Mattea Pullicino, Associate within the Employment department discusses the newly enacted Act XXXIII of 2024 – The Health and Safety at Work Act. Published by the Parliament of Malta on August 9, 2024, this legislation aims to regulate and enhance workplace health and safety, with a strong focus on protecting and promoting the well-being of workers.
WHAT IS ACT XXXIII OF 2024?
On the 9th of August 2024, the Parliament of Malta published Act XXXIII of 2024 ('the Act') to provide for the regulation of matters relating to health and safety at work and particularly, the promotion and safeguard of health and safety of workers at work.
The Act stipulates that upon coming into force, the Minister responsible for health and safety at work may, by notice or notices in the Gazette, establish the date of the repeal of the Occupational Health and Safety Authority Act, Chapter 424 of the Laws of Malta.
WHO WILL THE LAW APPLY TO?
The law will apply to all workplaces and all sectors of business, both in the private as well as in the public sector and, will apply to all work activities, including work activities carried out by self-employed individuals.
Particularly, self-employed individuals shall assess all risks to the health and safety of all persons, including their own, arising out of the work to be carried out and shall take all appropriate measures of prevention.
WHAT IS THE ROLE OF THE AUTHORITY AND WHAT IS ITS COMPOSITION?
The Act establishes an Authority which shall consist of a Board and the Executive. The Authority shall, in a nutshell, be responsible for the promotion of health and safety at work, including ensuring that the physical, psychological and social well being of workers in all workplaces is promoted. The adherence to and compliance with the law by all parties shall also be for the Authority to ensure.
WHAT ARE THE MAIN DUTIES OF EMPLOYERS?
The Act places various obligations on the employer in terms of health and safety.
Primarily, it shall be the duty of employers to ensure the physical and psychological well being of workers at all times as well as, of all such persons who may be affected by the work being carried out for such employer at their workplace.
The Act requires employers to implement various measures to prevent physical and psychological ill-health, injury or death at work, and this by, inter alia, identifying hazards associated with work, evaluating those risks and controlling at source those risks which cannot be avoided and, by taking all the necessary measures to reduce risk and danger as much as reasonably practicable.
The employer is also required to adapt to technical progress as well as adapt the work to the worker, particularly in so far as the design of workplaces, the choice of work equipment and the choice of working and production methods are concerned, in particular with a view to alleviating monotonous work and work at a predetermined work-rate, and with the aim of reducing their effect on health.
Employers must also replace the dangerous with the non-dangerous, or where such isn't possible, by the less dangerous.
Supervision, instruction and thorough training of workers is also fundamental as employers are obliged to develop a written policy of overall prevention which covers technology, organisation of work, working conditions, social relationships and the influence of factors relating to the work environment. Employers must also inform any contractors, self-employed individuals and workers from outside the organisation of such policy, as well as inform same of the presence of any specific hazards, resultant risks and preventive and protective measures required to be undertaken.
The Act also makes it fundamentally clear that in ensuring compliance with law as regards health and safety, no financial cost of doing so is placed on the workers by employers.
WHEN IS A WORKERS' HEALTH AND SAFETY REPRESENTATIVE/S REQUIRED?
The Act stipulates that it shall be the duty of an employer to ensure that at workplaces wherein a number of workers are employed, there shall be elected, chosen or otherwise designated a person or persons to act as the workers' health and safety representative/s, and who must be consulted in advance and in good time by the employer on any matters which affect health and safety.
Whilst the Act fails to indicate the threshold of the number of workers required in order for the employer to be obliged to have a workers' health and safety representative, it is expected that regulations issued thereunder will set out this threshold.
WHAT IS THE ROLE OF A WORKERS' HEALTH AND SAFETY REPRESENTATIVE/S?
Workers' health and safety representatives must be given access to and may request electronic copies of documents prepared in connection to health and safety at work and, shall also be provided with all necessary means, including time to allow them to carry out their role as representatives.
The law is clear that no action, including disciplinary action, may be taken by employers against such representatives who act in good faith in carrying out their duties.
WHEN IS A HEALTH AND SAFETY REPORTING OFFICER ('HSRO') REQUIRED?
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.
WHO CAN BE A HSRO?
The Act defines a HSRO as a high-ranking employee at management level, or such other person which an employer may appoint, as may be established by regulations issued under the Act.
WHAT IS THE ROLE OF A HSRO?
The Act lays out varies duties of the HSRO including the supervision and monitoring of the daily implementation of health and safety at work measures, policies and procedures in terms of law.
The HSRO shall receive reports drawn up by others which may give rise to information or suspicion of a breach of health and safety laws, conduct investigations in order to determine whether reports are to be made to the employer and, procure the employer with a report including recommendations for rectification in cases where the HSRO considers there to be a breach of health and safety laws.
The HSRO is also duty bound to provide the Authority with a report in cases where the HSRO feels that following a report presented to the employer, the employer did not reasonably implement the recommendations made or seek to comply with legal requirements in a reasonable timeframe.
In cases where the HSRO determines that no such report is to be made to the Authority as above mentioned, the HSRO must record the reasons for such determination in a register in writing and upon request, make such determination available to the Authority.
