Work­men’s Com­pen­sa­tion: Who is eli­gi­ble?

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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.

Adv. Karabo o Tl­hoeli

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