Conliffe Wilmot-Simpson, January 2022
Can you imagine Senator Don Wehby being arrested and held at the Central Police Station following a serious accident at a Grace Food Processing facility? or
Can you imagine Peter McConnell being arrested and held at the Linstead Police Station following a serious accident at a Trade Winds Citrus facility?
On January 27, 2022, a new Safety Law, will take effect in South Korea – the Serious Accident Punishment Act- SAPA. In contrast to previous laws which had fines for companies, the SAPA imposes penalties directly on the owners and CEOs of companies where breaches of legislation cause injury or death. Executives may be subjected to large fines as well as terms of imprisonment.
Near to the implementation date, there has been much lobbying for clarifications and modification to the Act. Businesses and Trade lobbies have been pointing to several issues – probably due to its speedy enactment, which could be problematic later. Three examples of these are:
- Definition of appropriate funds. The law stipulates that organizations must spend appropriate funds on training, equipment, and safety systems to prevent accidents. Lobbyists think this term is too vague and will leave persons very exposed when cases are brought before the courts.
- Definition of responsible executive. The buck will stop with the responsible executive. In a large organization, there may be many persons who are “responsible” and again the lobbyists are seeking clarity. From my perspective, the intent of the law is not to punish the safety officer or safety manager or even factory manager. It aims at the very top of the organization, where the ultimate safety policies are approved and funding for safety allocated.
- Interpretation of the law itself. In the Act, the responsible executive is defined as (i) a “person authorized and responsible for representing and supervising a business, or (ii) a comparable individual who is responsible for safety and health matters of a business.” Many lawyers will be excited by this terminology. If the OR is exclusive, it means that only one person can be charged. If the OR is inclusive, it means that multiple persons may be caught in the legal net.
SOME BACKGROUND TO THE NEW ACT.
1. Fatality Rates in South Korea. Incident and fatality rates in South Korea are relatively high. Below is a plot of the total fatalities for the period 2014 to 2021.
The fatality rate for 2021 was 4.3 per 100,000 employees. (The Korean workforce is 19 million. Number of fatalities in 2021 was 828. The rate is calculated as 828 x 100,000/19,000,000). For comparison, the European Union, overall rate is 1.5 persons per 100,000 employees. The Korean rates have been generally trending downward and was over 15.5 employees per 100,000 before 2010.
2. Death of Kim Yong-Kyun. Kim was a 24-year-old temporary subcontracted employee of the Korean Western Power Company who was trapped and pulled into a high-speed coal conveyor while working alone and cleaning coal from udder the conveyor on the night shift. He was the 15th worker to die at the same plant in 10 years. His death was widely reported and drew much public outcry for a long period. There were public protests in Seoul. A newly formed group, “Civil Society Coalition for Justice for Precarious Young Worker Kim Yong-Kyun” staged a hunger strike.
After a week of public outcries and protests, the National Assembly passed an amendment to the Industrial Safety Act. The amendment bans corporations from subcontracting 22 types of high-risk job and require contractors to compensate US$1.2 million for the on-the-job death of a contract worker. The government also committed to a revision of the Occupational Safety and Health Act for the first time in 30 years.
Still on the minds of many South Koreans, was the tragedy of the sinking of the ferry Sewol, in April 2014, when 304 persons, mainly children were killed. In that case, the captain, Lee Joon-seok was sentenced to 36 years in jail for gross negligence. Many other crew members were also jailed. The owner of the vessel Yoo Byung-eun absconded and his body was discovered months later but the cause of his death was not determined.
The family of Kim continued to keep the issue alive. A memorial monument is to be erected at the head office of the Korean Western Power Company. Commenting on this, his family stated, “With this memorial to the late Kim Yong-kyun, we wish that our society can become one that presumes that industrial hazards are murder, that safety is life, that we must put an end to more dangerous non-regular positions, and that protecting the lives of the workers is the obligation of the company.”
Given the public pressure and the demands for action, the government had no choice but to speedily draft and enact the SAPA.
SOME FEATURES OF THE SERIOUS ACCIDENT PUNISHMENT ACT (SAPA)
1. The definition and scope of Serious Accident.
A serious accident is one in which one or more people die; or where ten or more people are injured, resulting in treatment for two months or more.
The definition is not for mining and construction only but applies widely to applies to production, manufacture, sale and distribution of goods and accidents caused by defects in the design of products.
The law applies whether those impacted are direct employees or subcontractors or persons not working in the undertaking at all.
Criminal penalties will be applicable where it is determined that an accident was caused by the actions or inactions of the leadership of the business.
If a serious accident is caused by negligence and violations of health and safety guidelines, the responsible executive or owner of the business owner may face criminal penalties such as:
A. For one or more deaths – a minimum of one year imprisonment or a fine of up to US$840,000 (J$130 M).
B. For ten or more persons injured and needing two or more months of treatment – up seven years in imprisonment or a fine of up to US$84,800 (J$12.9 M).
The following penalties apply to the corporation.
A. For death of one or more people – a fine of up to US$4,189,746 (J$650 M).
B. For other serious accidents – a fine of up to US$84,800 (J$12.9 M).
The SAPA will not affect or negate any class action claims which may be brought against employers by affected persons.
LESSONS FOR JAMAICA
1. Newton’s Laws of Motion apply in the legal and sociological world as well. Nothing will change in our OSH landscape while our Jamaican Occupational Safety and Health Act, 2017 continues to languish and falter in a maze of bureaucracy.
2. If nothing is happening, the workforce is still fully exposed to the many issues that the legislation is intended to address.
3. There is no shortage of models of OSH Legislation worldwide that we can examine, to get speedily over the various obstacles that our Act seem to be facing. The South Koreans did not try to invent the wheel and drew on the UK’s Corporate Manslaughter and Corporate Homicide Acts to assist their process.
4. Other countries have acted to protect their citizens – we have no excuse to be waiting.
5. We should not wait until there is a major catastrophic event and accompanying public outrage for us to be energized to act to make a difference. The time is now.
6. Efforts to force the law through the legislative process in response to public unrest, may well result in a final product which is plagued with errors and ambiguities.
1. Challengeable legislation against fatal occupational accidents in Korea, https://www.sciencedirect.com/science/article/pii/S2093791122000051
2. Thousands of South Koreans mourn tragic death of coal worker sucked into conveyor belt https://www.scmp.com/news/asia/east-asia/article/2185555/thousands-south-koreans-mourn-tragic-death-coal-worker-sucked
3. Industrial Hazards are Murder …. http://english.khan.co.kr/khan_art_view.html?artid=202011111626187&code=940702
4. What is Corporate Manslaughter and How Does it Work? https://peoplesafe.co.uk/resources/blogs/what-is-corporate-manslaughter-and-how-does-it-work/
5. Sewol Sinking: South Korea’s Ferry Disaster. https://safety4sea.com/cm-sewol-sinking-south-koreas-ferry-disaster/