Designing RTW and disability management systems in two developing world contexts:

Developments in South Africa and Malaysia, with reference to the UNCRPD

and comparative precedents, including the Australian experience

Marius Olivier, International Institute for Social Law and Policy; Adjunct-professor: Griffith University and

University of Western Australia

Presentation Ninth National OHS Regulatory Research

Colloquium, organised by the National Research Centre for OHS Regulation, Australian National University (ANU), Canberra

Title of presentation: Designing RTW and disability management systems in two developing world contexts: Developments in South Africa and Malaysia, with reference to the UNCRPD and comparative precedents, including the Australian experience

Date: 8-9 February 2011 Venue: Hedley Bull Lecture Theatre, ANU

Historical perspectives and state of system development: Australia, Malaysia & South Africa

Rationale for introduction: Malaysia & South Africa Relevance of UNCRPD Adjusting RTW & DM principles and practices: Malaysia &

South Africa◦ Job placement, employment protection and employer incentives◦ Employer obligations & case management

Reasons for adjusted framework◦ Role of legal system◦ Impact of capacity constraints◦ Stakeholder role/involvement

Comparative, in particular Australian influence Some conclusions

Overview

Developed world perspectives, including the Australian experience

Malaysia◦ Public scheme framework (SOCSO/PERKESO):

centralised approach◦ 2002: Research & investigation◦ 2007: Introduction and gradual development,

after pilot indicating justification for formal introduction

◦ Initially geographically restricted◦ Case-targeting policy

Historical perspectives and state of system development

Malaysia (cont)◦ Case managers critical for success: from 5 (in

2007) to 35 (in 2009) ◦ Other critical success indicators:

Improvement in early intervention Reportedly: high success rate

Third quarter of 2010: 67% (328 persons) of participants who enrolled in RTW programme have returned to the same job with the same employer

Social and cost benefits: Overall, programme benefits outweigh costs by a 4:1

ratio (Azman & Huang); estimated net benefit ratio of 1.43:1 (Azman)

Historical perspectives and state of system development (cont)

South Africa◦ Public scheme framework (Compensation Fund)◦ Employee wellness & employee assistance

programmes: Some large employers◦ 2008: Consultative workshops◦ 2010-: Comprehensive research-based and

comparative study◦ Individualised key stakeholder consultative &

multi-stakeholder workshops foreseen◦ Documented pilot approach envisaged

Historical perspectives and state of system development (cont)

Malaysia◦ Vocational rehabilitation and treatment of

occupational injuries and diseases is a corporate responsibility

◦ Negative social and economic consequences of a system focused exclusively on compensation

◦ Ministerial KPI South Africa

◦ System focused on paying disability/income and medical benefits disproportionately expensive

◦ Inherent value of rehabilitation, disability management (DM) and RTW

◦ KPI of CEO of Compensation Fund

Rationale for introduction

Malaysia◦ Planning and introduction of new system predate

adoption of UNCRPD (signature: 2008; ratification: 2010)

◦ Nevertheless, new system generally compliant with UNCRPD – with specific reference to equality principle

◦ Persons with Disabilities Act (2008) evidently aligned with UNCRPD

Relevance of UNCRPD

South Africa◦ Both the Convention and the Optional Protocol signed

and ratified by South Africa in 2007◦ In addition: applicable norms contained in relevant

regional documents SADC (Southern African Development Community) Social

Charter SADC Code on Social Security

◦ Envisaged introduction of new system embedded in human and disability rights culture

◦ International and regional standards provide crucial benchmarks for the development of an appropriate RTW policy or programme in South Africa

Relevance of UNCRPD (cont)

South Africa◦ Constitutional focus on

International law-friendly interpretation of entrenched fundamental rights, including the right to equality of PWD

Complying with and applying (public) international law obligations

◦ Deliberate attempt to align envisaged system with UNCRPD principles and to involve disability movement as a key stakeholder

Relevance of UNCRPD (cont)

Article 27: Obligation to "safeguard and promote the realization of the right to work, including for those who acquire a disability during the course of employment, by taking appropriate steps, including through legislation." These steps include measures to -◦ Promote vocational and professional rehabilitation, job

retention, as well as RTW programmes for PWDs;◦ Enable PWDs to have effective access to technical and

vocational guidance programmes, placement services and vocational and continuing training;

◦ Promote employment opportunities for self-employment, entrepreneurship, the development of cooperatives and starting one's own business; and

◦ Ensure that reasonable accommodation is provided to PWDs in the workplace.

