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Watch: OHSA boss Mark Gauci on who to blame for construction site incidents

Following two testimonies before the Jean Paul Sofia public inquiry board, a Times of Malta editorial described the Occupational Health and Safety Authority as “practically useless”. Mark Gauci, who has served as the authority’s CEO for 22 years, tells Mark Laurence Zammit why he believes the criticism was unfair.

MLZ: A Times of Malta editorial said the Occupational Health and Safety Authority is being “reactive”, and that Jean Paul Sofia’s mother did more for health and safety in the construction industry than the OHSA achieved in its two-decade existence. You’ve been CEO of OHSA for those two decades and those comments did not go down well with you.

MG: It was not just me. It was unfair and it irked many people because it implied OHSA officials are incompetent and that’s not true. What I said during the public inquiry testimony is that our officials do not have the competency to know whether the work is being done according to the profession’s rules and highest standards.

Their competency is health and safety, but they cannot be expected to know if a building will collapse. Just like when they inspect healthcare workplaces, they look out for health and safety adherence, but are not expected to check whether the surgeons are conducting surgeries well. The editorial stretched it and said inspectors are incompetent. It’s wrong to shed doubt on their work because it will discourage more people to approach them with reports of health and safety infringements.

Mark Gauci speaks about the OHSA. Video: Karl Andrew Micallef

MLZ: So, what you meant is that they would not know if the building is not being properly constructed...

MG: If they see obvious infringements, like cracks in the walls, they will notify the other competent authorities. But sometimes the structural problems are not obvious. They will not know if the walls are not tied together securely, and they will not know if the beams are thick enough, or whether they have the right amount of steel in them. It’s the same with every other profession.

MLZ: Did OHSA officials ever inspect the Kordin site?

MG: No, they didn’t.

MLZ: Why?

MG: That site was particular because it was, to an extent, located away from everything else. But OHSA officials carry out some 4,500 inspections annually.

MLZ: But they didn’t go to the Kordin site, the one that actually collapsed.

MG: Let’s put it into perspective though. Do you know how many construction sites there are? Do you know how many workplaces our officials need to inspect?

MLZ: Yes, but they didn’t go to Kordin. It collapsed and killed a young man.

MG: OHSA has a monitoring system for all workplaces. Last year, several more people died on the workplace and most of those places had not been inspected by the OHSA either. But according to the law, it’s not the OHSA’s responsibility to ensure health and safety in the workplace but the developers, contractors and employers.

The Planning Authority issues around 10,000 construction permits every year, and those are just the projects that require a planning permit. Now add those to all other workplaces in all sectors. That’s what OHSA must cover.

With just around 4,500 inspections annually, our inspectors cannot even cover half of the new permits. There is also a misconception that the OHSA does not take the big contractors and developers to court. It’s not true. It does. But it’s also true that in most of the big sites, health and safety regulations are adhered to. Most incidents happen on the small construction sites.

It’s also not fair to say that OHSA is reactive. The editorial said the OHSA only acts on reports to the police and other government entities. We get just around 350 reports of those annually, but we carry out 4,500 inspections – so the comparison is not even close.

MLZ: There was a video that went viral earlier this month showing a worker swinging in a platform dangling from a crane in Sliema. You did not act on such a clear infringement.

MG: OHSA is very frustrated over that incident. The video shows an activity that lasted a few minutes...

MLZ: Does it matter how long it lasted? Sofia’s building only took a few seconds to collapse, but it killed a man. The point is that the law was evidently broken.

MG: Let me explain what happened. The journalist sent us the video the day after the incident happened. In order to prosecute anyone over that incident, OHSA must have all the details of how the incident unfolded and be absolutely sure of them – otherwise it won’t be able to stand its case in court.

We must identify the site – and that video was taken in an area with several cranes – so it’s difficult to identify the tower crane with certainty. Even if we do identify it, we must then identify the operator and the workers. Only when we get this information can we attempt a prosecution in court.

MLZ: How do the police do it then? Because they proceed with court action based on footage that emerges.

MG: Because we must gather a lot of precise information. If someone sees an infringement happening, they are free to send it to newsrooms or upload it to social media, yes, but it is crucial they inform us immediately so that we go on site and get the information we need.

MLZ: But you are seeing the footage. It’s clear from the video that the law was broken. What more do you need?

MG: Please Mark, come to court on a day when there are hearings of OHSA cases and you’ll understand how difficult it is to find someone guilty of a health and safety infringement. We must provide detailed evidence that proves the infringement without a shadow of a doubt.

MLZ: So, the OHSA is truly toothless.

MG: No. If it were toothless, we wouldn’t have seen a decline in the injury and fatality rates over the years. That is only thanks to the OHSA. But solving the issues must go beyond that. We must discuss judicial processes, for instance, and foreign workers’ registrations. Thirty per cent of workers who die on the workplace are foreign and most of them are not registered. So, the problems of workplace deaths go beyond OHSA’s duties.

MLZ: It looks to me like there are two major problems in this country: people who don’t care about the law and abuse it, and a lack of enforcement to rein in that abuse. Can’t the OHSA increase inspectors tenfold and raise their salaries as much as necessary to make the job more attractive? And can’t fines be raised dramatically to truly deter contractors and employers who break the law?

