The Jean Paul Sofia public inquiry continued on Friday with the testimony of another four witnesses - two of whom return to the court room for the second time.

Occupational Health & Safety Authority CEO Mark Gauci testified for a second time, saying that even if the OHSA had inspected the site where Sofia was killed, the structural shortcomings of the building would not have been exposed; while Chamber of SMEs CEO Abigail Agius Mamo said that the construction industry cannot be allowed to be self-regulated.

Building & Construction Authority CEO Jesmond Muscat also testified a second time, while the board also heard the testimony of Malta Insurance Association Director General Adrian Galea.

Sofia, 20, died after a building under construction collapsed in Kordin on 3 December last year.

The inquiry has been tasked with investigating the State’s responsibility in protecting construction workers from harm, and has also been tasked with probing the government’s land transfer to the developers behind the site where the tragedy happened.

The public is led by Ombudsman and retired judge Joseph Zammit McKeon, and includes Auditor General Charles Deguara and court expert and architect Mario Cassar.

The board has been given five months to complete its work, although it does have the power to seek an extension if it deems fit.

Anybody wishing to testify in the inquiry has until the end of August to request to do so, by sending an email to the board on [email protected]

11:43: That brings today's sitting to a close. Thank you for following.

11:42: Zammit McKeon goes through the next sittings, and says that an effort is going to be made for all the witnesses which the board wishes to hear will be heard by the end of September.

He says that if the Sofia family wishes to summon its own witnesses then they can be heard from October onwards.  This also counts for the State Advocate.

Zammit McKeon has his doubts whether the board will manage to stick to the five month deadline, but says that great progress has been made already.

He says that some technical experts have applied to testify, and a point is made that if anyone wishes to testify they must email the board on [email protected] by the end of August.

11:38: Muscat steps off the witness stand.

11:37: Deguara asks about the decision to merge the BCA and the BICC.  Muscat replies that one of the big issues is that there are entities spread all around the country and that the time has come to centralise things.

Before Muscat departs, Comodini Cachia says that some BCA documents have not been presented.  Amongst these are the budgets which the BCA had sought from the Finance Ministry and the final figure which was granted to them.

Muscat says that he had given the figures and he can again if need be.  Zammit McKeon says that this is enough for the board.  Comodini Cachia also says that she had requested the drafts of the contractors reform dating back to 2019, which Zammit McKeon nods and asks for.  Muscat duly presents three drafts.

Another document was a DNO from 2020 and 2022 for the site where Sofia was killed.  Muscat leafs through the contents of a green folder and reports that he does not have it on him but it will not be a problem to reproduce them. Cassar says that he has the documents himself, and Zammit McKeon says that it is enough.

11:29: Cassar says that the skills card registry seems to show a very small percentage of TCNs when it is known that this demographic makes up a much larger percentage of the working population in the industry.

Muscat says that this is one of the biggest challenges to surpass, particularly due to the language barrier.  “It’s useless doing skills card and them not knowing about them,” Muscat says.

11:28: Muscat is asked about the consultation process for the contractors’ law, and says that it is the BCA which is leading these discussions.  He also confirms that the BICC was consulted about these reforms.

Cassar asks about the skills card, saying that work has been ongoing since 2009, and whether in a site inspection the BCA will be able to enforce against those who do not have it.

“That is the direction we are going,” he says.

11:21: Zammit McKeon lists a number of documents which he wants from Muscat.

These are the BCA’s audited accounts  - the accounts for 2021 and 2022 are handed over; and the BCA board minutes for whenever the death of Jean Paul Sofia was discussed – the minutes for 15 December 2022 are presented, but the minutes for a meeting this month are yet to be approved by the BCA’s board.

11:16: Agius Mamo steps off the witness stand.

Current BCA CEO Jesmond Muscat is the final witness of the day.  For him too it is the second time he is testifying.

11:15: Comodini Cachia says that the BCA has a role to introduce building codes which will serve as regulations for how works on a building site are done, and that testimony which the board had heard that there were at least three which have been finished and left unimplemented for over a year.

Agius Mamo asks whether these building codes were part of the BCA’s legal notice.  They were not. She says that their consultations with members were on that legal notice.

Finally, Comodini Cachia asks whether Identity Malta and Jobsplus would be aware of all workers in Malta, to which Agius Mamo says that there shouldn’t be a situation where a TCN is working in Malta without a permit because they all have to be registered. 

