Enhesa Enforcement Corner - Issue 4
Input from Deirdre Perquy, Kengo Okuda, TaoTao Yue, Siyang Song, Jinxin Sui, Riccardo Zorgno, Jade Kennedy, Tjeerd Hendel-Blackford
Enhesa keeps an eye on key regulatory enforcement actions around the globe. Here are just some examples of the many enforcement cases around the world in October and November 2017...
Netherlands
1. A company director was sentenced to 12 months prison, with six months, under conditions, for violating environmental laws. In addition, the company in question received a EUR 40,000 (USD $49,878) fine for three violations.
Company wastewater had been dumped in the public sewers and the company site had a basin for wastewater, without having the required valid permit. In addition, the director and the company did not take adequate measures to prevent soil pollution when wastewater flowed out of the basin.
When evaluating the case, the court considered that the director, as well as the company, had a great lack of respect for the environment and the health and wellbeing of the neighboring inhabitants. Also, the director and company showed a lack of respect for the regulations and for the authorities.
2. A chemical company received a fine of EUR 100,000 (USD $124,695) following two incidents which involved the release of chlorine gas and hydrochloric acid.
Two employees were hospitalized in 2013 after they inhaled chlorine gas that had escaped from pipes. The company did not report the incident to the relevant inspectorate. In a separate incident, in 2015, four employees were exposed to hydrochloric acid. A cloud of hydrochloric acid blew over a public road and companies in the neighborhood had be evacuated. The subsequent investigation found that the employees in question were not wearing the appropriate protective clothing.
Italy
1. Liability of companies for accidents caused by contractors.
A legal representative of a company was found guilty of involuntary manslaughter following the death of a worker employed by a contractor. The worker died after falling from height. The Supreme Court assessed that he was not adequately trained and the Safety Operation Plan of the site did not include the specific risk of falling, nor provided the relevant safety measures to prevent such risk.
Specifically, on the relationship of an employer with contractors, the Court stated that the company as committer is not a mere observer of the contracted works, but it plays a fundamental role in implementing safety measures at work, with stimulating and control duties. Moreover, it recalled that both the company and the contractor hold a wide position of guarantee that requires them to put in place all necessary measures for carrying out incisive and substantial checks/controls for accident prevention. In particular, the company must ensure that the contractor has complied with the obligations on this topic; in this view, his position is equal to the contractor's one.
2. Liability of companies for defects of machinery.
A company owner was convicted following injuries to a worker caused by malfunctioning machinery, in conjunction with the machinery manufacturer, even though the machinery had the necessary safety certifications. The Supreme Court underlined that the employer, as owner of the machinery, has a duty to ensure that machinery its employees use is safe and fit for the work in question. Therefore, employers will be liable for accidents due to machinery construction defects if no proper verifications or tests are carried out before its use, together with the manufacturer or distributor. Moreover, the duty to verify and test machinery before use is applicable even if there are safety certifications, since employers are in a position of “autonomous guarantee” regarding workers' safety and the safety rules are addressed directly to them.
3. Liability of companies for worker’s unexpected behavior.
An employer was convicted for not having ensured health and safety provisions of a worker who suffered a serious accident as a result of his unexpected behavior. On the basis of the objective and unavoidable guarantee that employers must prevent of accidents at the workplace, the Supreme Court excluded the possibility for employers to justify the accident as the worker's own fault, even in co-responsibility, since the employer's duty is to ensure the fulfillment of health and safety provision. The Court recalled that the aim of safety measures is also to prevent accidents caused by worker's negligence, imprudence or incompetence (colpa).
Australia
1. On 6 November 2017 a waste management company and one of its directors were convicted and fined a combined total of AUD 360,000 (USD $291,697), after a laborer was fatally struck by an excavator with missing mirrors. In addition, the waste sorting site in question didn't have a traffic management plan, or a system of work that required excavator operators to alert other workers when they were on the move.
