While some of the proposed amend-ments to the Compensation for Occupational Injuries and Diseases Act (Coida), published by the Department of Labour last year, are welcomed in principle, they will have far-reaching obligations for employers, law firm Edward Nathan Sonnen-bergs director Willem le Roux tells Mining Weekly.
The amendments propose that a provision for the rehabilitation and reintegration of dis- abled persons in the workplace and arrange-ment for their early return to work be included in legislation, he says.
“However, no distinction is made between an employer who employs a few employees and an employer who employs several employees and it is impracticable to impose all the suggested obligations on an employer that employs only two or three people,” Le Roux says.
The proposed amendments make provision for an obligation on the part of the employer not to dismiss a disabled employee within a 12-month period on the basis of incapacity, which is unrealistic in some cases, he states.
“To expect that an employer who employs only a few people must not employ another person in place of a disabled employee, but rather attempt to reintegrate the injured employee into the workplace after he or she has become disable, creates great difficulty.”
The proposed amendments impose an oblig-ation on the employer to appoint a disability manager and other personnel, such as a case manager, to deal with cases of disabled persons.
The employer is also obligated to establish a policy on rehabilitation and reintegration of a diseased or injured employee into the workplace. Failure to do so will result in an administrative fine, Le Roux adds.
“According to the proposed amendments, medical surveillance must be conducted by the employer, which in itself is beneficial; however, the provision is too vague,” Le Roux says, adding that the department should rather consider similar provisions which are already contained and properly described in the Mine Health and Safety Act.
Further, the proposed amendments also allow for the appointment of inspectors, the functions of such persons, the points of entry into the workplace and the powers to question employers and conduct inspections.
These inspectors can then issue compliance orders, which should also stipulate the maxi-mum fine that can be imposed on the employer for failure to comply with such an order.
“However, the legislation is lacking in this respect because the necessary qualifications of such inspectors are not stated.
“These are far-reaching provisions and I recommend that, at the most, such an inspector only make a recommendation with regard to the imposition of a fine and compliance with certain provisions of the relevant legislation. A senior inspector or even the CEO should decide whether the recommendation should be implemented,” says Le Roux.
The proposed amendments also state that any person who fails to comply with any of the employer obligations, which are now contained in the Act, will be liable for a penalty of 10% of the employer’s yearly return of earnings.
“This is excessive and the 10% penalty that the department would like to impose here is absolutely absurd, for various reasons,” Le Roux says.
The 10% penalty is derived from the Competi- tion Act; however, in this Act, the rationale is completely different. The Competition Act is aimed at penalising culprits for making a profit as a result of uncompetitive conduct, Le Roux explains.
“This is not the case with non-compliance with the provisions of Coida.”
The proposed 10% penalty is absurd because it is burdensome on employers and onerous to the extent that it is a disincentive for any potential investor to invest in South Africa.
“This is the last thing one should do in our economy, where the economic growth rate is very low,” Le Roux concludes.