Dear Folks

I hope this mail finds you all well and busy. My working year kicked off on 2 May as usual and will, as usual, end in November. Perhaps it’s just my line of work but all hell breaks out at this time of the year. Civil servants – or better put – public servants on whom I depend to some extent to generate work for me, seem to go into a state of hibernation from December to May. I mean why get down to business when there are so many holidays and long weekends? The department of Labour in particular, whom many of us feel is run by the living dead,  is always galvanised into action in the month of May, the traditional Worker Month. Speeches are made, hollow threats abound, contradictory OHS compliance levels are revealed – depending on the prevailing mood of the author. Politicians tend to get hysterical while  public servants tend to have a more tempered approach.  Being a politician, the Honourable Minister of Labour has a penchant for making propaganda. His favourite audience is naturally the trade unions whom he routinely exhorts to join his tenacious department in help bringing delinquent employers to book.  I was particularly tickled by his speech on 4 May 2007 which marked the World day for Safety and Health at Work. While claiming five years of rising successes by DoL – and he must have been referring to OHS – I still think he is living in laalaa land. Those of us who are routinely involved with the OHS Inspection & Enforcement side of things know differently. We still encounter lethargy, inexperience and incompetence. I had a very sobering experience recently after a construction company called upon me to give them a worst case scenario legal opinion after a fatal accident. Without venturing into the realms of the unethical, the facts as presented to me were that a hatchway had been inadequately barricaded and that a new procured labourer (5 days on the job) had fallen to his death through this opening. Apparently a DoL inspector visited the site and left without serving any notices or indeed saying much. (I would have at least expected a Prohibition Notice). At our one-and-only meeting I mentioned the possibility of a culpable homicide charge since they seemed willing to admit the inadequate barricading. I mentioned charges under section 8 of the OHS Act could be brought and charges in terms of the construction regulations. The atmosphere immediately turned frosty and I was left in no doubt that the directors of this company thought I was a scare mongerer out to scare them straight into my bank account! In fact one rude individual walked out of the meeting while murmuring some insult to me. My point. Through the broken-down OHS system I too seem to have lost my credibility. When politicians churn out the same propaganda at every turn and it turns out to be just that – propaganda – everyone is the loser. These individuals at the construction company obviously felt that their (in)action did not deserve punishment. I believe one of their client’s SHE advisors told them not to worry as he knew the system.  Even my contacts in the OHS courts tell me that have all but given up on DoL. But all this does not mean we can rest on a laurels. Accidents cost. Lives are shattered. It would be condescending to preach to you. The new DoL approach appears to be that,  provided compensation is forthcoming, the matter is resolved. Why have OHS criminal statutes if you cannot enforce it? Why have provisions for increased compensation to victims where employers are found to be negligent if no-one is going to enforce it? Not that you good folk need the spectre of punishment looming over your heads in order to be cajoled into compliance. But there are employers out there, and hell the Minister reminds us enough of them, who must see justice being done in the form of punishment for it to act as a deterrent. But hot air ain’t gunna solve the problem!

But I am not just a prophet of doom. I was extremely impressed by the acting Chief Inspector’s sterling address at the DoL Conference last October, the frank admissions made about DoL’s OHS challenges and recently, by the DoL Manager's, Civil, address to the Institute of Safety Management in Durban. There he enthusiastically outlined the proposed changes to the construction regulations which may be promulgated in August and he has an impressive knowledge of the subject.

