After more than 25 years from the entry into force of Legislative Decree 626/94, it often happens to have doubts about what are the tasks, responsibilities and sanctions borne by the person in charge of safety. In this article we will try to provide a detailed framework of the regulatory obligations of such an important function in the field of safety in the workplace.
Who is the Supervisor?
Before starting this examination, let’s try to understand the meaning of a security officer?
According to Treccani, the person in charge is the one who is in charge, deputy, responsible for a specific activity.
According to Article 2 of Legislative Decree 81/08, the person in charge is the person who, due to professional skills and within the limits of hierarchical and functional powers appropriate to the nature of the task conferred on him, supervises the work activity and guarantees the implementation of the directives received, checking their correct execution by the workers and exercising a functional power of initiative.
Concretely, the person in charge is the one who, having no managerial functions, coordinates and supervises the work of other people. In many work areas, the tasks that correspond to the role of supervisor are often indicated with the prefix “boss”, such as the foreman, the foreman, the foreman, the office manager, the foreman, the shift manager, etc.
Meaning of person in charge and person in charge of safety
The legislation on safety at work defines exclusively the role of person in charge, from this it follows that the person in charge, in carrying out his activity, is always also responsible for safety.
This concept is very important as it implies that a person who coordinates and supervises the work of other people cannot “de facto” avoid verifying aspects related to safety and health at work. Its role cannot therefore be limited to supervising the technical aspects of a job, as the correlation between safety and technical-operational methods is essential.
Is the appointment of the person in charge mandatory?
Except in special cases, the appointment of the person in charge is not mandatory, but depends on the choices of the Employer related above all to the type of activity carried out, the number of employees and the performance or not of activities with third parties.
It is implicit that in the case of a micro-enterprise which carries out its activities within a single establishment and in which the employer is always present, the appointment of a person in charge is superfluous.
On the contrary, in all cases where the employer is not able to constantly monitor compliance with safety standards by workers, it is protective for them (but not mandatory) to appoint one or more persons in charge.
The particular cases in which the appointment of the person in charge is mandatory are:
- Demolition works;
- The assembly and dismantling of provisional works;
- Works within confined spaces;
- The installation of road signs.
What obligations does the person in charge have?
Article 19 of Legislative Decree 81 (or Consolidated Law on Safety at Work) establishes that the persons in charge must:
- supervise and supervise the observance of safety rules by workers, the correct use of DPC (Collective Protective Equipment) and PPE (Personal Protective Equipment) and in case of persistence of non-compliance inform superiors;
- verify that only informed/trained workers access areas with serious and specific risk;
- require compliance with safety measures in the event of an emergency and give instructions for workers to leave the danger zone;
- immediately inform workers exposed to serious and immediate danger and refrain from requiring workers to resume their work in a situation of risk;
- promptly report to the employer or manager both the deficiencies of the means and equipment and PPE, and any other dangerous condition;
- attend special training courses
From the above it is clear that the role of the person in charge consists in supervising and ensuring compliance with safety standards from an operational point of view.
Recently, with Law no. 215/2021, the legislator has introduced new obligations for the person in charge to intervene if he detects “behaviors that do not comply with the provisions and instructions given by the Employer and the Managers for the purposes of collective and individual protection“.
In addition, the person in charge will have the task of “intervening to modify the non-compliant behavior by providing the necessary safety indications” and interrupting the worker’s activity “in case of failure to implement the instructions given“.
Finally, he must report to his superiors any anomalies “of the means and work equipment and of any dangerous condition detected during the vigilance“.
For further information on the new obligations.
Why is the appointment of those in charge in the company important?
Legislative Decree 81/08 is dotted with civil and criminal sanctions against the Employer and the latter is considered by the legislator the true guarantor of company safety. However, if we carefully scroll through the Consolidated Law on Safety we realize that only for the person in charge (together with the Employer) the verb “guarantee” is used. The Supervisor is the guarantor of the implementation of safety regulations. This means that the Employer with the support of the RSPP, consultants and safety experts assesses the risks and writes the procedures, the person in charge checks that these are respected.
The Employer therefore, in order to demonstrate that safety procedures and instructions are effectively implemented, must structure his company with an adequate number of supervisors.
These persons in charge must be formally appointed, included in the company organization chart, adequately trained and periodically checked.
In fact, as repeatedly underlined in other articles, the joint and several liability of the Employer remains if he is not able to demonstrate that he has supervised the work of the functions with a guarantee position (including those in charge).
It is therefore important to carry out sample audits internally or with the help of an external consultant to verify compliance with art. 19 by the persons in charge.
How to prepare the letter of appointment of the Provost?
In the event that the Employer appoints a safety officer, he must provide for the drafting of a letter of appointment which must have the following characteristics:
- be signed by the Employer or the Managing Director
- report a precise indication of the tasks related to the task
- confer on the person in charge powers of organization, management and control necessary for the performance of the tasks entrusted;
- be formally accepted by the person in charge by affixing his signature;
- be dated (preferably with a certain date)
- be advertised (with inclusion of the role in the organization chart)
You can download a template letter of appointment at the following link.
Who is the de facto provost? Is a person in charge only liable if he signs the letter of appointment?
According to the principle of effectiveness, widely reiterated by jurisprudence, and according to art. 299 of the TUSL (de facto exercise of managerial powers) the position of guarantee of a person in charge, or civil and criminal liability, weigh on these even if without regular investiture, when he exercises in practice the legal powers of that role.
This means that an employee actually plays the role of supervisor (in relation to greater work experience, seniority or organizational skills) even in the absence of a letter of appointment as supervisor signed for acceptance these, in the event of an accident at work or occupational disease of a worker “subject”, can be called to respond civilly and criminally.
What penalties are envisaged for the person in charge?
The person in charge is punished with fines ranging from a minimum of 245.70 euros to a maximum of 1,474.21 and with arrest up to a maximum of two months.
The State-Regions Agreement of 21 December 2011 provides for special additional training for the person in charge.
The training of the supervisor must include training for workers and must be supplemented by special training in relation to the tasks he performs in the field of health and safety at work.
The minimum duration of the course for supervisors is 8 hours.
Training course for supervisors
The content of the training shall include, in relation to the obligations laid down in Article 19:
- Main subjects of the company prevention system: tasks, obligations, responsibilities;
- Relations between the various internal and external subjects of the prevention system;
- Definition and identification of risk factors;
- Accidents and missed injuries;
- Communication and awareness techniques of workers, in particular new hires, administered, foreigners;
- Assessment of the company’s risks, with particular reference to the context in which the person in charge operates.
Updating of the course in charge. How many years?
With Law no. 215/2021, the timing and methods for updating the person in charge have also changed. In fact, this will have to be repeated “at least every two years” and delivered “entirely in presence“.
As for the duration, we must wait for the State-Regions Agreement scheduled for the end of June 2022 to be issued.
Latest
With the entry into force of Law no. 215/2021, the figure of the person in charge has gained greater importance with the attribution of new obligations but also rights and duties.
And not only that: the Employer will have the obligation to identify the personnel who play the role of person in charge and in the case of activities with third parties expressly communicate to the Employer – Client the name of these, which must therefore be present to supervise the work.
For more news on the figure of the person in charge.