Barely 15 years after the enactment of legal notice 281 of 2004, which brought into effect regulations protecting the occupational health and safety of workers during construction activities, the Occupational Health and Safety Authority carried out a legislative review in this area. This had the objective of removing any unnecessary administrative or bureaucratic burdens while strengthening the level of protection afforded to the workers involved.
Whereas the introduction of a particular administrative requirement may sound like a good idea at the time that it is introduced, the practical application of the regulations sometimes indicates that the requirement may not be adding any value to the paramount scope of the legislation, namely the achievement of the highest level of safety possible to workers.
To this effect, such an administrative requirement may not only be considered as unnecessary, but could in fact be hampering compliance by the duty holder.
Whereas some people seem to think that ‘construction’ only refers to the physical act of building something, the construction safety regulations also include many other related activities, which may not in themselves end up with a building (or part of one) being constructed. They include whitewashing, plastering, tile laying, provision of electrical services and other activities ancillary to building.
The 2004 legal notice transposed the European Directive 92/57/EEC regarding the implementation of minimum health and safety requirements at temporary or mobile construction sites.
Thus, any revision of the local regulations had to respect the scope and requirements of the directive. The directive established an important principle involving the client (the person for whom the work was being carried out), namely that the client was ideally placed to ensure that the various obligations placed on other duty holders were fulfilled.
However, the directive and the local regulations never assigned any direct responsibilities regarding occupational health and safety to clients; these remain the absolute responsibility of employers on site (usually contractors) and self-employed persons.
The client had the obligation to appoint project supervisors to, among other things, coordinate the various duty holders on site according to the project plan drawn up by the same project supervisor(s).
Project supervisors are the ones entrusted with the responsibility to ensure that contractors and self-employed persons follow the rules
The new regulations recognise that for low-risk projects involving only one contractor, the obligation to appoint project supervisors was not adding any value to the overall scope of worker protection.
So, OHSA advised the Minister for European Affairs and Equality that a client’s obligation to appoint project supervisors in such instances could be done away with, since the construction site regulations (and other regulations) already referred to the responsibilities of employers (and self-employed persons) to ensure occupational health and safety at all times.
In essence, the new amendments made no transfer of responsibility – they only referred to existing ones under currently enacted legislation and simplified the application of the legislation for non-commercial projects.
The new amendments also highlight the importance of project supervisors, who are the ones entrusted with the responsibility to ensure that contractors and self-employed persons follow the rules, as indicated in the health and safety plan drawn up by the same supervisors.
Project supervisors’ action so far has been limited to alerting a client of shortcomings, expecting the client to take action. This was often resulting in situations where non-technical clients were being expected to take action on matters that which they had no knowledge or competence to deal with.
The OHSA has now addressed this shortcoming in the new regulations by wholly recognising the supervisors’ role and ensuring that they adequately fulfil the tasks entrusted to them.
Concurrently, the amendments also provide for greater protection to the supervisors so that they can perform their duties without fear of retribution, so long as they act in good faith.
The new regulations also include new provisions concerning falls from heights and the erection of scaffolding.
One should emphasise that any regulations issued under the Occupational Health and Safety Authority Act can only deal with matters which affect workers’ health and safety – other issues, including nuisances, public safety, traffic management, land encroachment and civil litigation (among other things) cannot be addressed under the OHSA Act, and the OHSA is not empowered to take action in these instances.
The Occupational Health and Safety Authority firmly believes that the new amendments, which come into force on August 1, will continue to lead to even more progress in the field, as evidenced by declining injury and fatality rates.
Mark Gauci is the chief executive officer of the Occupational Health and Safety Authority.