SECTION 9: ASPECTS OF OCCUPATIONAL HEALTH AND SAFETY LEGISLATION THAT IMPACTS ON THE HEALTH AND SAFETY OF WOMEN AT WORK
Other Acts and Regulations
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| MODULE 7: PSYCHOSOCIAL ISSUES AND OTHER MISCELLANEOUS
TOPICS IN OCCUPATIONAL AND ENVIRONMENTAL HEALTH SECTION 9: ASPECTS OF OCCUPATIONAL HEALTH AND SAFETY LEGISLATION THAT IMPACTS ON THE HEALTH AND SAFETY OF WOMEN AT WORK Other Acts and Regulations |
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In terms of section section 187 (1)(e) of the Labour Relations Act, the dismissal of an employee on account of her pregnancy, intended pregnancy, or any reason related to her pregnancy is automatically unfair. The definition of dismissal in section 186 of the Labour Relations Act includes the refusal to allow an employee to resume work after she has taken maternity leave in terms of any law, collective agreement or her contract. For the first time in South Africa pregnant women workers are entitled to job security when they return from maternity leave.
However, the problem that is not addressed is that some employers expect women to start as "new" workers with minimum pay and benefits when they return from maternity leave.
The Unemployment Insurance Fund has been established to provide short-term relief to workers subject to certain conditions, when they become unemployed, or are unable to work because of illness, maternity or adoption leave and also to provide relief to the dependants of deceased contributors. The Fund is being financed through the monthly contributions of employers and workers. The Government is the underwriter of the Fund and is expected to provide financial assistance to meet shortfalls experienced during times of high unemployment. As from April 1, 2002 all workers who work more than 24 hours are expected to contribute to the Fund.
A significant development for women workers is that as from April1, 2003, the Unemployment Insurance Act requires domestic workers and their employers to contribute to the Fund. Domestic workers have, for the first time, benefits such as maternity leave legislated for under the Fund. It is an important development, since the private household sector employs the largest percentage of South African women workers.
UIF is currently used by most employers to pay women 45% of their wages during maternity leave. The majority of women are in low-income groups and the 45% is far too little to survive on eg the 1996 Census figures indicate that in the agricultural sector, 83% of women (and 65% of men) earn less than R500 per month.
Section 6 of the Employment Equity Act indicate that no person may be discriminated against or dismissed on account of pregnancy. Both the Constitution and the Labour Relations Act also make provision for this right. The Employment Equity Act aims to eliminate unfair discrimination in the workplace and to provide for the active implementation of affirmative action programmes for particular categories of workers including women. This, hopefully, will have a specific impact on the employment patterns for women workers from marginalised sectors of the economy as well as workers with disabilities. The potential impact (psychosocial and other) this will have on women’s occupational health and safety will have to be assessed in future. The significant positive impact of job security for women workers in the low-income sectors of the economy should be one of the desired outcomes.
This law aims to provide compensation for disablement for workers who develop an occupational disease or sustained an injury during the course of their employment. As compensation is still calculated according to the income of the worker concerned, women, the majority of whom are low income workers, will be poorly compensated for disabling injuries or diseases. The fact that compensation is influenced by income continues to perpetuate inequality as there will be differential pay-out for skilled and unskilled workers who sustained similar injuries or develop similar diseases.
COIDA specifically discriminates against thousands of women workers employed in domestic service (private household sector) by specifically excluding "a domestic employee employed as such in a private household". Considering that this is the sector in which the largest percentage of South African women is in wage employment we have an indication of the magnitude of the task to address women’s health and safety.
These laws aims to make provision for the health and safety of workers at work (exclude workers on ships). These Acts do not make provision for health and safety representatives or for health and safety committees to be representative of the gender composition of the workforce. There are several regulations under the OHSA. Amongst them the Regulations for Hazardous Chemical Substances and the Lead Regulations are of particular importance to pregnant women and women who have recently given birth.
Under the OHSA and the MHSA employers are required to provide and maintain a work environment that is safe and without risk to the health of workers. This includes risks to the reproductive health of workers. Relevant key aspects of these Acts are:
These regulations supplement the OHSA and introduce the very important aspect of risk assessment. The regulations also reinforce the importance of medical surveillance for workers exposed to certain chemicals at the workplace.
The regulations do not provide information on chemicals known or suspected to be reproductive hazards.
The RHCS require that employers and employees should know all about the hazardous properties of chemicals with which they work. The regulations specifically require that with regards to reproductive hazards, employers need to:
This is a very important focus of the regulations as more and more evidence is becoming available about the hormone disruptive effects of some chemicals on the ability of couples to have children and for the normal development of children.
These regulations also supplement the OHSA and potentially exclude women workers of childbearing age from working in certain occupations because of potential harm to the foetus. In both the HCS Regulations and the Lead Regulations some form of protective exclusion is directly or indirectly regulated. The emphasis should however be on minimising the risks from exposure to all workers rather than having a prohibition which may result in the exclusion of women workers.
These regulations under OHSA make provision for the availability of Material Safety Data Sheets (MSDS) which have their origin in workers struggles for the right to know. The latest format of a MSDS includes information on reproductive hazards to be available.
It is clear that ongoing evaluation and changes in legislation is required to address shortcomings which negatively impact on women’s health and safety. Preventive research and policy recommendations aimed at improving the occupational health and safety of women workers must take into account the super-exploitative nature of women’s wage and domestic work and the impact of low economic status and gender discrimination on women’s health.
The rich history of workers struggles for policy changes with regards to women’s health and safety is recorded in books with beautiful stories such as "Sharing the Load" and other worker documents. Many trade unions organised health and safety agreements and maternity benefits for workers which are in advance of the benefits legislated. Trade Union organisation sensitive to the socio-economic and political constraints facing women remain amongst the greatest strength workers have in order to address the shortcomings which impact on their health and safety.
