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Fines for health and safety abuses should be increased – OHSA CEO



Fines for infringements related to health and safety matters should be increased to serve as a greater deterrent against abuses, the CEO of the Occupational Health and Safety Authority, Mark Gauci, said.

The minimum fine that can be given by a court of law when health and safety rules are not observed is €466 which, in this day and age, is too law, Gauci said in an interview with The Malta Independent on Sunday.

This year, there have already been 13 deaths at the place of work, aside from other accidents which left workers in serious condition.

In the interview, Gauci said that the OHSA can “never have enough resources” to monitor all that is taking place in places of work.

“The solution is not to increase the resources for there to be more inspections, but the need to ensure that whoever has an obligation abides by it,” he said.

The OHSA is also working closely with the Building and Construction Authority on a skills card which is something that in the coming years is to become obligatory, and teaches people who are going to be near any construction site about health and safety matters. 

 

Full interview below

 

 

Since the beginning of the year, there have been a total of 13 deaths at the place of work, with many of them happening on construction sites. Are these cases of negligence, misfortune or because the regulations in the workplace are not observed?

When an accident is fatal it can be discussed on various levels. The first is the human level because every accident is going to leave various victims; those who are involved in the accident, together with their family, especially if the accident resulted in a death at the place of work. 

There is also the economic level, because every accident results in some sort of financial loss, for the company involved and the victim himself.

The State also suffers a financial loss. If you have a person who dies leaving their partner behind, they would need to continue receiving the widow’s pension until they pass away.

Negligence is not the only cause of accidents. First of all, we need to emphasise that almost every accident, if not all, could have been avoided.

Some accidents could have been avoided if parties were to be more informed on how to prevent them (in this case it would be a lack of compliance with the regulations from other duty holders, not the victim themselves), as health and safety laws put precise responsibilities on various duty holders. 

If we are talking on the construction sector, you have the client who is the person for whom the construction job is being done; the client has responsibilities which ensure an adhering to all measures that need to be taken during the project in question. 

The OHSA has a monitoring obligation that seeks to implement a system to ensure that places of work adhere to health and safety laws.

Although the OHSA cannot be everywhere at every second, the law requires that for every construction-related job there be a project supervisor employed by the client (building owner). 

The project supervisor would be tasked with various health and safety-related checks such as ensuring that the contractor and the workers know what they have to do. He would also need to ensure that they know how to follow certain preventative safety practices, which can minimise dangers at the place of work. 

Health and safety laws apply to every situation where construction works are being carried out, including those not being done in line with planning permissions.

In these cases, the client of the contractor is still required by law to employ a project supervisor if he does not plan on acting as one himself.

In such scenarios the person who has the most responsibilities is always the client and the project supervisor, while obviously the contractors and the workers still have their own responsibilities.

 

So, if there are any fatalities is it only the client who is responsible?

No, the case would need to be investigated to see whether there was any responsibility, or rather the lack of it.

When the client does not employ a project supervisor, they become one in the eyes of the law, meaning that all responsibilities falling under the position, such as doing a mandatory safety plan would be automatically assumed. 

 

Don’t you think that in order to act as a project supervisor one would need a certain level of knowledge?

Today’s modern law assumes that the responsibilities are divided among entities as it does not make sense that the only structure and entity that has a certain responsibility vis-a-vis health and safety is only the OHSA, and hopefully we never go near that model, as the entity would need thousands of inspectors to manage all the sites.

The Authority has other functions apart from monitoring, such as the spreading of information. This is done by using its resources to publish guidelines and other documents that explain the legal responsibilities.

One of the problems identified by OHSA, which needs to be addressed, is that foreign workers make up a bigger percentage when it comes to fatalities and accidents at the place of work. 

The Authority was proactive when these statistics were published, as it started issuing documents which explained the responsibilities and rights of workers. Additionally, these are now being translated into other languages such as Turkish and Serbian.

In total the document will be translated into 12 languages.

But the Authority did not stop there as there are currently ongoing discussions with different representatives from different communities in the hopes of doing awareness-raising sessions for workers.

The OHSA is also working closely with the Building and Construction Authority on a skills card which is something that in the coming years is going to become obligatory, that teaches people who are going to be near any construction site about health and safety. 

Workers who are working in the sector and even those who do not have an employment relationship but would still be on site would need to have undergone the training required to obtain the skills card.

 

In workplaces where there is a high level of danger, should employers be obliged to make an insurance plan so that in case of a fatal accident which might cause a disability, the victim or his family is compensated? 

Laws concerning health and safety are there for the prevention of the accident and so insurances fall out of scope. 

 

Could such an initiative give a push to better safeguard the safety regulations?

If such an initiative were to ever become reality, it should not fall under health and safety laws as the sole scope of health and safety is to safeguard and not to leave these accidents to happen.

