Background: Occupational health laws must recognise the constitutional requirement of substantive equality, and its role in ‘the progressive realisation’ of the rights provided by Section 27.

Objectives: Our main aim is to review current South African occupational health law (vis-à-vis workers’ constitutional rights) in relation to hearing loss. We focus on gaps in the law regarding occupational hearing loss in South Africa.

Method: Our review of legal texts relies on experience as a methodological device augmented by the use of a critical science. Guided by literature or evidence synthesis methodologies, South African primary and secondary laws were reviewed along with unpublished (non-peer-reviewed) grey literature. An established six-step framework guided our thematic analysis. A semantic approach aided the critical interpretation of data using the Bill of Rights as a core analytical framework.

Results: Four themes are discussed: (1) separate and unequal regulatory frameworks; (2) monologic foregrounding of noise; (3) minimisation of vestibular disorders; and (4) dilution of ototoxic agents. The highly divided legal framework of occupational health and safety in South Africa perpetuates a monologic ‘excessive noise-hearing loss’ paradigm that has implications for the rights of all workers to equal protections and benefits. There is a need to harmonise occupational health and safety law, and expand the scope of hearing-protection legislation to include the full range of established ototoxic hazards.

Conclusion: Occupational audiology is dominated by efforts to address noise-induced hearing loss. A ‘noise’ despite the reality of workers’ exposures to a range of ototoxic stressors that act synergistically on the ear, resulting in audio-vestibular disorders.

Keywords: chemical; ototoxicity; occupational health; occupational health and safety law; audiology; hearing loss.

Introduction

In this review, we present an understanding of occupational hearing loss (OHL) in relation to South African health law. Traditionally, a review of any health condition would consist of an epidemiological description augmented with statistics like the size of the affected populations, incidence and prevalence rates, morbidity and mortality rates, and estimated economic burdens and other costs. However, the literature on OHL is characterised by a lack of data. This notch in epidemiological healthcare literature is an artefact of audiology’s history as a healthcare practice, particularly in South Africa (Osewe & Nkrumah, 2018).

Our raison d’être is entwined with the Constitution in Chapter Two of the South African Bill of Rights, which outlined standards for equality and the provision of healthcare services that all subordinate law, policy and administrative actions must meet. Section 9 mandates the state to provide equal protection and benefit to all and disallows unfair direct and indirect discrimination. Further, section 27 mandates the state to progressively realise healthcare rights (South African Government, 1996). In order to understand the functional nature of law, it is first necessary to appreciate the general structure of South African legislation as was illustrated by Collier-Reed and Lehman (2013) (Figure 1):

Occupational healthcare is implicit in public law via regulatory laws and explicit in private law in the employment law sub-branch via the occupational health and safety laws. There are at least 11 laws, within public law (administrative law) and private law (commercial law) branches, requiring occupational healthcare services. In addition, there are regulations, guidelines and codes of practice that expand the number of legally binding requirements. The structure of South African law can therefore be overlaid by laws relevant to our focus, as demonstrated in Figure 2.

There exists a complex legal framework (see Appendix 1) that spans general occupational sectors and specific mining, maritime, aviation, railway, transport and nuclear or energy sectors. The regulations and codes of practice associated with these sectors may refer to workers’ balance and/or hearing functions. Notably, chemicals in the workplaces may be ototoxic (Nakhooda, 2016) or, when combined with noise, exacerbate hearing loss (Moroe & Khoza-Shangase, 2018). Therefore, acts and codes for hazardous substances also bear relevance to OHL. Furthermore, South Africa has two worker compensation acts, namely, Compensation for Occupational Injuries and Diseases Act (COIDA) and the Occupational Diseases in Mines and Works Act (ODMWA). These acts differ in the administration and benefits provided – and indication of these legal and worker compensation frameworks encode or reflect theoretical understandings of what constitutes a hearing loss in the workplace, what etiological factors are responsible for OHL as well as how to measure and manage workers’ hearing. Indeed, and has been previously argued (Pillay, 2001, 2011a; Pillay & Kathard, 2018), such understandings are usually unclear, hidden and not well-understood by audiologists outside of a few basic references to South African National Standard (SANS) guidelines or COIDA. Significantly, this has an impact on worker rights when we consider that these are laws that mandate occupational hearing protections. The question this raises is: how adequately, in this legal quagmire of acts and regulations, is the state realising South African worker rights as per Sections 9 and 27 of the Bill of Rights? Therefore, the main aim of this article is to review current South African occupational health law (vis-à-vis workers’ constitutional rights) in relation to hearing loss. This review focusses on the identification of gaps in the law regarding OHL in South Africa. The intention is to highlight the nature of work, the challenges and opportunities that hearing healthcare professionals – and specifically audiologists – need to pay attention to in post-1994 South Africa.

