Health And Safety At Work Act – Act XXXIII of 2024

Brief summary of this Act

The primary objective of the enactment of the Health and Safety at Work Act (the “Act”) is to promote and safeguard the health and safety of workers at their workplace.

It is applicable to all workplaces and all sectors of work activity, inclusive of workplaces used by self-employed persons. Excluded from the long arm of the Act are members of a disciplined force or civil protection services are not included and this is based on the notion that they primarily carry out dangerous work.

The Act has come into force fairly recently, with its date of enactment being the 26^th of November 2024.

What measures need to be taken by an employer to prevent any physical or psychological ill-health, injury or death at work?

The Act sets out a wide set of measures which an employer must adhere to in fulfillment of his or her duties. These include measures for the:

1. avoidance of risk;
2. identification of hazards which are associated with work;
3. evaluation of risks which cannot be avoided or prevented;
4. control at source of the risks which cannot be avoided;
5. reduction of risk and danger as much as is reasonably practicable, in accordance with the particular case;
6. giving the collective protective measures more priority than the individual protective measures;
7. adaptation of work to the worker, specifically within the design of the workplace, choice of work equipment in order to alleviate monotonous work and reduce the impact on one’s health;
8. adaptation to technical progress, with regards to the interest of health and safety at work;
9. development of a coherent overall prevention policy, which covers technology, organization of work, working conditions, social relationships and influence of factors related to the working environment;
10. replacement of the dangerous with the non-dangerous or at least, the less dangerous;
11. Giving appropriate instructions to workers.

What further obligations does an employer need to fulfill?

An employer is also duty-bound to provide information, instruction, training and supervision as is needed, to ensure everyone’s health and safety at work. An employer must therefore prepare and review, as and when appropriate, a statement of the general policy governing the management of health and safety at work, which shall include the main measures for the implementation of this policy. Such statement and any reviews of the latter shall be brought to the attention of the workers and their representatives.

An employer is also obliged to ensure that worker representatives are elected, chosen or delegated, in proportion with the number of employees present at a workplace. These are designated as the health and safety representatives. These have the right to receive access to any documents prepared by the employer in connection with health and safety at work.

The Act also regulates the mandatory appointment of a Health and Safety Reporting Officer (“HSRO”), who must be a high-ranking employee at management level or such other person which an employer may appoint. The HSRO shall be tasked with the supervision and monitoring of the day-to-day implementation of the measures relating to health and safety at work.

What are any other duties of the HSRO?

The HSRO is vested with a number of rights and duties. He shall:

1. receive any reports made by other officials, workers or any individual who bears information, which may result in information or suspicion of a breach of the Act, or of any regulations;
2. conduct investigations which are important to determine whether the information given requires a report to be made to the employer;
3. provide a report in writing to the employer once the same HSRO determines that there is a breach of the Act or any regulations, the report of which shall include recommendations for rectification;
4. provide a report in writing to the Health and Safety Authority, whereby the HSRO concludes that after the report made by him to the employer, the employer did not go on to reasonably implement the recommendations which were made, or did not seek to comply with the provisions of this Act or its subsidiary legislation within a reasonable period of time

If the HSRO ceases to perform his role, he is obliged to inform the Authority of such cessation. In the case of the HSRO’s demise, the employer must notify the Authority within fourteen days from such demise.

Worker’s duties under the Act

The Act balances the onerous obligations it imposes upon employers to safeguard the health and safety of their workforce with a number of duties it places on the shoulders of employees.

It is the responsibility of each employee to take care, as far as possible, of his own health and safety, as well as that of other individuals who could be impacted by his acts or omissions at work. This includes making proper and accurate use of machinery, apparatus, tools and other means of production.

Consequences of failure to comply with provisions of the Act

Administrative penalties imposed

Every act or omission against such Act, which does not result in a criminal offence, shall be subject to an administrative penalty.

Amongst other actions which warrant an administrative penalty, one can identify the below:

1. Failure to make the necessary filings with the Authority as specified in terms of such Act
2. Failure to retain any form of document, register, general register, report and list as needed in terms of this Act and any regulations made thereunder
3. Omitting a required entry within a register
4. Not having carried out a suitable, sufficient and systematic assessment of all health and safety hazards at the workplace, together with the resultant risks which are involved
5. Not having appointed workers’ health and safety representative

The discretion lies in the Health and Safety Authority’s hands in order to put forward such administrative penalties and decide the amount which shall be imposed. Such penalties shall not go over twenty thousand euros (€20,000) for each breach of an administrative nature.

Prior to imposing such administrative penalty, the Authority may, at its own discretion, cause a notice in writing to be provided to any individual who committed a breach of an administrative nature, informing them of said breach, together with the remedial action which shall be taken, as well as the time period within which such remedial action needs to be taken. The notice must also state that an administrative penalty shall eventually be imposed when the remedial action is not performed as requested and, or finalised within the time period which was imposed.

Following the latter notice, the individual who was notified will be provided with a period of twenty (20) working days within which they can submit such administrative penalty, inclusive of the payment of any administrative penalty levied, or otherwise appeal this sanction imposed in front of the Tribunal.

In this case, any appeal from an administrative penalty which does not go over the amount of one thousand five hundred euros (€1,500) shall be filed through a written petition and submissions, and it shall only be determined by the Chairperson appointed in accordance with this Act.

In the instance that an appeal is not filed, any form of administrative penalty shall constitute an executive title, for all effects and purposes as stipulated within the Code of Organization and Civil Procedure.

Criminal penalties imposed

On the other hand, any individual who acts in contravention of and, or who goes on to conspire or attempt, aid, abet, counsel or procure any other individual to act in contravention of the provisions of Articles 12, 14, 15, 16 or 45, amongst others, shall be considered guilty of an offence against the Act.

When one commits an offence against this Act or any regulations made thereunder, he shall, on conviction, be liable to imprisonment for a term not exceeding two (2) years, or to a fine of not less than one thousand euro (€1,000) but not over fifty thousand euro (€50,000) for every offence for which the individual was found guilty of, or to both such fine and imprisonment.

In the case that a second or subsequent conviction takes place by the same individual, the fine imposed shall not be less than two thousand euros (€2,000) but not over fifty thousand euros (€50,000) for every offence committed, or to imprisonment for a term not less than one (1) year and not over four (4) years, or to both the fine and imprisonment period mentioned.

The ‘special compromise procedure’ detailed in Article 27 of the Act- which is not applicable for fatalities or administrative breaches performed by the individual- provides the latter with a notice in writing issued by the Authority. Amongst other information, such notice provides:

1. a description which constitutes the offence that is believed to have been committed
2. a list of the steps to be followed by the individual in order to remedy the offence committed
3. whether the offence can be remediable
4. a declaration that this individual is obliged to pay a compromise fine

The compromise fine shall not go over the amount of fifty thousand euros (€50,000) and such fine shall also accompany the remedying of the offence performed. Both the payment of the fine and remedying of the offence shall be carried out within sixty (60) days from the service of notice.

The information provided in this Insight does not, and is not intended to, constitute legal advice. All information, content, and materials available are for general informational purposes only. This Insight may not constitute the most up-to-date legal information and you are advised to seek updated advice.