1. Key Details of the Serious Accident Reduction Roadmap (the “Roadmap”)
A. Risk assessment as the key component of the “self-regulatory prevention system”
Definition of the “self-regulatory prevention system”
-
It is an industrial accident prevention system suggested as the core concept of the Roadmap, meaning that a company and its workers jointly establish their own self-regulation tailored to the characteristics of their workplace in accordance with the standards presented by the government.
-
It is a method of safety management whereby a company voluntarily identifies and removes workplace risk factors at ordinary times by using risk assessment and takes responsibility for the consequences of an industrial accident based on the adequacy of its prevention efforts.
Mandatory implementation of the “risk assessment system”
-
While the risk assessment system has been introduced and implemented under the Occupational Safety and Health Act (the “OSHA”) in 2013, the system has not been fully incorporated at industrial sites.
-
The Roadmap plans to operate the risk assessment system by focusing on identifying and reducing “key risk factors” and “recurrence prevention,” and take a phased approach to mandate businesses with at least five employees to implement this system by 2025.
Expansion of workers’ participation in the risk assessment process
-
The Roadmap plans to increase workers’ participation throughout the risk assessment process, including identification of risk factors, establishment of improvement measures, preparation in advance, and estimation/determination of risks.
-
The Roadmap further plans to instruct businesses to disseminate to and share with all workers the accident cases, involving near-miss or at least three-day suspension of business.
-
In addition, the Roadmap will not only encourage the on-site sharing of the regular/irregular risk assessment results through a “tool box meeting (TBM; on-site safety meeting conducted before commencing the work)”, but also expand the “three-step, monthly-weekly-daily sharing system” to ensure that each business’s regular/irregular risk assessment results are communicated and shared with on-site workers at all times, and develop and distribute a mobile application for sharing the risk assessment results.
B. Direction of amendments to the OSHA and the Serious Accidents Punishment Act (the “SAPA”)
Direction of amendments to the OSHA
-
Realign the Rules on Occupational Safety and Health Standards (currently 679 provisions) by classifying them into penal provisions (grounds for criminal punishment) and preventive provisions (setting forth detailed matters in the form of technical guidelines to ensure flexible response).
-
Expand the scope of businesses that are required to establish an Occupational Safety and Health Committee (a business with at least 100 employees → at least 30 employees) (scheduled for 2023).
-
Expand the scope of businesses that are required to prepare safety and health management regulations (a business with at least 100 employees → at least 10 employees) (scheduled for 2023).
-
Establish guidelines to clarify the scope of safety and health-related roles and responsibilities between the main contractor and a subcontractor (scheduled for 2023).
-
Clarify the legal liability of intermediary subcontractors in multi-layered subcontracting contracts (amendment to the law scheduled for 2024).
-
Stipulate workers’ obligation to comply with safety rules (scheduled for after 2023).
-
Establish and disseminate the “standard safety and health management regulations” including the grounds and procedures for sanctions against workers who repeatedly fail to comply with safety rules (scheduled for 2023).
-
Expand the scope of businesses that are required to appoint a safety officer dedicated to safety management (a business with at least 300 employees → at least 50 employees) (by 2026).
Direction of amendments to the SAPA
-
Clarify the penalty requirements based on key factors such as a violation of the obligation to conduct risk assessment, establish and implement recurrence prevention measures, etc (i.e., ensure criminal penalties for habitual/repeated violations, accidents resulting in multiple deaths, etc.).
-
Improve the method and system of imposing penalties by referring to the cases of advanced countries (i.e., economic sanctions, imposition of criminal fines on companies, etc.).
Establishment and operation of a “Task Force for Improvement of Occupational Safety and Health Laws and Regulations” to amend the applicable laws and regulations (scheduled for the first half of 2023).
C. Supervision over occupational safety, and direction of sanctions in case of serious accident
Replacement of the regular supervision with “risk assessment inspection”
-
By conducting a “risk assessment inspection,” verify whether (i) a risk assessment was properly performed, (ii) improvement measures were appropriate, (iii) both labor and management participated in the assessment, (iv) the assessment was applicable to the business site, and (v) workers are aware of the accident cases.
-
The government plans to establish and implement recurrence prevention measures based on accident case analysis, and make it mandatory to check the establishment and implementation of a safety and health management system when conducting a risk assessment.
Severe punishment/sanctions in case of a serious accident, while taking into account internal efforts such as risk assessment
-
For companies that have faithfully conducted risk assessment, the government plans to indicate their internal efforts in investigative materials so that such efforts can be considered when the prosecutors’ office or court decides on a proper sentencing.
-
The government also plans to implement planned supervisions (i) over businesses in the same or similar industries with a high likelihood of accidents, and (ii) in connection with non-reporting and concealment of industrial accidents, in order to check the status of compliance with the obligations to establish and implement recurrence prevention measures.
2. Implications and Considerations
A. Need to establish a risk assessment system and strengthen its implementation
Risk assessment has been conducted in accordance with the OSHA since 2013, but there were no provisions to punish or sanction the non-performance or poor performance of risk assessment. When the SAPA came into force on January 27, 2022, risk assessment was set forth in Article 4, Item 3 of the Enforcement Decree thereof as one of the procedures to identify and inspect hazard and risk factors, highlighting the importance of the risk assessment process.
As the Roadmap emphasizes risk assessment as a key component for the “self-regulatory prevention system,” one of the major issues in case of serious accident is expected to be whether risk assessment was properly performed.
Risk assessment is a process that can be completed with the participation of on-site supervisors and field workers. Therefore, companies need to establish specific procedures to effectively conduct risk assessment at each workplace, strengthen the training and participation of workers, and maintain various records to prove that they have taken sufficient measures in the course of risk assessment.
B. Need to strengthen the communication with workers
Indicating that worker’s active participation is the key to the self-regulatory prevention system, the Roadmap explains the following plans in connection with workers’ participation:
-
Expand the scope of businesses that are required to establish an Occupational Safety and Health Committee (a business with at least 100 employees -> a business with at least 30 employees).
-
Grant subcontracted workers with the right to submit opinions to the Safety and Health Council of the main contractor and the subcontractor (in review).
In particular, the communication with and participation of workers, as well as the relationship with labor unions are expected to become more important in terms of conducting effective risk assessment.
C. Need to monitor amendments to laws and regulations
As applicable laws and regulations, including the OSHA and the SAPA, are likely to be amended in line with the Roadmap, it is necessary for companies to be prepared for such amendments through the monitoring of new developments.
Further, it is also necessary for companies to check the official position of the Ministry of Employment and Labor (“MOEL”), such as the MOEL’s guidelines, instructions, and interpretations, and reflect the MOEL’s opinion in their safety and health management system.
