Everyone has a part to play in occupational health and safety | Mark Gauci

In 2018, you commented that “since 2002, the date of inception of OHSA, fatalities had significantly decreased from an average of 12 per year, to an average of four.” Since then, however, the rate of workplace fatalities seems to have increased substantially. Last year, it stood at eight; and six workers have so far died as a result of accidents, in 2022…. which places us more or less with the same average of ‘12 per year’, of 20 years ago. Wouldn’t you say, then, that the ‘increase in workplace fatalities’ is more than just a popular perception?

First of all, it is important to distinguish between the ‘rate of workplace fatalities;… and the number of workers who actually die in accidents each year. Those statistics are not interchangeable.

When we talk about ‘six, ‘eight’, or even ‘ten’ [fatalities a year]… we are talking about numbers. But one has to view those numbers within the context of the size of the working population.

When OHSA was established in 2002, Malta’s working population stood at around 150,000. Last year, it was close to 300,000. So, the amount of people actually working has more or less doubled in size, over the past 20 years. And that is why it is important to consider the rate - i.e., the number of occurrences (in this case, work-related fatalities) per 100,000 employees – rather than just the raw figures alone.

So when we say that ‘the rates are going down’, we are referring to the number of fatalities, within the context of this increase in working population.

Another important point is that when we collate data, we also include all those accidents which involve workers, but which technically fall outside the applicability of the OHA Authority Act. For example: although the raw number of fatalities has gone up this year, that number also includes three employees who lost their lives while driving.

There was a food-delivery driver, killed when a truck overturned on Aldo Moro Road in Marsa; there was a Go employee, who was fatally hit by a vehicle while riding a motorcycle on a work-errand… and these are accidents which fall outside the OHSA’s direct remit: even though we do raise concerns about safety, in this context. These are, after all, ‘workers at work’… and they need to be protected, too.

But, technically speaking, there is very little in the way of tangible steps that the OHSA can take in such cases. We cannot control the prevailing situation on Malta’s roads, at the particular point when such accidents happen… and neither can the employer…

At least one of the cases you just mentioned involved a ‘platform company’; and one of the criticisms levelled at such companies is they do not technically ‘employ’ anyone at all… in the sense that their delivery-men will actually be registered as ‘self-employed’. Does this have a bearing on the problem you just mentioned? Does that sort of employment relationship make it harder, for instance, to enforce OHA rules?

Not really, no… because we don’t just deal with ‘employers’, as such. We are concerned with the health and safety of workers, across the board; which also means that – where necessary - we have to deal with employers, yes; and when it comes to the self-employed, we deal with them, too. 

Nonetheless, the platform economy is a hugely problematic area. What is really worrying, in such instances, are the conditions of employment; and the work-relationship between the person who is assigning work; and the person who is actually doing the work.

If we are talking about ‘bogus employment’, for instance – one of the many terms used to describe the practice you mention – then it means that the ‘self-employed’ person, would not actually be ‘self-employed’ at all. They would be functioning as ‘employees’… only without the benefits, and protection, offered to employees at law.

Now: I’m not saying this is necessarily the situation with certain companies operating in Malta… but the situation certainly exists; not just here, but everywhere. And it’s not the only problem area, either. Another issue concerns ‘letter-box companies’ – so called because they ‘post’ their employees to different countries; often in a way that the company itself cannot even be traced. 

As an aside:  there is a lot of reference, nowadays, to food-delivery companies. But the problem in not limited only to those. There are many other companies which make use of similar recruitment practices – in the catering and hospitality industries, for instance; or in healthcare (especially in the private sector).

All of these make use of the same model; so unless the model itself is addressed… an entity like the OHSA will always have to be in ‘fire-fighting’ mode: dealing with each individual case as it arises, but not with the source of the problem, as a whole.

And the problem does need to be dealt with at source: because otherwise, we would be reduced to a situation of merely ‘chasing shadows’…

Let’s go back to the latest NSO statistics: which reveal that construction accounts for the highest incidence of fatalities; followed by manufacturing, and other industries. Inevitably, ‘accidents on building-sites’ tend to be more ‘visible’, than whatever happens behind the closed doors of a factory. Is this another case where the public might be over-inflating the role of construction? Or is there really a significant problem, with that particular sector?

First of all, construction is recognized as a high-risk problem everywhere in the world; not just in Malta. We do, however, recognize that there is a problem… if nothing else, because there is so much construction going on. Recent data published by the Planning Authority showed that the number of new projects has tripled, over the past three years.

The manufacturing sector, on the other hand, has not increased by anywhere near the same proportion. In fact, if I’m not mistaken, it has actually decreased, slightly…

So effectively, not only has there been a higher increase, in a sector that is already ‘high-risk’ by definition; but the number of workers in this sector has also proportionately increased…

… if I may butt in: it’s not just the number of new developments that has increased; but also the sheer scale, and size, of such projects. Doesn’t that also contribute to the existing health and safety risks?

Well… yes, and no. It is certainly a factor: because, for instance, there are more high-rise projects going on; and the risks associated with high-rise are obviously greater.

Then again, however: normally, this kind of project would be handled by the larger construction companies… whose attention to health and safety requirements tends to be greater than that of smaller companies: and especially, of construction work that is contracted out by individuals.

