Compensation for Occupational Injuries and Diseases Amendment Bill: deliberations

Meeting report

Opening remarks

The Chairperson greeted Members and requested the Secretary to take a roll call. She noted that the Committee Members should have their documents relating to the submissions, the Bill and the Act in front of them. She reminded guests that they were not permitted to speak during a Committee meeting.

The Secretary noted the attendance of Members, as well as Adv Nathi Mjenxane, Legal Advisor from the Office of Constitutional and Legal Services in Parliament (OCLS) and Suraya Williams, State law Advisor. Mr Thembinkosi Mkalipi, Chief Director for Labour Relations and Mr Harry Maphologela, Legal Advisor, represented the Department of Employment and Labour (DEL). Guests introduced themselves.

The Chairperson explained that Adv Mjenxane would lead the proceedings as Legal Advisors had done in previous meetings on Bills.

 

Adv Mjenxane explained what it meant when words were printed in bold font and enclosed in square brackets (words were deleted) or underlined (new wording) in the Bill.

 

The Chairperson read the first page of the Bill: Compensation for Occupational Injuries and Diseases Amendment Bill:

 

BILL

To amend the Compensation for Occupational Injuries and Diseases Act, 1993, so as to amend, substitute, insert, delete and repeal certain definitions and sections; to provide for matters pertaining to the Board and its members; to provide for the Commissioner to perform certain functions that were previously performed by the Director-General; to further provide for matters pertaining to the rehabilitation, re-integration and return to work of occupationally injured and diseased employees; to regulate the use of health care services; to provide for the Commissioner to review pension claims or awards; to provide for administrative penalties; to regulate compliance and enforcement and to provide for matters connected therewith.

 

The Chairperson asked whether the Legal Advisor should go through each entire clause before the Members discussed the clause.

 

The Committee decided that it wished to deal with each entire clause as a single unit.

 

Reading of the Compensation for Occupational Injuries and Diseases Amendment Bill [B 21—2020] clause-by-clause

Clause 1

Adv Mjenxane read clause 1 (a) to (v), pages 2 to 5 of the Bill.

 

Ms C Mkhonto (EFF) supported the Amendments because it was long overdue that domestic workers were included in the Act. The EFF hoped that petrol attendants and others currently excluded would be included in future Amendments.

 

Mr Mkalipi, Chief Director, DEL, advised that all workers, except domestic workers, had been included in the previous version of the Act, and domestic workers were now being included. There was no reference to other workers as the Act already applied to them.

 

Mr M Nontsele (ANC) referred to the word “disease” in 1(a)

1. “by the substitution for the definition of ‘‘accident’’ of the following definition: ‘‘ ‘accident’ means an [accident] incident or occurrence arising out of and in the course of an employee’s employment and resulting in a personal injury, illness, disease or the death of the employee;”

What did “disease” mean? He suggested that “disease” should be replaced by “occupational disease”.

 

Mr Mkalipi stated that there was an error in clause 1(h)(b):

(h)‘‘(b) a director or member of a [body corporate] legal person who has entered into a contract of [service] employment or of apprentice- ship or learnership with the [body corporate] legal person, in so far as he or she acts within the scope of his or her employment in terms of such contract or a person in receipt of or entitled to receive benefits in terms of this Act, irrespective of whether he or she is still employed;”

He suggested that in line 50, the words “member of a” be deleted as the sentence did not make sense as it stood. It would then read: “a director or legal person…”

 

Mr Nontsele stated that he supported the amendment proposed by Mr Mkalipi to clause (1)(h)(b).

Adv Mjenxane said he had noted that “disease” should be occupational disease” and the change to clause 1(h)(b) as indicated by Mr Mkalipi. The amendments would appear in the A-List.

Clauses 2, 3, 4, 5

Adv Mjenxane read the clauses. There were no comments.

 

Clause 6

Adv Mjenxane read the clause.

Ms Mkhonto asked about the disqualifications. Did the DEL vet the individuals or did it rely on candidates to disclose their status?

Mr Mkalipi informed the Committee that it was two-fold. When a person was appointed, a vetting was done to check whether the person had a criminal record of any nature as well as issues of rehabilitation, etc.  He added that a member could have a clean record when appointed but if a member’s status changed in the middle of a term, the DEL depended on the member to be honest and to disclose it. It could also be discovered via the media or from someone else. When the Minister picked that up, he would act on the information.

The Chairperson confirmed that the DEL performed a vetting of all applicants for board positions.

