The Serious Accident Punishment Act (SAPA) was passed earlier this year and is aimed at preventing major workplace accidents by holding business owners and managerial personnel responsible. The SAPA will take effect on 27 January 2022 for workplaces with 50 or more employees, and on 27 January 2024 for workplaces with fewer than 50 employees (though workplaces with fewer than 5 employees are exempted from provisions relating to serious industrial accidents) and construction projects with a contract price of less than KRW 5 billion (approximately USD$4.5 million).
To provide guidance on the implementation of the SAPA, the Government approved the Enforcement Decree to the SAPA, which is scheduled to take effect on 27 January 2022. This article considers measures to be taken under the Enforcement Decree to prevent serious industrial accidents.1
Article 4 of the SAPA requires business owners and managerial personnel to take steps to prevent serious industrial accidents, namely:
- to establish a health and safety management system by utilising sufficient manpower and financial resources as necessary to prevent accidents;
- to establish an adequate contingency plan to prevent recurrence of an accident;
- to comply with any improvement or corrective order issued by a governmental authority; and
- to implement measures that are necessary to comply with all applicable health and safety laws and regulations.
The Enforcement Decree provides detailed guidance on the specific measures to be taken to comply with the above requirements.
Under the SAPA, a "business owner" is a person or legal entity who owns a business or operates a business through services provided by others. A "managerial personnel" is an individual who:
- is authorised to represent and manage the business concerned. Such individuals usually include a representative director of a company and the president of an organisation (although titles are not determinative); or
- has the duty to oversee safety and health matters for the business concerned.
Health and Safety Management System
To comply with the obligation to establish a health and safety management system, business owners and managerial personnel should:
- establish health and safety objectives and policies for each workplace;
- establish guidelines to identify and remedy any hazards or risk factors based on the characteristics of each workplace and, at least twice a year, monitor compliance with the guidelines;
- appoint at least the prescribed number of health and safety personnel (ie safety managers, health managers, chief safety and health officers and occupational health physicians) under the Occupational Safety and Health Act (OSHA). If these personnel concurrently occupy other positions, ensure that they are able to perform their safety and health duties;
- establish an adequate budget to carry out the following activities and ensure that the budget is managed and executed in line with its purpose:
- hiring health and safety personnel and acquiring safety facilities and equipment;
- remedying any hazards or risk factors; and
- performing any other health and safety matters as notified by the Ministry of Employment and Labour;
- take measures to ensure that persons in charge of safety and health management (Article 15 OSHA), supervisors (Article 16 OSHA) and persons in general in charge of safety and health (Article 62 OSHA) may perform their duties by granting them the authority and financial resources to do so, establishing performance evaluation criteria and evaluating them accordingly at least twice a year;
- for a workplace with at least 500 full time employees (or a construction company in the top 200 ranking in terms of construction capability), establish an organisation dedicated to the general management of safety and health matters;
- establish procedures to solicit workers' feedback on safety and health matters. Implement and monitor (at least twice a year) measures taken based on such feedback. The feedback may be gathered through the health and safety council under the OSHA;
- prepare a contingency plan for serious industrial accidents, including:
- response measures, such as suspension of work, evacuation, reporting and removal of hazard;
- relief measures for persons affected by serious industrial accidents; and
- measures to prevent further damage,
and, at least twice a year, monitor whether the measures set out in the contingency plan are complied with;
- if a service provider is engaged for subcontracting, worker dispatch or outsourcing, develop the following criteria and procedures for assessing service providers and, at least twice a year, monitor compliance with these criteria and procedures:
- criteria and procedures to assess the service provider's capabilities to prevent accidents; and
- criteria and procedures to assess the service provider's safety and health management costs.
Measures to Comply With Health and Safety Obligations
Business owners and managerial personnel should also do the following to ensure that health and safety obligations are complied with at the workplace:
- at least twice a year, check compliance with the relevant health and safety laws (this may be outsourced to a designated third party agency) and review the outcome delay;
- where there are obligations that are not complied with, take measures as necessary including by assigning manpower or allocating additional budget;
- at least twice a year, check whether mandatory health and safety training courses related to hazardous and dangerous work under the safety and health related laws are provided, and review the outcome without delay; and
- where any of the courses is not provided, take measures to ensure that they are provided including by issuing a direction to provide such courses or allocating additional budget.
The Enforcement Decree also lists 24 types of illnesses as occupational illnesses. Understanding the risks of developing these occupational illnesses at the workplace is key, as an occurrence of three or more cases of occupational illnesses from the same hazard in a year constitutes a serious industrial accident under the SAPA.
The SAPA and its Enforcement Decree carry significant potential liabilities for business owners and managerial personnel. In particular, the SAPA imposes personal criminal liabilities on business owners and managerial personnel in the event of a serious accident as follows:
- where there is a fatality, an imprisonment of at least one year and/or a criminal fine of up to KRW 1 billion (approximately USD$900,000);
- where there is no fatality, an imprisonment of up to seven years or a criminal fine of up to KRW 100 million (approximately US$D90,000)).
There may also be criminal fines imposed against the company of up to KRW 5 billion (approximately USD$4.5million) where there is fatality or up to KRW 1 billion (approximately USD$900,000) where there is no fatality.
It is therefore crucial that employers dedicate sufficient management time and attention to safety issues and that safety considerations are integrated into decision-making processes.
It is also important that business owners and managerial personnel obtain up-to-date knowledge on workplace health and safety requirements and are familiar with the specific hazards and risks that may be specific to a particular workplace