In the context of port-related activities, management of safety in the workplace is a crucial aspect to be taken into account in order to guarantee the smooth running of the relevant operations.
Such aspect may also entail particular liabilities for company's directors and for all other subjects, whether or not part of the top management, working for the company.
We refer, in particular, to two types of liabilities:
- criminal liability, for persons who committed offenses contrary to Legislative Decree No. 81/2008 (the so-called "Consolidated Safety Act");
- the so-called "administrative" liability pursuant to Legislative Decree No. 231/2001, directly affecting companies in whose interests or for whose benefit the offences have been committed.
With reference to point 1), the Consolidated Safety Act identifies the employer as a core figure in the organization of security in the workplace, that is "the person engaged in the employment relationship with the employee or, anyway, the person who, according to the type and structure of the organization where the employee carries out his/her activity, is responsible for the organization or for the production unit for the reason that he/she exercises the powers of decision and expenditure" (Art. 2, par. 1, letter b).
Therefore, the employer – as proven also by case-law experience – is the one liable, except for what referred to below, for the breach of the provisions of the Consolidated Safety Act.
à For this reason, it is important that every company expressly vests one or more subjects with the specific powers mentioned above, thus identifying the subject assuming the duty of care provided for the "employer".
Yet, in many cases, even the employer itself is not in the condition to fully satisfy all the obligations set forth by the Consolidated Safety Act, thus running the risk to incur into the aforementioned liabilities.
The instrument provided by the law to remedy such issues is the delegation of functions pursuant to Article 16 of the Consolidated Safety Act.
By means of the delegation of functions, the employer may delegate to other subjects the exercise of all powers connected by law to the role of "employer" with the sole exception of the drafting of the Risk Assessment Document ("Documento di valutazione dei rischi") and the appointment of the person in charge of prevention and protection (the so-called "RSPP").
The requirements for the validity of the delegation of functions are rather simple, in particular: (i) the delegation must result from a written deed with certain date; (ii) the delegate must meet all the requirements of professionalism and experience required by the specific nature of the delegated functions; (iii) the delegation must vest the delegate with all the powers of organization, management and control required by the specific nature of the delegated functions; (iv) the delegation must grant the delegate the expenditure autonomy necessary for the performance of the delegated functions; (v) the delegation must be accepted by the delegate in writing; (vi) the delegation must be adequately and promptly publicised.
Therefore, in case of valid delegation of functions, the functional delegate ("delegato funzionale") is the subject exercising the delegated powers and therefore liable for possible breaches of the provisions for the protection of health and safety in the workplace.
It is important to note that the employer cannot use the delegation of functions for the purpose to avoid liabilities: in fact, the employer remains bound by the obligation to appoint delegates having personal and professional characteristics suitable for carrying out the delegated tasks and must monitor the correct execution of the delegated functions.
à Hence, the delegations of functions, attributing powers and liabilities to the subjects who are actually in the position to exercise such powers for the protection of health and safety in the workplace, represents an excellent instrument to define the company's organisation with regard to Health & Safety matters.
With reference to point 2) relating to the so-called "administrative" liability of companies, by now everyone is aware of the content and effects of Legislative Decree No.231/2001 (a topic that we have already dealt with in previous issues of this Bulletin).
We would only like to point out that such liability may directly arise against the companies in case certain criminal offences, in the interest or for the benefit of the companies, are committed by top managers or their subordinates.
Criminal offences relevant for the purposes of Legislative Decree 231/2001 include manslaughter and serious or very serious (i.e. with a prognosis of more than 40 days) personal injuries committed in breach of the rules and regulations on health and safety in the workplace.
Indeed, such offences are punished with the most severe sanctions:
à the "231" liability for Health & Safety offences provides for pecuniary sanctions up to about Euro 1.5 million as well as severe interdiction measures including the suspension of the public authorisations necessary for the running of the corporate activities1.
However, the law envisages certain cases in which the company's administrative liability pursuant to Legislative Decree 231/2001 can be ruled out.
In fact, the company is not liable if it proves that its organisation can prevent and suppress criminal offences.
To this end, it is necessary to demonstrate, inter alia, that the management body of the company has adopted and effectively implemented, prior to the perpetration of the offences, organizational, management and supervisory model suitable to prevent offences of the kind occurred.
à Therefore, the adoption of an organisational model pursuant to Legislative Decree 231/2001 is the only instrument whereby companies may avoid the heavy administrative liabilities and the severe pecuniary and interdiction measures connected thereto.
The exclusion of administrative liability is not the sole benefit deriving from the adoption of organizational models. Indeed, the scope of this rule is to encourage companies to implement organizational structures capable of providing advantages in terms of efficiency and competitiveness.
This standpoint further justifies the position of case law, according to which the failure to adopt organizational models pursuant to Legislative Decree 231/2001 is considered a cause of liability for acts of maladministration of the directors (Court of Milan, sentence No. 1774 of 13 February 2008).
Finally, we wish to point out that the above considerations on Health & Safety in the workplace can be applied, by analogy, also to environmental matters. We will return to this topic in the next issue of our newsletter.
1 One need only think of the well-known ThyssenKrupp Acciai Speciali Terni SpA case, where, following the death of some workers due to the failure of the fire warning system, in addition to the criminal liability of the CEO, sentenced by the Court of Assizes of Turin to 16 years of imprisonment, the company was punished with: (i) an administrative fine of € 1,000,000.00, (ii) the exclusion from subsidies and public subsidies for 6 months, (iii) the prohibition to advertise its products for 6 months, (iv) the confiscation of € 800,000, 00, and (v) the publication of the sentence of condemnation in the national newspapers "La Stampa", "La Repubblica" and "Corriere della Sera".
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.