OSH LEGAL RESOURCES HANDBOOK LRH_text only.pdf · 6 OSH Legal Resources Handbook mines, mills,...

OSHLEGAL RESOURCES

HANDBOOK

Asia Monitor Resource Centre, Hong Kong

Published by

Asia Monitor Resource CentreFlat 7, 9/F, Block A Fuk Keung Industrial Building66-68 Tong Mi Road Kowloon Hong KongTel: (852) 2332-1346 Fax: (852) 2835-5319Email: [email protected] Website: www.amrc.org.hk Copyright © 2013 Asia Monitor Resource CentreISBN: 978-962-7145-45-5

All rights reserved. The chapters in the book may be reproduced in any non-profit publications; credit is requested.

Legal Resources HandbookEdited by Asia Monitor Resource Centre Editorial team: Kathleen Kearney, Omana George, Sanjiv PanditaCover Design: Benson Siu

Asia Monitor Resource CentreThe Asia Monitor Resource Centre is an independent non-governmental organisation focusing on Asian labour concerns. The Centre provides information, research, publications, training, labour networking and related services to trade unions, labour groups, and other development NGOs in the region. The Centre’s main goal is to support democratic and independent labour movements in Asia. In order to achieve this goal, AMRC upholds the principles of workers’ empowerment and gender consciousness, and follows a participatory framework.

Asian Network for the Rights of Occupational and Environmental Victims The Asian Network for the Rights of Occupational and Environmental Victims (ANROEV) formerly known as the Asian Network for Rights of Occupational and Accident Victims (ANROAV) is a coalition of victims’ groups, trade unions and other labour groups across Asia, all committed to the rights of victims and for overall improvement of health and safety in the workplace. The industrial disasters of Kader and Zhili, that killed more than 250 workers led to a campaign by the labour and victims groups in Asia for better health and safety rights for workers and the victims. ANROEV was formally constituted in 1997 and now has members from 14 Asian countries and territories, Japan, Korea, China, India, Pakistan, Thailand, Indonesia, Philippines, Vietnam, Bangladesh, Hong Kong SAR, Taiwan, Nepal, Vietnam and Cambodia.

Contents

Foreword ..................................................................................... 5

Introduction ................................................................................ 11

COUNTRY REPORTS

Bangladesh .................................................................................. 19

Cambodia ................................................................................... 43

China .......................................................................................... 55

Hong Kong ................................................................................. 73

India ........................................................................................... 99

Indonesia .................................................................................... 129

Japan ........................................................................................... 151

Pakistan ....................................................................................... 171

Philippines .................................................................................. 181

Thailand ..................................................................................... 211

Contributors ............................................................................... 225

The death toll of workers who create much of the wealth propelling forward the economies of East Asia, Southeast Asia and South Asia is staggering. This number does not include those workers maimed and injured at work. Nor does it include the numerous workers afflicted with debilitating diseases from exposure to toxins at work. Nor does it include the workers compelled to show up at work while sick to support their families and thus spreading infection—all because abusive employers deny them sick leave. This volume reviews and analyses the worker compensation laws in key industrial countries in East Asia, Southeast Asia and South Asia.

The objective of this handbook is to equip grassroots advocates of occupational health and safety with the facts and laws to ensure that there is more adequate compensation when workers are killed, maimed or become sick on the job. The authors are all experienced advocates of workers’ rights who fight every day to extract some financial support for the victims of occupational accidents and diseases from callous employers, investors and indifferent bureaucrats.

Governments in Asia routinely invoke the duty to provide security, welfare and health to their people to justify their existence. Employers, investors and financial institutions brag of bringing prosperity to the region. Yet, the wholesale failure of governments, employers and investors in this region to implement even rudimentary occupational health and safety protection has foreshortened lives, plunged families into destitution and left hundreds of thousands of often very young men and women disabled and destitute.

This startling slaughter is occurring unremarked by the media as governments, employers and investors suppress facts about the true numbers felled and disabled by death and disease at work. This silence reigns until a spectacular tragedy occurs, an event that cannot be ignored. One such tragedy was the mass slaughter of more than 1,000 men and women garment workers at Rana Plaza in Bangladesh. The latest tally showed that 1,135 workers were killed, many more were injured and 261 remain missing in the collapse of the building there on 24 April 2013. As these catastrophic factory disasters play out, the insistent daily tally of deaths, injuries and disease in Asian factories,

Foreword

OSH Legal Resources Handbook6

mines, mills, construction and other worksites continues to mount more quietly.

Despite the practiced silence in the media, the very laws governing compensation for workplace deaths, injuries and disease reviewed in this volume speak loudly of the real value placed by governments, employers and global investors on the lives of Asia’s wage earners. In some of the jurisdictions discussed here, compensation for the surviving dependents of a wage earner killed at work is well below US$5,000. These low figures, set by law, cannot be reconciled with the almost universal religious norms that mandate that human beings be treated humanely. They reflect callous decisions by the political and business elites to sacrifice the lives of young and old to the slogans of development—slogans that mask policies that underneath the rhetoric enrich only a few.

In theory, an adequate law for workers’ compensation should provide a simple and speedy system for replacing a substantial portion of the lost income resulting from the death, injury or disablement of a breadwinner. The objective is not to make the surviving family members economically or emotionally “whole” in the case of death, or to fully redress the economic loss of future earnings and mental and physical suffering in the case of disability. Rather, the design of international law on workers’ compensation aims to replace only a significant portion of the earnings loss. Despite this modest scale of workers’ compensation, the system as a whole is designed to make it unprofitable for employers and those they supply to ignore worker safety and health. This system should function to prevent employer violations of health and safety standards because worker compensation benefits, while modest, are broadly delivered to workers and families, and thus represent a substantial cost of doing business if these rules are not implemented.

In most countries with functioning workers’ compensation systems, insurers back up the employers to pay the bill for industrial deaths, accidents and disease. These insurers rate employers according to their health and safety records and charge non-complaint employers high rates.1 Safe employers are financially rewarded with lower rates,

1 Convention No. 121 (1964) of the International Labour Organization (ILO) sets forth the standards for an adequate workers’ compensation regime. This convention is woefully outdated, though, in setting the normative wage for workers’ compensation calculations as that of a “skilled manual male employee”! But the design principles for an adequate workers’ compensation system embodied in C. 121 endure, despite the gender discrimination in the work force model.

Foreword 7

and unsafe employers are penalized with higher rates. Compliant employers end up with lower costs than non-compliant employers and can better compete in the market. Insurance companies in the field of workers’ compensation have a financial interest in inspecting worksites and monitoring occupational health and safety compliance by the employers they insure. Thus, insurers may be key allies of regulators by proactively supporting the enforcement of occupational health and safety standards.

In this system, installing a US$3,000 guard on a machine that cuts or grinds metal will prove cheaper than paying worker compensation benefits to a maimed worker. Apply these principles to the collapse of the Rana Plaza building in Savar in Greater Dhaka. There is simply no inherent reason that any garment factory, including the five factories at Rana Plaza, should be unsafe or unhealthy. Across the globe, employers in this industry have learned to site their factories in safe, one-story facilities or other structurally sound buildings with adequate space and ventilation, safe electrical systems, adequate fire safety design and utilizing practices and machines designed to limit injuries.

Factories in compliance with safety standards will have a sufficient number of accessible exits so workers can escape fires. They will have adequate fire lanes so fire fighters can access the factory. There will be large fan systems to funnel out dust. There will be no sparking electrical wires and outlets to ignite ambient dust. Wet garments and textiles will be stored where their weight can be supported. There are routine inspections to remedy threats to health and safety. In a world with functioning workers’ compensation systems, no employer could afford to ignore health and safety considerations to the extent that Bangladeshi garment sector employers routinely have done. The costs of providing compensation or of insuring against worker compensation claims would be prohibitive. No such employer could survive in the market place without adequate standards for health and safety.

Conversely, labour market competition will erode compliance with even the most minimal norms if occupational health and safety standards are set too low, or are routinely defied by employers or not enforced by governments. Employers who comply with occupational health and safety norms will be priced out of the market as they strive to win contracts from brands and multinational employers, or attract investors. Employers who ignore the laws governing occupational health and safety or workers’ compensation can underbid their law-abiding competitors and win in the global market place on a ruthless logic of competition that drives down costs so low that workers and their families are literally sacrificed. The supply chains in a pure cost


global competition will inevitably foster widespread violations of health and safety laws as the price offered factory owners to supply the apex of the chain with product is pitilessly reduced.

There is no inherent reason garment factories should collapse on top of thousands of mothers, fathers, daughters, sons, sisters, brothers, aunts and uncles who earn the wages that bring food to extended families. There is no reason garment factories should burn and the workers in them be locked in and immured in fiery deaths, as seen in the Tazreen factory fire in Dhaka on 24 November 2012 and the Rana Plaza building collapse on 24 April 2013. Rather, it is the immorally low monetary value placed on workers’ lives and health, and the resulting flaunting of occupational health and safety laws by employers that generate these mass industrial calamities. Not insignificantly, these disasters also result from the assumption built into modern supply chains that brands and others at the top of the chains can always drive down costs and liability.

Of course, there are specific legal gaps in the laws on workers’ compensation in each of the jurisdictions examined here that contribute to the failure to implement occupational health and safety norms and practices and prevent adequate compensation for the victims of violations of those laws. But the significance of legal dysfunction in these varied systems pales in comparison with the callous disregard of human life made profitable by the global system of production and the bloodthirsty cost competition of national and regional employers in Asia fostered by multi-nationals, abetted by governments and suppressed in the media.

As unionists and other advocates of workers’ rights use this book in their struggle for health and safety at work, there are positive signs on the horizon. The recent mass industrial disasters in South Asia have prompted wide-spread revulsion and turned a spotlight on these supply chains.2 Many Asian jurisdictions have learned to avoid the unsafe conditions that plague the South Asian garment industry, because they recognize that such slaughters of citizens are not politically or morally sustainable. The improvement of worker compensation systems should be placed at the center of these discussions, because adequate workers’ compensation systems provide concrete financial incentives for compliance with occupational health and safety standards and, conversely, financially penalize violations of those laws and regulations. Prevention

2 Philip, Pullella “Pope condemns Bangladesh working conditions as “slave labour”; Reuters. 1 May 2013.

Foreword 9

is only undertaken when compensation is inevitable. Adequate workers’ compensation fosters safe industries and places the cost of death, injury and disease where it belongs--not on impoverished workers and their families and communities, but on those who profit in industry and along supply chains.

Both international labour law and comparative tort law provide detailed guidance on what an adequate compensation system should look like. The systems that work are varied, but all adhere to certain elemental principles:

• Theobligationtoprovideworkers’compensationbenefitsappliesrelatively universally to all employers. There are no local or sectoral carve-outs from the law or regulations that foster labour cost competition based on avoidance of occupational health and safety standards;

• Fundingofanticipatedbenefitpayoutsbasedonanemployer’spast operating record (number of deaths, injuries, diseases in the workplace) is assured by vigorous, proactive enforcement of the requirement that employers obtain adequate workers’ compensation insurance or otherwise set aside funds to meet these expected payouts;

• Enforcementbyregulatorsandinsurancecompaniesissystematicand rigorous to ensure that workers’ compensation costs are uniformly borne by all employers, and that these costs are “rated” by reference to an individual employer’s actual history of implementation of safety procedures and on the job accidents and deaths, so that safe employers are rewarded and unsafe employers penalized in the labour market;

• The legal system fordeliveringbenefits isnotoverly judicial,uncertain in detail or complex so that benefits are delivered routinely and quickly to stricken workers and their families.

• Thereisanadequateaccessibletortsystemthatcanprovidetrueeconomic cost rewards to workers injured by third parties (other than their employers) and by intentional and grossly negligent violations of occupational health and safety laws.

This book will help place the adequacy of the workers’ compensation systems in the region under a microscope, as advocates for workers’ rights are better equipped to test existing systems. As the mass disasters that result from defective supply chains and national systems begin to awaken the consciences of religious leaders, consumers and policymakers around the world, the key role of adequate workers’


compensation will again become central to the debate on industrial justice in industrial Asia, under pressure from grassroots advocates for workers’ health and safety. This book will help them in that quest.

Earl Brown,Solidarity Center

Washington, D.C.

In 2005, AMRC and the Asian Network for the Rights of Occupational and Environmental Victims (ANROEV) published ‘Struggle for Justice’ looking at the disability compensation system in the Asia Pacific region. The Asia Pacific region is diverse and occupational safety and health (OSH) compensation systems vary from place to place. Yet there is a stark similarity in the manner workers face difficulties and are unable to access these systems. On paper most of the countries have framed laws that lay down procedures and rights for workers to claim compensation.

To tackle this region-wide hurdle, we have put together a second publication, The OSH Legal Resources Handbook, which we intend to serve as a practical reference handbook that is useful for those legal practitioners and activists who are involved in the struggle to seek compensation and justice for victims of occupational injuries and diseases. It aims to be a hands-on manual and provide an overview of the working of the law and its implementation; it is supplemented with case studies that give the reader an insight into the working of the laws in the region. It will also serve as a tool to aid cross-border alliances and build strong solidarity among victims’ support groups across the region.

AMRC facilitated two legal practitioners’ skill shares in 2011 and 2012 which provided an opportunity to share experiences and learn from others in the field. This helped in building capacity further in dealing with existing cases in their countries. The process created a platform for the development of a network of legal activists who can be helpful in both local and regional campaigns.

AMRC sees The OSH Legal Resources Handbook as a practical tool to further strengthen and build a regional network of legal practitioners and activists to assist workers on the ground. This practical handbook has country reports from 10 countries namely from South Asia: Bangladesh, Pakistan and India; from East Asia: China, Japan, and Hong Kong; and from Southeast Asia: Cambodia, Indonesia, Philippines and Thailand. Each chapter focuses on a single country and reports on actual cases/ incidents in terms of the existing structures and mechanisms, showing the core of the system and how it works and what are the implications for a worker or victim seeking compensation.

IntroductionBy Omana George and Sanjiv Pandita


Many of these cases clearly demonstrate the problems or obstacles encountered by the worker, and some strategies and interventions used by legal practitioners to assist the victims.

Each country report of the handbook begins with an overview of the laws and regulations governing disability compensation in each country and then goes on to look at the procedures for accessing compensation and how the system works in reality. The process is illustrated in many chapters with recent case studies of occupational injury and disease victims. The authors of each chapter are partner organisations of AMRC and members of the ANROEV network. The authors have been encouraged to critically analyse the situation in their country and provide insights to address grey areas or lacuna in the laws based on their extensive experience in assisting workers and victims.

Legal framework

The 10 countries featured in this book are at varying stages of industrial development, thus at different stages of developing a comprehensive OSH framework of laws to protect workers from hazards and offer them just compensation in the case of an injury or a disease. The laws covering compensation are broadly of two types – a general employer’s compensation law where the employer or establishment is liable to pay compensation or an insurance-based no fault compensation scheme run by the government or privately by insurance companies. It is evident from the chapters that with the exception of Cambodia all the countries have some form of laws that cover the compensation framework not only for the accidents but also for occupational diseases.

The chapter on Cambodia does, however, give us a look into the future with details of the five-year OSH Master Plan that has been formulated to strengthen the national OSH system. Although it demonstrates some sort of commitment by the government, yet it has not been translated into clear and comprehensive OSH legislation, especially as regards the occupational diseases that impact thousands of workers. Conversely, Bangladesh which that has been in the news for the worst industrial disasters that took the life of thousands of garment workers, has developed a clear framework on occupational health by enacting the Bangladesh Labour Act of 2006, replacing the old colonial Factories Act. The new act lists nearly 33 occupational diseases that can be compensated and streamlines the procedures for claiming compensation for accidents. Similarly, the China chapter outlines the

Introduction 13

remarkable legislative changes that have taken place in recent years, including the enactment of The Social Insurance Law in 2010 and its implementation in July 2011. This law, regarded as the main code with respect to OSH issues in China, is also key in regulating the work-related injuries insurance system.

Coverage

The coverage of the laws remains a challenge in a majority of the countries. For example, both in India and Pakistan the laws covering workers’ compensation are based on the colonial Workmen’s Compensation Act 1923. These acts cover only employed workers in establishments with more than 10 workers with a clear employee- employer relationship. Thus, millions of workers working informally, which constitute the majority of the working populations of South Asia, are excluded. Indeed, coverage of informal workers remains a challenge in many other Asian countries. Thailand, interestingly, attempted to address the issue by modifying the Workmen’s Compensation Fund Act 1994 to extend protection to workplaces with less than ten workers or even those with just one worker or more.

Insurance-based compensation schemes also have outreach problems. China has shown remarkable progress in terms of coverage which has increased nearly four-fold from 45 million in 2011 to nearly 177 million in 2011, but hundreds of millions remain excluded. Similarly, in Indonesia the Jamsostek work injury insurance covers nearly 2.1 million workers which is only 5.7 percent of the formal sector workers and a meagre 1.8 percent of the total workforce leaving the majority of workers without any credible protection. Even in Hong Kong, the Employees Compensation Ordinance does not cover all workers and has grey areas of coverage, such as during the commute to and from work and for self-employed persons.

Implementation and problems

“If existing laws were implemented in whatever stage or state, the tragedies of Tazreen and Rana Plaza could have been avoided,” said Repon Chowdhury, Executive Director, OSHE, Bangladesh at the ANROEV Conference in May 2013 as the Rana Plaza tragedy was unfolding and sending shockwaves around the world.

The gravity of the situation can be understood simply by comparing the accident data from these countries with the ‘estimates’


from the ILO1 . There is huge gap between the stated policies and what is actually implemented in most of the countries, such that far too many sick and injured workers are denied their just compensation

• Complicatedprocesswithbureaucratichurdles:

In almost all the countries the process of claiming compensation for sick and injured workers is not only a very difficult and complicated process, but it is humiliating and undignified experience for them. It seems they are being penalised for getting sick. In China, even though the coverage has been extended, in terms of benefits, in the diagnosis of occupational diseases, institutionalisation and implementation of the insurance program, the system is sorely lacking. The diagnosis of occupational disease can only be submitted by a qualified medical institution and likewise for an occupational injury where the worker has to complete lengthy procedures laid down by the law. This translates into a reality where if a worker and employer end up in dispute with a work related injury or an occupational disease wherein the labour relationship with the worker or the origin of the illness is in dispute, then the worker must apply for arbitration to confirm the labour relationship and can end up in court. These cumbersome procedures therefore increase the burden on victims with occupational injuries and diseases. In Pakistan, the reality is that workers do not get compensated because of poor knowledge and a lack of awareness of the relevant laws and its procedures. The loopholes or lacunae in the laws allow these compensation funds to accumulate to such an extent that, for example, in China the funds available but not dispersed have grown into huge reserves of RMB 64.2 billion. Some national funds, such as that in Indonesia, have been invested in other businesses and not been utilised for their stated purpose. Meanwhile, injured and sick workers are bearing the burden of fighting long, bureaucratic battles to access these funds.

• Impedimentsfromtheemployer:

Ironically, the compensation mechanisms seem to have been developed assuming that employers would readily cooperate. One would be naïve to assume that is really the case in reality. It is clear from the chapters, employers refuse to pay compensation where they

1 http://www.ilo.org/public/english/region/eurpro/moscow/areas/safety/statistic.htm

Introduction 15

are directly liable and they use any tactics, firing of the sick or injured workers being the first and foremost. Other tactics include denial of any employment relationship with the sick or injured worker and in some cases intimidation of the victims and their families.

In the Philippines, the process of claiming compensation is very cumbersome and complicated, and on the ground workers finds it almost impossible to get compensation in a timely manner: Employers use many stonewalling tactics to block workers access to information needed to file the claims for compensation. In Thailand, the doctor’s diagnosis fails to acknowledge the link between the disease or injury and the job, therefore the worker is not entitled to compensation. Employers also are the biggest impediments when it comes to compensation under the no –fault schemes where they either do not buy the requisite insurance for the workers or refuse to cooperate in documentation that can secure compensation for the victims.

• Blackholeofoccupationaldiseases:

Even though the ILO estimates work-related illness as the largest cause of fatality and morbidity at work, yet on the ground, the national data from most Asian countries hardly reflects this. In fact in countries such as India, Indonesia, Cambodia, Pakistan and Bangladesh, there are hardly any figures available on occupational diseases, and if they do have any, the numbers are too small to be credible. The diagnosis of occupational diseases still remains a big challenge in many of these countries, since the gestation period (from exposure to development of the disease) can be long in occupational disease. However, it also takes a political dimension, when denial is not just a technical issue but a deliberate attempt to evade liability or payments from the compensation schemes.

Cambodia still needs to develop an exhaustive list of occupational diseases, Bangladesh has a framework which is not yet being applied, and Indonesia, though it is industrially evolved and has established the social security programme, Jamsostek which by law provides for work injury and treatment costs, the programme is not required to pay compensate for occupational diseases and until now no occupational disease has been compensated according to official figures2. In the case of India even if workers are covered by the law, there is difficulty in getting compensation as diagnosis is the biggest hurdle. In addition,

2 It is believed that not only does Jamsostek not release the data, it does not collect it.


there are no national figures on occupational diseases. In China, 111 types of occupational diseases are recognised including open ended items, but workers fail to receive full compensation for their occupational disease due to many reasons as shown in the cases of the sufferers of occupational pneumoconiosis and silicosis. In Japan, the system in place is a lot more advanced and now recognises new diseases, such as bile duct cancer as an occupational disease among printing workers in March 2013. In addition, recognition criteria are being set up for other bile duct cancer cases in the country.

Innovative ways of seeking justice

With the conventional ways of seeking compensation failing, workers are seeking some innovative ways of seeking compensation. This includes developing alliances with other similar rights-based groups in society. In the India chapter, two such cases are discussed. In the first case, informal workers who suffer from silicosis have tried to use the human rights framework to seek compensation from the state, and they have been successful to a certain extent after a long struggle. In the second case asbestos victims sought claims from the Turner and Newall UK Asbestos Trust which was outside the country’s framework. However, it must be emphasised these successes have yet to make changes at the structural level. For example in case of the asbestos compensation, the workers who received compensation from the trust are yet to receive compensation from the domestic workers’ insurance scheme. It is hoped that these victories can put pressure on local authorities to make structural changes in the country.

Missing criminal liability In Bangladesh, the fateful fire of Tazreen and the collapse of

the Rana Plaza building put the spotlight on the wilful negligence of factory owners of safety procedures and practices. These are man-made disasters that could have been completely avoided. Failure has led to the death of thousands of workers leaving the survivors and the families of victims engaged in a long fight to obtain compensation. Likewise in the Philippines, the Eton tragedy has an ongoing trial against the owners and contractors of the Eton residences on the grounds of reckless imprudence resulting in the death of 10 workers on the site. The year 2013 marked the 20th anniversary of the Kader fire in Thailand whose victims have still not been compensated fully and the employer has not been penalised for the crime.

Introduction 17

Victims’ organising

Lastly, the ‘victims’ in these pages are not silent, helpless spectators but active agents of change. Historically, it has been seen that workers have received justice only after organising a strong network of victims as seen in the case of Black Lung Association in the United States which acted as a forceful pressure group seeking justice for these victims.

Similarly in Asia, the victims of work-related injury and disease are increasingly leading the struggle for justice on the ground, and many of the gains in different countries can be directly attributed to the action of a victims’ movement which not only helps the victims to receive just compensation but also forces improvement of the workplaces. In Japan, occupational and environmental victims are united in their struggle, forming a strong victim’s movement, which has led to success in relief schemes for the victims. It must be recognised here that though Hong Kong and Japan have an institutionalised system of compensation, the present situation is the result of a long struggle by many different groups within Japan and Hong Kong. Their action has led to the fruition of the current legal and compensation systems that is very thorough and detailed.

As has been seen through the organising work of the ANROEV network on the ground in China, Thailand and Bangladesh, the only way for workers to seek justice and gain commensurate compensation is by empowerment, understanding their rights, organising so that they better represent themselves and finally forming victims’ rights groups. The AMRC and ANROEV network will continue these efforts in building and sustaining victims’ networks in the region.

This handbook is intended to support the work of legal activists and practitioners alike in their ongoing fight to seek just compensation for workers and victims. AMRC will update the information in this handbook periodically with the aim of providing a more powerful tool to the network and to other workers and victims in the Asia region.

While many changes have been seen in the last decades in social, cultural, financial, industrial and other aspects of life in Bangladesh, very few changes have been made to improve the safety and health conditions of workers in vulnerable work situations. The labour force is close to 56 million, half of whom are engaged in agriculture. The ratio between workers employed in the formal sector and those in informal work is 20:80. The Bangladesh Labour Act, 2006, the key labour law of the country, does not cover enterprises employing less than five workers as well as workers in the informal economy. Thus, despite the nation’s many advances, the rights of a large section of the workforce as well as their health and safety at work remain undefined and unprotected.

According to ILO estimates, about 12,000 workers suffer from fatal ‘accidents’ and a further 24,000 die from work-related diseases in Bangladesh each year. It also estimates that a further eight million workers suffer from injuries at work – many of which will result in permanent disability. However, no acceptable official statistics exist at national level due to OSH underreporting practices. According to recent report by the Bangladesh Occupational Safety, Health and Environment Foundation (OSHE), which monitors newspaper reports, at least 1,363 workers died and 830 workers were injured in various work-related accidents in (calendar) 2012. The real death and injuries figures are assumed to be much higher than OSHE’s newspaper monitoring result or the estimation of the ILO. While the newspapers are under no obligation to report all workplace deaths and injuries, the difference in the numbers reported and the ILO estimate is too great to accept.

The five sectors with the highest workplace death and injury rates are garments, construction, shipbreaking, transport and agriculture The Bangladesh Labour Act sets out the circumstances in which ‘employers’ and others should pay compensation to an injured worker or – when a worker dies – to that worker’s dependents. A worker can obtain compensation for an ‘occupational disease’, when either of these conditions exist: The disease he or she contracts is considered to be ‘peculiar’ to the kind of employment in which he or she works as specified in Part A of Third Schedule of the Labour Law, or the worker,

BangladeshBy Repon Chowdhury

20 OSH Legal Resources Handbook

after a continuous period of employment of not less than six months in any employment specified in Part B of the Third Schedule, contracts a disease ‘peculiar’ to that industry (See Annexure). If either of these situations exist, then the disease is treated as an ‘injury by accident” and shall be deemed to have arisen in the course of employment.’

Two recent serious work accidents in Bangladesh have received widespread media coverage. The first was the collapse of Rana Plaza in Savar in Greater Dhaka in which 1,135 persons were killed and many more were injured. The workers were employed in four garment factories located in that building. The second was a devastating fire at Tazreen Fashions at Ashluia, which killed 111 garment workers making clothes for the world’s leading fashion brands, such as H&M, Wal-Mart, and Sears. The causes of these accidents were man-made, more specifically they were due to the negligence of safety procedures and practices by the factory owners. The injured workers and their families are now protesting in the street, struggling to gain proper compensation and social rehabilitation. These victims face a long wait and a long fight to obtain compensation, despite the fact that the Bangladesh Labour Law provides several different probations which could settle the cases in a timely manner.

I. Legal framework for workers’ protection

1.1 Bangladesh Labour Act 2006

The Bangladesh Labour Act 2006 was passed by Parliament with effect from 11 October 2006. With the enactment of this new law, 27 outdated pre-existing labour laws were repealed. These included the Factories Act 1965, Payment of Wages Act 1936, Shops and Establishments Act 1965, Maternity Benefit Act 1939, Industrial Relations Ordinance, 1969, and Employment of Labour (S.O) Act 1965.

The major sections of the Bangladesh Labour Act, 2006 are:

(i) Conditions of service and employmentThese sections include the conditions of employment, classification

of workers, letters of appointment and identity card, service book, form of service book, entries in the service book, registration of workers and supply of tickets and cards. (Sections 3-9)

Country Report: Bangladesh 21

(ii) Health and hygieneThese sections of the Act describe the terms and conditions of

cleanliness, ventilation and temperature, dust and fume, disposal of waste and effluents, overcrowding, lighting, drinking water, latrines and urinals, etc. in the workplace. (Sections 51-60)

(iii) Safety These sections include the regulations on the safety of the building

and machinery, fire precautions, fencing of machinery, work on or near machinery in motion, cranes and other lifting machinery, hoists and lifts, floors, stairs and means of access, etc. (Sections 61-78)

(iv) Working hours and leaveThese sections describe the rules and regulations regarding

daily working hours, intervals for rest or meals, weekly hours, weekly holiday, compensatory weekly holiday , night shift, extra allowances for overtime, casual leave, sick leave, annual leave with wages, festival holidays, etc. (Sections 100-119)

(v) Wages and paymentThese sections contain the special definition of wages,

responsibility for payment of wages, fixation of wage periods, time of payment of wages, wages to be paid in current coin or currency notes, deductions for absence from duty, etc. (Section 120-137)

(vi) Trade unions and industrial relations, disputesThese sections narrate the rules and regulations of special

definition of worker, trade unions of workers and employers, collective bargaining agent, participation committee, industrial disputes, lockout and strike, etc. (Sections 175-211)

(vii) PenaltiesThese sections detail the penalties for non-compliance with

Labour Court orders, including the penalty for employment of children and adolescents; the penalty for unfair labour practices; the penalty for an illegal strike or lock-out; the penalty for taking part in or instigating a go-slow campaign; and the penalty for general offences by workers. (Sections 283-307)


1.2 List of occupational diseases

The Bangladesh Labour Act 2006 recognises the following occupational diseases:1. Anthrax 2. Compressed air illness or its sequel3. Poisoning by lead tetraethyl4. Poisoning by nitrous fumes5. Poisoning by manganese6. Poisoning by carbon bisulphate7. Poisoning by tetraflorethane8. Poisoning by insecticides or pesticides9. Infection by leptospira icterrohaemorrhagica10. Poisoning by tricresyl phosphate11. Chrome ulceration or its sequel12. Injury caused by exposure to the glare or rays from molten glass or

molten or red hot metal13. Poisoning by beryllium14. Poisoning by dinitrophenol or a homologue15. Carcinoma of the mucous membrane of the nose or associated air

sinuses, or primary carcinoma of a bronchus or of a lung16. Primary neoplasm of the epithelial lining of the urinary bladder

(papilloma)17. Lead poisoning or its sequel excluding poisoning by lead tetraethyl18. Phosphorous poisoning or its sequel19. Mercury poisoning or its sequel20. Poisoning by benzene and its homologues of the sequel of such

poisoning 21. Arsenical poisoning or its sequel22. Pathological manifestations due to (a) radium and other

radioactive substances; (b) x-ray23. Primary epitheliomatous (skin cancer)24. Silicosis25. Coal miner’s pneumoconiosis26. Asbestosis27. Bagassosis28. Byssinonis29. Writer’s cramp30. Twister’s cramp31. Miner’s nystagmus32. Dermatitis33. Fibrosis of the lungs


II Procedures for payment of compensation

2.1 Payment of compensation

The Bangladesh Labour Act 2006 (BLA) sets out the circumstances in which employers and others should pay compensation to an injured worker or in the case of the death of that worker to his or her dependents.

The act gives the Labour Court the power to determine any question relating to whether an employer should pay compensation and, if so, how much compensation should be provided. However, in relation to any non-fatal injury, no application can be made by the injured worker to the court unless he or she has first tried to come to an ‘out of court’ agreement with the employer.

In contrast, in the case of a worker’s death, the Court is the body responsible for the distribution of the compensation to the worker’s dependents – and the employer should deposit the fixed amount of compensation with the court.

The act sets out the following procedure for an employer to pay compensation.1. The employer of a worker who has died should inform the Labour

Court about the circumstances of the death within seven days of the death taking place. Failure to do so is an offence.

2. The employer should deposit with the Labour court, Tk. one lakh (Tk 100,000) (US$1:Tk78.85). An employer can only be asked to give money if one of the workers were to die at work.

3. If, however, the employer has given money directly to the worker’s dependents as an ‘advance’ on the compensation, then the Labour Court, on receiving the deposit from the employer, shall return to the employer the sum of money already paid to the dependent.

4. After the money has been deposited, the Labour Court should summon the dependents to court to determine how the money should be distributed. It is entirely at the court’s discretion to determine how the money should be allocated between the dependents.

5. If the court considers that Tk.1 lakh is ‘insufficient’, it can request the employer to make a further deposit of money with the court within a particular time period, providing reasons for such a request. The employer is provided an opportunity to respond to this request, and the court can make a final decision on what further deposit is required.


Where the court is satisfied that no dependents exist, it can, after at least two years have passed, transfer the money for the benefit of the workers as the government specifies.

6. If the court has not been informed by the employer that a worker has died, but the court has been informed by some other source, the court may send by registered post a notice or a statement, in the prescribed form, giving the circumstances relating to the death of the worker, and request that the employer reply, indicating whether in the employer’s opinion he is or is not liable to deposit compensation.

� If the employer considers himself to be liable, he should deposit the compensation within 30 days of receiving the court’s notice;

� If the employer considers himself not liable to deposit compensation, he should in his statement to the court set out the reasons;

� The court should then consider the reasons, and, if appropriate, inform any of the dependents of the deceased worker that it is open to them to make a claim for compensation and provide any further necessary information.

It should be noted that although the Labour Act does not allow compensation to be given directly to dependents and in fact makes any agreement between the employer and dependents unlawful, it is the practice in Bangladesh for compensation, if it is given at all, to be given directly to the dependents.

2.2 Providing notice to the employer

The act sets out the circumstances in which the injured worker should give ‘notice’ to the employer about his or her injury. However, a notice does not need to be given if the accident resulting in the injury occurred:1) on the employer’s premises; 2) or at a place where the worker was under the control of the

employer; 3) or at a place that belonged to the employer;4) or if the injury came to the knowledge of the employer, or

any manager of the part of the business where the worker was employed, or from any source at or about the time that the accident occurred.


In all other situations – and in order to be able to subsequently make a claim before the Labour Court – ‘notice’ to the employer needs to be given. The act sets out the following rules in relation to giving notice:

Notice of the accident must be given to either the employer or to any person responsible to the employer for the management of any branch of the trade or business in which the injured worker was employed.

Notice must be given by providing; �� the name and address of the person injured;�� the cause of the injury in ordinary language; and �� the date on which the accident happened;

Notice is served if it is delivered at or sent by registered post to the residential or office address of the person on whom it is to be served or by entry in the office notice-book. The issue of ‘notice’ only becomes significant if the injured worker has not been able to agree the level of compensation with the employer and wishes to make a claim for compensation in the Labour Court.

2.3 Obtaining a medical examination

The act states that within three days of receiving notice that a worker has been injured, the employer should provide the worker with a free medical examination, to which the worker must agree.

Where the employer does not provide this medical examination, the worker can get himself examined by another medical examiner, and the employer must reimburse the costs.

Where the worker refuses to undertake a medical examination (as required by the employer or from an order of the Labour Court), unless there was sufficient reason for the refusal, his right to compensation is suspended until he agrees.

If either the worker or the employer is not satisfied with the medical report, they can refer the case to a medical specialist at least of a rank of an associate professor of a medical college.

2.4 Rates of compensation

Injuries that can result in compensation are divided into four categories:


�� permanent total disability;�� temporary total disability;�� permanent partial disability;�� temporary partial disability;

Following a ‘permanent total disability’, the employer must pay Tk125,000 to the worker, unless the injury is suffered by a person under 18 years of age in which case he must pay Tk10,000.

Following a ‘permanent partial disablement’ – where the injury is one which is mentioned in Schedule 1 of the Act (See Annexure of this report) – the level of compensation is determined by multiplying Tk125,000 (or Tk1.25 lakh) by the percentage linked to the particular injury in the schedule that represents the likely loss of earning capacity of that worker. Where the injury is not mentioned in the schedule, the level of compensation is a figure representing the percentage of loss of earnings to the worker which is then multiplied by Tk125,000.

In cases of temporary disablement, whether total or partial, the employer should pay wages for the period of disablement, though this period should be no longer than a year and should compensate the worker according to the following:

(a) for the first two months, the employer should pay full wages;(b) for the next two months, the employer should pay two-

thirds of the monthly wages; (c) for the remaining months, the employer should pay half of

the monthly wages.

Where more than one injury is caused by an accident causing permanent partial disablement, the amount of compensation for each injury should be aggregated, but it should not exceed the total amount allowed for permanent total disability.

In the case of a ‘chronic occupational disease’, the worker will receive half of his monthly wages during the period of his or her disablement for a maximum of two years.

2.5 Compensation by agreement

The Bangladesh Labour Act requires that the worker and the employer should attempt to agree a level of compensation – and can only file a case in court when agreement on a settlement has failed. All agreements involving a lump sum payment (i.e. cases involving total or partial permanent injury) must be registered with the court.


The employer should first send a memorandum to the court setting out the terms of settlement. The court should then communicate to both parties that it intends to register the agreement based on the figures that were sent by the employer; and after waiting for at least seven days, the court should then register the agreement.

If the employer fails to send a memorandum of the agreement to the court, the employer is liable to pay the full amount of compensation as required by law. However, if the employer has in fact paid the worker more than twice what the law requires (i.e. more than Tk250,000 if the worker suffered a permanent disability), the employer cannot deduct more than half of the money paid unless the court authorizes this.

2.6 Failure to reach an agreement

If it is not possible for the worker and the employer to agree on the amount of compensation, the worker must file the case “as soon as practicable” and within two years of the incident, though if there is a delay, the court can still consider the claim, if it considers that there was ‘sufficient cause’.

Appeals to the Labour Appellate Tribunal are allowed when there is a ‘substantial question of law is involved’ and in most situations when the sum in dispute is more than Tk 1,000. No appeals are allowed if the parties agreed to abide by the decision of Labour Court. Appeals should be made within sixty days of the ruling of the court.

Under Section 157 (2) of the act, where the accident involves the contracting of a disease, the accident shall be deemed to have occurred on the first day on which the worker was continuously absent from work in consequence of the disablement.

III Challenges and recommendations

Issues of occupational health and safety in the workplace and the awarding of proper compensation are often complex and drawn out over a long period of time. As such a single worker cannot hope to handle these issues on his or her own. Many of these issues would be ably monitored and managed by a trade union. However, the Committee of Experts of the International Labour Organization (ILO) has for years enumerated the many ways in which the Bangladesh’s Labour Act of 2006 fails to comply with the minimum requirements of ILO Conventions 87 on the Freedom of Association and the Right to Organize and Convention 98 on the Right to Organize and Collective Bargaining.


In 2012, the Committee of Experts again restated these observations. It is very important for the Ministry of Labour and Employment to address fully each of these deficiencies. Of particular note is the current minimum membership requirement of the Act that requires that 30 percent of the total number of workers employed in an establishment or group of establishments participate in the union. This is far too high, erecting a nearly insurmountable barrier to union formation, especially in large enterprises.

The inclusion of other classes of workers, currently not covered by the law, including informal workers – such as domestic workers – is vitally important. The government of Bangladesh should be required to make sure all workers are able to fully enjoy the rights afforded by Conventions 87 and 98.

While establishing a juridical framework consistent with international obligations is essential, the government also fully implements those laws in practice. The government urgently needs to establish expeditious procedures for the registration of trade unions. The registration of trade unions should be a simple, administrative process. If there are deficiencies in an application, the applicants must be apprised of those problems and be allowed to amend their application accordingly.

3.1 Practical problems regarding the Labour Court in Bangladesh:

Practical problems regarding the Labour Court in Bangladesh include:

• Thenumberof labour courts available inBangladesh isinsufficient to handle the volume of cases.

There are only seven labour courts in Bangladesh. Of the seven labour courts, three are in Dhaka, two in Chittagong, one each in Rajshahi and Khulna.

With so few courts handling these cases, it is not possible to enforce many of the labour-related laws. Therefore, the number of labour courts should be increased to more expeditiously handle the volumes of cases. Government must take the necessary initiatives in this regard.

• ThemembersoftheCourtarenotprovidedwithreasonablefacilities and reasonable remuneration. This is demotivating and discouraging and as such hampers the early disposal of cases.


Therefore, it is recommended that a standard remuneration package along with admissible benefits should be offered to the members of the court. It is believed that if lucrative remuneration were offered to these officers of the court, the speed of the work would also increase.

• TheMembersofLabourCourtareappointedonapart-timebasis.

We think that this is one of the main reasons for the backlogs of cases. Therefore, it is recommended that the appropriate government departments should address this issue for necessary remedy.

• Section218 (11)of theBangladeshLabourCode,2006states that- “The Judgment of the Labour Appellate Tribunal shall be delivered within a period of not more than 60 days following the filing of the appeal…provided that, no such judgment shall be rendered invalid by reason only of any delay in its delivery.”

Because of the last part of this provision, it can take as long as four to five years to get a judgment. In addition, there is a chance of time petition by the parties, especially employers. Because of this lengthy process, workers are reluctant to pursue an appeal of their case. A lack of financial resources prevents the workers from filling cases against management. In addition, the frequent shifting of the date of the hearing frustrates aggrieved and ailing workers

It is recommended that the law be amended to include a clause stating that the Judgment of the Labour Appellate Tribunal shall be delivered within a period of not more than 60 days following the filling of the appeal..

• TheGovernmentandotherrelevantagenciesarereluctanttopay proper attention to the problems of Labour Court.

The latter issue is another reason for the backlog of cases. To overcome this problem, the government, along with other relevant agencies, should clarify the channels of responsibility and assign adequate manpower to facilitate the proper operation of the courts.

3.2 Misuse of the “termination clause”

The ‘termination clause’ is a black law which remains in the new Labour Code. A termination notice is considered the safest step for the employer to remove a worker. Though it is the safest step, it could be


the most expensive method of removing a worker in the sense that the employer will have to give four months’ notice of termination or wages in lieu of the same period and compensation which is a much higher sum compared to simple discharge and dismissal. With this clause, wide power is given to the employer for the purpose of removing a worker from his workplace. Now, the question arises whether the four months’ notice or wages in lieu of the same period is sufficient to remove a worker from his service without any reasonable grounds. A worker may not able to find suitable work within four months. Because of this termination clause, the employers have a great loophole in to the Bangladesh Labour Code, 2006 as regards proper compensation of workplace injury or illness.

It is strongly recommended that this clause be removed from the Bangladesh Labour Code, 2006. Although the court in the case of U.B. Datt & Co. vs. Workmen, AIR 1953 SC 411 held that if the termination of service was an improper exercise of the power or as a result of victimization or unfair labour practice, the labour court or tribunal would have jurisdiction to intervene and set aside such termination. Nevertheless, most of the time the workers do not get natural justice (i.e. does not get back his job).

For this reason and for the purpose of protecting the interests of workers, the ‘termination clause’ should be removed from the Labour Code.

3.3 Limitations of the Labour Administration and Inspection Office

The Ministry of Labour and Employment has several agencies or departments under its administration. The Department of Inspection for Factories & Establishments is one of those. There are some limitations relating to the Department of Inspection for Factories and Establishments including the following:

Absence of provisions on the inspection of a factory under construction

To start any activity, a factory must fulfil some requirements. For example, prior written permission from the Chief Inspector (CI) is compulsory before setting up a factory according to the Labour Code. The duty of the Ministry’s Engineering Wing is to approve the plans for the factory. If plan is satisfactory, then the Chief Inspector will provide a certificate of registration to the concerned employers who want to set up a factory.


According to Section 326 of Bangladesh Labour Code, 2006, “If an application for permission accompanied by the plans & specifications is sent to the Chief Inspector and no order is communicated to the applicant within two months from the date of its receipt by the Chief Inspector, the permission applied for in the said application shall be deemed to have been granted.”

If the Chief Inspector refuses permission, then the aggrieved party, within 60 days of the date of such refusal, can appeal to the government, i.e. to an authority higher than the Chief Inspector.

