering.
Simultaneously, workers are exposed to an increasing array of occupational hazards.
With better communication and education, the expectation of employees for improved
occupational health and safety, is expanding. An equally dynamic legislative and
administrative approach is required to respond to these external dynamics.
The Committee is of the view that existing legislation and administrative structures are
unable to meet the challenges of technology, the expectations of employees, the
requirements for enhanced productivity and competitiveness and the obligations of the
state. Failure to do so will result in occupational accidents and work-related ill-health
continuing to take an immense toll on human and economic resources. A new
perspective and a fresh impetus is necessary to, at national level, initiate a
coordinated approach to occupational health, safety and compensation.
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A national policy on occupational health, safety and compensation must be developed
as the first step in a process to rectify the current situation. The guiding principles in
this policy, implemented after tripartite discussion and review, has the potential to
provide the necessary impetus for improvement.
2
DEVELOPING A NATIONAL OCCUPATIONAL HEALTH AND SAFETY
POLICY
In the previous section of this Chapter we summarised some of the reasons why
South Africa requires a national health and safety policy. In this part we examine the
advantages and disadvantages of the different mechanisms that could be adopted to
develop the national policy. These include (a)
establishing a Council on a voluntary basis by agreement between the social
partners;
(b)
the appointment of a committee to develop a national OHS policy prior to the
establishment of a Council;
(c)
the President appointing a commission to investigate a national OHS policy;
(d)
establishing a Council by amending the powers of an existing advisory
body;
(e)
NEDLAC serving as the forum in which the national OHS policy is
developed;
(f)
establishing a National Occupational Health and Safety Council (NOHSC)
by legislation.
(a)
Establishment of a voluntary council
Discussions on a national policy conducted on a voluntary basis have to date not
Page 203
advanced the debate significantly. The continued reliance on this approach would
accentuate the insular approach of employers, trade unions and government
departments. A voluntary structure will not be able to achieve the sense of purpose of
a legislated structure. It will be hampered by logistical problems, administrative
divisions, uncertain accountability and lack of resources, and would, at best, be a
stop-gap rather than providing the dynamism and leadership that is necessary to
tackle the problem.
(b)
The appointment of a committee to develop a national policy
A national policy could be developed without a council being established. The Minister
of Labour (in consultation with other affected ministers and the social partners) could
appoint a policy drafting committee. (This approach has been followed by the
Department of Minerals and Energy in the development of energy policy.) Part of the
committee’s role would be to investigate the role of a Council or a similar coordinating
structure.
The committee’s work could involve a combination of investigation, consultative
process and circulation of draft documents. Advantages of this approach are:
•
Outputs will only emerge from the consultative approach and are not predetermined;
•
Participants develop an understanding of positions as the process advances;
•
There is opportunity to critically examine the role a NOHSC would play in
addressing problems in the regulation, administration and improvement of
occupational health, safety and compensation in South Africa.
The committee is of the view that this approach would diminish the level of
commitment from role players to the development of policy and would be less clearly
Page 204
defined than a process implemented and structured by legislation. As compared to
either the appointment of a commission or the establishment of a council, for instance,
the committee’s powers of investigation would be inadequate.
This approach would suffer from the departmental divides and lack of cohesiveness of
the voluntary approach as well as the consequences of delays until policy elements
are strategised and implemented.
(c)
Appointing a commission to make recommendations to the State
President on a national policy
The Commissions Act 8 of 1947, provides for the establishment of a commission by
the President. The Commissions Act allows considerable flexibility for the creation of a
Commission with the power to investigate OHS and to make recommendations to the
President. The powers of the commission appointed in terms of this Act would be
determined by rules made in terms of the Act. Recent Commissions of Inquiry range
from the Leon Commission into Health and Safety in the Mining Industry which
consisted of a retired Judge and three expert members to the Presidential
Commission of Inquiry into Labour Market Policy which had 15 members combining
key stake-holder representatives and experts. The advantages of the commission
route include speed, statutory investigatory powers and the high profile creation
attached to commissions by both politicians and members of the public. The
composition of the commission could involve a combination of persons nominated by
the stake-holders and experts in the field. The ongoing administrative, advisory,
coordinating and investigative duties necessary to address occupational health, safety
and compensation in an integrated manner at national level in South Africa, requires
the establishment of a structure by an appropriate Act to ensure continuity.
Implementation can follow investigation without establishing further structures.