The articles below illustrate the points raised by me. You will notice that the Minister does appear to have his facts wrong when he states "We should ensure that in every workplace there is a health and safety committee. If you do not have it, how are you going to ensure that accidents don't happen? Who is going to be our eyes and ears if we do not have health and safety committees?" he asked. The Minister said: "For every 100 workers, we need one health and safety representative as failure to do so would warrant a red card to the offending party." Now, unless he is focusing solely on shops and offices, the law requires one health and safety representative for every 50 employees at a factory or construction environment and, of course, if you have less than 20 employees, you are not even legally obliged to appoint health and safety representatives. At a rally in Rustenburg on 4 May 2007 the Minister repeated his call to workers to refuse to work in dangerous conditions and called on employers to provide them with protective clothing and equipment. (Section 14© of the OHS Act does imply that workers have the right to refuse to obey an unlawful order, for example to work in dangerous conditions and section 23 of the MHS Act explicitly affords workers the right to leave a dangerous workplace. This explicit right is also contained in the National Occupational Health & Safety draft Bill). Franklin Muchiri, an International Labour Organisation (ILO) specialist said 2,2 million workers die every year globally due to workplace accidents. He said more than 270 million workers get injured worldwide due to the same phenomenon. This, according to him, costs four percent in lost gross domestic product. Terry Bell, champion of the unions, writes in the Business Report of 13 April 2007 that when the Minister of Safety and Security met with the unions they reached an agreement on how unions and communities should co-operate to combat crime but that this agreement failed to address one of the most widespread and dangerous crimes in South Africa since it falls under the jurisdiction of the understaffed department of labour. It is the crime of providing unsafe, dangerous and often lethal conditions in which many workers have to labour. He states that although accurate statistics are impossible to come by, it seems a fact that more people are injured, maimed and killed in occupational accidents than those who are victims of car hijackings or bank and cash-in-transit heists.

I say to DoL recruit more and better inspectors, pay them a competitive salary in order to keep them from being poached by the private sector, outsource the OHS policing task (again) if necessary, stop sending inspectors to Cuba for training - unless it’s to learn how to rumba, stop politicking, arrange a lekgotla with the Department of Justice and get (functioning) specialised OHS courts in all provinces, communicate with employers via the internet (we want the Inspectors reports post an incident e-mailed to us because it’s our right) and get the new National Occupational Health & Safety Bill promulgated sooner than later.

I maintain that one of the best ways to train inspectors is to use the joint inquiry / inquest provisions in both the OHS and MHS Acts since the magistrate will lead the proceeding while the inspector acts as an assessor. Naturally this only applies to fatal workplace accidents. If you want to use OHS legislation as a deterrent do it properly by affording workers the same rights as a perlemoen! Yes folks, you get a steeper fine for poaching sea snails than injuring or killing workers! The Green Scorpions seem to have more teeth than OHS inspectors. Hell you even get a steeper sentence for calling a woman’s (large) breasts watermelons! (It’s called crimen iniuria and last week a woman got a 3 year suspended sentence for committing such a heinous crime). 

I have copied and pasted some articles below which illustrate some of the points that I have made above. They also provide some useful compliance statistics on recent DoL “raids’. COSATU is apparently preparing to argue for legislation requiring union health and safety officers – as opposed to health and safety representatives (?) – to be appointed for every workplace. This, they argue, will dramatically reduce the number of workplace incidents where research in the UK has shown that their presence reduced the number of work days lost by as much as 616 000. Our OHS legislation does not explicitly provide for union health and safety representatives. However they do require negotiation and consultation with unions (Collective Agreements) regarding the appointment of health and safety representatives. In my view the unions have not fully embraced this process and the same results could be achieved without new legislation. Many employers in South Africa in fact do have union health and safety representatives which surely was the intention in the first place.   

The attendance figures for my June OHS Legislation Workshops are coming along nicely. I may have to close bookings for Gauteng soon but still need some bums in Cape Town and Durban. Come along it should be fun. Early Bird bookings close in three days time. I have some surprises in store.

Minister of Labour’s Speech on World Day for Safety and Health at Work. 4 May 2007.

Today, we are gathered to celebrate the World Day for Safety and Health at Work. This is not only the time to collaborate but also to remember and honour those who continue to face challenges of health and safety at workplaces. We are mindful that many of them will not return home and that those that will return will be maimed or categorised as terminally ill. Some will be lucky or in a fortunate position to walk away with their lives. There are those employers who will continue to "discard" these unfortunate workers without conscience and without any consideration for their moral obligations.

We salute those workers who have had to pay with their lives and we remember those families who today, will not have the pleasure of a mother or father at home as a result of unsafe and unhealthy workplaces. The International Labour Organisation (ILO) theme for 2007 World Health and Safety Day is "Safe and Healthy workplaces - making decent work a reality".