Ms Mkhonto was satisfied.

Adv Mjenxane provided some information that could assist the Committee. He informed them that other boards required an annual disclosure from members that they continued to adhere to requirements for appointment.

 

Clause 7

Read – no comment.

 

Clause 8

Read.

Ms Mkhonto supported the amendment. She stated that most services were rendered in the city but maybe after the Amendments, the Committee could get the Compensation Fund to establish a wide, rural and township networks of physios, medical practitioners, etc. to be able to assist people in townships and rural areas.

Mr Nontsele proposed a definition of “life enhancement assistance” in section 16(1)(i) so that the phrase was properly interpreted and there was no conflict as to its interpretation. He suggested:

“Life enhancement assistance means the provision of psychosocial support subsequent to occupational injury or disease, which forms part of the clinical, vocational and social rehabilitation services that are already defined under rehabilitation in the principal Act.”

The Chairperson called for objections to the insertion.

Mr Mkalipi stated that the Department was happy to include the definition under clause 1.

 

Clause 9, 10, 11

The clauses were read by Adv Mjenxane. No comment. 

 

Clause 12

Read.

The Chairperson asked Mr Bagraim, who had experienced connectivity issues, if he still had a problem from earlier in the meeting.

Mr M Bagraim (DA) explained that he had wanted to say that, with the Amendment to include domestic workers, all workers were included in the Bill.

Mr Mkalipi had explained that to Ms Mkhonto.

Mr Bagraim referred to section 22(a)(3): ‘‘(3) Notwithstanding that an accident is attributable to the serious and wilful misconduct of the employee, compensation shall be payable in terms of this Act…”

He had a problem with that because it stated that even if an employee deliberately put his hand in a vice, he could claim from the Fund. It sounded weird.

Section 22(c)(5): “For the purposes of this Act the conveyance of an employee by or on behalf of the employer to or from his or her place of employment or any place for the purposes of his or her employment by means of any mode of transportation in furtherance of the business of the employer, shall be deemed to take place in the course of such employee’s employment.’’

 

That removed the right to claim from an employee who travelled to work via taxi. At the moment, such workers could do so. Transferring those workers to the Road Accident Fund (RAF) was of no use because the RAF was bankrupt. 90% of SA employees went home by public transport, especially in taxis. The Bill was saying that it was not the Fund’s problem. It was insidious because the people were in the taxi to go to work. The Bill meant that most workers were not covered. The DEL was moving liability away from the Fund to the RAF. That was duplicitous.

 

Ms Mkhonto said her understanding was that the clause referred to those workers who were transported by the employer, so it was in order. Did it mean that as soon as the worker got into the transport, the worker was at work? Maybe the Bill should differentiate between those transported by the employer and those who went by taxi. The clause was in order as the employee logged in to work the minute he entered his employer’s vehicle.

 

Mr S Mdabe (ANC) said there was a need to differentiate between an injury when travelling and an injury when on duty. Injuries on duty were covered by Compensation Fund and the Road Accident Fund took care of those travelling via taxi. The Amendments were in order.

 

Mr N Hinana (DA) asked if a person who was injured permanently at work or who acquired a disease at work and became medically boarded, was covered up until his death, and who looked after the family after death? Who took responsibility for the children going to school, etc?

 

Mr Mkalipi noted that three questions had been posed. Notwithstanding whether the accident was the fault of the employer or the employee, it was a no fault fund. The Fund had to be pay, regardless how an injury happened. If workers fought, e.g. in the canteen, they were not at work, but if they got into a fight as a result of working and one was injured, the Fund paid. The current law did not pay if it was the fault of the employee. The change was that even if it was the fault of the employee, the Fund paid. Currently, an employer might charge employees with misconduct, sometimes maliciously, to avoid a fine and so the DEL did not want an argument over who was at fault. As per compensation laws internationally, it would a no fault fund.

 

Secondly, the law, as it stood, only covered employees in the case of injury if the employee was being given transport free of charge. Currently workers going to work via taxi were not covered by the Fund but by the RAF, so there was no change there. If injured in the employer’s vehicle, be it a construction vehicle, a truck or even a bus, a worker was covered.

 

Mr Mkalipi explained that if a worker was injured at work, the Compensation Fund paid in the same way that an insurance policy would. If a worker was injured and incurred a disability and could not work, the Fund paid a disability amount, depending on the extent of the disability, either until the worker returned to work, or until the person died if that person could never return to work. If one died at work, the fund paid the dependents.

