OSHA lacks top management Investigation stalls
By Andre Bagoo Sunday, August 15 2010
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A patient is carried over the collapsed Balandra Bridge....
ALMOST an entire year since the death of Chinese construction worker Zhi Shen at the site of the construction of the Tranquillity Government Primary School, the statutory body charged with investigating the incident is yet to complete a report.
On September 26, 2009, Shen, 50, fell 12 feet while working at the site of the school, which was then under construction at the corner of Stanmore Avenue and Tragarete Road, Port-of-Spain. He suffered injuries and in the hours after his fall, underwent emergency surgery at St Clair Medical Hospital in Port-of-Spain. But eight days after he fell, Shen died at the Intensive Care Unit of the hospital.
Although the accident which led to Shen’s death happened on September 26, 2009, it was not reported immediately by Shen’s employers to the Occupational Safety and Health Authority and Agency (OSHAA), which is the statutory body charged with enforcing safety laws at worksites.
Section 46 of the OSH Act, the legislation which governs safety laws in Trinidad and Tobago and which empowers the OSHAA to enforce OSH laws and regulations, stipulates that employers must “forthwith” inform the OSH Chief Inspector of accidents which cause death or serious injury at a worksite. Further, a written notification of the accident — even if no fatalities occur — must be filed with OSHAA “within 48 hours”. Beijing Luijian, which had been contracted by the State reportedly after a tendering process, failed to file any report or notify OSHAA for three days after the incident.
An employee of Beijing Luijian Construction Corporation (Trinidad and Tobago Limited), the Chinese firm that had been contracted by State company Education Facilities Company Limited (EFCL) to construct the school at a budgeted cost of approximately $35 million, later revealed that Beijing Luijian only reported the accident to OSHAA on September 29, 2009.
The delay lead OSHAA’s communication’s specialist, Alicia Charles, to report that preliminary investigations revealed there was a breach of Section 46. On September 29, she said OSHA would continue their investigations into the matter since safety was a priority in the work place.
Amidst concern that the OSHAA has not been able to properly pursue prosecutions for worksite deaths, the OSHAA last month confirmed that the investigation into Zhi Shen’s death is still ongoing, even though almost a year has passed.
In a letter addressed to the Joint Consultative Council (JCC) of the local construction industry, which applied under the provisions of the Freedom of Information Act seeking a final report into Shen’s death, the Acting Chief Inspector Devnath Roopnarine revealed that the case had not yet been closed.
“This matter is still open and the investigation is ongoing,” Roopnarine wrote in a letter dated July 23, 2010, which was obtained by Sunday Newsday. As such he refused the JCC’s application for OSHAA’s final report, an application which had been lodged a month earlier on June 30, 2010. Roopnarine asked the JCC to resubmit their application “no earlier than three months” from the date of his letter.
By way of contrast, a final OSHAA report into the worksite death of Ramnath Bissoo, who died on August 2, 2008 at the site of the dismantling of the old Caroni Bailey bridge off the Old Southern Main Road, was completed 20 days later.
Under OSH laws, time is of the essence. The Act imposes a six-month limit from the time an inspector concludes that there has been an offence for prosecutions. Additionally, there is a two-year limit for all proceedings under the Act, including investigations.
The failure of the OSHAA to complete a report into Shen’s death comes amidst concerns over the slow rate of prosecutions under the OSH Act. Sunday Newsday last week reported that while workers continue to die at worksites (65 have died since 2000) there has been to date been only one prosecution for a worksite fatality under the OSH Act.
Sunday Newsday investigations have further revealed that a PNM Cabinet decision to restructure the human resources of state entities like OSHAA in 2009; legal vacillations over the powers of OSHAA and a clear manpower gap right to the very top of the organisation, now present challenges to an organisation which is doing its best to enforce safety laws in the country.
“We don’t have an executive,” an OSHAA official said this week. Checks revealed that for more than a year, the OSH Agency, which is the executive arm of the organisation headed by an executive director and a chief inspector, has been without a head. The last executive director Netherlands-born Paul Huijzendveld retired in June 2009.
During his tenure, Huijzendveld complained of a lack of manpower. “Our legal department is very much overburdened. We are waiting for Cabinet approval for more staff. We could use more,” he told Sunday Newsday in May last year shortly before retiring. Yet, Cabinet appeared to do the opposite.
According to staff at OSHAA, the Cabinet took a decision to restructure the human resources of the body. The human resources department then shed key members of staff, including one senior legal adviser.
