Dear Folks

I assume that many of you will only be receiving this mail upon your return to work after the holidays. I have noticed a distinct increase in the number of ‘Out of Office’ responses that I have been receiving over the last few days. Although I wish that there was a better spread of public holidays, I can do with a few braais the coming long weekend, brandy and coke in one hand, a tjoppie in the other, moaning about crime, sounds like fun.

You would have also received by now my notification of the outcome of the appeal in the Crown Chickens t/a Rocklands Poultry vs. Rieck Supreme Court of Appeal (SCA) case. I know that many of you do make use of the service of labour brokers and that you have often asked me about the (OHS) status of workers supplied by you. I’ve also written a few articles on this topic. From the OHS Act perspective you cannot distinguish or discriminate between permanent employees, temporary employees, casuals or workers supplied by labour brokers. The OHS Act is quite clear on this and the draft National Occupational Health & Safety Bill will reinforce this. You must ensure that these workers remain safe and healthy while working under your control. That’s from the criminal law perspective.

What about the civil law? Third parties have the right, if they suffer prejudice, to sue negligent employers for damages while employees are prohibited in terms of section 35 of the COID Act from taking such action. We now know, after the Rieck case, that workers, supplied to a client by a labour broker, also have the right to sue their negligent employers over and above any compensation they receive from the compensation commissioner. There are three role players involved in this relationship, the employee (worker), the employer (labour broker) and the client. The client does not contribute to the compensation fund and, according the court, should not enjoy immunity against civil suits for damages should the client be found to be negligent vis-a-vis an occupational injury. You may ask why a person who has received compensation from the commissioner may still wish to proceed in a civil suit against an employer. The answer is simple. You can get more money!

But is there a way for clients to ‘protect’ themselves against such civil suits? Can they indemnify themselves? I am going to keep my view to myself and will share it with delegates at my forthcoming June workshops. There are a few other legal practitioners attending, in Gauteng so far at least, and we will debate this. You may wish to revisit your contracts with labour brokers after that.

On the skinner front I see the Hon. Minister of Labour and esteemed chairman of the International Labour Organisation in Geneva, has issued a warning to employers on Human Rights Day that ‘on this very important day, we wish to remind fellow South Africans that this is going to be the year of inspection and enforcement. We therefore call on employers to put their houses in order. To those employers who abide by the law, whether it is health and safety, or employment equity, we encourage them to keep up the good work'.

Sounds like a load of bull to me. You know that very animal the minister slaughtered and promised to share the proceeds with the SPCA. After much bellowing – remember my previous newsletter - he later withdrew his invitation to the SPCA claiming that the slaughtering would be a private affair. Click here for his speech in this regard. (Didn’t he know that before inviting the SPCA? Or did they call his bluff?). And why do I say that it’s bull? Perhaps the minister hasn’t noticed lately but there are no competent OHS inspectors left to conduct this blitzkrieg. (If indeed he talking OHS. One never knows which of the ‘labour laws’ he is referring to). Between his past squabbling with his director-general, his department’s foolish transformation exercise and arrogant management style, his jet-setting, his preference for all other types of ‘labour’ legislation, the OHS inspectorate has vanished into thin air. Much like his credibility. And ‘labour law’ compliance levels are falling quite dramatically according to DoL. Wonder why?

Labour Law compliance dip alarms stakeholders. DoL.  14 March 2007. ‘A general drop in labour law compliance levels, which prompted last week's Labour Inspectors' conference in the North West province has been declared a concern for all stakeholders of the labour market. Aimed at formulating strategies to improve performance within inspectorate services, as well as improve compliance levels amongst employers, the conference coincided with the five-day nationwide blitz inspections that focused on the construction sector, with Labour Minister Membathisi Mdladlana leading proceedings in the Western Cape. According to Labour Department statistics, compliance levels have dipped from 84 percent in 2004 to 56 percent in 2006, with the agriculture, wholesale and retail sectors recording the highest numbers of contraventions. Ironically these are the sectors with highest numbers of vulnerable workers in the land. At the conference, delegates representing business, worker and employer groupings were unanimous in the urgent need for drastic reduction in occupational injuries and diseases. Capacity development for improved and professional inspection services were discussed at length’.

I stumbled upon this while cleaning my office the other day. It’s an editorial from the Star in the year 2000 after the Lenasia factory fire entitled “Let’s get to work safely’.  ‘The exploitation of workers through low pay and unsafe working conditions is too commonplace in South Africa. Across the country, small employers cut corners by ignoring key aspects of labour legislation. In 1996 and 1997, according to the

Compensation Commissioner, more than 508 people died and more than 200 000 were injured while going about their daily routine of ,earning a living.