For South Africa, this year signifies the celebration of five years of rising successes marked by what the Department of Labour, together with its social partners, have achieved:

1. Signing of the Occupational Health and Safety (OHS) Accord in 2002 saw labour, business and government coming together with the realisation that no "one" entity would succeed in fighting this fight without the other. Each constituency committed itself to working with others to attain a common goal–health and safe workplaces.

2. The Programme for the elimination of silicosis by the year 2030 was launched in 2004. South Africa and a number of other countries around the world have joined the ILO to face an on-going challenge in eliminating silicosis at the workplace. In order to deal with this issue effectively, South Africa launched the programme for the elimination of silicosis and to that end we must ensure that we reach the commitment of reducing the prevalence of silicosis by 2015 and elimination of silicosis at workplaces by 2030 or earlier.

3. National and provincial occupational health and safety fora have been running for the last couple of years and were developed to provide labour and business with a platform to deal with common issues that needed to be addressed.

4. An OHS Conference hosted in October in Boksburg last year saw over 500 delegates in attendance. The sole purpose of the conference was to allow stakeholders to contribute to the on-going programmes currently underway in my Department. Some of the resolutions of that conference included:
* the establishment of industrial forums
* training of inspectors and workers.

5 High risk sector incident reduction programme has been a key element in the reduction of incidents over the last year.

The challenge though that my Department is faced with is under-reporting of incidents. This not only has an impact on the statistics kept by the department but that we are not in a position to assist employers to prevent similar incidents from taking place at that particular workplace again. Monitoring of the impact of the legislation also becomes difficult. I therefore wish to remind all of us here of our on-going commitment to ensuring compliance with legislation by reporting incidents in line with prescribed legislation.

6. Increased use of blitzes on specific sectors. This year we will continue our focus on the construction sector as we did in 2004. My department also blitzed two other problematic sectors that are also showing signs of not dealing effectively with incidents at their workplaces. We will continue our focus on this and other sectors until we make that much needed break through. I have indicated in the past that one death at any workplace is one death too many.

As we are all aware, at this moment in time our country is undergoing a tremendous boom in the construction sector with the coming of the Gautrain and the 2010 Soccer World Cup. Dams are being built in certain parts of our country in order to address our natural resources and its scarcity. There are also tremendous growth areas currently underway in different parts of our country. With this pressure being placed on our resources, there is little or no room for error as the margins are tight. Workers will be required to work overtime when things do not go according to schedule and this naturally comes with its own set of challenges.

Globally construction seem to be a growing sector but also a problematic sector in terms of health and safety and as community in South Africa, we need to make a difference in this sector to promote health and safety. Decent work is safe work and it involves:
* opportunities for work that is productive and delivers a fair income
* security in the workplace and social protection
* better prospects for personal development and social integration
* freedom for people to express their concerns, organise and participate in the decisions that affect their lives
* equality for opportunity and treatment for all women and men.

Ladies and gentlemen, the ILO estimates that over two million workers die each year from work-related accidents and diseases and globally this figure appears to be on the increase. In 2005, R168 million was paid for claims received from construction sector only. In 2006, R201 million was paid for claims received from the construction sector. This represents 9,4 percent of all claims paid out by the Compensation Commissioner. During the 2005/06 financial year the total number of fatal incidents were reduced by 3,8 percent. Unfortunately though, the incident rate in the construction sector for 11 months of last year stood at over 130 fatalities. It is evident then that the economic cost is high without referring to the social impact. This money could be used to improve the infrastructure and other social issues in this country of ours.

My Department has already considered its options going forward in the light of the boom in the construction sector and how to deal effectively with the challenges that this sector poses. Should the current economic growth continue in this sector then we could see a spiral upwards in incidents unless we as a collective arrest it. We have begun a process of ensuring that our inspectors are ready to meet the future needs in an ongoing programme and to that end we have trained about 60 inspectors in construction recently. This programme will continue into the future as we seek to provide those of you in the construction sector with the appropriate services that you require.

Ladies and gentlemen, the South African government has ratified all ILO conventions related to principles and rights at work committing ourselves to upholding the basic human values-that are vital to our social and economic freedom, viz. freedom of association and the right to collective bargaining etc. We are bound by the ILO constitution to promote and realise in good faith the principles concerning fundamental rights. ILO member states adopted a global Occupational Safety and Health strategy in 2003, "to promote a preventative approach to reduce work related accidents and diseases".