Factories’ Inspection Office (IO) lacks manpower

Most of the time the Inspection Office fails to execute the laws relating to factories. Their argument is a lack of manpower. As of December 2012, a total of 28,246 factories were registered under the Inspection Department. In addition, around three million establishments of various types, 170 tea gardens and 80 ship breaking yards were also covered by this department.. But there are only 182 inspectors in the Department of Inspection for factories and establishments. It is impossible for the department to fulfil its responsibilities with such a small staff. The Inspection Office has stated that if the number of inspectors can be increased in line with the total number of factories and establishments, then it could carry out its duties properly.

Lack of provisions for receiving and handling complaints at the Inspection Office

It is not only a question of manpower that hinders the efficacy of the Inspection Office. There are many problems regarding the construction and operation of factories where the remedies are far from simple. However, we believe that the Inspection Office can handle these issues effectively.

3.4 Problems relating to the multi-standard definition of ‘child labour’

A ‘child’ has been defined in the United Nations’ Convention on the Rights of the Child (UNCRC) as a person under the age of 18 years. This includes infancy, early childhood, middle childhood and adolescence. This is the universally accepted definition of child, though the convention allows every society to draft its own laws and customs.


ILO Convention 182 similarly recognizes all people under the age of 18 as a child. This definition is gaining acceptance all over the world. ‘ILO Convention 182 is a convention which addresses the worst forms of child labour. It was ratified by Bangladesh in 2001.

However, the laws of Bangladesh have not been consistent in their definition of ‘child’. For example, the ‘Employment of Children Act, 1938’ defines a child as a person who has not reached fifteen years of age. In Section 353 of the Labour Code, 2006 it is stated that the laws No. 2 and 7 (i.e., The Children/Pledging of Labour Act, 1933), as well as The Employment of Children Act, 1938 and the Factories Act, 1965 have all been repealed. However, ‘The Children Act, 1974’ has not been repealed, meaning this act is still in force.

In ‘The Children Act, 1974’ a child is a person who has not yet reached 16 years of age. Moreover, the Contract Act, 1872 & the Majority Act defines a child as one who is under 18 years of age. But as per section 2(63) of the Labour Code, 2006- “a child” means a person who has not completed his fourteenth year of age.”

That means the definition of a child is inconsistent. The condition of Bangladeshi working children can easily be presumed from this multi-standard definition of child under the laws of the country. Most of these differences in the laws are on the age of the working children. In summary, most of the child labour laws in this country have some defect to correspond with the definition of UNCRC and differ amongst themselves.

Hence, it is important to develop a uniform definition of child in line with the UNCRC that will be applicable for all the purposes.


ANNEXURE

Schedules 1, 2, 3 and definition of ‘worker’ in BANGLADESH LABOUR ACT 2006

SCHEDULE I[Section 2 (1), (67) and Section 151]

List of injuries deemed to result in permanent partial disablement

SL. Description of injuries percentage of loss of NO earning capacity 1. Loss of both hands of amputation at higher sites 100 2. loss of a hand and a foot 100 3. Loss of sight in both eyes to such an extent as 100 to render the claimant unable to perform any work for which eyesight is essential 4. Double amputation throughout leg or thigh, 100 or amputation of leg or thigh on one side and loss of either foot 5. Very severe facial disfigurement 100 6. Absolute deafness 100 7. Amputation through shoulder joint 80 8. Amputation below shoulder with stump less 70 than 20 centimetres from tip of acromion 9. Amputation from 20 centimetres from tip of 60 acromion to less than 11 centimetre s below tip of olecranon 10. Loss of a hand or of the thumb and four fingers 60 of one hand or amputation from 20 centimetres below tip of olecranon 11. Loss of thumb 30 12. Loss of thumb and its metacarpal bone 30 13. Loss of four fingers of one hand 50 14. Loss of three fingers of one hand 30 15. Loss of two fingers of one hand 20 16. Amputation through both feet proximal of thumb 10 17. Amputation of both feet 90 18. Amputation through both feet proximal to the 80 metatarso phalangeal joint 19. Losses of all toes of both feet throughout 40 20. Loss of all toes of both feet proximal to the 30 proximal inter phalangeal


21. Loss of toes of both feet distal to the proximal 20 phalangeal joint 22. Amputation at hip 90 23. Amputation below hip with stump not exceeding 80 12.5 centimetres in length measured from tip or great trochanter but not beyond middle thigh 24. Amputation below hip with stump not exceeding 70 12.5 centimetres in length measured from tip of great trochanter 25. Amputation below middle thigh to 9 centimetres 60 below knee 26. Amputation below with stump exceeding 9 50 centimetres but not exceeding 12.5 centimetre 27. Amputation below knee with stump exceeding 40 12.5 centimetres 28. Amputation of one foot resulting in end-bearing 30 stump 29. Amputation through one foot proximal to the 30 metatarso phalangeal joining 30. Loss of all toes of one foot through the metatarso 20 phalangeal joint

Other injuries 31. Loss of one eye, without complications, the other 40 being normal 32. Loss of vision of one eye without complication of disfigurement of eye ball, the other being normal 30

Fingers of right or left hand: Index finger 33. Whole 14 34. Two phalanges 11 35. One phalanx 9 36. Guillotine amputation of tip without loss of bone 5

Middle finger 37. Whole 12 38. Two Phalanges 9 39. One phalanx 7 40. Guillotine amputation of tip without loss of bone 5

Ring or little finger 41. Whole 7 42. Two Phalanges 6 43. One phalanx 5 44. Guillotine amputation of tip without loss of bone 5


Toes of right or left foot 45. Through metatarso- phalangeal joint 10 46. Part, with some loss of bone 3

Any other toe 47. Through metatarso- phalangeal joint 3 48. Part, with some loss of bone 2

Two toes of one foot, excluding big toe 49. Through metatarso- phalangeal joint 5 50. Part, with some loss of bone 2

Three toes of one foot, excluding big toe 51. Through metatarso- phalangeal joint 6 52. Part, with some loss of bone 3

Four toes of one foot, excluding big toe 53. Through metatarso- phalangeal joint 9 54. Part, with some loss of bone 5


SCHEDULE II

[Section 82 and 83]List of modifiable diseases

1. Lead poisoning;2. Lead terrachthyl poisoning;3. Phosphorus poisoning;4. Mercury poisoning;5. Manganese poisoning;6. Arsenic poisoning;7. Poisoning by nitrous fumes;8. Carbon bi-sulphide poisoning;9. Benzene poisoning including poisoning by any of its homologues,

their nitro or amino derivatives;10. Chrome ulceration;11. Anthrax;12. Silicosis;13. Poisoning by Halogens;14. Pathological manifestations due to x-ray or radium or other radio-

active substances;15. Primary epithilmatous cancer of the skin;16. Toxic anaemia;17. Jaundice arising from poisonous substance;18. Oily abscess or dermatitis arising from mineral oil or compound

of mineral oil;19. Byssionsis;20. Asbestosis;21. Occupational or touchy dermatitis arising from chemical sub-

stance or dyes;22. Deafness due to high sound;23. Beryllium poisoning;24. Carbon-monoxide;25. Coal miners’ pneumoconiosis;26. Phosgene poisoning;27. Occupational cancer;28. Isosientis poisoning;29. Poisonous kidney pain;30. Tremulous occupational disease.


SCHEDULE III

List of injuries deemed to result in permanent partial disablement.List of occupational diseases

Sl. Occupational Employment No

PART-A

1. Anthrax Any employment (a) involving the handling of wool, hair, bristles, animal carcasses, or residues thereof; or (b) in connection with animals infected with anthrax; or (c) involving the loading, unloading or transport of any merchandise. 2. Compressed air illness or Any process carried on in compressed its sequelae. air. 3. Poisoning by lead tetraethyl Any process involving exposure to the fumes. 4. Poisoning by nitrous fumes Any process involving exposure to nitrous fumes. 5. Poisoning by manganese. The use of handling of, or exposure to the fumes, dust or vapour of manganese or a compound of manganese or substance containing manganese. 6. Poisoning by carbon The use of handling of, or exposure to bisulphate. the fumes, dust or vapour of carbon bisulphate or a compound of carbon bisulphate or a substance containing carbon bisulphate. 7. Poisoning by tetracholorethane The use of handling of, or exposure to the fumes, dust or vapour containing tetracholorethane. 8. Poisoning by insecticides or The spraying of insecticides or Pesticides. pesticides.

PART-B

9. Infection by leptospira Employment in rat infested work icterrohaemorrhagica. places. 10. Poisoning dinitrophenol or a The use or handling of, or exposure to homologue. the fumes of, or vapour containing tricresyl phosphate.


11. Poisoning by tricresyl Phosphate. The use or handling of, or exposure to the fumes of, or vapour containing tricresyl phosphate 12. Chrome ulceration or its sequelae. The use or handling of chromic acid, chromates or dichromate of ammonium, potassium, sodium or zinc, or any preparation or solution containing any of these substance. 13. Contact produced by exposure Frequent or prolonged exposure to the to the glare or, or rays from glare of, or rays from, molten glass or molten glass or molten or red red hot metal. hot metal. 14. Poisoning by beryllium. The use or handling of, or exposure to the fumes, dust or vapour of beryllium or a compound of beryllium or a substance containing beryllium. 15. Carcinoma of the mucous Any occupation in a factory where membrane of the nose or nickel is produced by decomposition associated air sinuses or Primary of a gaseous nickel compound which carcinoma of a bronchus or of involves work in or about a building or a lung. building where that process any other industrial process ancillary or incidental thereto is carried on.16. Primary neoplasm of the (a) work in a building in which any epithelial lining of the urinary of the following substances if bladder (papilloma) of the produced for commercial purpose: bladder. I. alpha-rephthylamine, beta naphthylamine or benxidine or any of their salts; II. auramine or magenta; (b) the use or handling of any of the substance mentioned on sub- paragraph (i) of paragraph (a) or work in a process in which any such substance is used or handled or is liberated. 17. Lead poisoning or its sequelae Any process involving the use of lead or excluding poisoning by lead its preparation or compounds except tetraethyl. lead tetraethyl.18. Phosphorous poisoning or its Any process involving the use of sequelae. phosphorous or its preparations or compounds.19. Mercury poisoning or its sequelae. Any process involving the use of mercury or its preparations or compounds.


20. Poisoning by benzene and its Handling benzene or any of its homologues of the sequelae of homologues any process in the such poisoning. manufacture or involving use of benzene or any or its homologues. 21. Arsenical poisoning or it sequelae. Any process involving the production, liberation or utilization of arsenic or its compounds. 22. Pathological manifestations Any process involving exposure to the due to (a) radium and other action of radium, radio-active radioactive substances; (b) X-ray substances. or 23. Primary epitheliematous cancer Any process involving the handling or of the skin. use of tar, pitch, bitumen, mineral oil, paraffin, or the compounds, products or residues of these substances. 24. Silicosis Any employment involving exposure to the inhalation of dust containing silica. 25. Coal miner’s pneumoconiosis Any employment in coal mining. 26. Asbestosis any employment in- (1) The production of (i) Fiber cement material; or (ii) asbestos mill board. (2) the processing of ores containing asbestos. 27. Bagassosis Any employment in the production of bagasse mill board or other articles forms bagasse. 28. Byssinonis Any employment in cotton-rooms, blowing-rooms or carding rooms in such factories where spinning of row cotton is carried on. 29. Writer’s cramp Hand-writing for prolonged periods. 30. Twister’s cramp The twisting of cotton or woollen (including worsted) yarn. 31. Miner’s nystagmus Work in poorly illuminated mines. 32. Dermatitis (1) Any occupation where organic or inorganic chemicals are used or handled. (2) Any occupation where any materials are handled manually. 33. Fibrosis of lung Arises out of jute and cotton fibres.


SCHEDULE VI

See section 150(8)

List of persons who, subject to the provision of section 150(8), are included in the definition of worker:

Any person who is-(1) employed, otherwise than in a clerical capacity or on a railway, in

connection with the operation or maintenance a lift or a vehicle propelled by steam or other mechanical power or by electricity;

(2) Employed in any premises wherein, or wherein, or within the precincts whereof, on any day of the preceding twelve months, ten or more persons have been employed in any manufacturing process, or in any kind of work whatsoever incidental to or connected with any such manufacturing processor with the article made, and steam, water or other mechanical power or electrical power is used but not person employed solely in a clerical capacity in any room or place here on manufacturing process is being carried on;

(3) employed in any premises for the purpose of making, altering, repairing, commenting, finishing or otherwise adapting for use, transport or sale any article or part of any article in any premises wherein or within the precincts whereof on any one day of the preceding twelve months, five or more persons have been so employed;

(4) employed in the manufacture of handing of explosives in any premises wherein or within the precincts whereof, on any one day of the preceding twelve months, ten or more persons have been so employed;

(5) employed in any kind of work in a mine other than clerical work, incidental to or connected with any mining operation or with the mineral obtained, or in any kind of work whatsoever below ground; provided that any excavation in which on no day of the preceding twelve months were more than fifty persons present and the shaft does not exceed twenty feet then shall be deemed not to be mine for the purpose of this clause;

(6) employed as the master seaman, sailor or otherwise on any ship or any inland vessel which is propelled wholly or in part by steam or other mechanical power or by electricity or which is towed or intended to be towed by a ship so propelled;

(7) employed for the purpose of loading, unloading, fuelling, constructing, repairing, demolishing, cleaning, or painting, any ship


of which he is not the master or a member of the crew, or in the handling or transport within the limits of any port subject to the Ports Acts 1908 (XV of 1908), of goods which have been discharged from or are to be loaded into any vessel;

(8) employed in loading and unloading of goods in the mechanically propelled vehicles in the Chittagong and Mongla Ports;

(9) employed in the construction, repair or demolition of-a) any building or structure; orb) any dam or embankment which is twenty feet or more in height

from its lowest to its highest point; or c) any road, bridge, or tunnel; ord) any wharf, quay, sea-wall or other marine work including any

mooring ships;(10) employed in setting up, repairing maintaining, or taking down any

telegraph or telephone line or post any overhead electric line or cable or post or standard for the same;

(11) employed, otherwise than in clerical capacity, in the construction, working repair or demolition or any aerial ropeway, canal pope-line, or sewer;

(12) employed in the service of any fire brigade;(13) employed upon a railway either directly or through a sub-contractor,

by a person fulfilling a contact with the railway administration;(14) employed as an inspector, mail guard sorter or van peon in the

Railway Mail Service, or employed in any occupation ordinarily involving outdoor work in the Posts and Telegraphs Department;

(15) employed as treasurer clerks performing outdoor duties in the posts, Telegraph and Telephone Department;

(16) employed, otherwise than in a clerical capacity, in connection operations for winning natural petroleum or natural gas;

(17) employed in any occupation involving blasting operations;(18) employed in the making of any excavation in which more than

twenty five persons have been employed or explosives have been used, or whose depth from its highest to its lowest point exceeds six feet;

(19) employed in the operation of any ferry boat capable of carrying more than ten person;

(20) employed, otherwise than in a clerical capacity, on any estate which is maintained for the purpose of growing coffee, rubber or tea, and or which twenty five or more persons have been so employed;

(21) employed, otherwise than in a clerical capacity, in the generating, transforming or supplying of electrical energy or in the generating or supplying of gas;


(22) employed in lighthouse as defined in clause (d) of section 2 of the Lighthouse Act, 1927 (XVII of 1927);

(23) employed in producing cinematograph pictures intended for public exhibition or in exhibiting such pictures;

(24) employed in conducting training elephants and other wild animals and its related works;

(25) employed in the tapping of palm-trees or the felling or logging or trees, or the transport of timber by inland waters, or the control or extinguishing of forest fire;

(26) employed in operations for the catching or hunting of elephants or wild animals;

(27) employed as driver;(28) employed in the handling or transport of goods in, or within the

precincts of any warehouse or other place in which goods are stored, and in which at least tan persons have been so employed; or any market in which at least one hundred persons have been so employed;

(29) employed in any occupation involving the handling and manipulation of radium of X-ray apparatus, or contact with radioactive substance;

(30) employed in the service of watch and ward.

I. Legal framework for occupational safety and health in Cambodia

1.1 Existing laws on OSH

The Department of Occupational Safety and Health was established within the Ministry of Labour after the first term of the Royal Government of Cambodia. At that time, this department was implemented under the Labour Code, 1992. However, implementation was not effective. It was not until the enactment of the current labour law in 1997 that occupational safety and health (OSH) was provided to workers. Chapter VIII of the Labour Law of Cambodia clearly shows the official national concern over the safety and health of workers and provides the scope of application of the regulations, followed by Chapter X which deals with work-related accidents.

Since then, the Ministry of Labour and Vocational Training has issued several dozen pieces of legislation, aimed at providing better protection of workers, their health and better regulation of the environment of the workplace. In all, the following regulations concerning OSH issues have been released in the past 12 years:

• PrakasNo052dated10February2000concerningthesanitarytoilet;

• PrakasNo053dated10February2000concerningtheseatingarrangement at the workplace;

• PrakasNo.054dated10February2000concerningtheprovisionof safe drinking water;

• PrakasNo.330dated6December2000concerningtheCreationof Enterprise Infirmary;

• PrakasNo.124dated15 June2001concerning the liftingofheavy objects by hand;

• PrakasNo.125dated15June2001concerningairventilationandsanitation;

• PrakasNo.139dated28June2001concerningConditionsandMissionsoftheEnterprisePhysicians;

CambodiaBy Theany Choeurng & Atith Kong


• PrakasNo.147dated11June2002concerningtheTemperatureAmbience at the Workplace;

• PrakasNo.138dated22April2003concerningNoiseat theWorkplace;

• PrakasNo.139dated22April2003concerningWorking inaConfined space;

• PrakasNo.484dated23December2003concerningtheLightand the Lighting;

• PrakasNo.106dated28April2004concerningtheprohibitionof working children working in dangerous workplaces;

• PrakasNo.086dated03May2006concerningtheCreationofthe HIV/AIDS Committee in Enterprises and Establishments and Managing HIV/AIDS in the workplace;

• PrakasNo.305dated14December2007concerningMaritimeFishing;

• PrakasNo.306dated14December2007concerningtheWorkingandLivingConditionsonPlantations;

• PrakasNo.308dated14December2007concerningtheWorkingandLivingConditionsinSaltFields;

• PrakasNo.309dated14December2007concerningtheWorkingand Living Conditions in Brick Enterprises;

• PrakasNo.307 dated 14December 2007 concerning theOccupational Health and Safety Conditions in Garment and Shoe Factories.

• PrakasNo.077dated30March2011concerningtheInformationat the Construction Site

• PrakasNo.075dated30March2011concerningtheSanitationat the Construction Site

• PrakasNo.076dated30March2011concerningthePreventionof Risks associated with the Changing Weather Conditions at the Construction Site

• PrakasNo.078dated30March2011concerning theStorage,Waste Management and Cleanliness at the Construction Site

• TheLawonSocialSecuritySchemes forPersonsDefinedbytheProvisionsof theLabourLaw,promulgatedbyRoyalKrom(Order)No.NS/RKM/0902/018,dated25September2002.Thelawcomprises sixchaptersand41articles.Chapter1:GeneralProvisions;Chapter2:PensionScheme;Chapter3:OccupationalRisk;Chapter4:CommonProvisions;Chapter5:Penalties;andChapter6:FinalProvisions;

• PrakasNo.343dated10September2002concerningtheNoticeon work-related accidents, compensation and invalidity;

Country Report: Cambodia 45

• AnnouncementNo.003dated10February2004oftheMinistryin charge of Labour to remind all enterprises and establishments tocomplywellwith theprovisionsofallPrakas issuedby theMinistry concerning OSH;

• AnnouncementNo.089dated4September2009concerningthepreventivemeasuresonnewavianinfluenzaA(H1N1).

• CircularconcerningapplicationofJointPrakasNo.330dated6December2000andJointPrakasNo.139SKBYdated28June2001.

1.2 Rectangular Strategy for Growth, Employment, Equity and Efficiency in Cambodia

While the government’s concern over OSH issues is clear, there is no one law or policy specifically addressing OSH matters. However, regulations contained in the Royal Government Rectangular Strategy (PhaseII)ofthe4thmandateonSide3andSide4oftheRectangularIII and Side 2 of the Rectangular IV address OSH issues and labour law reforms.1

TheSide3ofRectangular III focuses on “job creation andensuring better working conditions for workers and employees”. The Royal Government will implement a systematic policy aimed at:

(i) Creating jobs, especially for young people entering the labour market, and for all Cambodian workers through various measures which encourage domestic investment in priority sectors, especially agriculture, agro-industry, labour-intensive industries and tourism;

(ii) Establishing skills’ training networks for the poor, linked to employment assistance, especially for young people and new graduates to respond to new labour market needs;

(iii) Developing a Labour Statistical System. More attention will be focused on improving the management of foreign workers in Cambodia to create jobs for Cambodian citizens and facilitate the transfer of new technology for national development.

1 In the official government English translation: The Rectangular Strategy for Growth, Employment, Equity and Efficiency in Cambodia is “…depicted as an integrated structure of interlocking rectangles that represent sustainability and stability in the same way as a strong table or chair firmly stands on four pillars.” The Rectangular Strategy is the Economic Policy Agenda of the Political Platform of the Royal Government, launched at the start of the Third Legislature of the National Assembly and continued in the Fourth Legislature.


Separately,Side4of theRectangularStrategy focuseson theestablishment of a social safety net for civil servants and private sector workers. The Royal Government has also stated it will seriously enforce the Labour Law and international conventions related to the role of trade unions to insure the rights and benefits of workers, employees and employers. The Royal Government will put special priority on improving the working conditions of workers and employees enhance the implementation of the Law on Social Security, encourage the implementation of pension funds, especially pensions for disability and dependents, and insurance for work accidents as stipulated in the Labour Law.

Side 2 of the Rectangular Strategy deals with ensuring enhanced health services: The Royal Government will continue to focus on the implementation of prevention programs and combat contagious diseases and promote maternal and child health care to reduce maternal and infant mortality, improve emergency services and provide health and sanitation education and information, especially in the rural areas. The poor shall be entitled to free health care in referral hospitals and health centres. Equity funds designed to help the poor in accessing quality health care services will be further strengthened and expanded.

1.3 OSH Master Plan, 2009-2013

While there is as yet no specific law on OSH, the government has anOSHMasterPlanwithproposalsforrelatedinstitutionsonOSHinCambodia. The Ministry of Labour and Vocational Training through the Department of Occupation Safety and Health has developed its masterplanforthefive-yearperiod2009-2013withthesupportoftheInternational Labour Organization (ILO).

The plan contains the following priority areas:• StrengtheningnationalOSHsystems

o Enact and study essential OSH regulationo Strengthen government OSH networks between central,

provincial and workplace levels o Develop tripartite consultation mechanismso Establish enterprise level OSH systemso Disseminate practical OSH information and training o Apply ILO OSH standards and prepare possible

ratificationso Promoteinter-ministerialandinter-agencycooperationo Promoteinternationaltechnicalcooperation


• Improvingsafetyandhealthinspectionandcompliancewithlabour lawso Strengthen safety and health inspection capacitieso Increase inspection coverageo Planandimplementstrategic inspectioninsafetyand

healtho Strengthen work-related accident investigation and

injury reporting systems• PromotingOSH activities in employers’ andworkers’

organizationso Support employers to meet international business

requirements in OSHo Help trade unions to extend OSH protection activities o Promotedialogueandcooperation inOSHbetween

workers and employers• Implementspecialprogrammesforhazardousoccupations

o Improve compliance and training in various types of construction work

o Improve safety and health in mining o Identify high-risk occupations to provide special

protection measures• ExtendOSHprotectiontosmallenterprisesandruraland

informal economy workplaces;o PromoteWork Improvement for SmallEnterprises

(WISE) and Work Improvement for Safe Home (WISH) training programmes for small enterprises and home workers,

o Network small enterprises and homeworkers forexchanging OSH information and experiences,

o PromoteOSHtrainingforfarmers• Promotecollaborativeactionswithhazardouschild labour

and HIV/AIDS projects for stronger compliance;o Eliminate hazardous child labour,o Enforce PrakasNo. 086 concerning the creation

of the HIV/AIDS Committee in Enterprises and Establishments and managing HIV/AIDS in workplace

o PromotecooperationbetweenOSHandHIV/AIDSactivities.

This master plan will be actively involved in by both workers and

employers’ organizations, together with the government. Currently, theProjectAdvisoryCommitteeonOSHhasbeenestablishedasa


tripartite body. This committee will oversee project implementation. The committee works on bringing policy making from the national to the provincial level.


In terms of occupational diseases, the department in charge of Occupational Safety and Health in the Ministry of Labour and Vocational Training` has been working hard to complete a list of all the occupational diseases that it might need to deal with. But as yet the list of occupational diseases in Cambodia has not yet been completely determined. It is likely that the Cambodian list may follow the list of injuries and diseases that the ILO has created. Hence, the list of occupational diseases developed by ILO may be the reference list for Cambodia in the meantime.

Determination of what constitutes an occupational disease, finally, accordingtothePrakasandsub-degree, istheburdenoftheMinistryof Labour and Vocational Training through the Department of Occupational Safety and Health. The department of OSH has formed a team called the ‘Scientific Team’ which has the authority to add and determine occupational diseases to be included on the national list.

Currently, the benchmark in use in Cambodia is a list of occupationalaccidentspreparedandclassifiedbytheNationalSocialSecurityFund(NSFF).Theseare:

No Types of accidents1 Electrocution2 Fireresultinginburnstothebody3 Fallfromheight4 Crushingbymaterialsorequipment5 Slippingonslipperysurfaces6 Squashingbyobjectsormachines7 Explosion of objects with high pressure 8 Lacerations9 Piercing10 Stumblingorcontactingwithobjects11 Twisting or tightening12 Activity using ultimate power13 Improperatmosphericpressure


14 Exposuretoradioactivity15 Exposuretodangeroussubstances16 Suffocation17 Fainting18 Accidentduringcommuting19 Accident in mining operations20 Occupationaldiseases21 Respiratory diseases 22 Heart disease 23 Brain(mental)diseases24 Otherkindsofaccidents

Furthermore, theNSSFalsoclassifiesoccupationalaccidentsby

the types of injury incurred. These are:

No Types of injuries1 Bone fracture 2 Ache (e.g. in the leg, arm, back)3 Sprain4 Cut5 Pierced6 Splitorcuts7 Bruise and internally injury following contact with heavy objects8 Subcutaneouswound/injuries9 Burns 10 Blinding11 Poisoning12 Drowning 13 Internalinjuries14 Otherkindsofinjuries


II Implementation of legislation, claiming compensation

2.1 Implementation

Currently, the Royal Government has assigned personnel to work onOSHissues.Amongthem,theNationalSocialSecurityFund(NSSF)plays an important role in OSH. There are three insurance programs intheNationalSocialSecurityFund:Employmentinjury insurance,health insuranceandpensioninsurance.TheNSSFis implementingPhaseoneoftheoccupational injury insurance.It ismanagedunderthe State fund of the Ministry of Labour and Vocational Training. This insurance is not yet in effect in terms of its application for workers who are seeking justice.

The process toward compensation is practical and straightforward, ifwe lookatwhattheNSSFhasbeendoingsofar.AllemployeesoftheenterprisesandinstitutionswhohaveregisteredattheNSSFhavethe right to receive compensation when they have accidents in the workplace. Occupational accidents also include accidents during the commute to work and occupational diseases. This allowance is totally theburdenoftheNSSF.HospitalsandpolyclinicshandlingthosewhohavehadaworkplaceaccidentmustberecognizedbytheNSSF.

2.2 Reporting accidents, claims for compensation

There are a number of steps to inform the authorities of an occupational accident. After being informed about the case of the accident by employees or employees’ representatives, the employers or enterprise owners who are participating in the implementation of the NSSFmustreportthe incidentwithin48hoursbyfilingformswiththe Ministry of Labour and Vocational Training and the Ministry of Health. After getting the report, the compensation department reports immediately to the inspection department. The inspection department will investigate and give its findings to the compensation department. The investigation is done according to procedures determined by the inspector.

When an accident occurs at the working place, the employers must provide emergency aid by sending the worker to the nearest hospital or clinic and then later send the victim to the hospital or policy clinicwhichisapartneroftheNSSF.AlloftheexpensesduringthisperiodaretheresponsibilityoftheNSSF.

On the worker’s s ide, in order to complain or sue for compensation,workersmust followanumberof steps.Firstly, they


have to report the accident that they have encountered to the company with the assistance from the trade union representative, if there is union representative in the factory. After that, the company will report to the NSSFforinvestigationoftheaccidentorinjury.Aftertheinvestigation,thestaffoftheNSSFwillinformandensurethattheaccidentorinjuryis really an occupational accident. If it is found to be so, they will calculate the compensation due to the victim. The calculation of the compensationfollowsaproceduredeterminedbytheNSSF.

III Barriers and challenges in seeking compensation

3.1 Analysis of the laws and system

There are many challenges for the worker in seeking compensation for a workplace injury or illness, the most challenging of which is that workers do not understand what OSH is. More importantly, though a number of workers have already been introduced to OSH, they still do not understand clearly the procedures to get compensation when they encounter an occupational accident or contract an occupational illness.

What is more, the procedure to get compensation is so complicated that it is difficult to understand and even the point person, the trade union representative who is responsible for OSH for the workers in a factory, may not be as knowledgeable as he or she should be to give proper assistance. Most workers have heard of OSH, but there are few who clearly understand the whole procedure for claiming andsecuringpropercompensation.Forthisreason,trainingandothercampaigns to raise awareness on OSH should be conducted more frequently and more widely so that workers can get their due social justice and benefits.

In addition, the length of time that a worker must wait for the compensation is so long that he or she usually cannot wait for a formal decision. Another factor is that the employers ignore the issues and do not want this system to exist in the company. The fact is that if theyacceptthesystem,theyhavetoregisterwiththeNSSFandmakemonthly payments to the fund for all their workers.

Another challenge is equipment. Since Cambodia is a developing country and the term OSH itself has just been introduced in Cambodia, the nation currently lacks the diagnostic equipment to implement it.Progress thusmaybe slow.At this time,Cambodia,through the Department of Occupational Safety and Health of the Ministry of Labour and Vocational Training has formed a Scientific


Investigation Team to search and develop the list of occupation diseases. However, due to the fact that the team does not have modern equipment, such as medical facilities with diagnostic equipment and instruments to investigate diseases, it has been unable to develop the list and get it approved.

This weak point – the lack of modern equipment – means that there is no clear cut system of identifying the types of occupational diseases as they are defined. Currently, some applications for compensation could not be solved due to the fact that the authorities do not or cannot accept the type of disease that the claimant says is an occupational disease

3.2 Case studies

The following cases show some of the common difficulties in making simple claims for OSH compensation system. The first case study describes a freak accident on factory premises, the second comes from the textile and garment industry, and the third is a nasty traffic accident involving a textile worker.

Case study 1

Khun Sokhom is a 24-year-old factory worker who met with a freak accident while on her lunch break. While waiting for her food at a food stall outside the factory on 10 August 2012, a gas cylinder exploded. The explosion injured her face, arms and legs. The company collected all the information related to this accident and reported her case to the National Social Security Fund.

At first, Sokhom had to pay all the costs of her treatment herself. She prepared the invoice, which stated the cost of treatment, for the company to submit to the National Social Security Funds and asked for assistance from the trade union. However, the agent of National Social Security Funds there worked very slowly and demanded some extra fees from her. After seven months, the National Social Security Funds still had not yet calculated the compensation due to her. Sokhom would like the National Social Security Funds to try to solve her case as soon as possible because she really needs the money. In addition, she has not received her salary for two months.

Case study 2

Chi Phea is 26 years old and works in the textile and garment industry. He had an accident on 18 October 2012, when he went as usual


to put in overtime work on the weekend. Travelling on his motorbike to work on Sunday at around 5 am, he was blinded by the lights of an oncoming car and crashed into a gully at the side of the road. He was knocked out and remained unconscious the whole day. His family reported his accident to the company and informed the leaders of the trade union based in his company to prepare the documents, the traffic police report, and the cost of the treatment.

However, when the family met with the company regarding the accident, the company refused to accept the report and replied that this case was not an occupational accident. After that, Phea took the invoice of the treatment and tried to submit it to the company, but the company responded that the National Social Security Fund would not accept this invoice because it was just the copy. The original invoice was lost and when the victim asked for another original copy, the doctor said he could only provide a copy of the invoice to him. He twice went to ask the company about paying for the cost of his hospital treatment, but the company told him that it takes a few months for a case like his. The case is still ongoing, and Phea has demanded that action be taken immediately as he really needs the money.

Case study 3

Kai Sareth is 32 years old and works in the garment and textile industry in Kandal province. In October 2012, Sareth had a traffic accident on her way home from work one evening. As she was just about to reach home, she was hit by the motor car coming from the opposite direction. Her knee, face (eyebrows), and chin were injured. She was also very frightened due to the fact that the motor driver who hit her accused her of pretending to be hit and falling down by herself. After the accident, she informed the leaders of the trade union which is based in her factory. Then, she prepared the documents, including the invoice of the medical treatment she received and the record of the accident from the traffic police. In the end the company sent all those documents to the National Social Security Funds.

As of the writing, Sareth has been waiting for almost two months for the compensation, amounting to 660,000 Riels (approximately US $165) from the NSSF.

3.3 Recommendations for OSH in Cambodia

One good way to improve the OSH conditions in Cambodian would be to establish the list of occupational diseases as quickly as


possible. To do this, there should be the best effort and support from thegovernmenttoprovideresourcesfortheOSHteam.Forinstance,the government should invest in buying the necessary equipment and diagnostic instruments needed. This will be fundamental to the whole process of implementing OSH programmes. More importantly, the ability of the scientific team has to be upgraded, so that useful research will be performed to best serve the OSH area.

The law also has to be strictly applied to all companies and information on OSH made available to employers and workers, and accessible by all workers. Everyone must make the working environment more favourable for workers and ensure the workplace is a suitable and safe place to work and that workers are not knowingly placed in dangerous or hazardous positions.

Training to raise the awareness of the workers regarding OSH matters should be made widely available, so that workers understand OSH, and the accessibility of the OSH system should be made known to them, There should be improved and streamlined services delivery which should be available at all times, including speeding up registrationofNSSFmembers,andcleardiagnosisandtreatment.

Finally,themostunsettlingissueforthoseintheOSHfieldandone which must be faced is the potential for corruption. If corruption is allowed to exist, it will ruin the whole process of OSH implementation. Hence, the institutions that are in charge of OSH implementation must ensure that they will not be compromised, corrupted or negligent in their duties. If this can be achieved, it can help greatly to promote safe and healthy conditions for workers, and in this way we will bring social justice to the nation’s working men and women.

References

Ministry of Labour and Vocational Training, The First Occupational Safety and Health Master Plan, 2009-2013 (International Labour Organization)2009.

NationalSocialSecurityFund,2011.Toolkits on the implementation of Occupational Accident Reporting(NationalSocialSecurityFund).

NationalSocialSecurityFund,Report on the Annual Achievements of 2011 and the Action plan for 2012.(NSFF)2012

I. Legal framework of work-related injury insurance

1.1 Foundation of work-related insurance law in China

While the first work-related injury insurance law of the People’s Republic of China (PRC) was The Labor Insurance Regulations Of PRC,1 promulgated in 1951, it was not until 1996 that the Ministry of Labor, as a result of the diversification of economic sectors and the high frequency of work-related accidents and injuries, put forth the Trial Procedures for Industrial Injury Insurance of Enterprise Employees. While this law has subsequently had a low legal hierarchical status, it played an important role in the launch of work-related or occupational injury insurance legislation in China. It established the basic model and philosophy of such legislation and marked the beginning of China’s work-related injury insurance.

The State Council published The Work-related Injury Insurance Rules in 2003. With this, work-related injury insurance law rose from departmental rules to administrative regulations, thereby gaining wider justification and stronger implementation. This helped work-related injury insurance become one of the nation’s social insurance schemes, enjoying the highest legal status, and further demonstrated work-related injury insurance in China had come to the stage of legislation.

The Social Insurance Law of the PRC was published on 28 October 2010. Chapter 4 of this law regulates work-related injury insurance through eleven articles and constructs the basic framework of work-related injury insurance in China. In accordance with the contents of this law, The Work-related Injury Insurance Rules were modified on 20 December 2010. The Construction Law and The Coal Law were

1 Article 12 of chapter 3 of the Labor Insurance Regulations of the PRC provides that the employee is entitled to enjoy work-related injury benefit after an industrial injury or accident. However, the coverage was narrow and the fund was mainly operated by each enterprise. An accident victim’s guarantee of receiving work-related injury compensation was dependent on the continued economic health of the enterprise itself. Thus work-related injury insurance as a social insurance system was not fully established at that time.

ChinaBy Yu Xinhua


also amended, resolving controversies in practice between these two laws and the Work-related Injury Insurance Rules. The altering of these laws made enforcing work-related injury insurance a priority, and provided that construction companies and coal mines must, by law, pay compensation to workers experiencing work-related injuries. The change in these laws also encouraged enterprises to provide accident injury insurance for workers performing borehole operations.

The Social Insurance Law is the main code as regards occupational safety and health (OSH) issues in China. This law is buttressed by two additional levels of laws, forming a multi-layered legal system of work-related injury insurance. The next level of laws in this system is shown below:

The Work-related Injury Insurance Rules; The Law on the Prevention and Control of Occupational Diseases;The Method of the Identification of Work-related Injury;The Measures for the Administration of the Occupational Disease Diagnosis and IdentificationThe Method to Pay Work-related Injury Insurance Premiums for Enterprises in Selected IndustriesThe Disposable Compensation Method for the Casualties of the Illegal Employment UnitInterim Measures to Pay Social Insurance Funds in Advance.

On 31 December 2011, The Law on the Prevention and Control of Occupational Diseases of the PRC was also modified which greatly improved the work-related injury insurance system in China.

Additional laws, considered auxiliary laws in the hierarchy of legislation, are:

The Prevention and Control Rules of Pneumoconiosis of PRCThe Production Safety LawThe Mine Safety LawThe Method of Declaration for the Occupational Disease Hazard ProjectThe Administrative Provisions of Occupational Health Supervision in WorkplaceThe Administrative Method of Occupational Health Guardianship and Supervision of the Employing Unit.

Country Report: China 57

1.2 Seeking compensation for work-related injuries: Determining the worker’s status

In China, the path of legal remedy taken by a worker suffering from a work-related injury will depend mainly on the worker’s legal status. The worker will usually be considered legally either in a labour relationship or in an employment relationship.

The so-called labour relationship encompasses the rights and obligations between the worker and employer according to legal norms. The Labor Law of PRC does not adopt the concept of the “employer” and “employee,” but instead uses “employing unit” and “worker.” The employing unit includes various organisations such as enterprises, individual economic organisations, various privately managed non-enterprise entities, the state organs, institutions, and social groups under special conditions. Under the Labor Law, a natural person cannot be the employing unit, so a day labourer or domestic worker employed by a family or individual is not considered a labourer, therefore cannot form a labour relationship. According to current legal thinking, the labour relationship must have three features, which are economic dependence, personal belongingness and organisational subservience.

In the labour relationship, the worker and employing unit are substantially unequal, so the labour relationship is not subject to the civil law but to the Labor Law. When the worker suffers a workplace injury or disease, he is covered by work-related injury insurance regardless of whether or not the employing unit pays the work-related injury insurance premiums for him or her.

The justification range includes:(1) If the employing unit pays the work-related injury insurance

premiums, the work-related injury insurance fund and the employing unit respectively pay corresponding benefits in accordance with The Work-related Injury Insurance Rules;

(2) If the employing unit pays no work-related injury insurance premiums, the employing unit should assume the work-related injury disability payments itself in accordance with The Work-related Injury Insurance Rules;

(3) If the employing unit does not participate in a work-related injury insurance scheme and refuses to provide work-related injury disability treatment, the worker should be paid by the work-related injury insurance fund and then fund will pursue cost recovery from the employing unit.


In an employment relationship, the employee provides labour for the employer, and in return the employer pays the contracted remuneration. This creates a relationship with rights and obligations. The employee in the employment relationship is considered to have equal legal status with the employer and is therefore protected by civil law rather than the Labor Law. If the worker in the employment relationship suffers a work-related injury, fault can be placed on the employer under tort liability in accordance with legal documents, such as The General Rule of the Civil Law, The Tortious Liability Law, and The Judicial Interpretation on Several Issues of Applicable Law in the Trial of Personal Injury and Compensation.

If a worker is considered to have a labour relationship with the employing unit, once the worker suffers a work-related accident and injury, the employing unit assumes responsibility and pays corresponding compensation according to The Work-related Injury Insurance Rules, regardless of whether the employing unit is at fault or not, and the worker cannot require the employing unit to assume the tort liability directly. Where the work-related accident and injury is caused by a third person, the worker could demand the third person to assume tort liability after receiving work-related injury insurance compensation. However, under Article 42 of The Social Insurance Law, the worker cannot be doubly compensated as to the medical care expenses. There are no regulations about whether the other benefits could be obtained at the same time. In fact, there are many different practices in different jurisdictions in China.

II. Content and basic procedures of work-related injury insurance in China

2.1 Coverage

The coverage of work-related injury insurance in China mainly includes: the workers of organisations such as various enterprises, individual businesses, institutions, social groups, privately managed non-enterprise entities, foundations, law firms and accounting firms, and the workers forming the labour relationship with the state institutions. In 2003, 45 million people were covered by work-related injury insurance. This number increased by four times in 2011 when 176.89 million people became covered.

China strengthened work-related injury insurance with the aim of providing coverage to former rural residents turned urban migrant workers (hereafter referred to as ‘rural migrant workers’), which as


a group generally suffered high rates of occupational injuries and illness. In 2006, the “peace program” was launched and promoted in two periods of five years each. This program, which encouraged rural migrant workers to participate in work-related injury insurance programs, achieved some success. A total of 68.28 million migrant workers had joined the insurance program by the end of 2011. At the same time, the work-related injury insurance scheme was expanded to cover more ordinary workers. Some municipalities and provinces such as Beijing, Tianjin, and Hainan also expanded work-related injury insurance to cover civil servants.

2.2 Application procedures for compensation claims

Firstly, the work-related injury must be identified. The claimant must apply to a department of the social insurance administration for ascertainment of the work-related injury. The employing unit, the worker and his or her relatives, and the labour union have one year to apply for ascertainment. Once the deadline expires, the worker will both lose the right to determine his work-related injury, and likely also lose the right to receive treatment under the programme. In 2011, China identified 12.01 million cases of work-related injuries, 61,000 more than the previous year. Of those identified, 5.1 million disabilities were evaluated, 92,000 more than the year before. Usually, a 60-day period is allowed for ascertainment of a work-related injury. However, where the facts are clear and the obligation is obvious, this process takes only 15 days. If dissatisfied with the conclusion of the ascertainment of the work-related injury, the worker or his or her employing unit can apply for an administrative review or make a claim directly to an administrative suit.

Secondly, after ascertaining the work-related injury, an assessment of the degree of loss of the worker’s working ability is carried out. In serious injury cases, the worker must undergo a disability grade test. The testing authority is the Labor Capacity Appraisal Committee, which is made up of the administrative department of Social Insurance, the administrative department of the Health unit, the labour union of the worker’s organisation, and delegates from the handling institutions and employing unit. The committee is divided into the Labor Capacity Appraisal Committee of the province, autonomous region or municipality, and the city district committee, both of which serve different functions. The first application for a labour capacity appraisal is submitted to the city district committee which usually reaches a conclusion within 60 days of receiving the application.


If the applicant is dissatisfied with the initial appraisal, he can request a second appraisal; and the final conclusion is made by the Labour Capacity Appraisal Committee of the province, autonomous region or municipality. Once a final conclusion is proposed to this second level, it is impossible to seek a judicial appeal. In China, work-related injuries are divided or categorised into 10 degrees or levels of disability with the most severe level of injury and disability categorised as ‘one’ and the least severe as ‘10’. The different levels correspond to different levels of compensation, thus a level one disability is entitled to greater compensation than a category two.

