Introduction
New Act's aims
Implications for employers
Comment
The government has issued a White Paper proposing a New Health and Safety at Work Act. The act seeks to strengthen and enhance the necessary structures so that they align with the realities of today's society and developing work practices.
Good occupational health and safety is undeniably beneficial to employees, employers and society in general. The government, however, feels that the Occupational Health & Safety Authority Act of 2000 (the current Act) has served its purpose, and is it high time for the legal framework to be revamped to cater to current realities. To this end, the current act will be repealed and replaced with a new Act titled the Health and Safety at Work Act (the new Act).
The main aims of the new Act are to:
- restructure the Occupational Health and Safety Authority (OHSA) to outline the roles and responsibilities of its various parts, while providing a stronger voice to the social partners in the development of national policies;
- ensure higher levels of governance at all levels of OHSA operations;
- eliminate unclear provisions within the current Act which could give rise to misinterpretation; and
- reform the system of penalties to increase their deterrent effect, while ensuring fast and effective compliance.
Over the years, the OHSA has commenced numerous judicial proceedings due to breaches of the current Act, which has led to a backlog of cases waiting to be appointed before Maltese courts.
One of the proposed measures for more effective and efficient enforcement is the set-up of an impartial and independent health and safety tribunal respecting the basic principles of natural justice to hear and decide breaches of administrative occupational health and safety legislation. This newly proposed system will seek to ensure that administrative misdemeanours are handled effectively with a view to improving compliance, while the competent Maltese courts will continue to determine serious incidents that are criminal in nature.
The new Act will also cater for the prospect of issuance of administrative instruments for the purposes of regulating ongoing and current issues that require urgent action by the OHSA.
Under the new Act, while the OHSA will retain its legal authority it will be reorganised to consist of a governing board and a health and safety executive. A new health and safety council will also be formed to give social partners a voice on matters of occupational health and safety.
The current health and safety legal framework mandates that employers designate one or more individuals to assist the employer with the protection of occupational health and safety and the prevention and control of occupational risks. This current obligation will continue to exist, as will the provision that provides that, in cases where an employer designates or enlists a person to assist, the employer is not absolved of their responsibility.
Novel obligations placed on employers within the new Act will include the requirement to prepare a general policy statement on occupational health and safety, which will include the main measures for implementation and to bring the statement and any review of it to the notice of all the workers and their representatives.
Employers will also be required to inform any contractors, self-employed persons and workers from outside the organisation about:
- the contents of the occupational health and safety policy;
- the presence of any specific hazards at the workplace;
- the resultant risks; and
- the preventive and protective measures that will be taken.
The employer is obliged to ensure that the provisions of the policy are always abided by.
An additional proposal for the new Act is for the employer to appoint one or more of its directors as the Health and Safety Responsible Officer (HSRO). The HSRO will be tasked with ensuring that the occupational health and safety policies and procedures are being followed according to applicable legislation. This will exist alongside existing obligations of the employer pursuant to the terms of the Framework Directive.
The HSRO must be provided with all the necessary resources by the employer to be able to execute their role effectively. Regardless of the appointment of an HSRO, the individual/s will not be liable for damages for anything done or omitted in the performance of their role if it is proven that the employer failed to provide the HSRO with the adequate resources. The employer and the HSRO will, therefore, be jointly responsible for monitoring ongoing compliance with the employer's health and safety policies.
According to the current Act, the OHSA has the prerogative of imposing an administrative fine in lieu of instituting criminal proceedings and, if this fine is not paid or the recipient of the fine wishes to object, the OHSA is constrained to commence criminal proceedings. For this reason, the new Act creates the health and safety tribunal to expedite matters.
Under the new Act, uncontested administrative penalties will become executive titles following the lapse of a pre-established time period and, within this time period, any aggrieved person may petition the health and safety tribunal to contest this administrative penalty. Appeals from decisions made by the health and safety tribunal will lie with the court of appeal in its jurisdiction solely on points of law.
To improve compliance culture, the new Act proposes a substantial increase in applicable penalties. The penalties for every offence for which the person has been found guilty are set as follows:
- between €1,000 and €50,000 (currently between €466 to €11,646); and
- for a second or subsequent conviction, to a fine of €2,000 or more.
Hopefully, the introduction of this new Act will not only improve compliance culture and introduce a more effective legal system to deal with health and safety matters, but will also act as an effective deterrent.
For further information on this topic please contact Paul Gonzi or Mattea Pullicino at Fenech & Fenech Advocates by telephone (+356 2124 1232) or email ([email protected] or [email protected]). The Fenech & Fenech website can be accessed at www.fenechlaw.com.
Endnotes