Klass Looch Associates

Klass Looch Associates

Occupational Health & Safety Legislation Consultants

Dear Folks

I almost embarrassed to be wishing you a safe, healthy and prosperous New Year at this late stage. Truth is that I have been back in the saddle for the past three weeks but kept hoping something earth shattering would happen from an OHS perspective in order to share it with you in this newsletter. There has been the usual mutterings from official and union sources condemning the delinquent behaviour of employers with the special focus lately being on the exploitation of casual workers. The Star of 5 December 2006 reports ‘A drastic shortage of labour law inspectors is giving employers leeway to exploit casual workers. The Department of Labour has admitted that it battles to retain staff employed to monitor compliance with basic labour conditions, and that only about half of the 1 600 inspector posts in the country were filled. Mokgadi Pela, spokesperson for the Department of Labour, said yesterday the shortage impacted on the department's ability to monitor companies nationwide. His comments follow the decapitation of Terrence Sadler (17), who stuck his head in a goods lift on his third day as a contract worker loading stock at Shoprite in Cape Town's Kenilworth Centre. He was apparently contracted through a labour agency. According to Terrence's parents, he would have earned just R160 for the three days that he had worked. Labour law expert Brian Williams said exploitation of workers was most visible in periods such as the festive season when there was a huge influx of tourists and events. He said that because there was a demand for labour and an oversupply, the wages were very low. Williams said the Department of Labour did not have a full complement of inspectors to do all the work necessary. Western Cape Cosatu leader Tony Ehrenreich agreed. "It is an established fact. The Department of Labour is understaffed and it is largely because they are under- funded." He said the onus was on the government to prioritise the application of the law so that a law could be implemented and impact on people's lives. Cosatu will run a campaign next month aimed at outlawing labour brokers and the casualisation of workers. In the wake of the campaign, the union federation will call for a boycott of companies that casualise their labour. Ehrenreich said payment as low as R50 a day was consistent with the trend that Cosatu had seen in casual-worker pay rates. Pela admitted that the department's workload was being affected by a shortage of inspectors, who were being steadily poached by the private sector and by other government departments. He said the Labour Department had a retention plan in place which would include standardising the benefits of the inspectors. Pela added that Labour Minister Membathisi Mdladlana would be introducing a specialised, roving inspectorate that would focus on specific sectors’.

I wonder why the focus of this article is on remuneration as opposed to health and safety. Did the tragic fatal accident occur because the deceased was poorly paid? Or did it happen because he was poorly trained, hazardous conditions not addressed and /or machinery not properly maintained as required by the OHS Act? Is an underpaid worker more likely to stick his head into an elevator shaft than a adequately paid worker? And where is this specialised roving inspectorate that the Minister is referring to? Why haven’t we been told more about it? I would like to know its mandate, composition, if OHS is one of the sectors that would enjoy its attention etc.

We know that the OHS Act does not allow employers to discriminate or distinguish between casual labour, labour supplied by labour brokers and other employees. All these workers are employees as defined and section 8 of the OHS Act requires employers to provide, as far as is reasonably practicable, all employees with a safe and healthy working environment. The spokesperson for DoL seems to be intimating that the lift accident may have been avoided had the department a full complement of inspectors to police OHS at that workplace. Is that an admission of culpability? Perhaps a civil suit by the family for damages against the Minister and his department, like the many successful law suits against the Ministry of Safety and Security, would stir things up. It may also stop government officials from shooting their mouths off each time an incident occurs instead of waiting for all the evidence to come to light via investigation and / or trial. The Lenasia factory fire a few years ago fire could have blazed the trail, particularly as the criminal court, in convicting the factory owner and manager, stated it in its verdict that had labour department inspectors done their duty and inspected the premises of ESS chemicals, the 11 might still be alive. It is highly improbable that a civil case against a ministry will succeed merely because government has failed to provide adequate manpower to police OHS but in the Lenasia case there was, prima facie, an element of wrongfulness on the part of DoL which is one of the requirements for a successful law suit based on delict.

Things aren’t better at the Department of Mineral & Energy. In fact it’s gets downright scary when the acting Chief Inspector of Mines confesses to Business Day that “the improvement in the economy comes at a cost of human lives. Injury rates had also climbed as the mining industry turned towards mechanisation. Other challenges facing the inspectorate were the loss of personnel. The department’s safety unit lost 75% of its top managers in one year to the private sector’. (When will we get non-acting Chief Inspectors?).

Speaking about acting or I shall say showmanship, I see our Honourable Minister of Labour, who has a penchant for bellowing, has taken a swipe at the SPCA! Officially commenting on the Yengeni bull slaughter debacle, he said ‘I invite the SPCA to join us as we will be slaughtering a bull without euthanising it. We'll ask them to come into the kraal to share in the feast. We want the bull to bellow and then we'll sing the praises of our ancestors." His tirade goes quite bellow the belt and actually appears on the official government website as a speech. I also get nervous when politicians attack the judiciary. The SPCA has accepted the invite and should enjoy a roasting. I prefer takeaways. Naturally I won’t be drawn into this debate since it has nothing to do with OHS but hopefully, after the slaughter, the Minister will be able to concentrate on his real portfolio! It needs some serious therapy.

Since my last newsletter to you it has also come to light that Gauteng Premier Mbhazima Shilowa overspent his budget by R5-million to settle a legal bill of Suraya Scott, who was left paralysed during a Women's Day rally organised by the provincial government three years ago. Scott was rendered paraplegic during a Women's Day award ceremony three years ago. It was on August 9 2003 that Scott climbed onto the stage to shake President Thabo Mbeki's hand and receive a Woman Achiever's Award. Her life changed forever when a gust of wind brought the marquee crashing down on her. Mbeki was unhurt. She was invited to the Union Buildings by Shilowa to receive an award for her successful waste-management business. DoL investigated the matter and the Gauteng premier promised to make public the findings. It’s a pity that he reneged on this undertaking as it would have been the first incident involving the construction regulations. There were threats of civil suits but I guess this settlement puts pay to that.

I wish to welcome Columbus Stainless and Plasserail aboard as Subscribers. I hope you all got my newsletter on ‘Contractors and the NOH&S Bill’. OHS Practitioners can expect a newsletter soon.

I will be conducting workshops again in June and am already busy with the ground work. There will be sneak preview of the NOH&S Bill amongst other things.