Third, the application for work-related injury insurance compensation must be filed. The worker should apply to the department handling ‘Social Insurance for work-related injury insurance treatment’. If the worker does not agree with the calculation and arrangement of the compensation proposed, he can bring an administrative suit in court.

2.3 Rates of insurance premiums

In China, payment of compensation for an occupational injury is covered by the employer’s contribution, so the worker does not need to pay. The premium paid by the employer is based on and comprises two rates, an industrial differential rate and a floating rate.2 The base payment generally is based on total wage paid to the enterprise worker. This makes figuring out the amount easy to confirm and has the advantages of simplicity and convenience. But, this method ignores differences among employing units: for example, many enterprises, such as those in the construction industry do not have a stable workforce, making it difficult to determine what the total wage bill will be. This leads to the possibility and probability that some enterprises, such as construction companies, will intentionally fail to report or underreport the number of employees they have so they can pay lower work-related injury insurance fees. So the Work-related Injury Insurance Rules states work-related injury insurance fees will be paid in other ways for industries where it is difficult to pay in accordance with the total

2 An industrial differential rate is the rating method used to determine the work-related injury insurance rate (independently) in accordance with the risk level of a single enter-prise or an industry. There are three industry rates in China. The floating rate is based on the service conditions, frequency of work-related injuries and types of work-related injuries; it is the benchmark of the work-related injury insurance contribution rate for the purpose of forcing the attention of the enterprise to production safety and reducing work-related injuries and occupational diseases.


wage bill of enterprise workers. On 31 December 2010, the Ministry of Human Resources and Social Security enacted The Method to Pay the Work-related Injury Insurance Premium for Enterprises in Some Industries. This states that for those industries, such as construction companies, services sector companies, small mining operations and others, where it is difficult to directly determine the average monthly wage and salary paid to the workers and pay work-related insurance fees according to total wage bills, work-related injury insurance premium will be calculated by a rate that corresponds to the total costs and output of the project.

2.4 Compensation payments The employing unit and work-related injury insurance fund both

assume the compensation payment of occupational injury insurance premiums. The occupational injury insurance funds mainly cover the following: medical fees for treatment of the injury or illness and the rehabilitation fees; hospital food allowance; transportation, food and accommodation fees to see a doctor beyond the ‘pooling’ region; fees for installation of disability devices; life care fees confirmed by the Labor Capacity Appraisal Committee for someone unable to live alone; one-off disability allowance and the monthly disability benefits received by the disable worker of one to four levels; one-off medical allowance received at the time of terminating or release from the employment contract; contributions to relative’s pensions; duty-related death allowance received by the survivors of the dead; and the labour capacity appraisal fee.

The employing unit assumes the following: payment of wages of the worker during treatment and recovery period; monthly disability payments for workers with injuries of Grades 5 and 6; the one-off disability subsidy given at the time of termination or release from the labour contract. Amendments to the Work-related Injury Insurance Rules, made in 2010, raised the rate of disability payment for victims with injuries of all grades 1-10. It also instituted the use of the national urban per capita (disposable) income as a means to calculate the one-time, lump sum payment of a work related death compensation payment. This not only provides the family members of the victim with some compensation, it also overcomes the current unreasonable situation where the lives of some with a different status are valued less than others, and it reduces the difference between injury insurance payments and that received through a civil tort case, thus strengthening the compensation capability of the work-related insurance system.


III. Barriers and challenges to implementing OSH laws in China

While in the development of China’s social insurance services, the occupational injury insurance program has been the most effective, most standardised in institutional construct, and most complete in the legal system, there are many problems with the institutionalisation and implementation of this insurance program.

3.1 Persistent high incidence of occupational diseases There were 27,240 new cases of occupational diseases in China

in 2010. This number includes 23,812 cases of pneumoconiosis, 617 cases of acute occupational poisoning, 1,417 cases of the chronic occupational poisoning, and 1,394 cases of other occupational diseases. Since the 1950s, there have been 749,970 reported cases of occupational disease in China. A breakdown of these is as follows: 676,541 cases of pneumoconiosis, 527,431 cases of chronic illness and 149,110 deaths.3 Other statistics reveal that in 2011, there were 140,000 offices handling occupational health issues, and monitoring 22.25 million workers, of whom 27 percent showed signs of occupational illness or injury. This incidence rate is too high and foretells the potential rate of occupational illness.4

The data released by the authorities is usually vague and not comprehensive. Workers in small enterprises and farmers in the informal sectors are often ignored in the data, and often experience a high incidence of occupational disease. Once they have an occupational disease, they will experience trouble with identification, appraisal, compensation, treatment and so on. For example, there was a case of farmers in the Shanyang County of Shaanxi Province who had been working in the ‘Chener’ gold mine in Luonan County in Shaanxi since 1991. In 2001, one after another succumbed to pneumoconiosis, but all had great difficulty getting the severity of their condition identified and appraised and later difficulty getting compensation. In 2002, 48 of these farmers were found to be suffering from pneumoconiosis in Shanyang County, and their families began a lengthy petition campaign

3 China National Occupational Diseases Report 2010; <http://211.153.22.248/Contents/Channel_23/2011/1227/16777/content_16777.htm>

4 Statistical Bulletin of the Development of the Health Service 2011. <http://www.moh.gov.cn/publicfiles/business/htmlfiles/mohwsbwstjxxzx/s7967/201204/54532.htm>.


and suit for grievances. In 2004, this lengthy case was concluded with the trial court determining that responsibility should be shared between the parties. Thus, the patients were found to be at fault and should assume partial responsibility for their loss of health. The final decision awarded the sufferers Rmb 2.30 million in total, thus each person on average received only Rmb 50, 000 in compensation.5 As a result of this meager payout which did not even begin to cover the costs of treating their pneumoconiosis, these patients decided to continue their suit. However, as of the end of January 2012, 26 out of the 48 sufferers were dead, symbolising that protection of the rights of sufferers of occupational pneumoconiosis is still a very long way off.6

There are numerous reasons for these and other workers failing to receive full compensation when they suffer from an occupational disease. Firstly, workers generally lack knowledge of the laws and legal concepts and are often totally ignorant of occupational diseases. Secondly, their employers have not provided them with sufficient protection and safeguards in their work. Thirdly, remedies for their condition are often sought too late, usually well after the onset of the illness. Or a correct diagnosis of an occupational disease by the local authority or designated clinic is not made in time to offer a good prognosis. In addition, there are often errors in the application of the law in local courts and so on, all resulting in a loss for the worker of the protection of his or her rights.

3.2 Comparison of ILO and China lists of occupational diseases

The International Labor Organisation (ILO) amended its catalogue of occupational diseases in 2010 to include diseases caused by harmful elements produced in connection with working activities. These are diseases caused by chemical factors (40 kinds); diseases caused by physical factors (6 kinds); and infectious diseases or parasitic diseases caused by biotic factors (8 kinds). They also include occupational diseases classified by the target organs, including the respiratory system (11 kinds); skin disease (3 kinds); muscle-skeletal system diseases (7 kinds); and mental or behavioural disorders (1 kind). Finally, occupational cancers (20 kinds) and other diseases (1 kind) were added.

5 Hou Wenxue, Discussion of the Social & Legal Issues of Pneumoconiosis (Northwest University Press, 2007).

6 Xue Zhenyu, “The eventual days” Hua Shang Daily (9 February 9 2012).


In addition to the open-ended items, 94 types of occupational diseases are definitely enumerated in the catalogue.7 In the Occupational Catalogue 2002 of the Ministry of Health and the Ministry of Labor and Social Security of China, the classifications and types of occupational diseases in China are as follows:8

(1) pneumoconiosis (12 kinds);(2) occupational diseases caused by radiation (10 kinds);(3) occupational poisoning (55 kinds);(4) occupational diseases caused by physical factors (5 kinds);(5) diseases caused by biotic factors (3 kinds);(6) occupational dermatosis (7 kinds);(7) occupational eye diseases (3 kinds);(8) occupational ear-nose-throat diseases (3 kinds);(9) occupational tumors (8 kinds); and (10) other occupational diseases (5 kinds).

In addition to the open-ended items, 111 types of occupational diseases are listed.

When comparing the ILO’s catalog of occupational diseases with those in China’s catalogue, it is not difficult to see that although the total number of items in the Chinese catalogue is greater, there are three essential differences. First, special kinds of occupational diseases covered by the ILO are not covered in China. The most important of these are disease and injuries to the muscle-skeletal system, behavioural disorders, and occupational diseases similar to common diseases (such as the hepatitis B, hepatitis C, malaria, tetanus and so on). Second, the Chinese list is not categorised according to the underlying cause, but instead according to the part of the body affected. Third, the ILO catalog contains nine open-ended items, but the Chinese catalog contains only four.

7 According to Employment Injury Benefits Convention, open-ended items are provisions for establishing the occupational origin of diseases not listed, or manifesting themselves under conditions different from those prescribed.

8 Chinese Government will amend Occupational Catalogue in the near future. See <http://www.moh.gov.cn/mohwsjdj/s5854/201301/1cfca53ba87a445aaf525ca7c6e527df.shtml>


3.3 Complicatedidentificationprocedures

The Work-related Injury Insurance Rules simplifies identification of work-related injury procedures to a certain extent, but in practice the identification procedure is still complicated. According to the provisions of The Work-related Injury Insurance Rules, workers who suffer an occupational injury must complete three procedures; (1) identification of the work-related injury; (2) appraisal of labour capacity (i.e., following the injury); and (3) application for work-related injury insurance compensation. Completion of all these steps is usually necessary for the injured worker to get any compensation. These procedures are controlled by different departments. If something goes wrong in one of the three procedures, identification of the work-related injury will be extended. For example, if a worker applies for identification of the occupational injury, but the employing unit denies that there is a labour relationship with the worker, the identification of the work-related injury will enter into ‘the interruption procedure’, wherein the worker must apply for arbitration with the local Labour Dispute Arbitration Committee to confirm the labour relationship with his place of work. If the arbitration committee finds the labour relationship but the employing unit disagrees, the case can be taken to court, further extending the whole identification procedure.

This is very bad for the ordinary injured worker, let alone for a sufferer of an occupational disease. In ordinary work-related accidents, the injured worker can apply for work-related injury insurance compensation after the identification of the injury and appraisal of his or her remaining labour capacity. If a patient with an occupational disease wants to get work-related injury compensation, he first needs a diagnosis of his occupational disease according to The Prevention and Control Law of Occupational Diseases. This process is separate from and in addition to the ascertainment and appraisal steps outlined above.

In China, an application for diagnosis of occupational disease can only be submitted to a qualified medical institution. If the diagnosis is not satisfactory, there must also be an appraisal of the occupational disease. If in the processes of applying for the diagnosis, the worker and the employing unit disagree about the labour relationship, the type of work performed by the worker, the operating post or time on guard, the worker’s employment history or his history of contact with harmful or dangerous substances or operations, for example, then they must apply for arbitration with the local arbitration committee. If the two parties are dissatisfied with the results of the arbitration at this stage, they can then bring a suit to court. This all goes to show that the significant


number of complicated procedures which undoubtedly increase the burden on troubled patients with occupational injuries and diseases.

3.4 Direct payment from Work-related Injury Insurance Fund

Articles 41 and 42 of The Social Insurance Law establish the procedure for direct payment from work-related injury insurance funds, stating:

“If the employing unit of the worker has paid no work-related injury insurance premiums, then the employing unit must assume the work-related injury treatment payments when the work-related injury occurs. If the employing unit declines to pay, the work-related injury treatments should be paid for by the work-related injury insurance fund and then the employing unit should repay it. If the employing unit declines to reimburse the fund, the administrator of the social insurance scheme can pursue the funds recovery. If the work-related injury is caused by a third party and a third party declines to pay the medical expenses or the third party cannot be confirmed as the culpable party, the work-related injury insurance funds should advance compensation to the injured party and seek to recover the funds from the third party afterwards.” However, in practice it is very difficult to apply for a payment of

work-related injury insurance directly from the Fund, i.e., in advance of one’s employer’s contribution. For example, in September of 2011, Sun Liming’s left eye was injured at work. This injury was identified as an occupational injury and determined to have a severity of disability of level five. The employing unit had previously refused to provide any work-related injury insurance for this worker and refused to pay any of Sun’s medical fees. When he applied for payment of compensation for his occupational injury with the local office of the Social Insurance administrator, he was told that he could not apply for any interim payments because he did not have insurance. Sun Liming had to leave disappointed. Now, he has eyesight of only 0.2 in his injured left eye and a cataract in his right eye. He can no longer go out to work and his wife must run their farm alone, raising chickens to support the entire family.9

9 Zhang Weijie, “Why the Payment of the Work-related Injury Insurance in Advance is Treated Negatively ” in the Workers Daily (5 July 2012)


A study published by the Beijing Yilian Labour Law Assistance and Research Centre in 2012 found that only 28 or 11.4 percent of the 283 prefecture-level cities and four municipalities surveyed said they would accept the applications for the payment of the work-related injury insurance funds in advance of contributions by the employer concerned.10 The research therefore showed that in almost 90 percent of cities, workers could not apply for or receive work-related injury insurance funds directly from the local administrator.

3.5 Insufficient insurance for employees with f lexible employment

The World of Work Report 2012 published by the ILO shows that part-time employment in developed countries increased by two-thirds and day labourers increased by 50 percent since the start of the global financial crisis. In developing countries more than 40 percent of workers are in flexible employment. In Asia alone, flexible employees represent two-thirds of workers. China’s situation is very special, because flexible employees are an even bigger part of the labour force. These workers with only informal terms of employment are consequently not covered by any occupational injury insurance scheme. The only existing solution would be to seek compensation through tort law. However, tort law, which seeks through civil court proceedings to provide relief for persons who have suffered from the wrongful acts of others, requires a higher burden of proof, which is difficult for a rural migrant worker without time and money to establish. Therefore, it is urgent to bring out corresponding measures to safeguard flexible employees.

3.6 First and last: Strengthening prevention, improving rehabilitation

Work-related injury insurance funds of China maintain a large cash balance every year. According to statistics for 2011, work-related injury insurance funds had Rmb46. 6 billion in income and Rmb28.6 billion in expenditure, increases of 63.7 percent and 48.8 percent over the previous year. The fund also reported a balance of Rmb64.2

10 The Beijing Yilian Labor Law Assistance and Research Centre, A Study of the Implemental Conditions of Institutions Paying Work-related Injury Insurance in Advance, 2011-2012, (Beijing 2012) :< http://www.gongshang120.com/artt.asp?cat_id=140>


billion at the end of the year, and a reserve fund of Rmb10.1 billion.11 The large cash balance illustrates that the fund in China is not fully used and does not obey the “tax-and-spend and balance of payments principle” prescribed in The Work-related Injury Insurance Rules. One of the main reasons for this imbalance is that work-related injury prevention and rehabilitation have not received the attention they deserve for a long time. In practice, the prevention and rehabilitation of the work-related injury is hardly carried out. The most important function of work-related injury insurance appears to be not to provide compensation, but to provide prevention of the work-related injury before the work-related injury accident happens, and then be able to actively intervene in rehabilitation of injury after the work-related injury accident happens.

Chapter 6 of The Trial Procedures for Industrial Injury Insurance of Enterprise Employees published in 1996 regulated prevention of work-related injuries and occupational rehabilitation. It provides:

“If there are no work-related injuries and occupational diseases in the enterprise in the current year, or the incidence rate is lower than the average level of enterprises of the same industry, the handling organisation of the work-related injury insurance may return five percent to 20 percent to the enterprise from the work-related injury insurance fees paid by the enterprise in the same year which are to be used to promote production safety and the training and education of workers in production safety and to reward the units and individuals that make great contributions to production safety and to compensate the enterprise’s for capital that was previously invested in safety devices and equipment for reducing accidents and occupational diseases.”

The Work-related Injury Insurance Rules published in 2003 “reduce” the provisions involved in the prevention and rehabilitation of occupational injuries. These rules only propose that the purpose of the legislation is “to facilitate the prevention of the work-related injury.” The Rules also abolish regulations on increasing prevention and rehabilitation measures mentioned in The Trial Procedures for Industrial Injury Insurance of Enterprise Employees, and only regulate the fees of life auxiliary devices to the victim of an occupational injury or

11 See full report at <www.mohrss.gov.cn/page.do?pa=402880202405002801240882b84702d7&guid=62bfe5a694194d7fb 1a9cbb,840fce896&og=8a81f0842d0d556d012d111392900038>


disease and so on. The Work-related Injury Insurance Rules amended in 2010 regulates the prevention and rehabilitation of work-related injury again and provides for fees for publicity on prevention and training and so on, which build the basis for effective development of prevention of occupational injuries in the future. However, the development of the prevention and rehabilitation of the work-related injury need not only the support of the capital, but the construction of the matching institutions.

3.7 Recommendations for the future

3.7.1 Strengthening the actual impact of the work-related injury insurance

The difficulty of enforcement is the key issue regarding laws on occupational health and safety, a situation similar to that found with other modern laws and regulations. Although participation in work-related injury insurance has been rising steadily, some special employment entities are not included in the statistics, thus the true picture is unclear. The most typical example is the individual business. In accordance with the provisions of The Individual Business Rules, an individual business is the legal entity that a citizen of business capability operates in industry or commerce after registering with the local Department of Industry and Commerce. The individual’s business can be operated by an individual himself or by his family. If he decides to hire employees, the number of employees is usually small.

Because of the large number of these businesses, difficulty with supervision, and so on, employees of individual businesses are frequently not included in work-related injury insurance statistics. In order to strengthen the impact of the laws on work-related injury insurance, a top priority should be that employees of the individual business are required by law to join work-related injury insurance. Meanwhile, it is necessary to implement concrete methods to ensure the financial system and payment procedure of work-related injury insurance in order to substantially advance prevention and rehabilitation of occupational injuries and illness.

3.7.2 Enlarge the coverage of work-related injury insurance

The largest obstacle of occupational injury insurance coverage in China lies in the constraints set by labour law on the work-related injury insurance law. Frequently, only the worker who has a ‘labour


relationship’ can enjoy the security of work-related injury insurance, and flexible employees such as day workers, domestic workers, and part-time workers and others are not included. With the development of the global economy, the diversity of employment methods and working methods challenge the traditional labour relationship. The nature of the labour relationship categorisation should be reconsidered in order to substantially extend coverage of work-related injury insurance.

3.7.3 Expand the list of occupational diseases

The catalog of occupational diseases must be enlarged to improve the work-related injury insurance law system. In recent years, with the increase of work stress, occupational diseases are gradually spreading from manual workers to mental workers whose occupational diseases are still not incorporated into occupational disease coverage. A report titled “The Tired China, the Widespread Phenomenon of Extra Work; 600,000 Deaths from Overwork Every Year”, published in The Economy of South Korea in 2006, points out that China has one of the longest working days of all countries in the world: per capita working hours in China exceed those of Japan and South Korea. Cases of deaths and the suicides from overwork have been steadily emerging, indicating that China must in the near future include ‘death from overwork’ in the scope of its labour law protection.

3.7.4 Improve risk assessment and premiums’ structure

For a long time, China has used a broad and simple, three-tiered classification of premiums for occupational insurance. The refining of the industry differential rate is an important symbol that shows whether the skill of the work-related injury insurance institution design of a country or district is advanced. China should scientifically refine the industry differential rate from the point of view of skill in order to really reflect the level of the risk in the different industries. The floating premium is a double-edged sword with both a positive and negative side. On the positive side it allows the employing unit to strengthen prevention of work-related injury, while on the negative side it increases the cost of the employing unit when it is used wrongly. The floating rate of work-related injury insurance of China is only suitable for the second and third classes of industrial risk, and not the first classification. In practice, many places do not adopt the floating rate institution at all. A necessary question to resolve to improve the Chinese work-related injury insurance is how the floating rate can be set up scientifically.


3.7.5 Increase penalties on employers failing to participate in insurance program

According to the provisions of The Work-related Injury Insurance Rules, any unit which is required to participate in the work-related injury insurance but does not, is thus ordered by the administrative department of Social Insurance to register and pay the premiums within a limited time period. A fine of 0.05 percent (5/10000) of the amount due is charged for every day that the payment is overdue. If the unit does pay within the time limit, an additional fine of 100 percent to 300 percent of the original fine will be charged. However, these fines are too small. The employing units that have not participated in the insurance plan are breaking the law, but they are not subject to punishment, as long as they make up the payment within the time limit and pay an overdue fine. And even though employing units are punished by fines, the fines are too small to incite managers to adhere to the law and this is a drawback; the legal liability of the employing units which do not participate in the work-related injury insurance is limited because administrative liability and criminal liability claims cannot be pursued.

The law cannot bite without teeth and a law without teeth will lose its authority. The harm done to workers by employing units which do not participate in work-related injury insurance is far greater than any harm caused by not participating in other schemes, such as unemployment insurance. In the near future, China must increase the penalties on delinquent employing units who do not participate in the insurance plan, and these employing units should be criminally liable for failing to participate in the work-related injury insurance programs.

I. Legal framework for employees’ compensation

1.1 Employees’ Compensation Ordinance

Employees in Hong Kong are protected by the Employees’ Compensation Ordinance (ECO) (Chapter 282 of the Laws of Hong Kong) when they sustain an injury or die or suffer from an occupational disease.

The ordinance, which was enacted in 1953, explains the rights and obligations of employers and employees, regarding injuries or death caused by accidents during the period of employment, or by prescribed occupational diseases listed under the ordinance. There are 52 kinds of occupational diseases covered by the compensation system. However, two diseases, pneumoconiosis and mesothelioma, are covered separately under the Pneumoconiosis (Compensation) Ordinance and occupational deafness under the Occupational Deafness (Compensation) Ordinance). In addition, the Pneumoconiosis Compensation Fund Board administers compensation to sufferers of pneumoconiosis and mesothelioma; and the Occupational Deafness Compensation Board administers occupational deafness’ compensation.

An employer must be in possession of a valid insurance policy to cover his liabilities both under the Employees’ Compensation Ordinance and under common law for the work injuries for his employees. This means that any compensation paid will come from this insurance.

1.2 Application of the Ordinance 1

The Employees’ Compensation Ordinance applies to all full-time or part-time employees who are employed under contracts of service or apprenticeship, during working hours, at the work place and/or in the

1 Taken from A Concise Guide to the Employees’ Compensation Ordinance, Hong Kong.

Hong KongBy Chan Kam Hong


course of employment, and sustain an injury or occupational disease or die as a result of an accident.

The Ordinance also applies to employees who are employed in Hong Kong by local employers and injured while working outside Hong Kong, and to crew members of a Hong Kong ship, and any person employed in any capacity on board of a Hong Kong ship. If the crew member of a foreign ship sustains a personal injury outside of Hong Kong and he/she has been recruited or engaged in Hong Kong, the ordinance also applies once the employer submits to the jurisdiction of the courts of Hong Kong.

There are two more situations in which this ordinance applies: employees who are traveling or driving a vehicle operated or arranged by the employer are covered; and employees are also covered if they are injured when traveling to or from work within four hours of the announcement of dangerous weather conditions, namely the hoisting of a typhoon signal No.8 or a higher signal and the announcement of a red or black rainstorm warning.

The Ordinance does not apply to: casual employees (unrelated to the employer’s job nature); freelance workers, e.g., those who work outside of the workplace, such as machining parts at home; members of the employer’s family who live with him but do not work for the organisation.; and self-employed persons.

Liability of the Employer

If an employee sustains an injury, occupational disease or dies as a result of an accident arising out of and in the course of his employment, his employer is in general liable to pay compensation, even if the employee might have been at fault or negligent. In most cases, employers must obtain insurance cover for their employees.

According to Section 15 of the ordinance, an employer must give notice of an accident to the Commissioner for Labour. In cases of injury or occupational disease, the employer must notify the Commissioner for Labour within 14 days. If an employee dies as a result of accident, the employer must notify the Commissioner for Labour within 7 days. If the employer fails to fulfil the above requirements, or makes or furnishes any false or misleading statement to the Commissioner for Labour, he or she will commit an offense and is liable to a maximum fine of $50,000.

In most cases, there are four ways in which an employee’s compensation claim may be settled. They are 1) direct payment by employer; 2) determination of compensation by agreement according

Country Report: Hong Kong 75

to the Ordinance; 3) by Certificate of Compensation Assessment issued by the Commissioner for Labour; and 4) a determination by the court.

Liability of the Employee

The employee is also responsible as regards the notification of an accident. After being injured, the employee should notify the employer of the accident as soon as possible. Failure to give immediate notice may delay and jeopardize the employee’s claim for compensation.

1.3 Compensation Terms

Compensation cases and terms are classified in two categories: fatal cases and non-fatal cases. In the case of a death, the amount is determined with reference to the age and monthly earnings of the deceased employee as follows:

Age of Deceased Employee Amount of Compensation

Under 40 84 mths’ earnings

40 to under 56 60 mths’ earnings

56 or above 36 mths’ earnings

However, it should be noted that the maximum monthly pay used in calculating compensation for death is HK$23,580. Meanwhile, the minimum (total) amount of compensation for death as a result of a workplace injury or disease is $340,040. The employer is also responsible for reimbursing the expenses of funeral and related medical fees up to a maximum of $70,000.

Cases of occupational injury or disease are included in non-fatal cases. No matter how the employee is injured, he or she will receive four-fifths of his or her monthly earnings during the period of temporary incapacity. Unless an employer can provide adequate free medical treatment to the employee, the employer must pay the medical expenses, including fees for consultation, any surgical or therapeutic treatment, nursing costs, and hospital accommodation as an in-patient, medicines, curative materials and medical dressings. The maximum amounts of daily medical expenses for which the employer is responsible are as follows:

or minimum amount of compensation, whichever is higher


The medical expenses for each day of stay in the $200hospital where an employee is given medical treatment as an in-patient

The medical expenses for each day on which an $200 employee is given medical treatment other than as an in-patient in a hospital

The medical expenses for each day on which an $280 employee is given medical treatment both as an in-patient in a hospital and other than as an in-patient in a hospital

The amount of compensation paid to an injured employee is calculated based on the degree of incapacity. Compensation for permanent total incapacity due to a work injury will be calculated as follows:

Age of Injured Employee Amount of Compensation

Under 40 84 mths’ earnings

40 to under 56 60 mths’ earnings

56 or above 36 mths’ earnings

When there is permanent partial incapacity resulting from the injury, the amount of compensation is a percentage of the compensation payable for permanent total incapacity as is proportionate to the loss of earning capacity permanently caused by the injury. The formulae will be “amount of compensation due to permanent total incapacity times the percentage of permanent loss of earning capacity”.

Under the ordinance, if an employee sustains an injury and requires a prosthesis or surgical appliance, his/her employer is liable to pay the initial costs of supplying and fitting the prosthesis or surgical appliance, subject to a maximum amount of $33,460 and the estimated costs for repairing and renewing the item during a period of 10 years after the initial fitting of the item, capped at a maximum amount of $101,390. Furthermore, the specified treatment subsidy will be paid up to a maximum amount of $422,000.

or minimum amount of compensation, whichever is higher



In addition to pneumoconiosis, mesothelioma and occupational deafness, the Employees’ Compensation Ordinance lists the following occupational injuries and diseases.

A. Injuries caused by physical agentsA1 Inflammation, ulceration or malignant disease of the skin

or subcutaneous tissues or of the bones, or blood dyscrasia, or cataract, due to electro-magnetic radiations (other than radiant heat), or to ionizing particles

A2 Heat cataractA3 Dysbarism, including decompression sickness, barotraumas

and osteonecrosisA4 Cramp of the hand or forearm due to repetitive movementsA5 Subcutaneous cellulites of the hand (Beat hand)A6 Bursitis or subcutaneous cellulites arising at or about the

knee due to severe or prolonged external friction or pressure at or about the knee (Beat knee)

A7 Bursitis or subcutaneous cellulites arising at or about the elbow due to severe or prolonged external friction or pressure at or about the elbow (Beat elbow)

A8 Traumatic inflammation of the tendons of the hand or forearm (including elbow), or of the associated tendon sheaths

A9 Carpal tunnel syndrome

B. Caused by biological agentsB1 AnthraxB2 GlandersB3 Infection by leptospiraB4 Pulmonary disease due to the inhalation of the dust of

mouldy hay or other mouldy vegetable produce, and characterized by symptoms and signs attributable to a reaction in the peripheral part of the bronchopulmonary system, and giving rise to a defect in gas exchange

B5 Infection by organisms of the genus brucellaB6 TuberculosisB7 Parenterally contracted viral hepatitisB8 Infection by streptococcus suisB9 Avian chlamydiosisB10 Legionnaires’ disease


B11 Severe acute respiratory syndromeB12 Avian influenza A

C. Caused by chemical agentsC1 Poisoning by lead or a compound of leadC2 Poisoning by manganese or a compound of manganeseC3 Poisoning by phosphorus or an inorganic compound of

phosphorus or the anti-cholinesterase or pseudo anti-cholinesterase action of organic phosphorus compounds C4Poisoning by arsenic or a compound of arsenic

C5 Poisoning by mercury or a compound of arsenicC6 Poisoning by carbon bisulphideC7 Poisoning by benzene or a homologue of benzeneC8 Poisoning by nitro-or amino-or chloro-derivative of benzene

or of a homologue of benzene, or poisoning by nitro-chlorobenzene

C9 Poisoning by dinitrophenol or a homologue or by substituted dinitrophenols or by the salts of such substances

C10 Poisoning by halogen derivatives of hydrocarbons of the aliphatic series

C11 Poisoning by diethylene dioxide (dioxan)C12 Poisoning by chlorinated naphthaleneC13 Poisoning by oxides of nitrogenC14 Poisoning by beryllium or a compound of berylliumC15 Poisoning by cadmiumC16 Dystrophy of the cornea (including ulceration of the corneal

surface) of the eyeC17 Primary epitheliomatous cancer of the skinC18 Chrome ulceration including perforation of nasal septumC19 Primary neoplasm of the epithelial lining of the urinary

tract, (renal pelvis, ureter, bladder and urethra) including papilloma, carcinoma-in-situ and invasive carcinoma

C20 Peripheral poly-neuropathyC21 Localised new growth of the skin, papillomatous or keratoticC22 Occupational vitiligo

D. Caused by miscellaneous agentsD1 Inflammation or ulceration of the skin produced by dust,

liquid or vapour (including the condition known)D2 Inflammation or ulceration of the mucous membrane of the

upper respiratory passages or mouth produced by dust, liquid or vapour


D3 Carcinoma of the nasal cavity or associated air sinuses (nasal carcinoma)

D4 ByssinosisD5 Occupational asthma

II. Applying for compensation

The employer must notify the Labour Department of a worker’s injury within 14 days, otherwise the worker must report to the Labour Department himself/herself after 14 days. If a doctor certifies that the worker needs to take a certain period of sick leave, then the injured worker will receive 80 percent of his/her salary during this period of sick leave. Once the doctor judges the injury of the employee is becoming more stable, the case will be transferred to the Employees’ Compensation Assessment Boards that are appointed by the Commissioner for Labour. The percentage of the loss of earning capacity due to the injury or injuries of the employee will be examined and accessed.

The procedure to obtain compensation for an occupational illness or disease is the same as that for an occupational injury.

2.1 Non-fatal cases

The procedure for the notification of an accident once the employee sustains an injury or occupational disease is as follows:

1) Notify the Commissioner for Labour2) Receive four-fifths of one’s monthly earnings during the

period of temporary incapacity3) Accept permanent incapacity assessment. If the employee is

satisfied with the result, he/she will get the compensation and the case will be closed.

Should the employee want to apply for a re-assessment of his or her injury, he should follow these steps:

If he or she is not satisfied with the result, the employee must apply for re-assessment to the Labour Department by filling a simple form within 14 days. If satisfied with the result of the re-assessment, the employee will receive the compensation and the case will be settled. If the employee is not satisfied the result, the employee must appeal to the district court within six months directly or through a lawyer representative.


2.2 Death in the workplace

The procedure in the case of a fatality at work is the same as that for non-fatal cases. The employer must notify the Commissioner for Labour. Then, the family of the victim needs to decide whether to settle the case through the Commissioner for Labour or in court. In either case, if the family is satisfied with the results, the family will receive the compensation and the case is concluded

Generally, an application for compensation in an injury case or in the case of a fatal accident will be settled by Labour Department within 24 months.

2.3 Alternate route to seeking compensation – Civil suit

Whereas the cases above are handled by the administrative branch of government (i.e., the Commissioner for Labour), the victim of an occupational disease or injury or the victim’s family may choose to seek redress through the courts in a civil suit.

If the victim thinks that the employer must take responsibility for his or her injury, in cases where, for example, the employer failed to provide suitable tools and thereby caused the accident directly or indirectly, the victim themselves have the rights to claim for Negligence Compensation through the courts. Claim for Damages by Action at Common Law will be settled by Labour Department within 36 months of the accident causing the injury, or in the case of a fatal accident.

However, sometimes cases are more complex than usual if the employer doubts the victim’s claims about his or her injury. The following case is one such example.

Case study 1 – Employer disputes the victim’s claim

Mr. Wong worked as a cleaner in a school. One day, he strained his back when he was carrying some heavy cases. His lower back in the waist area was painful, but he did not tell anyone since he thought he would be fine after a rest and after putting some liniment on it. He continued to work for the rest of the day. However, after a few days, his back became more and more painful, so he went to see a doctor. When he reported to the employer that he had hurt his back a few days ago during working hours, his employer was suspicious and believed that Mr. Wong had injured himself at home or at a place other than the school, his workplace.


After receiving this response from his employer, Mr. Wong reported his injury to the Labour Department which then investigated the case. However, the result of the Labour Department’s investigation was “neutral”. Thus, Mr. Wong took his employer to court to settle the case under Common Law. Finally, the case was settled with a compromise. Mr. Wong received a lump-sum amount in compensation.

The Association for the Rights of Industrial Accident Victims assisted Mr. Wong in applying for Legal Aid to hire a lawyer. (For details on Legal Aid in Hong Kong, see Annex II.) In cases similar to this one, because of the existence of unfavourable factors, victims need to fight for compensation in court and not via the Labour Department but through a civil suit. Victims need to put out extra time, money and energy on the process of compensation. It definitely shows that once getting injured, the employee must report to the employer at once to avoid unfavourable factors.

2.4 Compensationtermsforspecificoccupationaldiseases

In general, compensation for most occupational diseases is as same as the compensation for a workplace injury or death, except in the case of pneumoconiosis and mesothelioma and occupational deafness.

Pneumoconiosis and mesothelioma

In Hong Kong, most pneumoconiosis and mesothelioma patients are construction workers who have contracted these diseases after long and short periods of inhaling dust while working on a construction site.

A person who is suffering from pneumoconiosis and/or mesothelioma and has been a resident of Hong Kong for five years or more at the date of the notification of the claim, or has been a resident in Hong Kong for less than five years at such date, if he contracted pneumoconiosis or mesothelioma (or both) in Hong Kong, then he or she is eligible for the following compensation:

Monthly compensation for pain, suffering and loss of amenitiesMonthly compensation for incapacityCompensation for a period prior to the date of diagnosisCompensation for care and attentionExpenses for medical treatmentExpenses for medical appliancesCompensation for death resulting from pneumoconiosis or


mesothelioma (or both)Compensation for bereavement; andFuneral expenses

Contributions to the fund which is administered by the Pneumoconiosis Compensation Fund Board are mostly derived from levies on the employing construction company, which has direct responsibility for the welfare of their workers.

The Pneumoconiosis Compensation Fund Board

This board was established in 1980 under the Pneumoconiosis and Mesothelioma (Compensation) Ordinance. According to the ordinance, the board has the following functions:

To administer the fund;To make recommendations to government with respect to the rate of levy;To conduct and finance educational, publicity, research and other programmes to prevent pneumoconiosis and mesothelioma;To conduct and finance programmes for the rehabilitation of persons suffering from the above diseases;To administer funds received from government and designated by government as ex gratia payments to persons diagnosed before 1 January 1981 to be suffering from pneumoconiosis;To perform other duties as are imposed on it by the ordinance;

The fund board is also charged with assessing the amount of levy, due from the contractor in respect of the construction operation/work or the stage of construction operation/work. A demand note is then issued. The contractors and quarry operators must pay the levy to the Pneumoconiosis Compensation Fund Board. The levy rate is 0.15 percent in respect of the construction operation/work or the stage of construction operation/work. For victims suffering from pneumoconiosis and mesothelioma since 1981 or before, compensation is paid directly by government. For victims contracting the disease after 1980, their compensation is derived from the contractors’ levy.

Occupational deafness

Occupational deafness is a kind of sensorineural hearing loss. It is caused by prolonged exposure to noise at work which results


in damage to the nerve cells of the inner ear. Once destroyed, these nerve cells would not recover. The resulting hearing impairment will be permanent, leading to hearing loss. When a person works in a noisy environment, the damage caused to his hearing will be in direct proportion to the intensity of the noise and the duration of exposure time.

According to the Occupational Deafness (Compensation) Ordinance, a claimant should have had at least 10 years of employment in aggregate in specified noisy occupations in Hong Kong or at least five years in the case of four occupations that are particularly noisy.

The calculation of permanent incapacity compensation is as follows:

Age of claimant Amount of Compensation

Under 40 96 months’ earnings X % of permanent incapacity

40 to under 56 72 months’ earnings X % of permanent incapacity

56 or above 36 months’ earnings X % of permanent incapacity

There is an additional $36,000 subsidy for the purchase, fitting, repair or maintenance of hearing devices.

The Occupational Deafness Compensation Board

This board was established under the Occupational Deafness (Compensation) Ordinance, Chapter 469, on 1 June 1995. Its functions are as follows:

Administer the Occupational Deafness Compensation Fund;Process and determine applications for compensation in respect of occupational deafness;Conduct or finance educational and publicity programmes for the purpose of preventing occupational deafness;Reimburse or directly pay any expenses reasonably incurred in the acquisition, fitting, repairing or maintenance of hearing assistive devices for occupational deafness;Conduct or finance programmes for the rehabilitation of persons suffering from occupational deafness.

The Occupational Deafness Compensation Board is financed by a levy on the employees’ compensation insurance. The government,


as an employer, also makes a contribution to the board. Furthermore, a levy is also placed on the employees’ compensation insurance and government’s contribution. The Employees’ Compensation Insurance Levies Management Board is to distribute a portion of its net resources to the Occupational Deafness Compensation Board on a quarterly basis. The resources of the Employees’ Compensation Insurance Levies Management Board consist of a levy imposed on all employees’ compensation insurance premiums. The present rate of levy is 5/8 of a percent on or after 1 July 2010.

2.5 Statistics

Occupational deaths and injuries

The number of occupational fatalities has been on the rise in the past three years, after dipping to a 10-year low in 2009 with the fall in the level of economic activity in that year. (See Figure 1 below.)

Figure 1

Source: Labour Department of Hong Kong

Occupational Fatalitiy RateNo. of Occupational Fatalities

2002 2003 2004 2005 2006 2007 2008 2009 2010 2011

No. of Occupational Fatalities

Fatalitiy Rate per1000 Employees

240

220

200

180

160

140

Number of Occupational Fatalitiesand Fatality Rate per 1000 Employees

2002 to 2011

210

171

187 187 187

172

181

165

183

191

0.11

0.10

0.09

0.08

0.07

0.06

0.086

0.072

0.0770.075 0.073

0.0660.068

0.063 0.068 0.069


Then, the number of occupational fatalities remained the same from 2004 to 2006, while the fatality rate per 1,000 employees dropped from 0.075 to 0.073. Afterwards, there was a significant decrease in both numbers. However, starting from 2009, an increase in the number of occupational fatalities was seen, rising from 165 to 191.

An analysis of those figures shows that in 2011, there were 191 occupational fatalities, a 4.4 percent rise over 2010, but a 9.0 percent fall from the 210 fatalities in 2002. However, the 2011 figure is 7.1 percent higher than the average of the past five years (178.4). In 2011, the number of industrial fatalities in the construction industry was 23, higher than 9 in 2010. Thus, it is very obvious to see that the numbers of occupational fatalities and fatality rate per 1,000 employees has increased in the recent three years.

The number of occupational injuries and the injury rate per 1,000 employees in Hong Kong has been in a downtrend from 2006 to 2011, the last year for which full year figures are available. (See Figure 2 below.) In addition, the 2011 statistics suggest a big improvement in occupational health and safety in Hong Kong since 2002. In 2011, there were 40,578 cases of occupational injuries, a decline of 13.7 percent compared to 47,023 cases in 2002. The injury rate also fell to 14.6 percent from 19.2 percent, a drop of nearly 24 percent, suggesting that despite a rise in the workforce, accidents and injuries have declined substantially.

Figure 2


Number of Occupational Injuriesand the Injury Rate per 1000 Employees

2002 to 2011

No. of Occupational Injuries Occupational Injury Rate

No. of Occupational Injuries

Injury Rate per1000 Employees

70 000

60 000

50 000

40 000

30 000

20 000

10 000

0

50454035302520151050

2002 2003 2004 2005 2006 2007 2008 2009 2010 2011

47 02342 022

44 025 44 267 46 937 43 979 41 90039 579

41 907 40 578

19.2 17.7 18.1 17.8 18.4 16.9 15.815.0 15.5 14.6


Of the 40,578 occupational injuries in 2011, 84 percent were seen in the following major economic sectors of Hong Kong: Import/export, wholesale and retail trades, accommodation and food services 33.4 percent; public administration, social and personal services 20.4 percent; financing, insurance, real estate, professional and business services, 16.9 percent; transportation, storage, postal and courier services, information and communications 13.3 percent; and other 16.0 percent.

Figure 3


In the first three quarters of 2012, the total number of occupational injuries was 30,152, while there were 134 cases of fatalities. (See Figure 4 below.) Compared with the first three quarters of 2011, there appears to be a decrease of 0.3 percent.

PublicAdministration,

Social and PersonalServices 20.4%

FinancingInsurance, Real

Estate, Professional and Business

Services 16.9%

Import/export,Wholesale andRetail Trades,

Accommodation andFood Services

33.4%

Transportation,Storage, Postal andCourier Services,Information andCommunications

13.3%

Others16.0%

Occupational Injuries in All Workplaces- Distribution by Major Economic Activities

2011


Figure 4

Summary of Occupational Safety and Health Statistics of 1st Three Quarters of 2012

1st Three Quarters 1st Three Quarters Percentage of 2011 of 2012 change in No. of Cases No. of Cases figure

(a) Industrial Accidents

Construction 2301(16) 2354 (13) +2.3%

Food and Beverage 5376 4680(1) -12.9% Services

Manufacturing 1472(4) 1510 +2.6%

Others 1080 (2) 966 (1) -10.6%

Total 10229 (22) 9510 (15) -7.0%

(b) Occupational Injuries 30256 (147) 30152 (134) -0.3%


A breakdown of the 2011 and 2012 figures shows that the highest number of workplace accidents resulting in injuries was seen in the Accommodation and Food Services sector, followed by the Public Administration and personal and social services sector. (See Figure 5 below.)

Industry Section 1 st Three Quarters of 1st Three Quarters of 2011 2012

Agriculture, forestry and fishing 14 13

Mining and Quarrying 1 0

Manufacturing 2053 (13) 2111 (8)

Electricity, gas and waste 155 (3) 124 management

Construction 2359 (31) 2426 (27)

Import/export, wholesale 3251 (9) 3327 (21) and retail trades

Transportation, storage, 3809 (24) 3654 (11)postal and courier services

Accommodation and food services 6837 (8) 6157 (8)

Information and communications 282 283 (1)

Financing and insurance 155 185 (1)

Real estate 1530 (7) 1731 (10)

Professional and business services 3450 (30) 3627 (33)

Public administration, and social 6120 (18) 6247 (11) and personal services

Other industries 240 (4) 266 (3)

TOTAL 30256 (147) 30152 (134)

Note: Figures in brackets denote the number of facilities.


