This is the same title of an article I wrote and published late last year and is at least the third article on occupational safety in this column. I added the numeral “2” to stress the importance of the message. It is truly shocking to see how occupational-accident fatalities have risen almost continuously from a low of 177 in 2015 to 263 in 2021. The fatality rate now stands at 0.091 per 1,000 workers, up from 0.06 per 1,000 in 2015, a whopping 50 percent increase! The apparent continuous increase in the figure is a pattern, and likely reflects a structural problem rather than a result of random factors. The structural problem is the tiny penalty that employers have to face.
In my last article, I lamented that the fines on employers had been far too small and argued that they “must be significantly raised in order to have credibility and effect.” I recommended increasing the current upper limit of the fine at HK$500,000 ($63,700) “by a factor of 10 to HK$5 million”. Today, the government has proposed to raise it to HK$10 million. However, a high upper limit may not mean anything if in practice the fine is a tiny fraction of that. The Honorable Peter Shiu Ka-fai has pointed out in his question to then-secretary for labor and welfare Dr Law Chi-kwong that in 2018 the average fine for summons on fatal industrial accidents in the construction industry was only about HK$27,000, which is only 5.4 percent of HK$500,000.
I therefore propose a “no-fault” minimum fine for each fatality at HK$1 million. This means that there would be no need to establish that employers are at fault. With this provision, incentives to take workers’ lives seriously will be greatly enhanced. Without this provision, the possibility is open for employers to prefer to take a chance and argue that they have taken all the reasonable precautions in the event of an accident. What is reasonable is always open to debate, spurring the “take a chance” mentality. On the other hand, with a no-fault minimum fine, employers would certainly make an extra effort to look for gaps in safety measures that might seem “reasonable” to overlook.
The idea of a “no-fault” fine is related to the idea of no-fault insurance, which gives the insured person greater protection. I propose that the no-fault fine be designated to be the immediate and initial compensation to the family of the victim. Given the “no-fault” nature, this compensation would be paid without much delay. If the court were to deem that there is fault on the part of the employer, fines up to a total maximum fine of HK$10 million per worker killed at work could be levied.
The idea of a “no-fault” fine is related to the idea of no-fault insurance, which gives the insured person greater protection. I propose that the no-fault fine be designated to be the immediate and initial compensation to the family of the victim. … I strongly urge that a no-fault mandatory minimum fine be payable for fatalities and for grave injuries
Mr Raymond Liang Lok-man, assistant commissioner for labor, objected to the suggestion of a minimum fine that was raised by the Honorable Mr Louis Loong Hon-biu, on the grounds that it may not be fair to employers who have justifiable mitigating reasons. Mr Liang may have his own thoughts, but the objective effect of there being not a minimum fine will be a higher probability of taking chances and a higher probability of a worker losing his life.
The latest Occupational Safety and Health Statistics Bulletin (August 2022) says that the rise in accident numbers in 2021 may be due to a low base in 2020, which was a year marked by frequent work stoppages caused by the COVID-19 pandemic. But even though 2020 was marked by frequent work stoppages at construction sites, the occupational fatality number at 234 is the second-highest since at least 2012, and the fatality rate in 2021 at 0.091 per 1,000 workers, with a fatality number of 263, translates to more than five worker deaths per week. The Hong Kong Special Administrative Region government certainly needs to take decisive action to avert the trend.
The assistant commissioner for labor made the point that employers’ ability to pay should also be considered in determining the fine that is applicable in negligence cases. I agree. It also agrees with the common use of day fines for traffic violations in many European countries, even though that could lead to hefty fines for traffic violations unthinkable for Hong Kong residents. If the negligence is serious, the penalty may be up to the ceiling of HK$10 million, including the possibility of imprisonment for up to two years.
In August this year, a collapsing gate at Yaumatei Maternal and Child Health Centre fell and killed a 43-year-old female security guard who was the breadwinner of her family and who had been taking care of her elderly mother and bedridden father. Ms Fay Siu Sin-man, chief executive of the Association for the Rights of Industrial Accident Victims, said a similar accident also happened at a shopping center in San Tin three years ago, killing a 62-year-old security guard. These cases, as well as the case of the TV screen that fell during a performance by the band Mirror at the Hong Kong Coliseum that severely injured a dancer, definitely could have been avoided with better maintenance of the gates and professional installation of the TV screen.
I strongly urge that a no-fault mandatory minimum fine be payable for fatalities and for grave injuries.
The author is director of Pan Sutong Shanghai-Hong Kong Economic Policy Research Institute, Lingnan University.
The views do not necessarily reflect those of China Daily.