ATC160225: Report of the Select Committee on Petitions and Executive Undertakings on the Hearing of the Coida Petition, held on 6 May 2015 At Parliament
REPORT OF THE SELECT COMMITTEE ON PETITIONS AND EXECUTIVE UNDERTAKINGS ON THE HEARING OF THE COIDA PETITION, HELD ON 6 MAY 2015 AT PARLIAMENT
The petition was submitted to Parliament by Mr Wilson Dumzela (Mr Dumzela or the petitioner) a disabled ex-miner. Mr Dumzela submitted the petition to Parliament in his personal capacity and on behalf of 22 other disabled ex-miners. The petition was subsequently tabled in the ATC on 29 October 2014 and thereafter referred to the Select Committee on Petitions and Executive Undertakings (Committee) for consideration. In the petition submitted to Parliament, Mr Dumzela requests the intervention of the Committee in amending the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA) to ensure the disability compensation (compensation) accorded to disabled ex-miners enable them to lead a quality and dignified life.
The petition also brings to light other germane concerns the disabled ex-miners have including, amongst issues, the exclusion of disabled ex-miners on decision making and review structures such as the boards of Rand Mutual Assurance (RMA) and the Compensation Commission (CC); the inclusion of their family members in the medical support given to them in terms of COIDA; and the extension of medical cover to include any ailments associated with their injury and current state of disability.
- PURPOSE OF THE HEARING
The Committee held the hearing in an effort to consider the petition which request the assistance or intervention of the Committee in amending aspects of COIDA and further in an effort to listen to first-hand submissions in relation to the petition.
- COMMITTEE MEMBERS AND OFFICIALS
The following Committee Members were present at the hearing:
3.1 Hon S G Thobejane, ANC, Limpopo;
3.2 Hon LPM Nzimande, ANC, KZN;
3.3 Hon M T Mhlanga , ANC, Mpumalanga;
3.4 Hon D L Ximbi, ANC, Western Cape; and
3.5 Hon Michalakis, DA, Free State.
The Committee Members present at the hearing were supported by the following Committee officials:
3.6 Mr Nkanyiso Mkhize, Committee Secretary;
3.7 Ms Tasneem Sterris, Committee Researcher; and
3.8 Dr Mimmy Gondwe, Committee Content Advisor.
In addition to the petitioner, the following representatives from the DOL, CC and RMA also attended the hearing:
4.1 Mr T Lamati, Director General of Labour, DOL;
4.2 Mr S Mkhonto, Compensation Fund Commissioner, CC;
4.3 Mr J Singh, Chief Executive Officer, RMA; and
4.4 Mr P Matshidza, Chief Operations Officer, RMA.
- SUBMISSIONS BY THE PETITIONER
5.1 Inadequate compensation
The petitioner, commenced his submissions by explaining that the submission of the petition stemmed from concerns he and other disabled ex-miners have around the amount of compensation they are entitled to receive in terms of COIDA. He further explained that the concerns raised in the petition have also been raised in meetings he has held with other disabled ex-miners in his capacity as coordinator of Disabled People of South Africa (DPSA).
According to the petitioner, there are a number of anomalies in relation to the compensation they are entitled to receive in terms of COIDA. One such anomaly is that some disabled ex-miners receive compensation whereas others do not receive any compensation. The other anomaly relates to the disparities in the amount of compensation received by disabled ex-miners on a monthly basis. For instance, some ex-miners receive R1000 per month whilst others receive R4000 per month as compensation.
Further according to the petitioner, the amount of compensation disabled ex-miners receive, deprives them of leading a quality life and invariably leads to a considerable number of them living in dilapidated housing or in housing with no indoor sanitation facilities. Moreover, substantial annual increments are not effected to this compensation and he noted that in April 2015, they were informed an increment of between R100 and R150 had been effected to their monthly compensation however he lamented that the increment is not sustainable as some of them have no one and nothing to depend on except the compensation given to them.
Lastly, Mr Dumzela informed the Committee that when he and other disabled ex-miners complained about the compensation amount to RMA, they were informed that their compensation is deemed adequate and is calculated strictly on the basis of COIDA. RMA further informed them that the compensation constitutes a percentage of the salary they earned whilst employed. Mr Dumzela however observed that because the amount of compensation is quantified on the basis of the salary you earned whilst you were still employed, this effectively prejudices former black miners, who earned less and still continue to earn a lot less than their white counterparts. He further submitted that because the salaries they earned as former black miners were largely dictated by the colour of their skin, former white miners with similar injuries as their receive larger amounts of compensation than they do. This has further meant, that in comparison to their disabled white counterparts, disabled black ex-miners find themselves living in extremely poor and difficult conditions.
