health and safety at work regulatory change, roles and responsibilities genova, january 17 th 2013
TRANSCRIPT
HEALTH AND SAFETY AT WORK
Regulatory change, roles and responsibilities
GENOVA, January 17th 2013
Risk considered to be a factor closely linked to work and therefore inevitable.Attention given only to repairing the consequences of accidents
1898 20101955
DEGREE OF ATTENTION
Attention directed to the health and safety of workers and to primary prevention
Attention directed to the physical, mental and social well-being of workers: quality of working life.Behaviour-based safety.
Cultural evolutions and social expectations
The legal framework
Technical regulations, guidelines, handbooks
The Italian Constitution
Civil Code and Penal Code
Laws, Delegated Laws,Presidential Decrees, EC Directives
Prime ministerial decrees, ministerial decrees, labour contracts, jurisdiction
Generallegislation
Special legislation
General legislation: the Italian Constitution
Art. 41
Private economic enterprise is free. It may not be carried out against the common good, or in such a manner that could damage safety, liberty and human dignity.........
The Costitution
Art. 32
The Italian Republic protects health as a fundamental right of the individual and as a collective interest, and guarantees free medical care to the indigent……..
General legislation: the Civil Code
Book V - Rights and duties of the parties (employers and employees), employer’s managerial authority and disciplinary power
Art. 2049 Liability of principals and employersPrincipals and employers shall be liable for any injury caused by unlawful acts of their domestic staff or salespeople while carrying out their duties.
Art. 2087 Protection of the working environment An employer must adopt in the organisation of his enterprise all measures which, according to the nature of the work, the experience and the technical possibilities, are required to protect the physical integrity and the moral personality of his workers.
Art. 2050 Liability for carrying out dangerous activities Anyone causing injury to others in the carrying out of a dangerous activity, either in its nature or by reason of the nature of the means of operation adopted, is required to compensate for injury caused, unless he can prove that he has adopted all the measures appropriate to avoid that injury.
Civil Code and Penal Code
General legislation: the penal code
Penal CodeIn the Criminal Code, crimes of injury (art. 590) and manslaughter (art. 589) are considered to be more serious when committed in violation of the regulations regarding safety at work.
Art. 437 Intentional removal or failure to make use of precautionary measures against accidents at work Anyone who fails to set up systems, devices or signals designed to prevent disasters or accidents in the workplace, or who removes or damages such systems, will face a prison sentence of between six months and five years. If an actual disaster or accident occurs because of this act, the sentence will be from three to ten years.
Art. 451 Negligent failure to make use of precautionary measures against disasters or accidents at workAnyone who, by negligence, fails to set up or removes or damages systems or devices designed for fire extinguishing, life-saving or first aid in the event of a disaster or accident in the workplace will face a prison sentence of up to one year or a fine of between € 103.00 and € 516.00.
Civil Code and Penal Code
Laws, Delegated Laws, Presidential Decrees, EC Directives
Prime ministerial decrees, ministerial decrees, labour
contracts, jurisdiction
Technical Regulations, Guidelines, Handbooks
Consolidating art (D.Lgs 81/2008) art 300/1970 “Workers’ statute”
Special legislation
Flexible system Inflexible system
Special legislation: Regulatory change
D.Lgs 81 D.Lgs 626
•System oriented towards management and organisational aspects, and prevention•New levels of relations and definition of roles and responsibilities for new individuals.•Substantial respect for prevention and protection measures
• Prescriptive, sectorial system, oriented towards repression rather than prevention
• Excessive regulatory fragmentation
• Formal respect for conformity
1955 1994 2008 2010
ORGANISATION AND
MANAGEMENT APPROACH
COMMAND AND CONTROL
APPROACH
D.Lgs. 81/2008: Organisation and participation model
Prevention andProtection Supervisor
Qualifieddoctor
Fire Wardens
Planner
Manufacturer
First Aid Officers
Employees’ Healthand Safety representative
Supplier
Obligations
Duties
Fitter
Health and Safety Officer
Manager
Employer
Worker
Prevention and Protection Supervisor
The service for the prevention of and protection from risks in the workplace involves: 1.the evaluation of risks;2.the development, within the realm of responsibility, of preventive and protective measures and of the systems for the inspection of these measures;3.the development of safety procedures for the company’s various activities;4.the proposal of information and training programmes for workers;5.participation in periodic prevention and protection meetings;6.supplying employees with information about risks, and about the measures and procedures described above;7.Employees involved in prevention and protection services are bound to secrecy regarding the working processes they learn about during their duties, in accordance with the decree.8.The prevention and protection service is used by the employer.
The Employees’ Health and Safety Representative
1. is consulted in advance regarding the evaluation of risks and the identification of prevention and protection measures;
2. is consulted regarding the nominations and duties assigned by the employer;3. is consulted regarding the organisation of training;4. receives company information and documentation regarding health and safety
at work;5. promotes the development, identification and enactment of prevention
measures;6. submits observations regarding inspections and audits carried out by the
competent authorities by whom he/she is consulted;7. attends periodic prevention meetings;8. submits proposals regarding prevention activities;9. advises employer of any risks identified during his/her work;10.appeals to the competent authorities if he/she considers that measures taken
by the employer are inadequate for the purposes of ensuring safety and health at work.
Organisation: de facto responsibilities
De facto exercise of authority (Art. 299 D.Lgs 81/2008)The duty of care applicable to the above-described subjects also applies to those who, although not officially defined, in concrete terms possess legal authority regarding each of the defined subjects.
Health and Safety Officer
Manager
Employer
Worker
Employer
EMPLOYER – definition (art. 2, D.Lgs 81/2008)The person who is bound by contract to the worker or the person who has the responsibility to organise the business in so much as he exercises power of disposition and spending.
