On November 30, 2022, the Ministry of Employment and Labor (the “MOEL”) announced the Serious Accident Reduction Roadmap (the “Roadmap”).
The Roadmap has been underway as a part of the new administration’s national priorities. In it, the MOEL announced its plan to reduce the mortality rate/10,000 of full-time employees from 0.43‱ (reported in 2021) to the OECD’s average level of 0.299‱ by 2026. According to the MOEL, the Roadmap moves the government’s focus from post-enforcement/sanctions to prevention of serious accidents. Further, the Roadmap highlights the transition to a “self-regulatory prevention system” with a focus on risk assessment, similar to cases observed in other developed countries (e.g., UK).
1. Key Details of the Roadmap
A. Risk Assessment as Key Component of “Self-Regulatory Prevention System”
- Definition of “self-regulatory prevention system”
The “self-regulatory prevention system” is an industrial accident prevention system that embodies the core concept of the Roadmap. Through this system, a company and its workers jointly establish their own methods of self-regulation tailored to the characteristics of their workplace in accordance with the standards presented by the government.
Specifically, the system is a method of safety management whereby a company voluntarily identifies and removes workplace risk factors on a day-to-day-basis through risk assessment, and takes responsibility for the consequences of industrial accident based on the adequacy of its prevention efforts.
- Mandatory implementation of “risk assessment system”
While the risk assessment system was introduced and implemented under the Occupational Safety and Health Act (the “OSHA”) in 2013, it has not been fully incorporated at industrial sites.
The Roadmap plans to operate the risk assessment system by focusing on “recurrence prevention” and identifying and reducing “key risk factors,” taking 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 the identification of risk factors, establishment of improvement measures, fulfillment of preparations in advance, and the estimation/determination of risks.
The Roadmap further plans to instruct businesses to notify workers of previous cases of accidents, including near-miss accidents or accidents that caused at least three days of business suspension.
In addition, the Roadmap will encourage the on-site sharing of regular/irregular risk assessment results through tool box meetings (“TBM”s, on-site safety meetings conducted before the commencement of work).
Moreover, the Roadmap also plans to expand the “three-step, monthly-weekly-daily sharing system” to ensure that each business’s regular/irregular risk assessment results are communicated to on-site workers at all times, and to develop and distribute a mobile application to share the risk assessment results.
B. Amendments to OSHA and Serious Accidents Punishment Act (the “SAPA”)
- Direction of amendments to the OSHA
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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 a flexible response).
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Expand the scope of businesses that are required to establish an Occupational Safety and Health Committee (from a business with at least 100 employees to one with at least 30 employees) (scheduled for 2023).
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Expand the scope of businesses that are required to prepare safety and health management regulations (from a business with at least 100 employees to one with at least 10 employees) (scheduled for 2023).
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Establish guidelines to clarify the scope of the safety and health-related roles and responsibilities of a main contractor and a subcontractor (scheduled for 2023).
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Clarify the legal liabilities of intermediary subcontractors in multi-layered subcontracting contracts (amendment to the law scheduled for 2024).
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Stipulate workers’ obligation to comply with safety rules (scheduled for after 2023).
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Establish and disseminate “standard health and safety management regulations” that specify the grounds and procedures for sanctions against workers who repeatedly fail to comply with safety rules (scheduled for 2023).
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Expand the scope of businesses that are required to appoint a safety officer dedicated to safety management (from a business with at least 300 employees to one with at least 50 employees) (by 2026).
- Direction of amendments to the SAPA
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Clarify the penalty requirements based on key factors such as a violation of the obligation to conduct risk assessment and establish and implement recurrence prevention measures, etc. (i.e., ensure criminal penalties for habitual/repeated violations, accidents resulting in multiple deaths, etc.).
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Improve the method and system of imposing penalties by referring to previous cases in other developed countries (e.g., economic sanctions, imposition of fines on companies, etc.).
- Establishment and operation of a “Task Force for the Improvement of Occupational Safety and Health Laws/Regulations” to amend the applicable laws and regulations (scheduled for the first half of 2023)
C. Occupational Safety Supervision and Sanctions in Case of Serious Accidents
- Replacement of regular supervision with “risk assessment inspection”
By conducting a “risk assessment inspection,” verify whether (i) the risk assessment was properly performed, (ii) the improvement measures were appropriate, (iii) both employees and management participated in the assessment, (iv) the assessment was applicable to the business site, and (v) the workers were aware of previous accidents.
The government plans to establish and implement recurrence prevention measures based on accident case analysis, and mandate checking whether a safety and health management system has been established and implemented when conducting a risk assessment.
- Severe punishment/sanctions in cases of serious accidents, while taking into account internal efforts such as risk assessment
For companies that have dutifully 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 an appropriate charge/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) regarding non-reported or concealed industrial accidents in order to check the status of compliance with the obligation to establish and implement recurrence prevention measures.
2. Implications and Considerations
A. Need to Establish a Risk Assessment System and Strengthen its Implementation
Although risk assessment has been conducted in accordance with the OSHA since 2013, there were no provisions for punishing or sanctioning the nonfulfillment 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 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 cases of serious accidents is expected to be whether a risk assessment was properly performed.
Risk assessment is a process that involves the participation of on-site supervisors and field workers. Therefore, companies need to establish specific procedures to effectively conduct risk assessment at each particular workplace, strengthen the training and participation of workers, and maintain various records to prove that they have taken sufficient measures for an adequate risk assessment.
B. Need to Strengthen Communication with Workers
Indicating that workers’ active participation is the key to the self-regulatory prevention system, the Roadmap details the following plans in connection with workers’ participation:
- Expand the scope of businesses that are required to establish an Occupational Safety and Health Committee (from a business with at least 100 employees to one with at least 30 employees).
- Grant subcontracted workers the right to submit their opinions to the Safety and Health Council of the main contractor and the subcontractor (under 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 by monitoring new developments.