Although the Compensation for Occu- pational Injuries and Diseases, Rehab- ilitation and Reintegration draft Bill produced in August 2012, which proposes amendments to the Compensation for Occu-pational Injuries and Diseases Act (COIDA), is expected to be published before the end of the year, many of the amendments “are not preferable”.

This was noted by law firm ENSafrica mine and occupational health and safety director Willem le Roux at the Occupational Health and Safety seminar, held in Johannesburg last month and hosted in partnership with publishing house LexisNexis.

The draft Bill focuses on the rehabilitation and reintegration of injured employees in the workplace and those who have contracted a disease. The changes to the current Act include a change to Section 35(2), which indemnifies certain managerial employees against a claim for damages by an employee or any dependant of the employee, if the injury or disease falls under the Act and is work related.

The draft Bill proposes that Section 35(2) be removed, which can be detrimental to several classes of employees, such as man-agerial and human resource employees, as well as any engineer tasked to manage equipment and machinery. “These employees fulfil important tasks for the employer and should be indemnified,” stated Le Roux.

He suggested that there was no good reason to do away with this section and that, if anything, the indemnity of these employees should be extended, as this would enable them to do their job with more confidence and without fear of being held liable for claims for damages.

Also proposed to be amended is Section 81 of the draft Bill, which imposes an absolute obligation on the employer to rehabilitate and reintegrate injured employees or those who have contracted a disease back into the workplace, which entails supervision, evaluation and the provision of facilities, as well as the appointment of disability managers and case managers.

Le Roux said, while the obligation had merit for the employer and employees, such an obligation could potentially become unduly onerous, as the concept of ‘reasonable prac-ticability’ was overlooked, which might ulti-mately result in unintended consequences.

The draft Bill, also in Section 81, imposes an obligation on an employer not to dismiss an employee within 12 months “on the basis of incapacity as a result of injury or disease contracted on duty, unless the Compensation Fund determines otherwise”.

Le Roux, however, pointed out that the draft Bill is in conflict with the provisions of Section 210 of the Labour Relations Act, which deal with the dismissal of employees on the grounds of incapacity, and must prevail. The provision in the Bill is therefore invalid.

In terms of rehabilitation policy, Section 82 of the draft Bill states that an employer “who fails to comply with any of the obligations set out in Section 81 shall be liable to a penalty of 10% of the employer’s yearly return of earnings”.

Le Roux stated that this appeared to have been derived from the penalty provision in the Competition Act, which is there for a completely different reason – to punish com-panies that profited from uncompetitive conduct.

Extremely Onerous

He pointed out that the proposed provision was extremely onerous and would lead to the creation of a negative investment climate in the country, with concomitant adverse consequences.

Le Roux further suggested that, in cases of employers who were natural persons and citizens of South Africa, the proposed penalty might even contravene Section 22 of the Con-stitution, which allows for citizens to choose their trade, occupation or profession freely, subject to reasonable limitations, in line with Section 36 of the Constitution.

He added that even though the idea of granting the CEO of the Compensation Fund the power to impose fines instead of to resort to criminal prosecution, was, in principle, acceptable, the fines must be reasonable and the maximum amounts must be specified.

There is also an attempt to impose such onerous fines on the mining sector, in terms of proposed amendments, which have not yet been published.

“Again, this sends the wrong message to the investors not to invest in South Africa,” noted Le Roux.

Other amendments to the draft Bill include the proposed Section 76, which states that “an employer must establish and maintain a system of medical surveillance for all employees exposed to occupational injuries and disease”; Section 3, which proposes the establishment of the Compensation Fund as an independent juristic person; Section 38(1), which states that the Minister has power to suspend or withdraw the licence of a mutual association; and Sections 112 to 118, which refer to inspection and enforcement.

The draft Bill further proposes in Section 28 to reduce financial disclosure, which is required at present from the Compensation Board, by deleting the requirement that the director-general of the Department of Labour submit a copy of the balance sheets of the Compensation Board to the Minister and for the Minister to table such copies in Parliament within 30 days after receiving them.

At present, compensation is payable to an employee or the dependants of such person (in the event of death), if an accident is attributable to the employee’s serious and will-ful misconduct. In terms of Section 30 of the draft Bill, it is proposed to repeal this provision.

Le Roux stated that, in practice, the present provision had been of assistance in that an employer was relieved of the possible social or moral obligation in such an event to pay compensation to the employee or such person’s dependants.

At present, the employer shall for a period of not more than two years from the date of the accident or the start of the compensatable disease, pay the reasonable costs incurred by or on behalf of an employee in respect of medical aid necessitated by such accident or disease. The draft Bill proposes that this obligation be made indefinite.