ILO instruments such as guidelines play a vital role in the promotion of occupational health and safety at work. While the Department of Labour has committed itself to using these invaluable documents in order to promote occupational health and safety my staff are also in the process of developing guidelines that speak to our local conditions and has already developed its own guidelines for the construction sector amongst others. The inspection enforcement service strategy of the Department of Labour is being reviewed to allow us to deliver appropriate services to our clients and to ensure a higher level of compliance is achieved.

My inspectors will also take on an additional role over the next couple of years to ensure that we as a collective join forces in tackling the challenge that we have in dealing with the scourge that continues to ravage our country and to this end they will be trained on HIV/AIDS at the workplace in order to assist employers and labour.

In conclusion, we continue to look to you for that much needed support and will look forward to working with you and listening to you as the workers and employers of this beautiful country of ours. I urge all workers, employers, to actively participate in securing a safe and healthy working environment through a system of defined rights, responsibilities and duties where the principle of prevention is accorded the highest priority by treating the symptoms first'.

Compliance with Occupational Health and Safety (OHS) improves albeit at a snail's pace. DoL. 3 May 2007. 'Results of countrywide blitz inspections conducted by the Department of Labour have shown that the greater Johannesburg region leads the pack in non-compliance with occupational health and safety. The campaign was a forerunner to the all important international occupational health and safety day due to be addressed by Labour Minister Membathisi Mdladlana in Rustenburg tomorrow (Friday). Among provinces visited were KwaZulu- Natal, Free State, Western Cape and Gauteng North. Out of the 412 companies visited in greater Johannesburg, 293 were found to be non-compliant with health and safety standards, Zolisa Sigabi, departmental spokesperson said. Of the 103 companies inspected in the Free State, 38 failed to meet the expected standards. "The campaign is part of the department's effort to make this year a period of inspection and enforcement. Those that were served with non-compliance orders will be expected to address the mistakes that were identified failing which our inspectors will have no option but to recommend prosecution," Sigabi said. In KwaZulu-Natal, inspectors served 33 non-compliance notices out of 76 sites visited. A total of 28 notices were served out of 51 companies checked in the greater Pretoria region. Western Cape got away with the least number of contravention notices with only five companies out of 198 surveyed. Common areas of concern to inspectors were the lack of health and safety plans, unavailability of risk assessment on sites, failure by management to train workers in health and safety issues and workers not being provided with protective clothing. Sigabi said blitz inspections will become a permanent feature of the department's drive to protect vulnerable workers'.

Unreported workplace accidents a misery Minister tells safety day rally. DoL. 4 May 2007. 'The under-reportage of workplace accidents is the greatest challenge facing the Department of Labour, Labour Minister Membathisi Mdladlana told a rally in Rustenburg, North West province today (Friday). Minister Mdladlana was addressing a gathering to mark the World Day for Safety and Health at Work in the town's Olympia Stadium. "The battle for ensuring that all accidents occurring at work are reported must not be taken lightly. I therefore call on unions to join me in ensuring that we achieve that goal." "We should ensure that in every workplace there is a health and safety committee. If you do not have it, how are you going to ensure that accidents don't happen? Who is going to be our eyes and ears if we do not have health and safety committees?" he asked. The Minister said: "For every 100 workers, we need one health and safety representative as failure to do so would warrant a red card to the offending party." He urged workers to refuse to work in dangerous conditions. "Workers are entitled to be provided with protective clothing and equipment." The Minister said he deplored the continued harassment of the Department's inspectors by some employers. Franklin Muchiri, International Labour Organisation (ILO) specialist said 2,2 million workers die every year globally due to workplace accidents. He said more than 270 million workers get injured worldwide due to the same phenomenon. This, according to him, costs four percent in lost gross domestic product. Vick van Vuuren of Business Unity South Africa said National Economic and Development and Labour Council (NEDLAC) social partners should intensify the health and safety accord signed in 2002 which is aimed at ensuring that health and safety in the workplace "becomes a way of life." Speakers from the National Council of Trade Unions, the Federation of Trade Unions of South Africa and the Congress of South African Trade Unions (Cosatu) recommitted themselves to the ILO convention of ensuring healthy and safe working environment as part of the decent work agenda.

