Recent Developments in Workplace Safety and Health

By Kala Anandarajah*

Partner and Hazel Guiling

Galimba, Foreign Lawyer

M/s Rajah & Tann*

Kala Anandarajah is a member of the Workplace Safety and Health Advisory Committee as well as Chairperson of the Engagement and Publicity Sub-Committee (under the WSHAC).

The views stated in this article are her own.

Overview

A series of high-profile accidents in 2004, including the Nicoll Highway collapse which killed four workers and a tanker blaze at Keppel Shipyard which killed seven, prompted the Singapore Government to formulate stricter rules for workplace safety and health through the Workplace Safety and Health Act (‘WSHA’). These stricter rules have found their reach to the board as a whole and directors individually as well.

This article takes a quick look at the recent developments in workplace safety and health since the inception Recent Developments in Workplace Safety and Health of the WSHA, and provides an insight into the scope of the director’s potential liabilities under the new Act.

One Violation Under the WSHA

Leelloyds Marine Engineering (‘Leelloyds’) and its assistant manager, Low Lye Wah (‘Mr Low’), became the first company and the first person respectively to be convicted and sentenced under the WSHA. The District Court on 4 April 2007 fined Leelloyds S$100,000 for failing to ensure the safety of its employees, resulting in the death of Malaysian worker James Balang (‘Mr Balang’). Mr Low was sentenced on 25 April 2007 to three months’ jail.

The accident happened on 5 March 2006 when Mr Low was supervising four workers, including Mr Balang, in a repair and maintenance work on M.V ‘Dynasty’ ship at Eastern Special Purpose Anchorage. Mr Low, a trained lifting supervisor and a qualified rigger, was put in charge of all mechanical works on the said ship. At the material time, Mr Low was passing four bags of tools from the deck of the ship using a rope. He instructed the four workers to board a ferry boat to receive the loads. The first three loads were lowered to a reasonable height of about 1 metre from the boat deck before the boat was steered alongside the ship for the workers to receive the loads. While the third load was being untied by one worker, Mr Low decided to use the other end of the rope to lower the fourth load. The fourth load came loose from the rope’s knot and the 15-kilogram bag plummeted 10 metres before hitting Mr Balang. Mr Balang was rushed to the hospital, where he died an hour later from intracranial hemorrhage and cerebral lacerations.

The Court held that under the WSHA, Mr Low had the responsibility and the necessary training to ensure that the works on the ship, including lifting / lowering operations, were carried out smoothly and safely. Mr Low, being a trained and experienced rigger, ought to have fully appreciated the extent of the risk of lowering the fourth load while the third load was still being untied. The Court ruled that Mr Low’s culpability lies in his knowledge of the risk involved and proceeding with the act despite the danger of injury and death.

In this instance, the directors were not implicated. Whilst there are no discussion at all in publicly available materials, one can postulate that a possible reason for this is that the board had delegated the task of supervision to a well qualified and experienced supervisor.

There have since been other deaths and alleged violations of the WSHA. However, no prosecutions have been made public as yet. In each of these additional violations, there remains the possibility that the directors could be implicated as well, apart from appropriate site supervisors.

Who are Caught by the WSHA?

The old regime which was regulated under the Factories Act (which has since been repealed) assigned legal liability only to the occupier of the factory. The new regime regulated by the WSHA assigns imposes duties and responsibilities on several different parties, including the employer, occupier, principals, owners, etc.

Whilst each category of persons upon whom liability is imposed has varying duties, broadly they are required to ensure a risk free environment, where work facilities and arrangements are maintained in a safe manner for workers, and having proper control measures in place for dealing with safety and health procedures and emergencies that could potentially arise. Indeed a Singapore Court of Appeal case has said that the whole object of the law imposing a duty on employers to provide a safe system of work was precisely to protect an employee from his or her own inadvertence of carelessness. Put another way, the WSHA has the following objectives:

• reduce occupational risks at source by requiring all stakeholders to minimise or eliminate risks which they create

• instil greater ownership of safety outcomes

• prevent workplace accidents through higher penalties for poor safety and health management

In achieving these objectives the focus is on the concept of taking ‘reasonably practicable’ measures.

Persons Responsible Required to Take Reasonably Practicable Measures

The WSHA mandates employers to ‘take, so far as is reasonably practicable, such measures to ensure that the workplace and any machinery, equipment or article found in the workplace are safe and without risks to health to [their] employees’. This entails taking active steps to implement proactive and sound management systems to prevent accidents and deaths at workplaces.

Whether measures put in place by an employer are ‘reasonably practicable’ would largely depend on the circumstances of each case. ‘Reasonably practicable’ is determined by asking what a reasonable employer in the same position and circumstances would do to prevent an accident or minimise risk at the workplace. Thus, the work and safety procedures that the employer needs to develop must be workplace specific (ie suited to the company’s particular situations). Depending on the specific needs and organizational set-up of a company, the employer may appoint various personnel with the right skills and experience to manage safety, and provide them with adequate resources and trainings to carry out their duties effectively. The risks associated with the workers’ job must be identified. Additionally, the employer must ensure that the safety and health management system of the company is communicated to all workers promptly and efficiently for proper understanding of the risks of their job.

How does this Impact on Directors?

The WSHA expressly provides that where a company has committed an offence under the Act, an officer of that company can be held guilty of the offence. An officer includes directors and managers of the company.

Hence, strictly in the Leelloyds’ case discussed above the directors and mangers of the company could have been held accountable since the company was found guilty as well.

The only way a director or manager can escape liability is to show that:

the offence was committed without his consent or connivance and that he has exercised all such diligence to prevent the commission of the offence as he ought to have exercised having regard to the nature of his functions.

The effect of this defence as set out is that the director must show that he has exercised his duty of delegation (which is also available under the Companies Act) in a reasonable manner to such persons with the requisite capabilities, and that he has ensured that proper safety and health control systems have been put in place. It would also be necessary for the director to ensure that there is regular reporting back to the board as a whole as to the status of control systems and whether they are effective.

Note that it is not necessary for the director to be actively involved in the design or the implementation of the control systems. It is only crucial that he has considered the matter carefully, appointed suitable persons to implement the relevant systems, and obtains regular reports as to the effectiveness of the system. A director who has done this would have satisfied the reasonably practicable measures test discussed above.

Whilst this may appear as an onerous function to many a director, a director is afterall an agent of the company and must ensure that the company meets with all legal requirements. The director cannot take a hands-off approach by maintaining that this is a task for management and that they should not be involved.

Concluding Words

This short article has provided only a broad overview of how the WSHA could potentially impact on directors. This approach to managing health and safety is not new and is already prevalent in major countries across the world, including Australia, Hong Kong and the UK. Where lives are at stake, one cannot quibble that the legislation is too onerous. Instead, the people who direct how companies are run must take the lead and ensure that proper systems are put in place to ensure a safe and healthy work environment.

Given that the WSHA has deviated from a compartmentalised approach taken by the Factories Act to a more pragmatic performance-based approach in addressing workplace safety and health, directors are better able to meet their responsibilities. Effectively, the shift is aimed at effecting cultural change within the workplace from merely following the ‘letter of the law’ to taking responsibility and ownership of workplace standards and outcomes. The underpinning principle under the WSHA is to prevent or mitigate risks at source, and not merely to respond to existing risks. The cultural change must also be met and in fact led by the board as a whole.

For information, the WSHA currently covers the high-risk industries previously covered by the Factories Act, ie factories, shipyards and construction worksites. Eventually, the WSHA will be expanded to include workers in workplaces in all sectors. The expansion of coverage will be carried out in phases.