Health and safety supervisors afraid of losing clients when enforcing regulations

A lack of health and safety culture, in the construction sector and beyond, is one of the key issues concerning health and safety practitioners in Malta.

The government is currently working to restructure the Occupational Health and Safety Authority (OHSA) while introducing new concepts such as a Health and Safety Responsible Officer.

But will these reforms be enough to bring under control the health and safety breaches in Maltese workplaces? MaltaToday spoke with three industry experts to get a feel of what’s going right, and what’s going wrong.

‘No culture of health and safety’

Mario Camilleri, director of AME Health and Safety Services, said that health and safety should be considered a normal part of our lives. “Everywhere we go, wherever we are, we’re surrounded by risks.”

And anything can be a risk in the workplace, particularly on construction sites. A mobile phone can be dangerous as it poses a distraction and, depending on the call, could put a person in an anxious or distressed mood.

Left to right: Adrian Cauchi, George Steve Darmanin and Mario Camilleri

“There have been projects with designated sites for when you want to smoke a cigarette. After you smoke the cigarette, you go and continue your work. If you receive a phone call you go there and answer it there, afterwards you switch off your mobile, put it in your pocket and continue working.”

However, many have remarked on a lack of health and safety culture, particularly in construction. George Steve Darmanin, president of the Malta Occupational Safety & Health Practitioners Association (MOSHPA), said that many health and safety officers are avoiding working in construction because of how lacking the culture is in this area.

“In construction, probably the reason it has taken a hit is because there was a sudden boom,” he said.

He added that there is also a difference between the experience of someone working in enforcement and someone working on site. “In enforcement, you go to a workplace, notice something wrong, and tell them to rectify it. A person working on site tries to do the same thing, but it depends on the culture of the workplace whether it is actually carried out.”

The lack of health and safety culture is prevalent even in the highest of high places. Darmanin recalled working at a company that would sometimes host the President or Prime Minister to inaugurate investments.

“Both the Office of the President and the Office of the Prime Minister would send a form requesting a lot of information, including the size of the podium, how the president and the prime minister will look, what the background will be, what others will wear so that the president and prime minister can dress similarly.”

“This is all understandable,” Darmanin said, “but neither asked for an evacuation plan.”

He added that this is has been standard procedure across all legislatures.

But is it a question of lack of funding to budget for health and safety? Adrian Cauchi, founder of Safety Management Malta, doesn’t think so.

He says there are costs associated with this type of work, and the law helps small businesses in this area by, for example, allowing for a verbal risk assessment when you hire less than five people.

But more importantly: “Companies with no money are unlikely to be in construction,” he said.

Having said this, Cauchi acknowledged that the difficulty in construction has increased. While buildings used to be limited to two or three storeys, the typical building today rises to six or seven floors. Indeed, most injuries and fatalities on the workplace are a result of falls from heights, usually through the lift shaft or from the balcony.

“Changes in design brought new challenges that were never there before. There’s a big challenge with language on site too,” he pointed out.

The reforms in question

Last April, the government launched a White Paper aimed at restructuring the OHSA and increasing penalties against employers caught breaching laws.

Under the proposed restructuring, OHSA will consist of a governing board and a health and safety executive committee.

The executive committee will have the authority and responsibility of implementing the provisions of the new legislation. The governing board will be responsible for ensuring that the executive performs its corporate functions.

The executive committee will also be empowered to issue administrative instruments to regulate OHSA matters.

The new law will see a reform of the administrative penalty system to reduce dependence on the criminal courts. Instead, an Administrative Tribunal will be set up.

The proposed draft suggests a significant increase in applicable penalties. The penalties shall not be less than €1,000, which is currently €466, and not exceeding €50,000, which is currently €11,646, for each offense.

Camilleri is sceptical about the new reforms. “If the law passes, I don’t know how it will succeed.”

The reform speaks of the ‘competence’ of health and safety practitioners, but Camilleri questioned whether there are enough people in health and safety who are as competent in their work as periti and lawyers are.

And while the OHSA is set to go through a restructuring, Camilleri foresees that the authority will stop being so focused on building and construction because a new authority is taking over this role, namely the Building and Construction Authority (BCA).