Where there is a person who’s permit has expired then it is a shortcoming from the authorities to follow up on the matter, she says.

Where workers who are not registered – like in Lamin Jaiteh’s case, which Comodini Cachia mentions – to work in the country, what does the Chamber do when one of its members employs someone illegally is the next question.

Agius Mamo says that the Chamber has no legal right to ask a member who they are employing.

11:09: Comodini Cachia asks for how long discussions on ensuring that workers have basic skills have been ongoing, to which Agius Mamo replies that she is aware that there are some things in the law which simply weren’t being enforced.

“My impression is that this has been long ongoing” and that now it is being implemented, but it has to be enforced, she says.

Zammit McKeon says that the skills card situation is “dramatic” today, and hands over to Cassar, who says that there are around 2,200 people with skills cards on the register and points out that when skimming the last it doesn’t look like more than 3% of those people are foreign, even though TCNs take up 25 to 30% of the industry.

Agius Mamo says that the policy makers should have a plan on how to implement the system and then enforce it.  The Chamber has no enforcement role, and only steps in in particular grave situations where they consider terminating someone’s membership – but this isn’t a regulatory step.

11:05: Agius Mamo replies to a question on skills card, saying that the Chamber agrees with this need but she is not aware about how this is enforced by the authorities.

Comodini Cachia asks what steps the Chamber members take to ensure that all workers present have a skills card.

“I think we need to recognise that in sectors like construction where there is a certain danger, we cannot rely on self-regulation,” she says.  She adds that she does not go into such day-to-day operation with members but the way that they guide their members is to follow the law as best as they can.

11:01: Comodini Cachia asks whether there were any changes in the legal notice on contractors, to which Agius Mamo says that there were changes from when the law was first presented, adding though that it would be unusual if there weren’t changes.

Comodini Cachia asks about the drafts from 2021 and 2022 and whether they were consulted, to which Agius Mamo replies that she believes that the consultation was being done through the BICC where the Chamber is represented.

Agius Mamo is asked whether the Chamber itself was directly consulted between 2021 and 2022 – when a previous testimony said that the law had been tabled in Cabinet twice – to which she replies: “Not that I recall, no.”

10:58: Zammit McKeon asks whether the Chamber had worked on the topic of Third Country Nationals (TCNs) as workers within the sector.

Agius Mamo replies that it had as this is a topic which members in the sector tend to struggle with, particularly as a lack of human resources.

She says that when a person comes to Malta to work in the sector, there must be a certain assurance that the person is qualified.  Cassar however replies that there is no legal framework to guarantee what standards should be followed.

Agius Mamo says that this is true, even for many other sectors, but that they are suggesting a system wherein the TCN should show proof that they have certain experience or qualifications in the sector that they are working in and that the employer signs off on this.

There have been cases where some were caught by Identity Malta having forged documents, she says.

10:51: Cassar asks whether Agius Mamo had consulted with their members whether they agree with licensing and classification.

She says that everyone was positive and agreed, including on insurance.

He asks whether the contractors had agreed that they would be graded based on how they work.  Agius Mamo replies that the members had not remarked that they were against this when this was put to them as part of the package of reforms.

“Our members do not enjoy when there is a cowboy within the sector,” she says.  She continues that when someone becomes a member in the Chamber it is generally because they want to see the sector to move forward, which implies that they work seriously.

Agius Mamo has been asked to present the for feedback which was put to their members on the contractor's reform.

10:46: On insurance, Agius Mamo says that this didn’t feature in their feedback, but she knows from other sectors that this can be a difficult topic.

However, she says that the Chamber agreed with the legal requirement for insurance to be in place on every construction site.  What can be introduced, she says, is a type of insurance which is adapted for this exact purpose.

She says that there have been cases in some sectors where brokers in Malta simply refuse to provide insurance.  Agius Mamo adds that if a requirement for insurance is implemented, then one must be sure that this type of insurance actually exists in Malta and can be achieved.

10:44: Agius Mamo says that the Chamber’s feedback was that they very much agreed with the direction to introduce licensing because there were significant shortcomings in standards in some, and the whole industry was being damaged by those few who did not follow any form of standards.

She says that it is clear that there are minimum standards which need to be introduced and enforced.

