Issue link: https://maltatoday.uberflip.com/i/1503087
15 maltatoday | SUNDAY • 2 JULY 2023 NEWS losing clients when enforcing regulations er 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 con- struction because a new au- thority is taking over this role, namely the Building and Con- struction Authority (BCA). He also questioned the new penalties that will be in place. "People don't understand that health and safety laws fall un- der 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 vic- tim as parte civile sues you in front of the Civil Court. That's where you can be fined mil- lions." On the reforms, Darmanin said that there are good amend- ments that put responsibili- ty on companies and require company directors to have di- rect responsibility on health and safety. However, there's a need for new ideas, and he does not rule out that political influ- ence on the authority could be harming the industry. "Malta is influenced a lot by business, particularly big busi- ness," he said. "And particular- ly in construction, but not only. The most powerful businesses and those that aren't afraid to use their power to influence permits and legislation, includ- ing on health and safety, is con- struction. 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' As- sociation (MDA). "If you go on the authority website, you'll find that there was an agreement with the MDA. […] There's a certain synergy be- tween 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 pro- jects, there isn't the same form of relationship." Having said this, Darma- nin 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 rela- tionship with health and safe- ty professionals, while feeling more comfortable building a relationship with developers? That worries me." "It worries me because, with- out 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 with- out work'." The health and safety officer versus the project supervisor Cauchi pointed out a clash be- tween the legally defined pro- ject 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, tradition- ally the officer or policeman, policing the health and safety aspects of things." Through Legal Notice 88 of 2018, the project supervisor was given added responsibil- ities 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 su- pervisor is not held liable for breaches, unless the person acted in a negligent manner. Meanwhile, the health and safety officer holds an execu- tive role at law. These officers are appointed by the OHSA and have the power to conduct inspections and question wit- nesses. 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 authori- ty, they are also self-reporting themselves for failing to pre- vent 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 neg- ligent 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 prac- titioners are afraid of losing cli- ents, and as a result, sacrifice the integrity of their work. "There are some who are ready to compromise health and safe- ty in order not to lose money. That's indefensible." This is largely down to contrac- tors and developers being un- willing to budget or make their own sacrifices to ensure health and safety risks are mitigated. "There are people who lose cli- ents because they comment on the health and safety risks in a given workplace," Darmanin said. "I know of employers that hire se- curity 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 compe- tition and put the actual person physically there. Then it's an is- sue of how much that person is paid." Darmanin also said that most developers are simply not budg- eting for health and safety in their projects. "There are mul- timillion-euro projects – why spend only €80,000 on health and safety?" "The price doesn't automati- cally reflect quality, but that can be an indication. Does it make sense that a €3 million pro- ject only budgeted €2,000 for health and safety?" Adrian Cauchi George Steve Darmanin Mario Camilleri