The compensation conundrum

Compensation can be utilised to incentivise for the prevention of occupational diseases and injuries

The year 2018 has been a profoundly tragic one for occupational health and safety (OHS) in South Africa. Sadly, many workers have lost their lives, many more have been disabled and large numbers have contracted occupational diseases, including occupational cancers and mental-health problems. All of these problems are preventable and it is incumbent on us to value each and every human life in the spirit prescribed in our constitution.

Good OHS practices afford enormous opportunities for reduced illness, absenteeism and for more sustainable and happier workplaces. South African legislation provides for a risk-based approach to OHS, which informs how best to assess and mitigate the risks and what surveillance has to be done. Once a worker needs compensation, it is clear that the systems to protect OHS have failed.

The following quote from the Ernst and Young report on the future of OHS underscores the great need for a mindset change: “In many workplaces, safety is managed as a separate process, largely disconnected from the business imperatives of production and profit. However, health and safety is not a process in its own right, but an outcome of business decisions, strategy, culture and performance.”

Internationally, Australia, Canada and the United States of America organise their good workmen’s compensation schemes at state level. Most European countries have schemes that are integrated with their social security systems.

This works extremely well in countries such as Germany, where good social security systems combine with early preventive workplace interventions and very good rehabilitation systems. New Zealand and the Scandinavian countries have excellent schemes that provide national coverage for all injuries.

In South Africa, there are countless questions that surround our Compensation for Occupational Injuries and Diseases Act (COIDA) and the possibility of greater prevention in OHS…

Is the COIDA primarily an employers’ insurance system? Are the premiums paid by employers commensurate to the workplace risk to workers’ OHS? Is there real correlation between risk and insurance premiums paid?

Are the many compliant employers supporting non-compliant employers? Are benefits paid to sick workers proportionate to the risk to their OHS? What role can sick workers and their trade unions play in the system?

Can compensation benefits be risk based and proportionate to the harm done to workers’ health? Can adequate benefits actually be received by sick workers within a fair turnaround time? Will an incentive for prevention be to make it expensive for those workplaces where workers get sick? What opportunities are there for rehabilitation and re-skilling?

The more modern perspective concerning “fault” is that it should not have a role in fair compensation systems. Can COIDA be preventive with the ongoing inclusion of Section 35?

Can we collectively explore the possibility of its removal as a means towards greater prevention and fairer compensation? Can we relook the “historic compromise” to help ensure we live up to the wonder of our constitution?

The International Commission for Occupational Health – an organisation that is more than 100-years old – has an Ethical Code for Occupational Health Professionals, which states: “The aim of occupational health practice is to protect and promote workers’ health and well-being at work throughout their working lives.”

Surely, we can make this possible in Africa.

Compensation for prevention: can we follow a more humanitarian approach?

Dare we believe that collectively we can stand on the threshold of a dream of better OHS and more sustainable workplaces and livelihoods?

It can be about our people and the innate human quest for a better life for all in the context of an enabling African reality or our common humanity, or about putting systems in place to improve working life and remuneration for all. It can be about the spirit of ubuntu that is prevalent all over Africa and that brings hope to so many.

Some suggestions towards compensation for prevention in the African context

A stronger articulation of prevention in OHS should be an ethical norm; while ethics and prevention should be enabling and supportive of good public health practice. There should be a priority on social dialogue; where employers, workers, OHS laws and regulations enacted by governments find common ground.

The inspectorate and OHS law enforcement needs to be further strengthened on an ongoing basis. At the same time, we need to strengthen inclusive local, national, regional and international collaboration on good data collection, research and international best practice.

We need to support the sustainable development goals and, in particular, decent work, health, gender equality and sustainable economies and environments. The spirit of ubuntu in the world of work can help anchor us and catapult us towards zero risk and leaving no one behind at all workplaces.

Judge Albie Sachs reminded us about the law and our African heritage: “The secure and progressive development of our legal system demands that it draws the best from all the streams of justice in our country… Above all, however, it means giving long-overdue recognition to African law and legal thinking as a source of legal ideas, values and practice…

“All courts must promote the values of an open and democratic society based on freedom and equality. One of the values of an open and democratic society is precisely that the values of all sections of society must be taken into account and given due weight when matters of public import are being decided.”