2. An employer that failed to consider whether the use of attachments could affect a forklift's lifting capacity was ordered to pay nearly AUD 100,000 (USD $81,027) in fines and costs, after the vehicle tipped over and trapped two workers.
The employer failed to calculate the correct working load limit of the vehicle, and failed to conduct a risk assessment before the incident, despite this being the first time that site employees had used the jib attachment and rotator method to lift the bags onto trucks. The employer also failed to provide employees with the necessary information to determine the maximum weight that could be lifted by the forklift with attachments, or training on the safe use of the jib.
The same company had previously been fined for OHS offences relating to a degloving incident and a grinding incident resulting in facial injuries.
3. A company was convicted and fined nearly AUD 30,000 (USD $24,308) and forced to shut down, after one of its managers sustained face, neck and hand burns in an explosion in a confined space.
In July 2016, the manager applied a flammable solvent to the inside of an open-topped electrical transformer tank to prepare it for painting, before using a wet-dry vacuum cleaner to remove excess liquid, which triggered the explosion.
United Kingdom
1. A kitchen supplier-manufacturer was fined GBP1.2 million (USD $1.7 million) following the death of a visiting HGV driver at one of the company’s premises after he was crushed by a fork-lift truck. An investigation into the incident that took place on 10 November 2014 found the fork-lift truck had been overloaded and that visiting delivery drivers were not kept at a safe distance from the loading and unloading operation.
2. A plastic and paper manufacturing company was fined GBP 100,000 (USD $142,197) after a worker suffered crush injuries from trapping his hand in an unguarded printing machine.
The employee’s hand was drawn into the print rollers while he was attempting to clean the running machine resulting in partial amputation of two fingers. An investigation by the Health and Safety Executive (HSE) into the incident which occurred on 5 December 2016, found that the lack of guarding on the machine was the root cause of this incident together with a lack of training and supervision.
3. An office furniture manufacturer was fined and ordered to pay costs totaling GBP 110,000 (USD $156,416) after putting employees at risk with widespread safety failings and failure to comply with previous Improvement Notices.
Five Improvement Notices (IN’s) were served during the investigation by HSE including two requiring the company to assess the risks associated with hazardous substances. A further two Prohibition Notices (PN’s) were also served at a later date relating to defeated interlocks on machine doors. HSE had previously inspected the company in 2013 when Improvement Notices were served regarding workplace transport and machinery guarding.
China
A company in Guangdong was fined by Shenzhen municipal environmental authority for discharging wastewater in excess of the limit stated on its Pollutant Discharge Permit, as well as for discharging pollutants through hidden pipes. The fine amounts to CNY 12.39 million (USD $1.9 million). The authority also revoked the company’s Pollutant Discharge Permit. This is thus far the largest environmental fine in Shenzhen.
In 2017, the Tianjin EPB has taken stringent enforcement and has imposed fines up to CNY 249 million (USD $37.5 million), three times more than compared to the same period in 2016. However, the Tianjin EPB did not relax their concentration on environmental enforcement. In the past few months, the Tianjin EPB has checked more than 19,000 facilities and requested more than 9,000 facilities for closure. Wen said that these facilities are heavily polluted sources with no expectation of reform. Other facilities with non-compliance have been requested to reform according to plans or to relocate to other industrial areas. The reform is expected to finish by the end of 2017 and the relocations are expected to finish by the end of 2018.
Hong Kong
Two importers who illegally imported hazardous electronic waste (e-waste) from the United Arab Emirates and Vietnam were convicted and fined a total of HKD 70,000 (USD $8,950) by Fanling Magistrates' Courts for contravening the Waste Disposal Ordinance (WDO).
JAPAN
1. A court case following the death of an employee from overworking was concluded on 6 October 2017, with a small fine of JYP 500,000 (USD $4,400) imposed. The fine was imposed for violations of the Labor Standards Law, and it was a criminal court case. However, the violating company had already paid compensation in January 2017 which, although not publically disclosed, is believed to have been USD 1.4 million for a different case of death from overworking back in 1991.
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