“Around six to seven people got laid off. Their positions were made redundant,” an official said. Currently, an “administrative consultant”–Harry Sooknan–is performing the function of executive director. There is no permanent chief inspector, just an acting chief inspector, Roopnarine. Additionally, the entire OSH Authority, which is the non-executive arm of the body which supports the agency and drafts and revises safety codes of practices for use in the country, is non-functional, with none of the members who are supposed to be appointed under the statute in place. The Authority is being led by a deputy chairman, Ryan Ramjit.
Sources this week noted that the shake-up of the staff at OSHAA followed a series of exchanges between former Labour Minister Rennie Dumas and the legal staff at OSHAA over an issue which appears to have bogged prosecutions under the Act.
In the wake of Bissoo’s death in 2008, OSHAA inspectors, in a final report dated August 22, 2008, recommended that the ministry overseeing the Caroni Bailey Bridge dismantling exercise, the Colm Imbert-led Ministry of Works and Transport (MOWT), be charged for violating several provisions of the OSH Act in relation to Bissoo’s death.
A senior legal adviser was asked to determine if the OSHAA has powers to charge another state agency for violating the Act. Section 5 (2) of the Act states that, “this Act shall apply to industrial establishments belonging to or occupied by the State.” Section 5 (4) further makes clear: “this Act binds the State.” In September 2008, the senior legal adviser concluded that OSHAA was empowered to bring charges against the MOWT. That legal adviser is now no longer with the organisation. In the wake of the Cabinet HR shake-up, an acting legal adviser currently serves at the organisation, notwithstanding Huijzendveld’s plea for more legal staff.
In February of this year, Dumas, who sat on the OSH Authority, not Agency, wrote Attorney General John Jeremie in unclear circumstances, seeking legal advice on whether charges could be brought against Imbert’s MOWT. Right up to the May 24 General Election, Jeremie did not respond. A year earlier, Jeremie had advised Cabinet to fire the workers involved in the incident and to pay damages to the family of Bissoo. No damages were paid. No charges were ever brought. The Cabinet’s approach to the issue of State liability appeared, at best, ambivalent and, at worst, evasive.
Contacted this week, Dumas confirmed the human resources shake-up at OSHA.
“A human resources management company was given the mandate to restructure human resources at state agencies,” Dumas said. He would answer no questions over his letter to Jeremie and the apparent delay over legal questions of State liability. “I am now a private citizen. Matters of State are best left to current office holders.”
OSHAA inspectors, though, are said to be aware of the legal manoeuvring over the issue of State liability. It is unclear whether the State’s apparent position that it cannot be prosecuted under OSHA has made inspectors hold their hand in completing a final report in relation to Chinese worker Shen’s death, almost one year ago. What is clear is that dozens of reports have been completed by OSHAA inspectors which have found offences. But action on these reports, in the form of prosecutions, has stalled.
This week Minister of Labour Errol McLeod said a review of the OSH legislation is currently being conducted by the Government, in the wake of reports by Sunday Newsday over the last month on the issue. In particular, he said Section 93 of the Act, which arguably places a six-month bar to prosecutions, is to be examined.
“I have taken note of these issues and we are in the process or reviewing the Act and in particular that provision,” Mc Leod said.
For the staff who work at OSHAA, for the workers who continue to die and for the families of worksite accident victims, reform action now would be better late than never.
OSHAA–What is it?
The Occupational Safety and Health Authority and Agency (OSHAA) is the body, set up by the OSH Act, to implement the provisions of the Act and enforce safety laws at worksites throughout Trinidad and Tobago. The Act was first laid in Parliament in 2003, passed in 2004, yet only fully proclaimed in 2007 after a partial proclamation in 2006. The hitch lead to technical legal arguments over the validity of charges brought between that period.
The OSHAA comprises an Agency and Authority. Under Section 65 of the Act, the Authority comprises: a chairman and deputy chairman, by the minister, the Executive Director of the Agency appointed, as well as 13 other representatives of stakeholders in the industry. The non-executive authority is charged with such tasks as drawing up safety codes and staffing and supporting the executive OSH Agency. Today, the Authority is not in place.
Under Section 69, the OSH Agency includes: an executive director; a deputy director; a secretary. A chief inspector, appointed by the Authority, reports to the Agency’s executive director. The Chief Inspector leads a powerful team of inspectors who go into the field and report on safety incidents, including worksite fatalities. They also determine if an offence has taken place. There has been no executive director or chief inspector for about a year.