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