Legal Notice 321 of 2024 (the "Legal Notice"), brought into effect the Health and Safety at Work Act, Chapter 646 of the laws of Malta (the "Act"). Amongst the changes that the new Act has brought with it, the coming into force of the Act also repeals the Occupational Health and Safety Authority Act, Chapter 424 of the laws of Malta (the "OHSA"), which served as the main legislative framework to address health and safety standards at workplace for almost twenty-five years.
Similar to its predecessor, the new Act serves to promote and safeguard the health and safety of workers working in both the private and public sector including individuals carrying out work or providing services on a self-employed basis. The Act notably shifts away from using the term "employee" and adopts the term "workers". The adoption of this new terminology broadens the applicability of the obligations set out in the Act to include within its scope not only persons who are directly employed with the employer and are bound by an employment contract, but also persons who are engaged under a contract of service, trainees, apprentices, volunteers and self-employed individuals.
Amongst the improvements introduced by the Act, the legislator sought to adopt a more holistic approach to health and safety, recognising that the wellbeing of employees extends beyond the physical safety. Therefore, the Act imposes upon employers the duty to ensure and implement measures aimed at safeguarding not only the physical health, but also the psychological wellbeing of all persons who may be affected by the work being carried out for such employer at the workplace. Pursuant to the principles of prevention, in terms of Article 12 of the Act, employers are duty bound to, among other things, avoid risks, identify and evaluate hazards, if any, control the source of risks which cannot be avoided and take all the necessary measures to reduce risk and danger, as much as practicably possible.
Other obligations imposed upon employers include the duty to prepare a statement of the general policy with respect to health and safety at work, which must include the main measures for the implementation of such policy. Employers are to also notify any contractors, self-employed persons, and workers from outside the organisation of the contents of the health and safety policy, the presences of specific hazards at work, the resultant risks, and the preventive and protective measures that should be taken, among other things. It is also the employer's duty to ensure that the provisions of the policy are always abided by.
The appointment of a workers' health and safety representative/s (the "Representative") where a certain (and, in this case, unspecified) number of workers are employed has been retained under the new Act. The duty of the representative is to be consulted at all times on matters pertaining to health and safety at work.
Matters relating to health and safety are not the sole responsibility of the employer, workers must take all reasonable steps to safeguard their own health and safety, as well as the health and safety of others who may be impacted by their actions or inactions in the workplace. This responsibility includes following the training provided by their employer, adhering to instructions for proper equipment use, and complying with internal reporting procedures when serious and imminent threats to health and safety are identified.
Appointment of the Health and Safety Reporting Officer
In addition to the obligation to have a Representative, employers may also, by regulation, be directed to appoint a Health and Safety Reporting Officer (the "HSRO") who should be appointed from amongst a high-ranking employee at management level, or any such other person which an employer may deem fit. Failure to appoint an HSRO when mandated, carries a fine (multa) of up to fifty thousand Euros (€50,000), as determined by the Occupation Health and Safety Authority (the "Authority").
The HSRO is mainly tasked with overseeing the daily implementation of workplace health and safety measures, policies and procedures, including:
- Receive reports made by workers or other officials;
- Conduct investigations;
- Draw up reports for employers in cases of breaches of the Act; and
- Provide the Authority with reports.
In terms of Article 14 (2) of the Act, the employer must work in tandem with the HSRO and thus, is not relieved of the responsibility to ensure and safeguard the workers' health and safety. The employer must therefore give the HSRO unrestricted access to any relevant information and access to whatever resources is required for the proper fulfilment of his role.
Breaches of the Act – Offences and Administrative Penalties
The Act significantly increases the penalties that may be imposed upon individuals who breach the provisions of the Act. Article 25 of the Act provides that every act or omission against this Act which does not constitute a criminal offence, shall be subject to an administrative penalty not exceeding twenty thousand Euro (€20,000) for each breach. In this regard, the Health and Safety at Work (Procedures in relation to the Issuance of Administrative Penalties) Regulations seek to establish a non-exhaustive list of breaches for which the Authority may call upon for payment of an administrative penalty. Any decisions imposing an administrative penalty on duty holders will also be made available to the public on the website maintained by the Authority.
Additionally, breaches of specific provisions of the Act are subject to imprisonment for a term of not more than two (2) years, or to a fine (multa) of not less than one thousand Euro (€1,000) but not exceeding fifty thousand Euro (€50,000) for every offence for which the person has been found guilty, or to both such fine and imprisonment – for first time breaches. Employers who repeatedly breach the provisions of the Act shall thereafter be liable to a fine (multa) of not less than two-thousand Euro (€2,000) but not exceeding fifty thousand Euro (€50,000) for every offence for which the person has been found guilty, or to imprisonment for a term of not less than one (1) year and not exceeding four (4) years, or to both such fine and imprisonment.
In addition to the pecuniary penalties set out above, the Court may also on conviction cancel or suspend all or any permits issued in terms of or in relation to the Act including by regulations or administrative instruments, or all or any licences or warrants issued to or in the name of the person found guilty in connection with the workplace where the offence was committed.
Amendments to the Regulations under the OHSA and other relevant laws
Health and safety considerations are not confined to standalone legislation but are integrated into various other laws listed in the First Schedule of Act XXXIII of 2024 which have also been amended as a result of the new Act. Furthermore, existing regulations enacted under the OHSA have been renumbered (as set out in the Second Schedule of Act XXXIII of 2024) as if they were enacted under the new Act.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
