Law no. 215 of 17 December 2021, published in the Official Gazette no. 301 of 20 December 2021, converted Decree Law no. 146 of 21 October 2021 (the so-called “Tax Decree”), which also contains a number of amendments to the Consolidated Law on Health and Safety at Work (Legislative Decree no. 81/2008, the so-called TUS).
Among the amendments made to the TUS, the most relevant novelties, with a view to updating Safety Management Systems and Organizational Models pursuant to Legislative Decree no. 231/2001, concern in particular the reform of the figure of the supervisor (or person in charge) and the introduction of new training obligations, as well as the revision of sanctions with reference to the new obligations introduced.
The law in question, as has already been observed by several parties, makes the figure of the person in charge “responsible”. As a result of the reform, the supervisor becomes more central, with new and greater powers, as well as the recipient of renewed specific training. In particular, with the amendment of Art. 19 of the TUS, the person in charge now has the power (and the duty) to intervene to modify the behaviour of the workers which does not comply with the protection provisions, up to the power/duty to interrupt the activity of the workers themselves, in the cases of failure to implement the instructions given, or persistence of non-compliance, or deficiencies of the means and work equipment or detected dangerous conditions.
The supervisor, therefore, now has a duty to intervene directly, whereas previously his obligations were limited to informing his superior. The current legislation, in the wake of what has already been unequivocally upheld by case law, thus makes explicit the scope of the position of guarantee held by the supervisor, who, in the event of failure to activate and “interrupt” the work activity, will be held directly responsible for the violation of safety regulations, and will consequently participate in the offences of negligent injury and manslaughter resulting from the violation of safety regulations.
The increase in the responsibility of the person in charge is also reflected in the new provision according to which the person in charge may not suffer any prejudice as a result of the performance of his activity. Consequently, the employer has the obligation, subject to criminal sanctions, to refrain from carrying out actions or conduct prejudicial to the supervisor as a result of the latter’s performance of supervisory activities.
Further duties are imposed on the employer. Law no. 215/2021, in fact, by amending Article 18 of the TUS, includes among the obligations of the employer and the manager the obligation to identify the supervisor or supervisors, for the purpose of carrying out the supervisory activity referred to in Article 19 above. Moreover, by means of an addition to art. 26 of the TUS, the identification of the person in charge becomes compulsory also for the performance of activities under a contract or subcontracting regime, since the contracting or subcontracting employers must expressly indicate the personnel performing the function of person in charge.
In fact, it is not a question of an explicit obligation of appointment but rather of the functional identification of the person in charge, which in the past could already be considered implicitly fulfilled by the identification of the person receiving the training courses as person in charge. However, in view of the introduction of a precise identification obligation, and with a view to prudentially adapting to the new legislation, it will be appropriate to improve the identification of the person in charge through a formal appointment, which takes into account the skills and role of the worker-person in charge, and which makes explicit the new obligations of the latter as introduced by Law no. 215/2021.
The law also provides for the possibility for contracts and collective labour agreements to establish a remuneration for the supervisor for the performance of his activities. The appointment of the person in charge could therefore represent the instrument to formalize also this aspect, establishing the possible emolument, at the moment not mandatory, but likely to be implemented in the near future.
A second important area of intervention of the law under review concerns training, with the amendment of Article 37 of the TUS. In particular, the law includes the employer among the recipients of the obligation of adequate and specific training on health and safety at work, as well as periodic updating, in addition to managers and supervisors as already provided in the past. The modalities, duration and minimum contents of the compulsory training to which the employer is subject will be outlined by the Permanent State-Regions Conference with the amendment of the implementing agreements to the TUS on training, which amendment must take place by 30 June 2022.
With specific reference to the persons in charge, in order to ensure the adequacy and specificity of their training and updating, a new paragraph is introduced which states that the training activities must be carried out entirely in presence and must be repeated at least every two years and, in any case, whenever updating is necessary due to the evolution of risks.
Finally, the law defines the training activity, establishing that it consists of a practical test for the correct and safe use of equipment, machinery, plants, substances and devices, including individual protection devices, and in the applied exercise for safe working procedures. The law also stipulates that the training activities carried out must be recorded in a special register, also in computerized form.
As mentioned above, the amendments made by the law under review are linked to penal sanctions. Violation of the new obligations of the person in charge is punishable by criminal sanctions, with imprisonment of up to two months or a fine ranging from € 491,40 to € 1.474,21, as well as failure to identify the person in charge by the employer, also in the performance of contract and subcontracted activities, is punishable by criminal sanctions, with imprisonment from two to four months or a fine ranging from € 1.500,00 to € 6.000,00. Similarly, violations of the new training obligations for employers and supervisors are criminally sanctioned with imprisonment from two to four months or a fine ranging from € 1.474,21 to € 6.388,23.
In conclusion, the innovations introduced in the TUS described above entail the need to adapt and update the Safety Management System, with inevitable repercussions on the Organisation and Management Model where present.
In general, from the point of view of compliance, the employer should make appropriate appointments for the persons in charge, and it is also appropriate for the employer to adapt the contractual documentation to oblige any contractor or subcontractor to inform the company, in the capacity of employer, if any, of the persons assigned to perform the function of the person in charge. In addition, consideration should be given to the advisability of supplementing the procedures on health and safety at work in relation to the new tasks envisaged for the person in charge and, in particular, with reference to the procedures for intervening on non-compliant behaviour of workers and those for temporarily interrupting their activity.
On the subject of training and periodic updating, in the light of the planned amendment of the agreement on training by the Permanent State-Regions Conference, the employer will have to create a plan for his own training, as well as reshape the training programmes and periodic updating of the persons in charge, and finally carry out and record in a special register the training activities, according to the new methods indicated by the TUS.