Source: Hong Kong Government special administrative region
The following is issued on behalf of the Office of The Ombudsman:
The Ombudsman, Mr Jack Chan, today (April 16) announced the completion of a direct investigation operation into the Government’s regulation of occupational safety and health (OSH) in the construction industry, with 40 major recommendations for improvement made to the Labour Department (LD), the Buildings Department (BD) and the Development Bureau (DEVB).
In recent years, from large-scale public works, housing development and building repairs to small-scale flat renovation works, fatal industrial accidents in the construction industry have occurred frequently. The situation has attracted widespread public concern. During the six-year period from 2018 to 2023, the construction industry recorded a total of 108 fatal industrial accidents, accounting for more than 80 per cent of fatal industrial accidents in all industries.
Mr Chan said, “This direct investigation operation is by far our largest and most comprehensive direct investigation operation in many years. During the investigation, investigation staff of the Office has scrutinised over 90 000 pages of documents, including about 70 individual cases in 40 boxes, and conducted multiple in-depth site visits of different types to examine the issue thoroughly and from different perspectives.
“The construction industry undoubtedly makes significant contributions to the economic development of society and people’s living environment. All lives are priceless. Indeed, one life lost to an industrial accident is one too many. The problem must be dealt with seriously and vigorously. During our direct investigation operation, the current-term Government has proactively introduced an array of targeted improvement measures to enhance OSH in the construction industry, which include amending the relevant OSH legislation to significantly increase the level of penalties to provide greater deterrent; revising various codes of practice to enhance technical requirements; conducting a number of special enforcement operations to curb unsafe operations; updating the content of mandatory safety training courses to raise workers’ safety awareness; improving the mechanism for processing renewal of contractors’ registration; formulating proposed amendments to the Buildings Ordinance to tighten the regulation of contractors; strengthening the regulation of contractors on the approved lists with unsatisfactory safety performance; and making great efforts to promote the application of the Smart Site Safety System. While the current-term Government’s endeavours are highly commendable, heart-wrenching fatal industrial accidents still happen from time to time. The Government must continue to step up its efforts to safeguard the safety of workers at every step of work. Based on our findings, the Office considers that there is still room for improvement in different areas on the part of the three relevant departments.”
From the analysis of previous fatal accidents, complaints handled by the LD and site visits conducted by the Office, the Office found that in a number of cases concerning high-risk operations such as bamboo scaffolds, lifting appliances and lifting operations, the “competent persons” and “competent examiners” (collectively referred to as “competent persons”) had failed to properly inspect the plant or machinery before signing a prescribed form to certify its safety, or even signed multiple forms in advance. For example, a “competent person” has to sign a “Form 5” to certify that a bamboo scaffold is safe before it can be used by workers. In a site inspection, the Office found that a “competent person” had signed a “Form 5” certifying that a scaffold had been inspected and was in safe working order, but the inspection date mentioned in the form was two days after the date of the Office’s inspection. The Office even found a case where a “competent person” had already signed a form to certify the safety of a scaffold before the scaffold was actually completed.
Moreover, in its investigation into a fatal industrial accident concerning a lifting appliance, the LD found that two registered professional engineers acting in the capacity of “competent examiners” signed a few prescribed forms on different dates, one of which was after a storm, certifying that the lifting appliance was in safe working condition, but they actually had not carried out the required tests and examination.
Mr Chan said, “These ‘competent persons’ failed to carry out inspections properly or even did not carry out any inspections at all, yet irresponsibly signed forms to certify the safety of equipment. Such reckless acts pose a serious risk to the safety of workers and the public. These persons failed to uphold their obligations and meet public expectations, and they must face legal consequences and criticisms from all.” The Office considers that the LD must step up monitoring under a multipronged approach, including exploring the formulation of inspection checklist templates for different types of high-risk operations, requiring “competent persons” to maintain inspection records, and implementing a system of random checks. In the long run, the LD should explore the development of an electronic platform for contractors and “competent persons” to upload inspection records and forms to facilitate monitoring and surprise checking to curb unprofessional or even fraudulent criminal conduct, such as predating inspection forms.