5.2 Limited medical and post death support
The petitioner further raised concerns in relation to the nature of medical support they are entitled to receive in terms of COIDA. According to the petitioner, the medical support they are entitled to receive in terms of COIDA is limited in that if, for instance, you are injured whilst you are unmarried and you subsequently get married and have children your medical support is not extended to cover your wife and children. He pointed out that DPSA members from the SADC region (namely from Mozambique, Swaziland, Lesotho and Botswana) also report facing similar challenges in relation to the medical support afforded to them. Mr Dumzela petitioner further pointed out that in instances where RMA sends you to hospital, you are sometimes required to make a co-payment towards medical treatment notwithstanding that the possibility of making such a co– payment is not factored into your monthly compensation. In addition he noted that the medical support extended to disabled ex-miners does not extend to ailments associated with the injury they had suffered or resulting from their disability.
A further challenge for disabled ex-miners, according to the petitioner, is that the compensation due to them in terms of COIDA ceases to be paid upon their death and this poses a serious financial challenge to their beneficiaries or dependents. And as coordinator of DPSA, Mr Dumzela, indicated that he finds himself inundated with phone calls from beneficiaries of deceased disabled ex-miners seeking many forms of assistance including in burying a deceased ex-miner.
5.3 Ineffectiveness of projects
The petitioner also expressed reservations around the effectiveness of some of the projects intended to benefit disabled ex-miners in his submissions. In this regard, he observed that because the projects were not run by disabled people, they were by and large not empathetic to the plight of disabled persons and to their needs and wants. As a case in point, he singled out a project initiated by RMA to address the sanitation challenges faced by certain disabled ex-miners. According to the petitioner, the project failed to benefit them for the simple reason that they were unable to use the sanitation facilities it provided. He added that other projects intended to empower disabled ex-miners economically such as the poultry and sewing projects also proved to be ineffective and ineffectual because they were administered by people who are not in touch with the needs and wants of disabled persons.
5.4 Lack of empowerment
Mr Dumzela also submitted that in his opinion more could be done to economically and socially empower disabled ex-miners. As a case in point, he made reference to group of 22 disabled ex-miners who currently, as part of their rehabilitation, are working for a company manufacturing mine equipment and having an annual turnover of R7 million a year. However notwithstanding the company having such a high turnover the disabled ex-miners working for it are reported to be earning a salary of between R3000 and R3500 a month. He submitted, for disabled ex-miners to feel truly empowered they should be allowed to sit on the boards of RMA and the CC in an attempt ensure that their interests and needs are protected and represented.
5.5 Relief sought
In closing his submissions, the petitioner stated that he sought the intervention of the Committee in relation to the following:
5.5.1 Amending COIDA to ensure the compensation received by disabled ex-employees allows them to lead a quality life enabling them access to amongst others housing; sanitation and water; rehabilitation and disability facilities. According to the petitioner, COIDA was last amended in 1993 and since then there has been no effort to amend it, even after 1994.
5.5.2 Extending the medical support given to disabled ex-miners to their beneficiaries and to all ailments associated with the injury they suffered or resulting from their disability.
5.5.3 Ensuring compensation is paid to the beneficiaries of deceased disabled ex-miners.
5.5.4 Ensuring disabled ex-miners are involved in the conceptualisation and administration of projects intended to benefit them.
5.5.5 Empowering disabled ex-miners in allowing them to sit on the boards of RMA and the CC in the same manner as unions would sit on the boards of major companies.
- SUBMISSIONS BY THE DEPARTMENT OF LABOUR
In responding to the submissions made by the petitioner, the DOL submitted it has had extensive discussions with the CC and RMA in relation to addressing the issues raised by the petitioner. And it is on the basis of these discussions that the DOL is in the process of amending COIDA and the Minister of Labour has formally announced the intention of the DOL to amend COIDA with a view to addressing some of the issues raised by the petitioner in the petition and in his submissions.
The DOL further submitted there is in fact already a Bill in place that will address the issues raised by Mr Dumzela and the Bill includes improved provisions on, amongst others, medical coverage; return to work programmes; and the extension of benefits to beneficiaries.
Lastly, the DOL stated the Bill is set to follow the normal legislative processes, namely the social and economic process as well as the NEDLAC process and it foresaw all the processes except the NEDLAC process being finalised at the end of August 2015. The DOL further observed the only delay they foresaw in relation to the passage of the Bill is with the NEDLAC process and encouraged Mr Dumzela as coordinator of DPSA to make inputs during the NEDLAC process.