Relevance of UNCRPD (cont):Key principles

Compliance with the following objectives required: ◦ Promotion of individual autonomy and independence;◦ Involvement of those affected in (relevant) policy-

making (i.e. at the macro-level) and when developing individual rehabilitation plans (i.e. at the micro-level);

◦ Promotion of societal inclusion and participation;◦ Promotion of the availability, knowledge and use of

assistive devices and technologies, designed for PWDs, as they relate to habilitation and rehabilitation; and

◦ Introduction of appropriate training, for both professionals and staff working in habilitation and rehabilitation services and PWDs

Relevance of UNCRPD (cont):Key principles

In particular as far as rehabilitation is concerned, the UNCRPD requires multi-faceted rehabilitation services and programmes which – ◦ involve early intervention and a multi-disciplinary

assessment of individual needs and strengths;◦ support community and societal participation and

inclusion;◦ are voluntary; and◦ are available to PWDs as close as possible to their

own communities, including in rural areas.

Relevance of UNCRPD (cont):Key principles

Malaysia◦ Job placement – hierarchy of preferences

Similar to (at times more loosely formulated) arrangements available in Australian jurisdictions

But: legislative basis absent◦ Employment protection –

Limited provision in Employees’ Social Security Act 1969 (s 53(1) – no dismissal or prejudicial treatment while in receipt of temporary disablement benefit

No explicit provision in Employment Act (1955) and Persons with Disabilities Act (2008)

Several Australian jurisdictions: Extensive and explicit employment protection arrangements legally embedded – in particular, keeping position open for specified time period

Adjusting RTW & DM principles and practices: Job placement, employment

protection and employer incentives

Malaysia◦ Employer incentives

Not explicitly provided for Australian jurisdictions – widespread use of employer

incentives, for example Training or employment allowances (e.g., NSW) Wage subsidies; exemption from costs if injury recurs

(Vic) Wage reimbursements and retention bonuses (SA)

◦ Overall evaluation Limited protective and supportive framework

Adjusting RTW & DM principles and practices: Job placement, employment protection and

employer incentives (cont)

South Africa◦ Job placement

General job retention obligation iro PWDs – Employment Equity Act (EEA), 1998

Otherwise, currently no explicit RTW/rehabilitation-linked job placement obligation, although legislative introduction of same foreseen

◦ Employment protection Prohibition of disability-related dismissals and prejudicial

treatment contained in EEA and Labour Relations Act (LRA), supported by constitutional protection

Limited provision to accommodate in LRA Introduction of explicit statutory interventions envisaged

Adjusting RTW & DM principles and practices: Job placement, employment protection and

employer incentives (cont)

South Africa◦ Employer incentives

Currently not provided for in legislation Explicit statutory introduction foreseen

◦ Overall evaluation Current protective and supportive framework limited Opportunity exists, as part of legislative overhaul

accompanying envisaged establishment of statutory RTW and DM regime, to extend/strengthen some and introduce other appropriate arrangements

Adjusting RTW & DM principles and practices: Job placement, employment

protection and employer incentives(cont)

Malaysia◦ Current employer duties and responsibilities

restricted to co-operating with SOCSO within RTW programme framework

◦ Presently, RTW and DM essentially centrally co-ordinated

◦ Therefore, direct employer obligations are currently limited, given the public scheme roll-out of the RTW programme E.g., case management services provided by SOCSO,

although enterprise-based deployment is foreseen

Adjusting RTW & DM principles and practices: Employer obligations & case management

Malaysia (cont)◦ In contrast, in Australian jurisdictions primary

responsibility for RTW and DM is on the employer (e.g., larger employers have to appoint case managers/RTW coordinator and adopt an injury management plan)

◦ Absence of legislative basis for explicit employer obligations in Malaysia

◦ Innovation: Cooperation by employers regarded as part of their corporate social responsibility (CSR) – This is acknowledged by the issuing of recognition

certificates by SOCSO, which is a criterion for listing on the KL stock exchange

Adjusting RTW & DM principles and practices: Employer obligations & case management

(cont)

South Africa◦ Currently, no explicit provision imposing specific RTW

& DM obligations on employers◦ Some larger employers have employee

wellness/assistance programmes◦ A dual system is foreseen: comprehensive

involvement of larger employers (e.g. appointment of case managers and adoption of injury management plans); for small- and medium-sized employers assistance will be provided centrally

◦ This is in line with similar obligations (e.g. to reasonably accommodate PWDs) within the framework of disability legislation (e.g. the EEA)