The employer must be kept in the loop at all times in any correspondence and communication between the HSRO and the Authority and may participate at any stage thereof.
The HSRO must be provided with unrestricted access to any relevant information and resources to allow same to fulfil their role.
It ought to be noted that the appointment of a HSRO by an employer shall not relieve the employer of any duties in terms of law nor shall it affect the principle of employers' responsibility in terms of law.
WHAT ARE THE PENALTIES FOR FAILING TO APPOINT A HSRO?
The failure on the part of the employer to an appoint a HSRO if required in terms of law shall constitute an offence and upon being found guilty, the employer shall be subject to a fine (multa) of not more than fifty thousand Euro (50,000) as determined by the Authority.
WHAT ARE THE DUTIES OF WORKERS?
In the same way that employers have duties in terms of health and safety law, workers too have their own duties in this regard. Indeed, it shall be the responsibility of every worker to take care of their own health and safety and that of others affected by one's acts or omissions at work in accordance with the training and instructions given by the employer.
Workers, in accordance with the instructions and training given to them by their employers, must inter alia, make correct use of any tools, machinery and dangerous substances, as well as make correct use of personal protective equipment.
Workers must also immediately inform the employer and, or the workers with specific responsibility for the health and safety of workers, of any work situation when they have reasonable grounds for considering that something represents a serious and immediate danger to health and safety and, of any shortcomings in the protection arrangements.
WHAT ARE THE DUTIES OF HEALTH AND SAFETY AT WORK OFFICERS?
Health and Safety at Work Officers ('Officers') are tasked with ensuring the general implementation of health and safety laws. Officers shall have powers of, amongst others, entering freely and without notice at any workplace, at any time of the day and night, requesting the assistance of the Police in the execution of their duties if required, and questioning, whether alone or in the presence of witnesses, any employer or worker including any person acting on behalf of the employer or carrying out work for such employer.
Officers may also, inter alia, inspect any documentation which may provide information or clarification as regards health and safety at any workplace, examine workplaces and take samples if required, as well as order that nothing be disturbed at a workplace to allow for examination.
Officers may also require an employer, at his expense, to provide a certificate signed by a Perit, a mechanical or electrical engineer or a medical practitioner as the case may be when required.
WHAT IS THE HEALTH AND SAFETY TRIBUNAL AND WHAT IS ITS ROLE?
The Act sets up a Health and Safety Tribunal ('Tribunal') which will hear appeals brought by any person following decisions, orders, or administrative instruments issued by the Authority as well as hear claims in connection with breaches of an administrative nature as a result of which an administrative penalty can be imposed.
The Tribunal will be composed of a Chairperson who has at least five years of experience as a warranted legal professional and two other members who are warranted professionals in fields related to health and safety, also with at least five years of experience.
Appeals from decisions of the Tribunal must be made before the Court of Appeal solely on points of law within twenty days from the date of the decision of the Tribunal.
WHAT ARE THE RISKS OF NON-COMPLIANCE?
The Act sets out that every act or omission which does not constitute a criminal offence shall be subject to an administrative penalty. It is at the Authority's discretion to impose such administrative penalties or other sanctions.
Administrative penalties must be proportionate to the severity of the breach and such penalties or other sanctions may be supplemented by an administrative instrument, such as an explanatory memorandum. The Authority must also decide on the amount of the administrative penalty provided that such penalty shall not exceed Euro 20,000 for each breach of an administrative nature.
Nonetheless, before imposing an administrative penalty, the Authority may at its discretion, cause a notice in writing to be served on any person who committed a breach of an administrative nature informing such person of the said administrative breach, the remedial action to be taken, and the time period during which the remedial action is to be taken. The notice shall also provide that an administrative penalty shall be imposed when the remedial action is not undertaken as instructed and, or finalised within the time period specified. The notified person shall have a period of twenty working days within which to admit the administrative penalty, including the payment of any administrative penalty levied, or otherwise appeal such sanction before the Tribunal. If no appeal is filed, any administrative penalty imposed shall constitute an executive title. Any appeal from an administrative penalty not exceeding €1,500 shall be filed by means of a written petition and submissions, and it shall be determined solely by the Chairperson.
Moreover, any person who acts in contravention of and, or who conspires or attempts, or aids, abets, counsels or procures any other person to contravene certain provisions or any of the regulations made thereunder shall be guilty of an offence. Indeed, any person who commits an offence shall, on conviction be liable to a term of imprisonment not exceeding two years or to a fine (multa) of between €1,000 and €50,000 for every offence for which the person has been found guilty or to both such fine (multa) and period of imprisonment.
In the case of a second or subsequent conviction, such person shall be liable to a fine (multa) of between €2,000 and €50,000 for every offence for which the person has been found guilty or to imprisonment for a term between one and four years or to both such fine and imprisonment.
The Act also sets out the failures which shall not constitute an offence but shall solely be subjected to an administrative penalty namely; the failure to make the necessary filings in terms of law, failure to keep any form of documentation as required in terms of law, the omission of a required entry in a register, failure to carry out a suitable, sufficient and systematic assessment of all heath and safety hazards at the workplace and the resultant risks involved and a failure to appoint a workers' health and safety representative.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.