Last Updated on Saturday, 26 August, 2023 at 2:13 pm by Andre Camilleri
The CEO of the Chamber of SMEs told the public inquiry board looking into the death of Jean Paul Sofia that the country “cannot rely on self-regulation” when it comes to dangerous industries like the construction sector.
Abigail Agius Mamo was summoned to testify as the head of the Chamber of SMEs, which represents building contractors.
Sofia was killed at the age of 20 when a building he was delivering tools to in the Corradino Industrial Estate suddenly collapsed. Five people have been charged with involuntary homicide in relation to his death.
Agius Mamo was asked about their view as representatives of building contractors on the government’s reform to this profession, which will introduce a licensing structure, to which she told the board that the Chamber’s feedback was that they very much agreed with the direction to introduce licensing.
This is because there were significant shortcomings in standards in some, and the whole industry was being damaged by the few who did not follow any form of standards, she said.
She said that it is clear that there are minimum standards which need to be introduced and enforced and added that they had insisted with the BCA to invest in digital enforcement which gives them far better visibility on construction sites.
On the necessarily for a contractor to have insurance cover, Agius Mamo said that this didn’t feature in their feedback, but she knows from other sectors that this can be a difficult topic.
However, she said that the Chamber agreed with the legal requirement for insurance to be in place on every construction site. What can be introduced, she said, is a type of insurance which is adapted for this exact purpose.
She noted that there have been cases in some sectors where insurance brokers in Malta simply refuse to provide insurance, adding that if a requirement for insurance is implemented, then one must be sure that this type of insurance actually exists in Malta and can be obtained.
Cassar meanwhile asked whether the contractors had agreed that they would be graded based on how they work. Agius Mamo replied that the members had not remarked that they were against this when this was put to them as part of the package of reforms.
“Our members do not enjoy when there is a cowboy within the sector,” she said. She continued that when someone becomes a member in the Chamber it is generally because they want to see the sector to move forward, which implies that they work seriously.
On the topic of Third Country Nationals (TCNs) as workers within the industry, Agius Mamo said that when a person comes to Malta to work in the sector, there must be a certain assurance that the person is qualified. Cassar however replied that there is no legal framework to guarantee what standards should be followed.
Agius Mamo said that this is true, even for many other sectors, but noted that they are suggesting a system wherein the TCN should show proof that they have certain experience or qualifications in the sector that they are working in and that the employer signs off on this.
“I think we need to recognise that in sectors like construction where there is a certain danger, we cannot rely on self-regulation,” she said.
Zammit McKeon said that the skills card situation is “dramatic” today, and handed over to Cassar, who said that there are around 2,200 people with skills cards on the register and pointed out that when skimming the list it doesn’t look like more than 3% of those people are foreign, even though TCNs make up 25 to 30% of the industry.
Agius Mamo said that the policy makers should have a plan on how to implement the system and then enforce it. The Chamber has no enforcement role, and only steps in in particular grave situations where they consider terminating someone’s membership – but this isn’t a regulatory step.
Current BCA CEO Jesmond Muscat, whose testimony followed that of Agius Mamo, told the board that the BCA is aiming to integrate the enforcement of the skills cards under its own wing.
Muscat however said that this is one of the biggest challenges to surpass, particularly due to the language barrier. “It’s useless doing skills card and them not knowing about them,” Muscat said.
OHSA inspections would not have exposed building shortcomings in Sofia collapse, CEO says
Occupational Health & Safety Authority (OHSA) CEO Mark Gauci meanwhile returned to testify before the public inquiry for a second time on Friday, fielding a number of follow-up questions from his first day before the board.
Much was said about the enforcement capabilities of the OHSA’s inspectors, particularly after Gauci told the board that the authority’s inspectors do not have the technical capabilities to recognise whether there are issues with a building’s structure.
This baffled Deguara in particular, and grilled Gauci on what exactly the technical competencies of the enforcement inspectors are in that case.
“My fear is that you depend – in terms of enforcement of this nature – on whether someone in the street bothers them, whether the media reports something… it’s reactive not proactive,” Zammit McKeon said.
Gauci replied that the OHSA is not a reactive entity. Part of their work does depend on reports, so it is reactive in that sense, but every day it identifies a number of places depending on information that they have in hand and inspects accordingly, he explained.
Gauci later said that while he didn’t have figures at hand, he could guarantee that the “absolute majority” of their inspections are proactive and are pre-planned.
Gauci at one point of the informational seminars which the OHSA does, but Zammit McKeon was frustrated at his line of answering: “Life isn’t lived by the textbook,” he said.
His voice even broke with frustration at one point: “Just days ago, I saw a seven-storey development abroad and not even one grain of dust was making its way out of the site, but in this gem of a country we are stars. That is the disgrace.”
