In the past months, Malta has witnessed several unfortunate, oftentimes tragic, construction site accidents involving structural collapses, fatal falls or other underlying occupational health and safety mishaps.
Needless to say, due to its inherent and steadily increasing complexity, construction remains a high-risk sector with a very high incidence rate of both fatal and non-fatal accidents.
Among the stakeholders on a construction site is the project supervisor, whose duties and responsibilities are outlined under legal notice 88 of 2018, entitled ‘The Work-Place (Minimum Health and Safety Requirements for Work at Construction Sites)’.
Under this legal notice, the appointment of a project supervisor is mandatory. This appointment does not apply when work is being carried out for private property owners carrying out works in their own residences provided that all legal conditions are met, such as that there shall be only one contractor appointed for the works and that workers are not put at risk of falls from heights.
In the domestic setting scenario, the property owner may choose to assume this role himself provided he is competent, yet if the property owner does not appoint a project supervisor, then by operation of law, the property owner will be deemed to have taken over the role, irrespective of whether he is competent or not. A legal quandary in its own right, undoubtedly.
Legal notice 88 of 2018, which replaced legal notice 281 of 2004 in August of 2018, imposed upon the project supervisor added responsibilities and duties.
The most notable provision in this set of legislation is that project supervisors are obliged to take all measures necessary to safeguard health and safety.
The law does not specify what these measures are, nor does it create an indicative list of such measures. Subjectivity at its best, leaving vagueness and potentially flawed personal opinions to reign in favour or against a worker’s safety.
The substantial ‘burdens’ imposed on project supervisors were overviewed in the judgment delivered on April 29 in the names ‘The Police vs Simon J. Camilleri et’, where the Court of Criminal Appeal (Inferior Jurisdiction) confirmed the conviction of one of the appellants – having assumed the role of project supervisor – albeit substantially reducing the pecuniary punishment inflicted.
The first grievance raised, which was fully upheld by the Court of Criminal Appeal, concerned only one of the two appellants.
Said appellant was the director of the health and safety company engaged to oversee this construction, yet he was declared guilty by the Court of First Instance in his capacity as a director of a company extraneous to this particular project. The Court of Appeal, therefore, proceeded to fully acquit this specific appellant.
In the second grievance filed, the appellants contended that the law specifically requested that criminal action could only be instituted against the project supervisor if he acted in a negligent manner.
The appellant held that he did not act negligently since he used to go on-site regularly and subsequently drew up reports of all his findings which he then sent to his clients for them to implement all his instructions.
Poorly thought and enacted legislation always leads to judgments that are not accepted by society
In its judgment, the Court of Criminal Appeal deemed that simply informing the client about the negative health and safety issues encountered on-site, and drawing the attention of the workers on site of these shortcomings, is not sufficient to fulfil the role of the project supervisor as defined in law.
The current legal regime introduced in 2018 has imposed on the project supervisor added duties and responsibilities, with the aim to ensure that any risks identified are actually adequately addressed in a timely manner.
The question that arises post this judgment is: what are the additional actions the project supervisor should do?
The law is silent and creates room for personal opinions, subjectivity and total elimination of standards in this regard.
Principles of law require that laws have to have, create and provide legal certainty purely to do away with subjectivity and also to ensure a level playing field for one and all. This principle nowadays is also considered as being an integral human right.
Yet legal notice 88 of 2018 does the exact opposite for project supervisors.
Although not specifically mentioned in the judgment, the Court of Criminal Appeal seems to imply that in order for project supervisors to fulfil their role in terms of law, they must report any health and safety concerns they encounter not only to their clients but also to the Occupational Health and Safety Authority.
This judgment has opened a Pandora’s box. By doing so, project supervisors would be reporting the hand that feeds them while also self-reporting themselves, risking eventual criminal prosecution against them based on the information that they themselves would have supplied to the authority in lieu of the teachings of this judgment when applying this law.
The decision of the Court of Criminal Appeal made a clear exposé of the law as is. Courts of Justice can only apply the law − our courts do not create law.
The Court of Criminal Appeal, however, thought it fit that since the company director was being acquitted due to an error by the prosecution, and that same company director was the second appellant’s employer − which employee could not benefit from that line of defence − the court reduced the original fine imposed from €3,500 to €1,000.
Mary Gauci is an associate and Jacob Borg is a junior associate at Azzopardi, Borg & Associates Advocates.