Department inspects dangerous workplaces. IOL of 11 May 2007. 'The department of labour is to intensify the inspection of sectors where high workplace injuries and fatalities are being reported. "National roving and blitz inspections will make sure that an inspector walks into a workplace at anytime. Our visibility will be at a high level," Labour Director-General Vanguard Mkosana said. He was speaking at the 3rd KwaZulu-Natal Workers' Parliament in Newcastle on Thursday. Mkosana said day-to-day statistics compiled by the department revealed that the iron and steel, construction, agriculture, and food, drink and beverage sectors were the four main contributors to the 47 percent of reported workplace injuries and fatalities countrywide. He urged the hundreds of delegates from the three major trade union federations - the Congress of SA Trade Union (Cosatu), the National Council of Trade Unions (Nactu), and the Federation of Unions of South Africa (Fedusa) - to form health and safety committees in their workplaces. He also made a call to all employees to become whistle-blowers for the department's inspectors. "We want clean workplaces. We do not want fatalities and accidents," he said. Through its efforts, the department said, it had reduced the fatality rate by 18,4 percent nationally in 2006 and 2007 - while out of 156 483 inspections conducted 119 988 (78 percent) employers were found to be complying. The department had also spearheaded initiatives such as the signing of the OHS (Occupational Health and Safety) Accord, the establishment of forums to deal with eliminating the silicosis disease in the workplace, and regional electrical safety'.

Compliance with Occupational Health and Safety (OHS) improves albeit at a snail's pace. DoL. 3 May 2007. 'Results of countrywide blitz inspections conducted by the Department of Labour have shown that the greater Johannesburg region leads the pack in non-compliance with occupational health and safety. The campaign was a forerunner to the all important international occupational health and safety day due to be addressed by Labour Minister Membathisi Mdladlana in Rustenburg tomorrow (Friday). Among provinces visited were KwaZulu- Natal, Free State, Western Cape and Gauteng North. Out of the 412 companies visited in greater Johannesburg, 293 were found to be non-compliant with health and safety standards, Zolisa Sigabi, departmental spokesperson said. Of the 103 companies inspected in the Free State, 38 failed to meet the expected standards. "The campaign is part of the department's effort to make this year a period of inspection and enforcement. Those that were served with non-compliance orders will be expected to address the mistakes that were identified failing which our inspectors will have no option but to recommend prosecution," Sigabi said. In KwaZulu-Natal, inspectors served 33 non-compliance notices out of 76 sites visited. A total of 28 notices were served out of 51 companies checked in the greater Pretoria region. Western Cape got away with the least number of contravention notices with only five companies out of 198 surveyed. Common areas of concern to inspectors were the lack of health and safety plans, unavailability of risk assessment on sites, failure by management to train workers in health and safety issues and workers not being provided with protective clothing. Sigabi said blitz inspections will become a permanent feature of the department's drive to protect vulnerable workers'.

Employer faces criminal charges over Kimberley factory explosion. DoL. 3 May 2007. 'The owner of a Kimberley factory in the Northern Cape could soon face criminal charges for the injuries suffered by his employees during an explosion at his factory last month. The accident occurred during an explosion at the Frame and Door Factory in the city's industrial area, which resulted in serious injuries to three workers, one of whom is still fighting for his life in hospital. The Labour Department, whose officials conducted a probe soon after ordering a halt to all the factory's operations, today released preliminary findings and recommendations for the owner to be prosecuted for gross negligence and contravention of the Occupational Health and Safety Act. The findings based on interviews of the two victims; management, supervisor and a union shop steward indicate that the explosion was caused by the ignition of a dip tank by welding sparks. Welding work was done on a conveyor chain below which was an open dip tank that contained flammable substances such as paint mixed with thinners. The dip tank was not well covered and a welding spark ignited it, causing the explosion. Investigators also found that the moving parts of the conveyor chain were only covered after the explosion. There had been no supervision over control of the conveyor, and no proper communication system between the controller and other users of the conveyor, while the point of control was easily accessible to any employee or any other persons. At the time of the accident, the factory owner was still under investigation having been issued with a contravention notice on 30 March 2006 for flouting a section of the same Occupational Health and Safety Act. He was initially given two months to put his house in order but an extension had been granted at his request. The recommendations for prosecution will be referred to the Office of the Public Prosecutor before the end of the first week of May 2007'.