Cassar asked about a ‘register of competent persons’ and who they answer to if they find something which is not in accordance with workplace safety standards, whether they report to OHSA.
Gauci explains that these competent persons may be acting in different capacities. In construction, the competent person is appointed by the client and is obliged to report to the client, he said.
The principle is such because the client is considered as being in the central position to make sure that all the necessary safety measures in place.
“Couldn’t there be a conflict of interest?” Cassar queried further.
Gauci said that the system in Malta is such that the competent person rests on the client to take all the necessary measures.
Gauci later explained that the project supervisor generally writes out a report every week and gives it to the client for them to act on it.
“That they have to wait for the client to do something… that is what I cannot understand,” Cassar said.
Gauci said that the OHSA is in the process of amending regulations so the project supervisors are protected by the law so that they can take drastic action without consequence from the client if need be, and that they can order the works to stop and it would be a crime if they do continue.
Gauci was asked about how workplace incidents are reported and whether the employer is legally obliged to notify the OHSA of these.
He replied that the system used is the same as abroad and that some cases are not included in official statistics – although he noted that given that Malta is so small, it is impossible for them to not find out about serious accidents.
Zammit McKeon sought clarity to confirm that there is no requirement to report near misses or dangerous incidents, to which Gauci replied that there is no such obligation both in Malta and abroad and that in such cases it is usually the media or members of the public who bring these incidents to light.
On the topic of worker safety, Gauci reminded that the responsibility for the safety of workers is not of the workers themselves, it is of the person employing them. The worker is only responsible if they do not follow the recommendations of the employer.
At one point, the case of Lamin Jaiteh was mentioned, in the context of third country nationals who work in the industry but are not registered legally to work. Jaiteh was the worker who in 2021 was found dumped on the pavement with severe back injuries after he suffered a fall at a construction site.
“This is the tragedy: the people taking advantage of vulnerable workers,” Gauci said, adding that Jaiteh had been interviewed by the OHSA as part of its investigations into the case.
Zammit McKeon at one point also referred to an editorial carried by The Malta Independent last Monday which detailed contradictions between his testimony and the testimony of OHSA chairman David Xuereb.
The board chair says that the editorial – which detailed differences in the testimonies of the duo on the number of OHSA enforcement officers and its website – showed “very clear” divergences. “The editorial was very loyal” to what was said in court, Zammit McKeon pointed out.
On the divergence in enforcement officers given by the chairman and CEO, Gauci says that it is possible that Xuereb considered a health and safety officer who is not someone who does any work on the ground.
On the divergence on the website, Gauci says that MITA had clarified to him that the website was not hosted by them, but he quoted from a report which says that the OHSA website had experienced no significant downtime.
Government initially wanted insurance cover to be a pre-requisite for a contractor to get a licence, board hears
Director General of the Malta Insurance Association (MIA) Adrian Galea also took the stand on Friday, with his testimony revolving around how the requirement for contractors to have insurance cover for the sites they work at as part of new legal reforms came about.
Galea said that discussions on this with the Building & Construction Authority (BCA) were at a “very advanced stage” and he also gave details about what the government’s initial expectations in this regard were.
He said that the BCA had initially wanted a contractor to have insurance cover as a pre-requisite to having a licence to be able to work, but this idea was dropped after feedback from the MIA.
Galea said that the MIA explained that it doesn’t make sense that insurance is a requirement for a license to be granted, and drew an equivalence between vehicle insurance: a person does not get insurance when they get their driver’s licence, but rather get insurance when they come to drive a vehicle.
Therefore instead, the MIA suggested that the insurance is done on a per-site basis in order to protect any possible victim of shortcomings in construction works – a suggestion which was taken onboard and included in the final reform.
Zammit McKeon then asked about employer’s liability cover and whether this is an obligation by law. Galea confirmed that it is not, and Zammit McKeon asked whether this topic is part of discussions between the BCA and the MIA.
“Yes the BCA did speak to us about this, and this is where there is a divergence,” Galea said.
The government is saying that there has to be employer’s liability in this sector, but we are saying that this should not be on a sector which is considered as high risk, Galea continued.
He adds that creating a legal requirement for just one sector – which happens to be considered high-risk – doesn’t make sense for the insurance provider or for the client, because the cover will end up being prohibitively expensive.
Zammit McKeon asked how the exclusion clauses in the insurance cover give peace of mind to third parties. So if there is a claim by an employer against a contractor, but that contractor has breached the clauses in the insurance cover – then what happens?
“We haven’t gotten to that point in discussions,” Galea replied.
“Then get there, please, as it is very, very important,” Zammit McKeon batted back.
