On July 14th, a laborer working at a KT business in Pohang was crushed to death by an optical fiber cable weighing over 400 kilograms. The fact that safety equipment such as safety helmets was not provided at the construction site was shocking. Along with a series of industrial accidents at construction sites, the Serious Accidents Punishment Act, which will be enforced in January next year, is attracting attention. However, there are still voices of concern that the contents and legislations are ambiguous. In response, the Sungkyun Times (SKT) is going to explain what the Serious Accidents Punishment Act is, its expected effects and concerns, and lastly propose actions for the labor union, government, and companies to make a better Act.
Serious Accidents Punishment Act: A Timely Rain for Workers in Danger
What is the SAPA?
The Serious Accidents Punishment Act (SAPA) is a protection law for employees who are injured or who have died at construction sites. The SAPA punishes not only factory managers but also chief executives and corporations to guarantee workers’ safety rights. The serious disaster illustrated by the SAPA is “one or more died”, “two or more injured requiring treatments for more than six months”, and “three or more with occupational diseases within one year”. The legislation content of the SAPA is organized to solve the Occupational Safety and Health Act (OSHA), which was previously enacted to prevent industrial disasters and make better work environments for workers. Between these two, there are differences in scope, protected entities, and so on.
The SAPA extended the scope and is expected to supplement a blind spot of OSHA. The low sentence of imprisonment is defined to set a sentence to the lower limit, infringing on the sentence below it. In other words, instead of the upper limit of “~years or less”, the law sets a minimum imprisonment term and fine. Like this, the SAPA extended the scope and is expected to supplement the blind spot of the OSHA.
Laws Enacted in Various Countries Similar to the SAPA
Representatively, there is the Corporate Manslaughter and Corporate Homicide Act (CMCHA) in the United Kingdom (UK) and the Work Health and Safety Act (WHSA) in Australia. The UK enacted the CMCHA in 2007 for the first time in the world to punish corporations’ criminal faults for the death of employees on construction sites. However, unlike in Korean law, this law only punishes corporations, not individuals. In the case of Australian law, which is pretty similar to Korean law, it punishes both corporations and chief executives but does not impose additional compensation for damages to companies. In Australia, the establishment of the law is limited to cases where serious negligence contributed to a significant cause of death. The SAPA in Korea is worrying in that the scope of the crime establishment is wide and corporations could be severely punished.
How Will the SAPA Work?
Expectations Regarding Implementing the SAPA
1. Prevent Worker Accidents
The most expected effect of the SAPA is that the obligation of a country to protect the workers from danger and workers’ rights to work healthier and safer will be materialized by law, therefore the safety of workers can be guaranteed. According to the Korea Industrial Complex Corporation, Korea ranked 4th in the death rate of industrial accidents among OECD member countries for two successive years (2019~2020). Despite the fact that the OSHA exists, the need for stronger laws has emerged since workers’ deaths are still continuing. It is expected that the companies and chief executives will voluntarily invest in the workers’ safety if the compensation for damage and criminal liability increase through enforcement.
2. Increase the Range and Degree of Corporate Responsibility
As mentioned, the difference between the SAPA and existing regulations is whether the chief executive is the target of the criminal punishment. In existing laws, when an industrial accident occurs, the factory manager designated as the safety and health head officer is charged with criminal liability. By this, chief executives such as the representative directors are often excluded from the investigation since they do not get involved in health and safety measures. However, as the SAPA imposes the responsibility of the serious accident not only on factory managers but also chief executives, the entire company feels the weight of the responsibility for the safety of the workers. Industrial accidents will not only remain as safety issues but also become important values for company management.
