Workmen’s Compensation: Who is eligible?
THE workers’ compensation system is a compromise between business and labour; a compromise that has benefits for both. The system provides workers with prompt injury, disease and disability benefits. It sets standards for employer liability and requires financial reserves for such liability, thus cushioning the economic effect of work injury and illness for the employer.
Workmen’s Compensation can be claimed under the Workmen’s Compensation Act of 1977. This Act provides guidelines for compensating injuries sustained and diseases contracted at the workplace. Section two of the above-mentioned Act describes a workman which is one of the key eligibility criteria for one to be able to claim under this Act.
It states a workman as “any person who has either before or after the commencement of this Act, entered into or works under a contract of service or apprenticeship with an employer whether by way of manual labour or otherwise, whether the contract is expressed or implied, is oral in writing, and whether the remuneration is calculated by time or by work done”.
From this read, the resounding words expressing eligibility are promising and give hope that everyone who works will be compensated for mishaps that may encroach them while at work. But what follows is the gloomy scenar- io which should not be left to continue because it leaves many of our workers vulnerable and not covered, which is contrary with International Labour Organisation (ILO) Convention 102 Social Security minimum standards.
Section 2 (2) of the Act expressly exempts the following persons from the definition of workman: (a) A person whose employment is of a casual nature and who is employed otherwise than for purpose of the employer’s wade. Or business, not being a person employed for the purpose of any game or recreation and engaged or purl through a club; (b) Outworker; (c) A domestic servant; (d) Any person whose services are rewarded in kind according to custom; (e) A member of the employer’s family dwelling in his house family. The Act further gives the Minister of Labour and Employment Powers to determine who might not be a workman under (f); wherein it is stated “any class of person who the Minister may by notice declare not to be workmen for the purpose of this Act”.
One of the highlighted incoherencies of our general labour laws is the dichotomized application of the law between public and private sector workers, commonly known as dual system, that is civil servants having one set of rules and private sector having another. Section two of Workmen’s Compensation Act of 1977 is an embodiment of lack of coverage and outdatedness of our labour market regulations which should provoke us into modernizing our laws and addresses the social injustices in our country. Section 4 of this Act is another criteria-setting section.
For instance, Section 4(1) stipulates that the Act applies to “workmen employed by the Government in the same way and to the same extent as if the employer were a private person”.
However, section 4 (1) applies to the exclusion of the armed forces; thus, the Lesotho Mounted Police or the Prison Services. This is stat- ed under section 4(2) (a). It is awkward that National Security Services (NSS) as another arm of our security services is not expressly stated therein.
Section 4(2)(b) further excludes another category of workmen, it states that “a workman in the service of the Government where in consequence of injury received by him the discharge if his duties, a pension or gratuity is payable to him or, in the case of his death, to any dependants under any Act providing for the grant of such pension or gratuity”.
Consequentially, the application of this part of the Act means that civil servants are not covered under this Act, that is to the extent that they are pensionable or gratuity is payable to them or their dependants.
In practice, there is a challenge at least on the part of our sister Ministry responsible for Public Service because there were cases where civil servants had lodged claims through Workmen’s Compensation office amidst section 4 of this Act. This says therefore, we have to collaborate as Government to find a common ground on how civil servants should be compensated for work injuries or occupational diseases.
It is important to clarify that the Workmen’s Compensation Act of 1977 has been in application for almost 42 years now and therefore cannot address current challenges in the workplace. Consequently, there is an urgent need for its review in order to provide adequate cover to workers. The good news is, the Ministry of Labour and Employment is already working on Lesotho Labour Policy as a new dawn towards one labour law and one labour market which in turn will help address amongst others the dichotomized labour system which has crippled Lesotho’s labour market performance.
In a nutshell, our labour laws should cover every worker and apply the same standards irrespective of class or category of employees. This is much so in this era where the world is moving to extend coverage to the informal sector and the self-employed category of workers. The ILO Recommendation 204 - Transition from Informal to Formal Economy is a classic example of these efforts.