Adjusting RTW & DM principles and practices: Employer obligations & case

management (cont)

Normative considerations relevant Malaysia

◦ Importance of human rights and equality principles

◦ And yet, limited RTW & DM provision in the social security, labour law and disability law framework Despite some provision made in the Employees

Social Security Act for physical and vocational rehabilitation (s 57(1)) and entitlement to appropriate appliances (s 57(2)); and

Despite the apparent alignment otherwise of the Persons with Disabilities Act with the UNCRPD (see sections 29, 33 and 36)

Reasons for adjusted framework: Role of legal system

South Africa◦ Some provision for supporting or establishing

organisations/schemes to assist injured employees in returning to work (see s 4(2) of the Compensation for Occupational Injuries and Diseases Act (COIDA), 1993)

◦ Comprehensive policy framework providing a theoretical and principled framework for rehabilitation of PWDs and the adoption of integrated approaches to achieve same But there is little focus in most of these policy

documents on linking rehabilitation to RTW policies and programmes

Reasons for adjusted framework: Role of legal system (cont)

South Africa (cont)◦ Extensive legal protection available to PWDs,

primarily from a human rights perspective Dual focus of the human rights approach

Prohibition of discrimination Adoption of targeted measures – e.g. “reasonable

accommodation”

◦ And yet, currently no explicit RTW/rehabilitation linking

◦ Significant changes to the legal system foreseen, to accommodate RTW & DM framework

Reasons for adjusted framework: Role of legal system (cont)

Malaysia◦ (1) Centralised case management approach – lack

of employers' capacity to implement RTW & DM principles, although enterprise-based case management is envisaged

◦ (2) Emphasis on utilising private service providers (e.g. health service providers) in view of weak public institutions

◦ (3) Case-targeting on the basis of specific criteria

Reasons for adjusted framework: Impact of capacity constraints

South Africa◦ Capacity constraints of many employers will imply

Some measure of centralised roll-out of RTW & DM services

Reliance (also) on private service providers

Reasons for adjusted framework: Impact of capacity constraints (cont)

Malaysia◦ Contracting and accreditation of private (health)

service providers also as a measure to ensure stakeholder involvement

◦ Employers: see CSR and KL stock market listing (above)

◦ Government: Determination to introduce new system; “success” a ministerial KPI

◦ Tripartite representation on SOCSO Board an important tool to ensure employer and union support Despite this, union opposition prevalent; special

measures may have to be taken to address this

Reasons for adjusted framework: Stakeholder role/involvement

South Africa◦ Similar considerations apply◦ In addition, two further considerations

Possible opposition by main trade union federation to be carefully managed, given its politically influential role (official alliance with governing party)

Government and governance: Fragmented institutional and attitudinal perspectives/frameworks a reality to reckon with

Reasons for adjusted framework: Stakeholder role/involvement (cont)

Malaysia◦ Generally: German, Canadian & Australian assistance◦ 2010 International Conference◦ State of the art & internationally recognised tools

Pilot (Finnish tool) Worksite assessment (FSE matching) Injury classification (ICD 10) Assessment of results (international standards tool) Interactive statistics gathering model (based on German

& Australian systems) Web-based system & interactive model – based on

Australian model/system (employer & employee communication with SOCSO)

Comparative influence

Australia: Role of CRS (Civilian Rehabilitation Scheme)◦ Helping with cost/benefit research before pilot

was implemented◦ Case management advice & training◦ SOCSO’s DM services & case management based

on CRS model

Comparative influence (cont)

South Africa◦ Strong comparative emphasis in the development

of the appropriate RTW & DM framework (e.g. research undertaken; possibly study visits)

◦ Learning from experience – the importance of the Malaysian, Australian, Canadian and some European models

◦ Utilisation of existing tools (e.g. workplace audit) and (possibly) training modalities considered

Comparative influence (cont)

Malaysia a role model for the developing world

A well-designed RTW & DM system in South Africa could serve the same purpose

International standards and comparative experiences of other jurisdictions and assistance rendered by the developed world are crucial

And yet, there is need to factor in the particular contexts of developing world realities and socio-economic contexts

Some conclusions

An understanding of the underlying normative considerations obtaining in any given jurisdiction is imperative – in particular in relation to the role of the legal system and stakeholder roles/influence

Adjustments are therefore required to ensure appropriate jurisdiction-specific introduction of RTW & DM

This nevertheless requires extensive reforms at the policy, legislative and operational levels

Some conclusions (cont)