Conviction of a contractor for safety offenses despite his request to avoid conviction

Sep 22, 2019

According to 2153-12-18 From: Attorney Shikma Levi Ezra, Manager of the Claims Division and the Legal Department. Safety and construction violations can have tragic consequences. Especially in Israel, where the construction industry is known to be one of the most dangerous for its workers. Approximately 35 construction workers die each year in work accidents, including particularly "difficult" years like 2016, when the death toll climbed to 50. The appropriate public criticism has led in recent years to a "step-up" in enforcement in the field. For example, after almost ten years in which the Registrar of Contractors did not use the powers granted to him to take tough measures against contractors whose sites killed or seriously injured workers due to safety deficiencies, in 2019 we know of at least 2 contractors who lost their licenses, and about 10 others who were summoned for a hearing before being charged. In the following case, we will present an example of a request for relief from a contractor who, during an inspector's visit to his site, was found guilty of three safety violations and was issued a safety order accordingly. During another visit by the inspector, about a month later, the inspector was surprised to discover that the provisions of the order had not been implemented. The contractor appealed to the court to avoid his conviction and asked to take into account his personal circumstances and the fact that he is a single breadwinner.

Parties to the proceedings – The appeal was filed by a contractor who was convicted of an indictment for violating a safety order in violation of the Labor Inspection Organization Law, 5754-1954, signaling by an unqualified person in violation of the Labor Safety Regulations (Cranes, Other Lifting Machinery Factories, etc.), 5753 – 1992, and violating the duty of supervision imposed on an office holder, which is an offense against the provisions of Section 222 of the Occupational Safety Ordinance [New Version], 5753 – 1970. The Regional Labor Court convicted the contractor of the charges attributed to him, and the latter filed an appeal with the National Labor Court, in which he sought to avoid his conviction.

According to 2153-12-18

From: Attorney Shikma Levi Ezra, Manager of the Claims Division and the Legal Department.

Safety and construction violations can have tragic consequences. Especially in Israel, where the construction industry is known to be one of the most dangerous for its workers. Approximately 35 construction workers die each year in work accidents, including particularly "difficult" years like 2016, when the death toll climbed to 50.

The appropriate public criticism has led in recent years to a "step-up" in enforcement in the field. For example, after almost ten years in which the Registrar of Contractors did not use the powers granted to him to take tough measures against contractors whose sites killed or seriously injured workers due to safety deficiencies, in 2019 we know of at least 2 contractors who lost their licenses, and about 10 others who were summoned for a hearing before being charged.

In the following case, we will present an example of a request for relief from a contractor who, during an inspector's visit to his site, was found guilty of three safety violations and was issued a safety order accordingly.
During another visit by the inspector, about a month later, the inspector was surprised to discover that the provisions of the order had not been implemented.
The contractor appealed to the court to avoid his conviction and asked to take into account his personal circumstances and the fact that he is a single breadwinner.

Parties to the proceedings – The appeal was filed by a contractor who was convicted of an indictment for violating a safety order in violation of the Labor Inspection Organization Law, 5754-1954, signaling by an unqualified person in violation of the Labor Safety Regulations (Cranes, Other Lifting Machinery Factories, etc.), 5753 – 1992, and violating the duty of supervision imposed on an office holder, which is an offense against the provisions of Section 222 of the Occupational Safety Ordinance [New Version], 5753 – 1970. The Regional Labor Court convicted the contractor of the charges attributed to him, and the latter filed an appeal with the National Labor Court, in which he sought to avoid his conviction.

Conviction or avoidance of conviction?

The contractor sought to avoid conviction due to his lack of a criminal record and his family's sole breadwinner. The appellant claimed that he was convicted of a single violation and one incident (working on a tower crane without a certified safety certificate), and this does not indicate that he disregards occupational safety laws or, God forbid, his employees. "On the contrary," the contractor claimed, "I acted to correct the violation, sent four employees to a safety course, and more importantly - I took responsibility. I pleaded guilty in the indictment and saved judicial time."

The contractor asked the court to consider him both in light of his health condition and because his conviction would significantly harm his ability to earn a living. Both because he would be required to notify the Registrar of Contractors of the conviction, and because most of his work is based on a contract with a municipal company that is authorized to remove contractors from its lists if they have been convicted of construction and safety offenses.

The National Labor Court listened attentively to the contractor's arguments, but decided that there was no reason to avoid his conviction . "There is no need to exaggerate the importance of the legislative provisions regarding occupational safety and health, the purpose of which is to protect the lives of workers," the ruling read. "In recent years, the phenomenon of occupational accidents, some of which are fatal, has become very widespread in the construction industry, and therefore the importance of increasing enforcement of occupational safety provisions cannot be overstated, since an integral part of this is increasing deterrence."

"Under these circumstances," the ruling stated, "avoiding conviction for the sake of reducing economic harm undermines the goal of increasing enforcement, one of the ways to achieve which is effective punishment that creates deterrence."
The date of the violations – January 2017.
The verdict in the first proceeding (Labor Court) – October 2017.
The verdict on appeal (National Labor Court) – February 2019.

The contractor sought to avoid conviction due to his lack of a criminal record and his family's sole breadwinner. The appellant claimed that he was convicted of a single violation and one incident (working on a tower crane without a certified safety certificate), and this does not indicate that he disregards occupational safety laws or, God forbid, his employees. "On the contrary," the contractor claimed, "I acted to correct the violation, sent four employees to a safety course, and more importantly - I took responsibility. I pleaded guilty in the indictment and saved judicial time."

