Compensation Bill proposes swifter penalties for employers

Special inspectorate to be formed with wide powers

By Justin Brown

30 September 2020

Wide-ranging amendments to legislation on compensation for workers who are injured or get sick at work are before Parliament. Photo: Ashraf Hendricks

• Proposed amendments to workers’ compensation legislation make provision for swifter penalties for employers, though they will no longer face criminal sanctions.
• The Compensation for Occupational Injuries and Diseases Amendment Bill also proposes a special inspectorate.
• The Bill introduces provisions for rehabilitation and measures to prevent employers dismissing workers due to occupational injuries or illnesses.
• It is likely to result in higher costs for employers.

Employers who break the law on workers’ compensation will face swifter penalties instead of being charged in court, if proposed changes to the Compensation for Occupational Injuries and Diseases Amendment Act (COIDA) are passed by Parliament.

The Compensation for Occupational Injuries and Diseases Amendment Bill published last month proposes replacing criminal sanctions imposed on employers who break the law with penalties. Criminal sanctions in the Act had the effect of clogging the courts, Harry Maphologela, a Department of Employment and Labour senior legal officer, told GroundUp. Instead of the courts imposing fines or sending offenders to prison, the Bill proposes that the Compensation Commissioner or the Department of Employment and Labour Director-General will impose penalties for the contravention of the Act. Anyone who objects against the penalties can appeal to the Compensation Fund, Maphologela said, and if this fails they can go to court.

The Act provides workers with compensation for injuries or diseases at work and makes provision for the payment of compensation to the families of workers who die because of these injuries or illnesses.

Employers who fail to comply with the Act are more likely to get nailed if the Bill is passed, as it proposes a specialised inspectorate to enforce the fund’s laws and regulations. At present inspectors from the Department of Employment and Labour enforce laws and regulations related to the Compensation Fund.

“We have introduced a whole new chapter in the Bill relating to inspectors for enforcement and compliance,” said Maphologela, who was part of the team drafting the Bill.

The Bill provides for inspectors to monitor and enforce compliance with the Act, conduct inspections and investigate complaints. Inspectors will have the power to enter any home or workplace, with the consent of the owner or occupier. But the Labour Court may issue an authorisation for such entry following an application from an inspector to monitor or enforce compliance with the Act.

An inspector must notify the employer and the trade union representative present at a workplace and the reason for the inspection, the Bill proposes. An inspector can require a person to disclose information, provide documents, make copies of records and remove any substance or machinery from a workplace, and can be accompanied by police officers.

Maphologela wasn’t able to say how many people the government recommended to make up the new inspectorate.

The Bill, which also includes domestic workers for the first time, had been introduced to correct anomalies which arose because the Act was signed into law in 1993, before the Constitution came into being in 1997, he said. The Act also needed to be aligned with the 1999 Public Finance Management Act.

Other proposals:

• The Bill provides for compensation without exceptions, including for injuries related to an employee’s “wilful misconduct”.
• The Bill gives much greater powers to the Compensation Commissioner, a proposal intended to make the Compensation Fund more efficient, said Maphologela.
• The Bill suggests that the Minister of Employment and Labour should appoint the 16-person Compensation Board and the National Economic Development and Labour Council (NEDLAC) would nominate 15 people, making the Compensation Fund board almost an extension of NEDLAC. Under the present Act, Board members are nominated by other parties, including the Minister of Health and the South African Medical and Dental Council.
• The Bill proposes that employees involved in an accident on a public road must claim from the Road Accident Fund (RAF) instead of the Compensation Fund. “What happens now is that the Compensation Fund pays compensation, which includes medical expenses, after which we make the paperwork available to the RAF indicating what the Compensation Fund paid to the accident victim. We wanted to clarify this situation as it is a hassle to get money back from the RAF and a government department cannot sue another part of the state,” Maphologela said.
• The Bill also proposes the introduction rehabilitation and measures to prevent employers dismissing employees due to occupational injuries or diseases. This would mean higher costs for employers, he said.

The fund had assets of R67 billion at the end of March 2018 and paid out R3.6 billion in benefits in its financial year ending March 2018.