Labour is also calling for a summit on occupational injuries and diseases. Fragmented compensation systems, and lack of legislated rehabilitation, force may disabled workers into poverty, said Solidarity.
Legal specialist Hanlie van Vuuren answers compensation queries in an interview with SHEQafrica.com editor SHEQafrica.
SHEQafrica.com; What are the implications of different compensation systems for industry and mining?
Solidarity; Different compensation systems follow different determination processes, calculations, and payment processes. In practice this means that the Occupational Diseases in Mines and Works (ODMW) Act of 1973, that provides for compensation for lung diseases in mineworkers, provides for disablement of two degrees of lung disease, and only in lump sum payments. This Act is administered by the Department of Health, DOH.
In contrast, the Compensation for Occupational Injuries and Diseases (COID) Act of 1993 provides for disablement as a percentage, with 30% and less in lump sum, while 31% and more entitles a recipient to lifelong pension. This Act administered by the Department of Labour, DOL.
COID Act compensation include injuries and even the same lung diseases covered under ODMW Act, if the worker’s exposure was not in mining. Comparing the two forms of compensation, it is clear that once off amounts are much worse than life long pension.
SHEQafrica.com; Should there be one compensation system for industry and mining?
Solidarity; One compensation system would be ideal. Zambia took the bold step in 1999 to merge their two systems of compensation. But in SA, COID Act provisions are not on par with the rest of the world, and it is imperative to review the whole system.
SHEQafrica.com; Who are the specialists drafting the proposed bill?
Solidarity; We urge government to host a summit of compensation role players, including Department of Health, Department of Labour, unions, employer organisations, health care providers, and others, to discuss deficiencies in the current legislation and address these. We need a comprehensive approach, with a comprehensive result, to represents all stakeholder interests.
SHEQafrica.com; Would this be the first time that a labour organisation proposed legislation wording in toto?
Solidarity; It is not uncommon for organisations outside government to participate in drafting legislation. One of the characteristics of the new SA democratic dispensation and new Constitution, in an open and democratic society, is participation in legislative processes.
SHEQafrica.com; Which provisions in current compensation legislation are most problematic?
Solidarity; We experience problems due to;
Disablement determination under ODMW Act.
Calculation of compensation in both sets of laws.
Lack of job security for disabled people.
Lack of rehabilitation and re-intergration into the workplace.
Lack of provisions to claim for pain and suffering, since rights to civil action are removed.
Negligence provisions require injured workers to prove zero contributory negligence on their part, and 100% on the employer’s part. There is no provision for proportional distribution of negligence.
Lack of enforcement structures, and low penalties to employers who transgresses legislation.
Lack of cohersion between structures enforcing Occupational Health and Safety legislation and the Compensation Fund.
SHEQafrica.com; Does the DOL have capacity to administer the current system?
Solidarity; It is not only DOL involved in compensation. Infrastructure and capacity is of some concern, since health and safety is being handled within the DOL, and the Compensation Fund and CC as a separate entity administered by DOL.
Separation of the CF and CC causes problems with enforcing preventative safety measures, as well as enforcing COID Act provisions and penalties. It would be better if these two entities were combined.
SHEQarica.com; Is the compensation system being abused?
Solidarity; As a union we often encounter that employers are not complying with relevant Acts, be it due to exposure to unsafe processes or environments, or frustrating valid claims by non-reporting. It is unclear if any other problems exist. Compensation corruption was recently reported in the media.
SHEQafrica.com; Are there flaws in mining compensation administration?
Solidarity; The processes of ODMW Act are much slower that processes under COID Act.
For lung diseases, under ODMW Act, diagnoses are made by the Medical Bureau for Occupational Diseases, MBOD, and a lack of diagnostic facilities causes problems to workers and families if workers die and organs have to be removed for testing in autopsy.
Once a worker is diagnosed with first or second degree lung disease, payment of compensation is handled by the Compensation Commissioner for Occupational Diseases in a process that often takes more than 12 months before payment is made.
Mining injuries compensation is mostly done by Rand Mutual Assurance, RMA, which is more effective than the Compensation Commissioner, although both administrate benefits under COID Act. We have to consider that the Compensation Commissioner register and handle some 200 000 claims per year, much more than Rand Mutual.
Solidarity Occupational Health and Safety division head, Paul Mardon, said compensation calculations do not provide for loss of earning potential. R100 000 in compensation is poor consolation for a worker who earned the same amount annually, and who could have worked another five years.”
Personal earnings at the time of an accident is used as the basis for calculating compensation, irrespective of when the worker becomes entitled.
Legislation does not oblige employers and compensation structures to provide rehabilitation and reintegration into the workforce, for disabled workers.
Different compensation systems between industrial sectors, via the Department of Labour Compensation Fund, and mining sector, via separate privatised compensation funds.
South Africa is losing many economically active workers through occupational injuries and diseases. The International Labour Organisation (ILO) says some 5% of global gross product is paid to occupational injuries and diseases.
PHOTO; Solidarity legal specialist Hanlie van Vuuren.
PHOTO; Solidarity OH&S manager Paul Mardon.
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CC stats contact
Former editor responds to comment query on where to find official SA loss incident statistics; Try DOL Compensation Commissioner stats officials, Mr Flint on 012 319 9448, Irma on 012 319 9293.
Google for worldwide stats in sectors and types of injury relevant to your operation. Stats are more useful if the sample is larger, and over a longer period. See our report on Slips, trips and falls on this site. -Former editor