Overview
Pursuant to the terms, articles and conventions of the International Labor Organization (ILO) Occupational Safety & Health Convention No. 155, (1981) and the ILO Occupational Health Services Convention No. 161, (1985), the prime responsibility for health and safety of workers rests with employers.
Sierra Leone’s current regulatory framework for occupational injuries dates back to the 1960 Workmen’s Compensation Law, with amendments in 1962, 1969 and 1971. In addition, a plethora of regulations including Part V11 of the Factories Act of 1974 and the recent 2001 National Social Security Insurance Trust Act (NASSIT) govern aspects of industrial injury and disease, financing, notification, investigation and compliance.
The cost, severity and frequency of work place accidents in Sierra Leone has been substantial. Though current statistical figures are not available, a cursory survey of reasons adduced for hospital visits over the last few decades shows an inordinate large percentage attributed to work related injuries and diseases.
The Sierra Leone program is essentially an “at-fault” voluntary employer’s liability system, were an injured worker has to sue his employer or the employer’s liability policy carrier to recover medical expenses and lost wages.
As a tort negligence action for damages, an employer could raise common law defenses, such as contributory negligence, assumption of the risk and the fellow servant rule, to bar or mitigate an injured worker’s recovery.
Need for “No-Fault” Mandatory State Model
The focus of this piece is to highlight and advocate the urgent need for a legislative and regulatory reform of the country’s workers compensation laws, with a goal of transforming the conceptual model from the current voluntary “at-fault” system into a “no-fault” mandatory system.
The inherent endemic problems and barriers driving neglect of worker health and safety are systemic in nature and can only be adequately addressed through a workers compensation program that can also contribute to the improvement of work safety and health practices, so as to limit the need for compensation.
While acknowledging the inevitable difficulties in implementing the no-fault system, none of the barriers would be deemed insurmountable, provided the stakeholders and especially the government are determined to effect change.
A first step in effecting such change is the bringing together of various stakeholders including employers, employees, the chamber of commerce, organized labor, government, healthcare providers and civil society; under the auspices of the Ministry of Labor, Social Security and Industrial Relations and the Ministry of Health to design and adopt a “no-fault” system within a social risk management framework addressing such fundamental issues as:
1) insurance arrangements,
2) compensability,
3) system coverage,
4) benefits,
5) administration,
6) litigation and
7) insurance pricing.
The adoption of a monopolistic or exclusive “state fund” model, requiring workers compensation insurance to be purchased only from the state fund would best be suited for the nascent Sierra Leonean economy and labor situation. Such a system will assure employees of an expeditious remedy, both adequate and certain, independent of any fault on the part of employees and employers. The resultant benefits of improved conditions in the workforce by such State mandated workers compensation insurance program would also result in significant productivity gains.
Core Principles
It is envisaged that the reformed workers compensation law will embody the following core principles:
1) Insure that an employee who sustains an industrial injury will be provided compensation and thus the means of support while unable to work.
2) Insure that the injured worker will receive medical treatment, without cost to the employee, to bring about a speedy recovery.
3) Insure that the injured worker will be compensated through monetary award for any permanent disability.
4) Insure that the dependants of an employee who dies as a result of an industrial injury will be provided with compensation (death benefits) and burial allowance.
5) Insure that an injured worker is not discriminated against by his/her employer because of the industrial injury.
In furtherance of the above principles, legislation should be enacted mandating the creation and enforcement of liability on the part of all employers to compensate their employees for injuries sustained during the course and scope of employment irrespective of fault.
As previously noted, the current adversarial common law remedy, with its inherent requirements of proof involves:
- An intolerable delay and great economic waste
- Provides inadequate relief for loss and suffering
- Operates unequally between individuals in like circumstances
- Is inequitable and unsuited to the labor and social conditions prevalent in Sierra Leone.
Guiding Theory
The guiding theory of the proposed new workers compensation system is that the “risk” of injury to workers in Sierra Leone should be borne by the industries and employers for whom they work, rather than by the individual worker alone. It is intended to create a paradigm shift away from the socialized healthcare system the costs of which continue to be borne almost exclusively by government.
However, despite the initial burden being placed on the employer, the system envisages that the burden will be distributed as part of the cost of production and doing business among the consuming populace. In such a system, society supports the program as an integral element of commerce and industry, rather than through the current government only supported health care programs and plans.
Challenges of Current System
In the current Sierra Leonean system, a key variable in the social cost of workers compensation is the opportunity cost of the premium payments for coverage versus lack of complaince and enforcement of labor laws.
The refusal of a majority of employers to purchase the voluntary employers liability insurance policy, which offers protection against work place injuries, poses a great challenge to the protection of workers in Sierra Leone. Employers, who mostly are sole proprietors or small scale businesses have over the decades taken advantage of the non-existent enforcement regime, the voluntary at-fault system afforded to the detriment of their employees.
Further, the system being skewed in favor of employers, provides no incentive for them to improve employees health and safety conditions. It is postulated that with the introduction of risk assessments, contributions and premiums would be related directly to the risk level of the workplace, thus offering the employer a direct incentive to take optimal safety measures and thus reduce workplace injuries.
According to National Social Security and Insurance Trust (NASSIT) figures in 2006, there are currently registered with the NASSIT approximately 2,924 business establishments with an insured population of 126,749 employees. The 2005 Business Establishment Survey by Statistics Sierra Leone however, reported a total of 11,021 business establishments in their Business Register. These figures when compared with the proportion of Employers Liability/Workmen’s Compensation policies underwritten by the seven major insurance companies in Sierra Leone underscores the need for change.
The policy coverage for employers and businesses, under the voluntary Employers Liability scheme, provided by all insurance companies in Sierra Leone is conservatively pegged at less than a 3 percent penetration of potential employees.
The difficulty of insuring people in the mostly informal sector, that predominates economic activity and provides a large bulk of workers in Sierra Leone posses an especial risk, as these workers are usually employed in very high risk exposure jobs and industries where the lack of protection is likely to have serious health and safety ramifications.
Conclusion
Having established the NASSIT, designed to administer a mandatory social security scheme, providing financial security for employees in the form of Old Age Benefits, Invalidity Benefits and Survivors Benefits, it is but a logical progression at this time that the Ministry of Labor, Social Security and Industrial Relations in conjunction with the Ministry of Health and other line ministries and stakeholders, should embark upon creating and maintaining a monopolistic workers compensation system to address workplace injuries in Sierra Leone.