Page 205
(d)
Amending the powers of an existing advisory body
An alternative strategy would be to bring the NOHSC into existence by amending the
powers of an existing advisory body. For instance the OHS Act could be amended to
transform the ACOHS into a NOHSC.
This approach could be perceived as allocating a lead role to a specific department
without the necessary discussions, investigations and compromises and will, as a
result, increase departmental divides and foster uncooperative working relationships.
It is doubted whether a structure created in this manner will have the credibility to play
a lead advisory role and make recommendations acceptable to other departments.
This option is not favoured by the Committee as, from a legislative time frame,
amending an Act or promulgating a new Act would involve the same issues of delay
and, would in the long run, perpetuate aspects of the current fragmentation of OHS.
Advisory bodies under existing sectoral legislation will continue to perform their
functions and these Acts would all have to be amended to ensue the cooperation,
consultation and liaison necessary for a national approach.
(e)
NEDLAC as the forum to develop OHS policy
NEDLAC has the potential to provide a structure for the development of national policy
on OHS. This could be done either through creating a new Chamber to address
specifically occupational health and safety or by the Labour Market Chamber
appointing a subcommittee for this purpose. The former proposal would require an
amendment to the NEDLAC Act. It is the committee’s view that neither proposal would
create sufficient focus to develop a national health and safety policy. The importance
of the topic would be undermined by the structural subordination of the committee.
This approach also entails two discrete processes: a structure for policy development
and another for policy implementation. The preferred route is for a single
Page 206
structure to be responsible for both phases.
This is not to suggest that NEDLAC would have no role in the development of a
national policy: it would be required to consider all draft legislation and the channelling
of proposals through the NEDLAC plenary structures would be required to ensure
commitment to these reforms among the leadership of the social partners.
(f)
Establishment of a council by legislation
Establishment of a Council by an Act holds the following advantages:
•
A council is created with the defined leadership role to develop and oversee
the implementation of a national policy ;
•
The statute will embody a national vision on the integration and coordination of
legislation, inspection capabilities and compensation practices;
•
The enactment of the statute will mark the commitment of all three social
partners to the improvement of occupational health and safety and will create
a dedicated institution focussed on the problems of occupational diseases,
accidents and compensation;
•
The funding and allocation of resources is determined by statute;
•
Reporting lines and accountability are determined by statute;
•
A statutory forum allows stakeholders to co-ordinate resources directed at
occupational diseases, accidents and compensation;
•
Stakeholders can direct their expertise to achieving holistic preventive
strategies.
Page 207
The establishment of the Council by legislation will involve certain delays. In the light
of the current legislative calendar the legislation could only be enacted in 1998 and
the Council is unlikely to come into operation until the second half of 1998 (this
consideration applies equally to all approaches that require legislation or legislative
amendment). This should not preclude the establishment of a Council by statute. The
disadvantages of any delay involved can be countered by interim measures to ensure
that the initiatives that have been taken towards the development of an integrated
policy and to improve the quality of OHS services, do not lose their impetus.
One of the first priorities of the NOHSC will be the development of a national policy on
occupational health, safety and compensation. The development of a national policy
must occur simultaneously with the continuing task of protecting and promoting health
and safety. The implementation of the new policy will therefore occur incrementally
with aspects of the policy being implemented while other aspects are still being
developed. The implementation of policy aspects will require monitoring and
assessment. It is believed that a Council established by statute is the only structure
that will be able to direct and control a process of this nature.
3
THE ESTABLISHMENT OF A NATIONAL COUNCIL
3.1
Enactment of legislation
The Minister of Labour, as the lead Ministry, should have responsibility for developing
the legislation to create the Council. The Minister should initially, after consultating the
Social Partners, appoint a task-force to prepare legislation. This legislation should be
published for comment and be subject to tripartite negotiation. These negotiations
could occur either in NEDLAC or by reconstituting the Steering Committee. The
Committee believes that NEDLAC should be the forum for these negotiations as the
NEDLAC Act requires that NEDLAC must be consulted on the legislation. The most
appropriate forum for negotiation would be a subcommittee appointed for the Labour
Page 208
Market Chamber. Particular care would have to be taken to ensure that the
Government delegation in these negotiations is sufficiently representative. Once these
negotiations are completed, the Bill should be tabled in Parliament and the public
would be able to make representations at the Portfolio Committee hearings. A
schedule for drafting, consultation and negotiation must be prepared to ensure that
the Bill proceeds to Parliament expeditiously.