Concerns Regarding Implementing the SAPA
1. Ambiguity and Irrationality of the Range and Applied Target
The SAPA defines the chief executive as a “person in charge of generalizing the business and representing it” or “a person who takes charge of the safety health work”. However, it does not mention any specific range. By using “or” instead of “and” in the definition of a chief executive, there is a defection to be interpreted selectively. Especially in large companies that have a multiramified work system, it is difficult to verify the person who represents them and the responsibility of the project and company. This leaves a chance for the company’s chief executives to shift the exclusive authority to the general safety and hygiene supervisor. Moreover, controversy over the range of occupational diseases is raised by the labor union. The SAPA has set the range of occupational diseases at around 24 items, including acute poisoning, such as central nervous disability caused by exposure to many toxic gases. However, this range is too narrow, and the labor union demanded that occupational cancer, for instance, must be included, too. Furthermore, according to the Federation of Korea Trade Unions, many common chronic diseases were excluded. In fact, the biggest defection in this law is that it discriminated against the lives and safety of business workers who are working in a company. According to the Korea Human Resources Corporation, 79.8% of companies in the country consist of less than five workers. Moreover, from September 2020 to July 2021, 33.3% of accident disasters and 35.0% of accident deaths occurred in this small sized company. Even though many accidents occur in small companies, the SAPA is making safety blind spots by excluding companies with less than five workers.
2. Secondary Damage to the Company
Industrial accidents can occur for a variety of reasons and sometimes they cannot be prevented by chief executives’ fulfillment of the obligation. Attributing the excessive responsibility to chief executives and corporations may wither the companies’ economic activity. If the punishment grows stronger, risk of managing a company and withering of production activity may occur. Particularly, considering the importance of chief executive’s financial conditions and the role in minor enterprises, the absence of them or excessive fines may cause serious damage in management. As the minor enterprise has an easier environment for the industrial disaster to occur, and legislation contents are fully concentrated on punishment rather than prevention, the minor enterprise may close down. According to the SAPA, when an employee dies at a construction site, a company has to pay a fine of up to 2 billion won. However, as Korea’s minor enterprises’ average sales are about 400 million won, according to the Ministry of SMEs and Startups, there are concerns that the law might threaten these enterprises.
For Effective Enforcement of the SAPA
Efforts of Companies
For effective enforcement of the SAPA, industrial safety compliance needs to be established. Through the upcoming enforcement of the SAPA, the legal liability will be much stronger, and companies should primarily manage their health and safety. To achieve these goals, it is essential to establish an overall compliance system that can manage risks. The performance of the compliance system will be divided into two systems. One is for regularly examining harmful factors, and the other is for managing the safety-health obligation system. It is necessary to report the details identified by the compliance system to the chief executives so that the obligation of health and safety can be fulfilled in the management team, too. In other words, a clear reporting system, which regularly reports that insufficient measures have been improved and necessary measures have been implemented, should be established.
Efforts of the Government
The government should revise ambiguous statutes and inappropriate regulations as soon as possible. The definition and extent of the managers, chief executives, and corporations should be clarified. Also, it is necessary to convert indirect obligations such as administrative measures into direct obligations. In order to prevent serious accidents, regulations which indicate that serious disasters are not the accident of individuals, but a corporate crime caused by poor prevention should be made. Also, the government’s support for establishing the company’s health and safety system is needed. Since a company’s health and safety system requires long-term investment and effort, the government’s support is important to companies. Furthermore, the introduction of the national certification system can be one of the methods. A national certification system will help companies fulfill their duties of serious disaster prevention. The government should allow companies to entrust the serious disaster prevention work to specialized agencies, continuously receiving feedback and advice.
Efforts of Labor Unions
Workers’ violations of safety rules for convenient and fast work are countless. The Human Resources Development Service of Korea shows that 60% of industrial accidents at construction sites in 2020 are caused by violations of workers’ safety rules. Not just holding the duty to chief executives, workers should take the initiative and follow the safety rules. Therefore, the labor unions should not abuse the law but change the perception of industrial disasters. They should create an organization with civil society to monitor and manage the government and companies. In particular, labor unions should find the defection of the SAPA, which the government and National Assembly had enacted. In addition, labor unions should take the initiative to establish a cooperative safety management system including the company and the government. As the cause of the accident is diverse and the subjects that provide the cause of the accident are endless, the causes of the accident should divide the role of safety management.
Until now, the government has made several regulations to improve health and safety. However, it is also true that the sophisticated systems and thorough applications were imperfect. It is time for companies to think and talk about the actual solutions to protect workers’ safety and prevent industrial accidents. Through the social experience of enacting the SAPA, the place of discussion will be held which includes workers, civil society, companies, and government. Ultimately, it will be able to establish a stronger, more encompassing health and safety system in Korea.