Support for domestic workers included in bill
Amendment to compensation act proposes making them equals in the workplace
DURING periods in our history such as Covid-19, occupational injuries and diseases become more important.
This fund for workers in South Africa is vital in many aspects. In particular, every employer should ensure they have carefully registered all their employees through the SA Revenue Service portal to ensure they have a certificate of compliance which would enable them to gain all the benefits from the occupational injuries and diseases legislation.
This legislation to a large degree gives the employer indemnity and proper protection against claims for any injuries and diseases suffered through the workplace.
On August 27, the Department of Employment and Labour published a document for the Compensation for Occupational Injuries and Diseases Amendment Bill 2020.
For almost 20 years I have been complaining about the fact that domestic workers were specifically excluded from the legislation. The previous legislation was enacted under an apartheid government and specifically excluded “a domestic employee employed as such in a private household”.
This amendment specifically reverses that exclusion and will eventually include domestic workers as equals in the workplace. Unfortunately, the Labour Ministry has been reluctant for almost two decades to include domestic workers under the legislation.
It has been difficult to explain this to domestic workers who have regularly asked me why they could not claim for injuries incurred at work. Many employers also found this incredibly unreasonable and unfair and I have advised people to take out insurance for any injuries their domestic workers might have incurred in the private household.
I have also tried to get many employers to take out private medical aid for domestic workers so that if something occurs they would be able to claim from the private medical aid instead of having to pay out each time the domestic worker was injured. Often insurance and private medical aid are prohibitive and many employers have said they would rather take their chances.
We are still not sure when these amendments will be passed into law and signed off by our president, so even now it might be useful to consider interim insurance for domestic workers.
There are many other changes to this legislation and, in particular, I refer to the following: Occupational diseases now include post-traumatic stress disorder and remuneration includes allowances, subsidies and other allowances as determined by the minister. The fund will pay even if the accident is attributable to the serious and wilful misconduct of the employee unless the accident results in serious disablement or the employee dies in consequence thereof.
For the amendments, the conveyance of an employee by or on behalf of the employer to or from his or her place of employment for his or her employment using any mode of transport in furtherance of the business of the employer shall be deemed to take place in the course of such employee’s employment.
In essence, an employee travelling to or from work and travelling for work would be covered. If, however, the employer carries on business entirely or chiefly outside the republic and that employee ordinarily is employed outside the republic and meets with an accident while temporarily employed in the republic, such employee shall not be entitled to compensation unless the employer has previously agreed with the commissioner such employee should be entitled to compensation.
In essence, if someone is employed to perform most functions outside the republic, that person might not be covered for an accident incurred in South Africa.
Once an accident has occurred and the employee has independently obtained a medical report at his or her own cost, the Commission may reimburse such medical expenses in full if the Commission has accepted the report.
Furthermore, there is a right to receive benefits in terms of the legislation for up to three years from the date of the accident. This used to be 12 months which proved to be too short a period. No person other than a legal practitioner as defined by the Legal Practice Act is entitled to any fees or remuneration in helping the employer with the employee obtain assistance.
Interestingly, monthly pension shall commence from the date on which a medical practitioner certifies that an employee has reached the maximum medical intervention. If the employee dies as a result of an occupational disease or injury caused by an accident, compensation shall be payable.
No employer may deduct from the earnings of an employee any amount or receive any amount from that employee to compensate the employer directly or indirectly. The employee has to show that the disease contracted has arisen out of and in the course of his or her employment.
This is a vital subsection in terms of which the commissioner may determine for Covid-19.