Methodology

This review is based on our combined experience of over 50 years in occupational health and audiology. Experience used as a methodological device (Daher, Carré, Jaramillo, Olivares, & Tomicic, 2017) is not a thoughtless method lacking theory. Instead, we rooted experience within an old (but relevant) framework proposed by Pillay, Kathard and Samuel (1997) who argued for South African audiologists’ use of a critical science to re-look at inequities. As such, we reflexively reviewed laws with social, political, cultural, gendered, historical and allied contexts related to how knowledge of workers’ hearing has been produced. Methodologically, this facilitated constructing, deconstructing (cf decolonising: Pillay & Kathard, 2015, 2018) and re-constructing new meaning across occupational law. We relied on the inherently subjective (González Rey & Mitjáns Martínez, 2019:21) and useful method of dialogue or critical conversations (Pillay, 2011b). Finally, we read these laws within a political framework (Kathard & Pillay, 2013) to interpret worker rights.

While not designed as a literature review study, per se, we were influenced by evidence synthesis methodologies to review South African primary and secondary law. The first author, an occupational health and safety expert, identified relevant acts, regulations and codes of practice. Selected for their current relevance in South African law, these laws refer to various occupational sectors, and they contain references to noise, hearing, vestibular disorder, dizziness, vertigo, giddiness, nystagmus, Ménière’s disease, radiation, pressure and barotrauma. Notably, we excluded laws applicable to the South African National Defence Force and the South African Police Services because of their unique legislation and compensation laws. We identified a lot of grey literature (unpublished or non-peer-reviewed legal documents) to enrich our analysis. We made sense of what we read using Braun and Clarke’s (2006) six-step framework. We familiarised ourselves with the data, followed by a system of coding of selected text towards identifying themes that were then clustered for the development of a conceptual map. We further identified thematic patterns and identified textual extracts. A semantic approach was followed in order to describe the content of current legal data. We then critically interpreted possible implications to the rights of all persons for equal protection and benefit from the law – cross referencing the Bill of Rights as a core analytical framework.

Ethical considerations

The authors confirm that ethical clearance was not needed or required for this study.

Results and discussion

Separate and unequal regulatory frameworks

Occupational Health and Safety (OHS) law is fragmented based on scopes and types that mandate employee’s medical monitoring. Firstly, the division in scope spans three occupational fields: general, mining and shipping – with shipping being further divided, wherein cargo handlers (e.g. stevedores) are covered under the Occupational Health and Safety Act (OSHA) (Republic of South Africa, 1993b) and all other personnel on the ship are covered under the Maritime Shipping Act (MSA) (Republic of South Africa 1951). Therefore, different legislative requirements apply to each group. It must be noted that the MSA dates from the 1950s and lacks an analogous structure and purpose as compared to the OHSA and the Mine Health and Safety Act (MHSA). The MSA mainly has a regulatory purpose to manage, for example, licensing and labour relations.