On this basis although making insurance policies mandatory would be in the interest of employers and employees, it should not be made obligatory under health and safety laws. If this is ever to be done, it should be under another law.

The current health and safety laws are already very onerous as there are many obligations and responsibilities which are very complex. 

Nowadays apart from the main law, which already has certain hard concepts, you have many regulations, there are nearly 30 different regulation sets.

The laws concerning health and safety are very harsh.

If a person is found guilty, they can be sentenced to prison for a maximum of two years. This has already happened in the past, in cases where negligence at work resulted in the death of a person.

However, it does not mean it should be excluded that the main law is amended in those parts where it resulted along the years that the system is not working as it should.

The minimum fine given by the court with regards to health and safety laws should be higher than the 466 it is today. In this day and age, it would make sense that it is more than this.

A very comprehensive revision exercise is being carried out. A new system of administrative tribunals is also being looked into to speed up the process.

Just to give an example, there are 600 cases which are waiting to be brought before the courts. These cases, some of which date back several years, involve infringements on places of work.

 

Does OHSA have enough resources to take care of all the places it is responsible for, especially since there are now many more construction sites? Have the inspections increased?

The OHSA can never have enough resources. In fact, it wants to offer other services, such as the creation of more guidelines and research, such as what is known as Horizon scanning, which would help identify problems before they come out. 

The nation cannot continue to take the OHSA only into consideration when it comes to accidents in the place of work. The OHSA is a very active entity which does a lot of work; the media should also focus on other duty holders to see what they are doing. 

Many people think that the simple solution is to increase OHSA’s resources. Presently it has 12 officials who monitor different places of work. With the 12 we have we are currently doing around 4,000 inspections a year, if these are going to be double, we can do 8,000 but you have to take into consideration the number of workplaces you have.

In the last 10 years the number of permits handed out by the Planning Authority has tripled meaning that the OHSA has three times the number of construction sites that it needs to monitor.

The number of places of work that the OHSA is responsible for are not only construction sites but also factories where chemicals, asbestos and biological agents are used, which can cause cancers.

The solution is not to increase the resources for there to be more inspections, but the need to ensure that whoever has an obligation abides by it.

When compared to the rest of Europe, Malta is the only country where its citizens ask where is the OHSA when they see, for example, an accident which happens on a construction site.

 

Although there are many accidents, we still see workers on construction sites not obeying regulations. Can members of the public who see this report to the OHSA directly?

Anyone can reach out to the OHSA, through Facebook with photos and they can also call on 2124 7677. Additionally, they can also send an email to [email protected]

Eventually, the Authority will also be having other systems as even its webpage is being redesigned to permit the uploading of videos and photos and complaints.

The OHSA can take action but this always depends on the risk which would have been described by the person filing the complaint.

 

Should the OHSA have more power to act?

The powers of the officials of the OHSA are the same powers that are established by the convention of the International Labour Organisation (ILO), meaning that they are up to standard. Additionally, the OHSA is evaluated by the European Commission. 

The OHSA has already been evaluated three times. It has always resulted that the OHSA is in conformity with established standards. Added to this, a number of good practices adopted by the OHSA were recognised as being good enough to be suggested for other EU countries to follow.

 

For every death that takes place, a magisterial inquiry is held, but journalists never know the root of the cause. Why aren’t these conclusions made public?

The OHSA cannot comment on magisterial inquiries that have not been concluded. The Authority releases a detailed press statement for every magisterial inquiry that ends up in court.

A magisterial inquiry which does not end up in court, as no regulations had been identified (which are rare), should not be reported.

The OHSA does not have any ownership of any magisterial inquiry, as they belong to the Attorney General.

There are many considerations of a legal nature that the Authority pays attention to, such as cases where the sentence is appealed, as it does not want to prejudice the outcome.

 

In 2017 during an interview on with ‘The Malta Independent’, you said that OHSA is a victim of its own success, do you still think so?

Yes, I still do and now I am more convinced than ever.

The OHSA wants people to inform the Authority immediately upon witnessing negligence at the place of work before they publish it on social media as the OHSA does not have the luxury to let someone in front of a computer follow social media posts.

Many people are nowadays posting about health and safety online, because of the many campaigns the OHSA has done regarding the subject over the years. 

In the past these fatalities were not even reported in the newspaper, especially considering that there were no social media available. 

The Authority is a victim of its own success because nowadays there is so much knowledge about the matter that everyone is reporting trivial accidents, whereas other countries limit themselves to reporting fatal accidents.

Such accidents should not be reported in the media as they increase false perceptions that accidents are increasing, which is not true.  

When comparing the first 10 years of work with the second 10 years, the rate of work-related deaths has decreased by half.



https://www.independent.com.mt/articles/2022-09-25/local-news/Fines-for-health-and-safety-abuses-should-be-increased-OHSA-CEO-6736246144 Fines for health and safety abuses should be increased – OHSA CEO

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