Monday, July 9, 2007

IS AHK/China --- Legal framework for Tree Climbing & Practices

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Dear All,

In view of the potential danger in tree climbing & other related tree care practices so carried out at present by untrained workers in HK, this Station has been researching on the legal aspects of tree work for some months already.

According to the latest statistics released by ISA (p.51 Arborist News Dec 2005), tree care profession ranks 4th highest for fatalities in the USA, approximately 3 times higher than that of Police & Firefighters. Although there is no specific statistics for such in HK, I myself have been in the landscaping profession in HK for over 22 years & I have been many cases of injuries relating to tree work, in particularly in tree climbing with the traditional way, from among the contractors. Most of the injuries came from slip & fall from a tree, & some came from cut wounds from saws & other tools.

Although HK is behind in establishing tree laws like other Western countries, there are actually relevant laws which indirectly govern the responsibilities of tree workers & their employers in their work. The Chapter 509 Occupational Safety & Health Ordinance (CAP 509) is one of them.

CAP 509 sec 6 states:

(1) Every employer must, so far as reasonably practicable, ensure the safety & health at work of all the employer's employees.
(2) The cases in which an employer fails to comply with subsection (1) include (but are not limited to) the followings:
(a) a failure to provide & maintain plant & systems of work that are, so far as practically reasonable, safe & without risks to health;
(c) a failure to provide such information, instruction, training & supervision as may be necessary to ensure, so far as reasonably pracicable, the safety & health at work, of the employer's employees;
(e) a failure to provide or maintain a working environment for the employer's employees that is, as far as reasonbly practicable, safe & without risks to health.

In the case of tree climbing, this would mean proper approved climbing gears & sanctioned training for the tree climbers. This will mean more than just a safety belt & a ladder, but the complete set of Personal Protective Equipment (PPE), approved rope, saddle, carabiners, saws, etc. The definition of sanctioned ' training' will be the judgement of the court, but ISA Certified Tree Worker (CTW) training which is an internationally accepeted credential will be given important weighing by the judges.

Further, CAP 509 sec 33 (1) states:

Where the person convicted of an offence against this Ordinance is a company & it is proved that the offence was committed with the consent or connivance of, or was attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the company, the director, manager, secretary or other similar officer shall be guilty of the like offence.

This defines the liabilities of the employer & the management.

To elaborate on the training to be provided by the employer, the CAP 509A sec 51 (1) states:

An employer must provide his employees with such training as will be necessary for avoiding or minimizing the risks to the safety & health of those employees when they are undertaking manual handling operations which may creat safety & health risks.

This clearly defines all tree workers must be trained before they can enter into tree care operations, such as tree climbing & elevated pruning.

When accident involving tree work happens, it would usually be the insurance company challenging the employer on breaking the CAP 509 & try to avoid paying. The insurer, if they know it, would employ an arborist to substantiate a report blaming on the negligence of the employer on non-compliance to the CAP 509. If the court finds the employer guilty of such, the employer may have to face all the claims alone. The employer may then try to blame on the supervising body on allowing him to perform his guilt on site under supervision & charge ' Vacarious Liability' from the supervising body. Afterall, the supervising body should not allow untrained workers without the proper equipment to carry out the job. There should be specifications forbidding that to happen. If not, the supervising body may have to face inquiry into why untrained workers without proper equipment are allowed to do skilled work, & this can lead to 'Professional Negligence' on the supervising body. If such is the case, then everybody would be dragged in & it will be one big unhappy family.

This may be something the employers should pay attention to.

Lets hope our law now can reduce fatality & injury in our business.

best regards,

Sammy Au
Station Manager


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