Back in August 2024, the new Health and Safety at Work Act was published, Act XXXIII of 2024 (the ‘Act’) with the aim of regulating issues concerning workplace health and safety, with a particular focus on promoting and safeguarding the health and safety of workers. The Act also sought to address matters connected with health and safety or ancillary thereto.

The Act stipulated that, upon coming into force, the Minister responsible for health and safety at work may, by notice or notices in the Government Gazette, establish the date of the repeal of the Occupational Health and Safety Authority Act, Chapter 424 of the Laws of Malta, which previously governed health and safety matters.

Indeed, by means of Legal Notice 321 of 2024 (the Health and Safety at Work Act Commencement Notice) published on the 26th of November 2024, the Health and Safety at Work Act has been brought into force as from the 26th of November 2024, and, the Occupational Health and Safety Authority Act has been repealed as from the 26th of November 2024.

Consequently, health and safety matters at the place of work shall, going forward be governed by the Health and Safety at Work Act, Chapter 646 of the Laws of Malta.

The subsidiary laws previously enacted under Chapter 424, inter alia those relating to the protection of maternity at work, workplace first aid and, protection of young persons at work, shall now be transferred and renumbered accordingly under Chapter 646 of the Laws of Malta, the Act.

In this regard and additionally, by means of Legal Notice 320 of 2024, the Repeal of Various Subsidiary Legislation under the Occupational Health and Safety Authority Act Regulations, 2024, the Occupational Health and Safety Appeals Board (Procedure) Regulations as well as the Occupational Health and Safety (Payment of Penalties) Regulations have been repealed.

The Act, now Chapter 646 of the Laws of Malta, provides for several novelties, particularly as regards the creation of the role of a Health and Safety Reporting Officer (‘HSRO’) as well as the establishment of a Health and Safety Tribunal.

As regards to the HSRO, the Act stipulates that the Minister may, by regulations issued under the Act, in order to address proper compliance with the terms of the Act and the regulations made thereunder or otherwise, in view of the nature of work conducted by an employer, require an employer to appoint a HSRO. The Act also lays out that the Authority may, in such cases where serious and consistent breaches of the Act and the regulations made thereunder become apparent, order that a HSRO is appointed by an employer for such time as the Authority may deem necessary.

In this regard and despite the Act coming into force as from the 26th November 2024, our legislator is still to legislate upon which employers will be required to appoint a HSRO in terms of law. To this end, it is expected that in the near future, the legislator will also regulate on this front.

Furthermore and by means of a further legal notice, Legal Notice 322 of 2024, the Health and Safety at Work (Procedures in relation to the Issuance of Administrative Penalties) Regulations (‘Regulations’), the legislator has established a non-exhaustive list of breaches which the Authority may call upon for payment of an administrative penalty and also provided for a description of the breaches, as well as stipulated the maximum administrative penalty that may be imposed.

In accordance with these Regulations, when an administrative penalty is imposed by the Authority, a notice must be served to the person being penalized via electronic mail. Receipt of the electronic mail shall be deemed to be a confirmation of service under the Electronic Commerce Act however, in cases where no electronic mail is possible, the notice shall be sent by registered mail to the person’s residential or registered office address. If the notice cannot be served, the provisions of the Code of Organization and Civil Procedure shall apply.

The Regulations also delineate a maximum penalty for the most severe offense and also set out a time period for the imposition of any such administrative penalties, that of two years from the conclusion of an investigation.

As regards the burden of proof, once an administrative penalty is imposed due to failure to comply with a duty or requirement to do something in accordance with the Act and, or any regulations issued thereunder, the burden of proof shall be on the person upon whom the administrative penalty is imposed on, to prove that  it was either not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that there was no better practicable means than was in fact used to satisfy the duty or requirement.

Whilst further regulations are expected to be enacted by the legislator under the Act, such as those relative to the requirement to appoint a HSRO, further information on the Act may be found here.

We may assist with any ad hoc advice on the matter, as well as the drafting of any policies and procedures. Contact us on mattea.pullicino@fenechlaw.com and marta.zammit@fenechlaw.com