3.2
Composition
The Council should be a tripartite body consisting of equal representatives of
government, business and labour. The Government delegation should involve
representation from the Departments of Labour, Minerals and Energy and Health.
Representatives of other Departments whose responsibilities impact upon health and
safety should participate where appropriate. This should include not only Departments
such as Transport, Environmental Affairs and Tourism as well as Agriculture, who
have regulatory responsibilities but also Departments such as Justice whose line
functions impact upon enforcement. The representation from the Department of
Labour should include representatives of the Chief Directorate: Occupational Health
and Safety as well as the Office of the Compensation Commissioner. The
representatives from the Department of Health should include the Chief Directorate:
Occupational Health as well as a representative of the national Health Department
and a representative representing the interests of the Provincial Health Departments.
The Provincial Health Departments would have to establish a system of coordination
and liaison so as to mandate and receive briefings from their representative.
The Council should be a plenary policy formulation body. The business and labour
delegations should include senior representatives of employers’ organisations and
trade unions. Their participation is required to ensure that the policies recommended
for placement before the Minister enjoy legitimacy among the social partners. The
Council would appoint task forces to prepare draft policy documents for consideration
Page 209
by the Council. The appointment of the task forces should be done on a tripartite basis
with the parties nominating their representatives.
Participation by members of the professions active in the area of OHS should occur
through the delegations appointed to represent the social, partners on the Council,
and to a greater extent, the work on the task forces appointed by the Council. These
professions should not form a separate constituency for the composition of the
Council.
3.3
Duties and functions
Duties and functions of the NOHSC would, inter alia, consist of the following •
drafting and making recommendations to the Minister on a national policy on
occupational health, safety and compensation;
•
monitoring, and advising the Minister-on, the implementation of the
occupational health, safety and compensation policy by different departments
of State;
•
periodically reviewing the national OHS policy;
•
liaising with other statutory and non-governmental bodies on matters relating to
•
coordinating, collecting, processing and distributing data and information on
•
publishing and distributing a plan of action for its activities on an annual basis;
•
completing an annual report on the state of occupational health, safety and
compensation in South Africa for submission to the Minister;
•
appointing task forces to investigate specific occupational health, safety and
compensation issues in conjunction with relevant statutory bodies.
Page 210
3.4
Procedures for the development of policy
The Council will be responsible for the formulation of the processes to be utilised in
developing a national occupational health and safety policy. For most issues this will
involve the appointment of a task force to prepare a draft on the particular topic. The
three constituents of the Council would nominate members with the composition
varying according to the task force’s brief. If the Council considers that a more
detailed investigation is necessary before the development of the draft, it should be
able to commission research or propose that a commission of inquiry be established.
The Council will have the responsibility to draw together the work of the task forces
and draft the national policy for consideration by the Minister. The Council must be
given an active brief and have a prescribed procedure to develop policy. This will
require that there are the necessary resources, including staff, research and
administrative back-up, to facilitate the process of policy formulation.
The national policy must be developed in conjunction with the continuing task of
enhancing the delivery of occupational health and safety services. A number of
significant initiatives to improve the enforcement and monitoring of OHS are discussed
in this report. These include the proposals agreed upon by the Departments of Labour
and Health to develop a working relationship as well as the ongoing restructuring of
the MHS Inspectorate that have flowed from the recommendations of the Leon
Commission. The development of a national reporting system for occupational
accidents and work-related ill-health has also been recommended. Initiatives of this
type should be developed as a matter of urgency and should not be left in abeyance
until the Council is brought into existence. For this reason, it is proposed that the
Minister of Labour should mandate the National Steering Committee for the specific
purposes of identifying a series of priorities that require ongoing monitoring or that
require urgent preparatory work in the period before the Council is established. Task
forces should be appointed in each of these areas and where appropriate the
Page 211
recommendations implemented in a manner that promotes the development of an
integrated occupational health and safety service for the benefit of all South African
employees and employers.
3.5
Staffing and resources
The NOHSC’s method of operation will be to use task forces addressing specific
topics. This will limit permanent staff to those necessary for service requirements. It is
suggested that permanent staff should not exceed five persons. A budgetary provision
of R5 million per year should be sufficient to cover human resources, project and
contingency costs.
The primary functions of the permanent staff would be to provide logistical, secretarial
and research support for the activities. This would include a permanent secretariat
and persons with technical competencies to evaluate, collate and monitor progress of
task forces. Research work could be performed either by employees of the Council,
co-opted departmental personnel or on a contract basis.