He also questioned the new penalties that will be in place. “People don’t understand that health and safety laws fall under the Criminal Code, and so the first step is to go to the Criminal Court […] After you’re found guilty, either the victim or the family of the victim as parte civile sues you in front of the Civil Court. That’s where you can be fined millions.”

On the reforms, Darmanin said that there are good amendments that put responsibility on companies and require company directors to have direct responsibility on health and safety. However, there’s a need for new ideas, and he does not rule out that political influence on the authority could be harming the industry.

“Malta is influenced a lot by business, particularly big business,” he said. “And particularly in construction, but not only. The most powerful businesses and those that aren’t afraid to use their power to influence permits and legislation, including on health and safety, is construction. And I have no doubt that they influence politicians, and politicians influence the authority in their work. No one would admit this, but I’m convinced this is the case.”

Beyond structural reforms, Darmanin pointed to a lack of synergy between MOSHPA and the OHSA, particularly when compared to the good relationship the authority has with the Malta Developers’ Association (MDA).

“If you go on the authority website, you’ll find that there was an agreement with the MDA. […]

There’s a certain synergy between them – good. With the developers there’s a certain synergy, but with those who are hired by developers to take care of health and safety in projects, there isn’t the same form of relationship.”

Having said this, Darmanin added that the authority still needs to be an authority and must act when needed. “I understand caution on the authority’s side to building a relationship with MOSHPA. But why be cautious with relationship with health and safety professionals, while feeling more comfortable building a relationship with developers? That worries me.”

“It worries me because, without a doubt, among developers there are those who are part of the problem. They’d say ‘don’t stop this project. This project is employing so many people, and if you stop it for me, I will send these people away without work’.”

The health and safety officer versus the project supervisor

Cauchi pointed out a clash between the legally defined project supervisor on construction sites and the traditional health and safety officer.

“The clash is in what the thing signifies. The health and safety officer is the person, traditionally the officer or policeman, policing the health and safety aspects of things.”

Through Legal Notice 88 of 2018, the project supervisor was given added responsibilities pertaining to health and safety.

Among these tasks are the drawing up of a health and safety plan prior to the setting up of a construction site and preparing a health and safety file. However, the project supervisor is not held liable for breaches, unless the person acted in a negligent manner.

Meanwhile, the health and safety officer holds an executive role at law. These officers are appointed by the OHSA and have the power to conduct inspections and question witnesses.

But the industry is in a bit of a paradox. Project supervisors are both the person who must report any health and safety concerns to the authority but are also the ones who must make sure that there are no breaches in the first place.

By reporting to the authority, they are also self-reporting themselves for failing to prevent breaches in the workplace.

This was highlighted in a court judgment from 2022. While the court acknowledged that a project supervisor can only be held liable for breaches when the person acted in a negligent manner, the court ruled that simply going on site and drawing up reports for clients is not sufficient to fulfil the role of the project supervisor.

Health and safety practitioners afraid of losing clients

Darmanin said that many practitioners are afraid of losing clients, and as a result, sacrifice the integrity of their work.

“There are some who are ready to compromise health and safety in order not to lose money. That’s indefensible.”

This is largely down to contractors and developers being unwilling to budget or make their own sacrifices to ensure health and safety risks are mitigated.

“There are people who lose clients because they comment on the health and safety risks in a given workplace,” Darmanin said. “I know of employers that hire security workers and cleaners that try to conform, but they began to lose contracts as a result.”

Cauchi added that the law needs to help health and safety officers and empower them to deal with ‘bad contractors’.

“A big project should have a health and safety officer on site for a fixed amount of hours per week. It should be in the law. It would remove the price competition and put the actual person physically there. Then it’s an issue of how much that person is paid.”

Darmanin also said that most developers are simply not budgeting for health and safety in their projects. “There are multimillion-euro projects – why spend only €80,000 on health and safety?”

“The price doesn’t automatically reflect quality, but that can be an indication. Does it make sense that a €3 million project only budgeted €2,000 for health and safety?”