Background
Lately I have observed a disturbing issue that is presenting itself in the daily press. Numerous notices/invites call it what you like, are being published calling for quotes or tenders to undertake the outsourcing of certain functions within certain state departments. Now for certain functions within any organisation, in the private or public sector, that is absolutely normal to do. The problem lies in the fact that this growing trend calls for quotes to undertake core business functions. I mean if you outsource the drafting of financial statements, for that matter more or less the total financial administration, something is seriously wrong. Even more disturbing is the fact that senior people earning hefty salaries are in the existing posts and are supposed to fulfil these duties. Judging from Annual Reports the personnel numbers are really growing at an alarming rate. The Compensation Commissioner’s office according to their 2007/8 Annual Report 1 has a fixed establishment of 659 posts plus 294 contract workers, in total 953. The number of claims for the same period, according to their Report was 210 000 compared to 215 000 during 2000/1. This in any language is a drop in the number of claims received. Question: what are these people doing to keep themselves occupied? (And don’t forget the backlog). For interest sake, the number of accidents reported during 1992 was 249 534. The approved staff establishment on 28 February 1993 was 513 posts. The conclusion is that the workload has decreased and the staff numbers have increased drastically. Why? You the employers are obviously not perturbed by this fact, if you are, I have seen little or no feedback from your representatives on the Compensation Board.
Remedies
To keep the wolf from the door, let me remind you that bigger companies than you have gone under in the USA because of reckless spending. You are spending money, not only for workers’ compensation, but on various other statutory obligations without querying the efficacy thereof. Ignoring how these funds are applied with our typical South African apathy will do neither your company nor the various state institutions any good – not in the long run or in the short term. What we need to do urgently is to find out who our representative (via your employer federation) is. Demand from your federation, be it BUSA or AHI or whatever, feedback of the discussions at meetings that they attend at the Compensation Board regularly. This is the only way that the “employer in the street” can be in a position to make a contribution to a possible solution of the problem.
An example of the apparent apathy of the state in general and specifically the Department of Labour is the following. Three years ago a woman was killed in an accident at a silo. She fell into it and was fatally injured. In a Sunday paper of 8 February 2009 her family reports that the said department has up to now either not conducted any investigation or has not produced any report. When the newspaper asked for a comment they got the usual lack of any response. This from a department that frequently comes up with the cliché of “Zero Tolerance” after serious accidents that are then apparently forgotten about.
The moral of the story is that you the employer must involve yourself with the state administration or the lack thereof, if you don’t, stop moaning, you allowed it to happen!
Legal Remedies
Section 91 of the COID Act allows employers or employees to object against the decisions of the Compensation Commissioner. Should the Compensation Commissioner stick to the original decision he is obliged to hold a formal hearing where the objector can state his or her case. The presiding officer is the Director General or one of his staff members with the necessary statutory delegation. It used to be a Deputy- or an Assistant Commissioner who acted as the Presiding Officer. Nowadays even this task of Presiding Officer has, according to my information, been outsourced. The people at the Compensation Commissioner’s office argue that nothing in the COID Act prohibits it. I totally disagree with that interpretation and I’m of the opinion that it is ultra vires the COID Act. However let us say the people advocating this viewpoint are correct, I would love to know what the outsiders’ workers’ compensation experience is. You see friends this is not a court of law where you are strictly bound by the rules of the law of evidence. This is not the place and time to enlighten you in detail about our case law or the COID Act interpretation. I will conclude by asking the following, what will be left for the growing number of staff members of the Compensation Commissioner to do if every task that they are supposed to do, is eventually outsourced.
Why then not outsource the total administration of the COID Act, it cannot be worse than what it is at present. Is this a RAF replay?
1 The Report that received a Disclaimer status from the Auditor General
Till next time.