Permanent staff must be headed by a Director. The Director should have technical
and administrative expertise, wide experience of OHS and be acceptable to all parties.
The Director’s responsibilities would include co-ordinating the activities of the Council,
liaising with government, labour and business, being in control of the secretariat and
promoting the activities of the Council.
The functions and responsibilities of the director and staff of the Council would
include (a)
the provision of all secretarial services, to meetings of the Council, task and
other groups;
(b)
the conducting of, or arranging for, research on behalf of the Council;
Page 212
(c)
the provision of technical advice to the social partners during consultations;
(d)
publicising the activities of the Council and promoting public participation,
particularly of the informal sector; and
(e)
liaising with government departments, other organisations and interested and
affected persons on the implementation of the Council’s recommendations.
3.6
Funding of the Council
The Council could be funded directly from the budget or from the Compensation Fund,
or by a combination of funding from these two sources.
Funding out of the national budget would be indicative of a serious state commitment
to the improvement of OHS. However, the view has been expressed that in the light of
the limited funds available for preventative OHS activities, the funding of the Council
would reduce the allocation to enforcement agencies. In addition, securing funding
from the fiscus may further delay the establishment of the Council.
The provision of funding from the Compensation Fund would be consistent with the
purpose of the COID Act. If the Council is to be funded either wholly or in part from the
Compensation Fund, this should be specifically provided for in the statute and not left
as a matter for the Commissioner to determine in terms of section 4(2)(b) of the COID
Act.
Any funding provided from compensation funds should be borne proportionately by
the Compensation Fund and the two Mutual Associations.
A number of arguments have been addressed in opposition to funding from the
Compensation Fund. The first of these is that it is the responsibility of the State to fund
institutions
established
by
statute.
Although
in
other
countries,
national
Page 213
prevention agencies, bodies or organisations, are funded from the general revenue,
state funding is not an absolute rule. There are several examples in South Africa
where state funding has not been used (a)
levy funding of the Council for Nuclear Safety established by the Nuclear
Energy Act;
(b)
levy funding of SIMRAC established in terms of the Mine Health and Safety
Act; and
(c)
subsidisation of NOSA by the Compensation Commissioner.
The funding of occupational health and safety organisations from compensation funds
is common internationally. This has been recognised and accepted in South Africa.
Compensation cannot, in the implementation of OHS policy, be compartmentalised as
a separate element. It should form part of, and be integral to, prevention strategy.
Closely linked is the argument that organisations of this type must be funded out of
the general revenue as employers are tax-payers and their funding out of the
Compensation Fund amounts to a “double burden” upon employers. The counter to
this argument is that state expenditure on occupational health and safety can amount
to a public subsidisation of the activities of employers who fail to take appropriate
action to reduce occupational accidents and work-related ill-health.
An additional argument is that the Compensation Fund consists of “employers’
money” because employers have made the financial contribution to the Fund. As is
pointed out in Chapter Seven, the establishment of the Fund is posited on the removal
from employees of the right to institute civil actions and the funds must therefore be
administered for the benefit of employers and employees.
The question of funding sources should not be approached dogmatically or at an
Page 214
ideological level alone. The improvement of health and safety prevention, particularly
in a society where the cost of occupational accidents and work-related ill-health is as
high as it is in South Africa, is an investment that has the potential to reduce economic
and social costs for both employers, employees and society as a whole. For
employers the costs of contributions to the Compensation Fund currently exceed R1.6
billion and the cost of compensation is growing at well above the rate of inflation.
While the total cost of the Council would represent a minuscule proportion (in the
order of ¼%) of total contributions, the reduction of accident and disease rates could
have significant benefits.
A possible solution would be for the Council to be funded initially by the Compensation
Fund and for State funding to be phased in until the costs were equally shared
between the sources.
3.7
Accountability
The Council should operate as a consultative forum seeking to develop policy with the
highest possible degree of consensus. At the conclusion of deliberations, the Council
would forward recommendations to the Minister of Labour, as its responsible Minister.
If consensus is not reached in the consultation process, the Council would submit a
report to the Minister which reflects the different positions of the parties. The Minister
would deliberate on the recommendations or report in consultation with other affected
Ministers including, in particular, the Ministers of Health and Mineral and Energy
Affairs.
