A New Health & Safety at Work Act
FEEDBACK TO THE WHITE PAPER ISSUED FOR CONSULTATIONS DATED
28TH APRIL 2023
23RD MAY 2023
Scope & Objectives of this report
The white paper titled ‘ANewHealthandSafetyatWorkAct ’ that was published for preliminary consultation refers. This paper was accessed and considered by the Malta Chamber of Construction Management (MCCM) and is hereby providing its observations and comments accordingly.
MCCM qualifies that the observations and comments are limited to matters related to the local Building and Construction sector ONLY. The report is divided into the following sections:
Credit goes to all MCCM members and the working group specific to this review exercise composed of the following:
Mr.J . ChetcutiMCIOB
Mr.Ed.HowellMCIOB
Mr.M.Spiteri
Mr.K.AzzopardiFCIOB
CONTENTS
SECTION A
INTRODUCTION & CONTEXT
SECTION B
COMMENTS SPECIFIC TO THE CONTENT OF THE WHITE PAPER
SECTION C
COMMENTS SPECIFIC TO THE BROADER ASPECT OF THE BUILDING & CONSTRUCTION INDUSTRY
CONCLUSION
APPENDICES
SECTION A – INTRODUCTION & CONTEXT General
The Malta Chamber of Construction Management (MCCM) is the official body representing the local construction project managers working within the construction industry at various supervisory and management levels. MCCM promotes and expects high standards in, quality, ethics, integrity and to be at the forefront of innovation of the local built environment. MCCM’s input continuously strives to influence policies and regulations that impact the industry towards improvements for the common good.
Since its inception, MCCM has seen a healthy increase in the number of memberships, a sign that effectively indicates that the local construction project manager is a career that is being sought after and is increasing in terms of both the demand and levels of responsibility. The
Context
MCCM welcomes all the efforts that involve actions that enhance the push towards upgrading and strengthening of the core regulatory framework that ultimately should result in the muchdesired qualitative leap within the local Building and Construction Industry.
As with other industries, health and safety is crucial. The generation of a clearer and more robust legislation and regulatory structure that supports improved processes and practices enhance the chances to see much desired improvements within our complex industry all of which should contribute towards having safer and more sustainable development of the property type and hard standing infrastructure.
MCCM’s feedback is to be read on the premise that it considers Health and Safety aspects to any project of topmost prime and basic priority, an area that would trigger the shaping up of our industry within its basic core. MCCM advocates and follows the guiding principles as laid down within the CIOB’s sixth Edition of the Code of Practice for Project Management whereby Health, Safety and well-being is given the topmost priority. In fact, this area is listed as number one in these guiding principles;
1. Upholdingthehealth,safetyandwell-beingofpeopletranscendsallotherobjectives.
Thisprincipleappliestothepeopleinvolvedincreatingtheassetandthoseusingthe asset over time. The principle highlights the need for concern for thehealth, safety, andwell-beingofendusersinadditiontothedutyofcarethesectorhastosafeguard theprojectteammembersworkinginoffices,on-site,aboveandbelowground,aswell asmembersofthepublicaffectedbytheworks.
SECTION B – COMMENTS SPECIFIC TO THE CONTENT OF THE WHITE PAPER
The involvement of Social Partners
MCCM positively welcomes the fact that the Ministry suggests that ‘Social Partners’ help in the development of safety in the workplace. MCCM believes in open dialogue.
Clearly this relates to all workplaces not just construction sites and therefore, MCCM suggests that a sub-section is included within the Act that is specifically related to the Construction sector ONLY including specific penalties for misdemeanours and linking same to the Contractors’ licensing anticipated regulatory framework.
Amendment Concepts.
MCCM agrees in principle with the points mentioned within this section, however its suggest that the OHSA targets construction sites at regular but unannounced visits to building sites.
OHSA could target certain sized sites in various locations. It would very soon become apparent to the managers of these sites that they have to get their ‘house in order’ to prevent fines being administered or worse still the sites being closed until things are corrected or even lose a license in the eventuality of a license. This will hit the pockets of those involved.
Referring to the proposal of the independent H & S Tribunal MCCM questions whether this is beneficial to sites becoming safer? MCCM is a firm believer that breaches of safety on sites found by the inspections would be a state of fact and immediately evidenced and hence should be dealt with by the inspectors. Supporting this one need to carefully study the enforcement process.
The new Structure
No specific observation or comment.
The Governing Body
No specific observation or comment.
The H & S Exec
No specific observation or comment.
A New H & S at work act
No specific observation or comment.