2.5.2 Occupational diseases

The Hong Kong ordinance lists 52 kinds of occupational diseases which are entitled to receive the same compensation as that payable to an employee injured or killed at work. In 2011, there were 353 cases of confirmed occupational diseases, compared with 229 in 2010. (See Figure 6 below.) In the first quarter of 2012, there were 227 cases of confirmed occupational diseases. This is 11.0 percent less than in the nine months of 2011, when there were 255 cases. (See Figure 7 below.) However, the list excluded many chronic health problems which are clearly work-related and these sufferers are not entitled to compensation. For example, varicose veins are very common among teachers. However, varicose veins are not listed as an occupational diseases. The government has said it is difficult to proof a direct relationship between their occupation and the disease. The same situation is seen in the catering sector. Thus, activists must to fight to expand the list of occupational diseases which receive compensation.

Figure 6


500

400

300

200

100

02002 2003 2004 2005 2006 2007 2008 2009 2010 2011

Number of Confirmed Occupational Diseases in2002-2011

364

258 251 256 264

177 204268

229

353


Figure 7Confirmed cases of occupational diseases in Jan-Sept, 2012

1st Three Quarters of 2011 1st Three Quarters of 2011 Percentage No. Cases No. Cases change

255 227 -11.0%


The most common occupational diseases confirmed in 2011 were occupational deafness, tenosynovitis of the hand or forearm and silicosis. (See Figure 8 below.)

Before 2010, the coverage of the Occupational Deafness (Compensation) Ordinance was limited to the binaural hearing loss of workers. However, the Association for the Rights of Industrial Accident Victims fought to have the monaural hearing loss of workers included and receive the same treatment as binaural hearing loss. After lobbying the government to protect them as well, the association was successful and compensation has been extended to all employees suffering from noise-induced monaural hearing loss as of April 2010. In 2011, there were 69 such cases. In the first three quarters of 2012, there were 42 cases. The injury has been common among services and sales workers, elementary occupations, clerical support workers and others.

Tenosynovitis of the hand or forearm was the second most common (confirmed) occupational diseases in 2011. Excessive movements of the muscles and tendons of the hand or forearm that result in traumatic inflammation of the tendons or tendon sheaths will cause this disease. “Tennis elbow” and “golfer’s elbow” are two types of this disease that are commonly seen. The risk of developing this disease increases once there are quick, repetitive and strenuous movements of hands or forearms in inappropriate postures for prolonged periods.


Figure 8

Confirmed Occupational Diseases, 2009 to 2011

Occupational Disease 2009 2010 2011

Occupational Deafness 77 70 157

Tenosynovitis of the Hand or Forearm 39 48 70

Silicosis 86 61 63

Tuberculosis 18 11 17

Mesothelioma 15 12 13

Gas Poisoning 17 17 11

Asbestosis 5 1 9

Occupational Dermatitis 10 5 7

Streptococcus suis Infection 0 3 1

Others (including Compressed Air Illness, 1 1 1

Leptospirosis, Avian Chlamydiosis)

Total 268 229 353


At the same time, the number of confirmed occupational diseases has been increasing. (See Figure 9 below.) The occupational disease code of tenosynovitis of the hand or fforearm is 8. Comparing to the 1st three quarters of 2011, the number of cases of this disease rose from 45 to 55. Victims who suffer from this disease mostly work for public administration, and social and personal services, manufacturing and accommodation and food services.


Fig. 9 Statistics of Confirmed Occupational Diseases (excluding Silicosis, Asbestosis, Mesothelioma, Occupational Deafness amd Gas Poisoning) by

Industry in 1st Three Quarters of 2012

Occupational Disease Codes3 = Compressed Air Illness8 = Tenosynovitis of the Hand or Forearm11 = Leptospirosis14 = Tuberculosis16 = Streptococcus suis Infection27 = Poisoning by halogen derivatives of hydrocabrons of the aliphatic series40 = Occupational Dermatitis48 = Carpel Tunnel Syndrome

Notes:1) For information on silicosis, asbestosis and mesothelioma, please refer to the

Pneumoconiosis Compensation Fund Board.2) For information on occupational deafness, please refer to the Occupational

Deafness Compensation Board.


Industries

Agriculture, forestry and fishing

Miming and quarrying

Manufacturing

Electricity, gas and waste management

Construction

Import/export, wholesale and retail trades

Transportation, storage, postal and courier servicesAccommodation and food sevices

Information and communications

Financing and insurance

Real estate

Professional and business services

Public administration, and the social and personal services

Other industries

Total

Occupational Disease Codes (1 st Three Quarters of 2011) Occupational Disease Codes (1 st Three Quarters of 2012)

3 8 11 14 16 27 40 48 Total 3 8 11 14 16 27 40 48 Total

0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

0 4 0 0 0 0 0 0 4 0 6 0 0 0 5 0 0 11

0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

1 0 0 0 0 0 0 0 1 11 3 0 0 0 0 0 0 14

0 4 0 0 1 0 0 0 5 0 3 0 0 1 0 0 0 4

0 1 0 0 0 0 0 0 1 0 3 0 0 0 0 0 0 3

0 11 0 0 0 0 1 0 12 0 4 0 0 0 0 0 0 4

0 0 0 0 0 0 0 0 0 0 2 0 0 0 0 0 0 2

0 3 0 0 0 0 0 0 3 0 1 0 0 0 0 0 0 1

0 0 0 0 0 0 0 0 0 0 2 0 0 0 0 0 0 2

0 2 0 0 0 0 0 0 2 0 4 0 0 0 0 1 1 6

2 20 1 12 0 0 6 0 41 0 27 0 13 0 0 1 0 41

0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

3 45 1 12 1 0 7 0 69 11 55 0 13 1 5 2 1 88


III. Analysis of the compensation system

The Employees’ Compensation Ordinance (ECO) has its limits. The areas of application are not comprehensive and the compensation provided is insufficient.

3.1 Limitations and non-coverage of the ordinance

The ordinance does not offer protection to the following workers:

1. Workers who get injured or die on their way to the workplace from home (except during certain bad weather conditions)

2. Self- employed persons.3. Only 52 kinds of occupational diseases are on the

compensation list.

The limitation of the coverage of the ordinance was seen when two serious traffic accidents occurred, the first, the Ting Kau Bridge traffic accident in 2003, and the second, the Lok Ma Chau traffic accident in 2009.

Case Study 2: Ting Kau Bridge traffic accident

On 7 November 2003 morning, a double-decker bus fell from the Ting Kau Bridge in the northwest area of Hong Kong, causing 21 passengers fatalities and injuring 20 others As this was early morning, there were many teachers and students on the bus on their way to school. The government, however, ruled that the teachers and other workers were not covered by the ECO in this case and thus did not receive any compensation.

Case Study 3: Lok Ma Chau traffic accident

On 23 January 2009, an intoxicated truck driver hit a taxi, resulting in the death of the taxi driver and his five passengers. The passengers were construction site workers. Since the site was far from their homes, they chose to take a taxi. Despite claims that the workers were engaged in a work-related accident, as with the Ting Kau Bridge case, this argument was not upheld and their families did not receive compensation under the ECO.

The victims of these accidents were ordinary workers, making a contribution to their society and their families, who brought compensation claims based on negligence, have been denied all


compensation. We urge the government to expand the application of the ordinance to cover those injured or killed on their way to work.

As regards the limited list of 52 types of occupational diseases , it is clear that in our modern society this list must reviewed, revised and expanded to match the conditions in the present working world.

3.2 Cap on compensation set too low

As of the middle of 2013, the maximum salary level used to calculate compensation in cases of permanent total incapacity was HK$23,580. This is unfair to those people whose salary is higher than $23,580 and cannot calculate compensation based on their actual salary. These might include teachers, some scaffolding workers and managers.

The employer also pays the injured employee periodic payments at the rate of four-fifths of the employee’s monthly income. Clearly, for the injured worker, expenditures must increase and 80 percent of their original monthly income is likely to be insufficient to pay for the extra expenditures, including the medical expenses.

As of the middle of 2013 payment of HK$200 to $280 per day for medical expense was insufficient to meet the actual needs of patients requiring special treatment. In general, special treatment charges are more than $500 per visit and most injured workers cannot afford those charges.

The compensation in 2013 does not include the examination fee, and this will affect the worker’s condition and their recovery. Moreover, some workers need medical equipment to support their recovery programme, especially the pneumoconiosis patients, but the financial support for these patients is still very limited.

The $70,000 for funeral expenses is not enough to meet the actual needs. The cost of a private niche for the urn with the victim’s ashes is more than $100,000 at present; otherwise, families have to wait many years for a public niche. Additionally, the funeral itself as of the middle of 2013 costs around $50,000, giving a total amount of more than $150,000. There is a huge distance between the ordinance and the actual expenses.

The compensation system is run by the Labour Department as the part of administration and the insurers as the part of compensation. That will involve some problems, in particular if the employer has doubts about the accident and discontinues payments. This then requires a lengthy investigation by the Labour Department to deal with the conflict between employer and employee. In many cases, the employee may not be successful.


3.3 Recommendations

Expand the areas of compensation and include more workers under the ECO:

- Include workers who get injured or die on their way to and from the workplace;

- Self- employed persons.- Occupational diseases patients, include those suffering from strain.

Improve the compensation terms

- Cancel the maximum salary level of $23,580 used to calculate compensation.

- Pay in full the employee’s monthly earnings during the period of temporary incapacity instead of four-fifth of his last income level.

- Increase the medical subsidy to $500 per day from $200.- Increase the funeral expenses subsidy and base it on the actual

needs of the family.- Improve the subsidy for medical equipment.

Set up a “Central Compensation Fund”

This fund could be set up as an independent official department to deal with the compensation issues, along the lines of the “Pneumoconiosis Compensation Fund Board” and “The Occupational Deafness Compensation Board”. This department’s functions would be to collect the levy from the employers and pay it to the injured worker and the families in the case of fatalities. The Central Compensation Fund is an effective way to cope with the present problems.


Annex 1

Legal Aid Department

http://www.lad.gov.hk/eng/home/home.html

Victims can claim the employee compensation or negligence compensation with the assistance of a lawyer, whether one privately engaged or from the government’s Legal Aid Panel. In general, to verify a successful case, about three months is required except in the urgent cases. Once applicants pass the eligibility criteria, the applicants may select lawyer from the panel or the Legal Aid Department will assign one. We encourage victims to engage a lawyer with the help of Legal Aid since Legal Aid Department can monitor the lawyers and also act as a bridge between the victims and lawyers.

1) Ordinary Legal Aid Scheme

Eligibility Criteria • Tosuccessfullyapplyfor legalaid,applicantsmustpassthe

merits test and the means test. • Meanstest–Applicantswillbeeligibleifapplicants’financial

resources do not exceed the financial eligibility limit. The current limit is HK$260,000. The Director may waive the upper financial eligibility limit in meritorious cases in which a breach of the Hong Kong Bill of Rights Ordinance or an inconsistency with the International Covenant on Civil and Political Rights is an issue.

• Merits test–Applicantsneed to showthatheor shehasreasonable grounds for taking or defending proceedings.

2) Supplementary Legal Aid Scheme

Scope Under the Supplementary Legal Aid Scheme, legal aid is available

to claims involving personal injuries or death, or medical, dental and legal professional negligence, where the claim is likely to exceed $60,000. It also covers claims brought under the Employees’ Compensation Ordinance irrespective of the amount of the claim.


With effect from 30 November 2012, the Supplementary Legal Aid Scheme has been expanded to cover the following new types of cases where the claim is likely to exceed $60,000 :

• professional negligence claims against certified publicaccountants (practising), registered architects, registered professional engineers, registered professional surveyors, registered professional planners, authorized land surveyors, registered landscape architects and estate agents;

• negligenceclaimsagainst insurersortheir intermediaries inrespect of the taking out of the personal insurance products; and

• Monetaryclaimsagainstvendorsinthesaleofcompletedoruncompleted first-hand residential properties.

It also covers representation for employees in appeals against

awards made by the Labour Tribunal irrespective of the amount in dispute.

Eligibility Criteria

As with the Ordinary Legal Aid Scheme, applicants have to pass the means test and the merits test.

• MeansTest–Applicantwillbeeligibleifapplicants’financialresources exceed HK$260,000 but not HK$1,300,000.

• MeritsTest -Applicantneeds to showthatheor shehasreasonable grounds for taking proceedings.


Annex II

References

Ordinances

Employees’ Compensation Ordinance

Pneumoconiosis (Compensation) Ordinance

Occupational Deafness (Compensation) Ordinance

Employees’ Compensation Insurance Levies Ordinance

Departments and Organizations

Labour Department -- www.labour.gov.hk/tc/news/content.htm

The Pneumoconiosis Compensation Fund Board --www.pcfb.org.hk/index2.html

The Occupational Deafness Compensation Board www.odcb.org.hk/en_index.php

Legal Aid Department --www.lad.gov.hk/chi/home/home.html

I. Legal framework of Occupational Safety and Health

At present, safety and health statutes regulating the occupational safety and health (OSH) of persons at work exist only in four sectors, namely mining, factories, ports, and construction. A number of OSH laws and regulations are applicable in a fragmented manner and the regulations have very specific objectives, covering the problems of safety and health to a limited extent.

The Indian Factories Act of 1948 provides for the health, safety and welfare of the workers in the manufacturing sector. The Shops and Commercial Establishment Act regulates the conditions of work and terms of employment of workers engaged in shops, commercial establishments, theatres, restaurants, etc.

The Employee’s Compensation Act, 1923 (previously Workmen’s Compensation Act), provides for compensation to injured workmen of certain categories and in the case of fatal accidents to their dependants if the accidents arose out of and in the course of their employment. It also provides for payment of compensation in the case of certain occupational diseases. The Employees’ State Insurance Act, 1948, provides for sickness benefit, maternity benefit, disablement benefit and medical benefit.

THE FACTORIES ACT, 1948 1

This act is applicable to the whole of India including Jammu & Kashmir and covers all manufacturing processes and establishments falling within the definition of ‘factory’. It is applicable to all factories using power and employing 10 or more workers, and if not using power, employing 20 or more workers on any day of the preceding 12 months. The act contains three schedules -

1 Available on http://www.ilo.org/dyn/natlex/docs/WEBTEXT/32063/64873/E87IND01.htm

IndiaBy Amruta Sane Medhi

and Mohit Gupta


1. Schedule 1 contains list of industries involving hazardous processes2

2. Schedule 2 is about permissible level of certain chemical substances in the work environment2.

3. Schedule 3 consists of a list of notifiable diseases2.

Important provisions the Act

Section 2(c) (b):- the section identifies 29 industries as hazardous under the First Schedule. For example, foundries, cement, glass & ceramic, ferrous metallurgical industries, power generating industries and the grinding or glazing of metals have the potential of creation and exposure to free silica.

Section 7(A):- the section deals with the general duties of the occupier of factory premises. Sub section 3 prescribes for a written statement to be prepared by the occupier regarding the health and safety of the workers.

Facilities and Conveniences - The factory should be kept clean [Section 11]. There should be arrangement to dispose of waste and effluents [Section 12]. Ventilation should be adequate. Reasonable temperature for the comfort of employees should be maintained [Section 13]. Dust and fumes should be controlled below permissible limits [Section 14]. Artificial humidification should be at a prescribed standard level [Section 15]. Overcrowding should be avoided [Section 16]. Adequate lighting, drinking water, latrines, urinals and spittoons should be provided [Sections 17 to 19].

Welfare - Adequate facilities for washing, sitting, storing clothes when not worn during working hours [Section 42]. If a worker has to work in a standing position, sitting arrangement to take short rests should be provided [Section 44]. Adequate first aid boxes shall be provided and maintained [Section 45].

Safety - All machinery should be properly fenced to protect workers when machinery is in motion [Section 21 to 27]. Hoists and lifts should be in good condition and tested periodically [Section 28 and 29]. Floor, stairs and means of access should be of sound construction and free from obstructions [Section 32]. Safety appliances for eyes and precautions against dangerous gases, fumes, etc should be provided [Sections 35 and 36]. Worker is also under obligation to use the safety appliances. He should not misuse any appliance, convenience

2 http://www.oehni.in/acts

Country Report: India 101

or other things provided [Section 111]. In case of hazardous substances, additional safety measures have been prescribed [Sections 41A to 41H]. Adequate fire fighting equipment should be available [Section 38]. A safety officer should be appointed if the number of workers in factory is 1,000 or more [Section 40B].

Working Hours - A worker cannot be employed for more than 48 hours in a week [Section 51]. A weekly holiday (day off work) is compulsory. If he is asked to work on a weekly holiday, he should have a full holiday (day off work) on one of three days immediately or after the normal day of holiday [Section 52(1)]. He cannot be employed for more than 9 hours in a day [Section 54]. At least half an hour rest should be provided after 5 hours [Section 55]. The total period of work inclusive of the rest interval cannot be more than 10.5 hours [Section 56]. Overlapping of shifts is not permitted [Section 58]. Notice of period of work should be displayed [Section 61].

Overtime Wages - If a worker works beyond 9 hours a day or 48 hours a week, overtime wages double the rate of wages are payable [Section 59(1)]. A workman cannot work in two factories. There is restriction on double employment [Section 60]. However, overtime wages are not payable when the worker is on tour. Total working hours, including overtime, should not exceed 60 in a week and total overtime hours in a quarter should not exceed 75. (Quarter means a period of three consecutive months beginning on the 1st of January, 1st of April, 1st of July or 1st of October [Section 64(4)]

Record of Workmen - A register (muster roll) of all workers should be maintained. No worker should be permitted to work unless his name is in the register. A record of overtime is also required to be maintained [Section 62].

Notice of Accidents, Diseases Etc. - Notice of any accident causing disablement, dangerous occurrences and any worker contacting an occupational disease should be submitted to the Factories Inspector within a period of not more than 48 hours [Section 88]. Notice of dangerous occurrences and specified diseases should be given [Sections 88A and 89].

Obligation regarding Hazardous Processes / Substances - Information about hazardous substances / processes should be given. Workers and the general public in vicinity should be informed about dangers and health hazards. Safety measures and emergency plans should be ready. A safety committee should be appointed.

Section 89:- This section deals with the responsibility placed on medical practitioners to report any occupational disease to the authorities such as the chief inspector or others as specified. There is a


provision of a fine on the medical practitioner in case the disease is not reported.

THE MINES ACT, 1952 3

This Act aims at consolidating laws relating to the regulation of labour and safety in mines. It is applicable to the entire country.

Important Provisions of the Act

Section 2 defines ‘mine’ to which the Act applies and Section 3 lists the areas in which case the act will not apply

Inspectors and certifying surgeons - Section 5 to 9 & 11 & 22 relate to the appointment of inspectors and certifying surgeons, inspections, powers and duties. Section 22 gives the inspector’s power to give notice if he finds anything requiring attention regarding the health of workers. There can be a fine of Rs 5000 under Section 72B.

Section 9A deals with Occupational Health Survey

Section 10 deals with secrecy of information obtained by the inspectors during inspections and entails a fine on the inspector if information is disclosed

Health and Safety - Section 23 requires the mine owners to report any accident and posting it on a notice board. Sections 25, 26 and 27 deal with the provisions for notifying the concerned authorities about occupational diseases. These sections also state the fines the medical practitioner is liable to if the disease is not reported. The maximum fine, however, is a paltry Rs 50. Section 26 gives power to direct an investigation into the causes of a disease. The report of such an investigation can be published by the Central Government under Section 27.

Section 48 ensures that the Register of persons employed is maintained

3 Available on http://coal.nic.in/weboflife-minessafety/ma_1952.pdf


Penalties and procedure – Chapter IX, Sections 63-81 deals with the various penalties and procedures for notices, including penalty for falsification of records or using false certificates for fitness.

Other important laws:

Apart from the aforesaid acts governing issues relating to the health of workers in factories and mines, the following laws provide relief and measures for workers involved in varied types of activities that could have ill- effects on their health. These are:

1) Building and other Construction Workers (Regulation and the Employment and Conditions of Service) Act, 19964

The act provides for regulating the employment and conditions of service of building and other construction workers and also provides for their safety, health and welfare measures. The act applies to every establishment, belonging to or under the control of government, any body corporate or firm, an individual or association or other body of individuals which or who employs building workers in any building and other construction work

2) The Plantation Labour Act, 19515 This act intends to provide for the welfare of labour and further

regulate conditions of work in plantations such as tea, coffee, and cinchona. However, the state governments may with prior approval of the Central Government extend application of this act to such other plantations by notification in the Official Gazette. The act further provides provisions as to health and welfare of the workers.

3) Other acts, namely Dock Workers (Safety, Health and Welfare) Act, 1986, Beedi and Cigar Workers (Conditions of Employment) Act, 1966, and the Insecticides Act, 1968, contain provisions for the health and safety of workers engaged in particular occupations.

4) Child labour (Prohibition and Regulation) Act The basic objective of the Child Labour (Prohibition &

4 http://oehni.in/files/Cess_Act_1996.pdf5 Available on http://labour.nic.in/upload/uploadfiles/files/ActsandRules/Service_and_

Employment/The%20Plantation%20Labour%20Act,%201951.pdf


Regulation) Act, 1986, is to ban employment of children below the age of 14 years in factories, mines and hazardous employment and to regulate the working conditions of children in other occupations. Under this act, children are prohibited from working in 13 occupations and engaging in 51 processes.

1.2 Role of government agencies

Several governmental agencies and committees have been formed over the years to ensure research on occupational health and to improve upon the existing legal framework so as to include modern day realities.

NIOH - NIOH started as “Occupational Health Research Institute” (OHRI) in the year 1966 and was re-christened as “National Institute of Occupational Health” (NIOH) in 1970 and is currently located in Ahmedabad. The major objectives of the Institute and its centers are to identify and mitigate the occupational and environmental health problems in the country. NIOH has carried out research work on many occupational diseases and has also developed preventive intervention and control measures, which are economical and locally available. Some of the examples are the control of silicosis in unorganized sectors such as agate polishing, quartz crushing, stone quarrying among other, and green tobacco sickness in tobacco harvesters.

Labour Commission - The first National Labour Commission in 1929, had promised much in the direction of social security, social welfare, wages, social insurance, industrial relations, industrial adjudication and collective bargaining. Several recommendations made in the report of the first national commission on labour were made part of labour legislations.

After a gap of almost 72 years, the Second National Labour Commission was constituted which submitted its report in the year 2002 to the federal Government of India. The commission was required to -

1. To suggest rationalisation of existing laws relating to labour in the organised sector; and

2. To suggest umbrella legislation to ensure a minimum level of protection for workers in the unorganised sector.


The commission made the following important recommendations. 1. The system of legal aid to workers and trade unions from Public

Fund worked out to ensure that workers and their organisations are not unduly handicapped as a result of their inability to hire legal counsel.

2. There should be reduced working hours for adolescents, prohibition of underground work in mines for women workers, prohibition of work by women workers between certain hours and so on.

3. No exemptions for areas such as export processing zones (EPZ) or special economic zones (SEZ) from the labour laws.

4. The Workmen’s Compensation Act should be converted from an employers’ liability scheme to a social insurance scheme, its coverage should be progressively extended to more types of employment and classes of employees, and the restrictive clauses in Schedule II of the act should be removed.

5. The commission would recommend that no worker should be kept continuously as a casual or temporary worker against a permanent job for more than two years.

No matter which act governs the health, safety and welfare features for workers employed in different occupations, there are two (2) laws under which compensation can be claimed, namely the Employees Compensation (EC) Act, 1923 (earlier Workmen’s Compensation Act) and Employee State Insurance (ESI) Act, 1948. Any worker who is governed by the ESI Act can claim compensation under the ESI Act. All other workers need to claim compensation under the EC Act. Under Building and Other construction workers Act, a worker can claim compensation according to Employee compensation Act as per Section 45 (2).

1.3 Insurance and compensation laws

THE EMPLOYEES STATE INSURANCE ACT (ESI ACT), 1948The ESI Act has been passed to provide for certain benefits to

employees in case of sickness, maternity and employment injury and to make provisions for related matters. As the name suggests, it is basically an ‘insurance’ scheme i.e., the employee gets the benefits if he is sick or disabled.

Employees State Insurance Corporation (ESIC) has been formed to supervise the scheme under Section 3 of the act. The corporation supervises and controls the ESI scheme.


No dismissal or punishment during period of sickness - Section 73 of the act provides that no employer shall dismiss, discharge or reduce or otherwise punish an employee during the period the employee is in receipt of sickness benefit or maternity benefit. He also cannot dismiss, discharge or otherwise punish the employee when he is in receipt of a disablement benefit or is under medical treatment or is absent from work due to sickness.

This gives protection to the employee when he or she is in receipt of sickness benefit or maternity benefit. Employer cannot take disciplinary action against employees in such cases.

Applicability of ESI Scheme - The scheme is applicable to all factories6 [Section 1(4)]. The appropriate state government can also make it applicable to any other industrial, commercial, agricultural or other establishments, by issuing notification and giving six months notice [Section 1(5)].

Thus, ESI Act can be made applicable to ‘shops’. However, since the government has to provide for hospitals and medical facilities, the act can be made applicable to different parts of the state at different dates. Thus, if a factory is at a place where the ESIC is unable to provide medical facilities, the ESI Act may not be made applicable in that area. The government can exempt a factory or establishment or persons or class of persons from provisions of ESI Act, if the employees are getting better medical facilities [e.g. if the government is convinced that the factory itself is providing very good medical facilities, e.g. like Tata Iron and Steel Company Limited (TISCO) is exempt from registering under ESI Act].

Definition of ‘factory’ in ESI Act - In the act ‘factory’ means any premises where manufacturing is carried out. If the manufacturing is without the aid of power, the act is applicable if there are 20 or more persons employed. If the manufacturing is with the aid of power, the act applies if there are at least 10 persons employed [Section 2(12)]. However, ‘mines’ have been excluded. The ‘Manufacturing process’ has same meaning as defined under Factories Act [Section 2(14AA)].

Once a factory or establishment is covered, it continues to be covered even if the number of employees is reduced [Section 1(6)]

6 As explained under Section 1 (4)


Construction workers not covered - Construction workers employed in construction activities are not covered under ESIC (ESIC circular No. P-12(11)-11/27/99 Ins.IV dated 14-6-1999). However, if the administrative office employs 20 or more eligible employees, that establishment and employees working in administrative office will be covered.

Employer under ESI Act – ‘Principal Employer’ means a) owner or occupier of factory b) head of department in the case of a government department, or c) person responsible for supervision and control, in the case of any other establishment [Section 2(17)].

Employees working through a contractor are also covered. The term ‘contractor’ indicates the ‘immediate employer’. ‘Immediate employer’ means a person who has undertaken the execution, on the premises of factory or establishment to which this act applies. He may do on his own or under the supervision of the principal employer. The work should be part of the work of the factory or establishment of the principal employer or is preliminary or incidental to the work of factory or establishment [Section 2(13)]. The primary liability of the ESI contribution is of the principal employer [Section 40(1)]. He can recover the contribution paid by him from the ‘immediate employer’, i.e., the contractor [Section 41].

Employee under ESI Act - ‘Employee’ means any person employed for wages in or in connection with the work of a factory or establishment to which the ESI Act applies. The wage ceiling for coverage of employees (excluding remuneration for over-time work) is Rs.15, 000/month- (with effect from 1st May 2010).

Employees include:• Personsemployedthroughacontractor;• Apprenticesother than those coveredunder ‘Apprentices

Act’;• Personsemployedintheadministrationoffice,departmentor

branch for purchase or sale of products;• Casualworkersengagedinworkincidentaltoorconnected

with work of factory or establishment;• Employeesworkingatheadofficewhenfactoryislocatedat

different place• Canteenstaff,watch(securitystaff )andwardstaff;• Staffinhospitalattachedtoafactory.


The following are not employees:* Persons drawing wages greater than Rs. 15,000 per month;* member of the Army, Navy or Air Force;* Partners of firm are not employees even if they are drawing

wages* Persons employed in government establishments and* Construction workers engaged in raising additional building

subsequent to the initial set-up of a factory.

Contributions to ESIC Fund - Both employee and employer have to make contributions to ESIC. The employer must deduct the contribution of the employee from his or her wages and submit to the ESIC both the employer’s contribution as well as employees’ contribution [Section 39(1)].

The contribution is payable for the ‘wage period’ i.e. the period in respect of which wages are payable to employee [Section 39(2)]. Normally, the ‘wage period’ is a month. The employee’s contribution is 1.75 percent of wages. The employee’s contribution is not payable when his or her daily wages are below Rs. 15/day.

The employer’s contribution is 4.75 percent of the total wage bill of all employees in respect of every wage period. The contribution has to be paid within 21 days from the close of the month. If the contribution is not paid on time, interest at a rate of 12 percent per annum is charged and payable [Section 39(5)(a)].

In addition, the ESIC authorities can impose ‘damages’ varying between 5 percent and 25 percent of the contribution in arrears. [Section 85B].

The employer cannot deduct the employer’s contribution from the salary of employee [Section 40(3)].

Wages for the purpose of ESI Act - ‘Wages’ means all remuneration paid or payable in cash to the employee according to the terms of the contract of employment and includes any payments made to an employee in respect of periods of authorised leave, lock-out, lay-off, or strike which is not illegal and other additional remuneration paid at intervals not exceeding two months. It does not include: contributions paid by employer to any pension fund or provident fund; travelling allowance(s); reimbursement of expenses made by nature of employment of the employee; or gratuity [Section 2(22)].

Thus, wages include basic pay, dearness allowance, city compensatory allowance, payment of day of rest, overtime wages, house rent allowance, incentive allowance, attendance bonus, meal allowance


and incentive bonus. However, wages do not include annual bonus, unilateral rewards scheme (inam), ex gratia payments made every quarter or every year, travelling allowance, retrenchment compensation, encashment of leave and gratuity.

Contribution period and benefit period – The contribution periods are (a) 1st September to 31st March; and (b) 1st April to 30th September. The corresponding benefit periods are: (a) following 1st July to 31st December; and (b) following 1st January to 30th June. Thus, the ‘benefit period’ starts three months after the ‘contribution period’ is over. The relevance of this definition is that sickness benefits and maternity benefits are available only during ‘benefit period’. Thus, an employee gets these benefits only nine months after joining and paying contributions. However, other benefits are available during contribution period.

Benefits to employees covered under ESI Act

Medical benefits 7

The Employees’ State Insurance Scheme provides full medical care in the form of medical attendance, treatment, drugs and injections, specialist consultation and hospitalization for insured persons and also for members of their families.

For the families, this benefit has been divided into two categories

- Full Medical Care This consists of hospitalisation facilities and includes specialist services, drugs and dressings and diets as required for in-patients.

- Expanded Medical CareThis consists of consultation with the specialists and supply of special medicines and drugs as may be prescribed by them in addition to the out-patient care. This also includes facilities for special laboratory tests and x-ray examinations.Apart from the curative services provided through hospitals and dispensaries, the corporation also provides the following facilities including family welfare services.

7 http://esic.nic.in/benefits_mb.htm


- Immunisation Preventive inoculation and vaccines are given against diseases like diphtheria, pertusis, polio, tetanus, measles, mumps, rubella, tuberculosis, etc.

- Supply of special aidsInsured persons and members of their families are provided with artificial limbs, hearing aids, and other equipment, such as spinal supports, cervical collars, walking callipers, crutches, wheel chairs and cardiac pace makers as a part of the medical care under the Scheme.

Sickness benefit 8

The Sickness Benefit is provided via periodic cash payments made to an insured person (IP) during the period of certified sickness occurring in a benefit period when the person requires medical treatment and attendance with abstention from work on medical grounds. Prescribed certificates are; Forms 8, 9, 10, 11 & ESIC-Med.13. The Sickness Benefit is equal to 70 percent of the employee’s average daily wages and is payable for 91 days during two consecutive benefit periods.

Qualifying conditions

- To become eligible for Sickness Benefit, an insured person should have paid contributions for not less than 78 days during the corresponding contribution period.

- A person who has entered into insurable employment for the first time has to wait nearly nine months before becoming eligible for the Sickness Benefit, because his corresponding benefit period starts only after that interval.

- The Sickness Benefit is not payable for the first two days of a spell of sickness except in the case of a spell commencing within 15 days of closure of an earlier spell for which the sickness benefit was last paid. This period of two days is called “the waiting period”.

8 http://esic.nic.in/benefits_sickness.htm


Extended Sickness Benefit (ESB) 9

There is a provision for paying the Sickness Benefit for an extended period, namely the Extended Sickness Benefit, and for a period of up to 2 years in an ESB period of 3 years.

- An insured person (IP) suffering from certain long-term diseases is entitled to ESB, only after exhausting the Sickness Benefit to which he may be eligible. A common list of these long-term diseases for which ESB is payable, is reviewed by the corporation from time to time. The list was last reviewed on 5 December.1999 and the revised provisions of ESB became effective from 1 January 2000 and at present this list includes 34 diseases which are grouped in 11 groups as per International Classification of diseases:

1. Infectious Diseases- Tuberculosis- Leprosy- Chronic emphysema- AIDS

2. Neoplasms- Malignant diseases

3. Endocrine, nutritional and metabolic disorders- Diabetes mellitus-with proliferative retinopathy/diabetic

foot/nephropathy. 4. Disorders of nervous system

- Monoplegia- Hemiplegia- Paraplegia- Hemiparesis- Intracranial space occupying lesion- Spinal cord compression- Parkinson’s disease- Myasthenia gravis/neuromuscular dystrophies

5. Disease of the Eye- Immature cataract with vision 6/60 or less- Detachment of retina- Glaucoma

9 http://esic.nic.in/benefits_esb.htm


6. Diseases of cardiovascular system- Coronary artery disease

o Unstable angina o Myocardial infraction with ejection less than 45%

- Congestive heart failure- left, right- Cardiac valvular diseases with failure/complications- Cardiomyopathies- Heart disease with surgical intervention along with

complications7. Chest Diseases

- Bronchiectasis- Interstitial lung disease- Chronic obstructive lung diseases (COPD) with congestive

heart failure (Cor Pulmonale)8. Diseases of the digestive system

- Cirrhosis of liver with ascities/chronic active hepatitis9. Orthopaedic Diseases

- Dislocation of vertebra/prolapse of intervertebral disc- Non union or delayed union of fracture- Post-traumatic surgical amputation of lower extremity- Compound fracture with chronic osteomyelitis

10. Psychoses- Schizophrenia - Endogenous depression - Manic depressive psychosis (MDP) - Dementia

11. Others- More than 20% burns with infection/complication- Chronic renal failure- Reynaud’s disease/Burger’s disease

�� In addition to the above list, Director General/Medical Commissioner are authorised to sanction ESB in cases of rare but treatable diseases or under special circumstances, such as adverse reaction to drugs which have not been included in the above list, depending on the merits of each case, on the recommendations of Regional Dy. Medical Commissioner or Administrative Medical Officer (RDMC/AMO) or authorized officers running the medical scheme.�� To be entitled to the Extended Sickness Benefit an Insured Persons

should have been in continuous employment for two years or more at the beginning of a spell of sickness in which the disease is


diagnosed and should also satisfy other contributory conditions.�� ESB shall be payable for a period of 124 days initially and may be

extended up to 309 days in chronic suitable cases by Regional Dy. Medical Commissioner/Medical Referee/Administrative Medical Officer/Chief Executive of the E.S.I. Scheme in the state or his nominee on the report of the specialist(s).

Maternity Benefit 10

The Maternity Benefit is payable to an Insured Woman in the following cases subject to contributory conditions:-

�� Confinement-payable for a period of 12 weeks (84 days) on production of Form 21 and 23.�� Miscarriage or medical termination of pregnancy (MTP)-payable

for 6 weeks (42 days) from the date following the miscarriage-on the basis of Form 20 and 23.�� Sickness arising out of pregnancy, confinement, or premature birth

and payable for a period not exceeding one month-on the basis of Forms 8, 10 and 9.�� In the event of the death of the Insured Woman during

confinement leaving behind a child, the Maternity Benefit is payable to her nominee on production of Form 24 (B).�� The Maternity Benefit rate is 100 percent of average daily wages.

Temporary Disablement Benefit (TDB) 11

The TDB is payable to an employee who suffers an employment

injury (EI) or occupational disease and is certified to be temporarily incapable to work. “Employment Injury” has been defined under Section 2(8) of the Act, as a personal injury to an employee caused by accident or occupational disease arising out of and in the course of his employment, being in insurable employment, whether the accident occurs or the occupational disease is contracted within or outside the territorial limits of India.

Certificates Required for TDB: Accident Report in form 16, Form 8,9,10, 11 and ESIC Med.13.

10 http://esic.nic.in/benefits_maternity.htm11 http://esic.nic.in/benefits_temp.htm


Eligibility for TDB : The benefit is not subject to any contributory conditions. An employee who is an insured person (IP) is eligible from the day he takes up insurable employment. The TDB Rate is 90 percent of average daily wages.

Duration of TDB : There is no prescribed limit for the duration of the TDB. This is payable as long as temporary disablement lasts and significant improvement by treatment is possible. If a temporary disablement spell lasts for less than three days (excluding the day of accident), IP will be paid the sickness benefit, if otherwise eligible. A special point for Insurance Medical Officers (IMOs)s/ Insurance Medical Practitioners (IMPs) is that some IPs may resist taking a Final Certificate especially in the first three days for fear of losing their TDB.

Permanent Disablement Benefit (PDB) 12 PDB is payable to an IP who suffers permanent residual

disablement as a result of Employment Injury (including Occupational Diseases) and results in loss of earning capacity.

The duration of the PDB may be for the period given by the Medical Board, if assessment is provisional or for the victim’s entire life, if assessment is final.

PDB Rate: The PDB rate is calculated as percentage of loss of earning capacity as assessed by the Medical Board/Medical Appeal Tribunal (MAT)/Employee Insurance Court in relation to TDB. List of injuries deemed to result in permanent total disablement and a percentage loss of earning capacity has been previewed in the 2nd Schedule to ESIC Act, 1948. Hence, the maximum rate of PDB can be equal to the rate of TDB. The PDB amount is revised by the ESIC from time to time to adjust for inflation. The latest enhancement is with effect from 1 August 2009

The age of an insured person will have to be proved to the satisfaction of the corporation in all cases. The Medical Boards assess the age of insured persons who are not able to produce satisfactory proof of age and the opinion of Medical Board shall be final in this regard.

12 http://esic.nic.in/benefits_pdb.htm


Dependents’ Benefit 13

The Dependents’ Benefit is payable to the dependants according to Section 52 of the Act read with provision of 6(A) of Section 2 in cases where an Insured Person dies as result of Employment Injury (EI). The age of the dependents, has to be determined either by production of documentary evidence as specified in Regulation 80(2) or be certified by a medical officer in charge of government hospital or dispensary.

The minimum rate of Dependent Benefit with effect from 1 January 1990 is Rs.14/- per day, and these rates are increased from time to time. The latest enhancement took effect is with effect from 1 August 2009

II. CLAIMING COMPENSATION

EMPLOYEES COMPENSATION ACT 1923

This is an act to provide for the compensation payment by certain classes of employers to their employees in the event of an injury from a work-related accident

Section 3:- this section deals with the compensation to be provided in case of injury or accident to a workman during the course of employment. This section enables workers suffering from occupational diseases to receive compensation. Schedule II of the act details the eligible persons which includes persons employed in factories, construction works and other hazardous occupations. According to the Act, the occupational disease should be contracted while in the service of the employer in the specified employment. Schedule III of the Act divides occupational diseases into three categories, Part A, Part B, and Part C 14. For diseases specified in Part A there is no qualifying period of employment. For diseases specified in Part B a person should have been employed in the specified employment for a continuous period of six months before the disease is contracted. For the diseases specified in part C, the qualifying period is specified by the Federal Government.

13 http://esic.nic.in/benefits_db.htm14 http://www.oehni.in/esiocc


Amount of Compensation (Section 4)

1. Where death results from the injury – An amount equal to fifty per cent of the monthly wages of the deceased multiplied by the relevant factor or an amount of Rs. 120,000 whichever is more

2. Where permanent total disablement results from the injury – an amount equal to sixty per cent of the monthly wages of the injured employee multiplied by the relevant factor or an amount of Rs. 140,000 whichever is more

The relevant factor in relation to an employee means the factor specified in the second column of Schedule IV against the entry in the first column of the schedule specifying the number of years which are the same as the completed years of the age of the employee on his last birthday immediately preceding the date on which the compensation fell due.

3. Where permanent partial disablement result from the injury a. In the case of an injury specified in Part II of schedule I15,

such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by the injury

b. In the case of an injury not specified in the schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury.

4. Where temporary disablement, whether total or partial, results from the injury – a half monthly payment of the sum equivalent to twenty five percent of monthly wages of the employee to be paid in accordance with the provisions of the sub section (2).

Other Important Provisions of the ActThe Act mandates that the notice of an accident is required to

be given by an employee to the Commissioner, within a period of two years from the date of such accident. In cases where such accident is the

15 Schedule I lists of Injuries deemed to result in Permanent total and Partial disablement [Section 2 and Section 4 of Employees Compensation Act]


contracting of a disease, the accident shall be deemed to have occurred on the first of the days during which the employee was continuously absent from work due to disablement caused by the disease16. The Act further provides for a medical examination of an employee free of charge by a medicinal practitioner where a notice of the accident has been received by an employer17. The Commissioner has to dispose of the compensation cases within a period of three months18.

How Workers can c la im Compensat ion under Workmen’s Compensation Act 1923 and ESIC Act 195219

Steps in Claiming Compensation under the WC Act 19231. You can claim compensation under WC Act 1923 if

a. You are not covered under ESI Actb. If you have not filed a claim for compensation in a civil court

2. Keep record of accident along with a. Report to the employerb. Papers of treatmentc. Report to the police if any

3. Get your disablement assessed by a qualified medical practitioner. All MBBS (Bachelor of Medicine and Bachelor of Surgery) doctors with legitimate registration numbers are qualified medical practitioners under this Act

4. In case of diseases due to work specified under schedule III of the Act, you should get it diagnosed and assessed by any qualified medical practitioner

5. Give notice of accident and permanent disablement within two years after the accident – (See sample notice form/format in Annexure)

6. If the employer asks you to be checked by a qualified medical practitioner then he has to (a) pay all the charges and (b) get the medical check-up done within 72 hours of receiving the notice

7. In case of death, the above procedure has to be carried out by the dependents

8. In the court, you have to file your claim in the specified format. (See sample claim form in the Annexure)

16 Section 10 of the Act17 Section 1118 Section 25 A19 Diseases due to Work and Compensation – PRIA


9. The court will issue an order obligating the employer to pay compensation or otherwise after discussions, arguments and cross-questioning

10. You need to serve copy of the order of the court to the employer to get compensation

Steps in Claiming Compensation under the ESI Act

1. For accidental injuries there is Form 16 of ESIC2. Employer will fill the details in the form.3. Statement of two witnesses is recorded4. Application for compensation claim is then submitted to the local

office of ESIS5. Injured worker is called for a check-up by the Medical Board6. The medical board evaluates and determines whether the disability

is permanent or temporary. 7. If accident victim is not satisfied with the medical evaluation, he

or she can appeal to the ESI tribunal.

III. Barriers and problems in getting compensation

The most commonly encountered problem and issues for the sufferer of an occupational illness or injury are:

1. The compensation process is very time consuming2. It is difficult to understand various provisions of the Acts3. Necessity to establish the Employer-Employee relationship4. Lack of medical diagnosis. Medical certificate not available5. No standards for diagnosis. Different doctors give different

disability percentages

In the case studies below it will be shown how victims of work-related illnesses have found support in making compensation claims and overcome some of these problems. The victims and grass root organisations have used various mechanisms in addition to the compensation acts and have won victories and been able to claim compensation. Some of these mechanisms are easier to pursue and are far quicker than the procedure laid down under the acts. These mechanisms are now being increasingly used to firstly, stop polluting industries and mines from being set up, secondly to claim compensation and thirdly, to ensure that the right to safe and healthy working environments is not violated.