Because another thing to bear in mind is that the term ‘construction’ – insofar as the regulations are concerned – is not limited only to the actual building of any given project. It also includes such activities as maintenance; whitewashing a facade; plastering, tiling, roofing, and so on.

So, apart from the three-fold increase in the number of buildings going up, there has also been an increase in this kind of activity as well. Because naturally, all those buildings will need additional maintenance, and so on.

This is why we always insist that OHSA should not be perceived as the ‘be-all and and-all’, when it comes to accidents on the workplace. OHSA only has a monitoring role, which it carries out by means of regular inspections: not just of construction sites, but also factories, other workplaces… even offices. And this is also why the law itself requires other duty-holders, apart from the OHSA, to be proactive; and assigns them duties, to that effect. 

To give you an idea how the ‘chain of command’ works, in practice: let’s look just at the construction sector, for now.

On any building site, the main responsibilities [for OHA] belong to: the client; the project supervisor (who should be appointed by the client); the contractors; the self-employed workers; and lastly, the workers themselves.

Now: the OHSA cannot know, from beforehand, what is happening on the inside of a building; or inside a shaft. And that is why the law places very onerous responsibilities… primarily on the client, but also on the project supervisor: whose job is to co-ordinate activities between the different sectors; and to ensure that health and safety regulations are being observed.

On our part: OHSA is doing its bit. We have identified where the problem areas are: construction is already a risky economic sector… but the risks are being compounded by – among the things – the utilization of many vulnerable workers…

On that subject: there seems to be a very high prevalence of migrants, among recent construction-related fatalities: often including undocumented (or otherwise illegally-employed) workers. Sometimes, it may take weeks for the victim to even be identified – because, for instance, the ‘chain of command’ itself is often so complicated, that the project manager would have absolutely no idea who the contractors even employed. From your own experience: how widespread is this problem, in reality?

Statistically, such people account for 26% of all accident-victims… almost a third. To put that into perspective: the total Maltese workforce, employed in construction, amounts to much less than one third of the total workers.  So yes: migrant workers are proportionately more at risk, of either dying or suffering injury in workplace accidents, than other categories.

But that is why it is important for someone else to be given the responsibility for health and safety… on site [emphasized]. Let me give you a hypothetical example and once again, limiting myself only to construction (though it counts for other sectors, too).

Let’s say you have a client, who requires construction work of any kind; and he looks for quotations. In most cases, that person would go for the cheapest offer available… and I’m not being critical here, by the way. It is, after all, a perfectly natural thing to do.

Nonetheless: the ‘cheaper offer’ usually implies that health and safety measures will not be taken. Why? Because (for argument’s sake), if you need to plaster the outside of a building… what is cheaper? Surrounding the building with scaffolding – which also needs to be set up according to various rules and regulations – or getting a contractor, who is going to just dangle his workers out on a suspended wooden platform: without any harnesses, without any training, and so on?

So by accepting the cheaper offer, that client would already be ‘by-passing’ his or her obligations, at law, to ensure that all health and safety requirements are met. Already, then, that client is ‘part of the problem’…

And yet, a lot of the smaller-scale construction work that is currently on-going – e.g, a property-owner, who decides to in any way extend, or re-develop, his own property – actually involve ‘ordinary citizens who hire contractors’… and not the larger companies (which you earlier described as more mindful of health and safety issues). Would you say that, too, has been a contributing factor?

I can’t give you a precise answer; but what I can say, is that there are certain modes of working that are considered much safer than others: for instance, using a ‘high-up’, when it comes to doing construction work on tall buildings.

But how many people are willing to go to the expense of hiring a high-up, for several days, so that a worker can come and ‘plaster their façade’ (to stick to the previous example)? How many would choose the more expensive option, over a cheaper one that may expose their workers to danger?

Meanwhile, we are still only talking about the responsibility of the client. What about the project supervisor? Like I said earlier: he should be appointed by the client. So it doesn’t make sense for the client to tell the contractor: “Listen, appoint a supervisor yourself…”

The client cannot so easily divest himself of legal responsibility: because the project supervisor will have to act on behalf of the client – not of the contractor. So if the contractor fails to implement the necessary measures: what is the project supervisor going to do? Take action, against the same contractor who appointed him?

Neither is it sufficient, for a supervisor to go to a place of work once a week, or every two weeks, to draw up a report which includes a number of deficiencies… and then give that report to the client, expecting him to take action.

In the first instance: the majority of clients are not conversant with the legal requirements; nor are they technically qualified, to know what measures should even be taken. Moreover, it is the project supervisor who has the responsibility to take action; and not the client.

And this has a bearing on the recent fatal accidents we have seen on construction sites. First of all, one has to say that all those accidents were ‘preventable’. For example: most were caused by the lack of ‘edge-protection’: either at the edge of buildings, or over open shafts. So in those cases: why did the project supervisor not indicate to the contractor that: ‘We are so many stories up; why is there no edge-protection on this site? Please ensure that this measure is implemented, right away’?

The bottom line, however, is that such accidents can only truly become ‘preventable’, if ALL the duty-holders live up to their legal responsibilities – not just the OHSA; and not just the other agencies and entities that regulate the various sectors involved… but everyone, throughout the entire chain of responsibility.