 

Clause 13

Read.

Mr Bagraim asked whether 13(b)(a) stated that if one worked on a temporary basis in SA, be the person a SA citizen or not, the person was not covered by the Compensation Fund, unless that person had an agreement with the Commissioner. That meant that no one who worked on a temporary basis in SA should have to pay the assessments, however, that was not the practice as far as he understood. Could DEL comment?

The Chairperson asked for more details.

Mr Bagraim explained that the overall salary bill of a business was used to assess the payment due to the Fund but if someone was working in SA for a year, and was usually employed overseas, it appeared to him that the person’s salary should be deducted from the total salary bill as that person could not be covered. Was that what it meant? The legislation was a bit opaque.

Mr Mkalipi said that the Fund had to be seen as an insurance. If one insured five people in a house but during the holidays a cousin arrived to stay for a while and was injured, the insurance would not cover him as the household was only insured for five persons. One had to inform the insurance if the situation changed so that the risk could be re-assessed and adjusted. The same applied with the Compensation Fund. If a business employed an employee from outside of SA on a temporary basis, it was the responsibility of the employer to inform the Commissioner of the Fund and to obtain authorisation for that person to be covered. So, it did not mean that the person was automatically excluded, but to be included, authorisation was required and the employer had to pay the Fund. That was intended to protect the Fund.

Mr Bagraim said that he had asked the question the other way round, but, from the explanation, he assumed that if the employer did not want his employees from outside of SA to be covered by the Fund, then he did not include their wages in the total wage bill and did not require authorisation. Was that correct?

The Chairperson stated that Mr Bagraim had answered his own question. Mr Mkalipi had explained the situation. It was not ambiguous. It was clear that the employer had to inform the Commissioner of his employee and if he did not do so, he had to face the consequences.

 

Clause 14, 15, 16, 17, 18

Read – no comment.

 

Clause 19

Read.

Mr Bagraim referred to clause 19(b)(8) which required an employer to report an accident to the Commissioner within seven days of an accident. He suggested that the clause should allow an employee to report directly to the Commissioner if his employer did not report the accident. A similar situation pertained in respect of the Unemployed Insurance Fund (UIF) and in that legislation, when the employers did not claim from the Covid-19 Temporary Employee / Employer Relief Scheme (TERS), employees were left high and dry. The employee should be able to report the employer.

 

The Chairperson instructed Mr Bagraim to propose an amendment.

 

Mr Bagraim proposed: That the employee may directly report the accident and the injury to the Commission. If the employee has not heard within 7 days from the Commission.

 

Dr M Cardo (DA) believed that a penalty of 10% was pretty unreasonable and unfair. How had the Department arrived at that particular proportion? Was the calculation based on the earnings of all the employees or only the earnings of the employee who had had the accident? He suggested that something be built in that gave the Commissioner some discretion in determining the penalty. But it was important to re-look at the figure of 10%.

 

The Chairperson commented that she would have thought that Members would have raised something like the issue of 10% when the Department had presented the Bill to the Committee, but she assumed there was no hard and fast rule and Members could still suggest amendments. She asked for further comments from Members or responses to the two proposals.

 

Ms H Denner (FF+) requested that the suggestions by Mr Bagraim and Dr Cardo be put in writing in the chat box so that Members could see the proposals in writing.

 

The Chairperson agreed but said that they would have to come back to the clause later.

 

Ms Mkhonto stated that she was going to deal with her point under clause 20, but the issue of the involvement of the employee in totality would depend on how the Bill or the Act was communicated to the public. The Bill or Act had to be communicated in all languages. For Mr Bagraim’s proposal to be effective, it had to be communicated well so that all employees were aware of their rights and what was expected of them.

 

The Chairperson asked if Ms Mkhonto was supporting the proposal by Mr Bagraim.

 

Ms Mkhonto agreed that she was supporting his proposal but only if the information were communicated to the public in all languages so that they knew their rights. If it were only communicated in English, only a few of the workers would be aware of their rights and responsibilities.

 

The Chairperson said that she would ask Mr Mkalipi to respond later.

 

Mr Mkalipi requested to offer an explanation which might assist with the chat box proposals. Firstly, he explained that clause 19 described the responsibilities of the employer. However the following clause, clause 20 section 40 dealt with an inquiry by the Director General/Commissioner who “having learned in some other way that an employee has met with an accident, make such inquiry as he or she may deem necessary”. The way in which a DG/Commissioner learnt about an accident was when the employee who was injured, or any other employee, informed him of the accident. He might even have learnt of the accident via the media.