3. 1 Case Studies In the case of Bharat Gold Mines Ltd appeals were filed in

Karnataka High Court against the awards made by the Commissioner for Workmen’s Compensation, Kolar District (hereafter ‘the Commissioner’), awarding compensation to the workmen of the employer due to the premature termination of their services by reason of occupational disease, namely silicosis, contracted by them in the course of their employment in Bharat Gold Mines20. In the final judgement, it was held that compensation in the case of contracting of occupational disease is to be calculated on the basis of wages drawn at the time of termination of employment and not on the date of contracting the occupational disease.

Hindustan Composites Limited- In 2004 about 34 compensation cases were filed in Bandra Labour Court by workers of Hindustan Composites Limited located at Ghatkopar, Mumbai. By 2010, only 32 claimants had been examined due to the lengthy procedure required under the Workman Compensation Act. At the time of writing, a final decision by the Court had not yet been made.

Compensation for victims of silicosis

Silicosis is a respiratory disease which has no cure. A case was filed as public interest litigation in 2006 in the Supreme Court of India. The court in an interim order in March 2009, directed that National Human Rights Commission (NHRC) “may take up the specific and confirmed cases of persons who are suffering from silicosis and shall recommend to provide immediate medical relief to them through the concerned authorities and in case of those persons who died because of silicosis, may provide for compensation through the concerned authorities”. This was a groundbreaking order from the country’s highest court and it paved the way to get compensation for victims who could not receive any compensation under any Indian Labour Law.

NHRC then took up the cases that were already under its purview and started its investigations. The first case taken up was of the tribal migrant workers from Jhabua, Madhya Pradesh. These people used to go to the neighbouring state of Gujarat to work in stone crushing factories. Almost all the workers who worked in these factories either

20 Karnataka High Court (1992) 1 LLN 1023


returned home sick or did not return at all. NHRC after going through various reports and investigation ordered the State Government of Gujarat to pay compensation of Rs 300,000 to each of the 238 workers who had died due to silicosis in November 2010.

NHRC had also recommended payment of compensation to the workers who died due to silicosis in the Jodhpur region of Rajasthan and to provide medical relief and rehabilitation to workers suffering from silicosis. These orders were passed in April 2010. The state government of Rajasthan after repeated memorandums and protests finally gave interim relief of Rs 100,000 which was given to each of the 21 next of kin.

All these victims are workers who could not prove that they had been employed by a certain employer, hence could not file for compensation under any relevant Indian law.

Alternative Mechanisms to Claim Compensation

A) Transnational Claim Process

The Hindustan Ferodo Limited Asbestosis Claim 21

Hindustan Ferodo Limited (formerly known as Asbestos, Magnesium and Friction Materials Limited) was a company based in Ghatkopar, Mumbai since 1956. The company produced brake linings, textiles and other products, mainly from chrysotile (white) asbestos imported from Canada and Russia. Until 1993, it was a subsidiary of the British company Turner and Newall Limited (T&N), at one time the biggest producer of asbestos products in the world. In 1993, Hindustan Ferodo was sold to the Indian Rasoi Group and became Hindustan Composites Limited (HCL). The Ghatkopar factory was closed in 2005.

Despite T&N being aware of the harmful effects of exposure to asbestos dust since 1930 with the publication of the Merewether and Price Report, there remained an unacceptable level of dust in the Ghatkopar factory, and adequate protection measures were never implemented by the company to protect workers’ health

T&N did not implement adequate preventative measures at its Ghatkopar factory because there had been no study on the harmful effects of asbestos on workers in India, notwithstanding the fact

21 Excerpted from the article by Krishnendu Mukherjee Barrister and Advocate


that there had been such studies done in the UK in the intervening half century. The anecdotal evidence of the workers indicates that conditions deteriorated once the factory came under Indian ownership.

It will come as no surprise to learn that the prevailing conditions at the factory lead to asbestos-related illnesses among its formers workers. A 2004 study of workers at the factory revealed that more than 42 workers had asbestosis or lung cancer. Subsequent studies on former workers have revealed another 100 infected workers, including two wives of former sweepers at the factory who had contracted asbestosis through washing their husband’s dust covered work clothes. These numbers are believed to be dramatic understatement of the true incidence of asbestosis in this plant, due to the fact that many of the workers were not documented or were sacked once they had difficulties in working.

When T&N went into administration (for bankruptcy) in 2001, its liabilities for personal injury through asbestos exposure, were transferred to a special T&N UK Asbestos Trust Fund. So far, 356 claims have been submitted, and new claims are being submitted as they arise. This will be the largest single claim for asbestos-related illness in India. It is hoped that when the former workers finally get some compensation in a few months time, it will encourage many more workers to make claims against their current or former employers for injury caused by exposure to asbestos at work. It is to be noted that several claims filed by workers under the Employees Compensation Act in 2004 are still pending.

It is significant to mention here that compensation to date received by the former workers of Hindustan Ferodo from Tuner and Newall has been the sole successful case in history of occupational disease compensation cases in India. While there have been few cases filed in District Courts for Asbestosis compensation, the success in these cases appears far beyond reach. Most of these cases lie pending before the courts. Hence, it is difficult at this point to provide legal analysis with regard to compensation of asbestos related cases.

B) Protest and Action by Union

In 1990, the National Campaign on Dust-Related Lung Diseases and the Textile Labour Union in Ahmedabad was contacted and agreed to organise a meeting with shop floor representatives. More than 100 workers from different textile mills participated in the meeting, and there was discussion on byssinosis and the legal provisions for compensation. There was discussion on a study done by NIOH in


three textile mills in Ahmedabad in which 89 cases of byssinosis were identified. A worker from one of the three mills took part in the meeting and with the encouragement and backing of the union started the process of identifying the workers and fighting for their claims. Several medical camps were organised and more than 100 workers who could claim compensation for byssinosis and noise-induced hearing loss made claims with the active support of the unions. Regular follow-ups and the backing of the trade unions ensured that any problems with the ESIC or employers were resolved.

In a factory in Vadodara manufacturing sodium bichromates and other chemicals using chromium, the working conditions were extremely poor, and workers were exposed to chromium chemicals. These workers were part of an independent union. On finding a large number of workers suffering from hazardous working conditions, the union sent a letter to the factory inspectors asking for an inspection and corrective measures and held several meetings and highlighted the issue through the media. The certifying surgeon organised a medical camp with the help of ESI doctors and within a few hours 35 workers were found to be suffering from nasal septum perforation and 16 workers were found to be suffering from dermatitis. Cases of the violations of safety and health regulations were filed against the owners. NIOH conducted a study and found high chromium levels in the workers. Because of the tremendous pressure placed by the union, the factory eventually closed and ESI took up the cases for compensation and provided relief.

C) National Green Tribunal (NGT)

Under Article 21 of the constitution of India, the citizens of the country have the right to a healthy environment. To this end, the National Green Tribunal (NGT) was set up as a special fast-track court to expeditiously handle the disposal of cases pertaining to environmental issues. The tribunal’s jurisdiction is environmental matters and to provide speedy environmental justice and help reduce the burden of litigation in the higher courts. The National Green Tribunal Act of 2010 provides relief and compensation measures to any person for cases relating to environmental issues. It is noteworthy to state here that under this Act the definition of a person does not include workers in its preview. The reason for this is explained as that compensation measures are provided to workers under the Employee Compensation Act.


It is not be bound by the procedures laid down under the Code of Civil Procedure, 1908, but is guided by principles of natural justice. The tribunal is mandated to make and endeavour for disposal of applications or appeals within six months of the filing of the same. Initially, the tribunal was to be set up in five places and to follow a circuit procedure to make itself more accessible. New Delhi is the Principal Place of Sitting of the Tribunal and Bhopal, Pune, Kolkata and Chennai shall be the other four places. The Bench in Bhopal and Chennai have started functioning with other places to follow.22

D) Public Interest Litigation (PIL)

In Indian law, public interest litigation is litigation for the protection of the public interest. PIL may be introduced in a court of law by the court itself (su moto), rather than the aggrieved party or another third party. For the exercise of the court’s jurisdiction, it is unnecessary for the victim of the violation of his or her rights to personally approach the court. In PIL, the right to file suit is given to a member of the public by the courts through judicial activism. The member of the public may be a non-governmental organisation (NGO), an institution or an individual.

Consumer Education and Research Centre vs. Union of India (1995)

This case dealt with the problem of the health of workers in the asbestos industry. The Supreme Court held here that:

• Compulsory health insurance for every worker asenforcement of the worker’s fundamental right to health under Art 21 of the Constitution read with the relevant directive principles guaranteed under Articles 39 (e), 41 and 43

• Asbestos cases certified by theNational Institute ofOccupational Health would be entitled to compensation of Rs. 1 lakh (i.e., Rs 100,000) payable by the concerned factory or establishment within a period of three months

Kalyaneshwari vs. Union of India and others (2004)

• Inthisparticularcasethemaincontentionwasthebanon

22 http://www.greentribunal.in


the manufacture and use of asbestos. The Court held that there is no law enacted so far which requires the banning of any activity in regard to asbestos at the stage of mining, manufacture or production despite its adverse effects on human health. Every factory using or manufacturing asbestos, obtains a license under the Factories Act as well as permission from the competent authorities under the Environmental Laws.

3. 2 Improvements sought in various laws and role of civil society

Improvements sought under the Employee’s Compensation Act, 1923:

• The payment formedical expenses should bemade by theemployer directly.

• Asper Section2(n) certain categories of employees arenotcovered. All categories of employees need to be covered under this law.

• Mechanismforensuringenforcementofthecompensationordershould be set-up.

• Compensationshouldbedeliveredwithinaperiodof1monthfrom the date of order.

Amendments required to improve ESI Act 1948:

• AllcompensationclaimsfiledundertheActstobeprocessedanddisposed of within 3 months from the date of filing of claims.

• InESIAct,compensationisduefromthedateofconfirmationand assessment by the Special Medical Board. The Act is silent on the time period within which the claimant should be examined by the board. In such circumstances, claimants have to wait for as long as two to three years for the board to examine their claims. No compensation for the waiting period is paid. This should be immediately changed by amending the law to the effect that the compensation is due from the date of injury or diagnosis or first signs of physical debilitation.

• InordertoensureeffectiveimplementationoftheseActs:1. The worker should be immediately given the employment

card, within a maximum of 7 days.2. Where the ESI Act is applicable, the ESI inspectors should

ensure that all workers are registered under the ESI Act.


3. Where the ESI Act does not apply, in addition to Employee’s Compensation Act, an insurance scheme for medical benefits and compensation for the dependents should be taken by the employer.

• SupremeCourtdirectionsinthecaseofConsumerEducation&Research Centre and others Vs. Union of India which deals with asbestosis should be made applicable with regards to silicosis -

1. “The ESI Act and the Workmen’s Compensation Act provide for payment of mandatory compensation for the injury or death caused to the workmen while in employment. Since the act does not provide for payment of compensation after cessation of employment, it becomes necessary to protect such persons from the respective dates of cessation of their employment till date of their successful compensation claim. Liquidated damages by way of compensation are accepted principles of compensation. In the light of the law above laid down and also on the doctrine of tortuous liability, the respective factories or companies shall be bound to compensate the workmen for the health hazards which are the cause of the disease with which the workmen are suffering from or had suffered pending the writ petitions. Therefore, the factory or establishment shall be responsible to pay liquidated damages to the workmen concerned.”

2. “All the factories whether covered by the ESI act or the workmen’s compensation Act or otherwise are directed to compulsorily insure health coverage of every worker.”

The amount of compensation is calculated based on the degree of disability incurred. For silicosis victims, this disability should be considered as 100 percent as according to High Court of Gujarat order under case number 3449 of 1999 (Babubhai v/s ESIC).

In both the acts it is stated that a period of employment is required for the disease to occur. Though this is logical, the period is seen as a qualifying period to claim compensation. This has been a hindrance for workers to claim compensation. This should be removed and any worker found to be suffering from chronic diseases such as silicosis (no matter for how long the employment was) should be compensated. ESIC had resolved in 1992 in this regard and this resolution should become part of the Act but sadly things have not progressed and this hindrance to claim compensation is still present.


Implementation Mechanism

There should be an implementation mechanism which will ensure that all compensation claims which have been decided are implemented immediately, so that the worker does not have to suffer any further. Penalties should be levied on any employer who defaults or delay payments. This implementation mechanism should be independent of the Labour or ESI courts and should include representatives from Employees (Unions), Employers, members of civil society, and government representatives.


Annexure

�� Factories Act - List of Industries Involving Hazardous Processes - The First Schedule-[See Section 2(cb)] 23

�� Factories Act - permissible levels of certain chemical substances in work environment under the Second Schedule listed under Section 41F 24

�� Factories Act - Notifiable diseases listed under Third Schedule under Sections 89 and 90 25

�� ESI Act – List of Occupational Diseases – The Third Schedule 26

�� List of occupational diseases as per Employee Compensation Act 1923 (earlier Workmen Compensation Act, 1923) 27

Formats for filing Compensation Claims

1. Format for notice to be given to the Employer under the Employees Compensation Act 28

2. FORM F (Rule 20) Application for Compensation by Workmen 29

23 http://oehni.in/files/List_of_Industries_Involving_Hazardous_Processes.pdf24 http://oehni.in/files/LLCS_in_work_environment.pdf25 http://oehni.in/files/List_of_notifiable_diseases.pdf26 http://www.oehni.in/esiocc27 http://www.oehni.in/occdis28 http://www.oehni.in/files/Form%20F_rule%2020_ECA.pdf29 http://www.oehni.in/files/Format_for_Notice.pdf

I. Legal framework of OSH in Indonesia

Indonesia has comprehensive occupational safety and health laws and regulations designed to protect worker safety. The main law concerning occupational safety and health is Government Act No. 1 (1970) on Work Safety (Keselamatan dan Kesehatan Kerja, K3) and covers all workplaces. (See K3, Chapter II, paragraph 1). Worker safety and health protection programs therefore are mandated by law. (See K3, Act 13 of 2003, Chapter X, Part 1, Article 86). This law also explicitly states that workers have the right to occupational health and safety protection.

1.1 Work Safety Act and other programs

Government Act No. 1 (1970) on Work Safety (hereafter the Work Safety Act) requires safe and healthful workplaces, plant health and safety committees. It requires employers to report to the various and appropriate government agencies and details regulations regarding government inspections of workplaces. The act was amended with Government Act No 25 (1975) which updated the requirements for Act No1 (1970).

The other act which regulates the compensation system in Indonesia is Act No. 3 (1992) on the conduct of Jaminan Sosial Tenaga Kerja (Jamsostek). Jamsostek is the social security system for workers in Indonesia. This act describes and explains the compensation system in Indonesia, which is run by the incorporated PT. Jamsostek.

Government Act No.13, also called the Indonesian Labour Law or the Manpower Act, has several articles laying out the framework for OSH. For example, Articles 86-87 of this act state that every worker has a right to receive OSH. Every enterprise is under an obligation to apply ‘an occupational safety and health management system that shall be integrated into the enterprise’s management system.’ It further adds that rulings concerning the application of the occupational safety and health management system shall be determined and specified with government regulations. Among these are Goverment

IndonesiaBy Hanita Susilawati,

Dimu Pratama and Karen Gunderson


Regulation No. 14 (1993) and Goverment RegulationNo. 84 (2010), both describing and detailing the administration of the social security compensation system. There are also Goverment Regulation No. 50 (2012) and Sistem Manajemen K3 (SMK3) dealing with OSH systems management.1

Employees Social Security Network (Jamsostek)

In addition to safe workplaces, Indonesian law (Act 3, 1992, Article 3) has mandated the creation of a social security network (Jamsostek) that provides for workers if they get injured:

“To provide protection to the workforce, a social security program must be implemented that can be managed via an insurance mechanism.”

As stated in Article 2 of Act 3 (1992), every worker has the right to social security. Jamsostek coverage is required for any employer of more than 10 employees (Goverment Regulation 14 of 1993, Jamsostek implementation, Article 2, Paragraph 3).

Furthermore, Chapter I, General Section of the act states that:

“The social security program provides protection for workers by supplying monetary compensation for lost or reduced income and employability when the worker experiences an accident, a hospital stay, a pregnancy, the birth of a baby, old age, or death”

Jamsostek includes accident insurance, life insurance (death benefit), old age pension and health insurance for workers (Chapter III, Article 6 of Act 3 1992). The legislation covers many types of workers and mandates coverage specifically for occupational accidents (Article 8, Paragraph 1). The law describes who is covered by the workplace accident insurance program (Art 8, Paragraph 2). Among others, it includes student interns working at a company (whether receiving wages or not) and company contractors, as well as prison inmates working in company internships prior to release. The law simply

1 According to the International Labour Organization (ILO), Indonesia is the only country in Asia that has mandated by the law the implementation of occupational safety and health management system (OSH-MS) at large enterprises.” See Pia Markkanen, ILO Working Paper No. 9, Occupational Health and Safety in Indonesia (April 2004).

Country Report: Indonesia 131

states that all working people are entitled to work accident insurance, regardless of their job. The Jamsostek regulations (Article 9) guarantee work accident compensation, including the cost of travel, a medical examination, treatment and rehabilitation and/or maintenance (Article 8, Paragraph 1). The monetary compensation provides for payment of temporary disability, permanent partial disability, permanent complete physical or mental disability, and death from job-related activities.

Starting in 2015, all citizens of Indonesia will be able to become participants in a broader social security program named Sistem Jaminan Sosial Nasional (SJSN, National Social Security System), established under Act 40 of 2004 This social security program will not just cover workers. If any citizen registers with the government and pays the premiums, he or she can receive disability payments, a pension in old age, and life insurance benefits.

Indonesia has ratified all eight of the fundamental conventions of the International Labor Organization (ILO), which are international labour standards aimed at promoting opportunities for women and men to obtain decent and productive work, in conditions of freedom, equity, security and dignity. In recent years the country has signed another 10 conventions, including most recently the Employment Service Convention, 1948 (C. 88, ratified in 2002) and the Labour Inspection Convention, 1947 (C.81, ratified in 2004).

However, of the 23 ILO conventions on occupational health and safety, Indonesia has ratified only one, the Hygiene (Commerce and Offices) Convention, 1964 (C.120, ratified in 1969).

1.2 Implementation of OSH laws, practices

The number and cost of occupational accidents in Indonesia have been increasing in recent years. (See table below.)

The rising number of accidents and costs reflect poor working conditions and the lack of safety programs in Indonesian workplaces. It is generally accepted that most Indonesian companies do not follow existing safety regulations. According to a recent statement by Afdiwar Anwar, head of the government-run social security program Jamsostek, “Only 2.1 percent of 15,000 large companies in Indonesia have implemented the K3 (safety) program. Many companies consider K3 a cost burden, which ultimately makes the working environments more dangerous”.

An additional factor is the lack of supervision by the government. In Indonesia, the government’s role tends more toward encouraging compliance with safety regulation , rather than enforcing it.


Accident statistics in Indonesia

Year Accidents# Accident Insurance Claims (Rp blns)

2007 83,714 219.7

2008 94,736 297.9

2009 96,314 328.5

2010 98,711 401.2

2011 99,491 504.0

2012 103,0002 N.A.

Notes : Note: n.a. not available.Source: 2011 Jamsostek Annual Report

1.3 List of occupational diseases and injuries

There are 31 occupational diseases, recognized by Indonesian law, as caused by work or working conditions and the work environment.3 These are:1. Pneumoconiosis (pneumokoniosis) caused by mineral dust forming

scar tissue (silicosis, antrakosilikosis, asbestosis) and silicotuberculosis (silikotuberkolosis) wherein silicosis (silikosis) was the main factor causing dissability and death.

2. Lung and bronchial disease (bronkhopulmoner) caused by hard metal dust.

3. Lung and bronchial disease (bronkhopulmoner) caused by cotton dust, vlas, henep and sisal (bissinosis).

4. Asthma caused by work that caused by over exposure to substances at work.

5. Alveolitis allergika caused by external factors such the inhalation of organic dust.

6. Disease caused by beryllium (berilium) or its toxic compounds.7. Disease caused by cadmium (kadmium) or its toxic compounds.8. Disease caused by phosphorus (fosfor) or its toxic compounds.9. Disease caused by chromium (krom) or its toxic compounds.

2 “More People Died in Workplace Accidents than in Car Crashes in 2012: Jamsostek”, Jakarta Globe, March 1, 2013.

3 See Presidential Decree No. 22, 1993, which lists these 31 occupational diseases.


10. Disease caused by manganese (mangan) or its toxic compounds.11. Disease caused by arsenic (arsen) or its toxic compounds.12. Disease caused by mercury (raksa) or its toxic compounds.13. Disease caused by lead (timbal) or its toxic compounds.14. Disease caused by fluor or its toxic compounds.15. Disease caused by carbon disulfide (karbon disulfide) toxic.16. Disease caused by halogen derivatives (derivat halogen) from

aliphatic hydrocarbons (hidrokarbon alifatik) or aromatics (aromatik) toxic compounds.

17. Disease caused by benzene (benzena) or homologous toxic substances.

18. Disease caused by derivatives of nitrogen (derivat nitro) and amina from benzene or homologous toxic compounds

19. Disease caused by nitroglycerin (nitrogliserin) or nitric acid esters (ester nitrat acid).

20. Disease caused by alcohol, glycol or ketone (alkohol, glikol or keton).

21. Disease caused by gas or vapor causing asphyxia (asfiksia) or poisoning by carbon monoxide (karbon monoksida), hidrogensianida, hydrogen sulphide (hydrogen sulfida), or derivatives that are poisonous, such as zinc, brass and nickel ammonia (amoniak seng, braso and nikel).

22. Auditory abnormalities caused by noise.23. Disease or injury caused by mechanical vibration (muscle disorder,

gout, bone joints, blood vessels or the edge nervous).24. Disease or injury caused by working in pressurized air.25. Disease or injury caused by electro magnetic radiation and ionize

radiation.26. Skin disease (dermatosis) due to physical, chemical or biological

causes.27. Skin cancer epitelioma primer caused by ter, pic (chemical names),

bitumen, mineral oil, antrasena or its compounds or its products or the residue of those substances.

28. Lung cancer or mesothelioma caused by asbestos (asbes). 29. Infection caused by virus, bacteria or parasites in working

environments with special risks. 30. Diseases caused by high or low temperature or radiation or high

air humidity. 31. Diseases caused by the other chemical subtances include

medicines.


II Analysis of the compensation system

2.1 Jamsostek insurance program

The main law providing workers with work-related injury insurance is the Jamsostek program. Under the regulations (Goverment Regulations No 14 of 1993, Article 2 Paragraph 3) on the implementation of the Jamsostek insurance program a company must registered its workers in the Jamsostek Program, if they employ more than 10 people. In addition, whereas in previous years, the worker needed to rely on the employer to register him or her, a revision to the program allows the workers to register themselves. The employer or the worker himself or herself can register directly at the nearest Jamsostek office. Registrants may receive assistance from Jamsostek staff in filling out of the forms and other procedures.

Employers may also register members of their workforce with other compensation or insurance programs.

2.2 Rates of compensation

If a work accident happens, workers who are registered with the Jamsostek Program will receive some compensation. In general the following rates will apply.

For transportation to take the worker from the place of the accident place to hospital, the following rates apply

• Acrosstheland/river/lake:Rp.750.000• Acrossthesea:Rp.1,000,000• Byairplane:Rp.2,000,000

Workers registered with Jamsostek who suffer a work-related injury at work will be hospitalised until they are well or cured and will receive compensation while unable to work. The following compensation rates are currently in force:

• Forthefirstfourmonthsofdisability,fullmonth’swages.• Forthefollowingfour(4)months,75percentofhisorher

month’s wages.• Aftereightmonths,50percentofhisorhermonth’swages.

For medical care or treatment, the program provides a maximum Rp. 20,000,000 for each case. Additionally, dentures are replaced with a maximum payment of for Rp. 2,000,000.The following compensation rates for disability are in force:


• Partialpermanentdisability:Basedonthedegreeofdisability(%) x 80 months’ wages

• Totalpermanentdisability:a. In all 70 percent of wages x 80 months wages; andb. thereafter, payment of Rp 200,000/ month for 24

months• Lackingfunction:Basedonthedegree(%)oflossoffunction

x 80 months’ wages.4

If the worker dies in a work-related accident, the surviving family members will received a death allowance, calculated as follows:

• Alumpsumequalto60percentx80months’wages;and.• Payment ofRp. 200,000/month for the following 24

months.• FuneralexpensesofRp2,000,000.

Jamsostek also will pay for a prothesis (limb replacement) and orthosis (devices or equipment such as a wheelchair). Compensation for an occupational diseasse will be the same as that received for an occupational accident.5

2.3 Complaint systems, judicial system reform

While employers and employees generally seek to avoid any dispute or termination of the employment, including dismissals, if the situation cannot be avoided, those who feel their rights have been infringed can, according to Act 2 of 2004, seek a settlement outside the court (non-litigation) or through a court (litigation).

The Industrial Relations Disputes Settlement Law under Act 2 introduced five labour dispute settlement mechanisms, namely bipartite settlement, mediation, conciliation, arbitration and settlement by an Industrial Relations Court (IRC). The new IRC, along with other dispute resolution mechanisms, came into operation in early 2006, replacing a system of district and regional industrial disputes settlement committees (P4D/P), which unions and employers had often criticized as being costly, exceedingly time-consuming and prone to corruption.6

4 For more on compensation rates, see Government Regulations No. 84, 2010, on the implementation of social security program for labour.

5 <http://www.jamsostek.co.id/content/i.php?mid=3&id=17>6 Fajerman, Miranda, “Indonesian Supreme Court and ILO improving the capacity

of industrial relations court judges”; http://www.ilo.org/jakarta/info/public/pr/WCMS_180479/lang--en/index.htm; 9 May 2012.


[This labour court replaces the function of Regional Labor Dispute Settlement Committee (Panitia Penyelesaian Perselisihan Perburuhan Daerah - P4D) and Central Labor Dispute Settlement Committee (Panitia Penyelesaian Perselisihan Perburuhan Pusat – P4P.)

One of the major changes to the industrial dispute settlement system is that Law No. 2 of 2004 shifts the jurisdiction over industrial relations disputes from the Ministry Manpower and Transmigration to the Supreme Court. The shift had caused a major challenge and concern: the level of competency and professionalism of IRC. The main actors in industrial relations, such as the Indonesian Employers’ Association (Apindo) and unions, have also shared similar concerns, including the weak capacity of ad hoc judges in understanding and applying substantive law, legal logic and court procedures.7

Under Act 2 which sought to reform previous methods of dispute resolution, the parties involved may choose the method of settlement. In both spirit and concept, Act 2 aimed to create a positive, hopeful environment and reduce the pessimism of the parties involved. Paragraph (1) of the Article 1 of Law Number 2 of 2004 mentions that this court has jurisdiction over disputes between the employer and labour or labour union concerning rights dispute, conflict of interest, conflict arising from the termination of the employment relationship and disputes between different labour unions in one company

When the parties bring the case to the Industrial Court, they have signaled that they are determined to finalize the dispute and solve it without appeal to a higher body and within a fixed timeframe. This ensures a sense of justice for both the parties in the contention and the dispute settlement is done through negotiations to find consensus outside the civil and criminal court system.

In the early stages of these courts, which are located in the jurisdictions of each District Court, they were not efficient.8 Efforts are ongoing to improve their efficiency, in particular the knowledge of labour law of the judges handling the cases.

If a protest by workers erupts and turns violent (in particular over a case of compensation), where a workers’ strike has been violently put down by those hired by the company, the workers through the attorney or union can report this incident to the state court or the Industrial

7 Ibid8 Rajugukguk, Erman “The New Indonesian Labor Court” speech given at the

Conference on New Courts in the Asia-Pacific Region, University of Melbourne, <http://ermanhukum.com/Makalah%20ER%20pdf/The%20Indonesian%20Labor%20Court.pdf> July 2007.


Court. However, most cases of dispute over compensation are solved through negotiations between the workers and the company, because the court system, despite the reforms, still requires a lengthy period of time and much more energy than negotiations.

In 2011, the government enacted the National Legal Aid Law. The law endorsed state support for community paralegals, providing legal support to the poorest members of society and opened up the process of setting legal aid procedures and regulations. This policy action is aimed at ensuring that citizens are able to claim their rights across various areas, such as healthcare, education and labour.

III Challenges and barriers in claiming compensation

Despite the high cost of the work-related accidents and illnesses, individual worker protection is lacking in many organizations and compensation is far from commensurate with the harm done. Some companies cover up accidents to protect their reputation, and the accidents are not reported to the government worker insurance program Jamsostek. The company may resolve the issue of accident compensation directly with the worker or his or her family and often the worker does not receive decent or fair compensation. Another problem is that the amount of compensation given to workers who experience an occupational injury or illness will depend on the monthly salary paid to the worker, so the amount of compensation given to a low wage worker may not be enough to live on.

Occupational disease is not well monitored in Indonesia. Data from government sources usually only relates to accidents in the workplace. The Indonesian government has never issued official data about occupational illnesses, which leaves an entire population of workers and their health issues unaccounted for.9

The main problem encountered with occupational disease compensation, however, is getting a doctor’s diagnosis to verify work-related diseases, which is required for Jamsostek compensation. In cases handled by the Local Initiative OSH Network (LION), there were often difficulties, especially in obtaining an accurate diagnosis when workers were treated at a Jamsostek referral hospital. It seemed the doctors did not want to make trouble for companies and did not want to be bothered with the paperwork required to submit the claims. Often when a diagnosis was given, it focused on the worker’s home

9 It is believed that not only does Jamsostek not release the data, it does not collect it.


environment rather than the work environment. Typically, workers could get better treatment and higher quality care at an independent hospitalratherthantheJamsostekhospital.Butevenanindependenthospital is not a guarantee that a worker will get a clear diagnosis and discover the cause of their condition. Doctors often only address the symptoms of disease and do not provide a direct statement about the type of occupational illness suffered by workers. Doctors in Indonesia are reluctant to deal with the legal issues of occupational illness. LION has yet to meet an Indonesian doctor who is willing to participate in a court case related to worker’s rights or legal compensation due to occupational disease.

So workers continue to experience difficulties obtaining compensation for their work-related injuries and illnesses. Highlighting these problems and advocating for workers’ compensation is part of LION’sadvocacyforOSHrightsinIndonesia.Belowarecasestudiesof victims of occupational injuries and diseases, who have experienced difficulties with compensation and care. From their challenges, lessons can be learned and best practices can be developed that can be used in the struggle for the enforcement of OSH rights in Indonesia

3.1 Case Studies 3.1.1 Case studies involving workplace accidents and injuries

In addition to poor OSH management systems present at many manufacturing sites that cause accidents, many work-related accidents in Indonesia are made worsen because of management’s attitude and lack of responsibility for their workers. Many companies do not register their workers with PT Jamsostek, despite its existence for more than twodecades.BasedonLION’s findings in2012, therewere several workplace accidents where companies’ OSH management systems failed and workers were not compensated appropriately and in accordance with the law. These cases are listed below.

Case study 1. Widaryanto’s accident and eye injury

Widaryanto is a 35- year-old male worker born in the village of Pasanggrahan, near Plumbon in the regency of Cirebon on 2 April 1976. He was employed as a machinist at the textile firm PT Embee Plumbon Textile, Cirebon. While at work, he suffered an accident at his workstation, Spinning 1, on Tuesday, 20 December 2011. The acccident occurred while he was fixing the bearing of Drawing


Machine 12. The bearing broke while he was punching it with a hammer and a flake of the iron bearing flew into his right eye. The size of the iron fragment that was lodged in his eye was 10 mm long, 5 mm wide, and 3 mm thick. The iron piece was imbedded in the eye socket for approximately 70 days, before it was detected by a physician at the Eye Hospital in Bandung and surgically removed.

After the accident occurred, the injury was reported to the Human Resources Department (HRD) of the PT Embee Plumbon, but no action was taken. It was also reported to the union. At that point neither the union nor the HRD knew about Jamsostek regulations and claims process.

Widaryanto and his family had to fund his treatment, surgery and recovery at their own expense and from loans obtained from neighbourhood friends. This caused Widaryanto and his family great stress because they did not have the money for the operation and treatment. The company did not take responsibility for his accident or give any direction regarding what actions should be taken by the victim and his family. the family had to figure out on its own how to treat his wound. The company allowed Widaryanto’s family to fund the cost of his eye surgery, but afterward the company did reimburse him for the costs of hospitalization after he presented them with the hospital receipt. Widaryanto and his union became more knowledgeable about workplace injury/disease, Jamsostek and OSH in general after training from LION. At present Widaryanto is still out on leave. It is also unclear to him whether the money the company gave him was truly a reimbursement of his medical expenses or if the payment was a loan and he will be required to repay it upon his return to work.

Iron fragment lodged for 70 days in a cavity of Widaryanto’s eye Widaryanto and his

wounded right eye


Jamsostek compensation for Widaryanto’s treatment and permanent blindness disability has not been provided by the company, even though his company should have been enrolled in Jamsostek. Unfortunately, Indonesian workers are often ignorant about the safety regulations that govern companies and Jamsostek social security payments due to them. It is clear that the company and the government have not educated workers on the mechanisms of Jamsostek. The family regrets that during the treatment and eye surgery at the hospital (RS Cicendo,Bandung),nomanagement representativeofPT Embeeaccompanied them, not even to help the family with transportation difficulties. Widaryanto and his family feel the PT Embee Plumbon company management are very hands-off about work accidents that befall its workers.

Case study 2. Sayeni, a newlywed killed in a spinning machine accident

Sayeni, a young woman who had been married just two weeks earlier, suffered a tragic accident at the PT Embee factory where she worked. Sayeni was born on 7 March 1988, and died on Wednesday, 28 December 2011, at 17: 30 at the age of 23. She died because her hijab hood became entangled in a wheel at the front of Spinning Machine 12, Spindle 300, in Embee’s 4th Building.

Although Sayeni was immediately taken to Mitra Plumbon Hospital, her life could not be saved. Her body was then sent to the funeral home in Pesanggrahan Village, Blok Karang Anyar, in Plumbon in the regency of Cirebon at 20:30 that evening. The funeral was held at 9:30 am the following day and she was buried in the Pesanggrahan tombs.

The family received compensation of about 52 million rupiah (US$5,200) from Jamsostek, and the factory gave the family 3 million rupiah (US$300) in compensation. The family, especially the husband, did not accept this as adequate compensation for their loss and filed a suit against PT Embee.

In Sayeni’s case, it can be seen that a work accident is not only a problem for workers themselves, but also for the family that is left behind. When a worker suffers a disability due to work, that person’s family will feel loss of income and in the case of death, the loss of companionship of their loved one.


Case study 3. Lia Rosmalia and her work-related traffic accident

Lia worked at Miwon Products, a producer of monosodium glutamate and other flavorings, from 24 June 2006 until 15 July 2008. On March 10, 2008 while riding her motorbike to make product deliveries in Cicalengka, a subdistrict of Bandung, she had a traffic accident. She was brought to the Cicalengka Hospital for treatment.

Lia’s family were informed of the accident immediately by the company operator who called and told them. After two or three days, a company representative, a supervisor named Mr. Mul, visited the Rosmalia home. Mr. Mul promised that her medical expenses would be reimbursed by the company and he requested the bills. But in fact, the company’s ‘reimbursement’ only covered the cost of the lost Miwon products paid for by the stores and which had been damaged and lost in the accident: In all the company paid Rp.700,000 for the loss in deliveries to the Ancol market and Rp.200,000 for loss in deliveries to the Cicaheum market. Two weeks after the accident, Mr Mul came back and gave Rosmalia an insurance card from Prevensia Car insurance and said to use it to pay for her treatment. When she tried it, she found she could not be reimbursed for the medical expenses of Rp.9,000,000 (US$ 900) that she had already paid.

Lia Rosmalia was not a participant in the Jamsostek program, so she could not request payment from that organisation. Lia was also not employed again after recovering from the accident because her contract had ended.

Lia Rosmalia, after meeting with a legal assistance from LION, came to understand her legal rights to work-related compensation and shortly after the accident, she called the company. After a second call, the company through its new Human Resources Department (HRD) met with her. The new HRD officer explained that at the time of the accident, the company was in the process of changing its HRD. The new HRD did not know that it needed to collect data and confirmation from the previous HRD. They explained that they were trying to fix their data and register their workers in Jamsostek. After the meeting, a long time passed without any communication or confirmation from the company. Lia Rosmalia decided to discontinue the reimbursement process, because she was afraid that she would have problems getting work with another company.


Case study 4. Ateng’s death from infection after an accident at work

Ateng had been a mechanic working for PT Haji Kohar Sekeluarga (HKS) in Majalay for 28 years, earning Rp1,060,500 (US$106) per month. In November 2010, he was hit by an iron beam when he was repairing a broken machine. He and his co-workers were trying to raise the beam, but it fell suddenly and hit Ateng’s left leg. Immediately afterward, the company took him to Magung Hospital in Ciparay (near Bandung) for treatment. After treatment Ateng returned to work again as usual.

However, on 19 December 2010, Ateng was taken to the local General Hospital Majalaya, because despite surviving the injuries from the accident, he had contracted an infection. He was referred to Hasan Sadikin Hospital Bandung and went there the same day. With the approval of his family, the hospital amputated Ateng’s infected leg. On Wednesday, 22 December 2010, three days after his leg had been amputated, Ateng died. The day after the funeral, the company gave his family Rp. 2.5 million (US$250).

Important facts in this case are firstly, Ateng was not registered with Jamsostek, even though the company employed more than 100 people, and it was required by law to register its employees. Second, Ateng at the time of his treatment used his own money to pay his hospital bills. And third, Ateng’s family only received compensation from the company for his funeral expenses. The reason given by the company was that it was a family business, and they routinely just gave settlement money in these situations. PT HKS is owned by a local person from Majalaya, unlike most other businesses in the area which are owned by foreigners.

In the early stages of this case, union representatives from another factory assisted Ateng’s family with this case, because Ateng’s company was not represented by a union. LION also got involved and informed the company of its legal obligations which were:

1. Severance money must be provided because of the employee’s death based on Act 13 of 2003.

2. Compensation to Mr. Ateng’s survivors should be provided for this work-related accident as stated in Act No. 2 of 1992:a) Immediate compensation at the time of death is 60 percent x

80 months’ wages.b) Periodic compensation of Rp. 200,000 (US$ 20) each month

for 24 (twenty-four) months.


c) Funeral expenses of Rp. 2 million (US$ 200).

In Ateng’s case, his monthly wage was Rp.1,060,500 and 60 percent of 80 months’ salary would equal Rp.51.12 million, which is the immediate compensation due to his family.

Unfortunately, the company was unwilling to provide compensation to Ateng’s family, so the issue of payment of death severance compensation went to mediation with the Ministry of Manpower and TransmigrationDepartmentintheBandungRegency.

The Industrial Relations Court ruled that the family must get their settlement in accordance with Law 13 of 2003, but the company was still unwilling to pay. LION plans to follow-up on the compensation processes with the following action:1. Send a letter to the Department of Manpower and Transmigration

in the capital (Jakarta).2. Report to the Supervision Office of Manpower and Transmigration

BandungRegency.3. If not followed up by these two government agencies, file a report

with the police in West Java.

Case study 5. Costly routing changes for Truck driver Yuyu

Yuyu worked as a truck driver delivering bags of cement for PT Tulu Atas. Problems began when Yuyu and co-workers were informed that their delivery routes were being changed. They usually worked in the Padalarang area in the regency of Bandung. They were re-routed to Bogor and they objected because the cost of living would be higher and essentially their wages would be reduced. In Padalarang, they could usually make four deliveries per trip, while in Bogor, they would only be able to make two deliveries per trip, because the distance between each delivery would be much greater.

When LION explored this issue, it found that the company was not registered in the Jamsostek program. Also in an industry with a very high rate of vehicle accidents, accident insurance for the trucks was not provided. If an accident occurred that caused damage to the vehicles, the costs of vehicle repair and employee injury treatment would be borne by the workers and implemented by cutting their wages.

Response by LION:1. An invitation to meet was sent to the company, seeking

discussion of the problem and resolution through deliberation.


2. The company responded directly and agreed to meet.3. At the first meeting, the company attorneys came and

clarified issues.4. At the next meeting the company invited LION to meet at

theirBogorworksitewiththeBoardofDirectors.TheBoardof Directors explained their positions and then the company agreed to register their workers in the Jamsostek program, gradually according to their ability to afford it. They also explained that the re-routing was temporary (2-3 months/year), and workers would rotate through the re-routing responsibilities, so it would be the same for all the workers. The company has an expert to determine if vehicle accidents are related to human error or not. If the accidents are due to human error, the drivers will be expected to pay for vehicle damages.

5. At the third meeting, LION and Company Manager signed a draft agreement that the two sides agreed to.

3.1.2 Occupational disease cases

The amount of compensation received by workers who suffer from occupational diseases depends on the worker’s monthly salary.10 The regulations and reimbursement schedule for this have been in place for twenty years without review, so often the reimbursement schedule is not commensurate with today’s living expenses and is insufficient to live on.

Workers that suffer occupational diseases have often spent a long time in the workplace, often decades, doing the same routine work every day. This is especially true in the industrial sector, where exposure to hazards is common. Presidential Decree No. 22 of 1993 recognises and lists 31 occupational diseases. These diseases include those caused by mineral dusts, such as asbestosis and silicon. Many others result from excess exposure to dangerous chemicals or from exposure to radiation and physical agents. If an Indonesian worker is diagnosed with one of the 31 listed diseases, then the person is eligible for employment accident benefits (Jaminan Kecelakaan Kerja), either while still employed or after the employment relationship ends. The time

10 Government Regulation of the Republic of Indonesia Number 76 Year 2007 on Upper Fifth Amendment Regulation Number 14 Year 1993 on the Implementation of Social Security Program


limit for making claims for a work-related disease is three years after employment ends, as long as the claim is accompanied by a diagnosis from the attending doctor.

Article 1, paragraph 6 of Law No. 3 of 1992 defines the term “work accident”

“The accident that occurs in association with a working relationship, including diseases arising from employment and accidents that occur in the course of departing from home to work and going home from work by the usual or normal route.”

Thus, under Indonesia law, an occupational disease is included in the definition of a work accident.

It can be interpreted from existing regulations that diseases caused by work must be compensated in the same manner as work accidents. This was confirmed in point C in the Ministry of Labor and Transmigration regulation Per.01/Men/198.1. It states that an occupational disease must be reported as a work-related accident and that the employer is required to report such a disease to both the ministry and Jamsostek, so the worker may receive appropriate compensation (Article 1, Paragraph A). The list of occupational diseases that must be reported is contained in the annex of this regulation.

Every year Jamsostek handles more than 90,000 cases of occupational accidents for compensation; most are for workplace deaths or disability. It is unknown how many of these are related to workplace illnesses, because Jamsostek does not give a breakdown of the data.

LION inquired about the number of occupational diseases in West Java at the West Java Regional Jamsostekoffice.BecauseWestJava has many industrial zones, Jamsostek was expected to focus more on occupational safety and health issues than in less industrialised areas. However, Jamsostek did not have data on work-related disease compensations claims in West Java. Since there is no data, people may assume West Java is free from occupational disease. However, this is not the case. The reality is that many workers are experiencing occupational diseases, but they are ignored. Additionally, they cannot lodge a claim for compensation with Jamsostek, because they cannot be correctly diagnosed by medical providers.


Case study 6. Asbestosis in Cibinong

LION is in the process of organising a group of the victims of occupational diseases in Cibinong, the capital of the regency of Bogor in West Java. The victims are workers at the PT Trigraha asbestos processing plant. This factory processes asbestos raw materials into semi-finished materials and asbestos yarns, which later will be processed into other goods, such as gaskets. Generally, permanent workers in the factory have been there for more than 15 years. LION facilitated medical check-ups for five PT Trigraha employees, ranging from x-rays to high resolution computer tomography scans in Cipto Mangukusumo Hospital (RSCM) in Jakarta.