A second division between the types of law resulted in the separation of regulatory and employment law. The three OHS laws fall within the employment law division, but the laws creating the specific regulator bodies, for example, the Civil Aviation Authority (CAA) falls under regulatory law. While occupational health and safety law is focussed on the creation of safe and healthy work environments, regulatory law is focussed primarily on liability management, and it can be argued that these laws address occupational illness from a tort law perspective where illness is characterised as a result of ‘human error’ (Hutchings, 2017), a risk that must be managed.

In this regulatory and employment division, the following characteristics are critical: (1) codes of practice under OHSA and MSA have a different status compared to the codes of practice under MHSA and (2) the use of exposure limits from other jurisdictions, for example, from the United Kingdom occur – as in the case of the Maritime sector (2007). There are several other characteristics that make the set of relevant legal frameworks unequal, namely:

In summary, South African OHS law is highly fragmented and has been so for over the last 40 years, as commented on by Ncube and Kanda (2018). They explained that these fragmentations have been resulting in duplication of law enforcement roles; a costly waste of scarce resources; and inconsistencies and lack of uniformity in the implementation of enforcement functions. The main outcome is a hampering of progress at safeguarding workers’ health. Our analysis is aligned with Ncube and Kanda’s conclusions that there are four departments (labour, mining, transport and health) creating legislation and five regulatory bodies (aviation, rail, road, nuclear, maritime) creating specific management protocols. The shipping sector does not have any pure occupational health and safety enabling legislation equivalent to the OHSA and MHSA. Overall, it is therefore not surprising that systemic inconsistencies exist for the provision of occupational audiology protections and services in South Africa.

Monologic foregrounding of noise

The current legal doctrine mandating occupational audiology protection is essentially monologic, as its theoretical rationality is centred on ‘excessive noise’ as the only ototoxic stressor and ‘hearing loss’ as the only negative health outcome. For example, NIHL regulation 3 includes exposure to noise and sets the noise exposure limit at 85 dBA (Republic of South Africa, 2003); regulation 8 sets the requirements for a system of environmental monitoring and medical surveillance of ‘noise zones’ (Republic of South Africa, 2003). Similarly, the title of SANS 10083 (South African Bureau of Standards, 2013) is clear about its focus, namely, ‘The measurement and assessment of occupational noise for hearing conservation purposes’ as is the Compensation Commissioner’s Circular Instruction No. 171, entitled ‘Determination of Permanent Disablement Resulting from Noise-Induced Hearing Loss and Trauma’. Similarly, the Diving Regulation Codes of Practice (South African Department of Labour, 2001) cite ‘noise’ approximately eight times and ‘hearing’ or ‘hearing loss’ four times in its text. Chemical and pressure hazards are noted but inconsistently referenced to audio-vestibular disorder risks. In mining, noise-induced hearing loss is prioritised by standards for pollutants, heat and noise (regulation 9, 1996) – specific guidelines for noise exposure management (Department of Mineral Resources, 2003b) and hearing conservation (Standard Threshold Shift) (Department of Mineral Resources, 2016a). The fitness standard uses a pure tone audiometric assessment protocol (Fitness Standards) (Department of Mineral Resources, 2003a). This monologic rationality is echoed in shipping with the MSA and South African Maritime Safety Authority Act (SAMSA) (Republic of South Africa, 1998a) whose regulations and codes of practice emphasise the role of noise and the importance of noise control by focussing on an insistence by Portnet (1994) that one ‘must check the noise level’ alongside the use of ear protection and noise exposure (Maritime and Coastguard Agency [MCA], 2018) or the reduction of noise levels and soundproofing of workstations (MCA, 2018).

The COIDA, by its presumption in Section 66, recognises that disease conditions listed in Schedule 3 are because of an occupational overexposure for which this insurance regime considers compensation. However, ‘hearing loss caused by excessive noise’ is the only specific audio-vestibular disability or disease that is listed.

