Jean Paul Sofia: Here's what the public inquiry recommends

The Jean Paul Sofia inquiry board made several recommendations to address shortcomings in the regulation of the construction sector and enforcement of rules. We went through some of the salient points raised that touch on every aspect of the industry.

READ ALSO: Sofia inquiry report exposes regulatory failures across the board

1. Licensing of contractors

• Newly introduced rules regulating contractors are a good first step but not enough.

• There needs to be a classification of contractors that clearly defines the competence and skills necessary for a person to obtain a licence.

• The classification system will determine whether a contractor, based on past experience, knowhow, type of machinery used, quality of people employed and other factors, will be able to carry out residential, commercial, industrial or other specific projects.

“To those who do not want to understand, a classification system does not mean that everyone can carry out all types of work, but means that work opportunities are determined by skill, competence and training.”

2. Skill card and safety card

• Every person working in construction must have a skill card based on the individual’s skills. • Every person employed by a licensed contractor has to have a skill card.

• The skill card must be obligatory for all workers in the construction industry irrespective of their nationality. It must not be on a voluntary basis as it is today.

• Foreign nationals must have a “working knowledge” of “either Maltese or English” to be awarded a skill card.

“The current situation makes no sense at all because the persons who possess a skill card represent only a fraction of the thousands of people who work in the building and construction industry.”

• The skill card process must be monitored continuously by a committee of officials from the Building and Construction Authority, Identità and Jobsplus.

• People caught working without a skill card should be stopped “on the spot” and the same should apply to contractors employing them.

• The skill card should be accompanied by a safety card.

“If someone is going to argue that these recommendations are rigid and too draconian… they haven’t understood the gravity of the situation which cannot improve with good will alone.”

3. Insurance

• Licensed contractors must be obliged to have an “all risks” insurance policy that covers third party damages.

• Licensed contractors must also be obliged to have an “employers’ liability” insurance that covers workers employed by the company.

• An employers’ liability insurance should be obligatory by law for “all employers” and not just those in the construction sector.

• The Employers’ Liability (Compulsory Insurance) Act passed by parliament in 1974 was never put into force over the past 50 years and it should be revisited to reflect today’s needs. In this way, all workers who suffer workplace accidents will be covered by insurance if the accident is the fault of the employer.

4. Method statements

• The obligation to present a method statement for vetting to the BCA should extend to all developments, including those that are free standing.

• Third parties who live adjacent to a construction site should be given the method statement at the same time this is presented to the BCA. Third parties should be able to make representations with the BCA on the proposed method statement.

• Third parties should also be given the condition reports of their property done by the prospective developer.

• The BCA should publish all method statements approved by it and make them accessible to everyone.

• The vetting of the method statement is a simple check-list with no reference to approved plans. The method statement should include plans approved by the PA and details of the architect’s insurance policy.

• Method statements should be obligatory for all developments, whether these are full development applications or DNOs.

• Method statements should include a geologist’s report whenever the development requires excavation works.

• The requirement for a geological investigation of a site where excavation works shall take place should be re-introduced in the legal notice governing these works.

5. Vetting

• The person carrying out the vetting process for the BCA should be identifiable.

• People employed by the BCA to carry out vetting of method statements, should be covered by a professional indemnity insurance provided by the authority. Vetting should be carried out by experienced architects and not people who lack qualifications or who are clerks.

• BCA should publish a list of people tasked with the vetting process.

“Existing vetting process of method statements does not provide peace of mind and the procedure does not guarantee serious scrutiny and lacks transparency.”

6. Accessibility and onsite notices

• A site notice should include telephone numbers, including mobile phones, of the BCA. The authority has to be accessible 24 hours a day, seven days a week to enable people to file reports.

“If the BCA wants to really be relevant in people’s lives, it has to be close to the people, every day, including weekends, and not be pissed off if people request it to take action because of suspicions that a contractor is doing as they please. Those not ready to bear the cross should move aside.”

