THE ROLE OF OCCUPATIONAL HEALTH AND SAFETY IN SUSTAINING HUMAN CAPITAL

Professor Avinash GovindjeeFaculty of Law, NMMU

CCMA

Key issues

• How can the South African “human capital” / workforce be sustained through good health and safety laws and practices?

• Are there international standards / best practice experiences which can inform the South African position?

• Does the South African constitutional framework impact in this area?

• How to view occupational health and safety in the emerging South African context?

Is occupational health and safety (still) a global issue?

• Amount of compensation paid and number of cases reported increase yearly

• Overall annual rate of occupational fatal and non-fatal accidents is estimated at 270 million

• 160 million workers suffer from work-related diseases; Two-thirds cause a loss of four or more working days

• Economic impact: (including compensation, training costs, medical expenses, loss of working days): roughly 4% of GNP

ILO figures

Is occupational health and safety (still) a real issue in SA?

• The DoL has acknowledged the cost of non-adherence to OHS (amendments promised)– Death, disability, loss of income, decline in GDP,

general cost to the country– Over 230 000 workplace accidents / 10 000 diseases

reported per annum (excludes self-employed and ICs, issue of under-reporting in Southern Africa)

– Estimated at R30 billion a decade ago (3,5% of GDP)– Costs to employers, workers and their families and

the state (CF paid R2,3 billion last year)

“Unfortunately, the most creative social protection systems cannot confront a tidal

wave of health problems from insecure, hazardous and low-quality jobs”

An awareness of the social cost or injuries / diseases is seriously lacking

The approach

• International perspective • The regional position• Best practices• Constitutional framework and legal issues• Developing world / globalisation / informalisation /

GFC considerations• General remarks

International framework: ILO Standards

• Occupational Safety and Health Convention No. 155 of 1981 (ratified in 2003): (tripartite occupational health systems, rights and responsibilities)– “Each member shall, in consultation with the most representative

organisations of employers and workers, formulate, implement and periodically review a coherent national policy on occupational safety, occupational health and the working environment.”

– Identify functions and responsibilities of all stakeholders (but recognise complementary character)

– Review national policy at regular intervals– Adequate and appropriate system of inspection and enforcement –

adequate penalties for violations– States must provide guidance to employers and workers to assist

them to comply with their legal obligations– No cost to workers

Occupational Health and Safety Convention No. 155 of 1981

• Addresses the standard of “reasonably practicable”

• The Convention also provides for the protection of a worker from unfair consequences - removal from situation of imminent and serious danger (SA cases)

• Prescribes that the coverage of safety and health law is to apply to all branches of economic activity and to all branches of activity covered

• Safety and Health in Mines Convention No. 176 of 1995

Other (unratified) Conventions

• Occupational Health Services Convention No. 161 of 1981

• Safety and Health in Construction Convention No.167 of 1988

• Chemicals Convention No 170 of 1990• Prevention of Major Industrial Accidents

Convention No 174 of 1993

Promotional Framework for Occupational Safety and Health Convention, 187 of 2006

• Attempts to raise the profile of OHS as an issue both nationally and internationally

• Safe work is an integral part of the ILO’s decent work agenda

• Fundamental building blocks of a global OHS strategy are the building and maintenance of a national preventative safety and health culture

“A national preventative safety and health culture”

• Right to a safe and healthy working environment is respected at all levels;

• Governments, employers and workers actively participate to secure a safe and healthy working environment through a system of defined rights, responsibilities and duties; and

• The principle of prevention is accorded the highest priority

Building the culture

• Requires making use of all available means to increase:– General awareness, – knowledge and – understanding of the concepts of hazards and

risks and how they may be prevented or controlled

Other key elements

• National policy in consultation with representative organisations

• Develop a national OHS system containing the infrastructure to implement the policy

• Analyse the national OHS situation• Implement over a specific period of time• Collaboration with any occupational injury

programme

Safety and Health Standards in the SADC

• Does SADC comply with international standards, specifically the ILO’s Occupational Safety and Health Convention No 155 of 1981?– Most recent legislation, eg SA, mostly compliant• Applies to more than just employees• Tripartite council (although advisory)• Training obligations (inform employees and health and

safety reps)

OSH Standards in the SADC

• Challenging aspect: how to extend the legal coverage to include small-scale enterprises, rural workplaces and the inspection of machinery and equipment prior to the installation thereof in the workplaces

• Enforcement is a problem– Lengthy court processes– Unwillingness to prosecute

– The need to institute a common standard in the SADC region, given that it is now more integrated and there is a greater flow of labour, goods and services (Art 12 of the Social Charter)• Bi-partite / multi-lateral agreements• Protocol on Mining and Protocol on Health exists (co-

operation / best practice sharing)• National Institute for Occupational Health / SADC• SADC Ministers meeting pressurising ratification• Technical Co-operation Programme: 1996• Training programmes

Comparative experiences / Best practices

• Kenya: National Occupational Safety and Health Policy (June 2010)– Follows the creation of a Common Market

Protocol for the East African Community (EAC)– Increased mobility of labour foreseen –

developing an OSH culture seen as a key part of this progress

– Policy developed following an extensive consultative process

– Collaboration planned for the road ahead

Australia: Harmonising Occupational Health and Safety Regulation (2008)• Conducted a national OHS Panel review– The First Report of the Panel was then commented on

by stakeholders / academics, prior to a second review– EG: commented on meaning of “reasonably

practicable”• Previously fragmented• Basic model for occupational health and safety

laws developed (with flexibility for States)• Regular comparison and bench-marking with

