Paula Howell
A second look The recent tragedy at the ESS Chemicals factory in Lenasia where 11 workers, the majority of them women, burnt to death imprisoned in an inferno, is a horrific consequence of the failure of an employer to adhere to even minimum safety regulations and the inability of the Department of Labour to ensure compliance with workplace safety requirements.
Eleven families have been deprived of an important breadwinner, not to mention the trauma of such a sudden loss.
Work accidents happen all the time but how was Suleman Ebrahim Lachporia able to operate in the way he did, and for so long, without detection? It is perfectly true that the Department of Labour cannot visit every single workplace.
In any event, that would be an extremely wasteful use of resources. However, there must be mechanisms in place to prevent the likelihood of this kind of tragedy ever occurring again. At present health and safety in the workplace is governed by the Occupational Health and Safety Act 200 of 1993 and is based on the recognition that workers have a right to be protected from harm in the workplace.
The enforcement of this right is the responsibility of the Department of Labour, via employers and employees, in that all accidents in the workplace must be reported to the department by employers, or by employees if employers fail to do so, and employees are also encouraged to report unsafe practices. The system therefore depends on the total cooperation of employers and employees.
Of course, in reality, unscrupulous employers do not report accidents and employees are unwilling to risk grassing on their employers. It is difficult therefore to see how the Department of Labour can monitor unsafe work practices unless it is able to carry out extensive inspections, particularly of businesses, which carry on high-risk activities. Clearly, the resources to carry out this sort of operation are not available. But employers who choose to ignore safety regulations are, in effect, guaranteed long-term immunity until, of course, a tragedy, like that in Lenasia occurs.
The Director General of Labour, advocate Rams Ramashia, implores workers to report breaches of safety rules to the department, but how will he convince workers to take that chance? Ramashia clearly realises it would be futile to ask employers to comply with health and safety regulations and, instead, seeks to shift the onus to the most vulnerable members of the safety alliance, the workers.
Given the inadequate numbers of safety inspectors, the Department of Labour needs to look urgently into alternative methods of ensuring workers’ safety. Crucial to the prevention of work accidents is the reporting of unsafe practices without which the safety inspectorate can only play a reactive rather than a proactive role in enforcing the regulations. Although the reporting of accidents does not necessarily protect employees, it can assist in targeting employers who would otherwise not be identified and is an additional weapon in the fight to maintain safe working environments. In this regard, the Department of Labour should perhaps consider involving the Compensation Commissioner more fully in the process.
Workers’ compensation is governed by the Compensation for Occupational Injuries and Diseases Act 1993 and is controlled by the labour department. The Compensation Commissioner’s office is responsible for collecting accident statistics and all work accidents are reported to that office so that injured workers can receive compensation.
Employers are required to report all accidents but it is also in the interest of workers to ensure reports are made as their right to compensation depends on notification to the commissioner.
If the commissioner were required to notify health and safety inspectors, immediately, of accidents reported to her, this alone would improve the monitoring of health and safety breaches because the safety inspectors would be alerted to accidents almost as they happen.
Although the involvement of the commissioner’s office might encourage a more reactive inspectorate the Department of Labour would be better placed to identify illegal operators. Success largely depends on the ability of the commissioner’s office to process and relay such information and, at present, the office is well behind in its production of up-to-date statistics it is required to publish on a yearly basis.
The reason for this is that it takes much longer than the three months indicated by statute to process compensation claims and until a claim is accepted and finalised, a work accident is not identified. This would, of course, give rise to delays in reporting of as much as a year or more. However, there is no reason why accidents should not be reported to safety inspectors as soon as the commissioner’s office is notified, regardless of whether claims have been accepted.
But prevention of work accidents can only be effective if the Department of Labour is able to identify and prosecute employers who do not adhere to safety regulations, or to force employers to comply with regulations in the first place.
At present employers are not aware of the true costs of accidents in the workplace. This is partly because they are not being informed by the Department of Labour and because the workers’ compensation scheme provides employers with a soft cushion against the real costs of causing harm to employees.
The Act prevents employees from suing their employers through the courts but offers the guarantee of compensation regardless of fault. Employers make contributions to the Compensation Fund to protect themselves against claims from employees.
Employees are compensated to the extent of their wages, therefore, as is the case with the families of the Lenasia workers, those who are receiving very low wages will, in effect, get little compensation. While workers and their families are often disappointed by the amount of compensation received, by contrast, employers are protected from the true effects of ignoring safety precautions because they are able to avoid legal fees and damages that would flow from a successful negligence claim. It is also the case that because workers’ compensation is badly managed the chances of employers, who blatantly flout safety laws, being apprehended are greatly reduced.
But if we assume that employers who ignore safety requirements are also those who do not register with the Compensation Fund, then the legislature could perhaps consider allowing workers to sue those employers who fail to register with the fund.
In Britain, for example, employees can either sue employers or rely on state benefits if they have been injured in the course of their employment. All employers are required to insure against work accidents and, of course, insurers demand high levels of cooperation with health and safety requirements.
Under the Act negligent employers who are registered with the Compensation Fund are penalised by way of increased contributions. But, if such employers were, instead, confronted by the prospect of forfeiting their insurance protection and having to fight negligence claims in court, the adherence to safety regulations, also among those who obviously recognise the benefit of paying into the Compensation Fund, would also be ensured.
The Occupational Health and Safety Act is a useful piece of legislation but its success depends on effective policing. Adherence to its provisions is more likely to be encouraged if employers are exposed to the true costs of ignoring such provisions. Ultimately, employers will only recognise the benefits of adopting proper safety measures if the consequences of ignoring such measures are more costly than adhering to the rules in the first place. The Department of Labour needs to take a more creative look at legislation and structures in its fight against unsafe practices in the workplace. It needs also to recognise that, with the high level of illiteracy in South Africa, much more is required to be done to inform workers of their rights. It also needs to convince employers that the prevention of accidents in the workplace is much less costly than simply allowing accidents to happen.
Paula Howell is a lawyer at the Legal Resources Centre