New Health and Safety Rules at the Workplace

The need for Good Health and Safety Rules at the Place of Work

Having satisfactory health and safety management at the place of work is valuable for all employers and employees because it promotes a positive and productive working environment whilst preventing any injuries and the outbreak of illnesses. Motivated employees are comfortable at their work location, they become more efficient in their outcome, the overall competitiveness improves and therefore the employer’s profitability is likely to increase too.

A White Paper has recently been proposed by the Government on a New Health and Safety at Work Act (the New Act), which will ensure that adequate health and safety rules are properly enforced in places of employment practices. This would eventually replace the Occupational Health and Safety Authority Act[1] (The Current Act) which is now outdated and needs to cater for more contemporary work methods. Moreover, the New Act will better implement the OSH Framework Directive (Directive 89/391/EEC) which drives to encourage a sound standard of safety and health of employees at work in the public and private sectors by discouraging risks, accidents and diseases at the workplace.

The new Act Defined

“The main focus of the New Act will be the Promotion and Safeguard of the Health and Safety of Workers at Work.”^[2]

The objectives of the New Act are that:

1. It will restructure the official Occupational Health and Safety Authority (known as OHSA) by better defining its roles and listing its responsibilities;
2. It will ensure more stringent governance of OHSA operations at all levels;
3. It will eliminate those unclear provisions which the Current Act has in place and which could lead to misinterpretation;
4. It will change the procedure of penalties to make sure they have a more deterrent effect, whilst speeding up the administration and backlog of current cases being handled by the competent courts related to incidents at the place of work.

A. The Governing Board and The Executive

Firstly, the OHSA will remain a separate and distinct body corporate but will be restructured into a Governing Board and a Health and Safety Executive. Overall, the OHSA will still be able to enter into contracts, acquire, hold and dispose of any kind of property for the purposes of its functions, and shall be empowered to do all such activities incidental or conducive to the exercise or performance of its functions under the New Act.

Specifically, the Governing Board, consisting of a chairperson and a minimum of 4 members appointed by the Minster responsible for Occupational Health and Safety, will have a reviewing role, to ensure that the Executive carries out its corporate duties at a high standard; to oversee that the Government policies remain up to date; and also to review the Authority’s management accounts, human resource plans and financial audits.

On the other hand, the Executive arm, which will be led by a Chief Executive Officer appointed for a specified period, will have the responsibility of implementing provisions of the New Act, whilst maintaining numerous functions which originally belonged to the OHSA found in the Current Act. Therefore, the executive conduct of the Authority, its administration and organisation, and the administrative control of its Officers and employees shall be remain of the Chief Executive Officer. The latter is also vested with legal and judicial representation of the OHSA.

B. The Council

Moreover, a new Health and Safety Council will be established to give a voice to the social partners on occupational health and safety matters through various consultation and notification mechanisms. Consisting of any number as may deemed necessary by the Minster, it shall be responsible for promoting harmonious relations and good communication on this topic between the various existing stakeholders. The New Act lists the following persons which make up the Council. It is not intended to be exhaustive and includes:

• • The Minister
  • The Chief Executive Officer
  • The Direct General of Industrial and Employment relations (or any representative thereof)
  • Members appointed by the Ministers responsible for health, economic affairs and employment.

Essentially, encouraging constructive dialogue among stakeholders in this field will safeguard the proper standard of health and safety that is required to eliminate any negative incidents from taking place at the workplace. The safety of all employees at the place of work is crucial to promote better employment conditions and further promotes a competent and satisfactory work force.

C. The OHSA

The New Act also states that the OHSA, with the Minister’s consent, will be able to issue Administrative Instruments, possessing the force of law, to regulate certain matters falling within its remit in terms of the New Act. These Administrative Instruments will generally be reserved to situations requiring immediate and urgent action by OHSA, but may also impose fines for breach of any person of provisions emerging from the Act.

The Role of the Employer

Amendments in the law will also take place with regards to the responsibilities assigned to the employer. Employers will be required to designate one or more competent persons to assist them in undertaking measures required to be taken to protect the OHS and prevention and control of occupational risks. This is also referred to in S.L. 424.18 – General Provisions for Health and Safety at Work Places Regulations. (which will also become redundant).

The employer will now also need to prepare a statement of the general policy of occupational health and safety, which will include main measures for its implementation, whilst making sure that any reviewing of such notice is notified to the workers being affected by its change. Here, the employer will have the duty to inform any contractor, self-employed person and external workers of such policy, the presence of any existing hazards and any risks, at the workplace and those measures required to be taken to protect and prevent risks from arising.

The employer will need to appoint one or more of its Directors as an HSRO – Health and Safety responsible Officer – to supervise and monitor the policies and procedures to be in line with all OHS regulation. Although the HSRO role concept is seen as an effective measure to increase compliance culture in connection with health and safety at work, it will have to be regulated through subsidiary legislation.

The Health and Safety Tribunal

Currently, the OHSA may impose administrative fines instead of instituting criminal proceedings in cases of incidents at the place of work. Rather than offering an appeal, the OHSA may start criminal proceedings when fines are not paid or when the defendant party wishes to object to the payment of such fine. These administrative claims will now be heard by the Health and Safety Tribunal through the procedure of formally objecting to the fines. However, the role of the Criminal Courts dealing with offences related to the presence of serious and immediate risk to health and safety at work, or else fatality and/or serious occupational injury will not be affected. Those uncontested administrative penalties which are not paid will become executive titles after some time specified by law (and hence can be immediately enforced).

Administrative Penalties decided by the Tribunal will be capped as follows:

1. 1. Administrative penalties up to one thousand five-hundred-euro (€ 1,500) where the Tribunal composed of one person (a lawyer with at least five (5) years’ experience) (by written petitions);
   2. Administrative penalties up to twenty thousand euro [€20,000] where the Tribunal will be composed of three (3) persons (One retired judge or Magistrate acting as chairman, with two (2) Members being professionally warranted persons of five (5) years’ experience);
   3. Any Appeal from the decisions given by the Health and Safety Tribunal lies with the Court of Appeal (Inferior jurisdiction) only on points of law.

Additionally, the White Paper introduces an increase in applicable penalties which can be imposed. These shall not be less than one thousand euro (€1,000) and not more than fifty thousand euro (€50,000) for every offence for which the person was found guilty, or both a fine and imprisonment punishment.  Currently the fine may be of a minimum of four hundred and sixty-six euro (€466) and a maximum amount of eleven thousand, six hundred and forty-six euro (€11,646). With a subsequent conviction the punishment fine will increase to two-thousand-euro (€2,000) for every offence or else prison of not less than one (1) year but not more than four (4) years.

Concluding remarks

It goes without saying that the White Paper which will amend current legislation tackling Occupational Health and Safety rules will certainly lay a better foundation for effective and efficient deterrence of risk which may arise at any workplace.

Employees deserve a guaranteed level of safety in whatever work activity they are undergoing, and at whichever location, so that they can work without fear and focus on their work rather than nuisances which will negatively affect their work outcome.

Footnote

[1] Chapter 424 of the Laws of Malta

[2] White Paper on A New Health and Safety at Work Act – published on the 28th April 2023