The Council will have an active leadership role in the development of national OHS
policy. At the same time however, it cannot be granted decision making powers. The
policy proposed by the Council must be referred to the relevant Ministers for
consideration before referral to the Minister of Labour. He would, in turn, be required
to consult with other Ministers with a direct interest before tabling the policy for
adoption by the Cabinet.
Page 215
The Council would have to have a, role in ensuring that policy decisions are
implemented by the relevant Departments. In this regard, Departments would be
required to prepare reports for the responsible Minister on the steps that they have
taken to implement policies. These reports would be made available to other Ministers
and to the Council. The Minister of Labour would in turn request the Council’s advice
on the manner in which the new policy is being implemented.
3.8
Relationship with other tripartite institutions
The Council would have to develop an appropriate relationship with NEDLAC and with
existing statutory occupational health and safety bodies.
The Council should develop a cooperative relationship with NEDLAC to ensure that
the relevant NEDLAC structures are kept informed of the work of the Council and that
the requirements of the NEDLAC Act are complied with. The establishment of linkages
between a Council and the Mine Health and Safety Council was recommended by the
Leon Commission and has been accepted by the DME, the Chamber of Mines and the
National Union of Mineworkers in their responses to the Commission’s Report. This
linkage would be strengthened by ensuring that the chair of each advisory body is a
member of the government delegation to the Council. In particular, any changes in
legislation would have to be referred to NEDLAC. The existing statutory bodies should
continue to operate until changes are made to legislation as a result of a national
policy.
The view has been expressed that the establishment of a Council would be yet
another bureaucratic intervention in the arena of occupational health and safety that
would not result in or guarantee improvements. This argument is misconceived as the
operation of the Council will permit rationalisations of existing structures that will
reduce bureaucracies and permit the more effective implementation of existing
structures.
Page 216
4
THE ELEMENTS OF A NATIONAL OCCUPATIONAL HEALTH AND SAFETY
POLICY
In the following section we outline key elements of a national OHS policy. The
elements discussed are not exhaustive but represent an endeavour to highlight topics
that should be addressed in developing the OHS policy.
4.1
Structures and Institutions of Governance
The development of an effective agency (or agencies) to enforce and promote
occupational health and safety and the funding of health and safety agencies.
Consideration will have to be given to whether (a)
a statutory authority with responsibility for OHS should be created or whether
responsibility should remain within government departments;
(b)
if responsibility is to remain within Departments, whether the current institutional
arrangements should continue or whether responsibility for any aspect of
occupational health and safety should be transferred from one department to
another;
(c)
what institutional changes should be implemented to promote a closer
relationship between prevention and compensation;
(d)
whether it is appropriate for the Compensation Fund, because it is revenuegenerating, to have greater administrative autonomy from the public service;
(e)
the identification of “grey areas” in which administrative responsibility for OHS is
unclear (e.g. explosives, fishing) and the determination of unambiguous
responsibility.
Page 217
4.2
Prevention Strategies
The development of a consistent national approach to the promotion of health and
safety at the workplace, including (a)
the development of effective systems for enhanced worker participation in
health and safety (including the training of health and safety representatives);
(b)
the development of risk management and the dissemination of information on
these topics;
(c)
the identification of high-risk sectors, work processes and substances and the
development of strategies to combat these risks. The strategies adopted may
include the development of regulations, training or communication strategies.
The strategies adopted would vary from sector to sector: in organised sectors
it may be appropriate, for instance, to encourage employers organisations and
trade unions to develop strategies for the reduction of risks.
4.3
Enforcement strategies
An integrated strategy to improve the effectiveness of inspections and enforcement
agencies, including -
(a)
the enhancement of the activities of the inspectorates through the
development of prevention and promotion policies;
(b)
the coordination or rationalisation of the functions of inspectorates to enable
more effective utilisation of resources and personnel;
(c)
enhancement of techniques for inspection, investigation and inquiry;
Page 218
(d)
the development of effective mechanisms for deterrence, mechanisms for
enforcement, including the review of sanctions for non-compliance;
(e)
development of capacity and specialisation among government agencies
involved in enforcement, such as the Department of Justice.