In 1996 alone, this cost the economy R17-billion, 3.5% of South Africa's gross domestic product, The task of ensuring workers’ safety is not a difficult one. South Africa has a slew of laws meant to perform exactly that task. There is a safety inspectorate that is meant to ensure that employers observe those laws. Outside the ambit of the state, there are trade unions whose job it is to organise workers.

Organised business, whose job it is to promote the interests of the private sector and to encourage good business practice, has a duty to ensure that those who fall within its sphere of influence adhere to the laws of the land. Had all these people performed

their basic duties. the lives of the workers could have been saved. The Lenasia tragedy should be used to turn around what seems to be a blasé attitude to worker safety. Instead of shouting abuse at each other, South Africa's main social partners should honestly examine the role they played in the deaths of those workers and seek to define priorities and a new platform for principled behaviour. The government needs to urgently boost the capacity of the safety inspectorate. The unions need to focus far more strongly on fighting shop-floor struggles instead of being distracted by highfalutin debates about economic policy. And, finally, organised business needs to instil in its members a culture of voluntary adherence to the law and respect for the basic rights of employees’.

That was seven years ago Appeals to boost the capacity of the OHS inspectorate seem to have fallen on deaf ears.. Oops. Did I mention that I stumbled upon this column emanating from the Sunday Times in the late nineties?

‘BEHOLD our mampara, banging away on an empty bucket with a stick. The Minister of Labour Membathisi Mdladlana, is most upset that his department has come under scrutiny following the fire last weekend at the ESS Chem factory in Johannesburg in which 11 workers burned to death “Little is said about the company owner who locked up workers’, Mdladlana said this week 'Instead, It is the Department of Labour that must answer to all this.' Well, the factory owner has been arrested on charges of culpable homicide. There the law will run its course. But who is responsible for the department's investigations backlog of some 5 000 work-related accidents, including 700 fatalities? When this mampara promises swift action – out of respect to the "safety of our people at work" - we can only hope that it means his swift resignation’.

Did I hear resignation? What’s that? Oh yes the thing that honourable government officials do in other democratic countries when they are caught stealing, lying, cheating, sleeping around or lose the public's trust ? Let’s face it. Our labour – and other - ministers have the staying power of ..…. a national police commissioner with shady friends or even another a lesser important police chief recently photographed in a car wreck! Power can be so intoxicating.

I really am cleaning out my office. I have so many cold case files. Fatal workplace incidents, some partly investigated by DoL as far back as 1996. Many others that seem to have just evaporated during DoL’s OHS slide into the abyss. Dare I throw the files away lest DoL or the future National Occupational Health & Safety Authority decide to complete the investigation? What if someone decides that justice will only really be served if Mr. Nkosi’s death in a manhole seven years was actually investigated. And I can go on. In have a list just of my own cold cases. Imagine how many there must be out there. So boast Mr. Minister about your achievements. Relatives, friends, employers need closure in these matters and your department has failed them.

I stumbled upon this article during the clean up. Read it for a giggle.  It appeared in the Finance Week of 1987 shortly after Klass Looch Associates was launched. It also serves to show that I have been around forever. To think that the occupational safety court in 1986 helped the state’s coffers to the tune of a whopping R90 000 in one whole year while the proposed maximum fine in terms of the draft National Occupational Health & Safety Bill for one offence will be R1 million.  

Getting a handle on safety. Finance Week. 25 June 1987.

‘Employers have yet to feel the full force of the Machinery & Occupational

Safety Act which three years ago superseded the Factories Act. So warn two former occupational safety court prosecutors Michael Klass and Raynard Looch. They have set up a consultancy to advise employers on complying with the Act's requirements.

Last year convictions in Johannesburg's occupational safety court led

to fines of more than R90 000, with a conviction rate at 90% of cases heard.

They reckon this is small beer. Though the court can impose fines of up to

R4 000 or 24 months in jail or both, maximum fine on admission of guilt is

R300 for each contravention. Looch points out the fines are not the only consequence of not complying with the Act: "Employers can be fined repeatedly for contraventions of the Act, and this could eventually result in closure of the

workplace and extensive prosecution for non-compliance." Klass adds that if

the inspector identifies a dangerous activity" in the workplace, and this activity

is the main business being conducted there, the workplace can be closed

down. But there has been some reluctance to come down hard on offenders.

