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Invisible threat to workers’ rights

NEWS ANALYSIS

As the economy slowly reopens amid the coronavirus pandemic, many workers have been forced to balance their health and safety with their ability to eke out a living.

On May 3, Minister of Employment and Labour Thulas Nxesi announced a raft of measures to be taken by employers before opening up for business under level 4 of the lockdown.

But when employers fail to comply, what are the rights of workers and how far do they stretch?

Last week Cosatu released a statement urging the minister to issue a directive affirming the rights of workers to refuse to work under dangerous conditions. The trade union federation contended that “thousands of employers are not complying with the new occupational health and safety protocols and conditions set out to reopen the economy”.

“We cannot allow exploitative and indifferent employers to abuse the power relations at work by forcing workers to work under unsafe conditions. Workers must now be empowered to defend their lives with the full protection of the law … Anything less is tantamount to sending them to their early graves.”

On Tuesday, Cosatu’s concerns were seemingly confirmed when the department released a statement reporting that its inspectors found that two of every five work sites inspected were not complying with the Occupational Health and Safety (OHS) Act.

According to the statement, 2789 workplaces throughout the country were inspected between April 30 and May 8. Inspectors found that 1 237 of these workplaces were not compliant.

“We are shocked that many organisations are still struggling to comply with the OHS Act,” inspector general Aggy Moiloa said in the statement. “It should be every organisation’s habit. No wonder we still have so many workplace accidents.”

Workers have the right to refuse to work under objectively dangerous conditions, but, because the risks of coronavirus infections are invisible, it is difficult to trigger this right.

Kenneth Coster, a partner at Webber Wentzel, said: “What is difficult in the current pandemic is that the risk is unseen. The hazard is unseen. Whereas in other areas it is much easier for staff to assess whether or not they are in danger … you are not in the position to see this virus.”

Coster said workers can temporarily withdraw from a workplace they deem dangerous, but “the difficulty remains for employees is how do you say that this place is really unsafe? Because it is open to great abuse.”

Public interest lawyer George Kahn, of Richard Spoor Inc Attorneys, explains that, when a worker perceives a threat in the workplace, “the only requirement is that you need to communicate it as soon as possible”.

“The problem is what happens when the danger is invisible … That becomes much more complicated.”

Kahn has extensive experience litigating on matters related to health and safety in the mining industry. He recently worked on the successful labour court bid by Association of Mineworkers and Construction Union to compel Mineral Resources Minister Gwede Mantashe to implement stronger measures to curb the spread of Covid-19 on mines.

In terms of the Mine Health and Safety Act, Kahn said the burden of proving that a threat exists often falls on the workers, especially if refusal to work leads to disciplinary action or dismissal.

In 2008, the labour court found against quarry workers at Chrober Slate who stopped work over allegedly unsafe working conditions. Their withdrawal from work was deemed an unprotected strike and the workers were dismissed. Because the workers could not prove that the quarry was unsafe at the time of their withdrawal, the court held that their dismissal was procedurally fair.

Putting the onus of evidence on the worker might require them to bring in expert witnesses, which is not always possible, Kahn said.

But in the view of Richard Spoor Inc Attorneys the onus on workers is not correct, because in all work environments the employer has the duty to implement “reasonably practical measures”, Kahn said. “Our courts have never really taken into account what that means. And the reason for that is because you don’t really have much litigation on mineworkers or any workers getting injured.”

But in English courts the onus has been placed on the employer to prove they have taken reasonable measures to curb workplace dangers.

This makes more sense, because there is “a huge asymmetry of information between the worker and the employer”, Kahn said.

“When you look at things like diseases, such as Covid or silicosis, how does a mineworker objectively know when it is safe? The employer ordinarily has the expertise, the infrastructure, the training and the measurement devices to work that stuff out. They have all the information,” he said.

“In that situation you would expect that reasonably practical measures become more and more important. And obviously that then requires the onus on the employer to convince all of us they have actually done what they could have done.”

Without this precedent, workers are in a difficult position. The decision to refuse to work ultimately lies with them but it will have to be tested in court, or set with a directive by the government.

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Sarah Smit
Sarah Smit
Sarah Smit is a general news reporter at the Mail & Guardian. She covers topics relating to labour, corruption and the law.

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