Potentially lethal work conditions are another form of crime. By Terry Bell. Busrep of 13 April 2007. 'When the trade union federations met with safety and security minister Charles Nqakula this week, they reached agreement on how the unions and communities should co-operate to combat crime. However, one of the most widespread and dangerous crimes in South Africa was not mentioned at this meeting, since it falls under the jurisdiction of the department of labour. It is the crime of providing unsafe, dangerous and often lethal conditions in which many workers have to labour. Although accurate statistics are impossible to come by, it seems a fact that more people are injured, maimed and killed in occupational accidents than those who are victims of car hijackings or bank and cash-in-transit heists. Labour Research Services researcher Trenton Elsley says: "Hard data is very difficult to find, but there is a lot of anecdotal evidence that indicates that thousands of workers fall victim to occupational accidents each year."  This is certainly borne out by the thousands of claims to the Workmen's Compensation Commission. And these are generally seen as only a fraction of the cases of occupational pain, suffering and death. Then there are the occupational diseases, often related to dust and fibres such as asbestos, some of which take many years to manifest and against which precautions can - but often are not - taken. Says a teacher who worked in Britain as an exile in the 1980s: "We spotted asbestos in the roof of the school and the union health and safety representative had the children and staff out of there immediately. We only went back when it was removed." She adds: "I often wonder how safe, in health and general environmental terms, are many of our schools." However, outside of the mining industry, where union health and safety officers are a feature of the workplace, there is no other legal provision for similar officers in other sectors. The unions argue that the presence of National Union of Mineworkers health and safety officers in potentially the most dangerous job on earth has clearly proved its worth: it is probable that many more workers are now injured or even killed each year in the construction industry than in mining. With the much-vaunted building boom for the 2010 soccer World Cup now having begun on the back of an already surging construction sector, the prospect of still more injuries and deaths looms. Part of the problem is the use of an army of unskilled, inexperienced workers in a sector where casualisation is commonplace. This applies mainly to smaller contractors, who are often desperate to cut costs in an intensely competitive market. But it is not only the construction industry where poor, dangerous and sometimes lethal conditions apply. In a recent random survey by the labour department in the Eastern Cape, 80 workplaces were visited and 53 of them were found not to comply with basic health and safety regulations. Two weeks ago, a ministerial inspection of several Cape Town construction sites resulted in two of them being shut down as dangerous, and notices being issued to several others to install essential safety measures within 14 days. But while such "raids", usually by an understaffed labour department inspectorate, sometimes result in media coverage, they barely scratch the surface of the problem. "It's really just a public relations exercise; mostly form and little substance," admits a labour department official. Cosatu health and safety policy co-ordinator Jacqueline Mpolokeng-Bodibe says: "Construction in particular is a very difficult sector to monitor because of the degree of casualisation, and the labour inspectorate cannot cope on its own." It is for this reason that the unions are preparing to argue that legislation be passed to allow for union health and safety officers in every workplace. The matter will come before the tripartite National Economic Development and Labour Council (Nedlac) later this year, as part of a review of the Occupational Health and Safety Act. At the Nedlac discussions the unions will be able to point to research, published in Britain last month, showing that, at a conservative estimate, the work of trade union safety representatives reduced the number of working days lost by as much as 616 000. Stirling University senior researcher Rory O'Neill, who conducted the survey, describes union health and safety officers as "life saving, disease preventing volunteers" whose work not only minimises dangers to workers but also saves healthcare and employer costs. However, the major problem listed by British health and safety officers was reluctance by many employers to allow them to do their jobs in what the unions see as a win-win situation. Dennis George, the general secretary of the Federation of Unions of SA, agrees that the same attitude is prevalent in South Africa, with many employers resenting what they consider to be interference by the unions. Says George: "But it is to the benefit of all parties that we have efficient, comprehensive and enforceable health and safety regulations in place." Notes Mpolokeng-Bodibe: "Failure to recognise this should be a serious crime."