Benjamin and Greef - Commercial laPresented to Mr Tito Mboweni, Minister of Labour by: 29 MAY 1997. PAGE II . PAGE III . PAGE IV. PART A: ... The Committee of Inquiry consists of Mr

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 under-regulated. 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 post-

matric 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 GG 17945 of 18 April 1997.

21 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 and developing model

surveillance schemes for key occupational conditions.

24 Draft National Health Bill, Provisional Draft 9, (6 November 1996)


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 ex-

mineworkers 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 ex-

mineworkers 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, food-

safety, 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 NUMBER

Western Cape 350 Eastern Cape 233 Northern Cape 61 Free State 139 KwaZulu/Natal 300 North-West 100 (estimated) Gauteng 630 Mpumalanga 136 Northern Province. 152

RSA ± 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 Director-

General. 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.


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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.


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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)


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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.


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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


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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.


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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.


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• 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 sub-

regions. 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


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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).


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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 empower-

ment 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


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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.


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• 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.


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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.


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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.


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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:


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• 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


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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 International Labour Office: Report on a Mission to SA (January, 1996) at 32. 46 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).


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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


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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;


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• 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


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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).


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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.


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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).


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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.


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• 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.


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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).


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• 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:


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”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).


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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).


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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).


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The HSE is the operational arm of the HSC and is responsible for the day-to-

day 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.


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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.


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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).


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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.


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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.


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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).


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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.


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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.


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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,


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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.


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(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.


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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 problem-

solving. 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).


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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.


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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.


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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 non-

ionising 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.



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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 Health and Safety Executive (UK) 20 Years into the New Era: Some Reflections (1995) at 14.


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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

• therapists or nurses with four years training, 39 in post



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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 Health and Safety Executive (UK) 20 Years into the New Era: Some Reflections (1995) at 19.


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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.


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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 T G Ison Compensation Systems for Injury and Disease: The Policy Choices ( Butterworth’s 1994). 80 Kelman S, Regulating America, Regulating Sweden: A Comparative Study of Occupational Health and Safety Policy (MIT Press, 1981) at 181.


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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.


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• 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 "Labour Inspection in the European Community Health and Safety Legal Systems" at 200 and 284

85 Rest, JM and Ashford NA Occupational Safety and Health in British Columbia: An Administrative Inventory (1992) at xxv and xxvi.


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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.


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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.


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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.


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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.


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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.


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(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).


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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.


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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


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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:


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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.


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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 England J Industrial Relations and Law in Hong Kong (1989) Chapter B. 96 Rest KM and Ashford NA Occupational Safety and Health in British Columbia: An Administrative Inventory 1992 at p. 47 and 247.


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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.


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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


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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 under-

reporting 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).


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rate and accident severity rate in the ten most dangerous sectors.

Occupational accident frequency rate by Industry

Occupational accident severity rate

Industry Frequency Rate (%)

Fishing 30.36 Transport 18.48 Wood 14.57 Mining 12.00 Building & Construction 10.15 Iron & Steel 10.08 Food, Drink & Tobacco 9.59 Glass, Bricks & Tiles 9.49 Printing & Paper 7.81 Local Authorities 7.46

All Industries 7.21

Industry Severity Rate

Transport 4.14 Fishing 2.94 Mining 2.67 Wood 2.01 Building and Construction

1.93

Glass, Bricks & Tiles 1.48 Agriculture & Forestry 1.36 Diamonds, Asbestos, Bitumen 1.19 Iron & Steel 1.18 Local Authorities 1.14

All Industries 1.11

Note: Accident frequency rate = Number of injuries/Number of worker-hours exposure (top ten industries) Accident severity rate = Total time loss in days/Number of worker-hours exposure (top ten industries)101

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.


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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


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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 WORK-RELATED 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 work-

related 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.


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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.


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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.


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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

accidents

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)

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.


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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).


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Department Division Amount (millions)

Health Occupational Health R12111

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.


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Employer assessments paid to compensation funds

ORGANISATION PERIOD AMOUNT (R million)

Compensation Commissioner 1 March 1995 to 28 February 1996 1106,9

Rand Mutual Calendar 1996 386

Federated Employer’s Mutual Calendar 1995 47,3

ODMWA 1 March 1995 to 28 February 1996 108,9

TOTAL 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.