In summary, the dominant narrative is one of the need to control ‘noise’ exposure to prevent ‘hearing-loss’. It is well-established that chemicals, for example, complicatedly affect workers hearing in the presence of noise (Watts, 2019). Other stressors (pressure, heat, vibration, etc.) also complicate hearing loss (Lie et al., 2016). However, even if noise is the single stressor, then auditory effects are not the only outcome. Suicide, depression, anti-social behaviours – other psychological, social and even associated physiological (non-auditory) effects have disabling, if not fatal, outcomes on workers’ (and their families or social) lives (Basner et al., 2014). Thus, the monologic rationality that dominates the legal discourse results in a violation of worker rights by being selectively protective. This means that these laws indirectly discriminate worker rights. Indirect discrimination is the violation of one’s rights to equal protection because the existing policy disfavours a particular group, without justification. The analysis of the current legal doctrine normalises noise-induced hearing-loss as the standard occupational disability that must be prevented by the measures prescribed by the NIHLR as an example.

The minimisation of vestibular disorders

None of the three legal frameworks address vestibular disorder in any substantial manner, save its inclusion in specific medical testing regimes. Aviation (South African Civil Aviation Authority, 2011), maritime (South African Maritime Safety Authority, 2016) and railway management specification (Southern African Railway Association [SARA], 2011) include requirements and protocols for the assessment of vestibular disorder – with a frequent reference to ‘Meniere’s Disease’, which minimises the recognition of occupational ototoxic agents. In mining, for example, in MHSA regulations 11 3 c (viii), broad statements exist like: ‘…(o)occupational diseases, past or present, including severity’ (Republic of South Africa, 1996) without specific reference to vestibular disorders. Mining regulations prescribe exclusive use of pure-tone audiometry, which is not suitable for detecting vestibular disorder. Similarly, diving documentation, such as the Code of Practice for Off-shore Diving (Department of Labour, 2017), includes statements like ‘…other systems of the body’ and ‘(s)pecific diving injuries and diseases’, which may beinterpreted as including audio-vestibular disorders. In reference to water pressure in the external ear canal, outcomes are noted as ‘…splinting the tympanic membrane, etc.,…’,where vestibular disorders may be included in the ‘etc.’. For COIDA, Schedule 3 (Republic of South Africa, 1993c) lists the wider range of audio-vestibular disorder within broader statements such as ‘…any disease or pathological manifestations…’ caused by the given list of chemical agents, ‘…dysbarism, including decompression sickness, baro-trauma or osteonecrosis,…’ and ‘…(a)ny disease caused by ionising radiation’. The term ‘ototoxic agent’ is not included.

In summary, vestibular disorders are rarely and barely recognised as occupational stressors, which results in selective medical testing, compromising worker rights – as discussed in the implications section.

Dilution of ototoxic agents

Dilution of ototoxic agents refers to the grouping of agents together into a general hazard group. Only the SARA (2011) noted the ‘…(d)elayed effects such as nervous system toxicity, cancer of the lungs or chemically-induced hearing loss…’. The dominant doctrine places known ototoxic agents into a common basket of hazards, for example:

In summary, diluting ototoxic agents into a homogenous etiological ‘phenomenon’ disguises the specific nature of ototoxic agents. This clustering of aetiological factors has implications for what and how workers are compensated. The compensation procedure (stipulated by CI 171) and the absence of any specific reference to other forms of audio-vestibular disorder in Schedule 3 of the COIDA places persons with these disease conditions at a disadvantage. In addition, as none of the regulatory agencies’ medical examination protocols explicitly refer to the legal obligation of Sections 24 and 25 of the OHSA, cases may go unreported to the Compensation Commission. This is, in fact, the committing of an offense in terms of the OHSA. The insistence of a medically simplistic meme of ‘one stressor-one outcome’, rooted to its monologic rationality, is an artefact of biomedical, empirical science that simplifies the complexities of workers’ lived realities. The implications of this are discussed next.

