The following are the first 11 pages of a 57 page Draft. For the whole draft go to the Office of the Complaints Commissioner. Please see today’s (15) iNews Cayman Editorial

DRAFT

“DANGER: CONSTRUCTION AT WORK.”

OWN MOTION INVESTIGATION BY THE OFFICE OF THE COMPLAINTS COMMISSIONER

“DANGER: CONSTRUCTION AT WORK.”

“An investigation into the ability of the Department of Labour and Pensions (DLP) – formerly the Department of Employment Relations (DER) – to effectively and properly oversee, inspect and ensure Health and Safety at work for those involved in the construction industry, as mandated under the applicable Law and Regulations”.

COMMISSIONER’S INTRODUCTION

The photograph on the cover of the Report depicts the collapse of scaffolding outside of the Anderson Square building on 4 June 2010. It is important to state right at the outset that this scaffolding collapse was not the fault of the then Department of Employment Relations (DER); indeed, 2 days before this incident happened, two senior DER staff members warned them about the need for secure ties for the scaffolding – both inward ties (scaffolding to building) and outward ties (scaffolding to ground). On being warned, the attitude was reportedly nonchalant. According to a former senior member of DER staff, scaffolding issues were and are still very common.

However, this photograph is emblematic of the state of Health and Safety in the construction industry in the Cayman Islands – a regulatory infrastructure which, if not improved, could collapse at any moment. Despite the reorganization of DER into two departments, one of which, the Department of Labour and Pensions (DLP), deals with health and safety matters, the situation remains the same today.

The OCC acknowledges that, whilst there is room for improvement, the Labour Inspectors are generally doing a good job despite being hobbled by inadequate resources. Three OCC staff attended Occupational Safety and Health Administration (OSHA) Courses run by the then DER in December 2010 and February 2011, and all were awarded certificates by the Honourable Minister Anglin. As Complaints Commissioner, I also endorsed the course, and my remarks praising the course were reported in the media (“DER in push to improve workplace safety” – May 6 2011). My endorsement was repeated in the OCC press release dated 19 August 2011 launching this investigation: “I want to make it clear at the outset that, at present, the Labour Inspectors responsible for Health and Safety are doing good work within the financial and other resource constraints under which they operate. OCC staff has also attended Health and Safety courses run by DER and are now OSHA certified, and as Commissioner I am on record for praising course content”.

However, this should not be seen as a charter for complacency. The proper and effective regulation of Health and Safety in construction affects not only workers employed in this industry, but also members of the general public who could be injured – or worse – from

falling masonry, unsecured scaffolding (as in the Anderson Square scaffolding collapse) and other Health and Safety breaches. This concern for the safety of the general public as well as the employees is one shared by the Cayman Contractors Association.

The OCC will monitor all recommendations made for compliance.

POWERS OF THE OCC

The aim of the Office of the Complaints Commissioner is to investigate complaints against government in a fair and independent manner in order to determine whether injustice has been caused by improper, unreasonable, or inadequate government administrative conduct, and to ascertain the inequitable or unreasonable nature or operation of any enactment or rule of law.

Sec.11(1) of the Complaints Commission Law (2006 revision) empowers the Commissioner to launch an investigation without first receiving a written complaint (i.e. of the Commissioner’s Own Motion) for a particular issue that is deemed as having special importance which then makes an investigation by the Commissioner desirable in the public interest.

EXECUTIVE SUMMARY

a)        Reasons for investigation

Health and Safety issues are wider than just those that particularly affect the construction industry, and it is true that Health and Safety, even taken as a whole, is only one aspect of the work of DER and DLP over the period covered by this Report, 2005- 2012. It is also true that at a time when there are constraints on all sorts of resources, all government departments are expected to do more with less. However, the construction industry is in a category of its own. It is a high-risk industry, and there is no price that can be placed on human life. Of all the work the Department undertakes, any failings on their part in this area have the potential to be the most damaging to its reputation. Put plainly, if there is an accident on a construction site due to negligence or failure to comply with Health and Safety standards that could have been prevented by a more robust programme of inspections, it is possible that not only the offending construction company, but also the Department and the Ministry, could be subject to legal action. At the very least, the resulting negative publicity would concentrate the minds of the public on a Departmental failing rather than any of the other good work it has done and continues to do.

b) Scope of the Investigation and Terms of Reference

The Terms of Reference of this investigation are: “An investigation into the ability of the  Department of Labour and Pensions (DLP) – formerly the Department of Employment Relations (DER) – to effectively and properly oversee, inspect and ensure Health and Safety at work for those involved in the construction industry, as mandated under the applicable Law and Regulations” – including examining the effectiveness of existing legislation, and the role of other entities in contributing to proper regulation.

c) Findings

FINDING: Whilst the OCC would strongly support amendments to existing legislation, there is a corresponding duty on Labour Inspectors to cooperate, and work more closely, with the Government Legal Department in a timely fashion, in particular with regard to the delivery of complete instructions and the collection of files. The Department should also be more proactive in looking for matters to prosecute where warranted.

FINDING: OCC interviews with DER staff clearly demonstrated that, as of 2011, there was far less awareness amongst existing DER staff of the importance and effect of these international laws and conventions, and their attendant obligations, than there should be. Unfortunately, there is nothing to indicate that the level of knowledge in this area is any greater since DER became the Department of Labour and Pensions. This must be addressed in training; ignorance should not be seen as an excuse.