7. Nationals building codes

• National Building Codes should be concluded and published “as quickly as possible”. Without them the industry cannot improve its operations.

• Until the National Building Codes are published, the sector should adopt the European Building Codes. These codes are already obligatory for public procurement but these should be extended to other projects.

“It is unacceptable that periti say one thing and the BCA says another. There needs to be a point of convergence somewhere and an established timeline for the conclusion of these codes and their publication.”

8. Health and safety

• Health and safety on the workplace is the responsibility of the developer and contractor. It cannot be that when site safety officers report shortcomings to the OHSA they end up being taken to court on the pretext that they did not do their job well.

• Rules have to change to ensure everyone in the construction sector knows their responsibility to avoid people shifting the blame to others.

• Competent persons acting as site safety officers should have the authority to stop work until any wrongdoing is rectified. Project supervisors, employed by developers, should enjoy protection at law so as not to end up being removed from the workplace because they would have reported wrongdoing or stopped works on site.

• OHSA should intensify its presence on the ground and stop works when health and safety are gravely prejudiced.

9. Third country nationals

• Administrative practices should be revisited and legal changes made to ensure better scrutiny of applications for work permits by employers for TCNs, including effective verification of foreign competency certificates.

“TCN’s working in construction not only do not have a skill card but are almost unable to speak English that is understandable. Their entry into Malta is without practical and real control because Jobsplus rests almost exclusively on what the employer declares in terms of competence and skills possessed by the prospective employee… the impression the [inquiry] board got of Jobsplus’s management of TCNs is one of abject failure.”

10. Inspections on workplaces

• A wholesale rethink is required of how enforcement is carried out. Public entities must be restructured not only through increased human resources but also in how inspections are carried out.

“The site where Jean Paul Sofia died was never inspected by no one, and no authority… there are not enough people and so inspections are scarce. This is bad.”

11. IT and artificial intelligence

• The IT systems of the PA, the BCA and the OHSA should be compatible to be able to share information that could be crucial in the prevention of situations that can put people’s lives at risk.

• AI should be used to support monitoring operations.

12. Malta Enterprise and INDIS

• The procedures by which ME discharges its functions should be made more transparent and improved. The approval of a business plan should not be taken for granted because on it depends the issuing of a letter of intent. Every application for the use of factories or industrial land has to be evaluated in a just and objective manner.

• ME has to ensure it has clear evidence in hand that can be ascertained by professionals to justify the award of public land for free to a private entity. It is absolutely necessary that ME has detailed plans of the proposed building and carrying out a due diligence exercise is of utmost importance.

• INDIS must not proceed with awarding public land to the private sector simply on the basis of a letter of intent by ME, “closing its eyes” to every irregularity and act as a rubber stamp.

“Without any doubt, what was under the spotlight was a case where a letter of intent should have never been issued. The monitoring and control procedures adopted by Malta Enterprise have to be re-thought and corrected immediately.”

13. OHSA and magisterial inquiries

• The government should reconsider recent legal amendments that allow OHSA officials to be part of magisterial inquiries on workplace accidents and fatalities. The inquiry board has “serious reservations” on the new system because of a real risk of conflict of interest since the OHSA is both regulator and enforcer.

“If OHSA’s enforcement is lacking to a point that it could have caused a workplace incident, it makes no sense that a magisterial inquiry, with its secrecy and confidentiality, will end up breaching a suspect’s right to a fair hearing.”

14. MCCAA

• The consumer authority should be proactive to ensure that construction material being placed on the market conforms to CE Markings. The MCCAA should always request a copy of the declaration of performance of bricks, something that is only being done today if there are doubts on the CE marking.

• The MCCAA has never taken legal action against anyone for failing to produce a declaration of performance. Apart from taking court action, the authority should have the power to seal a manufacturing site and prevent poor quality products from being placed on the market.

15. Bank guarantee

• The bank guarantee that has to be submitted with the BCA should increase to 20% of the estimated value of the works.