MANAGER – definition (art. 2, D.Lgs 81/2008)The person who, within the scope of his professional competences and hierarchical and functional powers in accordance with the nature of his job, carries out the employer’s instructions, organising and monitoring the work in question.
Manager
Health and Safety Officer
HEALTH AND SAFETY OFFICER – definition (art. 2, D.Lgs 81/2008)The person who, within the scope of his professional competences and hierarchical and functional powers in accordance with the nature of his job, supervises the work and guarantees that instructions received are carried out, ensuring that this is done so correctly by workers, and exercising a functional power of initiative
WORKER – definition (art. 2, D.Lgs 81/2008)Person who, whatever his type of working contract, carries out a job within an employer’s organisation, whether public or private, with or without payment, even with the sole aim of learning a trade, art or profession, excluding domestic help and family members.
Worker
Management Model: introduction
Introduce la responsabilità amministrativa delle persone giuridiche
Introduce nel 231/2001, (art. 25 septies) la responsabilità amministrativa delle società in relazione ai delitti colposi di omicidio e lesioni personali gravi e gravissime, commessi in violazione delle norme sulla sicurezza del lavoro
L’art. 30 prevede i modelli di gestione aziendali esimenti la responsabilità amministrativa delle persone giuridiche
In accordance with art. 583 c.p.,Injury to persons is considered serious:
- if it results in an illness or disability with a prognosis of more
than 40 days- if it results in the permanent weakening of one of the senses or an organ
Injury to persons is considered extremely serious:- if it results in a certainly/probably incurable illness - if it results in the loss of one of the senses, an organ or a limb- if it results in permanent damage to the face
D.Lgs 231/2001 L. 123/2007 D.Lgs 81/2008
The model adopted and efficiently put into practice must ensure a company system for the fulfilling of all legal obligations regarding:•compliance with technical-structural standards;•risk evaluation and the provision of necessary preventive and protective measures;•activities of an organisational nature, such as emergencies, first aid, management of external contracts, periodic safety meetings, consultations with employees’ health and safety representatives;•health surveillance.
Appropriate Management Model(art. 30 D.Lgs 81/2008)
The Organisational and Management model must include adequate systems for the registration of the implementation of the measures laid downThe organisational model must in every case include the organisation of the verification, evaluation, management and control of risks, as well as an appropriate disciplinary system for the punishment of failure to adhere to the measures laid down in the model.The organisational model must also include an adequate system for the control of the implementation of the same model and for the maintenance over time of adequate conditions for the adopted measures. A reassessment and, if necessary, modification of the organisation model must be adopted if significant violations of regulations regarding health and safety in the workplace are revealed, or if there are changes in company organisation and the work involved due to scientific and technological progress.
Appropriate Management Model:other requirements
(art. 30 D.Lgs 81/2008)
VIOLATION
Responsibilities and sanctions
CRIMINAL OFFENCE
Imprisonment or penaltyPenaltyImprisonmentAdministrative sanction
ManslaughterPersonal injury throughnegligence
FineBanConfiscationPublication of the judgement
CRIMINAL OFFENCE
Violation: Prescription
D.Lgs. N. 758/1994
Inspection by Police
The violation is recorded “with prescription” and an indication of the latest possible date for rectification is given
The date by which the violation can be rectified may be extended at the request of
the user
Re-opening of criminal proceedings
Communication to the Judge (suspended procedure)
Rectification carried out but penalty not paid
Re-opening of criminal proceedings
Rectification not carried out
Subsequent inspection by police
Closure of criminal proceedings
Rectification carried out and
penalty paid = ¼ of the maximum
Company’s administrative responsibility
Fines made to companies can vary from a minimum of € 25,822.84 to a maximum of € 1,549,370.69
Strict bans are also applicable, in addition to fines:
Disqualification from operating the business Suspension or annulment of authorizations,
licences or concessions functional to the violation Ban from communicating with the public
administration, except for obtaining public services Exclusion from facilitations, financing, financial
contributions or support and the possible annulment of any already obtained.
Ban from publicizing goods or services
PREVENTIONis determined by three
strategic variables
Where companies have complied with all three of the above conditions, it is generally agreed by legal doctrine that the employer has fulfilled the health and safety obligations laid down in art. 2087
Circumstances exempting responsibility for criminal offences: legal interpretation
Technologicalupgrading
Training of humanresources
Surveillance
This means that: where the several variables are present
Injuries to health will be attributable to workers’ behaviour , having the characteristics of
• exceptionality• Abnormality
compared with working procedure and organisational instructions received
Jurisdiction: workers’ responsibilities
Fatalities and accidents in someEuropean countries ( 2010 )
FATALITIES ACCIDENTS
ITALY 718 437.821
GERMANY 567 930.447
FRANCE 550 358.205
SPAIN 338 493.789
There are no activities with a zero risk. Wherever there is human activity,
there is an element of risk regarding health and safety.
Assumption
Accidents in the homeEvery year in our country there are around 3,000,000 home accidents with 8400 fatalities (more than six times the number of fatal accidents in the workplace) and 300,000 hospital admissions
Parameter Value (%)
Kitchen 29,77
Living room/dining room/hallway 16,04
Garage/parking area 1,38
Basement/attic/storeroom 1,75
Garden 4,79
Balcony 3,04
Terrace 0.46
Stairs 7,10
Lift 0,18
Public/private play areas 0,28
Public/private sports areas 0,18
School 0,00
Other place 4,33
No answer 3,23
Bathroom 8,94
Bedroom 18,53