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Percentage Saving Total Premium Income

(R1 million) (1996) Reduction (R1 million)

1 R1 649,1 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 socio-

political grounds and economic grounds.

113 ILO: La Justica Social en al deSarrolo Rural Chileno at 46.


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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 “self-

regulation”.

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.


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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.


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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).


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under-resourcing of the mine health and safety inspectorate and the lack of a pro-

active 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.


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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



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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.


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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.


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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.


125 International Labour Office: Report on a Mission to South Africa (January 1996): Assessment of the Labour Inspection


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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.


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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


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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.


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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.


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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:

COUNTRY NUMBER OF

INSPECTORS (1) TOTAL EMPLOYEE POPULATION (2)

RATIO

1:2

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 Philippines 250 10 880 000 1/43 520

Sources: ILO: Yearbook of Labour Statistics,1994, and ILO data.

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

S A EQUIVALENT

INCREASE OVER CURRENT (138)

ESTIMATED ADDITIONAL COSTS

(R millions)

Brazil 643 505 R 68,93 Chile 1 313 1 175 R 160,37 Colombia 716 578 R 78,89 Honduras 498 360 R 49,14 Morocco 695 527 R 71,93 Philippines 185 47 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).


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COUNTRY

AMENDED S A EQUIVALENT

INCREASE OVER CURRENT (138)

ESTIMATED ADDITIONAL COSTS

(R million)

Brazil 900 762 R104,00 Chile 1 838 1 700 R232,03 Colombia 1 002 864 R117,93 Honduras 697 559 R 76,30 Morocco 973 835 R113,97 Philippines 259 121 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:

• legislative revision

• task allocation

• competency determination

• integration of functions

131 Guy Standing, John Sender and John Weeks Restructuring the Labour Market: The South African Challenge at 72.


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• 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.


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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.


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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.


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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.


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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 policy-making 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.


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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.


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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);


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• 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;


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• 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


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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.


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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.


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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


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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.


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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.


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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.


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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.


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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 self-

incriminating (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.


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“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 psycho- physical working condition

176 1.69% 18 2.03%

Fault of management 891 8.58% 91 10.29%

Fault of injured person 2 463 23.72% 439 49.60%

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 10 388 885

147 Commission of Inquiry into Safety and Health in the Mining Industry Report (1995); Vol. I at para 3.5. 148 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.


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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.


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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.


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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.


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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.


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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.


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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 Prosecutions recommended* Successful prosecutions

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)


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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.


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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 enforcement policy requires an appropriate combination of

administratively determined sanctions and penalties with effective 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.


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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


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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).


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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.


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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).


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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 feed-

back 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


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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.


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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.


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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.


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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


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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.


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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…..).


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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 work-

related 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.


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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.


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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.


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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.


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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.


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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.


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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.


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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.


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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.


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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.


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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 para-statal 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).


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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.


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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;

• contract funding to facilities offering occupational health or safety training.

197 D Rees “Occupational Health Policy Proposals” (unpublished).


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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).


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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.


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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.

Claims reported by source other than employer

Total claims

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.


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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 Rand Mutual Association: Annual Report (1996) at 7. 205 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.


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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 Complete Wiehahn Report Lex Patria (1982) Part Four 3.12.13 at 376. 207 Report of the Commission of Inquiry into the Vaal Reefs Mining Accident (1996) at 64.


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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


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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.


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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).


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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


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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.


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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.


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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


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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;


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• 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


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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 pre-

determined;

• 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


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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.


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(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


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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.


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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


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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


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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 occupational health, safety and compensation;

• coordinating, collecting, processing and distributing data and information on occupational health, safety and compensation;

• 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.


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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


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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;


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(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


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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


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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.


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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.


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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 revenue-

generating, 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.


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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;


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(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 -


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(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;


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(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.


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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

Documents

Benjamin and Greef - Commercial laPresented to Mr Tito Mboweni, Minister of Labour by: 29 MAY 1997. PAGE II . PAGE III . PAGE IV. PART A: ... The Committee of Inquiry consists of Mr