She continues that they had insisted with the BCA to invest in digital enforcement which gives them far better visibility on construction sites.  For example, she says, if a building is being demolished they should know who is responsible for a site and they can prepare accordingly for an on-site inspection.

Zammit McKeon summarises: “So you are in favour of more enforcement and of the use of digital means to support that.”

10:41: Zammit McKeon asks whether the Chamber of SMEs was involved in the discussions on the changes to laws for contractors, and whether they were involved in discussions on the insurance aspect.

Agius Mamo says that from a regulatory perspective, the Chamber sits on the BICC where discussions centred on skills cards.  The BICC, she says, will soon be integrated into the BCA as a consultative board made up of social partners and interested partners.

The board’s role is to look at and give feedback on legislative changes, but to also bring certain subjects on the agenda to see if action needs to be taken.

On the contractor’s laws, Agius Mamo says that the Chamber had two meetings with the BCA on the laws and its timeframes and also included some contractors in order to give their own feedback.  Feedback was also given at the MCESD, and gave written feedback as part of the public consultation.

10:37: Abigail Agius Mamo – the director general of the Chamber of SMEs – is up next.

Zammit McKeon asks whether the Chamber represents contractors, to which Agius Mamo replies in the affirmative.

She says that the Chamber represents the “big players” in terms of contractors, but also a number of much smaller contractors.

10:35: Cassar asks whether insurers feel the need to have data on contractors and their past shortcomings in order to better offer a cover.

Galea says that the more information insurers have the better.  For an insurer the past can be a guarantee of the future, he continues.

This brings Galea’s testimony to a close.

10:33: Zammit McKeon asks when the discussions with the BCA will conclude. 

Galea says he cannot give a date but discussions are ongoing and there was even a meeting yesterday.  The next one is set for some time in the next two weeks and will involve brokers as well.

There are still points to clarify: the limits of liability, for example, are not clear in the current legislation, Galea says.

10:31: Zammit McKeon asks how the exclusion clauses in the insurance cover give peace of mind to third parties.  So if there is a claim by an employer against a contractor, but that contractor has breached the clauses in the insurance cover – then what happens?

“We haven’t gotten to that point in discussions,” Galea replies.

“Then get there, please, as it is very, very important,” Zammit McKeon bats back.

Galea says that a part of the discussion with the BCA is also that there is a clear summary of what a contractor is covered for and what they aren’t covered for included in the cover.

10:24: Zammit McKeon now asks about employer’s liability and whether this is an obligation by law.  Galea confirms that it is not.  Zammit McKeon asks whether this topic is part of discussions between the BCA and the MIA.

“Yes the BCA did speak to us about this, and this is where there is a divergence,” Galea says. 

The government is saying that there has to be employer’s liability in this sector, but we are saying that this should not be on a sector which is considered as high risk, Galea continues.

He adds that creating a legal requirement for just one sector – which happens to be considered high-risk – then it doesn’t make sense for the insurance provider or for the client, because the cover will end up being too expensive.

10:22: Galea says that there was also a discussion on a year-round cover which covers all the contractors projects, but he adds that this is not as effective as a project-based cover.  This is the line of thinking that the MIA has taken, he says.

Galea notes that the government understood the MIA’s point on insurance being a pre-requisite for a contractor’s licence and it is not included in the legal notice.

The position therefore is that a contractor doesn’t need insurance to be granted a licence, but every project needs to have insurance cover, Zammit McKeon says, seeking confirmation.

“Yes,” Galea says.

10:19: Zammit McKeon asks about the BCA’s expectations and to where the MIA is ready to meet them.

Galea says that the BCA’s expectation was that a contractor needed to have insurance as a requisite to be granted a licence

Galea says that the MIA explained that it doesn’t make sense that insurance is a requirement for a license to be granted, and drew an equivalence between vehicle insurance: a person does not get insurance when they get their driver’s licence, but rather get insurance when they come to drive a vehicle.

Therefore instead, the MIA suggested that the insurance is done on a per-site basis in order to protect any possible victim of shortcomings in construction works.

10:16: He is asked about the new legal provisions for the licensing of contractors and the insurance cover that these contractors must have, and whether discussions are ongoing.

Galea replies that there are discussions at a very advanced stage between them and the BCA.

10:15: Gauci’s testimony ends – although he may return a third time as Comodini Cachia still has questions.