The contractor asked the court to consider him both in light of his health condition and because his conviction would significantly harm his ability to earn a living. Both because he would be required to notify the Registrar of Contractors of the conviction, and because most of his work is based on a contract with a municipal company that is authorized to remove contractors from its lists if they have been convicted of construction and safety offenses. The National Labor Court listened attentively to the contractor's arguments, but decided that there was no reason to avoid his conviction . "There is no need to exaggerate the importance of the legislative provisions regarding occupational safety and health, the purpose of which is to protect the lives of workers," the ruling read. "In recent years, the phenomenon of occupational accidents, some of which are fatal, has become very widespread in the construction industry, and therefore the importance of increasing enforcement of occupational safety provisions cannot be overstated, since an integral part of this is increasing deterrence." "Under these circumstances," the ruling stated, "avoiding conviction for the sake of reducing economic harm undermines the goal of increasing enforcement, one of the ways to achieve which is effective punishment that creates deterrence." The date of the violations – January 2017.

The verdict in the first proceeding (Labor Court) – October 2017.

The verdict on appeal (National Labor Court) – February 2019.

The insurance aspect

Developers and contractors are frequently exposed to criminal proceedings, and in light of the public outcry against the lax fight against accidents in the construction industry, enforcement is only increasing. In 2018, for example, dozens of indictments were filed against contractors, about 30% of which concerned safety violations.
The above ruling of the National Labor Court teaches us about the other side of the criminal procedure, which is the possible harm to the defendant, his livelihood, and the finances of his family. It is not for nothing that the contractor sought to avoid his conviction, and even detailed the serious consequences that such a conviction could have. On the other hand, and despite the many reasons presented by him, the Labor Court adopted a zero-tolerance policy.

On the insurance level, it is important to know that contractor work insurance can provide a solution for financing the large expenses for defense in criminal proceedings in the event of an investigation and/or indictment due to an insured event/serious accident covered by the policy, but this is only if the insured has adhered to a few essential rules of thumb.

The professionalism of the insurance agency in this matter is critical, because "basic" contractor policies offer "only thin coverage" (to put it mildly) on the day of the order. When purchasing a contractor insurance policy, attention should be paid to several aspects:

Will the insurance be valid immediately upon the occurrence of the event or only upon the filing of an indictment? In other words, is there coverage in the early stages of the police investigation. This is an important issue, since criminal proceedings are not born from an indictment, and the sooner the insured seeks advice from a criminal lawyer, including with the assistance of professionals such as accident and safety investigators, the greater his chances of influencing the future of the case (including preventing the filing of an indictment, and/or dealing with a reduced indictment). If the policy does not cover the above-mentioned stage, these high expenses will be borne by the insured's private pocket.
Is the insurance coverage high enough to allow for engagement with a criminal lawyer who specializes in representing developers and contractors in criminal proceedings on construction sites? Please note that without reference to this matter, the coverage will generally be up to 200,000 shekels for a single case and up to 400,000 shekels for the entire insurance period. This is in addition to subjecting the cost of coverage to the minimum rate for legal representation in criminal proceedings, in accordance with the Bar Association's tariff. In other words, the insured will not be able to receive funding to engage with a specific lawyer who specializes in representing contractors and developers in criminal proceedings due to incidents on construction sites. In a parenthetical article, we note that these lawyers are not numerous, and their fees are not low.
Is there coverage for the salaries of professional experts such as safety experts, accident investigators, etc.? This extension makes it possible to cover the high cost of the aforementioned experts, whose services may be of great value to the insured.

See a legal review by John Geva & Hadar Law Firm and link to the article below: https://bit.ly/2lXzix3

Developers and contractors are frequently exposed to criminal proceedings, and in light of the public outcry against the lax fight against accidents in the construction industry, enforcement is only increasing. In 2018, for example, dozens of indictments were filed against contractors, about 30% of which concerned safety violations. The above ruling of the National Labor Court teaches us about the other side of the criminal procedure, which is the possible harm to the defendant, his livelihood, and the finances of his family. It is not for nothing that the contractor sought to avoid his conviction, and even detailed the serious consequences that such a conviction could have. On the other hand, and despite the many reasons presented by him, the Labor Court adopted a zero-tolerance policy. On the insurance level, it is important to know that contractor work insurance can provide a solution for financing the large expenses for defense in criminal proceedings in the event of an investigation and/or indictment due to an insured event/serious accident covered by the policy, but this is only if the insured has adhered to a few essential rules of thumb.

The professionalism of the insurance agency in this matter is critical, because "basic" contractor policies offer "only thin coverage" (to put it mildly) on the day of the order. When purchasing a contractor insurance policy, attention should be paid to several aspects:

Will the insurance be valid immediately upon the occurrence of the event or only upon the filing of an indictment? In other words, is there coverage in the early stages of the police investigation. This is an important issue, since criminal proceedings are not born from an indictment, and the sooner the insured seeks advice from a criminal lawyer, including with the assistance of professionals such as accident and safety investigators, the greater his chances of influencing the future of the case (including preventing the filing of an indictment, and/or dealing with a reduced indictment). If the policy does not cover the above-mentioned stage, these high expenses will be borne by the insured's private pocket.
Is the insurance coverage high enough to allow for engagement with a criminal lawyer who specializes in representing developers and contractors in criminal proceedings on construction sites? Please note that without reference to this matter, the coverage will generally be up to 200,000 shekels for a single case and up to 400,000 shekels for the entire insurance period. This is in addition to subjecting the cost of coverage to the minimum rate for legal representation in criminal proceedings, in accordance with the Bar Association's tariff. In other words, the insured will not be able to receive funding to engage with a specific lawyer who specializes in representing contractors and developers in criminal proceedings due to incidents on construction sites. In a parenthetical article, we note that these lawyers are not numerous, and their fees are not low.
Is there coverage for the salaries of professional experts such as safety experts, accident investigators, etc.? This extension makes it possible to cover the high cost of the aforementioned experts, whose services may be of great value to the insured.