 

He explained that the law worked in such a way that one clause dealt with the employer and his obligations and then the next clause dealt with the obligations of the Commissioner if he heard about an injury or an accident.

 

Mr Mkalipi explained that as the law stood, an employee could report an accident and, he pointed out, there were no timeframes within which an employee had to report an accident, or to report an employer who had not reported the accident. The employer had only seven days to report but the employee could report whenever he felt that he was not getting paid and should have been paid. He could even report a year later.

 

Regarding the 10% penalty, Mr Mkalipi stated that the amount had been agreed upon in NEDLAC and could not be changed. He explained that the penalty was 10% of the total salary bill as reported to the Fund.  Firstly, the Fund did not know the wages of an individual worker and, secondly, 10% of an individual worker’s salary was not sufficient to be an incentive to make the workplace safe. The critical thing was that the employer reported an incident and that the workplace was a safe space.

He asked his colleague if he had something to add.

Mr Harry Maphologela , Legal Advisor at DEL, stated that section 40 in the Act flowed from section 39. He  understood that it was very difficult to deal with Amendments to a Bill as not all sections were amended which left gaps in one’s comprehension of the Bill. If one went to the principal Act, section 38, which was not being amended, it read as follows:

 

38.        Notice of accident by employee to employer

(1) Written or verbal notice of an accident shall, as soon as possible after such accident happened, be given by or on behalf of the employee concerned to the employer, and notice of the accident may also be given as soon as possible to the commissioner in the prescribed manner.

He said that was the section that placed an obligation on the employee to report the accident and he could also report directly to the commissioner.

The Chairperson noted that reference to the principal Act cleared up the matter.

 

Clause 20

Read – no comment.

Clause 21

Read.

Ms Mkhonto stated that she had been referring to clause 21 when Mr Bagraim had spoken about workers taking responsibility for reporting accidents. Workers were unaware of the expectations of them because the Act was written in one language. She suggested that it should be written in all languages.

The Chairperson hoped that the Department was listening to the comment.

 

Clause 22

Read – no comment.

 

Clause 23

Read.

Ms Mkhonto noted that a great deal had been written about clause 23 in the submissions and the point made by most submissions had addressed the third party issue. Had those submissions been considered in the formulation of the clause?

The Chairperson informed Ms Mkhonto that the public had made submissions on the Bill as it currently stood. No amendments could be made unless approved by the Committee. The Bill was the same as had been first issued the previous year.

Mr Mkalipi explained that Ms Mkhonto was a little confused as the section that she was referring to was not section 43 but clause 43. At the moment the Committee was on clause 23, section 43. That was not the controversial one.

 

Clauses 24, 25, 26, 27, 28, 29, 30, 31, 32

Read – no comment.

 

Clause 33

Read.

An official of DEL referred to 33 (a)(d): ‘‘(d) of an engineer appointed to be in general charge of the machinery, or of a person appointed to assist such engineer in terms of any regulation made under the [Minerals Act, 1991 (Act No. 50 of 1991)] Mineral and Petroleum Resources Development Act, 2002

(Act No. 28 of 2002);

The official explained that the reference to Mineral and Petroleum Resources Development Act, 2002

(Act No. 28 of 2002) was no longer relevant as that Act had been amended so many times that all regulations to an engineer in such a context had been long since lost. He recommended that the clause end after the word “engineer.”

Ms Denner stated that she had no problem with the deletion of all words after Engineer.

Mr Nontsele asked whether it did not leave the intentions open-ended. What safeguards could be put in place? The principle was fine but he just needed that assurance.

Ms Mkhonto stated that if it did not change the meaning of the statement, she agreed with the removal of the words.

Mr Mkalipi explained that all engineers had to be qualified and registered. An engineer could appoint someone to assist him or her and the clause was about that person.  Because of the changes in the Minerals Act, there were no longer any references to assistants to engineers so the reference in the Mineral and Petroleum Resources Development Act  was no longer relevant.

The Committee agreed to omit all words after “engineer”.

Clauses 34, 35, 36, 37, 38, 39, 40

Adv Mjenxane read the clauses with no comment from Members.

 

Clause 41

Read.

 

Ms Mkhonto supported the Amendment but she had to make sure that people with disabilities resulting from occupational diseases or injuries were not treated as lepers. The first option was re-integration. Where possible, employees had to be rehabilitated, cured and re-integrated into the place of employment. Some employers did not want to allow such people back to the place of employment.