The director general of the Malta Insurance Association Adrian Galea is next on the stand.

10:14: Comodini Cachia asks questions about how the OHSA ascertains whether a worker is trained, to which Gauci says that enforcement officers on site take all the necessary information on site and that they do speak to workers, including about their training.

He points out however that the responsibility for the safety of workers is not of the workers themselves, it is of the person employing them.  The worker is only responsible if they do not follow the recommendations of the employer.

She now asks about the OHSA’s inspections, asking for a breakdown between proactive inspections and reactive inspections.

Gauci says that he doesn’t have a figure, but guarantees that the “absolute majority” of inspections are proactive and are pre-planned.

Deguara is now asking about the number of OHSA inspections: he points out that 4,947 inspections were carried out in 2020 – during the Covid-19 pandemic – but there were 600 less inspections in 2022 despite there being more inspectors.

The reason was because during the pandemic there was more time for inspections, Gauci says.

10:07: Lawyer Therese Comodini Cachia – representing the Sofia family – is now asking questions.  She requests the OHSA’s own statistics – rather than the NSO’s statistics – on workplace accidents.

Gauci says that on fatal accidents, the information provided by the NSO is comprehensive.  He reads from a table in front of him, listing the fatalities in the construction sector every year from 2018 to today.

One of the statistics he mentions is that there have been no construction deaths in 2023.  He quickly clarifies that this is for the first six months of the year.

Comodini Cachia asks for a breakdown of whether the victims were foreign or Maltese, which Gauci obliges.  He is asked how the OHSA verifies that people like these were trained in the sector, to which he replies that this is part of their investigations

Zammit McKeon interjects and mentions the case of the construction worker – Lamin Jaiteh – who was injured in a construction site and left on a pavement, and asks whether he was interviewed.

Gauci says that the victim was interviewed and a report was filed on this.  “This is the tragedy: the people taking advantage of vulnerable workers.”

09:59: Cassar is now once again grilling Gauci on the role of the project supervisor, and Gauci explains that the project supervisor generally writes out a report every week and gives it to the client for them to act on it.

“That they have to wait for the client to do something… that is what I cannot understand,” Cassar says.

Gauci says that the OHSA is in the process of amending regulations so the project supervisors are protected by the law so that they can take drastic action without consequence from the client if need be, and that they can order the works to stop and it would be a crime if they do continue.

09:58: The board has no further questions.

The State Advocate rises to ask questions.

There is no scientific evidence, but much of the country relies on the OHSA’s work and studies mention that this work has contributed to the reduction in workplace incidents, Gauci says in response.

Gauci speaks of the informational seminars which the OHSA does, but Zammit McKeon is frustrated at his line of answering: “Life isn’t lived by the textbook,” he says.

His voice even breaks with frustration: “Just days ago, I saw a seven-storey development abroad and not even one grain of dust was making its way out of the site, but in this gem of a country we are stars.  That is the disgrace.”

Gauci invites the retired judge to one day sit with him so he can see the “disasters” in construction that are seen abroad by inspectors. 

09:45: Debate is ongoing about what exactly, therefore, the technical competencies of OHSA inspectors are.  Zammit McKeon clarifies that nobody is questioning what qualifications they have, but the questions are centred on whether the inspectors are capable of enforcing that health and safety measures – such as, for example, a railing being put at each floor to reduce the risk of a worker falling - which the building which collapsed and killed Sofia did not have – are being followed.

“My fear is that you depend – in terms of enforcement of this nature – on whether someone in the street bothers them, whether the media reports something… it’s reactive not proactive,” Zammit McKeon says.

Gauci says that the OHSA is not a reactive entity.  Part of their work does depend on reports, so it is reactive in that sense, but every day it identifies a number of places depending on information that they have in hand and inspects accordingly.

This is reported every year in the OHSA’s annual report, which is publicly accessible, and Gauci says that this shows that the OHSA did act proactively – and not just in inspections, but also in work on preventing accidents such as through information campaigns in various languages to reach foreign workers.

09:40: Zammit McKeon says that on projects such as that of Sofia, where the BCA have no remit, are the OHSA not informed that a project has commenced.

Gauci asks the judge to keep in mind the mass of projects and the risks that these officers take… to which Cassar says “yes or no”, cutting off the OHSA CEO.