FINDING: There is a wealth of collective experience in DLP (formerly DER) but the Department must better demonstrate its professionalism across the board if they are to get and maintain the respect of members of the public and persons in the industry (both employers and employees) alike. Labour Inspectors must carry out more proactive investigations, improve the quality of reports where necessary, maintain valid OSHA training certificates, minimize time spent on negotiations, and conduct a comprehensive outreach programme which must have the full and active involvement of those at Assistant Director level and above.

d) Recommendations

The intent of the OCC Recommendations is to ensure that Health and Safety in the construction industry is properly and effectively monitored by the Department of Labour and Pensions (formerly the Department of Employment Relations). DLP, like DER before it, is doing as much as it can with limited resources, both financial and personnel. The Labour Inspectors are by and large very committed, but they are inadequately resourced for an important role which, although ultimately protecting the lives of both workers and members of the public, has been reduced to just one of many job functions. The OCC Investigation has taken a 360 degree approach. As a consequence, the recommendations not only impact on the Department but on wider aspects of Health and Safety in this particular area.

The new DLP Director has only recently been appointed to lead this newly restructured Department. With the new Department in its infancy, this provides the best possible opportunity to implement the following OCC recommendations, thereby demonstrating a clear commitment to proper regulation in this area not only to those involved in the construction industry and members of the public, but also internally to staff.

DLP

DLP should establish a dedicated Health and Safety Unit. This is perhaps the single most important recommendation. Even a small unit comprised of two Labour Inspectors, one senior, would enable them, and DLP as a whole, to be more proactive – preventing accidents from happening rather than reacting to incidents after the fact. The Unit would be able to do more workplace inspections without notice (a proven way of increasing workplace safety), and conduct public education, outreach and training to contractors.

Training should be brought and kept up to date. OSHA certification, or its equivalent, for Labour Inspectors is crucial, but training must also include instruction on the relevant ILO conventions, CARICOM Labour Laws and other international obligations. As of December 2011 there was far less awareness amongst existing DER staff of the importance and effect of these international laws and conventions, and their attendant obligations, than there should be. Ignorance would not be seen as an excuse.

Better resources, equipment and transportation, including, but not limited to, oxygen meters, light meters, noise level meters and HD cameras. All of the above are essential professional tools enabling Labour Inspectors to properly conduct inspections and otherwise discharge their duties in this area.

DLP must cooperate, and work more closely, with the Government Legal Department in a timely fashion, in particular with regard to the delivery of complete instructions and the collection of files. The Department should also be more proactive in looking for matters to prosecute where warranted.

In the professional opinion of Samuel Goolsarran, author of the Goolsarran Report, when interviewed for this investigation, any labour inspector owning or running a construction company would be guilty in his view of a serious professional breach. This could be a conflict of interest, and would tend to demonstrate a less than professional approach to the work; indeed, there is clear evidence with at least one former employee that this has been flouted in such a way that created a clear conflict of interest. This opinion was also shared by one of the victims of a construction accident interviewed for this report (see section 8(d), post). The OCC agrees with this, and recommends that no new staff employed by DLP may own, run, or have a substantial interest in a construction company. However there may well be existing Department staff that are thus engaged in the construction industry outside their core work for the Department, and to either dismiss them or ask them to immediately relinquish their interests in such companies would be too draconian. The OCC therefore recommends that all existing DLP staff, at whatever level, should sign a Register of Interests with a continuing obligation to keep it updated, with failure to do so being considered a disciplinary offence. The OCC is aware that Departmental staff are already expected to declare such interests but this has proven ineffective as currently operated.

Contrary to the recommendation in the Goolsarran Report, Labour Inspectors should move back from being generalist to being specialists, especially where Health and Safety is concerned. This is a view supported by the Ministry but has yet to take place in any practical way

DLP must set up a better filing system and/or more comprehensive database. This would not only assist staff internally, but would also greatly assist in the preparation of files before they are referred on to the Government Legal Department.

LAW

The following are specific legislative changes recommended by the OCC:

The Director should have the power to close an entire worksite under S.65(6) of the 2007 Labour Law.

All companies, no matter what size, must keep records, and Labour Inspectors should be able to go back more than 2 years when examining records.

Increase current fine levels (separate from administrative fines) and other penalties to a level where they are a painful disincentive to compel employers to comply with the law. This concurs with Goolsarran’s strongly held view that penalties have to be meaningful – “an incentive to keep the law, and a disincentive to break it”.

Charities and non-profit, non-commercial organizations should be covered by the Labour Laws and Regulations.

Failure by a company or an organization to appoint a Safety Officer should be an offence under the Labour Law and/or Labour Regulations.

Consideration should be given to enacting as soon as possible the 2004 Employment Law, Part IX (sections 60-72) of which specifically deal with Health, Safety and Welfare.

OTHER AGENCIES

The former DER had a good working relationship with both the Department of Planning and Cayman Contractors Association, and it is to be hoped this will continue under the new DLP. However, there must be better and more effective communication and liaison between DLP and Immigration; Environmental Health; Trade and Business Licensing Board; the Department of Commerce and Investment; Lands and Survey; and all other relevant government entities – whilst simultaneously taking great care to underscore and emphasise the independence of the DLP, particularly in matters relating to Health and Safety.

Employers who routinely and deliberately flout their legal Health and Safety obligations, therefore risking the lives of their workers and possibly innocent passers-by should not be awarded Trade & Business Licences and/or Work Permits.

OTHER

A driver should only be allowed to operate a crane or forklift truck if they are certified to do so. At present, persons driving such equipment need only a Group 4 Licence.

Protection of whistleblowers – the Law should be changed to allow penalties for victimization in order to protect reporters of wrongdoing (AKA “Whistleblowers”). This would also help to underscore the seriousness with which unsafe practices, which could endanger the lives of construction workers and members of the public alike, are viewed.  However, it must also be noted that a number of both current and past members of the Department have expressed concerns with the level of confidentiality within the Department itself. This is unhelpful, unfortunate and unprofessional. There is little point in legislative change in this area if this continues to be a problem within the new DLP.