Marathon meetings on COIDA Bill

…..article dated 4 July…..

 COIDA Act extended to cover all vulnerable workers….

Two extensive days of discussions were not enough to finalise all the amendments necessary to bring the Compensation for Occupational Injuries and Diseases Amendment (COIDA) Bill to any form of conclusion that could be considered in sufficient shape for final voting.    At this point, therefore, discussions and debate remain ongoing and the Bill will in all probability go forward to the next parliamentary session still at committee stage.

The overall objectives of the Bill are “to extend coverage under the existing COIDA Act to previously excluded vulnerable workers, as well as the improvement of compensation benefits to employees in general”.

Stumbling point

Although some seventy alterations have so far been made to the Bill at this stage, a meeting of the Labour Parliamentary Portfolio Committee attended by senior legal personnel from the Department of Employment and Labour (DEL) decided to postpone any debate on the troublesome clause 43 involving the banning of third party cessions for medical invoices to financial institutions and third party administrators to a later occasion, since more time was needed to give proper consideration to the issue, said MPs

The SA Medical Association (SAMA) CEO, Dr Angelique Coetzee, claimed during earlier hearings that the proposed Bill’s clause 43 will mean that medical practitioners can no longer use their medical claims as surety for payment. This will not only place immense administrative, financial and legal pressure on the medical sector; it will disadvantage injured workers and their right to quality medical care.” 

Logjam

The amendment means that medical practitioners will make their claims without any financial third party backing or financial assistance. The long-term impact of such conditions would be that doctors will just refuse to see the patients in order to avoid the clerical load and be without any form of re-imbursement for their costs, she said. The idea of getting any refund from the Fund was an “idea on paper”, she said and it wasn’t happening.

Gerhard Papenfus of the National Employers’ Association of South Africa (NEASA) was more direct.  He said the use of third-party providers was probably the only part of the Fund that could be said to be working properly and the current ability for the medical profession to cede medical service provider invoices to financial institutions and third-party administrators was the only way to bypass the Fund and be paid.

Papenfus called for the deletion of clause 43, which disenabled the use of third-party financing.  “This must not be changed until such time as DEL could provide some form guarantee that the Compensation Fund could do its job properly and provide the services it promoted in some form of efficient manner.”

Bad record

NEASA has about 10,000 members, Papenfus said, and removing cessions “will have a devastating impact on workers, medical professionals and employers since for some time the Fund has been structurally and operationally dysfunctional. This is evidenced by repeated qualified audits by the Auditor-General and a slew of litigation and court orders against the Compensation Fund for non-payment of claims.”

Papenfus openly accused DEL and government of trying to hide its incapabilites, saying “It is was possible that the Fund is trying to prevent more of the hundreds of adverse court findings against it in the hope that medical practitioners will not pursue their unpaid claims because of cost.  We are aware that the Fund is not in a good shape and is seen as a drain on national resources.”

Full team

Present on the virtual full-day meeting to amend all 63 clauses of the COIDA Bill were the following:

  • Thembinkosi Mkalipi, Chief Director DEL
  • Harry Maphologela, legal advisor, DEL
  • Adv Nathi Mjenxane, parliamentary legal advisor, Office of Constitutional and Legal Services
  • Suraya Williams, state law advisor

Chairperson Lindelwa Dunjwa earlier in the meeting had delegated Adv Mjenxane to take MPs through each clause and changes were made there and then.  For example, in respect of clause 1(h)b under “definitions”, the word “disease” for the purposes of the Bill was changed to “occupational disease”.  Similar changes on the whole Bill are extensive but not major.

Major changes

Once the issue of Clause 43 is debated and issues decided upon, all amendments will go forward to a printed A-List which the Labour Portfolio Committee will then consider for adoption as a final document.

From comments so far made on the side-lines, both the DA and FF+ will voice extreme objections to Clause 43 as presently worded and will ask for it to be deleted, at least until the situation arises that the Compensation Fund is performing satisfactorily.

Extracting teeth

Thembinkosi Mkalipi of DEL has responded to most questions from members individually and in this meeting and for subsequent meetings will be advising Adv Mjenxane how far DEL is prepared to go to accommodate MP requests for change, with chair Dunjwa mainly as passenger.   The Bill was debated in a very different atmosphere from the Employment Equity Amendment Bill the day before.

Some interesting answers were received from Thembinkosi Mkalipi to questions.   For example, whilst it was understood that domestic workers were now to be included under COIDA, one MP asked about many of job classifications not previously categorised and left as outside of the Act, such as petrol attendants.   Mkalipi responded that all and any classification will be included without exception.

All those legitimately working are now included, he said, adding, “which is one of the main points of the Bill”.

Transit of workers

There was considerable discussion over transit of workers to and from a place of employment whether by taxi, bus or employee transport.  Director Mkalipi said the point of the Fund is that it is there to cover for injury or disease in any conditions and to jig saw in with the Road Accident Fund.   The RAF remains the principal Act in the case of motorised injury on public highways.  

However, the Compensation Fund was a “no blame” fund and so as long as the injury was in transport paid for as part of a package, subsidy or wage and was included as such as part of the employee wage information supplied by the employer in returns, cover would apply under the Act, Mkalipi said.

The conclusion of parliamentary processes for the COIDA Bill will probably be summarised in theAugust ParlyReport.

 

 

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