 

Mr Nontsele was concerned about permissible language and suggested changing “may” to “must”. Where the clause talked about “employment”, he suggested the use of the word “work” as it was more definitely about the workplace and more commonly used in that context in the Act.

 

The Chairperson noted that Ms Mkhonto was commenting on the practice but Mr Nontsele had proposed two changes.

 

Mr Mdabe agreed with the language corrections suggested by Mr Nontsele.

 

Mr Mkalipi agreed to make the changes.

 

Clause 42

Read - no comment.

 

Clause 43

Read.

 

Dr Cardo proposed that clause 43(4) be removed for all the very good reasons heard during the public hearings. Essentially, it was irrational; it would have a devastating effect on medical service providers; it would have a negative effect on workers; it would negatively affect the medical system overall and it would deprive medical administrators of their assets. It would take away the opportunity for medical services to trade in IOD and would leave vulnerable workers without access to healthcare. It would render pre-funding of claims invalid and the Members had heard some excellent presentations by a wide variety of stakeholders on just why that particular clause, if included, would have such a potentially, devastating impact. He believed that the Committee should take heed and be mindful of the potential disastrous consequences of the inclusion of the clause and he would like to suggest that the clause be removed entirely.

 

Ms Denner reminded the Committee that it had received many submissions from medical stakeholders stating that the clause as it stood dictated the commercial rights of medical stakeholders which was not justified and which would limit the rights of injured workers to quality medical care because the effect of clause 43(4) would be detrimental to medical practices and would affect their cashflow. They would effectively have to close because they would not be able to see their compensation; they would not be able to see their Compensation Fund invoices; and would not be able to borrow against that debt, which would have a detrimental effect on their cashflow. Injured workers would not receive the medical attention that they required because no one could afford to work for free and that would lead to job losses and a slew of other detrimental effects, so she also proposed that the Committee scrap subsection 4 in its entirety.

 

Ms Mkhonto said the Bill had been an eye opener to the Compensation Fund for her, particularly the much contested clause 43 that sought to ban the practice of pre-funding. Much had been said by the Department, the Commissioner and the public submissions, both written and oral, on clause 43(4). In the last meeting, the Department and Minister had said they had heard the submissions. Accordingly they had agreed not to proceed with Clause 43(4) of the Bill as it stood, but proposed an amendment that seemed to bridge the gap between Department and pre-funders.

 

The issue facing the Committee was how the Compensation Fund would regulate third parties given their shortcomings as presented by the Auditor-General of SA. It was therefore important to ensure that the new proposed regulation regime for Third Parties benefitted the employee directly and that the Compensation Fund did not take advantage of such regime to indirectly ban or frustrate Third Parties to hide their incompetence. It was crucial that the proposed regulatory regime enabled the worker injured on duty to receive timely and appropriate medical treatment at either public or private facilities without the current squabbling between Third Parties and the Compensation Fund. She proposed that the Committee accept the Department’s compromised proposal to ensure that workers injured on duty remained the main beneficiary of third party services. She moved that the following key elements be captured in clause  43(4) of the Bill which sought to add section 73(4) which enabled the Minister to issue regulations. The new section 73(4) of the Act should contain the following:

 

a. A clear definition of Third Parties, capturing all third parties who work with the Compensation Fund assisting either employee, employer, medical service provider, pensioner, etc.

b. All Third Parties who wish to continue providing services to stakeholders of the Compensation Fund will be required to register with Compensation Fund.

c. Existing Third Parties will be given a reasonable grace period to meet new registration requirements.

d. Registered Third Parties would need to demonstrate capacity (by way of experience, qualification, financial soundness, systems and processes, BEE, compliance, etc) to provide quality and ethical service.

e. Registered Third Parties must display their Registration Certificate prominently.

f. If registration denied, then written reasons for refusal to be provided to the Applicant.

g. Such regulations to meet full public participation including this Committee before the Minister issues them in a Gazette.

h. To alleviate additional administration burden to the Compensation Fund, the registration certificate should be renewed, say every 3-5 years.

 

Ms Mkhonto said that was to ensure that there was adequate guidance in the main Act and that the process to make the regulations was transparent, consultative and met the objective of the Act – to improve the experience of the injured worker who was the main stakeholder of the Compensation Fund. Furthermore, she moved that the Bill should have a transition provision with clear timelines to ensure that the challenges raised with regard to payment of claims by the Commission were addressed as soon as possible, but also, it would give those who made public submissions, more certainty in terms of what was to be expected. In that way, the Committee would not find itself  in the future legislation that had created a vacuum. The Committee staff and the parliamentary Legal Service should assist the Committee to capture those amendments in a manner that met drafting standards.

