Delinquent bosses should be sent to jail

 

Early this year, the Department of Occupational Safety and Health (DOSH) thumped its chest saying that death rates in the construction sector have been steadily going down, attributing it to plans and measures it had taken.

The death rate for workers in the construction industry, it said in a statement, had gone down from 14.57 per 100,000 construction workers in 2017 to 11.28 per 100,000 workers in 2019.

However, the number of accidents at work is relatively higher than other countries such as the United Kingdom and Singapore, it said, adding that laws had been amended as a deterrent and in line with current needs.

A deterrent? Really? A paltry RM20,000 fine for the death of six foreign workers on the Jaya Supermarket building renovation work a few years ago defines DOSH’s meaning of the word “deterrent”.

More recently, a scaffolding company in Ipoh was fined RM35,000 after its director Lau Kiew Ling, 39, pleaded guilty on behalf of Team Force Scaffolding and Insulation Sdn Bhd for causing the death of two foreign workers through negligence under the Occupational Safety and Health Act.

On July 27, the firm admitted failing to ensure safe workplace conditions which led to the deaths of Nay Lin and Maung Maung Win who fell from the sixth floor to the first floor of a building, which is about 38m high, while overhauling the scaffolding. Both died on the spot.

Separately, the same judge imposed fines on two companies for offences under the same Act.

Yoonsteel (Malaysia) Sdn Bhd director Loke Yoon Chee, 63, was fined RM25,000 after he pleaded guilty to failing to ensure safe workplace conditions at the Tasek Industrial Estate, which caused two workers to lose their fingers in separate incidents.

Meanwhile, Team Some Sdn Bhd director Ceylyn Tay Wei Lung, 44, paid a fine of RM25,000 pleaded guilty to failing to ensure safe workplace conditions in the Ringan Kinta Jaya light Industrial area which caused Noor Khairunnisa Khairul Azmi, 25, to lose two joints on the index finger of the right hand.

The offences are punishable with a fine of not more than RM50,000, a jail sentence of up to two years, or both. No errant employer has been sent to jail yet and it appears that the loss of lives is just treated as statistics which can be atoned for with money. Such fines are only a fraction of the revenues of the company and hardly eats into their bottom lines.

At most, the fines would have been classified and written off as “operating expenses” in the balance sheets of the companies and their accountants must have turned up in court with wads of cash.

Compare these with Singapore: The main contractor involved in the collapse of an uncompleted Pan-Island Expressway (PIE) viaduct was handed the maximum fine of S$1 million (RM3.1 million) after the court found Or Kim Peow (OKP) Contractors guilty of failing to ensure the safety of 11 foreign workers who were casting a concrete deck slab.

The collapse also resulted in the death of 31-year-old China national Chen Yinchuan who was working on the deck slab. The 10 other workers suffered varying degrees of injuries, including spinal and pelvic fractures.

The firm’s project director Yee Chee Keong, 51, was jailed for 13 months and its project engineer Wong Kiew Hai, 32, was jailed for 11 months. They were convicted on the charge of recklessly endangering the workers’ safety.

‘Manslaughter’

By its own admission, DOSH says periodic inspections were done on 14,786 construction sites and the respective safety and health officers (SHOs) have to submit monthly reports on the safety and health compliance at these sites.

But here’s the clincher: There are only 270 SHOs at construction sites registered with DOSH which can be translated to just one out 500 construction sites which have a safety officer!

One death is one too many and a slap on the wrist for being negligent and causing death is a travesty of justice. It is the duty of every employer to ensure a safe and healthy work environment and failure to do so must be severely punished.

It appears that basic requirements are not met and working environments are not designed so that it is as safe as possible, even in case of human error. Dangers must be minimised and eliminated so that the employees’ health and safety are not endangered.

In view of the increasing workplace casualties, England amended the laws 10 years ago classifying the causing of deaths at worksites as “manslaughter”. Last year, Hans Rao was jailed for four years for “manslaughter by gross negligence” after a worker was crushed to death at a worksite.

In Australia, the District Court of Queensland last year convicted Brisbane Auto Recycling Pty Ltd of industrial manslaughter and imposing the highest workplace health and safety fine of A$3 million (RM10 million).

Its two directors identified only as Hussaini and Karimi, were also found liable, each being convicted of reckless conduct when a worker died eight days after being struck by a forklift being reversed by an unlicensed and inexperienced worker at the company’s auto wrecking business.

Both received a sentence of 10 months imprisonment, suspended for 20 months. The court held that Hussaini and Karimi were reckless as to the risk to workers and members of the public who had access to the workplace and failed on a number of other safety obligations.

In determining the sentence, Justice Rafter SC considered the moral culpability of each of the defendants to be high. Both directors accepted that they knew of the potential consequences of the risk to the safety of their workers, but consciously disregarded it.

They made no real attempt to assess or control the risk in circumstances where steps to lessen or remove the risk were neither complex nor overly burdensome. It was also relevant that the offence was not momentary or isolated - the extended period of time over which workers were placed at risk added to the criminality of Brisbane Auto.

Compare and consider this and the three Ipoh cases. My reading is that if it happened in Australia, a few directors would have been in jail. Is it too difficult to amend the law for mandatory custodial sentences or will the powerful construction and manufacturing industries lobby against it? - Mkini

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R NADESWARAN believes that safety of workers is often compromised by dispensing with requirements and allowing shortcuts. Comments: citizen.nades22@gmail.com.