After all the tests were completed, the doctors made no diagnosis of asbestos-induced lung disease (asbestosis). Instead the workers were diagnosed as suffering from ‘infections in the lungs’, and no further explanations were given. Since this assessment appeared incomplete, LION, in collaboration with Drs. Dom Young Paek and Ye Yong from K-Ban, sent the results of the five workers’ tests to South Korea for review by doctors there.

The assessment from South Korea was very surprising. According to the analysis of the South Korean doctors, three of the five workers from PT Trigraha who had been examined, were found to be suffering from early-stage asbestosis. These results were brought back to Indonesia. LION submitted the Korean doctors’ assessments and claims and discussed them with Jamsostek authorities. However, the claims have not been accepted, because Jamsostek requires a work-re lated asbe s to s i s diagnosis from an Indonesian doctor. Doctors in Indonesia a r e u n f a m i l i a r with asbestos lung disease, and LION has been unable to find a doctor that could provide the same diagnosis as the Korean doctors.

Working conditions at PT. Trigraha Cibinong


From this case LION has observed that doctors avoid dealing with patients with controversial industrial diseases, and this also holds true for the government’s Ministry of Manpower, company managements, and Jamsostek officials. The doctors that we met were unwilling to deal with cases of occupational disease cases like this one, despite that fact that this case had the potential to be the first case of occupational asbestosis in Indonesia. Ironically, asbestosis is number one on the government’s list of 31 occupational diseases.

3.3 Analysis and recommendations

From the case studies it is clear that companies routinely fail to uphold Indonesian law, in particular Act 3 of 1992 concerning labour social security. Several frequently violated regulations are:

1) Workers are not registered in Jamsostek as provided in Article 4, paragraph 1:“Social employment guarantee program referred to in Article 3 must be implemented for the workforce by any company who establishes a working relationship in accordance with the provisions of this Act”

2) The companies do not file reports as required in Article 10:a) Report accidents to the Labor Department and Jamsostek

within 48 hours. b) Submit doctor’s declaration of cure, deformity or death to

the Labor Department and Jamsostek within no more than 48 hours after the accident or diagnosis.

c) Meet its obligation to care for injured or ill workers and provide them with information about their rights under the labour laws.

3) The company does not file paperwork and keep records as required under Article 18:a) A company must have a list of workers, worker’s family

members, payroll, wage adjustments, and a list of accidents that have occurred in the company.

b) A company must deliver employment and company data that is associated with the social security program to the Ministry of Manpower.

c) If a company fails to deliver the required data, its workers will not be registered in the social security program; the company must provide for the workers’ rights in accordance with the provisions of this Act.


d) If company supplies incorrect data and it results in inadequate insurance payment, then the company is obliged to correct the errors and ensure adequate employee payments.

e) If company supplies incorrect data and it results in overpayment of insurance by Jamsostek, the company is obliged to return the excess to Jamsostek.

4) The company does not compensate the worker for his or her costs involved in a work-related accident and does not make disability payments as required under Government Regulation No. 14 of 1993, Article 12, paragraphs 1 and 2:

a) “The accident-stricken worker has the right to reimbursement of work accident costs, including the cost of transportation to the hospital and or home, first aid, examination, treatment, hospital stays, outpatient care, rehabilitation, and tools (orthotics) and/or replacements (prosthesis) for missing or malfunctioning limbs.”

b) “Workers disabled by a workplace accident are to be given monetary compensation for temporary disability, permanent disability, permanent physical or mental defects, and/or death. The amount of employment accident benefit is as stipulated in Annex II.”

5) There are criminal sanctions for non-compliance with worker compensation laws as outlined in Law 3 (1992), but implementation has been very difficult because the government has not enforced these provisions.a) Article 29 states that non-compliance may be punishable by

confinement for six months or fines as high as Rp50 million (about US$5,000).

b) For a second violation, the perpetrator can be imprisoned for up to eight months.

c) Article 30 also states that administrative sanctions, punitive damages or fines can be levied against employers, labour organizations and agencies that do not meet the provisions of this law and implement its regulations.

Another problem that Indonesia faces with occupational safety and health law enforcement is the lack of competent inspectors from the Ministry of Manpower Department. In addition, inspectors focus on the formal sector (licensed businesses) only and the informal sector (home businesses, household workers, contractors) is not addressed.


For a company that violates the occupational safety and health provisions of Act 3 (1992), the sanctions are very mild, so supervision by the government is not seen as important. Most health and occupational safety violations are solved by negotiation. The regulations state very clearly that workplace safety and health is a worker’s right which must be protected by the state, but the legislation does not impose a heavy penalty and is considered only as a slight or minor infringement of the law by most company owners.

Recommendations

After witnessing many cases, it is LION’s impression that Indonesia’s OSH laws, including Jamsostek, have been set up to conform with and meet international standards, but in actuality there is little implementation. LION recommends the following steps be taken to improve the implementation of occupational safety and health of Indonesian workers and to ensure that their work-related injuries and illnesses are appropriately compensated:

• Encourage legislators to enact laws that imposeheaviercriminal sanctions when companies do not include workers in the social security (Jamsostek) program.

• Encourage the government to increase the number ofinspectors in the Ministry of Manpower and Transmigration. This will increase supervision of companies and make it more effective; they can immediately respond when there are reports from unprotected workers who are concerned about their safety and health.

• Increase public awareness about the importance ofoccupational safety and health protection.

• Initiate a campaign to educateworkers, governmentandpublic that violation of OSH laws is a crime and should be punished.

I. Legal framework for workers’ compensation

1.1 Laws and regulations

The most important workers’ compensation scheme is administered by the Ministry of Health, Labour and Welfare (MHLW) under the Industrial Accident Compensation Insurance Act (IACIA).

The IACIA was enacted in 1947, along with the Labour Standards Act (LSA). The LSA obligates all employers to comply with minimum standards of working conditions specified in this act. The minimum standards of workers’ compensation are presented in Chapter VIII of the act. The purpose of the Industrial Accident Compensation Insurance is to ensure the discharge of the employers’ obligations under the LSA by making employers take out this obligatory insurance.

While the LSA also had a chapter on safety and health, as the contents and relevant regulations and guidelines contained there increased, a separate act was needed and the Industrial Safety and Health Act (ISHA) was drafted and separately enacted in 1972. Article 42 of Chapter V of the LSA designates only “matters concerning the safety and health of workers shall be as provided for in the Industrial Safety and Health Act”; Article 1 of the ISHA also prescribes:

“the purpose of this Act is to secure, in conjunction with the Labour Standards Act, the safety and health of workers in workplaces, as well as to facilitate the establishment of a comfortable working environment, by promoting comprehensive and systematic countermeasures concerning the prevention of industrial accidents, such as taking measures for the establishment of standards for hazard prevention, clarifying the safety and health management responsibility and the promotion of voluntary activities with a view to preventing industrial accidents”.1

1 Japanese and English texts of those acts are available at “Japanese Law Translation” by the Ministry of Justice: <http://www.japaneselawtranslation.go.jp/?re=02>. Also “Workers Compensation Insurance Application Guidance for Foreign Workers” is available in Japanese, English, Portuguese, Korean, Chinese, Vietnam, Thai and Persian at <http://www.mhlw.go.jp/new-info/kobetu/roudou/gyousei/rousai/gaikoku-pamphlet.html>.

JapanBy Furuya Sugio


1. 2 Businesses and workers covered

The IACIA applies to all private businesses that employ a worker or workers in Japan with very limited exceptions.

National and local government employees (except for part-time local government employees engaged in blue-collar work) are not covered by the IACIA, and other equivalent schemes are set up for those workers. The IACIA does not apply obligatorily to businesses which are categorised as agriculture, forestry, or fishery enterprises with less than five workers; these workers can be covered by the IACIA under special procedures.

Moreover, another special system is established to permit employers of small- and medium-sized businesses, the self-employed who don’t employ workers, and workers assigned to overseas jobs to join the IACIA.

Under the IACIA, all workers are treated without discrimination as to the types of employment, nationality, etc. So a temporary or casual worker, and a migrant worker (also referred to as illegal worker), can receive the equivalent compensation benefits as those of a regular or permanent worker.

Even if a worker suffers from an occupational disease after resignation or retirement from the job in which the worker had been exposed to a hazard, he or she can receive compensation benefits.

Additionally, even if an employer has not paid insurance premiums, a worker can receive compensation benefits, as the government collects insurance premiums for the past period from an employer separately from paying out compensation benefits. Employers are required to pay insurance premiums, which are calculated by multiplying total payable wages by the insurance rate determined for each business category. These rates range from 0.5 percent to 12.9 percent. 2

1.3 Summary of the Compensation Act (IACIA)

The purpose of the IACIA which is stated in Article 1 of the act is:

“to grant necessary insurance benefits to workers in order to give them prompt and fair protection against injury, disease,

2 These rates, stated as “5/1,000 to 129/1,000”, are the revised premium rates charged on the total wage amount.

Country Report: Japan 153

disability, or death or the like resulting from an employment-related cause or commuting, and to promote the social rehabilitation of workers who have suffered an injury or disease from an employment-related cause or commuting, assist those workers and their surviving family members and secure the safety and health of workers or the like, thereby contribute to the promotion of the welfare of such workers.”

Workers’ accidents are divided into ‘employment accidents’ and ‘commuting accidents’. Commuting accidents have been covered by the act since 1973.

Eight types of insurance benefits are available as follows:

(1) Medical Compensation Benefit: A victim can get medical treatment without payment in principle until an injury or disease no longer requires treatment.

(2) Temporary Absence Compensation Benefit: Provided at a rate of 80 percent of the average daily wage starting from the fourth day on which a victim fails to receive wages because of an inability to work due to medical treatment for an injury or disease.

(3) Disability Compensation Benefit: Payable after an injury or disease no longer requires treatment and the victim remains disabled; payable as a pension or lump sum in accordance with the Disability Grade.3

(4) Surviving Family Compensation Benefit: Payable as a pension or lump sum in accordance with the number, dependency and other factors of surviving family members.4

(5) Funeral Expenses(6) Injury and Disease Compensation Pension Payable (since 1977,

partially since 1960) in the case of an injury or disease wherein medical treatment is needed on a long-term or permanent basis, such as for a spinal injury, pneumoconiosis and others; payable as a pension in accordance with the Injury and Disease Grade. A victim can also continue to receive the Medical Compensation Benefit.

3 Disability compensation benefit is provided as a pension for a person with a Disability Grade of Class 1-7 and as a lump sum for a case designated Class 8-14.

4 The surviving family compensation benefit is provided as a pension for family members who were dependent on the victim’s income for their livelihood at the time of death. If there is no such family member, the benefit is provided as a lump sum.


(7) Nursing Care Compensation Benefit (since 1996): Awarded to certain recipients of the Disability Compensation Pension or the Injury and Disease Compensation Pension in accordance with the Nursing Care Grade.

(8) Follow-up Medical Examination Benefit (since 2001): Provided for a worker who has abnormal findings suggesting cerebrovascular or heart disease in his/her most recent medical examination, conducted under the provision of the Industrial Safety and Health Act.

1.4 Procedureforclaimingcompensationbenefits

In order to receive an insurance benefit, a suffering worker (victim) or his/her surviving family must file a claim (submit a designated application form for the compensation) to the relevant Labour Standards Inspection Office (LSIO) each time. There are more than 300 LSIO offices in Japan.

The chief of the LSIO shall decide whether all or part of the compensation benefits should be granted to the worker or his or her surviving family members.

The victim, the surviving family member, the employer, fellow workers, and the victim’s doctor may be heard and asked to submit information by the LSIO. Then the LSIO may ask the opinion of medical advisors, and if necessary consult with the Prefectural Labour Office and the MHLW.

Article 23-2 of the Enforcement Regulations of the IACIA states that the employer of a worker can submit an opinion about the claim to the LSIO. This clause was introduced in 1987, following employers’ requests to introduce a system in which an employer can file a claim for re-examination of a decision by the LSIO when an employer is dissatisfied with it.

The deadlines for submitting the application forms are five years for Disability Compensation Benefit, Surviving Family Compensation Benefit and Funeral Expenses and two years for other benefits.

1.5 Appeal and litigation

If a victim or surviving family member is dissatisfied with an LSIO decision, he or she can appeal to a Industrial Accident Compensation Insurance Examiner for a re-examination of the decision, and if dissatisfied with this decision, a further appeal can be made to the Labour Insurance Appeal Committee for a third examination.


The examiners are assigned to 47 prefectural Labour bureaus, and the committee is set up at the ministry level. The counsellors, representatives of workers and employers, are assigned to the examiners and the committee, and they can only submit opinions about the claim to the committee.

A victim or dependant dissatisfied with a decision of the committee can bring a case before the court against the chief of the LSIO to revoke the decision.

If the examiner or the committee does not make a decision within three months of an appeal, a victim or dependant can proceed to have the third examination. This rule was introduced in 1996, since previously cases could take 10 years or more to reach a resolution.

1.6 Notification

Article 97 of the Ordinance on Industrial Safety and Health requires that “the employer shall, when a worker was killed or suspended from work due to an industrial accident or injury, suffocation or acute poisoning suffered during employment in work, or within the workplace or buildings attached thereto, submit a report to the chief of the relevant Labour Standards Inspection Office without delay”. But this notification has no links to compensation for workers or dependents.

Also, a doctor who diagnoses an injury or disease which could be of occupational origin is not obliged to notify the fact to the LSIO or other body.


Tables 1 and 2 of Article 35 of the Ordinance for Enforcement of the Labour Standards Act lists the categories of occupational diseases and injuries recognised under Japanese law.5 The list was established in 1947 and revised in the current form in 1978:

No. 1 Diseases resulting from injuries incurred in the course of duty;

No. 2 Diseases due to physical factors;No. 3 Diseases caused by a form of job which involves extreme

physical exertion;

5 For a full list of occupational diseases and injuries covered under the LSA, see Annexure.


No. 4 Diseases due to chemical substances;No. 5 Pneumoconiosis or diseases due to complication of

same;No. 6 Diseases due to pathogens such as bacteria and viruses;No. 7 Diseases due to carcinogens, carcinogenic agents, or jobs

done in the carcinogenic processes;No. 8 Brain haemorrhage, subarachnoid haemorrhage, cerebral

infarction, hypertensive encephalopathy, myocardial infarction, angina, cardiac arrest including cardiac sudden death, dissecting aortic aneurysm or their attendant disease due to long-term prolonged job or others which significantly aggravate vascular and other lesions (added in 2010);

No. 9 Mental or behavioural disorders or their attendant disease due to jobs associating human, life-threatening accidents or incidents which impose excessive psychological loads (added in 2010);

No. 10 In addition to the disease listed in the preceding items those designated by the Minister of Health, Labour and Welfare;

No. 11 Other diseases which clearly result from work activities.

In the list above, categories No. 2, 3, 4, 6 and 7 all have sub-categories detailing those occupational injuries and diseases falling in each category. These sub-categories are referred to as “Specifically Enumerated (Listed) Provisions”. In Japan an ‘open system’ is adopted: Category ‘No. 11 Other diseases’ is known as the “Comprehensive Relief Provisions” (CRP). Thus, even if a disease or injury is not included in any “Specifically Enumerated (Listed) Provision”, such a disease can be recognised as an occupational disease under the ‘Comprehensive Relief Provisions’.

II Statistics and realities

2.1 Occupational deaths and injuries

The numbers of businesses and workers covered by the IACIA has increased. At present the number of businesses covered by the IACIA is approximately 2.6 million and the number of workers covered is approximately 52.8 million (Fig.1).


Although workplace accidents have decreased over the long term, there are still a considerable number of cases annually. We can identify three phases:

Phase 1: 1960-70 Peak period of workplace accidents and diseases

Phase 2: 1970-80 Halving of incidence ratePhase 3: 1980-present Stabilisation or modest decrease in

incidence

The statistics for deaths are more likely to reflect the real situation, because it is relatively difficult to conceal. Japan succeeded in halving the number of fatal accidents in only 10 years (1970-80), i.e., in the period following the enactment of the Industrial Safety and Health Act in 1972. Following that big, initial success, the number of workplace deaths, injury and disease has remained unchanged and the improvements may even have reversed.

The numbers of casualties (deaths, injuries, and diseases) and new receivers of the compensation benefit under the IACIA shows similar trends. It should be noted here, that concerning injuries and diseases, only cases requiring an absence of eight days or more were included in the statistics until 1972, after which they expanded the cases to those requiring only an absence of four days or more.

In a case of an occupational injury, key points for the investigations by the LSIO are whether a worker had an accident or not, and whether the accident caused such injury. It seems that there is relatively less trouble in cases of injury than those of disease. But in

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Fig.2 Occupational Deaths, Injuries and Diseases

Number of new receivers and casualties (*1,000) Number of deaths and diseases

New Receivers

ISHA 1972

Casualties (deaths and injuries requiring an absencefor 4 days (8 days = before 1972) or more)

Diseases

Deaths

The statistics for deaths are more likely to reflect the real situation, because it is

relatively difficult to conceal. Japan succeeded in halving the number of fatal accidents inonly 10 years (1970-80), i.e., in the period following the enactment of the Industrial Safety and Health Act in 1972. Following that big, initial success, the number of workplace deaths, injury and disease has remained unchanged and the improvements mayeven have reversed.

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Fig.1 Number of covered businesses and workers by the IACIA

Number of covered businesses (*10,000) Number of covered workerrs (*10,000)

The numbers of casualties (deaths, injuries, and diseases) and new receivers of the


fact, there are incidents that are referred to as the ‘hiding of accidents’, i.e., unreported accidents in which a worker or workers are injured.

Article 23 of the Enforcement Regulations of the IACIA states “the employer shall promptly provide and certify the necessary information when a victim or his/her surviving family asks.” But this clause is not subject to punishment. In fact, employers often refuse the certification and other assistance.

If the total number of occupational deaths and injuries is indexed, such that the total number of deaths is considered as one, then the index for injuries requiring an absence of four days or more would fall between 81-105 and the index for injuries requiring an absence of three days or less would range between 330-399 for the years 2006-2010. (See Table 1 below.) But looking into this by industry, it can be seen that there are substantial differences between industries. An analysis of these numbers will be useful in order to eliminate the ‘hiding of accidents’.

compensation benefit under the IACIA shows similar trends. It should be noted here, that concerning injuries and diseases, only cases requiring an absence of eight days or more were included in the statistics until 1972, after which they expanded the cases to those requiring only an absence of four days or more.

In a case of an occupational injury, key points for the investigations by the LSIO are whether a worker had an accident or not, and whether the accident caused such injury. It seems that there is relatively less trouble in cases of injury than those of disease. But infact, there are incidents that are referred to as the ‘hiding of accidents’, i.e., unreported accidents in which a worker or workers are injured.

Article 23 of the Enforcement Regulations of the IACIA states “the employer shall promptly provide and certify the necessary information when a victim or his/her surviving family asks.” But this clause is not subject to punishment. In fact, employersoften refuse the certification and other assistance.

If the total number of occupational deaths and injuries is indexed, such that the total number of deaths is considered as one, then the index for injuries requiring an absence of four days or more would fall between 81-105 and the index for injuries requiring an absence of three days or less would range between 330-399 for the years 2006-2010. (See Table 1 below.) But looking into this by industry, it can be seen that there are substantial differences between industries. An analysis of these numbers will be useful in order to eliminate the ‘hiding of accidents’.

2.2 Occupational diseases

The number of victims of occupational diseases compensated by the IACIA is not decreasing. (See Figure 2 above.)

Category No.1, diseases resulting from injuries are called “accident disease” andaccounts for about half of the total occupational disease cases receiving compensation.Recognition of such disease is relatively easy as is an injury case.

Table.1 Comparison of Severity of Occupational accidents

NewReceivers Deaths Absence of 4 days

or moreAbsence of 3 days

or less IndustryNumber Number ＊ Number Index Number Index

2006 Total 606,645 1,472 1 119,906 81.5 485,267 329.72007 Total 607,348 1,357 1 119,999 88.4 485,992 358.12008 Total 604,139 1,268 1 118,023 93.1 484,848 382.42009 Total 534,623 1,075 1 104,643 97.3 428,905 399.02010 Total 574,958 1,195 1 106,564 89.2 467,199 391.0

Manufacturing 138,463 211 1 22,817 108.1 115,435 547.1Mining 712 5 1 317 63.4 390 78.0

Construction 53,217 365 1 21,033 57.6 31,819 87.2Transportation 39,797 181 1 15,087 83.4 24,529 135.5

Forestry 3,822 59 1 2,090 35.4 1,673 28.4

2010

Other 338,947 374 1 45,220 120.9 255,059 682.0

0

200

400

600

800

1,000

1,200

1,400

1,600

1,800

2,000

1950 1955 1960 1965 1970 1975 1980 1985 1990 1995 2000 2005 2010

0

2,000

4,000

6,000

8,000

10,000

12,000

14,000

16,000

18,000

20,000

Fig.2 Occupational Deaths, Injuries and Diseases

Number of new receivers and casualties (*1,000) Number of deaths and diseases

New Receivers

ISHA 1972

Casualties (deaths and injuries requiring an absencefor 4 days (8 days = before 1972) or more)

Diseases

Deaths

The statistics for deaths are more likely to reflect the real situation, because it is

relatively difficult to conceal. Japan succeeded in halving the number of fatal accidents inonly 10 years (1970-80), i.e., in the period following the enactment of the Industrial Safety and Health Act in 1972. Following that big, initial success, the number of workplace deaths, injury and disease has remained unchanged and the improvements mayeven have reversed.

0

50

100

150

200

250

300

1950 1955 1960 1965 1970 1975 1980 1985 1990 1995 2000 2005 2010

0

1000

2000

3000

4000

5000

6000

Number of covered businesses

Number of covered workers

Fig.1 Number of covered businesses and workers by the IACIA

Number of covered businesses (*10,000) Number of covered workerrs (*10,000)

The numbers of casualties (deaths, injuries, and diseases) and new receivers of the


2.2 Occupational diseases

The number of victims of occupational diseases compensated by the IACIA is not decreasing. (See Figure 2 above.)

Category No.1, diseases resulting from injuries are called “accident disease” and accounts for about half of the total occupational disease cases receiving compensation. Recognition of such disease is relatively easy as is an injury case.

Categories No.2-11 are “non-accidental diseases” or “occupational diseases in a limited sense”.

With no contradictory evidence and if all the requirements below are satisfied, a disease listed in the Specifically Enumerated (Listed) Provision is considered an occupational disease:(1) A hazard prescribed (i.e. stated) in the list of occupational disease

exists in the work place.(2) The condition of exposure to such hazard is recognised as enough

to cause a prescribed disease in terms of dose, period, and form of exposure.

(3) The appearance and progress of such disease is consistent with medical knowledge on health due to such a hazard.

For recognition of a CRP disease, the causal relationship between a disease and workplace must be proved on a case- by-case basis. Recognition criteria have been set up for approximately 30 diseases in administrative notices by the chief of Labour Standards Department of the MHLW, whereby if a disease satisfies the relevant recognition criteria, it should be recognised as an occupational disease.

Categories No.2-11 are “non-accidental diseases” or “occupational diseases in a limited sense”.

With no contradictory evidence and if all the requirements below are satisfied, adisease listed in the Specifically Enumerated (Listed) Provision is considered anoccupational disease: (1) A hazard prescribed (i.e. stated) in the list of occupational disease exists in the work

place.(2) The condition of exposure to such hazard is recognised as enough to cause a

prescribed disease in terms of dose, period, and form of exposure. (3) The appearance and progress of such disease is consistent with medical knowledge

on health due to such a hazard.

0

200

400

600

800

1,000

1,200

1,400

1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011

Non-Accidental Law Back Pain

Upper Limb Disorders

Mesothelioma

AR Lung Cancer

Pneumoconiosis andits Complications

Vibration Disease

Mental DisordersBrain and Heart Disease

Pneumoconiosis andits Complications


Mesothelioma

AR LungCancer

Fig.3 Recent Trend of Major Occupational Diseases


But in all cases a victim or his or her surviving family members shoulder the burden of proof.

As regards the recent trend of major occupational diseases, pneumoconiosis and complications of this disease (Category No.5) and vibration disease (No.3-3), these have been traditionally the two major diseases and they have been decreasing. (See Figure 3 above) Since 2003, primary lung cancer, complicated by pneumoconiosis, has been dealt with as a disease in a Specifically Enumerated (Listed) Provision.

Musculoskeletal disorders (upper limb disorder: No.3-4, low back pain: No.3-2), asbestos-related (AR) cancer (No.7-7), brain/heart disease and mental disorders are attracting attention from society. Brain/heart disease and mental disorders, including cases of suicide such as karoshi, i.e., death due to overwork and karojisatsu, i.e., suicide due to overwork, have been dealt with as CRP diseases and new categories for them (No.8 and 9) were introduced in 2010.

After a big asbestos scandal in 2005, many people became aware of asbestos-related diseases. Surviving family members of the victims who died within the past five years applied for compensation benefits from the IACIA. This is one reason why the number of reported asbestos-related cancers cases jumped in 2006.

The year of the establishment and revisions of the recognition criteria for some major occupational diseases are as follows:

• Brainandheartdisease–1961,1987,1995and2001• Mentaldisorders–1999and2011• Asbestos-relateddiseases–1978,2003,2006and2012• upperlimbdisorders–1964,1969and1997• lowbackpain–1968and1976

0%

20%

40%

60%

80%

100%

1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011

Brain and Heart Disease

Mental Disorders


Mesothelioma

AR Lung Cancer

Non-Accidental Law Back Pain

Fig.4 Compensation Ratios

For recognition of a CRP disease, the causal relationship between a disease and workplace must be proved on a case- by-case basis. Recognition criteria have been set up for approximately 30 diseases in administrative notices by the chief of Labour StandardsDepartment of the MHLW, whereby if a disease satisfies the relevant recognition criteria, it should be recognised as an occupational disease.

But in all cases a victim or his or her surviving family members shoulder the burden of proof.

As regards the recent trend of major occupational diseases, pneumoconiosis andcomplications of this disease (Category No.5) and vibration disease (No.3-3), these have been traditionally the two major diseases and they have been decreasing. (See Figure 3above) Since 2003, primary lung cancer, complicated by pneumoconiosis, has been dealt with as a disease in a Specifically Enumerated (Listed) Provision.

Musculoskeletal disorders (upper limb disorder: No.3-4, low back pain: No.3-2), asbestos-related (AR) cancer (No.7-7), brain/heart disease and mental disorders are attracting attention from society. Brain/heart disease and mental disorders, including cases of suicide such as karoshi, i.e., death due to overwork and karojisatsu, i.e., suicidedue to overwork, have been dealt with as CRP diseases and new categories for them (No.8 and 9) were introduced in 2010.

After a big asbestos scandal in 2005, many people became aware of asbestos-relateddiseases. Surviving family members of the victims who died within the past five years applied for compensation benefits from the IACIA. This is one reason why the number of reported asbestos-related cancers cases jumped in 2006.

The year of the establishment and revisions of the recognition criteria for some majoroccupational diseases are as follows:

• Brain and heart disease – 1961, 1987, 1995 and 2001 • Mental disorders – 1999 and 2011• Asbestos-related diseases – 1978, 2003, 2006 and 2012


Data on the number of applications and of uncompensated cases are available for only a few diseases, and data on the numbers by sex, age, job, length of medical treatment/absence, amount of payments, etc. are almost unavailable. (See Figure 4 above.)

III. Barriers and challenges in seeking compensation

3.1 Case Studies

Case 1 – Seeking fair compensation for all asbestos victims

A big asbestos scandal, the “Kubota Shock”, erupted in the summer of 2005. It was revealed that not only many (former) workers of the then defunct Kanzaki plant of Kubota in Amagasaki City had died of asbestos-related diseases, but there were mesothelioma victims among residents who lived near the plant and had no history of exposure to asbestos through their own occupations. With awareness of the disease aroused, more and more occupational and non-occupational asbestos victims were detected and reported throughout the country.

The Act of Asbestos Health Damage Relief was enacted and came into force in 2006, providing compensation for all asbestos victims without exception.

This act set up two relief schemes. The first was the relief scheme for non-employee asbestos victims who were not covered by the IACIA. This is administered by the Ministry of the Environment and financed by central and local governments and all employers. As a matter of practice the benefit paid by this scheme is a total three million yen (about US$30,000) to each victim, and it is extremely low in comparison to the benefit paid by the IACIA, which is usually paid in pension form to surviving family members.

As a result of Kubota Shock, many Japanese became aware of asbestos-related diseases. But if a victim, who was a worker, died of asbestos-related disease more than five years ago, his/her surviving family members were ineligible to apply for compensation from the IACIA, because of the “statute of limitations” which had already expired. However, since there were so many such cases, a second, separate scheme was devised to give relief in those cases. This is administered by the Ministry of Health, Labour and Welfare and financed by the Industrial Accident Compensation Insurance. The benefit is almost equal to the compensation awarded by the IACIA.


Regarding cases of mesothelioma, if the diagnosis was confirmed, the victim or surviving family members can receive compensation from the IACIA or under one of new relief schemes and this means all mesothelioma cases will receive some compensation.

Usually data on compensation is shown by the year in which compensation was paid. (See Figure 5 below). However, JOSHRC has demanded the government additionally disclose the data according to the year of the death of the victim in order to verify the actual situation. As of 31 March 2010, 57.3 percent of all mesothelioma deaths between 1995 and 2010 have been compensated by the various schemes. The compensation ratio varied from 23.0 percent in 1995 to 90.1 percent in 2005, the year of the Kubota Shock. It is expected that cases eligible for benefits under the IACIA or a relief scheme for those cases where the “statute of limitation” had been in effect would be covered by new relief schemes for non-employee cases.

Regarding asbestos-related lung cancers, more complicated proof is required and the situation as regards compensation is poor. JOSHRC has not been satisfied with the current situation and have called for fair and equal compensation for all asbestos victims and their families.

At the same time, JOSHRC has succeeded in making the ministry disclose the names of companies where asbestos-related diseases were recognised as occupational diseases every year.

One of the reason why JOSHRC and others succeeded in getting those relief schemes was that the occupational victims and environment victims was not divided but united together, built a coalition with other social groups, attracted the attention of the media and civil society concern groups and shaped public opinion.

On the other hand the differences between the workers’ compensation and relief given to environment victims has made all re-consider various aspects of compensation and how to achieve fair and equal compensation for all and/or to improve the current schemes, not only for asbestos victims but for all victims of occupational diseases.

Considering only cases of compensation for victims of asbestos, so faronlysixcountries–France, Japan, theNetherlands,Belgium,theUKandKorea–haveintroducedreliefschemesfornon-employeeasbestos victims or universal compensation schemes for all asbestos victims. While we know there is no one-size-fits-all, still we have many common challenges we can tackle together.


Case 2: International first - Bile duct cancer among printing workers uncovered

As of the end of 2012, a new occupational disease was uncovered, when 17 active and former workers of a proof-printing plant, SANYO-CYP Co., Ltd, in Osaka were found to be suffering from bile duct cancer which is in fact a very rare cancer. However, by 2011, seven former workers of this plant had died. (See Table 2 below.)

Proof-printing is a kind of test printing to ensure the printing quality and the plant prints small numbers of sample sheets for review before the customer orders thousands of sheets from other ordinary printing companies. The workers need to clean the rollers and the machine’s blankets frequently, between an estimated 300 to 800 times per day in each plant. The printing room was in the basement with no windows and very bad ventilation. The plant was operated around the clock with a two-shift system. In addition, the workers were not provided with adequate protective masks.

In March 2011, Kansai OSH Centre (KOSHC), an affiliate of JOSHRC, heard this story from a friend of one of the victims, here named Victim H. She had already obtained certain information on nine victims. Knowing that the number of workers in the proof printing room was regulatory only around 30, the incidence of cancer in workers there was unusually high. But there had been no such cases recognized as occupational disease not only in Japan but anywhere in the world. Furthermore in some cases the statute of limitation for workers’ compensation had already expired.

Usually data on compensation is shown by the year in which compensation was paid. (See Figure 5 below). However, JOSHRC has demanded the government additionallydisclose the data according to the year of the death of the victim in order to verify theactual situation. As of 31 March 2010, 57.3 percent of all mesothelioma deaths between 1995 and 2010 have been compensated by the various schemes. The compensation ratio varied from 23.0 percent in 1995 to 90.1 percent in 2005, the year of the Kubota Shock. It is expected that cases eligible for benefits under the IACIA or a relief scheme for those cases where the “statute of limitation” had been in effect would be covered by new reliefschemes for non-employee cases.

Regarding asbestos-related lung cancers, more complicated proof is required and the situation as regards compensation is poor. JOSHRC has not been satisfied with the current situation and have called for fair and equal compensation for all asbestos victimsand their families.

At the same time, JOSHRC has succeeded in making the ministry disclose the namesof companies where asbestos-related diseases were recognised as occupational diseases every year.

One of the reason why JOSHRC and others succeeded in getting those relief schemeswas that the occupational victims and environment victims was not divided but united together, built a coalition with other social groups, attracted the attention of the mediaand civil society concern groups and shaped public opinion.

On the other hand the differences between the workers’ compensation and relief given to environment victims has made all re-consider various aspects of compensation and how to achieve fair and equal compensation for all and/or to improve the current schemes,not only for asbestos victims but for all victims of occupational diseases.

Considering only cases of compensation for victims of asbestos, so far only six countries – France, Japan, the Netherlands, Belgium, the UK and Korea – have

0

200

400

600

800

1000

-19941995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010

The number of Not Compensated cases before 1995 is unknown and the number for 2009 is estimated.

Fig.5 Compensated Cases of Mesothelioma by Year of Death

Not Compensated

Relief for Non-employee Cases

Workers Compensation and relief for "Statute of Limitation Expired" Cases


KOSHC tried to reach out to all the victims and their families, and encouraged them to unite. The centre also asked two university professors of epidemiology to carry out a scientific study using all available information. The study analysing five bile duct cancer cases (Victims C, D, F, H and I) was presented at an annual meeting of the Japan Society for Occupational Health in May 2012 and concluded that those cancers should be attributed to chemical exposure at the workplace and that the suspected causal agent would be 1, 2-dichoropropane and dibromopropane contained in the machine cleaning agents. At the same time the victims and their families made applications for workers’ compensation/insurance benefits using the written opinion of those professors.

The media covered this story extensively. Then, the Ministry of Health, Labour and Welfare (MHLW) conducted an inspection of the plant and surveyed 18,000 printing plants throughout Japan to ensure compliance with the relevant laws and regulations, ordered printing and other industries to review and improve their workplace conditions, issued precautionary notices, and offered telephone consultation service for workers. As of March 2013, a total of 46 bile duct cancer cases had been found among printing workers in addition to the SANYO-CYP cases, and applications for workers compensation insurance benefits had been filed.

In addition, the ministry set up two investigation teams and commissioned scientific researchers to them: The first team is seeking information to make an immediate decision on workers’ compensation and the second team is conducting a more comprehensive epidemiological study. The former presented its report to the ministry and acknowledged that all the SANYO-CYP cases were the result of occupational diseases as of March 2013 and will further set up recognition criteria for other bile duct cancer cases. The second team aims to finalize its research at the end of 2014.

KOSHC and JOSHRC are calling for compensation for all victims and improvements in the recognition of occupational cancers, as well as the notification system and preventive measures. The centres have also circulated the information to international colleagues. In Korea the Wonjin Institute for Occupational and Environmental Health in cooperation with unions of printing and shoemaking workers is carrying out relevant surveys. We will have a joint meeting in Seoul in July 2013.


Table 2 Bile duct cancer victims of the SANYO-CYP Co., LTd.

Victim Sex Year of Birth Work Period Year of Diagnosis Year of Death (Age)

A Male 1962 1985-1998 1996 2001 (41)

B Male 1963? 80’s-1998 1997 1998 (35?) during employment

C* Male 1969 1988-1996 1999 2000 (31)

D* Male 1978 1996-2005 2003 2005 (27) during employment

E Male 1969 1989-2006 2004 2006 (37) during employment

F* Male 1961 1988-1998 2006 2007 (46)

G Male 1967 1994- 2007

H* Male 1969 1988-1999 2007

I* Male 1969 1994-2004 2009 2010 (40)

J Male 1969 1989-2000 2009

K Male 1978 1997-2012 2010

L Male 1970 1999- 2010

M Male 1968 1992- 2012

N Male 1974 1993- 2012

O Male 1973 1999- 2012

P Male 1981 2000-2006 2012

Q Male 1978 1997-2007 2012


Annexure

List of occupational injuries and diseases as found in the Ordinance for Enforcement of the Labour Standards Act

Table 1-2. (Re: Art. 35)

1 Disease resulting from injuries incurred in the course of duty

2 The following diseases due to physical factors:2-1 Disease in the anterior part of the eye or of the skin due to work

exposed to ultraviolet rays2-2 Eye disease such as retinal burns and cataract or skin disease due

to work exposed to infrared rays2-3 Eye disease such as retinal burns or skin disease due to work

exposed to laser beams2-4 Eye disease such as cataract due to work exposed to microwaves2-5 The following disease due to work exposed to ionizing radiation:

radio dermatitis such as acute radiation disease and ulceration, eye disease due to radiation such as cataract, radiation fibrosis of the lung, troubles of the blood dyscrasia such as aplastic anemia, bone necrosis, and other Disease due to radiation

2-6 Caisson disease or diver’s disease due to operations in high-pressure rooms or diving

2-7 Mountain sickness or aircraft dysbarism due to work done in low- pressure places

2-8 Heat stroke due to work done in hot places2-9 Burns due to jobs to handle extremely heated materials2-10 Frostbite due to jobs done in cold places or to handle cold

materials2-11 Hearing disability such as deafness due to jobs done in noisy

places2-12 Necrosis such as of finger tissues due to jobs exposed to

supersonic waves2-13 In addition to the disease prescribed in 2-1 to 2-12 inclusive

their annexed disease and other disease which clearly result from jobs exposed to physical factors

3 The following diseases caused by a form of job which involves extreme physical tension:

3-1 Muscle, tendon, bone, or joint disease or prolapse of internal organs due to strenuous jobs


3-2 Low back pain due to jobs to handle heavy objects, those done in unnatural postures or others which involve excessive tension to low back

3-3 Peripheral circulatory failure, peripheral nerve disorder, or motive organ disorder of fingers or forearm etc. due to jobs which vibrates the body due to use of equipment or machinery such as rock drills, rivetters, or chain saws

3-4 Motive organ disorder of back of head, neck, shoulder girdle, upper arm, forearm or fingers due to jobs of repeatedly entering data to electric computers or others which involve excessive tension to the upper limbs

3-5 In addition to the diseases listed in 3-1 to 3-4 inclusive their annexed disease and other disease which clearly result from jobs executed in ways which involve excessive tension to the body

4 The following diseases due to chemical substances etc.:4-1 Disease designated by the Minister of Health, Labour and

Welfare due to jobs exposed to simple chemical substances or compounds (including alloys) designated by the Minister of Health, Labour and Welfare [151 items]

4-2 Inflammation of mucous membranes of the eyes or respiratory troubles such as inflammation of mucous membranes of the respiratory organs due to jobs exposed to pyrolytic products of synthetic resins such as of fluoric resin, vinyl chloride resin, or acrylic resin

4-3 Skin disease due to jobs exposed to resin hardeners manufactured from soot, mineral oil, lacquer, tar, cement, or amine or some other equivalent

4-4 Skin disease, conjunctivitis or respiratory Disease such as rhinitis or asthma bronchiale due to jobs exposed to proteolytic enzymes

4-5 Respiratory disease such as allergic rhinitis or asthma bronchiale due to jobs done in places where particulate of lumber or fur or some other equivalent are scattered or those exposed to antibiotics or some other equivalent

4-6 Respiratory disease due to jobs done in places where particulate of cotton waste or some other equivalent are scattered

4-7 Benign asbestos pleural effusion and diffuse pleural thickenings due to jobs exposed to asbestos

4-8 Hypoxia due to jobs done in places with low oxygen content4-9 In addition to the diseases listed in 4-1 to 4-8 inclusive, their

annexed disease and other disease which clearly result from jobs exposed to chemical substances


5 Pneumoconiosis or diseases listed in the items of Article 1 of the Ordinance for Enforcement of the Pneumoconiosis Act (Ordinance No. 6 of the Ministry of, Labor 1960) which are complications of pneumoconiosis prescribed by the Pneumoconiosis Act (Act No. 30, 1960) due to jobs done in places where particulate is scattered. [pulmonary tuberculosis, tuberculous pleuritis, secondary bronchitis, secondary bronchiectasis, secondary pneumothorax, primary lung cancer]

6 The following diseases due to pathogens such as bacteria and viruses:

6-1 Infectious diseases due to treating, nursing or caring patients or jobs to handle pathogens for research and other purposes

6-2 Infectious diseases such as brucellosis and anthrax due to jobs to handle animals and their carcasses, fur, hide, other animal materials, or rags and other old cloth

6-3 Leptospirosis such as Weil disease due to jobs in damp places6-4 Tsutsugamushi disease due to outdoor jobs6-5 In addition to the diseases listed in 6-1 to 6-4 inclusive their

annexed disease and others which clearly result from jobs exposed to pathogens such as bacteria and viruses

7 The following diseases due to carcinogen, carcinogenic agent, or jobs done in the carcinogenic processes:

7-1 Tumor of urinary tract due to jobs exposed to benzidine7-2 Tumor of urinary tract due to jobs exposed to betanaphthylamine7-3 Tumor of urinary tract due to jobs exposed to 4-aminodiphenyl7-4 Tumor of urinary tract due to jobs exposed to 4-nitrodiphenyl7-5 Lung cancer due to jobs exposed to his (chloromethyl) ether7-6 Lung cancer due to jobs exposed to benzotrichloride7-7 Lung cancer or methotelioma due to jobs exposed to asbestos7-8 Leukemia due to jobs exposed to benzene7-9 Angiosarcoma of liver or hepatocellular carcinoma due to jobs

exposed to vinyl chloride7-10 Leukemia, lung cancer, skin cancer, osteosarcoma, thyroid

carcinoma, multiple myeloma or nonhodgkin lymphoma due to jobs exposed to ionizing radiation

7-11 Tumors of urinary tract due to jobs the auramine manufacturing process

7-12 Tumors of ur inary t ract due to jobs in the magenta manufacturing process


7-13 Lung cancer due to jobs in the coke or producer gas manufacturing process

7-14 Lung cancer or cancer in the upper respiratory organs due to jobs in the chromate or bichromate manufacturing process

7-15 Lung cancer or cancer in the upper respiratory organs due to jobs in the nickel smelting or refining process

7-16 Lung or skin cancer due to jobs in the processes to manufacture or refine metals using ores containing arsenic or those in inorganic arsenic compounds in manufacturing process

7-17 Skin cancer due to jobs exposed to soot, mineral oil, tar, pitch, asphalt, or paraffin

7-18 In addition to the diseases listed in (a) to (q) inclusive their annexed disease and others which clearly result from jobs exposed to carcinogen, carcinogenic agent, or jobs done in the carcinogenic processes

8 Brain haemorrhage, subarachnoid haemorrhage, cerebral infarction, hypertensive encephalopathy, myocardial infarction, angina, cardiac arrest including cardiac sudden death, dissecting aortic aneurysm or their attendant disease due to long term prolonged job or others which significantly aggravate vascular and other lesions

9 Mental or behavioural disorders or their attendant diseases due to jobs associating human life-threatening accidents or incidents which psychologically impose excessive loads

10 In addition to the diseases listed in the preceding items those designated by the Minister of Health, Labour and Welfare.

11 Other diseases which clearly result from work-related operations

I. Legal framework of OSH in Pakistan

The first laws and regulations to protect the working man and woman in Pakistan were enacted 90 years ago, and while some of that code has been superseded by more modern legislation and amendments, the fundamentals governing occupational safety and health (OSH) in Pakistan were established at that time.

1.1 Laws on occupational health and safety and related insurance schemes

The key laws protecting the worker are the Workmen’s Compensation Act, 1923 and the Employees Social Security Ordinance, 1965.

Workmen’s Compensation Act, 1923.

