Control of the entry and exit of visiting workers and guests at the construction site
May 16, 2018
By: Itzick Simon and Attorney Ma'in Glassner - Insurance Consultant
Those who wander around European cities are often amazed by the orderliness, cleanliness, investment in environmental design, and the clean and tidy markets, as if they were a luxury supermarket. And what about the two lines that opened to the construction industry? Here they are: I don't know if you've noticed, but when you pass by a construction site abroad, it's impossible not to be amazed and even feel a hint of envy:
Super decorative fencing
Neat lighting with a design that compliments the street
The entrance gate to the construction site with intercom and controlled entry
And where are we? In many cases, the way an 'Israeli' construction site is fenced raises the question, "Is there also an obligation here in Israel to ensure the safety of workers and visitors to the site?" Well, according to the Occupational Safety Regulations (Construction Works) 1998, there is a requirement to fence the site and display visible warning signs! However, this requirement is intended to protect those outside the construction site.
But what about the employer's duty to protect employees and guests who are inside the construction site? And how does the employer protect his employees from the invasion of unwanted elements into the site that could sabotage them or their work?
By: Itzick Simon and Attorney Ma'in Glassner - Insurance Consultant
Those who wander around European cities are often amazed by the orderliness, cleanliness, investment in environmental design, and the clean and tidy markets, as if they were a luxury supermarket. And what about the two lines that opened to the construction industry? Here they are:
I don't know if you've noticed, but when you pass by a construction site abroad, it's impossible not to be amazed and even feel a hint of envy:
- Super decorative fencing
- Neat lighting with a design that compliments the street
- The entrance gate to the construction site with intercom and controlled entry
And where are we?
In many cases, the way an 'Israeli' construction site is fenced raises the question, "Is there also an obligation here in Israel to ensure the safety of workers and visitors to the site?"
Well, according to the Occupational Safety Regulations (Construction Works) 1998, there is a requirement to fence the site and display visible warning signs! However, this requirement is intended to protect those outside the construction site.
But what about the employer's duty to protect employees and guests who are inside the construction site?
And how does the employer protect his employees from the invasion of unwanted elements into the site that could sabotage them or their work?
In short: is fencing the site alone sufficient in the circumstances?
Before I attempt to answer these and other questions, it is appropriate to reiterate the enforcement order of the Labor and Safety Regulations, the expansion of which came into effect at the beginning of 2018: The law authorizes the Labor Inspector to impose fines (financial sanctions, as the law states) for any violation of any of the employer's duties.
For example: If four breaches are found in the fence surrounding the construction site, the inspector may impose four fines on you. The 'cost' for a breach is 25,000 NIS, and in simple terms, this amounts to an unnecessary and burdensome payment of 100,000 NIS, and who said that only the fence is defective?
It's not just about money...
Fencing the site, in any fence, is not intended just to fulfill an obligation or because you may be subject to a heavy fine. The fencing is intended, first and foremost, to separate a construction site where work is being carried out that requires those present to follow safety instructions and regulations from those who do not need to enter the site, thereby preventing harm to the body or soul of innocent (and 'not innocent') citizens who are not part of the work.
But - this is not the only purpose of the fence. Fencing is only part of the means that allows an employer to monitor and control what is happening on a construction site and prevent the entry of elements that may harm the safety of the construction site, accidentally or intentionally, and thus protect those who are inside the work site.
Before I attempt to answer these and other questions, it is appropriate to reiterate the enforcement order of the Labor and Safety Regulations, the expansion of which came into effect at the beginning of 2018: The law authorizes the Labor Inspector to impose fines (financial sanctions, as the law states) for any violation of any of the employer's duties. For example: If four breaches are found in the fence surrounding the construction site, the inspector may impose four fines on you. The 'cost' for a breach is 25,000 NIS, and in simple terms, this amounts to an unnecessary and burdensome payment of 100,000 NIS, and who said that only the fence is defective?
It's not just about money... Fencing the site, in any fence, is not intended just to fulfill an obligation or because you may be subject to a heavy fine. The fencing is intended, first and foremost, to separate a construction site where work is being carried out that requires those present to follow safety instructions and regulations from those who do not need to enter the site, thereby preventing harm to the body or soul of innocent (and 'not innocent') citizens who are not part of the work. But - this is not the only purpose of the fence. Fencing is only part of the means that allows an employer to monitor and control what is happening on a construction site and prevent the entry of elements that may harm the safety of the construction site, accidentally or intentionally, and thus protect those who are inside the work site.
Unwanted visitors
Visitor registration
Granting or refusing permission (by virtue of the position...)
Installing cameras and controlling them through a control room
Installing an intercom at the entrance to the site
Posting a gate guard who will monitor those entering and leaving at all hours of the day and night
Lighting installation
Unwanted visitors
Since we are a country that often suffers from terrorist incidents, especially those carried out by illegal immigrants (illegal residents), the question arises whether, in the event that a terrorist infiltrated (or was employed illegally) and committed an act of terrorism, can any liability be imposed on the construction operator who did not prevent his entry?
The question also arises as to whether, in the event that a terrorist infiltrates (or is illegally employed) and commits an act of terrorism, is there an insurance source for reimbursement?
In fact, we are no longer discussing the economic aspect of fines for breaches in the fence or the aesthetics of the work site fencing, but rather: who will compensate the injured party and his family.
Although the state, through the National Insurance Institute, is obligated by law to provide financial royalties and various benefits to victims of terrorism and their families, the contractor's policy excludes coverage due to damage caused to a person or employee due to terrorist activity, without requiring the insurer to ask whether the construction contractor could, by some means or another, have prevented the entry of threats or their employment on the work site, since the contractor's policy contains an exception to the insurance coverage that concerns terrorism.
This exception states that an insurer will not indemnify the insured for loss, damage or liability that was caused, resulted from or was aggravated, directly or indirectly, as a result of acts of sabotage and terrorism.
Terrorism, according to the policy, is the use of violence for political purposes by people acting on behalf of or in connection with an organization hostile to the state.
A determination that damage was caused as a result of terrorism constitutes, as stated, grounds for rejecting damages under the terrorism exception.
So in fact - the fence is intended to protect:
1. Passersby outside the work site should be aware of the dangers that may arise for them inside the site.
2. On workers who are on the site itself, against dangers that may penetrate the site and sabotage the work.
3. On the employer - since harm to any person or entity at the work site, defined as an act of terrorism, will leave him exposed to a lawsuit regarding his negligence in protecting his employees from the entry of unwanted elements, and this without an insurance company to cover him.
Important: Recently, it has been possible to purchase a dedicated policy that insures against terrorist risks through a London syndicate - for more details about this policy - contact us.
Why is the employer exposed to these events?
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