Following is a written reply by the Secretary for Labour and Welfare, Mr Matthew Cheung Kin-chung, to a question by the Hon Chan Kin-por in the Legislative Council today (November 25):
Construction activities involve higher risks of accidents as compared with other industries. According to the figures provided by the Labour and Welfare Bureau, the construction industry recorded 1,248 industrial accidents with an accident rate of 49.5 (per 1,000 workers) in the first half of 2009, representing a drop of 9.3% and 10% respectively when compared with the figures in the same period of last year. Yet, the fatal industrial accident which happened at the International Commerce Centre on September 13 this year again aroused public concern about the issue of safety of the construction industry. In this connection, will the Government inform this Council:
(a) of the respective numbers of cases in each of the past five years in which the authorities issued warnings and instituted prosecutions against the relevant members of the construction industry (including employers, contractors, sub-contractors and workers) who had breached the legislation on safety of the construction industry and, among such cases, the number of cases in which such persons were convicted; what the highest, lowest and average amounts of fine and the terms of imprisonment were;
(b) whether it will consider raising the penalty imposed on the employers, contractors and sub-contractors of the construction industry who were repeatedly convicted, so as to enhance the deterrent effect; if it will, of the details; if not, the reasons for that; and
(c) given that there have been comments that apart from employers who have the responsibility to comprehensively manage the risks involved in the various kinds of works at construction sites and safeguard employees’ safety and health, individual workers should also comply with the legislation on safety of the construction industry and should not neglect the safety of themselves and the others for expediency, whether the Government will step up the prosecution against workers who do not comply with the legislation; if it will, of the details; if not, the reasons for that?
The Government attaches great importance to safeguarding and promoting the occupational safety and health (OSH) of the workforce. The Labour Department (LD) is responsible for enforcing the relevant legislation, and for promoting the standard of safety and health work in Hong Kong through a three-pronged strategy of legislation and enforcement, education and training, as well as publicity and promotion.
Enforcement is the key to ensuring the efficacy of a regulatory regime. Where breaches of OSH legislation or unsafe conditions are identified during inspections or investigation, LD will take appropriate enforcement action, including issuing warnings, serving improvement notices or suspension notices on employers or contractors to secure prompt rectification of irregularities or to remove imminent risks of death or serious bodily injuries to workers, as well as initiating prosecutions. For workplaces with a record of repeated breaches of regulatory requirements or irregularities, LD will also step up enforcement action by increasing the frequency of inspections to ensure compliance with the law.
My reply to the three parts of the question is as follows:
(a) Details of LD’s enforcement action against relevant members of the construction industry (including employers, contractors, subcontractors and workers) for failing to comply with the OSH legislation between 2004 and 2008 are as follows:
2004 2005 2006 2007 2008
—- —- —- —- —-
heard 1,368 1,296 1,366 1,397 1,331
convicted 1,118 1,003 1,085 1,147 1,085
fine $13,148 $9,873 $8,655 $10,120 $8,040
fine $100,000 $100,000 $100,000 $150,000 $65,000
fine $300 $1# $500 $500 $450
Imprisonment NIL NIL NIL NIL NIL
# The Court found that the defendant was only technically liable for the offence as charged and thus imposed a nominal fine only.
It is noteworthy that the Court would normally impose a fine proportionate to the gravity of the offence. For example, the average fine in the five-year period for failing to take adequate steps to prevent any person from falling from a height of two metres or more was $17,675, while that for failing to display a copy of the most recent certificates of test and examination on a suspended working platform was only $1,683.
(b) To promote safety and health at work, we must adopt a holistic strategy of legislation and enforcement, education and training, and publicity and promotion. The maximum penalty under the current OSH legislation is a fine of $500,000 and imprisonment for 12 months. LD does not plan to amend the law to increase the penalty for repeated offenders but will continue to be vigilant in its enforcement of the OSH legislation and promotion of sustained improvements in the OSH standards in Hong Kong in close partnership with the key stakeholders. As a matter of practice, LD also assists the Court in determining the sentence by providing information on the defendant’s previous conviction records and sentences upon conviction, as well as material facts of the case reflecting the seriousness of the offence.
(c) Contractors/employers have the primary responsibility for ensuring a healthy and safe working environment for their workers/employees. In this regard, they should strive to manage the safety behaviour of their workers/employees, who are also obliged under the OSH laws to take care of their own safety and health and that of other employees at the workplace. LD also initiates prosecution against workers who, through their wilful acts or omissions, put themselves or others at risk if contractors and employers have fully discharged their legal responsibilities.
Between 2004 and 2008, the Court heard 61 summonses taken out by LD against workers who contravened occupational safety and health legislation on construction sites. The conviction rate was 100 per cent.