NEDLAC REPORT ON THE COMPENSATION FOR OCCUPATIONAL INJURIES AND DISEASES AMENDMENT BILL

20 February 1997

1. BACKGROUND 

1.1. The compensation for occupational injuries and diseases amendment bill (hereafter referred to as the "the bill") was drafted by the Department of Labour after consultation with the Compensation Board.

1.2. The purpose of the amendment was to effect a number of corrections to the principal Act, to rectify certain omissions from the principal Act, to make provision for alternate members to the board, and to express certain provisions more clearly.

2. THE PROCESS IN NEDLAC

2.1. The bill and explanatory memorandum were tabled at the Labour Market Chamber meeting of 2 May 1996.

2.2. On 2 May 1996 and 30 May 1996 the Labour Market Chamber discussed a process for consideration and finalisation of the bill in Nedlac.

2.3. On 30 May 1996 the Labour Market Chamber agreed to appoint a three-person committee, comprising one person per constituency, to consider and finalise the bill.

2.4. On 10 July 1996 the working group met to consider the bill. At this meeting business and labour tabled several substantive concerns about certain provisions of the bill. Apart from these concerns the bill was supported by business and labour.

2.5. Labour tabled proposals to address its substantive concerns on 13 September 1996. These were circulated to business and government on 19 September 1996.

2.6. At a meeting of the Labour Market Chamber convenors and the working group on 1 November 1996 to address the substantive concerns raised by business and labour it was agreed that:

2.6.1. It was the intention of the parties that the Minister of Labour should consult the Compensation Board before amending any regulation or schedule to the Act and that this principle should be captured in the bill.

2.6.2. The following changes would be made to the bill as per labour's proposals:

(a) The words "serious disfigurement" would be retained in section 1(d).

(b) Section 11(1) would be replaced with the following wording:

"11 Constitution of the Board

(1) The Board shall consist of-

(a) the commissioner or an officer designated by him, who shall act as chairman;

(b) two persons nominated by the Minister, one of whom shall be nominated after consultation with the Minister of National Health and Welfare;

(c) the Chief Inspector of Occupational Health and Safety;

(d) one [person] member and one alternate member appointed by the Minister from a list of the names of not more than three persons nominated by the Rand Mutual Assurance Company Limited.

(e) one [person] member and one alternate member appointed by the Minister from a list of the names of not more than three persons nominated by the Federated Employer's Mutual Assurance Company Limited.

(f) two [persons] members and up to two alternate members appointed by the Minister from a list of the names of not more than six persons nominated by the South African Medical and Dental Council;

(g) three [persons] members and up to three alternate members appointed by the Minister to represent the interests of all employers from a list of the names of not more than ten persons nominated by employers' organisations;

(h) five [persons] members and to five alternate members appointed by the Minister to represent the interests of all employees from a list of the names of not more than ten persons nominated by employees' organisations

(2)An alternate member may only attend and take part in the proceedings of a meeting of the Board if the member to whom he is an alternate is absent from that meeting.

(3) An assessor shall not be eligible for appointment as a member or an alternate member of the Board."

2.6.3. Business agreed to drop its reservations about the following amendments:

(a) Section 11(c)

The reservation would be dropped on the ground that the mutual associations had apparently agreed at a meeting of the Compensation Board to the amendment removing the reference to the right of appeal concerning the suspension or withdrawal of a license.

(b) Section 28

Business would not pursue its request that the amendment provide for a refund rather than an adjustment of the excess paid in respect of an assessment under the Act.

2.7. At a meeting of the Labour Market Chamber convenors meeting on 12 December 1996 government indicated that a revised bill would be tabled for consideration. The purpose of the revised bill was to transfer accountability for the Workmen's Compensation Fund to the Director-General of Labour. The revised bill was circulated to the parties for consideration on 31 January 1997.

2.8. At a special meeting of the Labour Market Chamber on 6 February 1997 business and labour responded to the revised bill.

2.8.1. Labour and business raised a concern that the agreed principle that the Minister of Labour should be obliged to consult the Compensation Board before amending any of the regulations or schedules was not adequately captured in sections 47 and 97.

2.8.2. Business raised a concern about section 30(1). Business reservation about this amendment was noted and is stated in full in point 3 below. It was agreed that business was free to pursue this matter during the parliamentary process.

3. BUSINESS RESERVATIONS

3.1. Business stated that although it had previously agreed to reconsider this point it, however, wished to reiterate its concern about the amendment to s39(a)(1) that allowed the Minister to grant a license for a specified period. Business stated that it had subsequently discovered that the Compensation Board had supported this amendment to grant an indefinite license. Business stated that it was impractical and unreasonable for the mutual associations, which managed large amounts of money, to operate on the basis of a license that was granted only for a specified period.

3.2. Business stated that it did not agree to subsection 11(1)(g). Business stated that this subsection should be amended to provide for parity in the number of representatives of employees' and employers' organisations on the Compensation Board.

4. RESERVATION OF LABOUR AND BUSINESS

4.1. Labour tabled a concern about section 65. It was agreed that Nedlac should seek legal opinion on this matter from Mr Paul Benjamin. This opinion was received and circulated to the parties on 14 February 1997.

4.2. In terms of the legal opinion:

4.2.1. Subsection 65(1)(b)(ii) of the bill requires that for an employee to be entitled to compensation for an occupational disease the disease must arise out of and in the course of the employee's employment.

4.2.2. Subsection 65(1)(b)(ii) was a sufficient requirement for entitlement to compensation.

4.2.3. Subsection 65(1)(b)(i) of the bill introduces an additional requirement for entitlement to compensation. Subsection 65(1)(b)(i) requires an employee to prove that an occupational disease was due to the handling of or exposure to a substance emanating from his or her workplace or to the work practice employed at his or her workplace in order to claim compensation.

4.2.4. It was the opinion of Mr Benjamin that s65(1)(b)(I) should be deleted.

4.3. Labour and business stated that they supported the deletion of subsection 65(1)(b)(i).

4.4. Government does not agree with the opinion but stated that it would put the views of business and labour to the Minister.

4. CONCLUSION

This report, therefore, completes consideration of the issue in Nedlac, and the report and attached amendment bill are hereby submitted to the Minister of Labour in terms of section 8 of the Nedlac Act, No. 35 of 1994.