The health minister has proposed draft legislation for a new compensation system for miners who contract lung diseases on the job. Picture: Sunday Times
Health minister Aaron Motsoaledi has proposed replacing South Africa’s apartheid-era laws for compensating miners who contract lung diseases with new legislation that includes potentially controversial measures to protect companies from class action lawsuits.
While the draft Compensation for Occupational Diseases in Controlled Mines and Controlled Works Bill has been positioned by one of its chief architects as offering a better deal for workers, the law firm that won a historic class action lawsuit for gold miners with silicosis said it drastically erodes their rights. The bill was approved by the cabinet in September and released for public comment last week. Interested parties have three months to provide input.
“It’s insane. It’s putting the liability squarely on the workers’ shoulders,” said Richard Spoor, who spearheaded a R5bn silicosis class action lawsuit against gold mining companies, and is now taking aim at coal mining companies on behalf of miners and local communities affected by lung diseases.
Section 35 of the bill prohibits workers, former workers or their dependants from taking civil action against the owners of controlled mines or works to claim damages for occupational diseases. Controlled works include smelters, refineries and beneficiation plants.
“I am deeply suspicious about this [bill]. It is not improving the system, there is no integration with existing [mine] surveillance and occupational health legislation, and now we have immunity [for employers]. I don’t think workers are getting a fair shake,” said Spoor.
But the former compensation commissioner for occupational diseases Barry Kistnasamy, who played a central role in drafting the proposed legislation, said it introduced a new and better system for compensating miners sickened by workplace hazards such as dust and radiation.
“It changes the face of 150 years of mining. This bill brings social justice and redress,” he said.
The bill’s introduction of a “no fault” compensation system for occupational lung diseases was in line with good practice in social protection systems and should prevent future class action lawsuits, he said.
Trade union federation Cosatu said the clause prohibiting class action suits should be seen in the context of the social compact between business and labour, and was in exchange for improved health and safety measures and greater benefits for workers.
“We will subject this to interrogation at Nedlac to ensure workers are not shortchanged and are in fact fully protected,” said Cosatu parliamentary co-ordinator Matthew Parks.
Similar measures were contained in the Compensation for Occupational Injuries and Diseases Act, overseen by the department of employment and labour, he said.
The bill repeals the Occupational Diseases in Mines and Works Act of 1973, which was modelled on the 1912 Miners Phthisis Act and until 1993 discriminated against black miners, said Kistnasamy, who retired at end-October. He was appointed commissioner in 2012 to turn around the troubled Mines and Works Compensation Fund, which had at that stage received a series of disclaimers from the auditor-general.
The auditor-general has given the fund an unqualified audit opinion with findings for the past three years.
The scheme proposed by the bill enhances the services available to present and former workers and establishes penalties for mines and works that expose miners to hazards, said Kistnasamy.
It paves the way for the establishment of a Controlled Mines and Controlled Works Compensation Authority that will oversee medical examinations and determine whether former miners are eligible for lump sum payouts in compensation for lung diseases caused by occupational hazards. The authority will oversee a fund that will pay compensation to eligible former miners, or if they have died and been awarded posthumously, to their beneficiaries. The authority will be overseen by a 13-member board appointed by the health minister.