The legislation on the prevention of accidents in the workplace aims to establish a network of guarantors who can deal in a timely and effective manner with the most common and frequent sources of danger to operators.
Specifically, we are faced with an entire network of subjects with different functions: the employer, the delegate, the HSE, the manager, the person in charge, the competent doctor, the planning coordinator, the coordinator for the execution and so on, to create a sort of complementarity between different figures, each with its area of competence and with responsibility if the accident occurs.
There is a “decreasing competence” between the three main actors of workplace safety. These actors are the employer (who is responsible for the basic choices of the prevention system and unfortunate events caused by primary deficiencies of the company’s security system), the manager (who has the task of implementing the directives of the employer and who is liable for the effects of inadequate implementation of the company’s security system) and the person in charge. According to the most recent jurisprudence of legitimacy, the latter “supervises the activities, implements the directives received by checking their execution, on the basis and within the limits of hierarchical and functional powers adequate to the nature of the assignment”.
The person in charge is called to supervise the work activity and could only be charged with the unfortunate events resulting from violations of the rules in place in the company or, alternatively, extraordinary danger factors occurring during a professional performance.
Essentially, the person in charge has the primary task of controlling the executive risks related to the activity.
The obligations of the person in charge according to Legislative Decree 81/2008
According to art. 19 of Legislative Decree 81/2008, the duties of the person in charge include:
- To supervise the workers’ compliance with their legal obligations and company provisions on health and safety at work, the use of collective protective equipment and personal protective equipment made available and, if non-compliance occurs, to inform their direct superiors.
- To verify that only workers who have received adequate instructions can access areas that can expose them to severe and specific risk.
- To request compliance with the measures to control risk situations if an emergency occurs and give appropriate instructions so that workers leave the workplace or the dangerous area in the event of severe, immediate and inevitable danger.
- To inform workers exposed to the risk of severe and immediate danger as soon as possible about the risk itself, and to make them aware about the protection measures taken or to be taken.
- Except for duly motivated exceptions, to refrain from requiring workers to resume their activities in a work situation where serious and immediate danger persists.
- To promptly report to the employer or manager the deficiencies of tools, work equipment, personal protective equipment, and any other dangerous conditions that occur during work, he becomes aware of based on the training received.
- To attend specific training courses under Article 37.
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The “executive risk” of the person in charge in the field of workplace safety
The person in charge is responsible for the so-called “executive risk”, which reverberates in a complex and articulated supervisory activity, both passive and active.
By passive supervision, we mean the ability of this figure to ensure that operators use the various PPE necessary for the activity and observe the safety measures provided (for example, the prohibition of access to certain areas). On the other hand, active supervision means communicating to the employer any dangerous conditions that occur during the performance of the activities. It will then be the employer’s duty to evaluate and eventually resolve the problem encountered by the person in charge.
In addition to the obligations of continuous supervision, the person in charge must then respond to situations of occasional supervision where conditions of “emergency” or “serious or immediate danger” are generated (Article 19 of Legislative Decree 81/2008). Among these, there are extraordinary events that could cause jeopardizing the safety and health of workers.
Since the person in charge is the “immediate guarantor” of the operators, it will be their task to deal with sudden situations and indicate the emergency procedures and measures to be followed. The most obvious example is the immediate abandonment of the area. At the same time, this figure will have to inform employers about the presence of the emergency risk.
The training obligation of the person in charge and the role played in their responsibility
It is essential to highlight the role that the supervisor’s training plays in attributing responsibilities that could derive from an unfortunate or emergency event in the workplace.
The last letter of art. 19 of Legislative Decree 81/2008, relating to the duties of the person in charge, emphasizes that the latter must “attend special training courses under the provisions of Article 37”.
Article 37 requires the employer to provide workers with complete and exhaustive (or, more specifically, “sufficient and adequate”) training on the subject of safety in the workplace. Particular reference must be dedicated to the concepts of risk, damage, prevention, protection, organization of company prevention, rights and duties of the various company subjects, supervisory bodies, control, assistance. The training will also focus on the duty-related risks, possible damage and the consequent measures and procedures of prevention and protection typical of the sector to which the company belongs.
The training received by the person in charge will be directly linked to their responsibility in the event of an accident in the workplace, as the specific instruction gives effectiveness to the function covered by the subject and outlines the type of risk that the latter is capable of recognizing “based on the training received.”
The “de facto person in charge” and their position of guarantee
Finally, it is worth spending a few words on the guarantee position of the “de facto” person in charge of workplace safety.
The “de facto person in charge” is the person who, even in the absence of an official office or appointment, holds a role that can be hierarchically traced back to the person in charge (according to the principle of effectiveness). This person is then responsible for all the charges deriving from his position.
A practical example? The worker who gives directives or orders to other employees, based on orders and instructions received from a supervisor (such as the employer), and whose directions other operators are accustomed to obeying.
For this particular figure, specific training is also provided (for a total of eight hours to be updated every five years) as required by art. 37 of Legislative Decree 81/2008.