The average amounts of penalty imposed on offenders of OSH legislation in the construction industry between 2018 and 2023 ranged from merely some $8,000 to some $10,500 per year. Comparing to the enormous fees and profits of construction projects, such penalty levels are obviously inadequate to have a deterrent effect. Among those offenders, the two contractors with the highest and the second-highest numbers of convictions during the six years had been convicted 77 and 56 times respectively. This shows that some disobedient contractors in the construction industry are repeat offenders, and their blatant defiance of the law and disregard for OSH are indeed staggering. The Office is pleased to learn that the current-term Government has completed amendments to the relevant OSH legislation, and the Occupational Safety and Occupational Health Legislation (Miscellaneous Amendments) Ordinance 2023, which took effect on April 28, 2023, has significantly increased the penalties for contravention of OSH legislation and extended the time limit for prosecution. Since the new penalties have been in effect for only a short time, the LD should, after the new penalties have been in force for a period, conduct a systemic analysis to review the effectiveness of its prosecution work and the penalties imposed by the Court in convicted cases.
The Office’s investigation also revealed that the BD had long failed to handle cases referred by the LD for determining whether disciplinary action should be taken against contractors convicted of OSH offences. During the decade from 2011 to 2021, the BD has taken disciplinary action against only one contractor on one occasion. The Office has thoroughly examined the reason for the BD’s omission throughout the years. Under the disciplinary system, the BD may take disciplinary action against a contractor when either one of the following two criteria is met: the contractor has been convicted of five or more site safety offences relating to building works in the same construction site in six consecutive months (“Criterion 1”); or the contractor has been convicted of site safety offences relating to building works which involved fatal accidents (“Criterion 2”). The Office found that, in the past decade or so, the BD, upon receiving the monthly summary list of conviction records from the LD, only focused on handling contractors meeting Criterion 1 for consideration of disciplinary action. As regards contractors meeting Criterion 2, the BD admitted omission of follow-up action due to a mistaken belief that, in addition to a monthly summary list of conviction records, the LD would proactively provide details of individual cases for its consideration of disciplinary action.
Furthermore, in the only disciplinary case mentioned above, it took more than six years from the occurrence of the fatal accident in 2009 to the BD’s completion of disciplinary action against the contractor in 2015. The Office has examined the sequence of events of this case and found delays in different time points. For example, it took the BD a year after receiving the LD’s referral to complete analysis and seek detailed case information from the LD. And, after receiving information from the LD, the BD sought legal advice only a year later. This reflects the cumbersome and inefficient procedures for disciplinary action. The Office is glad to see that in response to its observations, the BD has implemented time indicators for handling cases of disciplinary action before the Office’s completion of this report and is striving to process previously omitted cases.
Meanwhile, relevant data shows that site safety has obviously been better maintained in public works than in the construction industry as a whole. While this is not due to luck but to effective regulation by relevant government departments, the Office considers that there is still room for improvement. The Office has selected 12 public works projects involving fatal industrial accidents between 2020 and 2023 and examined the scores that the contractors concerned (i.e. the successful tenderers) received regarding their site safety performance in the tender evaluation. The Office found in many contracts that the successful tenderer was given a rather low score regarding site safety performance, and some were even given the lowest score among all the tenderers. Yet, these successful tenderers still managed to win the bid because of their higher scores in tender price or other technical parts. Although the Office found no systemic occurrence of “the lowest bid wins” situation in the tender evaluation of public works, the case studies showed that adequate consideration had not been given to tenderers’ previous performance of site safety. This is because items relating to site safety did not weigh much, and the score gaps between tenderers were narrow, resulting in only an insignificant impact on the overall outcome.
Mr Chan said, “The Office is glad to learn that, during this direct investigation operation, the DEVB introduced in November 2023 a new tender evaluation system whereby a merit or demerit point would be applied having regard to the tenderer’s previous performance of site safety. The DEVB should continue to review the tender evaluation system for public works in a timely manner to ensure that only contractors whose performance meets the safety standards are awarded contracts.”
Another noteworthy point is that, during the six-year period from 2018 to 2023, there were 45 fatal accidents relating to renovation and repair works in total, accounting for a significant 42 per cent of all fatal accidents in the construction industry. Based on case studies and site inspections, the Office found serious inadequacies in safety measures for renovation and repair works and a lack of basic safety awareness among workers and even property management companies, property owners and residents. The Office recognises the sheer volume of renovation and repair works under way throughout the territory. The LD alone can hardly ensure the safety of this kind of small-scale works, and property management companies, owners’ corporations, property owners and residents should also take part in monitoring. In fact, property management companies, owners’ corporations, property owners and residents have clear legal responsibilities under OSH legislation and may face civil claims or even criminal liability in the event of accidents. The Office considers that the LD should step up publicity and education among these stakeholders, stressing in particular their legal liability in relation to renovation and repair works and the legal consequence (whether criminal or civil) and loss in case of accidents. This is to ensure that these stakeholders understand it is in their own interest to protect the safety of workers, and at the same time incentivise them to engage contractors and workers with a good safety record.
