The Government has issued a White Paper proposing a New Health and Safety at Work Act, seeking to strengthen and enhance the necessary structures to meet the realities of today’s society and ever-changing work practices.
Good occupational health and safety is of undeniable benefit to all; employees, employers as well as society in general. The Government however feels that although the Occupational Health & Safety Authority Act of 2000 (the ‘Current Act’) has served its purpose over the last years, is it high time for the legal framework to be revamped to cater for current realities. To this end the Current Act will be repealed and replaced with a new Act entitled the ‘Health and Safety at Work Act’ (the ‘New Act’).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;
• Reform the system of penalties to increase their deterrent effect, whilst 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.
In this regard, 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 occupational health and safety legislation which are administrative in nature. This newly proposed system will seek to ensure that administrative misdemeanours are handled in an effective manner with a view of improving compliance, whilst serious incidents which are criminal in nature will continue to be determined by the competent Maltese Courts.
The New Act will furthermore cater for the prospect of issuance of administrative instruments for the purposes of regulating ongoing and current issues which require urgent action by the OHSA.
Under the New Act, while the OHSA will retain its distinct legal personality, it will be reorganized to consist of a Governing Board and a Health and Safety Executive. A new Health and Safety Council will also be formed so as to give Social partners a voice on matters of occupational health and safety.
What will this New Act mean for employers?
The current health and safety legal framework places an obligation on employers to designate one or more individuals to assist the employer in undertaking the necessary measures in relation to 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 which provides that in cases where an employer designates or enlists a person/s to assist it in undertaking the measures which are required to be taken in relation to the protection of occupational health and safety and, the prevention and control of occupational risks, such employer shall not be discharged from incumbent duties.
Novel obligations placed on employers within the New Act will include the requirement to prepare a general policy statement with respect to occupational health and safety, which shall include the main measures for the implementation of such a policy, and to bring the statement and any review of it to the notice of all the workers and their representatives.
Employers shall also be required to inform any contractors, self-employed persons and workers from outside the organisation of 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 are to be taken. The employer is thereby obliged to ensure that the provisions of the policy are abided by at all times.
A further proposal that is being put forward for inclusion in the New Act is for the employer to appoint one or more of its Directors as the Health and Safety Responsible Officer (‘HSRO’). Such will be tasked to supervise and oversee that occupational health and safety policies and procedures are being followed in accordance with applicable legislation. This shall be without prejudice to all the obligations of the employer arising at law and in terms of Directive 89/391/EEC – the “Framework Directive”.
The HSRO must be provided with all the necessary resources by the employer in order to be in a position to execute such role in an effective manner. Regardless of the appointment of an HSRO, such individual/s shall not be liable for damages for anything done or omitted to be done in the performance of functions, if it is proven that the employer failed to provide the HSRO with all the adequate resources. The employer and the HSRO shall therefore jointly be responsible for ongoing monitoring of 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, when such fine is not paid or the recipient of such fine wishes to object, the OHSA is constrained to commence criminal proceedings. It is for this reason that 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 such time period, any aggrieved person may petition the Health and Safety Tribunal to contest such administrative penalty. Appeals from decisions given by the Health and Safety Tribunal shall lie to the Court of Appeal in its Inferior jurisdiction solely on points of law.
Furthermore and in an effort to improve compliance culture, the New Act proposes a substantial increase in applicable penalties which, shall not be less than one thousand euro (€1,000) (currently €466), and not exceeding fifty thousand euro (€50,000) (currently €11,646), for each and every offence for which the person has been found guilty, or to both such fine and imprisonment, and on a second or subsequent conviction, to a fine (multa) of not less than two thousand euro (€2,000) for each and every offence for which the person has been found guilty, or to imprisonment for a term of not less than one year and not exceeding four years or to both such fine and such imprisonment.
One can hope that the introduction of this New Act will not only seek to improve compliance culture and introduce a more effective legal system to deal with health and safety matters but will act as an effective deterrent.
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©Fenech & Fenech Advocates 2023
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