Setting up a H & S Council
No specific observation or comment.
Additional Function
MCCM agrees to this and is related to earlier comments.
An increase in Employers responsibilities
MCCM feels that this part is very generic and really relates to other industries rather than construction. Construction Companies should follow these regulations BUT as noted in earlier comments the Construction Sector should have specific regulations applied to construction / building sites. MCCM suggests categorization of the sites e.g., complex to less complex / small – medium – large or equivalent. Whilst domestic (small) sites are just as dangerous as large sites, they normally involve one or two tradesmen on site at any one time. Argument: Should the employer (house owner) be responsible for a person falling off a ladder? Should the employer (house owner) be responsible for a person falling off a rope whilst painting a large wall or light well? In many cases the employer (house owner) is not conversant to the skill / trade requirements and in most cases the contractor does what he / she does because it is cheaper (lack of safety, appropriate platforms, PPE etc).
In summary a skill and trade should have an ingrained basic H&S requirement that are essential for that skill to be performed and needs to be elaborated through training and certification before any application to site work. It should be part of ‘a standard to operate’ to that trade and skill. In addition, applying the skill (service or works) on the site is different from conducting same in a workshop (manufacturing or assembly off-site), as in many cases the workshop is considered a controlled environment. Applying same trade and skill on a site is
different as the environment changes and there are many other aspects that need to be considered as part of an appropriate risk assessment prior to application / conducting of the works. Therefore, MCCM re-confirms its earlier suggestion that this is why there needs to be specific regulations to sites other than the OHSA standard regulations that apply to the skill set or trade itself. An employer (house owner) need not explain to the ‘carpenter’ to use appropriate certified tools, PPE and related as this should be an inherent part of the service or work provision on which basis the service provider has been given either a license or a skill card to operate.
MCCM observations with respect to the provisions and contents of a H&S policy suggests that it should consist ONLY of the statement of intent and who will be responsible for compliance and how safety compliance will be achieved i.e., from the top management to the lower level (shop floor workers) towards the health and safety legislation and NOT how the site hazards and risks are prevented and controlled. It shall be distinct from a risk assessment or hazard identification. Essentially, the policy shall be endorsed by the senior person of the organisation.
The appointment of a Health and Safety Responsible Officer (‘HSRO’):
Industry is dominated by small-to-medium sized enterprises (SMEs) with few employees and sub-contractors and mostly there are no directors. Many contractors engage an agency external to the organisation to conduct this type of consultancy and to control hazards on sites. Clients / developers engage a PSCS to inspect and control the site to abide by the H&S Plan. In such cases how would such agencies be supported and empowered especially when it comes to stopping of works in cases of infringements or breaches?
More efficient and effective enforcement
MCCM agrees if this is done adequately and maintained / supported by central Government. Maybe, the model like it was done for traffic / transport (LESA) would be adapted following appropriate training and relative courses to inspectors and enforcement.
SECTION C – COMMENTS SPECIFIC TO THE BROADER ASPECT OF THE BUILDING & CONSTRUCTION INDUSTRY
The following comments and observations are being listed for consideration going forward:
Tower cranes and related:
It goes without saying that the invasion of airspace and most of the Maltese islands are now more than ever covered in massive construction cranes that extend significantly and beyond neighbouring private properties both vertically and horizontally and that pose risks during construction activities and when ‘idle’ and unattended. MCCM understands that there is no legislation to notify the authority to apply for permission to erect and use a tower crane, we believe that it is high time to establish within the regulatory framework a ‘Notification Regulations of Tower Crane’ including mandatory provisions and the related.
Categorisation of Projects / Building Sites:
There might be different views on how to categorise a building or construction project. That said, it is not always driven by the monetary value BUT by its complexity with importance given to the risk aspect considering the location of the site, the nearby property uses and proximities to sensitive buildings or areas.
Responsibility for H&S on-site:
MCCM’s own members debated at length on who should be technically responsible and there is no clear agreement within its internal fora. That said, MCCM is of the opinion that having the Employer/Architect/Project Supervisor responsible for H & S on site is not the way forward The UK model is a perfect example whereby the only person who can be responsible on site is the contractor. The UK model suggests that:
- Employer appoints a Project supervisor.
- Project supervisor produces a pretender H & S plan. Project Supervisor advise the Employer of his obligations in H & S.
- Tender information is sent out to contractors, including the pretender H & S plan
- Contractors return the tender with a draft construction phase H & S Plan prepared by the contractor.
- Contractor is awarded the contract.
- Contractor prepares the construction H & S plan and risk assessments up to when , say, the works is due to start.