Zammit McKeon says that the board has heard that sites which do not have third party neighbours then the BCA has no competence, and he wants to know if the OHSA was aware and able to enforce the site.

“Was it under your radar or not?” Zammit McKeon asks.

“But…” – “Yes or no,” Zammit McKeon interrupts.  “Yes and no,”  Gauci finally replies.

Yes because it has the possibility of being inspected, but no because OHSA inspectors do not have the technical capabilities to recognise issues in the building structures, Gauci says.

He adds that the OHSA is not formally informed that such works would have begun, but points out that even if they were informed, the officials do not have the technical competence to recognise whether there were issues with the building’s structures.

09:31: Cassar now takes over the questioning.

He asks about a ‘register of competent persons’ and who they answer to if they find something which is not in accordance with workplace safety standards, whether they report to OHSA.

Gauci explains that these competent persons may be acting in different capacities. In construction, the competent person is appointed by the client and is obliged to report to the client, he says.

The principle is such because the client is considered as being in the central position to make sure that all the necessary safety measures in place.

“Couldn’t there be a conflict of interest?” Cassar asks.

Gauci says that the system in Malta is such that the competent person rests on the client to take all the necessary measures.

09:30: Gauci is asked about how workplace incidents are reported and whether the employer is legally obliged to notify the OHSA of these.

He replies that the system used is the same as abroad and that some cases are not included in official statistics – although he notes that given that Malta is so small, it is impossible for them to not find out about serious accidents.

Zammit McKeon seeks clarity to confirm that there is no requirement to report near misses or dangerous incidents, to which Gauci replies that there is no such obligation both in Malta and abroad and that in such cases it is usually the media or members of the public who bring these incidents to light.

09:22:  Zammit McKeon refers to an editorial carried by The Malta Independent last Monday which detailed contradictions between his testimony and the testimony of OHSA chairman David Xuereb.

The board chair says that the editorial – which detailed differences in the testimonies of the duo on the number of OHSA enforcement officers and its website – showed “very clear” divergences.  “The editorial was very loyal” to what was said in court, Zammit McKeon points out.

On the divergence in enforcement officers given by the chairman and CEO, Gauci says that it is possible that Xuereb considered a health and safety officer who is not someone who does any work on the ground.

On the divergence on the website, Gauci says that MITA had clarified to him that the website was not hosted by them, but he quotes from a report which says that the OHSA website had experienced no significant downtime.

 09:17: Zammit McKeon points out that the board had asked for the board minutes of when the Sofia incident had been discussed.

Gauci passes on a copy – which he duly signs – to the board.

State Advocate Chris Soler has now risen to make a point, saying that it is his understanding that the board minutes will be analysed to see their relevance to the inquiry’s terms of reference and that only what is relevant will be considered and published.

Zammit McKeon replies that what is relevant to the inquiry will be considered and “state secrets” will remain secret.

Soler says that the terms of references do not only consider ‘state secrets’, but Zammit McKeon says that this is a figure of speech.

Zammit McKeon is in the mood to make progress: he shares that he flew into Malta at 3am and is working on a grand total of three hours.

09:11: Gauci has been asked to present a list of documents which he was meant to bring with him in the sitting he testified in last week.

This time he nods when asked if he has these documents in hand.

The documents include statistics on workplace injuries as published by the National Statistics Office; an analysis of the injuries and deaths which take into consideration the most recent NSO publication for the first quarter of 2023; a list of inspections and fines meted out by OHSA inspectors; and a list of the OHSA’s 13 enforcement officials.

09:06: We are now underway.  Zammit McKeon apologises for the four minute delay in their appearance, sharing that they had gotten briefly stuck in a lift. If only the country's other institutions were so forthcoming when they are a few minutes late.

Malta Developers Association President Michael Stivala was meant to be the fifth witness today, but he is medically indisposed, Zammit McKeon says.  

He will therefore testify in the next sitting.

OHSA CEO Mark Gauci is the first witness of the day.

09:05: We are expecting four witnesses to testify in today's sitting, including the OHSA's CEO Mark Gauci.  For him it is the second time that they are testifying before the board.

Gauci testified last week, telling board members that workplace accidents have decreased in the last few years and speaking about the authority's enforcement and inspection capabilities.

09:00: Good morning and welcome to this live commentary on what is the fourth sitting of the public inquiry into the death of Jean Paul Sofia.