Employees Social Security Ordinance, 1965.

West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968

Workers Welfare Fund Ordinance, 1971.

The Employer’s Liability Act, 1938.

The Employer’s Old Age Benefit Act, 1976.

Bonded Labour System (Abolition) Act, 1992.

1.2 Workmen’s Compensation Act The Workmen’s Compensation Act, 1923 was enacted to provide

for the payment by certain classes of employers to their workmen of compensation for injury by accident. The (West Pakistan) Workmen’s Compensation Rules were framed in 1924 and amended in 1961. These rules, although brief, flesh out several points in the Workers’

PakistanBy Faiz Rasool Khan Jalbani

and Khalid Mahmood


Compensation Act and offer redress to employers to curtail payment of 50 percent of monthly wage to an injured worker.

The Workmen’s Compensation Act itself was amended in 1967 and again in 2007. The amendment made in 2007 was through the Finance Bill in conjunction with six other labour laws.

The Workmen’s Compensation Act is applicable to all types of establishments (industrial or commercial), railways, and mines employing 10 or more workers, and many others such as road transport services.

Under the Workmen’s Compensation Act, an employer must compensate his employees for injuries by accident. The amounts and calculation of compensation is detailed in the Employees Social Security Ordinance. If death or permanent and total disablement results from the injury, the employer must pay the dependents of that employee a sum of PKR 200.000. Before the 2007 amendment in the law, the payment of compensation was wage dependent i.e., employees earning below PKR 6,000 were entitled to receive benefits due to injury or disability caused by an accident arising out of and in the course of employment. The amount of compensation is no longer wage dependent and all employees, regardless of their monthly wage, are entitled to this benefit.

In the case of temporary disablement, whether partial or total, the act provides for a half monthly payment of wages for a period of one year (at most) or for one-third of monthly wages for five years at most in case of chronic lung diseases

The Workmen’s Compensation Act, 1923 makes an employer liable for compensation if the injury is caused to a worker by an accident “arising out of and in the course of his employment” (Section 3 of the Act in the Appendix below). The terms “arising out of and in the course of employment” are quite important in this context and a worker claiming compensation under the Act must prove that the accident arose out of his employment i.e. his employment was the main cause of his injury and that this accident occurred in the course of his employment. For example, if an employee meets an accident while coming to the office by pick and drop service provided by the employer, this accident would be taken as have occurred in the course of employment while on the other hand, if he is coming on his own conveyance and meets an accident, it is not the obligation of employer to pay him compensation.

The law also provides for certain exceptions. The employer has no liability for an injury that results in total or partial disablement for a

Country Report: Pakistan 173

period of less than four days. Employer also has no liability for injuries if the worker willfully disobeyed the orders or safety rules; or if he willfully disregarded the safety guard or other devices provided for the safety of workers.

As regards the Employees Social Security Ordinance 1965, the only fact on the basis of which this law may be distinguishable from that of provisions of Workmen’s Compensation Act, is that this law deals with a particular class of workers / employees under the particular mechanism provided in the Ordinance of 1965. Again, for sake of clarity, it is stated that the Workmen’s Compensation Act puts no limitation on the class or classes of workers if any of them becomes entitled to compensation as envisaged in the Act of 1923.

1.3 The Employees Social Security Ordinance, 1965

This ordinance introduces a scheme of social security for providing benefits/compensation to certain employees or their departments in the event of sickness, maternity, employment injury or death and related matters.

This ordinance also defines critical issues such as “disablement”: “Disablement” means a condition caused by an employment injury which, as certified by a medical practitioner authorized for the purpose as provided in this regulations, has permanently reduced or is likely to reduce permanently a secured person’s earning capacity, and disablement shall be “minor” where the loss of earning capacity is less than twenty per centum, “partial” where the loss of earning capacity ranges from twenty-one per centum to sixty-six per centum and “total” where the loss of earning capacity is in excess of sixty-six per centum.

It is also important to note the following section of the Employees Social Security Ordinance:

“It is relevant to narrate that both the statutes i.e. Act of 1923 and Ordinance of 1965 are in addition to each other and not in derogation of each other as the affective person / employee may get compensation under the law of his choice or under the both statutes simultaneously.”


1.4 West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968

The Standing Orders Ordinance, 1968 is applicable to all the industrial or commercial establishments (especially its section 10-B) where fifty or more workers have been employed on any day during the preceding twelve months.

This ordinance requires al l industrial and commercial establishments with 50 or more employees to have all its permanent workers insured against natural death and disability and death and injury arising out of the contingencies not covered by the Workmen’s Compensation Act, 1923 and Provincial Employees Social Security Ordinance, 1965. Each permanent worker has to be insured against at least the amount that has been provided in schedule four of the act, i.e. PKR 200,000. Moreover, it is the responsibility of employer to pay premiums and no contributions are to be made by the employee.

The Workers’ Welfare Fund Ordinance, 1971 provides for the establishment of a worker’s welfare fund to provide residential accommodation and other facilities for workers and for related matters.

The Employer’s Liability Act, 1938 was enacted to declare that certain defenses shall not be arised (i.e., permitted) in a suit for damages in Pakistan in respect of injury sustained by workmen.

The Employer’s Old Age Benefit Act, 1976 was promulgated to repeal and re-enact the law relating to Old Age Benefits for persons employed in industrial, commercial and other organizations.

It is extremely relevant to refer and take pride in the provisions woven in Clause (2) of the Article 11 of the Constitution of the Islamic Republic of Pakistan, 1973 which prohibits all forms of forced labour. This prohibition was further strengthened with the promulgation of the Bonded Labour System (abolition) Act, 1992 on 17th March 1992 which -provided a scheme for the abolition of the Bonded Labour System with a view to preventing the economic and physical exploitation of working men and women in the country and related matters.

There are also certain other statutory laws in-force, pro-tempore, in Pakistan, which pertain to the labour class, industrial relations, payment of wages, minimum wages, workers, factories, employees, employers, and employment of children.

Pakistan has ratified all eight of the fundamental conventions of the International Labour Organization (ILO). However, it has ratified only one of 21 ILO conventions on occupational safety and health, and that is Convention 45 Underground Women (Work) Convention, 1938.


1.5 List of occupational diseases and injuries

Schedule 3 of the Workmen’s Compensation Act provides a list of occupational diseases. These include:

Anthrax

Compressed air illness or its sequelae

Poisoning by lead tetra-ethyl

Poisoning by nitrous fumes

Lead poisoning and its sequelae

Phosphorous poisoning

Mercury poisoning

Poisoning by benzene and its homologues

Chrome ulceration

Arsenical poisoning

Pathological manifestation due to radium and other radioactive substances, and X-rays

Primary cancer of the skin

Silicosis

Provincial governments, through notification, can also declare, as part of the list, other employment and their related occupational diseases.

II Compensation procedures, administrative framework

2.1 Applying for compensation

Section 3(5) of the Compensation Act outlines the three alternate remedies available to the worker:

1) He may sue his employer for damages in ordinary civil court, or2) He may proceed under the act and institute a claim to

compensation before a (Workmen’s Compensation) commissioner, or

3) He may make an agreement with the employer for providing compensation for injury in respect of the provisions of this act.


However, if the worker accepts to adopt the any of the later two measures, any suit for damages will not be maintainable in any court of law. While if he adopts the first option (i.e. suing in an ordinary civil court), he will surrender his right to sue under the Workmen’s Compensation Act

2.2 Case Study

In the middle of 2012, a worker, who was working in a cotton fabric factory, approached Labour Education Foundation (LEF), a labour nongovernmental organization based in Lahore, for help in getting medical treatment for his health problems. The worker had trouble breathing and suffered pain under the sternum.

The labour NGO arranged for him to have a thorough physical examination with a doctor at a clinic. The doctor was informed of the patient’s employment and medical history from the start. After the examination, the doctor certified that the worker’s breathing problems were a mature stage of asthma and that his condition was the result of his working environment, i.e. working for a prolonged period in the cotton factory.

Armed with the doctor’s medical certificate stating the likely causes of his illness and with the help of activists from the labour NGO, who assisted the worker in hiring a lawyer to handle his case, a legal notice was subsequently issued to the employer by the law firm: The employer was informed that the worker was seeking compensation for his work-related health problems. The employer, however, did not bother to respond to the notice, although he was required by law to do so within 15 days.

Therefore, given the situation, the worker filed a civil suit for recovery of compensation and damages against his employer in the Lahore District Court. The worker sought PKR 600,000, i.e. PKR100,000 in damages and PKR 500,000 in compensation.

The law took its course. The employer was summoned to appear in court. On appearing in court, the employer submitted his written statement to the court. Both parties presented their evidence and position, oral as well as documentary over a long period. By the time the court was to hear final arguments, it was clear this was a hotly contested case. After an adjournment for review of the case, in early 2013 the judge declared in favour of the worker and awarded him a total of PKR500,000 in compensation and damages. Both parties decided not to appeal the court’s decision.


III Analysis of OSH legislation, compensation procedures

3.1 Barriers and problems under the Workmen’s Compensation Act There is no doubt many workers face many barriers and problems

in securing compensation for work-related injuries or illnesses due to their lack of awareness of the relevant laws and their financial situation. As the law itself never volunteers to come to the rescue of a workman under the Workmen’s Compensation Act 1923, it is usually left to the workman or his legal heir(s) and family to seize the relevant provisions of the law and seek union, community or legal support to get compensation.

The technicalities of the law and procedural formalities play a painful role in this system of compensation. The first of these is that a worker is expected to be aware of is the statutory period or limitations within which he or she must make a claim for compensation. Secondly, a worker is also required to study the procedure and even the forum for getting compensation

Under the Workmen’s Compensation Act, it is provided that no claim for compensation would be entertained unless notice of the accident is given as soon as practicable after the accident occurred. It is also provided therein that the employer shall, before the expiry of three days from the time at which service of notice has been affected, have the workman examined free of charge by a qualified medical practitioner. Though this procedure is not complicated, yet this very procedure may create problems for a workman to get compensation because of his poor knowledge and lack of awareness of the relevant laws.

For example, those in the labour class or the workers living in remote areas are often very passive in claiming compensation by activating the mechanism given by these laws for the simple reason that they have never heard about the existence of such laws. In summary, it is a lack of awareness and poor knowledge on the part of the labour class. By lack of awareness, it is meant the situation wherein any person belonging to the said class is blind towards the existence of such compensatory laws. While the term ‘poor knowledge’ indicates the situation when such persons, though they have awareness about the existence of such compensation laws, yet they lack proper guidance as to how and what procedures may be adopted to make their compensation claim.


As to the question how to solve these problems, the singular answer is that the process of providing awareness to the labour class about the compensatory system and the applicable laws must be institutionalized through every possible source, both governmental and non-governmental.

3.2 Barriers and problems under Employees Social Security Ordinance

As with the Workmen’s Compensation Act, various barriers and problems often arise in making claims under the Employees Social Security Ordinance. It is stated in this Act that no claim for compensation would be entertained unless notice of the accident is given as soon as practicable after the accident occurred. The major barriers and problems for an employee to get compensation under the Employees Social Security Ordinance 1965 is the noncompliance of the said law on the part of the employer. Usually, neither a register is properly maintained by an employer nor are the social security cards issued to employees.

Every employee/workman has a statutory right to become a secured person to claim compensation under this law. But here again, the lack of awareness renders the employees/workmen likely to face hardships in getting the compensation. Lastly, the non-implementation of these laws in their letter and spirit also causes the employees/workmen problems in enjoying the statutory compensatory system.

3.3 Alternatives to claiming compensation

Admittedly, though the Workmen’s Compensation Act 1923 is a special law, yet the same is in addition to and not in derogation of other laws at present in force in Pakistan for the redress of the grievances of an employee or workman. Therefore, an employee or a workman may avail himself or herself of alternative remedies provided in the labour laws or in the ordinary/general civil or criminal law. A suit for recovery of damages may be instituted by an aggrieved worker in the court of ordinary civil jurisdiction. The aggrieved person may also seek redress by invoking the relevant provisions of the Specific Relief Act. Likewise an aggrieved person/injured person may invoke the jurisdiction of a criminal court and may get compensated under section 544-A of the code of criminal procedure at present in force.


3.4 Recommendations: Effective implementation of law, involvement of NGOs

All the laws relating to compensation are remedial and compensatory in nature. The improvements in these laws may be introduced by relaxing the technicalities of law and procedural formalities. An effective mechanism for the implementation of these laws is highly required to meet the objectives set forth for the labour class. The role of civil society cannot be ignored in this respect. Likewise, non-governmental organisations may play a pivotal role in educating the labour class. These organisations may plan to make arrangements for providing the proper awareness of the relevant compensatory laws to the labor class. These organisations may also come forward to keep watch over the establishment to protect the rights of the labour class.

“Kapag nagtatrabaho ka sa konstraksyon, isang paa mo ay nasa hukay”

If you work in construction, you have one foot in the grave” 1

These macabre words were spoken by the father of one of the 11 victims in the deadly accident at ETON Residences in Makati City which took the lives of 10 workers on 27 January 2011. This observation by someone who sees himself and his co-workers exposed on a regular basis to danger, confirms what the Occupational Health and Safety Standards of the Philippines deems hazardous work2.

The construction industry in the Philippines does not have a monopoly on dangerous work. There are other obvious candidates, such as the mining industry due to its use of heavy equipment and placing humans tunneling underground for precious ore; or the shipbuilding sector, where according to eyewitness accounts, tons of metal regularly threatens mere pounds of flesh and the latter always loses.

Less obvious, but definitely not less deadly is the electronics industry. The various chemicals used in the industry expose workers to life-threatening scenarios and while was once dubbed the clean industry, it has become a toxic nightmare for many workers. Another is the Business Process Outsource, the so-called sunshine industry where ironically employees mostly do shifts at night - and which also poses health risks. Recent research reports have cited night work as a cause of heart disease and increased risk of cancer. 3 4

1 A remark made by the father, also a construction worker, of one of the victims of the ETON Tragedy during an interview by the writer.

2 Implementing Rules and Regulations (IRR) of the Employees Compensation Commission defines ‘hazardous work’ as: work operations or practices performed by a worker in the establishment or workplace in conjunction with or as an incident to such operations or practices and which expose the employees to hazards likely to cause any disabling injury, illness, death or physical or psychological harm.

3 British Medical Journal. Shift work and vascular events: systematic review and meta-analysis. 26 July 2012.

4 The Lancet Oncology, Volume 8, Issue 12, Pages 1065 - 1066, December 2007.

PhilippinesBy Noel Colina


Danger remains the deadly twin of work despite the vast improvements in science and technology. According to estimates made by the International Labour Organization (ILO), work remains a top killer, with more than two million people dying across the world annually due to work-related accidents and disease. Half of that numbers are based in Asia, with China accounting for 50 percent of the casualties in the region.

In the Philippines, the Institute for Occupational Health and Safety Development, a non-profit, non-governmental health and safety organization has started a simple collection of work-related accidents due to the dearth of official data. But the numbers they have collected may barely scratch the surface. The dire situation is that workers are getting sick and dying in silence, anonymously.

To compound the problem, victims and their families, the workers and their unions are not familiar with the appropriate steps to take when accidents happen and diseases set in. The lack of information on compensation procedures is very glaring, especially in the informal and unorganized sectors. The fear of losing their jobs prevents some workers from reporting accident cases or serious health concerns to the appropriate agencies, while unscrupulous employers leverage the law to sack workers. Cases have been reported of management placing their workers under constructive dismissal, because they are no longer fit to work, where such a condition was a direct result of the job itself.

The chapter aims to help equip organizers and ordinary workers, as well as those in legal aid, to better assist victims and their survivors to seek, not just compensation but the delivery of justice.

I. Legal framework of OSH in the Philippines

1) Presidential Decree 442 enacting the Labor Code

The Labor Code of the Philippines was issued on 1 May 1974 in the midst of the martial law years of then Philippine President Ferdinand Marcos with Presidential Decree 442 (P.D. 442). This decree instituted “a Labor Code thereby revising and consolidating Labor and Social Laws to Afford Protection to Labor, Promote Employment and Human Resources Development and Insure Industrial Peace based on Social Justice.” After coming into law, the Labor Code has undergone many amendments.

The code is quite extensive and detailed and is divided into seven books with a total of 302 articles: Book I is on Pre-Employment; Book II on Human Resources Development Program; Book III covers

Country Report: Philippines 183

Conditions of Employment; Book IV deals with Health, Safety and Social Welfare Benefits; Book V is on Labor Relations, Book VI discusses Post-Employment; and the last, Book VII, covers Transitions and Final Provisions of the Code.

1.1 Labor Code, Book IV, Chapter 1 Medical and Dental Services

Article 156. (Article 156) First Aid Treatment details the necessity of all workplaces having the capacity for First Aid. Article 157. Emergency medical and Dental Services provides for the necessary role, including the appropriate number, of medical professionals, medical and dental, based on the type of the workplace. For workplaces falling under the category of hazardous, occupational doctors and nurses, including dentists, shall stay within the company premises for a minimum of 2 hours per shift.

Article 158 When emergency hospital not required provides the appropriate exemptions for workplaces to not have an emergency hospital. For as long as there is an arrangement with another hospital and the said hospital is near the worksite, exemptions apply.

Furthermore, Article 159 Health Program instructs the company doctor to develop and implement a comprehensive occupational health program for the benefit of the employees of his employer. Article 161 Assistance of the Employer, on the other hand, dictates that during a medical emergency, “[I]t shall be the duty of any employer to provide all the necessary assistance to ensure the adequate and immediate medical and dental attendance and treatment to an injured or sick employee.”

Book IV, Chapter II Occupational Safety and Health

Article 162 Safety and Health Standards instructs the Secretary of Labor and Employment to “set and enforce mandatory occupational safety and health standards”, while Article 165 Administration of safety and health laws spells out in (a) that the Department of Labor and Employment as the duty bearer for “administration and enforcement of occupational safety and health laws” and sets the parameters on how other chartered cities can be allowed to conduct inspections of workplaces within their jurisdiction, while (b) provides that the Secretary of Labor and Employment can charge fees for safety inspections.


Article 167 defines the terms used on matters related to the Employees’ Compensation (ECC) and State Insurance Fund (SIF), while Article 168 Compulsory Coverage requires all employers and employees to be part of the SIF. Article 170 Effective Date of Coverage mandates that coverage of the SIF begins on the first day of operation of the employer and for the employee, upon the first day of employment; and Article 171 Registration requires registration of employers and employees to the Social Security System (SSS) for private enterprises and to the Government Service Insurance System (GSIS) for government employees.

Article 172 Limitation of Liability outlines the following exceptions of coverage from the SIF: when the disability or death was occasioned by the employee’s intoxication, willful intention to injure or kill himself or another, notorious negligence, or otherwise provided under this Title. On the other hand, Article 173 Extent of Liability states the SIF liability to the employee, aside from the other liabilities of the employer to the employee, while Article 175 Deprivation of Benefits rules out any contract that will “...deprive the employee or his dependents of any part of the income benefits and medical or related services...”

Book IV, Chapter III Administration

The next article, Article 176 Employee’s Compensation Commission provides the legal basis for the formation of the Employee’s Compensation Commission (ECC) that will “...initiate, rationalize, and coordinate the policies of the employee’s compensation program...”, while Article 177 Powers and Duties outlines the scope of duties and power of the ECC. In addition, Article 178 Management of Funds and Article 179 Investments of Funds clarifies how the funds of the ECC will be managed.

The following article, Article 180 Settlement of Claims states that the ECC has “original and exclusive jurisdiction to settle any dispute” deemed under the Title 2 or the Employee’s Compensation Corp and State Insurance Fund, while Article 181 Review provides for the Supreme Court judicial review of the “...[d]ecisions, orders or resolutions” of the ECC. Article 182 Enforcement of Decisions fixes the time period for appeals and execution of the “...decision, order or resolution” by the ECC.

Book IV, Chapter IV Contributions

Article 183 Employer’s contributions clarifies the compulsory


coverage of employees and the obligation of the employer to “remit to the System a contribution equivalent to one percent of his monthly salary credit” and such contribution will be periodically reviewed. It also mandates that the contributions shall only come from the employer. Article 184 Government guarantee states the national government “...accepts general responsibility for the solvency of the State Insurance Fund” and in case of the lack of funds, it shall be covered by the public coffers.

Book IV, Chapter V Medical Benefits

Article 185, Medical services, requires the ECC to provide medical services and other infrastructure to a sick and/or injured worker based on the requirement for his/her recovery. The following article, Article 186 Liability provides that the ECC shall have the authority to choose the medical personnel and infrastructure and it renounces responsibility for any compensation due to complications resulting from unauthorized changes made by the employee.

Article 187 Attending physician requires the attending physician to provide the ECC complete access to records of the sick and/or injured employee and discards privileged communication between the doctor and patient. If an employee refuses to submit himself or herself to a medical examination and/or treatment, Article 188 Refusal of examination or treatment provides that the ECC can stop payment of compensation to the said employee. Article 189 Fees and other charges sets out the limit on what the ECC shall cover, while Article 190 Rehabilitation services allows the ECC to set up a practicable program of rehabilitation for injured and/or sick workers.

Book IV, Chapter VI Disability Benefits

Under this chapter, provisions for workers with temporary total disability (Article 191 Temporary total disability), permanent total disability (Article 192 Permanent total disability) and permanent partial disability (Article 193 Permanent partial disability) are clarified and stated. The abovementioned articles also clarify what types of conditions fall under each provision.

For temporary total disability, the employee shall be paid 90 percent of his/her salary and payment shall not exceed 120 days, while an employee with permanent total disability shall receive the amount equivalent to his/her monthly income, plus an additional 10 percent


per dependent child5 . On the other hand, those with permanent partial disability shall receive benefits according to the type of disability6 .

Book IV, Chapter VII Death Benefits

Article 194 Death clarifies the amount to be paid to any worker who suffers death due to work, and who will be the primary beneficiary of the said amount. The amount includes Death and Funeral benefits.

Book IV, Chapter VIII Provisions Common to Income Benefits

Article 196 Delinquent contributions clarifies that delinquent payments by the employer shall not prejudice the benefits entitled to his/her employee.

Article 197 Second injuries states that “...any employee under permanent partial disability suffers another injury which results in a compensable disability greater than the previous injury, the State Insurance Fund shall be liable for the income benefit of the new disability”, while Article 198 Assignment of Benefits provides that claim and compensation are non-transferable.

Article 200 Safety devices states “...in case the employee’s injury or death was due to the failure of the employer to comply with any law or to install and maintain safety devices or to take other precautions for the prevention of injury, said employer shall pay the State Insurance Fund a penalty of twenty-five percent (25%) of the lump sum equivalent of the income benefit payable by the System to the employee7.”

Article 201 Prescriptive period provides that the claim must be filed with the ECC within three years after the accident and/or disease occurred.

Article 203 Prohibition disallows any person to charge the claimant in case there was assistance rendered in filing for claims.

Book IV, Chapter IX Records, Reports and Penal Provisions

Article 205 Record of death or disability requires employers to keep a logbook recording all cases of sickness, injury or death of their

5 See Presidential Decree 442 Article 192 (c)6 See PD 442 Article 1937 The System refers to either the GSIS, SSS or ECC


employees. In the case the employer fails to maintain such a record, the employer shall be fined by the ECC.

Under Article 207 Penal provisions, anyone who commits fraud to seek compensation from the ECC shall suffer fines and imprisonment.

1.2 Administering the law

1.2.1 Relevant government agencies

There are several relevant government agencies which provide workers, public and private, different forms of social protection. The common thread is that all agencies require active membership to avail oneself of the benefits and workers are not automatically covered any program, especially those working in the informal sector.

A) Employees Compensation Commission

The Employees Compensation Commission (ECC) was established on 1 November 1974 by virtue of Presidential Decree 442 (PD 442) or the Labor Code of the Philippines and after with PD 626, it became fully operational on 1st January 1975. It is a government corporation and accordingly, the ECC is mandated by law to provide compensation to workers through its various functions which are8:

• Toformulatepoliciesandguidelinesfortheimprovementofthe employees’ compensation program;

• ToreviewanddecideonappealallECclaimsdisapprovedbythe Systems9; and

• To initiate policies and programs toward adequateoccupational safety and health and accident prevention in the working environment

The ECC covers both private and public workers and handles their compensation claims for work-related injuries and disease. Under PD 442, Title II Article 166 Policy the ECC was formed to be a tax-exempt employees’ compensation program where employees and their dependents can get income and medical-related benefits in the case of work-related injury, disease or death.

8 http://www.ecc.gov.ph/AboutUs.aspx?content=19 The referred Systems are the Social Security System and the Government Service

Insurance System


All employers are required to contribute to the State Insurance Fund (SIF). The agency does not collect any money from the employee and all funds of the SIF come from the appropriate contribution of employers. The Social Security System (private workers) and the Government Service Insurance System (public workers) manages the State Insurance Fund which is allotted for payment of compensation claims. For the private employers, the present required contribution is P10/employee10.

According to the report of the ECC, the amount of the SIF as of 30 June 2012 was PhP 38.2 billion, with the SSS managing 73 percent of the total funds, while the remainder managed under the GSIS. Collections of the SIF from private employers in the same period amounted to PhP 728.9 million, while another PhP 973.4 million came from the government. Also, a total of PhP 510.5 million was paid as claims to private workers, with PhP 18 million paid to government workers11.

Aside from providing benefits for workers, the ECC is mandated by law to develop occupational safety and health (OSH) programs for workplaces, conduct studies necessary for the improvement and updating of benefits of workers suffering from work-related contingencies and provide a system of rehabilitation for injured workers12.

Before PD 626 became into effect, compensation for workers was provided under ACT NO. 3428 or An Act Prescribing The Compensation To Be Received By Employees For Personal Injuries, Death Or Illness Contracted In The Performance Of Their Duties. This act became effective on 10 June 192813. Although the word Illness is mentioned in the title of the Act, there was no other text pertaining to occupational disease in the law and most of the details covered only injury and death from work.

At present, the ECC covers work-related injury, disease and death. Just like the ACT 3428, the ECC provides different levels of compensation according to the type of injury sustained by the worker and the level of disability resulting from the contingency. Occupational

10 As of writing, the exchange rate is 1USD = 40PhP, making the monthly contribution equivalent to USD 25 cents per employee

11 http://www.ecc.gov.ph/AboutUs.aspx?content=412 Presidential Decree 626 Article 17713 During this period, the Philippines was under direct colonial control of the United

States of America


disease is also covered under the compensation program, and list more than 30 types of diseases14.

The ECC is an appeal agency. If a worker suffers from work-related contingencies, he/she and/or his/her family members can file, after providing all the required information, an Employee’s Compensation (EC) claim to the Social Security System (SSS) (i.e. private workers) or Government Service Insurance System (i.e. government employee) branch nearest his/her residence or place of work, where in the case of place of work, it is usually where his/her employer remits contributions. The prescriptive period for filing an EC claim is within three years after the contingency occurred15. If the EC claim is denied by the SSS/GSIS and the claimant wants to appeal, the appropriate agency to handle the appeal process will be the ECC and take over the compensation claim from the said agencies.

Only workers under formal work arrangements – both those in the private sector and public sector – can file for an EC claim, while those under informal work arrangements are not covered under the ECC. There is currently no system providing compensation for work-related contingencies covering those under informal work arrangements.

The definition for different types of disability is given under the Amended Rules for Employee’s Compensation Rules, VII Benefits, Section 2:

(a) A total disability is temporary if as a result of the injury or sickness the employee is unable to perform any gainful occupation for a continuous period not exceeding 120 days, except as otherwise provided for in Rule X of these Rules.

(b) A disability is total and permanent if as a result of the injury or sickness the employee is unable to perform any gainful occupation for a continuous period exceeding 120 days, except as otherwise provided for in Rule X of these Rules.

(c) A disability is partial and permanent if as a result of the injury or sickness the employee suffers a permanent partial loss of the use of any part of his body.

14 http://iohsad.org/list-occupational-and-compensable-diseases15 The prescriptive period is the limited time provided for the compensation claim to be

filed before a relevant agency, usually beginning from the time of the contingency.


Rule X of the Amended Rules, on the other hand, provides:

“SECTION 1. Condition to entitlement. - An employee shall be entitled to an income benefit for temporary total disability if all of the following conditions are satisfied: (1) He has been duly reported to the System;(2) He sustains the temporary total disability as a result of the injury

or sickness, and(3) The System has been duly notified of the injury or sickness which

caused his disability. His employer shall be liable for the benefit if such illness or injury occurred before the employee is duly reported for coverage to the System.

SECTION 2. Period of entitlement. (a) The income benefit shall be paid beginning on the first day of such disability. If caused by an injury or sickness it shall not be paid longer than 120 consecutive days except where such injury or sickness still requires medical attendance beyond 120 days but not to exceed 240 days from onset of disability in which case benefit for temporary total disability shall be paid. However, the System may declare the total and permanent status at any time after 120 days of continuous temporary total disability as may be warranted by the degree of actual loss or impairment of physical or mental functions as determined by the System.

(b) After an employee has fully recovered from an illness as duly certified to by the attending physician the period covered by any relapse he suffers, or recurrence of his illness, which results in disability and is determined to be compensable, shall be considered independent of, and separate from, the period covered by the original disability. Such a period shall not be added to the period covered by his original disability in the computation of his income benefit for temporary total disability. (ECC Resolution No. 1029, August 10, 1978).

SECTION 3. Amount of benefit. - Any employee entitled to benefit for temporary total disability shall be paid an income benefit equivalent to 90 percent of his average daily salary credit, subject to the following conditions:(1) The daily income benefit shall not be less than P10.00 or

more than P90.00, nor paid longer than 120 days for the same disability, unless the injury or sickness requires more extensive treatment that lasts beyond 120 days, but not to exceed 240 days from onset of disability, in which case he shall be paid benefit for temporary total disability during the extended period.


(2) The monthly income benefit shall be suspended if the employee fails to submit a monthly medical report certified by his or her attending physician as required under Sec. 5 of Rule IV hereof. (Resolution No. 3682, July 21, 1987).”

1.2.2 Social Security System

The Social Security System (SSS) was created through Republic Act 1161 An Act To Create A Social Security System Providing Sickness, Unemployment, Retirement, Disability and Death Benefits For Employees which came into effect on 18 June 1954. Since 1954, the law governing the SSS has undergone many amendments to increase coverage, not only of private workers, but also other sectors, including farmers and the self-employed. On 1 May 1997, major amendments were introduced in Republic Act (RA) 8282 otherwise known as the Social Security Law.

Under RA 8282 Section 2 Declaration of Policy provides the role of the SSS to have “... a sound and viable tax-exempt social security system … provide meaningful protection to members and their beneficiaries against the hazards of disability, sickness, maternity, old age, death, and other contingencies resulting in loss of income or financial burden.”

The coverage of the SSS is compulsory for all employees below 61 years old, as stated in RA 8282 Sec. 9. Coverage includes those who are considered self-employed. (See RA 8282 Sec. 9-A Compulsory coverage of the Self-employed.) According to RA 8282 Sec. 10 Effective Date of Coverage employees are covered by the SSS from the first day of employment, while the self-employed are considered under the SSS upon their registration to the SSS.

The SSS provides sickness, maternity, retirement, disability and death and funeral benefits for all its members. Aside from the above mentioned benefits, the SSS also provides compensation for work-related contingencies.

A monthly pension is provided for members who have suffered permanent disability, as provided by RA 8282 Sec. 13-A Permanent Disability Benefits. The amount of the monthly pension is clarified in RA 8282 Sec. 12. Monthly Pension (a) The monthly pension shall be the highest of the following amounts:

(1) “The sum of the following: (i) Three hundred pesos (P300.00); plus (ii) Twenty percent (20%) of the average monthly salary credit;

plus


(iii) Two percent (2%) of the average monthly salary credit for each credited year of service in excess of ten (10) years; or

(2) Forty percent (40%) of the average monthly salary credit; or (3) One thousand pesos (P1,000): Provided that the monthly pension

shall in no case be paid for an aggregate amount of less than sixty (60) months.

(b) Notwithstanding the preceding paragraph, the minimum pension shall be one thousand two hundred pesos (P1,200.00) for members with at least ten (10) credited years of service and two thousand four hundred pesos (P2,400.00) for those with twenty (20) credited years of service.”

According to RA 8282 Sec. 13-A (d), a member who suffered the following shall be deemed as having a permanent total disability:

“ 1. Complete loss of sight in both eyes; 2. Loss of two limbs at or above the ankle or wrists; 3. Permanent complete paralysis of two limbs; 4. Brain injury resulting in incurable imbecility or insanity; and 5. Such cases as determined and approved by the SSS.”

If a member with permanent total disability gets re-employed or becomes self-employed, the monthly pension will cease. But if the member dies, the pension shall be received by his/her primary beneficiaries.

Members who suffer from permanent partial disability, as clarified by RA 8282 Sec. 13-A (f ), shall receive a following monthly pension for a number of months as follows:

Complete And Permanent Loss Number of Months Of Use Of One Thumb 10 One Index Finger 8 One Middle Finger 6 One Ring Finger 5 One Little Finger 3 One Big Toe 6 One Hand 39 One Arm 50


One Foot 31 One Leg 46 One Ear 10 Both Ears 20 Hearing of One Ear 10 Hearing of Both Ears 50 Sight of One Eye 25

If the compensation is to be paid for a period of less than 12 months, the member shall receive a lump sum instead of a monthly pension. If the member receiving the permanent partial disability payment dies, the pension ceases.

Those members, whose contingencies the SSS deem to be work-related, can accordingly receive medical services, rehabilitation services and cash income benefits. The medical service benefit includes medical services, appliances/devices and supplies required from the first day of injury or sickness until recovery.

The Income Cash benefit is compensation divided into two categories: 1) Temporary Total Disability or Sickness; and 2) Permanent Total Disability. For Temporary Total Disability, a member receives an income cash equivalent of 90 per cent of his or her average daily salary credit and is payable for a maximum of 120 days16. If the condition of the member requires more treatment, the payment can be extended to 240 days. If more time is needed for the member to recover, the condition now falls under the Permanent Total Disability.

If the member is considered under the Permanent Total Disability category, he or she will receive a monthly pension, as stated above, plus 10 percent for every dependent child, for a maximum of five children. Such a pension will be received by the member for a maximum of five years.17

16 Presidential Decree 626 Article 167 Definition of Terms (z) “Average daily salary credit” in the case of the SSS means the result obtained by dividing the sum of the six highest monthly salary credits in the twelve-month period immediately preceding the semester of sickness or injury by one hundred eighty, except where the month of injury falls within the twelve calendar months from the first month of coverage, in which case it is the result obtained by dividing the sum of all monthly salary credits by thirty times the number of calendar months of coverage in the same period.

17 Presidential Decree 1641 Sec. 5 (b)


In the case of death, the member’s primary beneficiaries shall receive a monthly pension, plus 10 percent for every dependent child, for a maximum of five children. The pension shall be paid for a maximum of five years. A funeral benefit of PhP10,000 is also paid to anyone who shouldered the burial expense of the member.

1.3 Government Service Insurance System

The Government Service Insurance System (GSIS) was established through the Commonwealth Act No. 186 and came into effect on 14 November 1936. Act No. 186 amended previous pension systems, namely Act No. 1638, Act No. 3050 and Act No. 3173. The law underwent many amendments to expand the coverage of the GSIS, and the latest came into effect on 30 May 1997.

The GSIS is an insurer of all government employees, including all the assets of the government18. The GSIS provides for compulsory and optional life insurance, retirement benefits, disability benefits for work-related contingencies and death benefits, including application for loans (e.g. housing loan) and dividends to its members. According to the Consolidated Statement of Financial Position submitted on 31 December 2010, the GSIS has a total net worth of PhP 553.9 billion, with premiums and loans receivables amounting to PhP 200.4 billion19 20.

Membership in the GSIS is compulsory for all government employees, except those stated in RA 8291 Sec. 3 “except members of the Armed Forces of the Philippines and the Philippine National Police ... and contractuals who have no employer and employee relationship with the agencies they serve”. This requires all government agencies to submit the names of their workforce and enroll them in the GSIS. With this requirement, members and their employers are required to pay the appropriate monthly premium. RA 8291 Sec. 5 Contributions (l)

18 Republic Act 69619 GSIS, Consolidated Financial Position. December 31, 2010 20 Represents receivable arising from unremitted members’ contribution and other

premiums and loans already due but not yet collected


states that the amount of monthly premium will depend on the average monthly compensation received by the member21.

Members of the GSIS who suffer from work-related contingencies are provided different benefits, including monthly pensions or cash payments, depending on the conditions of the member. For members who suffer from permanent total disability, he or she will receive a monthly pension starting from the date of disability. For a member to enjoy the above mentioned benefits, RA 8291 Sec. 16 states:

(a) If the permanent disability is total, he shall receive a monthly income benefit for life equal to the basic monthly pension effective from the date of disability: Provided, that:(1) he is in the service at the time of disability; or(2) if separated from the service, he has paid at least thirty-six

(36) monthly contributions within the five (5) year period immediately preceding his disability, or has paid a total of at least one hundred eighty (180) monthly contributions, prior to his disability: Provided, further, that if at the time of disability, he was in the service and has paid a total of at least one hundred eighty (180) monthly contributions, in addition to the monthly income benefit, he shall receive a cash payment equivalent to eighteen (18) times his basic monthly pension: Provided, finally, that a member cannot enjoy the monthly income benefit for permanent disability and the old-age retirement simultaneously.

(b) If a member who suffers permanent total disability does not satisfy conditions (1) and (2) in paragraph (a) of this section but has rendered at least three (3) years’ service at the time of his disability, he shall be advanced the cash payment equivalent to 100 percent of his average monthly compensation for each year of service he

21 Average Monthly Compensation (AMC) — The quotient arrived at after dividing the aggregate compensation received by the member during his last thirty-six (36) months of service preceding his separation/retirement/disability/death by thirty-six (36), or by the number of months he received such compensation if he has less than thirty-six (36) months of service: Provided, That the average monthly compensation shall in no case exceed the amount and rate as may be respectively set by the Board under the rules and regulations implementing this Act as determined by the actuary of the GSIS: Provided, further, That initially the average monthly compensation shall not exceed Ten thousand pesos (P10,000.00), and premium shall be nine percent (9%) and twelve percent (12%) for employee and employer covering the AMC limit and below; and two percent (2%) and twelve percent (12%) for employee and employer covering the compensation above the AMC limit


paid contributions, but not less than P12,000, which should have been his separation benefit.

(c) Unless the member has reached the minimum retirement age, disability benefit shall be suspended when:(1) he is reemployed or(2) he recovers from disability as determined by the GSIS, whose

decision shall be final and binding; or(3) he fails to present himself for medical examination when

required by the GSIS.

(d) The following disabilities shall be deemed total and permanent: (1) complete loss of sight in both eyes;(2) loss of two (2) limbs at or above the ankle or wrist;(3) permanent complete paralysis of two(2) limbs;(4) brain injury resulting in incurable imbecility or insanity; and(5) such other cases as may be determined by the GSIS.”

For those under with temporary total disability, RA 8291 Sec. 18 defines the benefits the member will receive as:

SECTION 18. Temporary Total Disability Benefit. — (a) A member who suffers temporary total disability for reasons not due to any of the conditions enumerated in Section 15 hereof shall be entitled to 75 percent of his current daily compensation for each day or fraction thereof of temporary disability benefit not exceeding 120 days in one calendar year after exhausting all his sick leave credits and collective bargaining agreement sick leave benefits, if any, but not earlier than the fourth day of his temporary total disability: Provided, That:(1) he is in the service at the time of his disability; or(2) if separated, he has rendered at least three (3) years of service and

has paid at least six (6) monthly contributions in the twelve-month period immediately preceding his disability. Provided, however, that a member cannot enjoy the temporary total disability benefit and sick leave pay simultaneously: Provided, further, that if the disability requires more extensive treatment that lasts beyond 120 days, the payment of the temporary total disability benefit may be extended by the GSIS but not to exceed a total of 240 days.

(b) The temporary total disability benefit shall in no case be less than P70.00 a day.


(c) The notices required of the member and the employer, the mode of payment, and the other requirements for entitlement to temporary total disability benefits shall be provided in the rules and regulations to be prescribed by the GSIS.”

The GSIS provides for Survivorship benefits under RA 8291 Sec. 20 wherein the member dies, the beneficiaries of the member shall receive a pension not more than 50 percent of the basic monthly pension. Section 21 and 22 further clarifies the pension to be received:

SECTION 21. Death of a Member. — (a) Upon the death of a member, the primary beneficiaries shall be

entitled to: (1) survivorship pension: Provided, that the deceased:

(i) was in the service at the time of his death; or(ii) if separated from the service, has at least three years of

service at the time of his death and has paid 36 monthly contributions within the five-year period immediately preceding his death; or has paid a total of at least 180 monthly contributions prior to his death;or

(2) the survivorship pension plus a cash payment equivalent to 100 percent of his average monthly compensation for every year of service: Provided, that the deceased was in the service at the time of his death with at least three years of service; or

(3) a cash payment equivalent to 100 percent of his average monthly compensation for each year of service he paid contributions, but not less than P12,000.00: Provided, that the deceased has rendered at least three years of service prior to his death but does not qualify for the benefits under the item (1) or (2) of this paragraph.

(b) The survivorship pension shall be paid as follows:(1) when the dependent spouse is the only survivor, he or she

shall receive the basic survivorship pension for life or until he or she remarries;

(2) when only dependent children are the survivors, they shall be entitled to the basic survivorship pension for as long as they are qualified, plus the dependent children’s pension equivalent to 10 percent of the basic monthly pension for every dependent child not exceeding five, counted from the youngest and without substitution;


(3) when the survivors are the dependent spouse and the dependent children, the dependent spouse shall receive the basic survivorship pension for life or until he or she remarries, and the dependent children shall receive the dependent children’s pension mentioned in the immediately preceding paragraph (2) hereof.

(c) In the absence of primary beneficiaries, the secondary beneficiaries shall be entitled to:(1) the cash payment equivalent to 100 percent of his average

monthly compensation for each year of service he paid contributions, but not less than PhP12,000: Provided, that the member is in the service at the time of his death and has at least three years of service;or

(2) in the absence of secondary beneficiaries, the benefits under this paragraph shall be paid to his legal heirs.

(d) For purposes of the survivorship benefits, legitimate children shall include legally adopted and legitimate children.

SECTION 22. Death of a Pensioner. — Upon the death of an old-age pensioner or a member receiving the monthly income benefit for permanent disability, the qualified beneficiaries shall be entitled to the survivorship pension defined in Section 20 of this Act, subject to the provisions of paragraph (b) of Section 21. When the pensioner dies within the period covered by the lump sum, the survivorship pension shall be paid only after the expiration of the said period.”

A funeral benefit of PhP 18,000 is also extended to members of the GSIS.

II Procedure for seeking compensation

If a worker suffers from a work-related contingency, he/she and/or his/her beneficiaries can file an Employee’s Compensation (EC) claim with either the SSS (i.e. private worker) or with the GSIS (i.e. government employee). Upon receipt of the appropriate documents, the SSS or GSIS has five days to determine if the contingency is compensable. The agencies can also demand additional and supporting documents to make their decision.


If the EC claim is denied, the claimant can file for an appeal by submitting a ‘Letter of Reconsideration’ with the agency where the claim was filed, providing the reason or reasons why the decision should be reversed, within 10 days of receipt of the Denial Letter. If the agency upholds the denial, the claimant can then submit a ‘Letter of Appeal’ to the same agency within 30 days of receipt of the second Letter of Denial. This time around, the agency, within five working days, shall forward all the records of the claim to the ECC.

After the agency forwards the case records to the ECC, it (the ECC) has 30 days to decide on the EC claim. The procedure for the appeal is purely an administrative matter and the ECC explicitly22 discourages workers from seeking attention and services from labour lawyers. If the ECC denies the claim, the claimant can file an appeal with the Court of Appeals (CA). If that court denies the EC claim, the final court to handle the appeal is the Supreme Court.