 

Mr Nontsele appreciated the inputs. He noted that the arguments relating to the third parties and related challenges had already been raised in the report by Auditor-General.  The ANC wanted a better situation in respect of how the fund operates. Arguments for deletion was not helpful. It was necessary to allow parties to engage further. He suggested that cluse 43(4) be amended as follows:

“The Minister may, through the Gazette, prescribe registration and conditions for third parties to enable cession and relinquishment of medical claims.”

 

The fact that the regulations would have to be gazetted meant that the public, and the Committee could engage with the proposed regulations. He did not want to delay the process but his proposal would provide an opportunity for Ms Mkhonto and her party, or any other party, to engage with the issues, rather than leaving them open-ended, which Ms Mkhonto’s proposals did.

 

Mr Nontsele said that his proposal would not frustrate the process of passing the Bill. Instead, it would empower the Commissioner to deal with the process through the gazette. All of the issues just raised as well as the points of the Auditor-General could be discussed fully in that process.

 

In his view, the notion of deleting was not acceptable and the notion of dealing with challenges was fully supported and hence his proposed formulation that the Commission address the matter in a much more comprehensive manner through the gazette. It would not delay the process of the Bill.

 

Mr Bagraim was completely confused why the matter of third parties had been raised in the first place. Why were third parties being banned? The only answer that he had been able to get from the DEL was some oblique explanation that it was as a result of the Protection of Personal Information Act (POPI Act) that could not provide medical information to a third party, which clearly was wrong and perhaps the Department should obtain some legal advice. At any stage a lawyer could step in and obtain all the information and then sue the Department because it had not paid the compensation fund. Everyone knew that the fund had become so dysfunctional that it had become necessary to have third parties intervene.

 

He added that the complaint was that individuals, or the Fund, would have less as the third parties would have to be paid. However, the Committee had been told that the only the cost was borne by the medical practitioner and third party. There would be no cost at all to any individual or to the Fund. The only reason that he could see for that clause was that the Department was incompetent and kept losing court cases, and they did not want that. An individual worker could not sue for his money as such a person would not have the wherewithal to take the Department to court, but a third party would. What was the evil? Medical practitioners would not go to a third party and pay a percentage if they were getting their money from the Department.

 

The Chairperson said that Mr Bagraim was just putting the same view that he always put.

 

Ms Mkhonto asked if her proposal could be considered for further deliberation. She was not disagreeing with Mr Nontsele; there were just a few points where they differed and if it could be talked through, they could meet each other.

 

The Chairperson said that both positions and submissions should be considered: no one should say that he or she was not listened to. When the DEL had briefed the Committee on its response to the submission, DEL had raised some challenges so she did not want to say delete the clause.  The Commissioner had explained that the Commission had changed IT systems. He and the DG had said that the previous IT system had been a free for all. There had been no checks and balances. There had been no control. Anybody could submit claims. With the new system, Compeasy, verification was being done and now people could only claim according to what had been gazetted. A reason for delays in the system was that employees had to ask for further information. If the Committee did not take that into consideration, it was not being fair to everyone.  People said that Compeasy was a useless system but no one had challenged the Commissioner when he had explained that they were going through the system with a fine toothcomb and paying any outstanding amounts. Not even the third parties had challenged him.

                                                                                                                                                                           

The Chairperson proposed that the Committee allow the proposals by Ms Mkhonto and Mr Nontsele to be put in writing and then after lunch, the Committee would be able to look at the proposals in writing. She asked that the two proposals be emailed to the host of the virtual meeting so that they could be shown on the screen and circulated to all Members.

It was agreed to break for lunch.

After lunch, the Chairperson proposed that the Committee complete the reading of the Bill and then come back to clause 43(4). If it were to be re-worked and included, she would wish to hear the position of the Department. On 30 June 2021, the Committee was to be briefed on Convention 190 on Sexual Harassment. The Convention had  to be corrected but the first 30 minutes of that meeting could be used for deliberations on the proposals in respect of clause 43. The A-list could be adopted after that.

 

Mr Nontsele agreed to the proposed course of action.

 

Ms Denner asked if other Members could also submit contributions to an amendments to clause 43(4).