7. SUBMISSIONS BY THE COMPENSATION COMMISSION
In his submissions to the Committee, Mr S Mkhonko, a Commissioner with the Compensation Commission indicated there is veracity in the petitioner’s submissions, in particular, those submissions made in relation to the meagre compensation received by disabled ex-miners. He cited the case of a worker whose hands had been severed by a peanut machine and was consequently dismissed following the accident despite being fitted with prosthetic hands. The worker received a limited amount in compensation and was further provided with a constant attendant. And the constant attendant provided to attend the injured ex-worker, was given an allowance of R2000 per month whilst the injured ex-worker received less than R2000 per month in monthly compensation and was also forced to live in a shack.
The Commissioner further substantiated the submissions made by the DOL that the Bill aims to improve the amount of compensation and also provide for the rehabilitation and reintegration of disabled ex-employees. The Commissioner further indicated its board had gazetted for a minimum pension to be paid to disabled ex- employees which is slightly more than the social grant.
Also in his submissions to the Committee, the Commissioner attempted to provide clarity on the issue of commutations. He explained that commutations allow a person to exchange or substitute the monthly compensation for a lump sum payment. The lump sum resulting from the commutation, according, to the Commissioner is dependent on factors such as the age of the individual concerned as well as on the amount of the compensation commuted. He however lamented that in applying for commutation, certain individuals were not always aware of its consequences.
The Commissioner also noted there are challenges around the rehabilitation and reintegration of disabled ex-employees because, at present, the legislation does not provide for rehabilitation and reintegration of disabled ex-employees. However, the proposed amendments to COIDA would correct these challenges and provide for ex-employees to return to work and prevent employers from dismissing employees who suffer job-related injuries.
The Commissioner further conceded that the benefits due to a beneficiary in terms of COIDA, ceased upon the death of the beneficiary particularly where the death is not related to the injury of the deceased disabled ex-miner. He however affirmed the proposed amendments to COIDA would also rectify this situation and enable dependents to continue benefitting post the death of a disabled ex-employee irrespective of the cause of the death.
8. SUBMISSIONS BY RAND MUTUAL ASSURANCE
The submissions from Mr Singh, the Chief Executive Officer of RMA, were also primarily made in response to some of the issues raised in the petitioner’s submissions.
With regards to the effectiveness of empowerment projects intended to benefit disabled ex-miners, Mr Singh pointed out that such projects (such as providing sanitation facilities and paving for wheel chair access) were not a requirement in terms of COIDA but were merely voluntary corporate social responsibility initiatives on the part of mining houses (such as Anglo Gold and Harmony), and RMA.
Mr Singh further submitted that RMA concurred with the petitioner that the compensation paid to ex miners is low. He further assured the Committee that RMA’s future empowerment projects will aim to better the involvement of disabled people.
He also stated that the capital RMA receives after investing the premium paid over by the employer on behalf of the employee, is invested by RMA. And details around RMA’s investments are published on its website. In addition, he maintained that RMA accounts in great detail to the Compensation Fund and the Financial Services Board on its investments so much so that its reporting requirements are even more onerous than those of the CC.
9. OBSERVATIONS AND FINDINGS
The Committee made the following observations and findings after having heard the submissions at the hearing:
9.1 Over and above the issue of the amendment of COIDA, the petitioner also raised pertinent issues relating to the terms and conditions of the licensing agreement between RMA and the DOL as well as relating to who takes the final responsibility for empowerment projects and determines the need and desirability of such projects.
9.2 It is important for empowerment projects to be conceptualised and managed with the assistance of those they are intended to benefit or else they will be of little or no benefit to them.
9.3 There are inconsistencies in classifying what constitutes a disability in certain Government quarters. For instance, if you are 40 percent disabled in some government quarters you are able to find a job whereas in terms of COIDA if you are 40 percent disabled you are entitled to receive compensation. The question to be asked then becomes does the formula used in computing the amount of compensation take these differences in defining and classifying a disability into consideration.
9.4 Commutations, in terms of COIDA, appeared to not be calculated on the basis of the capital amount.
In concluding the hearing, the Committee made the following brief recommendations:
10.1 DOL to ensure the proposed amendments to COIDA are effected seeing that COIDA has not been amended since 1993 and the amendments will greatly benefit those affected by COIDA.
10.2 DOL to constantly update the Committee on the progress made in passing the relevant Bill.
10.3 RMA and CC to examine ways in which disabled ex-miners can wholly and effectually benefit from the projects intended to benefit them.
10.4 RMA, CC and DOL to ensure those affected by COIDA gain a better understanding of COIDA, their rights and obligations, and the roles played by RMA, CC and DOL in the bigger scheme of things.
Report to be tabled for consideration.
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