The organization of the figures that deal with health and safety at work can be considered pyramidal: at the top we find the Employer, in the next step is the figure of the Manager, who heads the person in charge who oversees all workers operationally.
The other main roles within the safety organization chart of any Italian company with at least one employee are that of Head of Prevention and Protection Services (RSPP), the Competent Doctor (MC) and the Workers’ Safety Representative (RLS).
In this article we will try to draw the portrait of the Manager, giving a definition of the role and summarizing the main obligations.
Who is the Security Manager?
The Manager, as reported in Legislative Decree 81/2008 in Article 2 paragraph d), is the “person who, due to professional skills and hierarchical and functional powers appropriate to the nature of the task conferred on him, implements the directives of the employer by organizing the work activity and supervising it“.
The Consolidated Law on safety therefore does not mention the figure of the “Safety Manager” but simply that of Manager. It follows that the first term refers to the figure, tasks and responsibilities of the Manager as expressly indicated by the TUS itself.
In the last decade, countless large companies have interpreted this definition extensively, appointing as safety managers even figures not classified as managers.
In our opinion, given the role of organizational guarantor of safety in the company as well as the indications of the jurisprudence, this choice appears as a forcing when the subject who holds the role of safety manager does not have a hierarchical and functional power within the company.
We therefore suggest, in the interest of both Employers and Managers, to ensure that the role and qualification match, in order to be able to demonstrate that the Safety Management System is correctly structured.
What are the obligations of the Manager?
The obligations of the Manager are defined by art. 18 of the TUS and coincide with those of the Employer within the limits of the attributions and competences conferred to them. It follows that responsibility for the correct implementation of safety regulations is related to what is specifically indicated in the letter of appointment (or Job Description) and to the effective role held within the company.
Wishing to summarize the main tasks of the Manager, excluding the non-delegable activities of the Employer (i.e. risk assessment and appointment of the RSPP) we can affirm that the Manager has the task of:
- appoint the Competent Doctor to carry out health surveillance and send workers to the medical examination within the deadlines set by the health surveillance program.
- identify and appoint emergency workers (fire fighting and first aid);
- identify and appoint the persons in charge;
- “when entrusting tasks to workers, take into account their abilities and conditions in relation to their health and safety“;
- provide personal protective equipment to workers and ensure that it is used;
- ensure that only specially trained workers have access to areas that expose them to a serious and specific risk;
- require workers to comply with current regulations and company provisions on safety and hygiene at work;
- take measures to control risk situations in the event of an emergency and give instructions to workers;
- “inform workers exposed to the risk of serious and immediate danger of the risk and of the protective measures taken or to be taken“;
- “fulfilling information, education and training obligations“
- Prepare the DUVRI
- Convene the periodic security meeting referred to in art. 35.
What are the responsibilities of the Manager?
As for the responsibilities of this figure, we have already said that he holds the role of organizational guarantor of safety within the company or its area of competence. Therefore, it will supervise and implement all the regulations provided for in the Consolidated Law on Safety at Work.
A help to define the responsibilities of the Manager can be given by a sentence of the Court of Cassation (Cass. 2005 n. 19903):
“The one who, in compliance with the programmatic directives received from the employer, still has the powers and is therefore able to give direction and orientation to the overall governance of the company and / or to one of its branches or autonomous sectors, assuming all the corresponding high-level responsibilities“.
What are the requirements to identifying the Manager?
To identify the figure of the Manager, the following criteria may be useful:
- must possess the ability to make decisions that also have an impact on the company or its area of expertise;
- must possess autonomy in the decisions deriving from its role;
- it must in fact cover the figure of “right arm” of the Employer.
Who is the Managing Director
In the event that the Employer decides to transfer part of the civil and criminal liability referred to in the aforementioned art. 18, the latter may make use of the institution of delegation, identifying one or more managers as “delegated managers”. This delegation, which is formalized with a notarial deed, implies an effective transfer (as well as responsibility) also of decision-making and spending powers.
The employer, through this institute, has the possibility to transfer almost all his tasks (with the exception of the appointment of the RSPP and the risk assessment – DVR) to one or more subjects within the company. It is implicit that the transfer of tasks and responsibilities as an employer can be legitimately conferred on a person who has the requisites and the right classification within the Company, with functions that can be defined as “apical”.
Also in Legislative Decree 81/08, in particular in Article 16, the characteristics of the delegation of functions are listed so that it is valid:
- it must bear “certain date“;
- the delegate must possess “all the requirements of professionalism and experience required by the specific nature of the delegated functions“;
- it must attribute “to the delegate all the powers of organization, management and control required by the specific nature of the delegated functions“;
- it must attribute “to the delegate the autonomy of expenditure necessary to carry out the delegated functions“;
- must be “accepted by the delegate in writing“.
- It must be given adequate and timely publicity.
It should be noted, however, that “the delegation of functions does not exclude the obligation of supervision on the part of the employer” who must always supervise the work of his delegate (culpa in vigilando).
The criteria for choosing the Manager: a judgment of the Supreme Court
At the end of this article we provide an interesting in-depth analysis on how to select Executives.
Let’s start with a sentence of the Supreme Court (Cass. Sec. Lav. 2021 n.30900): in this case, an employee appealed against the company because the choice for promotion to manager, which had favored other colleagues, was vitiated by the lack of motivation. The company applied the CCNL which established that for the assignment of the managerial role a procedure was necessary that assessed objective requirements (the degree, for example) and subjective requirements, which refer to the professionalism of the worker. The worker claimed that this violation had caused him to lose his chances; On the other hand, society defended itself by arguing the discretion of choice.
The Court of Cassation observed that although it was a simple evaluation procedure, the Employer had the obligation to motivate the choices, in particular:
(a) even in the evaluation procedure, where the promotion is carried out not through competition or selection and with a final ranking, but through a choice to be made on the basis of predetermined evaluation criteria, for the principle of correctness and good faith the employer has the burden of giving the choice, as well as the application of the indicated criteria, adequate motivation, to which every interested party as formally entitled to the choice is entitled;
(b) the illegality of the act for lack of reasoning constitutes a situation capable of causing in itself the damage caused by loss of chances to the worker entitled to the assessment because he fulfils the formal requirements to be assessed, only the extent of the damage being uncertain”.
Therefore, the Court of Cassation upheld the worker’s appeal, obliging the Employer to pay the court costs.