MG: Fines are established by the law. OHSA can only impose a maximum of €466 for all the combined infringements in a workplace. We’re trying to change the law to increase the fines and to speed up the process. But the law already allows the judiciary to give prison sentences to people who are found guilty of a serious, criminal infringement.

But they are usually fined just around €2,000 or €3,000. Do you think that’s acceptable when the law allows magistrates to sentence them up to two years in prison? Maybe one or two people every year are handed prison sentences, but only suspended sentences, so they never actually go to prison.

MLZ: And you don’t agree with this...

MG: Of course I don’t. These people are usually employers who have negligently abused a worker, paid him the least possible salary, didn’t provide him with health and safety training or equipment and then he died. And that €3,000 fine is imposed if the worker dies. If he is injured, the fine is often a few hundred euros. We’re observing that the courts are going for the minimum punishments. We want OHSA to be able to dish out fines that are at least as high as the court fine. That way it can become a deterrent.

The editorial was also wrong when it quoted me saying that OHSA officials are not obliged to inspect workplaces where there is no ongoing work. What I said was that a recent court decision has tied OHSA’s hands to work that way.

In that particular case, officials took the developer to court after passing by his construction site and noticed it lacked the necessary health and safety measures. But the court acquitted him because it said there had to be ongoing work for the guy to be found guilty. That’s why prosecutions have decreased since, because whenever OHSA has a case like that one, it makes no sense taking the guy to court knowing he would be acquitted.

MLZ: And do you agree with this?

MG: Of course not. And we’re trying to see how to go around it.

MLZ: Did you do anything to try change the law?

MG: We’re trying to change the rules in several ways, and this is one of the changes. The draft law is ready and will be published soon. That’s the only way to address the problems we’re having in court. But the OHSA does not just inspect construction sites.

MLZ: But the biggest problems are in construction.

MG: That’s not quite right. Fatality rates are the highest in construction, yes, but injury rates are highest in other sectors, like manufacturing, transport and storage. The problem with construction is not just exclusive in Malta. Even European entities acknowledge construction is regarded as the riskiest.

MLZ: How is that supposed to make us feel better? How does that make Jean Paul Sofia’s mother feel better?

MG: I’m not saying this to put my conscience to rest, but those are the facts. People died and they will continue to die in the workplace because the law continues to be broken. The only way to maybe solve that is to have one of our officials in every single workplace around the clock, which is impossible. The OHSA cannot be held responsible for not knowing when a workplace death is going to happen. It’s not like we’re sitting in an airconditioned office doing nothing. Inspectors are continuously going around, carrying out inspections.

MLZ: Let’s take the Sofia case. If you had more resources and, maybe better-paid inspectors, you would have maybe inspected that site and noticed there were no safety railings.

MG: Did the Sofia building collapse because there were no railings?

MLZ: No, but the lack of railings would have alerted you to the possibility that negligence in health and safety probably also meant there was negligence in construction methods. And you would have alerted the other authorities to carry out their own checks.

MG: Finding a health and safety infringement does not automatically mean the contractor is doing shoddy work. Had we gone to the Kordin site, we would have noticed there was no railing, yes. We would have acted on the lack of railing and that’s it. We couldn’t have realised the building was going to collapse.

With your reasoning, you’re telling me that every single time we go to a workplace and notice an infringement, we should notify all the authorities of bad work practices. Do we also notify the tax authorities because he’s probably not paying his taxes as well? Our officials would only have focused on health and safety issues, none of which would have saved Sofia.

MLZ: You’ve been at the OHSA for 22 years and you’re retiring now. What is the thing you most wanted to do but failed to do?

MG: I’m disappointed to say that the OHSA has been left alone for 22 years. Every improvement to the system was thanks to its effort and nobody else’s. The constituted bodies and employers’ associations need to do much more. And that irks me a lot. They could cooperate more with us.

Sometimes we ask for their help to carry out an awareness campaign, but they see us as stifling the business rather than helping them. In public there’s a lot of talk about the need for more resources on health and safety but it’s mostly lip service. Behind the scenes there’s a lot of work [to hinder resources]. One of the reasons why the OHSA remained small was because some people objected to a strong and well-resourced OHSA, because it wasn’t in their interest.

MLZ: Who were these people?

MG: There are people who don’t want it because it’s not in their interest.

MLZ: OK, but who are these people? It’s either the businesses people or the politicians.

MG: OHSA needs resources from politicians and politicians decide on those resources according to feedback they get from stakeholders. On one occasion, a prime minister who was observing that OHSA was working actively, told me, ‘You’re going to help to lose the election’.

MLZ: Who was he?

MG: I won’t mention the name.

MLZ: Was it under a Labour or a Nationalist administration?

MG: One day, when I retire and write my memoir, [maybe I’ll mention him].

MLZ: And was he serious? Maybe he said it jokingly?

MG: No, he said it directly to me seriously during a social event.

MLZ: So, what you’re saying is the OHSA was left small and relatively weak compared to what it could have done. And this was out of fear that too much enforcement would have impacted the economy and lose the government votes?

MG: Yes, that’s my theory. I’m not referring to a particular politician but, in their psyche, politicians think the OHSA stifles the industry and the economy.

The interview was edited for brevity and clarity. Watch the interview with Mark Gauci on Monday on our website.