 

The Chairperson agreed to Ms Denner’s proposal. Such a proposal would be circulated to Members. She stated that clause 43 had been parked the Committee should move on with clause 44.

 

Reading of the Compensation For Occupational Injuries And Diseases Amendment Bill [B 21—2020] clause-by-clause by the parliamentary Legal Advisor, cont.

 

Clause 44, 45

Read – no comment.

 

Clause 46

Read.

 

Mr Mkalipi noted that there was a lack of alignment of terminology used. He requested permission to clean it up.

 

The Chairperson agreed.

 

Clause 47, 48, 49, 50, 51, 52, 53

Read - no comment.

 

Clause 54

Read.

 

Mr Bagraim commented that the amendment to section 87 was extremely onerous and he was sure, necessary. The trouble was that he came across, and he was sure the Department could tell the Committee  the same, thousands and thousands of small businesses that just were not registered at all, had never been registered and probably never would be registered. He asked Members to imagine if the Fund ordered 1 000 businesses to pay penalties of 10%, etc. he did not know how it could be handled. He suggested that about 30% of small businesses did not pay anything at all.

 

The Chairperson asked Mr Bagraim why they did not register but he had no idea.

 

Mr Nontsele said that clause 54 was a catch-all clause that would apply whether firms were registered or not registered. The clause dealt with a failure to report an incident and pay, big or small. The point was not whether the employer was big or small but to ensure a proper health and safety environment in the workplace. That was what the Bill was trying to ensure. The point raised by Mr Bagraim might trouble him but that was not the gist of that clause. He  was pleased that Mr Bagraim was not objecting but just raising a reservation.

 

Clause 55

Read - no comment.

 

Clause 56

Read.

 

Mr Bagraim said that the clause was making the contractor liable for anything that the sub-contractor did. In reality, it meant that the contractor had to get a certificate of compliance from every sub-contractor, e.g. if someone received a contract to clean a garden and he sub-contracted another to do the work, he had to ask that sub-contractor for a certificate of compliance and for a certificate from the Department. He thought it was going to make it impossible to do business in reality. He did not know how it was going to work in practice because he did not think that the Department would be issuing such certificates each time so contractors would not look to sub-contractors and that would just hamper business. It made things very complicated.

 

Mr Mkalipi said that the Act had been promulgated in 1993 and that provision had been in the Act since 1993. The only changes being made to the Act was in the wording. Parties had been contracting since 1993 so where he did not see where Mr Bagraim was  coming from. All the mining houses sub-contracted and not one mining house had complained about the clause.

 

Clause 57, 58,

Read - no comment.

 

Clause 59

Adv Mjenxane read Section 93A

 

Ms Mkhonto asked if the inspectors referred to in section 93A were the same ones as referred to in the COIDA, the Employment Equity Bill, the Compensation Fund, etc. Did each unit have its own inspectors?  It seemed that the DEL would run short of inspectors. She asked for an indication of how many inspectors would be employed and trained and how many of them would get involved in corrupt activities? How was corruption to be addressed?

 

The Chairperson asked DEL to clarify the situation.

 

Mr Mkalipi said that inspectors were appointed on the basis of their expertise. The inspectors would be accredited by the Commissioner. There were specialists and generalists in the DEL. Just as in any other organisation, it took two to tango and if an inspector was corrupt, the case had to be reported, with evidence, and the DEL would deal with such an inspector.

 

Clause 59

Adv Mjenxane read Section 93B.

 

Mr Bagraim assumed that when an inspector arrived, he/she would have all the information to hand before he/she arrived on site.

 

Ms Mkhonto hoped that there would soon be sufficient trained inspectors because what Mr Mkalipi said was not what was going on out there. She would accept what he had said until she had evidence of the challenges.

 

The Chairperson said that a workshop had been held in 2019, at which time Ms Mkhonto was not a Member of the Committee and she asked that the secretariat supply Ms Mkhonto with the documentation that Members had received at the workshop. If Ms Mkhonto had evidence of a case where a position where an inspector was corrupt, she had to inform the ministry and the Department through the DG.

 

The Chairperson knew that inspectors were assigned to different areas of expertise. She had informed the Department of cases in her constituency and the Department had sent out the inspectors. If one of the Members thought that an inappropriate inspector had been sent somewhere, the Members should say so to the Department. She knew that the inspectors performed as Mr Mkalipi said.