- Employers Project Supervisor approves the contractors H & S plan and the Contractor can start work. After this the Contractor is responsible to keep the H & S plan and risk assessments for all trades up to date. The contractor is responsible for H & S on site. If the H & S inspectors visit site and find on inspection of the plan and risk assessments that they are not up to date relating to work being carried out on site then they can stop the site. Because of the new licencing of contractors in Malta, persistent breaches could lead to the contractor having their licence suspended. Even more reason to make the contractor responsible on site.
- At the end of the project the original Project supervisor or the contractor (subject to building contract conditions) puts together the H & S file.
- The pre-tender H & S plan should include information about the dangers relating the location of the site. Is it near a school, overhead cables, on a blind bend, is there sufficient safe parking for operatives cars, can deliveries be made safely, is the footpath to be taken away and what is the alternative passageway for pedestrians. The list is almost endless and is different for all sites.
As per above observation there is a clear line of responsibility. MCCM believes that the role of the Construction Project Manager would therefore become even more important to ensure that a structure equivalent to the above is implemented should it become mandatory.
Falls from Height Regulations Act
Falls from height are one of the biggest causes of workplace fatalities and major injuries. Revisions to the Act should therefore consider that all work at height where there is a risk of a fall, liable to cause personal injury. The regulations should impose duties on employers, the self-employed, contractors and any person who controls the work to the extent they control the work and managing the risks. OHSA should produce guidance or Code of Practices to comply with the Act
Code of Practices
There is lack of Code of Practices by the Authority. Approved Codes of Practice (ACoPs) can play an important role and a reduction of bureaucracy. These are vital and can provide practical examples of how to comply with the law, with a clearer expression of duties - a particularly valuable resource of guidance for small projects and medium size enterprises (SMEs).
Complexity of the rules
Small and medium sized enterprises - representing more than 90% of all businesses in Malta can be particularly affected by burdens and complexity of the rules. OHSA should update several legislations especially S.L. 424.36 Work place Minimum H&S requirements for Work at Construction sites, and make them simpler (to be better understood) and enhance compliance.
Voluntary work
The ACT should clearly explain ‘voluntary work’ and shall give guidance on voluntary workers to be confident that they are taking appropriate approach to health and safety issues. H&S matter should not differentiate on whether the work or activity is voluntary or paid for (commercial).
The Act must also clearly define the legal terms “as much as reasonably practicable” . MCCM believes that once again practicalities in terms of H&S should not be termed with the reasonability element.
S.L. 424.36 & procedure relative to accountability
S.L. 424.36: Prior notice to OHSA – ‘inthecaseofconstructionsitesonwhichworkisscheduledto lastlongerthan30workingdaysandonwhichmorethan20workersareoccupiedsimultaneously, oronwhichvolumeofworkisscheduledtoexceed500persons-days…’
There should be no distinction made based on whether you advise OHSA in advance if you will be working more or less than 30 working days or 500 man-days. Notification to the OHSA is required for any construction activity involving works and professional people such as Architects or Designers regardless the number of days or workers on site. MCCM suggests that OHSA should always be provided with a copy of the H&S plan as the baseline for their inspection and compliance matters.
Mental Health
MCCM advocates the importance of mental health especially within the construction environment. We often speak on safety matters however the health theme especially mental one is in MCCM’s opinion not given importance in Malta. According to a study conducted by CIRP, 83% of construction workers have struggled with mental health issues. On top of that, suicide rates have skyrocketed over the years due to the negative stigma associated with mental health in the construction sector. This is therefore an area that requires attention and specific mention within the regulatory framework especially when one considers that the construction activity is in itself already full of risks and hence the importance to such matter.
CONCLUSION:
MCCM is at the forefront of construction sites in Malta as the role of the Construction Project Manager is pivot to the execution of the project / development or works. Whether he / she is appointed by the Developer or Contractor or alternative commercial terms, the managing and administration of the execution stages is predominately the responsibility of this role. It is pertinent to note from experiences generated by its members that notwithstanding the provisions of the laws and regulations, the professional approach and application of H&S aspects in Malta are very weak and underestimated by the ‘investment’. The spent in adequate H&S items including the application and management of planned, designed, certified and appropriate temporary facilities during the execution stages of project / property development is many too often underestimated and is leading to high-risk elements and failures. Whilst the white paper indicates a good sign in terms of the desired improvement, its application needs to be seriously considered and the role of the construction project manager becomes pivotal to realise such improvements as can be seen in the attached AppendixAthat encompasses the respective responsibility and functional lines.
SixthRevision