Implications of the ‘one-stressor, one-outcome’ paradigm and worker rights

Three aspects of the current paradigm require evaluation for (1) the provision of reasonable protection in the workplace; (2) how medical surveillance testing occurs; and (3) the compensation for occupational disease. From our analysis above, it becomes apparent that workers are (1) selectively protected; (2) offered selective medical testing; and (3) selectively compensated across occupations for their OHL or disability in South Africa. As noted above, when noise is – legally – the prime ototoxic agent, regulations violate worker rights by being selectively protective. Facilitated by a monologic rationality, the full range of occupational audio-vestibular disorder is Othered outside of noise-induced hearing loss. The lack of reform of the regulation, for example, NIHLR to include other known ototoxic agents is contrary to the mandate to progressively extend protection to all employees including those in non-noisy but oto-traumatic occupations.

Medical testing is then cast as selective. Consider (Employment Equity Act [Section 7] [Republic of South Africa, 1998b]):

Medical surveillance and fitness testing that exclude protocols to determine non-noise audio-vestibular disorders or disabilities are prohibitive. They do not recognise established medical facts regarding the polylogical aetiologies of occupational audio-vestibular disorder.

Selective medical testing is a healthcare mechanism that prohibits the fair distribution of employee benefits and does not acknowledge the inherent requirements of a job. Such medical testing implies that workers are selectively compensated, indicating a form of worker discrimination. Under the Promotion of Equality and Preventi on of Unfair Discrimination Act (Republic of South Africa, 2000b), discrimination is defined as:

In Section 14, the ‘determination of fairness or unfairness’test includes a consideration of the social position of the affected persons and the systemic nature of the discrimination, its nature and purpose. A legal framework, as we have demonstrated, which inadvertently disadvantages or withholds benefits, such as insurance products, from reaching workers for scientifically unjustifiable reasons because of the manner in which the system of occupational health and safety operates will face a serious challenge to be accepted as ‘fair’.

Summary and recommendations

Conclusion

In 2016, revelations of a systemic cover-up of occupational disease in the Silicosis Trial (Nkala and Others v Harmony Gold Mining Company Limited 2016) resurrected the spectre of gross human rights abuse in the workplace. The South African Human Rights Commission (2016) conducted a National Hearing on Unfair Discrimination in the Workplace. The report on these hearings made the following findings:

While this report deals with disability in the workplace, it overlooks: (1) impairments of occupational cause; (2) the fairness of medical fitness assessments; and (3) the need for a review of the OHS law, with special attention to broadening the definitions of occupational disease and the need to establish valid medical surveillance standards. Like all forms of cultural blindness, ours is deep and effort is required to address the gaps and weakness in our OHS law in order to ensure equality to all. This work is urgent noting what Ackermann stated in the Constitutional Court ruling in the National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others (CCT10/99) (1999) case for same sex rights ‘like justice, equality delayed is equality denied’.

Acknowledgements

The authors declare that they have no financial or personal relationships that may have inappropriately influenced them in writing this article.

W.G.M. is the main author who conceptualised, collated and analysed all data and prepared all drafts of the article. M.P. served as a critical reader and reviewed legal references to the theoretical context of audiology practice, education and research in South Africa .

The authors acknowledge The National Institute for the Humanities and Social Sciences (NIHSS) and The Consortium for Advanced Research Training in Africa (CARTA) for providing financial assistance during publication of this manuscript.

Data sharing is not applicable to this article as no new data were created or analysed in this study.

The views and opinions expressed in this article are those of the authors and do not necessarily reflect the official policy or position of any affiliated agency of the authors.

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Original Research

A critical analysis of the current South African occupational health law and hearing loss

Warren G. Manning, Mershen Pillay

Abstract

Introduction

Methodology

Ethical considerations

Results and discussion

Separate and unequal regulatory frameworks

Monologic foregrounding of noise

The minimisation of vestibular disorders

Dilution of ototoxic agents

Implications of the ‘one-stressor, one-outcome’ paradigm and worker rights

Summary and recommendations

Conclusion

Acknowledgements

Competing interests

Authors’ contributions

Funding information

Data availability statement

Disclaimer

References

Appendix 1