ISA HK/China --- Tree Climbing in a Construction Site

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Dear Station Members,

Further to the Station Mail last Tuesday reporting on falling accidents involving height on working platforms, this Station has received vigorous comments from Station Members condemning the use of working platforms for arbor work. Our CA Family Member Mike Leung actually wrote to the Labour Dept a little a while ago to clarify the necessity of using working platform for working on trees. The Labour Dept gave him a reply on the subject & the various regulations are now attached for general reference.

Please note the paragraph in blue is the legal liability of the contractor on site to prevent any falling accident.

Please note the paragraphs in red are the design of the Fall Protection System.

Please note the paragraphs in green are the defence in Court for the used Fall Protection System.

It can be clearly seen from the regulations that the use of ropes & harness is the other means of support so mentioned in the regulations as long as all the components adopted are safe. How the world 'safe' is defined will be up to the Court Judges at the end. The Court Judges will need facts & international standards to reach a decision. Practicing Arborist testifying as Expert Witness with all the international standards & experience collected will be the strongest evidence to convince. If the opposite side is presenting a Labour Inspector or Safety Officer who has never climbed a tree nor familiar with the international practices/experience, the chance of winning for them in a HK Court will be extremely slim. HK still believes in the rule of law. Court Judges are supposed to be blind-folded with a scale on one hand & a sword on the other.

Now with regulations as weapon on hand, maybe our Station Member can use them for persuasion in the case that they are still required to use bamboo scaffolding or other working platforms to carry out arbor work. Only if HK can have more education in arboriculture among the public, such unfair requirement should never have happened in the first place. That's why our Station is now offering free Arbor Seminars to the public.

If anyone still has any difficulties with the same subject in future, please kindly contact this Station for help.

best regards,

Sammy Au
Station Manager

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Reply from Labour Dept on FIUO & OSHO Regulations in HK on 5.6.07 for Mike Leung, ISA CA of the CA Family of ISA HK/China Station

Our reference : (22) in DU/COR/PUB Pt.65 Dear Mr. LEUNG,
Thank you for your e-mail of 31 May 2007 enquiring the captioned subject.
The Factories and Industrial Undertakings Ordinance (FIUO), Cap 59, the Occupational Safety and Health Ordinance (OSHO), Cap 509, and their subsidiaryregulations are the occupational safety and health legislation administered by this Department in Hong Kong.
Regarding the safety of working at height in connection with construction work, the statutory requirements are stipulated in the following regulations, which are not exhaustive:
(I) Regulation 38B of the Construction Sites (Safety) Regulations (CSSR) (Cap 59I) :-
(1) Subject to paragraphs (2), (3) and (4), the contractor responsible for any construction site shall take adequate steps to prevent any person on the sitefrom falling from a height of 2 metres or more.
(1A) Subject to paragraphs (2), (3) and (4), any contractor who has direct control over any construction work shall take adequate steps to prevent any person on any place where the construction work is being carried out from falling from a height of 2metres or more.
(2) For the purpose of paragraphs (1) and (1A), "adequate steps" shall include the provision, use and maintenance of one or more of the following-
(a) working platforms; (b) guard-rails, barriers, toe-boards and fences; (c) coverings for openings; (d) gangways and runs.(II) Regulation 38C of the CSSR:-
Where work cannot be safely done on or from the ground or from part of a permanent structure, the contractor responsible for the construction site concerned andany contractor who has direct control over the work shall provide, and ensure the use of, a scaffold, ladder or other means of support, all of which shall be safe for the purpose, having regard to the work to be done.
(III) Regulation 38D of the CSSR:-
The contractor responsible for any scaffold, ladder or other means of support referred to in regulation 38C and any contractor who has direct control over any work which involves the use of the scaffold, ladder, or other means of support shall ensure that it shall not be used unless it is-
(a) so designed and constructed that it does not collapse, overturn or move accidentally; (b) of suitable and sound materials of sufficient strength and capacity for the purpose for which it is to be used; and(c) properly maintained and every part thereof kept so securely supported or suspended as to ensure; so far as is reasonably practicable, that it is stable.
(IV) Regulation 38H of the CSSR:-
(1) It shall be a defence for a contractor charged with an offence under regulation 38B(1) or (1A) or 38C to show-
(a) that in all the circumstances of the case, it was impracticable to comply with all or any of the requirements of that regulation; (b) that- (i) the contractor provided suitable and adequate safety nets and safety belts in lieu of complying with those requirements; or (ii) in all the circumstances of the case, it was impracticable to provide such safety nets and the contractor provided suitable and adequate safety belts in lieu of complying with those requirements; and
(c) that all reasonably practicable steps were taken to ensure the proper use of the safety belts by the persons to whom they were provided.
(2) Safety nets shall not be considered as suitable and adequate for the purpose of paragraph (1) unless they are-
(a) of such design and so constructed; and (b) so erected, maintained and kept in such positions, as to be effective to protect persons carrying on at a height the work to which the nets relate, to protect persons using any access to or egress from the part of the construction site where that work is being done and to prevent as far as practicable injury to persons falling onto them.
(3) Safety belts shall not be considered as suitable and adequate for the purpose of paragraph (1) unless they-
(a) are attached continuously to a suitable and secure anchorage; (b) have suitable fittings therefore; and (c) are of such a design and so constructed and maintained as to prevent injury to persons using them in the event of a fall.

It follows that if the arboricultural work as mentioned in your e-mail belongs to construction work or is connected with construction work, the contractor responsible shall follow and comply with the statutory requirements prescribed by the abovementioned regulations. For the definition of construction work, you may refer to Section 2 of the FIUO.
Moreover, Section 6 of the OSHO and Section 6A of the FIUO prescribe, among others, the duties of a proprietor/employer/contractor to ensure the safety and health at work of his employees. The duties include the provision and maintenance of safe plant and systems of work to the person(s) employed.
You may view the full content of the aforementioned legislation in the website of the Department of Justice at http://www.justice.gov.hk/Home.htm.
If you have further enquiry on the matter, please feel free to contact me at 2975 6406.
Yours sincerely, (TANG Kai-yu)for Permanent Secretary for Economic Development andLabour (Labour)/ Commissioner for Labour"