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

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by literature or evidence synthesis methodologies, South African primary and secondary laws were reviewed along with unpublished (non-peer-reviewed) grey literature.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.

Introduction 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(Pillay, , 2011aPillay & 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 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
We identified the following major themes: • separate and unequal regulatory frameworks • monologic foregrounding of noise • minimisation of vestibular disorders • dilution of ototoxic agents.

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) (2014) require medical certification without any medical fitness standards. Both work environments contain known ototoxic agents like carbon monoxide and solvents. • Medical surveillance and medical incapacity management protocols are unequal; for example, MHSA is unmatched for its promulgation of standards for exposure, fitness, medical surveillance implementation and management of rehabilitation and return to work. • Sector disparities exist with workers in noisy workplaces benefitting from legislation (e.g. the Noise-Induced Hearing Loss Regulations [NIHLR]) to manage this specific ototoxic agent without similar benefits for those exposed to ototoxic agents, such as chemicals, excessive pressure changes or radiation.
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.
The next three sections, summarised in Table 1, focus on more specific issues:

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 (  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 wellestablished 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 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.  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:  (2); once as 'pulmonary barotrauma' but aural or otic barotrauma is never indicated.
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 audiovestibular 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)  or disability in South Africa. As noted above, when noise islegally -the prime ototoxic agent, regulations violate worker rights by being selectively protective. Facilitated by a monologic rationality, the full range of occupational audiovestibular 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]): (1) Medical testing of an employee is prohibited, unless … it is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirements of a job. (n.p.) 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 Prevention of Unfair Discrimination Act (Republic of South Africa, 2000b), discrimination is defined as: [A]ny act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectlya. imposes burdens, obligations or disadvantage on; or b. withholds benefits, opportunities or advantages from any person on one or more of the prohibited grounds... (n.p.) 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
In summary: • South African workers are exposed to a range of oto-traumatic agents, for example, noise, pressure, radiation in addition to background exposure to a growing list of chemical pollutants (e.g. Matatiele et al., 2019;Niranjan, 2015). • Exposure to these agents (singularly or in combination) may likely lead to a range of audio-vestibular diseases not limited to auditory effects or loss of hearing acuity, per se.
• The loss of audio-vestibular function may lead to dismissal on grounds of medical incapacity. • Current compensation laws will not necessarily acknowledge claims of non-noise-induced hearing losses. • The exclusion of established hearing assessment protocols from the mandatory medical surveillance examinations is irrational and discriminatory.
We recommend: • a critical review of all laws relevant to hearing healthcare (specifically, occupational audiology) intended to broaden the definition of OHL • rationalisation and harmonisation of the OHS law into one system • specific inclusion of audio-vestibular disorders under COIDA • identification of gaps in OHL research such as epidemiological data • development of adjusted standards for: exposure limits including realistic combinations of ototoxic agents environmental monitoring, for example, codes of practice for noise measurement in under-water and deep mining contexts guidelines for the transportation of mine workers in deep-level mining.

Conclusion
In 2016 The report on these hearings made the following findings: • Significant advances and gains made in labour practices since 1994, but unfair discrimination still pervades the workplace • There is a lack of understanding by key role-players as to the meaning and complexity of unfair discrimination in its entirety • There is a lack of awareness and/or sufficient attention paid to other forms of systemic discrimination taking place in the workplace • Many instances and specific manifestations of unfair discrimination continue to occur inconspicuously and remain largely unreported • One of the biggest driving factors of unfair discrimination is a lack of awareness and information.
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)

Civil Aviation Act, No. 13 of 2009
This act under the Minister of Transport is aimed, inter alia, 'to provide for the control and regulation of aviation within the Republic' (Republic of South Africa, 2009). The Director of Civil Aviation, empowered by the CCA, issued the Civil Aviation Regulations (Republic of South Africa, 2011).

Regulations and standards
The Civil Aviation Regulations (Republic of South Africa, 2011).
These regulations incorporate the South African Civil Aviation Technical Standards (SA-CATS).
The South African Civil Aviation Technical Standards (SA-CATS) (South African Civil Aviation Authority, 2011).
This document which contains '…the technical standards (that) contain the standards, rules and requirements which are applicable in respect of particular Parts of the (Civil Aviation) Regulations…' (Republic of South Africa, 2011). The aviation industry has a system of medical fitness certification of personnel, which is specified in the SA-CATS 67. The requirements for the four classes of medical fitness certificates depending on occupational designation and a schedule of protocols for specific medical assessments are given. The Guide for Aviation Medical Examiners (South African Civil Aviation Authority, 2017) acknowledges the International Civil Aviation Organisation Manual of Civil Aviation Medicine (International Civil Aviation Organisation, 2012), which provides substantial information on medical examination protocols for aviation.

South African Maritime Safety Authority Act, 1998
The authority by this act administers the MSA and its regulations and therefore is not under the jurisdiction of the OHSA (Republic of South Africa, 1993a).

Standard
The South African Maritime Safety Authority (SAMSA) has released the 'Operations -Seafarer Certification, Guidance Note, Maritime Qualifications Code, The Maritime Medical Standards Code' (South African Maritime Safety Authority, 2016).

National Railway Safety Regulation Act No 16 of 2002
This act under the Department of Transport aims to set 'safety standards and regulatory practices for the protection of persons, property and the environment' (Republic of South Africa, 2002b).

National Nuclear Regulator Act, 1999
This act falls under the Minister of Energy and is purposed, inter alia, 'to provide for safety standards and regulatory practices for protection of persons, property and the environment against nuclear damage' (Republic of South Africa, 1999).

Via section 47 The Regulations on Safety Standards and Regulatory Practices 2006
Require that a 'comprehensive medical surveillance programme and health register must be established and maintained for all occupationally exposed workers' (Republic of South Africa, 2006). In this regard, the following specifications for compliance have been developed to provide the details for routine medical testing: • 'The RD -011 Requirements for Medical Surveillance and Control of Persons Occupationally exposed

Hazardous Substances Act, No. 15 of 1973
The act aims to 'provide for the control of substances which may cause injury or ill-health to or death of human beings ' (1973).

'Regulations Relating To Group IV 1993' (Republic of South Africa, 1993a)
CAA, Civil Aviation Act; OHSA, Occupational Health and Safety Act; MHSA, Mine Health and Safety Act; MSA, Maritime Shipping Act; COIDA, Compensation for Occupational Injuries and Diseases Act; SA, South Africa; UK, the United Kingdom; NIHLR, noise-induced hearing loss regulations.