Below is the guide provided by the ECC on filing EC claims with the SSS:

2.1 Step-by-step procedure for claiming compensation

Guide for filing Employees’ Compensation Claims at the SSS 23

Workers from the private sector who suffer work-connected sickness or injury resulting in disability, or their families in case of work-connected death, may file claims for Employees’ Compensation benefits at the SSS. These benefits are in addition to what the workers or their families are entitled to under the SSS program or the PhilHealth program.

Where is the claims for Employees’ Compensation Benefits filed?

A claim for Employees Compensation benefit is filed with the SSS. It is recommended that the claim should be filed at the SSS office where the company remits their SSS contributions for most likely, it is where the records of the worker and his employer or company are found. Access to the records will hasten action by the SSS on the claim filed.

22 http://www.ecc.gov.ph/ClientPage.aspx?content=523 This is the guide provided by the ECC for SSS members


It is important when filing the claim to clearly tell the SSS personnel at the receiving window that the claim is for Employees’ Compensation benefits.

Are there documents needed to support the claim?

Yes, there are important documents that the SSS will require to support the claim. It is therefore important that you bring along these documents when filing a claim for Employees’ Compensation benefits. The SSS will require that these documents (original) shall be attached to the claim application form. For your protection, it may help if you can have these documents photocopied first and have the photocopies kept on file at home. This is your protection in case the original documents get misplaced later on.

What are these documents needed to support the claim? There are a number of documents that the SSS will require to

support a claim for Employees’ Compensation benefits. The most important of these are:

1. A certificate of employment signed by the employer or his authorized representative. This certificate of employment should indicate the position of the worker when the sickness, injury or death happened. In addition, a description of the actual duties and responsibilities performed by the worker at the time of the contingency is necessary. It is this description of the duties and responsibilities that will allow the SSS evaluator to establish a connection between the sickness, injury or death and the worker’s work and therefore grant the Employees’ Compensation benefits.

2. (If the claim is for sickness benefit) a pre-employment medical check-up done by the company or in its absence, a certification by the company that the worker is physically fit when hired;

3. (If the claim is for injury benefit) an accident report signed by the worker’s immediate supervisor and by the personnel manager in case the accident happened within the company premises. If an accident happened outside the company premises a record of consultation or hospital report is necessary. However, in cases of accident involving a third party, a police report on the accident is necessary;


4. (If the claim is for death benefits) in addition to the above, the following documents are also necessary: a) death certificate; b) marriage contract; c) birth certificate of the deceased worker if single (when necessary); d) birth certificate of children below 21 years of age [all of which shall be certified true copies issued by the National Statistics Office (NSO).

5. A certified true copy of the page of the company logbook containing the entry for the particular sickness or accident;

6. The medical findings of the attending doctor or the hospital records (certified true copy of the original); and

7. A certification of SSS and Employees’ Compensation premium contributions one year prior to the sickness or injury.

Please be reminded that the above documents coming from the

employer or the company should be written/printed on the company letterhead and duly signed by the authorized company official.

With the documents in hand, how will the claimant go about filing an Employees’ Compensation claim?

If the above documents are already available, then you can proceed to the SSS office nearest the place of employment to file the appropriate claim. Theoretically, a claim for Employees’ Compensation benefits may be filed at any SSS branch office. But for immediate action on the claim, we recommend that the claim be filed at the SSS branch where the company is remitting their SSS contribution.

Can a claim be filed even if the documents are not complete?

No. The SSS will not accept the claim if the documents are not complete. However, if the claimant can no longer obtain the documents necessary to substantiate his claim, he must cite the reason/s for his failure to produce the said documents in a letter addressed to the SSS. The said covering letter signals to the SSS to evaluate the claim based on the available documents submitted by the claimant.

When shall the claim be filed with the SSS?

The claim shall be filed with the SSS branch within three years from the date of occurrence of the contingency (sickness, injury or death).


How does one proceed in filing a claim at the SSS branch office?

To file a claim, it is important that you accomplish [complete] the necessary claim application forms at the receiving counter of the SSS branch office. It will help if you seek the assistance of the SSS personnel at the receiving counter. The following application forms should be accomplished [accomplished]:

1. For sickness/Accident claimsEmployees’ Notification (SSS Form B300) Sickness/Accident Report (SSS Form B309) Sickness Benefit Application for separated members (SSS Form CLD-9A)[if applicable]

2. For Death Claim DDR Form for Death (DDR-1) Filer’s Affidavit DDR Savings Account Form Report of Death (EC Form BPN-105)

3. For Disability Claim Death, Disability and Retirement claim from for Disability (DDR-1) Medical Certificate (SSS Form MMD-102) DDR Savings Account Form

4. For Medical Reimbursement Claim (after sickness/accident/disability, death has been approved by the SSS), EC Medical Reimbursement Benefit Application (EC Form B301)[pages 1&2]

Disability or medical reimbursement are additional benefits you can claim after the initial sickness or accident claim has been filed. This is because a worker who gets sick or is injured as a result of work can suffer some degree of disability which may not allow him to report for work temporarily or completely. In which case, for each day of absence from work, the worker is entitled to a daily income benefit. Should the disability become permanent, the worker shall be entitled to monthly disability pension.

In the same manner, even after confinement and release from hospital, the worker may require further medication and therefore can be entitled to medical reimbursement for the medicines needed.

After the forms have been accomplished, what is the next step the worker should do?

The completed forms together with the necessary supporting documents required by the SSS should now be submitted to the receiving counter at the SSS branch office. It is suggested that when


submitting the forms, you inquire from the concerned SSS personnel if all the requirements have been met and what further instruction/information from the SSS you may need to know. It is important that all the instruction/information are properly complied with to avoid further complication on the claim filed.

After the filing and acceptance of the application form by the SSS, what will happen next?

The application will be processed by the SSS in due time and if the sickness, injury or death is found to be work-connected then you will be accordingly informed about it and the benefits accordingly granted.

If the documents are not complete or insufficient for the SSS to come out with an objective evaluation of the claim, you will also be informed about it and maybe asked to submit additional documents. It is important that this additional requirement be complied with immediately.

If after the thorough evaluation, the SSS evaluators cannot establish a connection between the sickness, injury or death with the work of the worker, then the claim will be disapproved [i.e., not approved] and you will be accordingly informed.

Normally, the SSS will evaluate the claim and come up with a decision within 20 days from filing and submission of complete documents.

If the claim is disapproved by the SSS branch office, what option is open to the worker or his/her family?

A claim for Employees’ Compensation benefits disapproved by the SSS branch office may be reviewed by the SSS, Medical Operations Department, East Avenue, Diliman, Quezon City.

If the claim is again denied by the SSS Medical Operations Department, what shall the worker or his/her family do?

A claim for Employees’ Compensation benefits disapproved by the SSS Medical Operations Department may be appealed to the Employees’ Compensation Commission if you firmly believe that the sickness or injury was the result of work of the working environment. The appeal can be made in a simple letter sent to the Employees’ Compensation Commission.


2.2 GSIS

Guide to claiming benefits under the GSIS 24 25

This guide and thus the procedure for seeking compensation under the GSIS is substantially the same as that for seeking compensation under the SSS reproduced in entirety above. However, since this insurance program is provided for workers in the public sector, including the national police and members of the armed forces who suffer work-connected sickness or injury, or their families in case of work-connected death, there are several differences which relate to the nature of those jobs. It is interesting to note that under the GSIS system, there is a small, but important, measure of leniency. The GSIS guide shows the following Q&A:

Can a claim be filed even if the documents are not complete?

Yes. The GSIS will accept the claim even if the documents are not complete. If the claimant can no longer obtain the documents necessary to substantiate his claim, he must cite the reason/s for his failure to produce the said documents in a letter addressed to the GSIS.

According to the guide, the GSIS will evaluate and come up with a decision within 20 days from the submission of complete documents, the same period stated under the SSS system. Lastly if the compensation claim is denied, the claimant can appeal to the GSIS’ Employees’ Compensation Commission, GSIS Headquarters, Financial Center, Pasay City; and if that appeal is also denied, the claimant may write directly in a simple letter to the Employees’ Compensation Commission.

III Challenges and barriers in compensation system

3.1 Too many hurdles

The list of requirements necessary for filing compensation cases in itself is a labyrinth for any worker wanting to pursue proper compensation. In first glance, the list seems easy to fulfill, but anecdotal

24 This is the guide provided by the ECC for GSIS members 25 http://iohsad.org/guide-how-file-claim-employees-compensation-benefits-gsis


evidence presents a different story. Employers resort to stonewalling tactics to prevent workers access to such documents, including invoking reasons such as protecting trade secrets to prevent the worker from getting the required evidence.

In a case handled by the Institute for Occupational Health and Safety Development (IOHSAD), Company Doctor A already certified that the contingency of the worker was work-related which was used as evidence for the compensation claim. After this diagnosis by Company Doctor A, the company fired Company Doctor A and hired Company Doctor B, who reversed the findings of the previous doctor and issued a new finding contrary to the first. This was filed by the company to the System as evidence opposing the need for compensation. Expert opinions have a very strong bearing on compensation cases, especially that of company doctors. In the meantime, the worker has to contend with no work and no income.

3.2 Missing pieces

According to Attorney Remigio Saladero, Executive Director of Pro-labor Assistance Center (PLACE), in his many decades of law practice, he never encountered a case wherein an employer was sent to jail due to neglect on health and safety in her or his workplace. The reasons for that are both simple and profound.

There is no jurisprudence in the Labor Code to prosecute employers, who by violating safety regulations, precipitate the maiming and/or death of workers, says Saladero. The only relevant (though very weak) provision is Article 200, which provides the employer pay a certain amount “…in case the employee’s injury or death was due to the failure of the employer to comply with any law or to install and maintain safety devices or to take other precautions for the prevention of injury.” So if a worker dies due to the neglect of the employer, the employer simply pays the fine to the state and there is no any criminal obligation or action prescribed under the Labor Code.

The Labor Code of the Philippines has been updated through the years since it came into effect. However, crucial provisions to protect the well-being of workers remain absent. It is a mere slap on the wrist if a worker dies due to neglect of the employer. Impunity was the word used by EILER to describe the situation26. On the other hand

26 EILER. “Human Rights Day: Kin of Eton tragedy victims hit labor violations impunity.” 10 December 2012.


in Australia, if the employer’s conduct substantially contributes to the death of the employee, he will be charged with industrial manslaughter and is liable for a maximum prison sentence of 20 years27.

With the Philippines having such a toothless law, instead of encouraging employers to maintain strict adherence to safety standards to protect their workers, it creates the opposite effect.

3.3 The elephant in the room

In many ways the system and programmes in the Philippines are exhaustive, apparently providing a safety net for the Filipino worker and his or her family. However, the scope of their coverage is small compared to the need. The number of workers in the informal sector, that is those without any insurance or protection of any kind, is not peanuts. In 2012, the number of self-employed persons was 10.347 million, while those working for a family-owned establishment without pay numbered 3.541 million for a total of 13.888 million. This figure represents 36.9 percent of the 37,584,000 employed in July 2012.

Many informal sector workers perform precarious work, dirty and dangerous jobs, forced to commit themselves to life-threatening jobs just to be able to bring food to the table28 . The International Labour Organization (ILO) says “workers in this sector are for the most part not registered or recorded in official statistics and are beyond the reach of social protection and labour legislation.”

Workers who belong to this sector often do not register with the SSS for a variety of reasons, including the inability to pay the required contributions. Membership figures from the SSS confirm the low coverage of informal workers. Members, who belong to the self-employed category, amount to only 3.348 million, of the 10 million registered as self-employed in July 201229. The self-employed members account for only 32 percent of the total self-employed across the country, with 68 percent or 6,999,034 individuals having no social security.

27 Crimes Act 1900, Section 49C.28 Precarious work is non-standard employment that is poorly paid, insecure, unprotected,

and which cannot support a household as defined by Fudge, Judy; Owens, Rosemary (2006). “Precarious Work, Women and the New Economy: The Challenge to Legal Norms”

29 SSS Facts and Figures, January-September 2012.


When these types of workers suffer disease or accidents, no system is available to them.

Many employers also fail to remit contributions to the SSS. In 2012, the SSS filed charges against 1,400 employers who failed to remit to the SSS. Common also are cases of late remittance by employer, wherein such failure by the employers, including those stated above, affect the release of benefits to the workers, since their contributions are incomplete. Often times, workers have to file labour cases against their employers. When a worker suffers a contingency and no income is coming in, benefits arriving a day late could mean empty stomachs for the family. Compounding this is detailed and cumbersome work of filing the cases and doing follow-ups on their claims, all endeavors that consume time and resources, unfortunately many workers do not have.

3.4 Case Study

ETON Tragedy

At around 11 am on 27 January 2011, 11 workers at the ETON Residences, then still under construction in Makati City in the Philippines, were riding in a gondola from the 32nd floor heading for the ground floor to have their lunch break. As the gondola moved down, the cables holding it snapped, plunging 10 workers to their death. Only one, Ruel Perez, survived the incident.

The 10 workers who died were Joel Avecilla, 24 years old, single; William Banez, 35 and married; Benbon Cristobal, 24, single; Jeffrey Diocado, 54 and married; Jaykie Legada, 25, single; Kevin Mabunga, 17 , single; Celso Mabuting, 29, single; Romyl Perez, 26, single and brother of the lone survivor; Vic Pinon, 22, single; and Michael Tatlonghari, 22 , single. At the time of the incident, there were around 800 workers employed to work at the site.

The Department of Labor and Employment (DoLE) of the National Capital Region immediately conducted an inspection of the worksite after the incident and reported the following findings:

�� Underpayment of wages

�� Non-payment of (regular bonus) 13th month pay

�� Underpayment of overtime pay

�� Non-payment of regular and special holiday pay


�� No registration and therefore no SSS, PhilHealth and PAG-IBIG coverage30

�� Non-presentation of Rule 1020, Registration of the Establishment as provided under the Occupational Safety and Health Standards of the Philippines

�� Non-presentation of Safety Program and Organization

�� No DoLE-accredited safety practitioner

�� No 3rd party inspection for mechanical equipment

�� Non-presentation of permit to operate the gondola

�� No accredited operator for the gondola from the TESDA31

�� Failure to observe the maximum weight capacity of the gondola

�� Unsafe scaffolding

After the incident, the Justice for ETON 11 Network was formed by different organizations, along with five of the victims’ families32 . The families have filed cases in the Labor and Criminal courts against Lucio Tan, the owner of ETON Residences, and other responsible persons of the company.

1) Criminal cases

a) The Makati City police filed a case of ‘Reckless Imprudence Resulting in Multiple Homicides’ against the owners and contractors of the ETON Residences as part of their standard operating procedure (SOP) on 1 February 2011. The case was filed without the knowledge of the families and eventually was dismissed. The families eventually learned of the dismissal and refiled the case. By 25 September 2012, the case was dismissed again on the grounds that it was the workers’ fault that the gondola fell. A Motion for Reconsideration (MR) was filed on 13 November 2012. The motion was granted and the case of ‘Reckless Imprudence Resulting in Multiple Homicides’ is still before the court as of the writing of this report in the first half of 2013.

30 Home Development Mutual Fund or PAG-IBIG. RA 9679 provides all SSS and 31. GSIS members are mandatory members to the PAG-IBIG.

31 Technical Education and Skills Development Authority 32 http://eton11.tumblr.com/


Article 365 of the Revised Penal Code Imprudence and Negligence:

“...[R]eckless imprudence consists of voluntary, but without malice, doing or falling to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such an act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place.”

b) Employment of Minor

Kevin Mabunga, one of the victims, died while he was just 17 years old. He was hired without the company verifying his age. He started working for ETON Residences when he was just 16 years old.

His employment on such a construction site is prohibited under RA No. 9231 An Act Providing For The Elimination Of The Worst Forms Of Child Labor And Affording Stronger Protection For The Working Child, which prohibits by its nature or the circumstances in which it is carried out, is hazardous or likely to be harmful to the health, safety or morals of children.

Because of this law, the family decided to file a criminal case, charging wrongful ‘Employment of Minor’ against the owners of the ETON Residences on 25 March 2011. A dismissal was issued during the last quarter of 2011, with the family filing a Motion for Reconsideration (MR) on 25 May 2012. As of writing, the case is still before the court.

c) Violation of RA 6727

The survivors also filed another criminal case, Violation of RA No. 6727 An Act To Rationalize Wage Policy Determination By Establishing The Mechanism And Proper Standards, Otherwise Known As The Labor Code Of The Philippines, for the underpayment of wages and other wage violation committed against workers of ETON Residences. The case is still in the Department of Justice pending a review.

2) Labour Cases

The families of five victims have filed separate cases of ‘Money


Claims for Under Payment of Wages and Other Benefits’ before the National Labor Relations Commission (NLRC). The first case was filed by the families of three victims, Cristobal, Mabunga and Tatlonghari on 25 March 2011. The same case was filed by the Pinon family on 19 May 2011, while the latest to file the same case before the NLRC was the Avecilla family, which filed their case on 12 February 2013.

The case does not involve any imprisonment if the petitioner wins, but the respondents may need to pay a cash award depending upon the recommendation of the Labor Arbiter.

3) Compensation Cases

As has been stated, all the victims were not registered with the SSS by their employer. Due to the pressure created by the families, the SSS required the employer of the victims to pay the amount which the company should have paid while the workers were still alive and all the victims, belatedly, were eventually registered with the SSS. This belated registration allowed them to access the benefits entitled to active members.

In the case of the family of Benbon Cristobal, he was determined to be entitled to a monthly pension, since he has been working for more than 36 months without his employer registering him with the SSS, with the monthly pension to be paid for a maximum of five years. His child also receives a pension, also to be paid for a maximum of five years. The total sum his employer paid to the SSS in terms of premium contribution amounted to PhP 84,036. In addition to the death compensation, his family has received SSS Burial Benefits of PhP 20,000.

The subcontractor who hired Benbon Cristobal shouldered his burial expenses amounting to PhP 79,650. ETON Properties also gave his family PhP 150,000 as part of the Financial Assistance payment under the Quit Claim. His survivors were not given any compensation by the ECC, as they have decided that only three of the victims’ deaths were work-related and the other eight met their fate through their own negligence and are therefore not compensable. Apparently, only Joel Avecilla, Jaykie Legada and Michael Tatlonghari were authorized to ride the gondola and without the said authorization, the ECC decided that the act of the other eight, who rode the same gondola, was negligent.

I. Occupational safety and health (OSH) in Thailand

Thailand’s industrialisation, which began in the 1960s, gave rise to an expansion of industries in all 77 provinces in the country in the past five decades. In all, 36 industrial complexes were established to pave the way for foreign investment. As the economy has grown by leaps and bounds, industrial workers have become more exposed to hazardous machines and advanced technologies. To minimise costs and to accelerate the production, workers have to bear the brunt of this onslaught with their health becoming more vulnerable and inevitably, a rise in occupational injuries and accidents has been recorded.

Exploitation of cheap labour seems to be common in this cost-cutting age. As a result, workers have to take on many jobs at the same time to catch up with the rapidly rising cost of living. They have to work harder and can care too little about the impact on their health at present and in the future. Thus, a deterioration in the mental and physical health of workers, losses of organs and even lives, as well as the loss of the ability to work and other impacts even on the workplaces have occurred. A positive quality of life is something immeasurable and cannot be replaced by any other benefits.

One of the most horrific work-related tragedies took place in Thailand on 10 May 1993, when Kader Doll factory in Nakhon Pathom, a suburb of Bangkok, was engulfed in fire and later collapsed causing 118 deaths and 469 injuries among the young workforce there. Since then, there has been a growing awareness in the state sector, NGOs and workers. The government was pushed to declare 10 May as the annual National Work-Related Safety Day. A cabinet resolution, made on 26 August 1997, emphasizes the tragic results of the Kader fire and puts the spotlight on the importance of occupational safety and health.

1.1 Overview of OSH in Thailand

Cumulative statistics of occupational injuries, death or disabilities among workers who have drawn on support from the Workmen’s

ThailandBy Somboon Srikomdokcare


Compensation Fund (WCF) in the past ten years (2002-2011) show that;

1) Workers suffering work-related injuries: 1,836,411 persons

2) Workers dying or disappearing at work: 7,710

3) Workers getting disabled on the job: 148

4) Workers losing organs: 30,370

According to the report of the Workmen’s Compensation Fund 2011, among a total 8,222,960 workers employed in 338,270 workplaces and covered by the WCF as of 31 December 2011, the number workers suffering from work-related injuries was 15.76 per thousand. Of these 4.61 in every thousand suffered from severe work-related injuries. The top ten industries where workers are the most vulnerable to work-related injuries are construction, food and beverage production, electronic appliance and automobile trade, plastic production, casting, metal lathe, restaurant, hotel, automobile parts, automobile accessories, construction material sales, modern trade and retail.

Each year, about 1.5 billion baht is paid in compensation for sickness, injuries, disability, death or disappearance of workers. The compensation, of course, is not comparable to either the physical or mental loss suffered by the workers. These are losses of precious human resources, both a visible and an invisible production cost. As a result of the injuries, the workers stand to lose their good quality of life. And in the end these statistics could be just the tip of the iceberg. It is very likely that there are many more unknown cases. The problem becomes more or less a time bomb in our society.

1.2 Legal framework of OSH -- Laws and regulations

There are 18 laws and ministerial regulations on occupational safety and health that have been issued by the Ministry of Labour. These include the Labour Protection Act B.E. 2541 (1998), the Labour Relations Act B.E. 2518 (1975) and other laws such as those concerned with the use of child labour. In addition, Article 44 in Part 6 “Rights and Liberty of Engagement in Occupation in Chapter III, “Rights and Liberties of Thai People” in the nation’s constitution, stipulates that “A person shall have the right to receive the guarantee of personal safety and security at his or her place of work, including the guarantee of life

Country Report: Thailand 213

security both during and after his or her working period, as provided by law.” However, the provision seems to be lacking something, since it takes a defensive rather than pre-emptive and preventive approach to a worker’s welfare.

1.3 Workmen’s Compensation Fund Act, 1994

Thailand’s Workmen’s Compensation Fund was the brainchild of some technocrats in Department of Labour during the time Thailand was ruled by military dictators and employees were vulnerable to exploitation. Invoking the Revolutionary Notification No. 103 which provides for overall labour protection, the Workmen’s Compensation Fund has been enacted to provide for compensation in the case of accident, sickness and occupational injury.

The protection provided by the “Workmen’s Compensation Fund” is described in Article 3 of Revolutionary Notification No. 103, dated 16 March 1972. It authorized the Ministry of Interior to issue ministerial regulations on labour protection dated 16 April 1972. In Chapter 6, the responsibilities of employers are spelled out, including the provision of compensation to workers affected by occupational hazards.

In the beginning during 1971-1972, the Workmen’s Compensation Fund applied to workplaces with 20 or more workers and only those based in Bangkok. On 1 July 1988, the protection was gradually expanded to cover all other provinces, and as of 1 October 1993, workplaces with less than ten workers have been covered.

After the Social Security Act of 1990 came into force, the DoL sought to exclude Workmen’s Compensation Fund from the MOI’s ministerial regulations and proposed that a specific compensation law, the 1994 Workmen’s Compensation Fund Act be enacted. As a result, the Office of Workmen’s Compensation Fund falls under the Social Security Office and later procedures concerning contribution rates, the collection of contributions, assessment and disbursement of compensation have been issued to provide for employees affected by occupational injury or sickness in order that they receive proper compensation to cover the medical treatment and rehabilitation until they are able to resume work.

TheWorkmen’s Compensation Fund Act was amended to extend its protection to workplaces with less than ten workers or from one worker upward, together with the Social Security Act on 1 April 2002. According to the law, each worker is entitled to the following benefits;


yy Prompt treatment shall be made available by an employer to provide an employee affected by occupational health [hazard].

yy The employer is required to pay for the actual medical expenses incurred, but no more than the ceiling fixed in the Ministerial Regulations. And if it is required that the worker needs rehabilitation in order to be able to resume his or her work, the employer is obliged to provide for that according to the criteria, method, and rate specified in the Ministerial Regulations.

yy If the worker suffering from an occupational illness or injury, dies or disappears, the employer is required to provide compensation, at a rate of 100 times the minimum daily wage as specified by the Labour Protection Law.

Under Article 20 when the employee suffers from an injury or sickness or disappears, the employer shall pay the monthly indemnity to the employee or the entitled person as the case may be at the following rates of compensation:

(1) At a rate of 60 percent of the monthly wages where the employee is unable to work for more than three consecutive days, notwithstanding such employee has or has not lost an organ (See (2) below), with the payment to be made from the first day the employee is unable to work until and throughout the time he is unable to work but not exceeding one year.

(2) At a rate of 60 percent of the monthly wages where the employee has lost certain organs of the body; the payment shall be made according to the category of the organs lost and the period of payment as prescribed by the Announcement of the Ministry of Labour and Social Welfare, but not exceeding ten years;

(3) At a rate of 60 percent of the monthly wages where the employee suffers from disablement, the payment shall be according to the category of disablement and to the period of payment as prescribed by the Announcement of the Ministry of Labour and Social Welfare, but not exceeding fifteen years.

(4) At a rate of 60 percent of the monthly wages in case of the death of the employee or his or her disappearance, within eight years.


II. Barriers and challenges

The three cases below highlight the struggles workers face in demanding legal compensation and detail civil litigations that have been launched to secure their rights.

Case study 1

A 42 year old male worker lived in Tambon Nong No, Muang District, Maha Sarakham. Currently divorced, he lives with his two children, a 14-year-old boy and a 10-year-old girl. He also has to look after his parents. He started working in a factory assembling electronics parts on1 June 2007. Prior to this work, he suffered from no diseases, chronic or otherwise. The factory, which was owned by Koreans, is located in Tambon Ban Bung, Ban Bung District, in Chonburi, south of Bangkok. He has worked there for more than three years. Working from 8:00 am to 17.00 pm, he earns 180 baht a day plus fringe benefits, including 20 baht a day for food and 300 baht a month for transportation. His job is to dispose of toxic waste from the production and maintain the cleanliness of the machines and factory. He is supposed to collect all the chemical waste from electronics parts production and dispose of it in a generic dump site. He also needs to look after the cleanliness of the compound and remove any waste left on the site.

No protection gear, such as gloves, safety glasses, or even a mask, was ever given to him. He has no idea what kind of chemicals he is handling or if they are toxic and dangerous. No attempts have been made to educate him, though it turns out that most of the waste is chemicals, much of which are listed as dangerous and found on material safety data sheet (MSDS):

(1) Product name, GX-3787-6 Silver: For use in industrial colour paint. In terms of danger and toxicity, if inhaled, it can cause nausea and headaches; if exposed to skin, it can cause irritation immediately and in a long run, it can cause headaches, nausea and the loss of sensory abilities.

(2) Product name THINNER 702 FOR PAINT: For use in industrial colour paint. In terms of danger and toxicity, if inhaled, it can cause disruption of the respiratory system and affect the liver and kidneys. If exposed to skin, it can cause drying of the skin and skin irritation. If consumed, it can cause irritation to the digestion system causing nausea, and destroying the nervous system. In the


short term, the affected person will sustain headaches, nausea, fatigue, dizziness and depression, and in the long run, if exposed to the skin, it can destroy the central nervous system causing anaemia and liver and renal failure.

(3) Product name SOVENT T-980,927,945,640,647: For use in screening. In terms of danger and toxicity, if inhaled, it can cause irritation to the respiratory system as well as cause liver and kidney failure. If exposed to the skin, it can cause drying of the skin and skin irritation. If consumed, it can cause irritation to the digestion system causing nausea, and destroying nervous system. In the short term, the affected person will sustain headaches, nausea, fatigue, dizziness and depression, and in the long run, if exposed to the skin for a long time, it can destroy the central nervous system causing anaemia as well as liver and renal failure.

In the late 2008 and early 2009, this worker started to develop allergic reactions to the chemicals and symptoms appeared on his body. It mostly occurred on parts of his body not covered, such as his arms, feet, hands and face and other parts of his head. Blisters appeared on all the exposed parts of his body causing him to itch and these parts of his skin became very painful. Particularly on a hot day, these affected areas would itch and he scratched these affected areas, causing abrasions to appear, which developed into sores which would seep with pus. The areas of his body covered by his clothing were fine. Later, he found that he could not sit still, and then when working, he would suffer blurriness of vision and headaches, and had to seek medicine to cure himself.

This worker was clearly suffering from an occupational hazard detrimental to his health, and he was not provided with any protective gear and had no education or training regarding occupational safety. Also, the working environment was far from being sanitary, and it made him prone to suffer from diseases. For example, there was no ventilation system in the factory, and no waste water treatment system; the chemicals were not kept in safe storage and the containers in which they were kept were prone to leak. No protective gear was given to any of the workers at this factory, and no occupational safety education had ever been given to him.


The problems and barriers that this worker encountered include;

(1) No help was provided by the workplace (2) This worker was sacked on 30 May 2009 and given three months’

severance pay (3) His employer did not apply for compensation for this worker. (4) The worker had no idea about the Workmen’s Compensation

Fund and its procedures. (5) When he went to hospital for treatment under his registered social

security scheme, the doctor who diagnosed him failed to mention in the report of examination that he suffered from exposure to chemicals during the course of his work, causing severe irritation to his skin and damage to his central nervous system.

(6) Out of a job, he could not find another place which wanted to hire him. With no income and as breadwinner for his family with two children, he was subjected to discrimination and isolation.

(7) WEPT handled a complaint made on his behalf from our core member in Rayong and helped him to gain access to his rightful benefits from the Workmen’s Compensation Fund.

These pictures show the difference between the parts of his body which were covered and those that were not covered and directly exposed to the chemicals.


Case study 2

This case study involves a 50-year-old female worker from Nakhon Pathom, married with no children of her own, but with one adopted child. The child is now six years old. In 1999, she started working in a fabric factory and had been working there for eight to nine years. The factory, which employs more than 100 workers, operates one shift from 8 am to 5 pm. However, with overtime, workers might work until 8 pm in the evening. There was only one day off a week, Sunday.

She began working in the section in which she and her colleagues had to carry a large press to make patterns on the fabric. The press is an iron rectangle, about 40 cm by 100 cm. She earned about 700 baht a month in the beginning. After three years, she was moved to the packaging section. She had to sit a lot to fold the fabric and insert it into its package. About 70 workers were employed in the section and each earned about 6,000 baht a month.

Her occupational sickness was caused by having to sit close to other sections and be exposed to the toxic discharge from the process of fabric dyeing and drying. Thus, in addition to the heat and dust in the factory, she also was fully exposed to the chemical vapours. After working there less than a year, she started to develop a rash on her limbs, shoulder blades, abdomen and back. The irritation, causing an itching sensation, was very severe. She went to see a doctor who only prescribed some pills to help reduce the pain. After the medicine was gone, the itching returned. What had been just small patches of rash got worse and appeared on many parts of her body easily visible including her elbows, knees and ankles. The lesions kept expanding. Inside the factory, there was no ventilation and no proper facilities to store the chemicals. No adequate protective gear was provided to the workers. No instruction was given to them about occupational safety

The pictures (above) show the worker’s skin allergies to the chemicals.


and health (OSH). The doctor simply told her that she suffered from allergies and should stop working.

Problems and challenges encountered by this worker include the following:

(1) No help was provided by the workplace

(2) Her employer did not accept her right to compensation

(3) The doctor who treated her failed to mention in his examination report that she suffered from exposure to chemicals during the course of her work, causing rashes and blisters. It was mentioned only that she suffered from allergies.

(4) The condition of her skin became so alarming that her colleagues and members of the general public would shun her.

(5) WEPT helped her get her benefits from the Workmen’s Compensation Fund.

Case study 3

This case concerns a 41-year-old male worker who lives in Tambon Praeksa Mai in the Muang District of Samut Prakan. His wife had no job, but looked after their two daughters. This worker had been employed by a famous tire company since 1992. The factory is located on Pu Chao Samingprai Road, Samrong District, Phra Padaeng, Samut Prakan. Working there for seventeen years, he worked on assembling the tires and earned 16,570 baht a month. His factory had three work shifts: The morning shift from 6:30 am to 14:30 pm (with a break from 09:00 to 09:45 am); the evening shift from 14:30 pm to 22:30 pm (with a break from 17:00-17:45); and the night shift from 22:30 pm to 6:30 am (with a break from 01:00 to 01:45 am). His job was to assemble the parts of the tire.

The incident happened on 7 June 2009 at 17:50, when he suffered severe back pain. Despite that, he decided not to stop working, fearing to lose the pay incentives. Later, he went to see a doctor at Samrong Hospital and was diagnosed as suffering from back pain, though it was not recommended that he stop working. After going to see the doctor several times, it was written in the examination report that he suffered from muscle strain with fractured back bones, and it was recommended that he should not lift heavy objects. Thus, he stopped working and received treatment. He approached the Workmen’s Compensation Fund at his local social security officer in Samut Prakan. He was only


given 30 days wages in compensation. On 15 September 2009, a doctor at the Samrong Hospital put it in the examination report that he suffered from a spinal disc herniation and it was recommended that he rest for seven days from 15-21 September 2009 and receive physical rehabilitation.

The problems encountered by this worker include: (1) The employer denied that the worker was suffering from an

occupational disease and never reported the case as such.

(2) The employer took him to a private hospital to get a diagnosis as to whether he suffered from an occupational disease.

(3) The employee has not received compensation for the loss of income due to this work related accident.

(4) Without the diagnosis of an occupational injury, the worker is not entitled to compensation for the loss of income, which should be 50 percent of his income.

(5) The employer told him to rest and that it was not necessary to show the doctor’s letter to the office. But eventually, he just sacked the worker, claiming that he was absent from work too long.

(6) On 9 October 2009, the employer offered him 100,000 baht, the equivalent of his wages for eleven months and asked him to resign.

Lodging a complaint at the WEPT office


III Analysisandrecommendationsfromthefield

3.1 Recommendations to employees and employees’ organizations:

(a) There should be policy, structure and action plans to provide for occupational health and safety. Responsibilities must be clearly defined among personnel and plans drafted to aid coordinate with state and private agencies.

(b) An emphasis should be placed on giving education, training and access to information regarding factors giving rise to occupational diseases and sickness, the access to diagnosis of occupational diseases, proper medical treatment, access to legal rights as stated under the Workmen’s Compensation Fund Act, and counselling techniques.

(c) A network of occupational health and safety trainers should be established for the exchange of information and experiences to address serious occupational health problems and to enable workers to enjoy fairly their legal rights.

3.2 Recommendations to employers and employers’ organizations

(a) They must act in compliance with the 1994 Workmen’s Compensation Fund Act and report any mishap or accident to the compensation officer at the Social Security Office within fifteen days and send any affected employee for treatment promptly. They should develop a policy and action plan and set aside budget to provide for occupational health. Workers should also be allowed to participate in developing action plans for occupational safety and health in the factory.

3.3 Recommendations to Ministry of Labour and Office of Workmen’s Compensation Fund

(a) Ministry of Labour must see to it that the laws are enforceable and enforced, particularly the 2011 Occupational Safety, Health and Environment Act and to work proactively to monitor the registration of employers to enable their employees to have access to benefits from either the Workmen’s Compensation Fund or the Social Security Act.


(b) It should not take longer than 180 days for the verification process of affected workers under the Workmen’s Compensation Fund, and the appeal stage should not take longer than 90 days prior to resorting to filing case with the Labour Court. It should ensure that workers get the benefits promptly and fairly.

The Ministerial Notification of the Ministry of Labour on medical expenses regulating medical budgets that should be paid for by the employers should be subjected to change at least every five years. The change should be made in accordance with the change in the cost of living. In addition, the duration of disbursement and the calculation of the compensation based on monthly wage should be changed. For example, at present, an injured worker has to be absent at least three days from work in order to be eligible to apply for compensation. The duration should be change to just one day. And the amount of compensation should be 60 percent more than what is currently provided by law. In the case of a disability, the worker should be entitled to compensation for life. In the case of the loss of life, the compensation should be longer than the current eight years.

The process should be redesigned to enable workers at all levels to participate.

3.4 Recommendations to the Ministry of Public Health

Occupational safety and health policies should be set out to

provide for workers in both service and industrial sectors, and the criteria of assessment should be synthesized and streamlined; at present, three sets of criteria are applicable.

3.5 Recommendations to other sectors of the government

National policy and action plans should be set out to enable access to occupational safety and health by workers, as well as enhancing services in occupational safety and health. In addition, a national committee should be set up to integrate policy regarding occupational safety and health, making it more organized and systematic.

An institute for the promotion of occupational safety and health should be set up, in accordance with the resolution of the National Health Committee and the cabinet made on 26 April 2010. It should be mandated to provide for the promotion of the prevention of occupational safety and health, the recruitment of occupational safety


and health personnel and medical doctors in adequate quantity and quality in the long run.

An effort must be made to effectively make workers in various industrial complexes aware and have access to an occupational safety and health clinic and to recruit enough nurses and doctors in occupational safety and health to ensure sustainable services.

Bangladesh

Bangladesh Occupational Safety, Health and Environment Foundation (OSHE) was established in December 2003 by a workers’ initiative as a specialised development organisation to work on issues effecting employment, income, economy, the environment and livelihood of working people. OSHE is an umbrella group for different national and industrial trade unions working together on workplace problems and development issues and based on common understanding, beyond any individual or specific group interest. Repon Chowdhury is the Executive Director of OSHE.

E-mail: [email protected]; Website: http://oshebd.org/

Cambodia

Cambodian Labour Confederation (CLC) is a democratic and independent confederation with 63,880 members from seven associations and unions, including the Coalition of Cambodian Apparel Workers Democratic Union (CCAWDU), Cambodian Tourism and Service Workers Federation (CTSWF), Independent Democracy of Informal Economy Association (IDEA), Farmers Association for Peace and Development (FAPD), Cambodian Food and Service Workers Federation (CFSWF), Cambodian Independent Civil-servant Association (CICA), Building and Wood Workers Trade Union Federation of Cambodia (BWTUC) and others. The mission of CLC is to integrate all unions into a unique voice, uphold democracy, train and research members in social economics, advocate to employers and the government and finally promote equality between men and women. Choeurng Theany is the Youth Committee Coordinator for Cambodian Labour Confederation (CLC). His work involves both technical and political work within the Youth department. Athit Kong is the Vice President of Cambodian Labour Confederation (CLC).

Email: [email protected], [email protected], [email protected]; Website: http://clccambodia.org/

Notes on Contributors


China

Yu Xinhua, author of the China chapter, is associate professor at the Law School of Northwest University in Xi’an in Shaanxi Province in China, and has researched extensively the cases of silicosis victims. He also is a consultant of ANROEV and advises labour NGOs in China.

Hong Kong

Association for the Rights of Industrial Accident Victims (ARIAV) was founded in 1981 as a non-profit charitable organization in Hong Kong. ARIAV was formed by a group of work injury victims, occupational diseases sufferers and the families of victims of industrial fatalities. The association’s aim is to fight for the rights of work injury victims, occupational diseases sufferers and the families of victims of industrial fatalities; to urge the government to improve the standard of occupational safety and health to better protect workers; and to promote awareness of occupational safety and health among the general public of Hong Kong. Chan Kam Hong is the chief executive of ARIAV.

Website: www.ariav.org.hk

India

Occupational and Environmental Health Network of India (OEHNI) is a unique solidarity group comprising victims’ groups, trade unions and civil society groups. The basic role of the network is to work for overall improvement of health and safety at the workplace. It particularly focuses on the unorganised sector. OEHNI and its members provide support to workers through worker education, medical diagnosis and help in the filing of compensation claims, and policy advocacy at state and national level. Mrs. Amruta Sane Medhi is an environmental lawyer at the Mumbai High Court. She holds a Masters Degree in Environmental Law. Her core practice involves consultancy on varied environmental issues at the international, national and state level and environmental cases in the High Court. Since 2009, she has been actively involved in asbestos-related compensation cases. Mohit Gupta is the Coordinator at OEHNI.

Email: [email protected] ; Website: www.oehni.in

Notes on Contributors 227

Indonesia

The Local Initiative for OSH Network (LION) is a non-profit organisation whose vision is for all Indonesians to work without fear of injury or illness in their jobs. LION’s mission is to identify unsafe working conditions and increase awareness of workers, the public, and the government about occupational health and safety issues in Indonesia. LION was launched in Bandung, West Java in 2009 by trade unionists, lawyers and labour activists who became the founders and board members of the organisation. Muchamad Darisman has been the Executive Director of LION since 2010, and leads the networks’ activities such as educating and training on OSH, investigating worksites, organising the victims and public awareness campaigns on workplace hazards and occupational diseases. Hanita Susilawati is a board member and lawyer for LION Indonesia, and provides legal aid services for those in her neighbourhood and the community as a whole. Dimu Pratama is the coordinator of LION and Karen Gunderson is a volunteer with the organisation.

Email: [email protected]; Website: www.lionindonesia.org

Japan

Japan Occupational Safety and Health Resource Centre (JOSHRC) is an OSH non-profit organisation supporting victims and their families, workers and trade unions in OSH issues including workers’ compensation. The JOSHRC was established in 1991 and has developed a national network of approximately 30 local OSH centres. Among the centres’ services are providing the necessary information, assisting in negotiations with the Labour Standards Inspection Office (LSIO) and employers, introducing medical and legal experts, and other assistance. JOSHRC also maintains a toll free consultation hot-line (0130-631-202, Japanese only). Sugio Furuya is the Secretary General of JOSHRC.

E-mail: [email protected]


Pakistan

Labour Education Foundation (LEF) was established in 1993 as a non-governmental organisation as an initiative of renowned trade union leaders and human rights and women’s rights activists to organise, develop and advocate for workers’ rights and provide informed input to trade unions and various civil society organisations promoting workers’ rights. LEF has offices in Lahore, Karachi and Mardan, and conducts its activities throughout Pakistan. LEF has been devoting considerable resources to support and enable formal and informal sector workers to organise themselves, develop their knowledge, claim their rights and transform unequal power relations. Khalid Mahmood is the Executive director of Labour Education Foundation.

Email: [email protected]; Website: www.lef.org.pk/

Philippines

Institution for Occupational Health and Safety Development (IOHSAD) is an independent non-profit institution primarily engaged in assisting Filipino workers in the development of comprehensive and self-reliant occupational and environmental health and safety programs. Specifically IOHSAD is a resource centre in the field of occupational and environmental health and safety issues and concerns affecting workers in various industries. It provides technical, material and moral support to the trade unions and their safety committees, to workers’ dependents and to health programs in workers’ communities. Noel Colina is the current Executive Director of IOHSAD and has been promoting workers’ rights for more than a decade.

Email: [email protected]; Website: www.iohsad.org/

Pro-Labor Assistance Center (PLACE) Organised in 2001, the primary work of PLACE is to provide legal services exclusively to the labour sector, the working class or other underprivileged sectors of society, including appearing in court or in front of administrative bodies in representation of a worker; preparation of pleadings, documents and other papers; or giving legal advice to workers relative to the enforcement and protection of their rights. Most of the cases handled by PLACE involve violation of the workers’ economic rights (e.g. labour cases involving dismissals, suspensions, unfair labour practices,

Notes on Contributors 229

or violations of labour standards), but a large part also consists of cases involving violation of the workers’ civil and political rights (e.g. criminal and ejectment cases). At present, PLACE has a work load of about 800 cases and a full-time staff of just four lawyers. Atty. Remigio D. Saladero Jr. is chairperson and Noel Neri is executive director of PLACE.

Email: [email protected]

Thailand

The Council of Work and Environment Related Patients Network of Thailand (WEPT) provides legal aid to injured workers as well as providing OHS information and training. It also pursues OHS reform through the setting up of an independent OHS institute. Mrs. Somboon Srikhamdokae, the current president of WEPT, is a byssinosis patient herself and since 1974 has been helping injured workers organize for better compensation and workplace conditions. Her organisation also has been active in organising workers as well as communities affected by industrial hazards. Email: [email protected]; Website: www.wept.org

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