THE ROLE OF OCCUPATIONAL HEALTH AND SAFETY IN SUSTAINING HUMAN CAPITAL

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THE ROLE OF OCCUPATIONAL HEALTH AND SAFETY IN
SUSTAINING HUMAN CAPITAL
Professor Avinash Govindjee Faculty of Law,
NMMU CCMA
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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?

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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

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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)

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• 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

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The approach

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

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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

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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

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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

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

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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

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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

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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

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Safety and Health Standards in the SADC

• Does SADC comply with international standards,
  specifically the ILOs 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)

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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

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• 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

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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

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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

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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

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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

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Comparative perspectivesProblems 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

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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

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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 dont have the capacity to
  comply with OHS standards

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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

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Globalisation effect (cont.)

• Rapid and uneven production changes have not been
  accompanied by the necessary transfer of
• Information
• Technology
• Skills
• Regulatory capacity

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• 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

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• 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

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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

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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

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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

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The effect of Mankayi on OHS

• Content given to the employers 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

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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)

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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?

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Conclusion and questions