 

Mr Mkalipi asked  for permission for the Department make changes to clauses where the title “DG” was used instead of “Commissioner.”                                                                                                                                                                                                                                                                                                                                                            

The Chairperson agreed to the technical changes where needed.

 

Adv Mjenxane read Section 93C

 

The Chairperson asked who the inspectors spoke to if there was no trade union representative at a workplace.

 

Mr Mkalipi said that it was very difficult if there wasn’t a trade union representative. If one approached the employer, how did one know that he or she would direct the Fund to the correct person? That was the difficulty: who did one speak to?

 

The Chairperson commented that such a situation allowed employers to get away with murder.

 

Mr Mkalipi explained that the problem was that Union representatives/shop stewards could have time off to talk about it. The inspectors could speak to workers as well, and were encouraged to do so, but that could not be put in the law. Inspectors did not have the right to interrupt workers in the way that they could access union representatives. The inspectors could only speak to them in breaks and at lunch time. The manual for inspectors suggested how they could speak to workers.

 

The Chairperson stated that she was happy if the manual addressed her concerns.

 

Adv Mjenxane read Section 93D

 

Mr Nontsele said there was a need to re-enforce and incentivise the conditions within which people were expected to make disclosure, so that it did not unintentionally force people to conceal information that was vital to an investigation. In section 91 in the Basic Conditions of Employment Act, section 91, there was a provision to protect and encourage those making a disclosure. The Bill needed a provision that guaranteed their safety so that they should know upfront that their evidence should not be used against them. He had a proposal which included the fact that a person had to be informed of his or her rights if making a disclosure so they should be able to choose to remain silent.                                                                                                                                                                                                                                                                                                                                                                         

He proposed an addition to the clause: that in no answer given by any person to an inspector conducting an investigation or questioning  anyone in terms of that Act, may be used in criminal proceedings, except in a charge of perjury or making a false statement.

 

That would ensure a person’s rights against self-incrimination or a person’s right to remain silent.

 

The Chairperson called for a seconder.

 

Mr Mdabe seconded the proposal made by Mr Nontsele.

 

The Chairperson asked if there were any objections and whether the Department was comfortable with the proposal.

 

Mr Mkalipi supported the proposal as it was exactly what was in the Basic Conditions of Employment Act.

 

Adv Mjenxane read Section 93E

 

Ms Mkhonto asked whether there was a clause dealing with premises that were not easily acceptable. Where did it say that an inspector could enter any premises, even if the premises said “right of admission reserved”.

 

Mr Mkalipi said 93C dealt with access to a place of work. An inspector could enter any workplace, although he had to follow the security protocol, etc. If the employer refused to allow him in, he could go to court to get permission to enter.

 

The Chairperson referred Ms Mkhonto to section 93C(a) and (b) for clarity on the matter.

 

Mr Maphologela said that it was possible to prefix the section 93C with the words, “except in a case of  an emergency” so that they do not need to get permission to enter if there is an emergency.

 

Members supported the proposal.

 

Sections 93F, 93G

Adv Mjenxane read the subsections – no comments from Members.

 

Clause 60, 61, 62, 63

Read – no comment.

 

Adv Mjenxane informed the Chairperson that clause 63 was the last clause in the Amendment Bill.

 

The Chairperson stated that there was a clause (43(4)) where there were different views on the amendment. Some Members wanted the clause deleted; others wanted it changed in different ways. She stated that everyone, including DEL and the Legal Advisor, should send their proposals to the Committee Secretary.

 

Ms Denner asked if she could also send an amendment.

 

The Chairperson agreed as long as everyone was able to consider it. She informed Members that the Committee could not meet the following day as the A-list could not be addressed until clause 43 had been finalised, so she would move the following day’s meeting to the Wednesday of the following week. The Committee staff and the Department had to circulate the formulations for amendments early the following week.

 

Ms Mkhonto supported the proposal of rescheduling the meeting but requested receipt of the proposals by the following day, Friday.

 

Mr Mdabe posted his proposal in the virtual platform chat box.

 

Ms Mkhonto suggested that a WhatsApp group be created for Members to deal with the clause.

 

Adv Mjenxane requested that the Committee staff forward a copy of the proposals to him.

 

The Chairperson agreed to Adv Mjenxane’s request.

 

Closing remarks

The Chairperson thanked the Members for being patient. Law formulation was challenging. Sometimes Members bordered on considering operational issues, but that meant that the Members were being vigilant.

The meeting would be either Tuesday or Wednesday the following week, depending on what the Programming Committee approved.

The meeting was adjourned