Looch says the court has been hesitant about using the full powers available to

it. "This will eventually change," he is convinced. And policing has been poor. For instance, only the Transvaal has a special court. "Policing is starting to improve,

partly because of union pressure," avows Klass. An inspectorate under the

control of the Department of Manpower has been established to police the Act.

It is wider than the Factories Act since covers workplaces other than factories. But it has not necessarily been welcomed by the unions. A criticism of the Act is that it requires safety committees to be set up, but with worker representatives appointed by management. "Worker representatives should be elected," Klass agrees. While he is at pains to state that the Act is adequate, he stresses the consultancy does not merely offer avoidance of prosecution: "Fulfilling requirements of the Act will help prevent accidents." It's in employers' interests to jack up safety, not only for legal reasons but as an aid to better productivity and industrial relations. Unions have increasingly become aware of occupational safety as a labour issue. ”There is

a perception among them that SA businessmen are not as concerned with

safety as with profits," Klass feels. "Management must show its commitment to safety."

You can download the original article by clicking here. How young we were. Those were the days when we had a real Chief Inspector in the person of Manie Mulder and employers feared the OHS law enforcement agencies. And if you really are bored you can check out my office and dogs here.

Other newsworthy articles.

Safety violations exposed by labour blitz. M & G of 8 March 2007. 'Fifty out of 85 construction employers were found to be violating workplace safety regulations during an on-site crackdown by labour inspectors in the Eastern Cape, the Labour Department said on Wednesday. Department spokesperson Zolisa Sigabi said seven construction sites had been shut down and an additional 48 contravention notices were served. The notices were served to 50 of 85 employers visited on site in Mthatha, East London, Queenstown and Port Elizabeth in the first two days of a five-day inspection blitz, which started on Monday. "All nine provinces are currently conducting inspections in the construction industry -- these are specifically to do with occupational health and safety." Employers were randomly chosen and not informed of the inspections, Sigabi said. The contravention notices were served for minor violations in which employers were given 30 and 60 days to take corrective action. Operations had been shut down where employers were served with prohibition notices. These employers had to address the violations before being given the go-ahead by labour inspectors in order to continue operations, Sigabi said. On Tuesday Labour Minister Membathisi Mdladlana led a similar operation in the Western Cape, where a contractor was cautioned for contravening various Occupational Health and Safety regulations. Sigabi said disregard of workplace safety measures had continued to be a trend as the labour inspectors went on the surprise inspections. Increased vigilance against non-compliance with Occupational Health and Safety regulations was needed with 2010 World Cup preparations putting the construction industry under rising pressure, she said'.

Labour Minister's early morning blitz surprises cape contractor. DoL. 6 March 2007.

Employers in the construction industry have been warned to step up their management of sub-contractors to protect their image. Labour Minister Membathisi Mdladlana sounded the warning during a blitz inspection at the Berg Water Project in Franschhoek in the Western Cape today (Tuesday). Minister Mdladlana noted that contraventions of occupational health and safety regulations in the sector were largely caused by sub-contractors, who were giving the companies and the country at large a bad image. The Minister cited incidents at car manufacturer VW in the Eastern Cape, and Sasol plants as examples of poor management of sub-contractors. This year alone, more than 300 workplace injuries, including fatalities have been recorded in the construction industry. "As chairman of the International Labour Organisation, I was accused of doing nothing while people were dying or getting injured due to work-related accidents. This is damaging our name as the country," the Minister said. The Berg Water Project is a joint venture with Grinaker-LTA, Group Five, Wilson Bayly Holmes-Ovcon ltd (WBHO) and WCEC. The project cost more than R640 million and employs 1 100 people on site. During the inspection the Minister and his team found inadequate hand rail and protective barriers, while there were no diagonal bracing on the scaffolds. They ordered a risk assessment performance for the hanging scaffold, electrical crossing power lines, radius of tower cranes and their intersections. Improper use of safety harnesses and the unsafe behaviour of workers were also cautioned. Employers were served with a 30-day contravention notice to correct the contraventions or face action’.

Labour department to probe shelf collapse. IOL of 26 February 2007. 'The department of labour is investigating the cause of a shelf collapse at a cold storage facility in Johannesburg during which a worker was seriously injured last week. Spokesperson Zolisa Sigabi said on Sunday that 12 others also suffered injuries when they rushed to help their colleague who was trapped under 200 tons of refrigerated meat. The incident happened on Friday at QKV Cold Storage in City Deep, she said. "On inspection, labour inspectors found there were about 200 tons of meat inside when the shelves collapsed." Sigabi said the department would hold the employer to account if any of the Occupational Health and Safety Regulations had been contravened'.