New Zealand

Korea and China – Occupational diseases

• Mesothelioma surveillance system developed: collects data on workers who have been exposed to certain hazardous substances• Might result in occupational diseases after a long latency

period (eg asbestos-related diseases)

• Rebate system in China

The South African Constitution and legal position

• Fair labour practices• Right to a safe environment that promotes

health and well-being• Right to have access to social security• Freedom and security of the person• Life (Taskin v Turkey), human dignity, equality• Mankayi: interpreting the common law in line

with the Constitution

Comparative perspectives:Problems in lower income countries• Loewenson:– “In industrialised countries, standard setting in

unclear situations may err on the side of controlling risks, but in poorer countries this often errs on the side of continued exposure”• Immediate costs to enterprises sometimes limit efforts to

improve work safety (same issue re treatment of disabled in workplaces?)

• The burden of uncertainty is borne here by workers• Add to that the least human, technical and financial

resources to demonstrate the risk• Also an outflow of occupational health professionals

Globalisation effects• Increasing proportion of manufacturing and industry

shifted to the developing world– Leads to higher level of injury and disease risk– 50% of South African still employed in hazardous sectors

(mining, construction, transport, agriculture and manufacturing)

– Job insecurity, contingent work arrangements and rising informality have adverse OHS outcomes• Rise in injury rates, diseases rates, hazard exposures and work-

related stress• Temporary workers, sub-contractors and self-employed persons

tend to have a very limited understanding of their own responsibilities / inadequate training in OHS procedures

• OHS design does not cater for this

Informalisation and OHS• High level of occupational accidents and diseases:– Indicate that laws and strategies aimed at prevention

can / should be improved– Re-evaluate regulatory strategies also because of

growing informalisation (non-standard contractual arrangements / self employment / workers in the informal economy / role of unions / regulation???)• Share of the those engaged in informal work is as high as

90% in some African countries• Increasing proportion of workers not protected by

compensation or prevention laws• Many small employers don’t have the capacity to comply

with OHS standards

The effect of globalisation on health and safety

• Liberalisation associated with deregulation of production laws– Add to the pressures on OHS standards– OHS laws sometimes do not apply in some EPZs– Penalties for breach of occupational health laws have been

set at absurdly low levels (relative to other production costs)

– Patchy law enforcement– Criminal sanctions for breach rarely invoked– Inadequately resourced government inspection systems – Non-application of laws in the informal sector

Globalisation effect (cont.)• Rapid and uneven production changes have

not been accompanied by the necessary transfer of:– Information– Technology– Skills– Regulatory capacity

• “The health problems emerging from liberalized competitive production processes demand that production be organized to meet sustainable development goals, not only in terms of economic growth, but also in the development and health of human resources”

• ILO: “The economic crisis has impacted negatively on OHS since 2008, especially regarding migrant workers” (women, children also worst affected)

• Growth of small businesses and the growing informalisation of work is an issue– Lack of capacity to take preventative measures– Informal workers more than 7 times as likely to be

involved in accidents than those in the formal sector

General remarks

• Data problem (also makes comparisons difficult)

• Globalisation and informalisation• Focus problems: – Worker focus vs family focus– Formal places of work vs non-standard workplaces– Lack of attention regarding “work”: must inform

the poverty-and-health debate and the disability-and-poverty debate

Work, poverty, health and safety• Employment does not always address poverty• Can cause increased vulnerability• Increase in precarious work• People unprotected in terms of social security - forced

to keep working• Poor OHS arrangements lead to injury / disease:

further associated health costs / downward mobility in affected households

• Impact of occupational injury and illness on poverty? – A number of studies illustrate that the cost of occupational

injuries and diseases falls on informal workers themselves

From employer-focus to employee-focus

• Change the attitude of employees and their representatives towards safety (given the limited expectation on employers)– Act already places an obligation on employees

• In the long term, reduce risk by improving knowledge or introducing improved methods of operation

• The role of trade unions?• Should benefit from the global spread of info• Increased focus (globally) on OHS• Innovation required

The effect of Mankayi on OHS

• Content given to the employer’s duty of care• Likely to instil accountability in these employers?• A strong statement regarding the rights of a particular

category of worker• A floodgate of claims?• Or an amendment to the legislation?• Or a change in (employer) approach: risk management• A paradigm shift: linking labour law to human rights– Systems of OHS / compensation-focus cannot operate

in isolation or disregard human rights

An integrated approach: Prevention, Re-integration / rehabilitation,

Compensation• An opportunity for change in South Africa

towards Win Win Win?• Will require a horizontal and vertical re-

alignment / defragmentation– No state institution has capacity or responsibility

to assume leadership role in all sectors?– Develop synergies between prevention,

compensation (and rehabilitation)– A close institutional link will promote prevention

(improve quality of info etc)

The likely effect of rehabilitation on OHS

• Requires a fundamental change in approach– Allocation of (limited) CF resources to prevention / re-integration

activities

• Depends on how it is incorporated / staffed / resourced– How broad will this role be?– Gather / disseminating information?

• Link to assessments / rebates (ito COIDA)?• Knowledge-base creation– Publication

• Awareness• The role of an audit-tool on OHS?

Conclusion and questions