4.4
Capacity Building
An integrated strategy to improve skills levels and human resources in government
agencies and within civil society. These strategies should include (a)
the training of inspectors and strategies for enhancing and retaining skills levels
and capacity within government agencies;
(b)
development of capacity within trade unions and OHS training for workers and
elected health and safety representatives;
(c)
training of managers in key aspects of OHS such as risk management;
(d)
training of health and safety professionals, including occupational hygienists;
(e)
incorporation of health and safety training into relevant university and technikon
training courses in fields such as engineering as well as incorporation in
courses approved by the S.A. Qualifications Authority and the Mining
Qualifications Authority;
4.5
Compensation
An examination of the present workers’ compensation system and the development of
recommendations for reform. Topics that would be considered include -
Page 219
(a)
the creation of a single national compensation fund;
(b)
the use of the compensation fund to promote preventative activities;
(c)
the adequacy of compensation benefits;
(d)
the assessment of permanent disability;
(e)
the compensation of occupational diseases.
4.6
Referral systems
The development of appropriate systems for the identification of occupational hazards
and work-related ill-health and their referral to the appropriate prevention,
occupational medicine, occupational hygiene or compensation agency.
4.7
Rehabilitation
The development and funding of a national strategy to provide for improved access for
injured workers to physical and vocational rehabilitation.
4.8
Development and Harmonisation of Legislation and Regulations
The development of a uniform approach to the reform of legislation, regulations and
other standards, including (a)
the amendment of existing legislation, where necessary, to enable the
development of an inter-sectoral approach to health and safety and to promote
consistency, improved standards and greater equity;
(b)
the systematic revision and modernisation and harmonisation of regulations
and standards;
Page 220
(c)
the ratification and incorporation of international standards into South African
law; and
(d)
the development of a single umbrella National Health and Safety Act,
implementing the national health and safety policy.
4.9
Research
The development of a national research strategy including (a)
The development of research priorities;
(b)
Tripartite participation in the setting of research priorities;
(c)
The coordination of research across sectors;
(d)
The funding of research;
(e)
The implementation of research findings;
(f)
The use of research in policy development;
(g)
Independent scrutiny of research programmes;
(h)
The role of existing research institutions within a national strategy.
4.10
Statistics and Information Dissemination
The development of a national reporting and data system with the following features (a)
criteria for reporting occupational accidents and work-related ill-health;
(b)
a national occupational disease reporting system;
(c)
an accessible data base designed for use in prevention and research
activities;
(d)
national criteria for the publication of data in annual reports and other
publications.
Page 221
4.11
Cooperation and Coordination with other Government Agencies
The development of cooperative relationships between the health and safety agencies
and government agencies with related responsibilities -
(a)
the development of clear demarcations between the responsibility of health and
safety agencies and that of government agencies in related areas (e.g.
merchant shipping, road safety, environment, etc);
(b)
the development of cooperative activities within areas of overlapping concern
(e.g. pollution control, etc).
4.12
International Cooperation
The development of a coordinated approach by government departments in their
dealing with international organisations.
APPENDIX:
LIST OF PERSONS OR ORGANISATIONS
WHO WERE CONSULTED, INTERVIEWED
OR WHO SUPPLIED INFORMATION
1
LIST OF ORGANISATIONS WHO WERE CONSULTED, INTERVIEWED
OR SUPPLIED INFORMATION
Association of Societies for Occupational Safety and Health
AVCASA
Board of Registration for Occupational Hygiene, Safety and Associated Professionals
Building Industries Federation of South Africa
Business South Africa
Chamber of Mines of South Africa and Association Mining Employer Groupings
Chamber of Mines of Namibia
Chamber of Mines of Western Australia
Chamber of Mines of Zimbabwe
Chemical Workers Industrial Union
Community Agency for Social Enquiry
Compensation Commissioner for Occupational Diseases (ODMWA)
Compensation Commissioner for Occupational Injuries and Diseases (COIDA)
COSATU
Department of Labour (Chief Directorate: Occupational Health and Safety)
Department of Community Health UCT
Department of Environment and Tourism
Department of Health (Gauteng)
Department of Health (North West Province)
Department of Minerals & Energy
Department of Transport
Federated Employers’ Mutual Assurance
2
German Embassy
International Labour Organisation
Industrial Aid Society
Industrial Health Research Group
Institute of Safety Management
Iscor
Legal Resources Centre
Mine Health and Safety Administration, USA
National Occupational Safety Association
National Union of Mineworkers Epidemiology Research Unit
NEDLAC Labour Caucus
National Centre for Occupational Health
National Social Security Authority, Zimbabwe
Rand Mutual Assurance Company Limited
South African Association of Occupational Health Nurses
South African Society of Occupational Medicine
Workers’ Compensation Board, British Columbia
Zimbabwean Congress of Trade Unions

Benjamin and Greef - Department of Commercial Law

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