On the whole, the Office has made 40 recommendations for improvement in nine major areas, including the LD’s regulation of high-risk operations; the LD’s inspections; the LD’s enforcement and prosecution; the LD’s monitoring of registered safety auditors and registered safety officers; the BD’s regulation of registered contractors; the DEVB’s monitoring of public works and contractors; the use of innovation and technology; safety education and training; as well as publicity and promotion. The Office is pleased to learn that the LD, the BD and the DEVB have accepted all of its recommendations.
Mr Chan said, “To enhance OSH in the construction industry, the Government is duty bound to carry out effective regulation. However, stakeholders within or outside the industry, including contractors, workers, trade unions, various types of safety personnel, as well as owners’ corporations, property owners, residents and property management companies who are involved in renovation and repair works, all have a role to play. I hope all stakeholders will work together to safeguard site and worker safety, eradicate undesirable habits, and prevent accidents from happening for the benefit of society as a whole.”
The Office’s major recommendations for improvement to the LD are:
• explore formulating templates of inspection checklist for different types of high-risk operations and attach them to the relevant codes of practice for use by “competent persons” during inspections or examinations to tighten control;
• conduct a comprehensive review of the existing requirements for maintenance of inspection records by “competent persons” regarding different types of high-risk operations, specifying the inspection records to be maintained and the need to produce such records upon the instruction of the LD officers;
• in the long run, explore the development of an electronic platform for contractors and “competent persons” to upload inspection records and forms to facilitate monitoring and random checking to curb unprofessional or even fraudulent conduct, such as predating inspection forms;
• review the operational guidelines on the conduct of in-depth surprise inspections for more precise selection of high-risk construction sites and proper follow-up on sites inspected to ensure systemic improvement of site safety;
• continue to pursue legislative amendment work to enhance the statutory notification mechanism for construction works;
• after the new penalties for OSH offences have been in force for a period of time, conduct a systemic analysis to review its prosecution work and the penalties imposed by the Court in convicted cases;
• take more proactive steps to follow up on the performance of registered safety auditors and registered safety officers on the monitoring list by, for example, making close observations of their actual performance on the site and careful examination of the reports they submit to enhance the quality of their work;
• drawing on the painful lessons from previous fatal accidents, remind site personnel including registered safety officers and registered safety auditors of the issues to which they should pay attention during their routine inspections or safety audit to strengthen their ability to detect irregularities in site operations and enhance the quality of their work;
• step up the monitoring of course providers and trainers engaging in mandatory safety training courses and carry out surprise checks in a timely manner to ensure their quality. In case of irregularities, the Department should be decisive in taking regulatory action;
• consider co-ordinating efforts of relevant departments and organisations to set up a thematic website on OSH in the construction industry to provide a convenient platform for various stakeholders and the public to look for information they need;
• step up publicity and education among property owners, owners’ corporations, property management companies and residents through mass media and the platform of property management companies, stressing in particular their legal liability in relation to renovation and repair works and the legal consequence and loss in case of accidents; and
• enrich the content of the publications and information on analysis of accidents, adding the roles and responsibilities of various stakeholders and how they can avoid accidents.
The Office’s major recommendations for improvement to the BD are:
• speed up processing of previously omitted cases and promptly refer those warranting disciplinary action to the Registered Contractors’ Disciplinary Board to bring non-compliant contractors to account; and
• set up a mechanism for internal monitoring to ensure timely follow-up on all referrals from the LD for consideration of disciplinary action against convicted contractors.
The Office’s major recommendations for improvement to the DEVB are:
• continue to review the tender evaluation system for public works in a timely manner to ensure that only contractors whose performance meets the safety standards are awarded contracts;
• continue to review the regulating requirement regarding contravention of legislation related to site safety for more effective prevention of accidents;
• after various promotional measures have been implemented for a period of time, review the adoption of the Smart Site Safety System and, with reference to the feedback from the industry, step up efforts to encourage and support wider use of the system in private development sites to enhance site safety by means of technology; and
• share with the Construction Industry Council the experience of safety training in public works for its consideration of offering subsidies as incentive, with a view to extending such safety training to private works projects to enhance site safety.
The full investigation report is available on the website of the Office of The Ombudsman at www.ombudsman.hk for public information.