Law No. 215 of Dec. 17, 2021, titled "Conversion into law, with amendments, of Decree Law No. 146 of Oct. 21, 2021, containing urgent measures on economic and fiscal matters, labor protection and unavoidable needs," introduces significant amendments to Legislative Decree No. 81/2008 (the so-called "Consolidated Occupational Health and Safety Act").
The changes made by the decree are so significant that some have called it a "mini-reform"; it aims to strengthen the effectiveness of occupational health and safety regulations by boosting supervisory activities, improving coordination between institutions, implementing training activities, and tightening penalties.
Below are the main new features:
- Suspension of business activity
As anticipated, the reform pays special attention-along with the protection of workers' health and safety-to combating illegal labor.
In this perspective, the cases of suspension of the enterprise are expanded by providing that this sanction will be imposed in the case of illegal work concerning 10 percent of the workers present in the workplace at the time of the inspection.
The decree, moreover, introduces the obligation for the principal to make a notification to the Labor Inspectorate in case of employment of occasional self-employed workers; this is in order to reduce the danger to the health and safety of workers, as well as to counteract irregular work. With reference to the activity of occasional self-employed workers, in order to carry out monitoring activities and counteract elusive forms in the use of this type of contract, the start of the activity of the aforementioned workers is subject to prior notification to the Territorial Labor Inspectorate competent for the territory, by the principal, by SMS or e-mail. In case of violation of these obligations, an administrative penalty of 500.00 euros to 2,500.00 euros shall be applied, in relation to each occasional self-employed worker for whom the communication was omitted or delayed.
Also with reference to the suspension, it should be noted that the new Annex I to Legislative Decree No. 81/2008, which lists the serious violations from which the aforementioned measure of the inspection bodies (INL and ASL) is triggered, is completed with the reinstatement of the reference to asbestos risk, which had been eliminated by Decree Law No. 146/2021, so notification to the supervisory body will be required before the start of work that may involve such risk.
- National Labor Inspectorate
Both the competencies and staffing of the National Labor Inspectorate are expanded; the new decree stipulates that supervision of the application of health and safety legislation in the workplace is carried out on an equal basis by the locally competent local health authority and the National Labor Inspectorate through its territorial offices. This is in contrast to the previous legal dictate, according to which the main ownership of supervision rested with the Local Health Authorities (in line with Presidential Decree No. 616/1977 and l. No. 833/1978), while the INL had concurrent competence with the ASLs in certain matters.
- The Provost
The functions of the supervisor are strengthened by amending Articles 18 and 19 of Legislative Decree No. 81/2008. It establishes the obligation for the employer and managers (who organize and direct the activities according to the attributions and powers conferred) to identify the supervisor or supervisors to carry out the supervisory activities established by Art. 19 of the Consolidated Act, entrusting the collective labor agreements with the possibility of establishing the extent of the emolument due to the supervisor himself for carrying out the entrusted supervisory activities, but also providing that the supervisor may not suffer any prejudice in carrying out his activities (Art. 18, paragraph 1, letter b-bis), Legislative Decree No. 81/2008). Failure to comply with this obligation is reinforced by the provision of a criminal sanction: arrest from two to four months or a fine from 1,500.00 to 6,000.00 euros.
The aforementioned Article 19(1) of the Occupational Safety Consolidation Act is amended to provide that the supervisor has the duty to: "oversee and supervise the observance by individual workers of their legal obligations, as well as of the company's provisions on occupational health and safety and the use of the collective means of protection and individual protection devices made available to them and, in the event of the detection of behavior that does not comply with the provisions and instructions given by the employer and managers for the purposes of collective and individual protection, intervene to change the non-compliant behavior by providing the necessary safety instructions. In case ofnon-implementation of the instructions given or persistence of non-compliance, discontinue the worker's activity and inform the immediate superiors."
In addition, the supervisor is given broader powers; if he or she detects non-compliant behavior regarding the provisions and instructions given by the employer and managers with respect to collective and individual protection measures, devices and tools, the same supervisor is obliged to intervene to change the non-compliant behavior, providing the necessary safety instructions. If the instructions given by the supervisor are not implemented and the detected noncompliance persists, the supervisor must stop the worker's activity and inform the direct superiors.
The supervisor is obliged to temporarily stop the activity and, in any case, promptly report detected nonconformities to the employer and the manager if he or she detects deficiencies in work means and equipment and any dangerous conditions detected during his or her supervisory activities.
The renewed important investiture of protection granted by the rule to the person in charge also moves in specific regard to activities carried out under contract or subcontracting arrangements, establishing that employers-contractors and subcontractors-are obliged to expressly indicate by name to the principal the personnel they have identified to carry out the functions of the person in charge (Art. 26, paragraph 8-bis, Legislative Decree No. 81/2008).
- Training
By June 30, 2022, the Permanent Conference for Relations between the State, the Regions and the Autonomous Provinces of Trento and Bolzano must adopt an agreement in which it provides for the amalgamation, revisitation and amendment of the implementation agreements of Legislative Decree No. 81/2008 on training. This is to ensure:
(a) the identification of the duration, minimum contents and modalities of the mandatory training to be provided by the employer;
(b) the identification of the modalities of the compulsory final learning verification for learners of all compulsory training and refresher courses in occupational health and safety and the modalities of the verification of the effectiveness of training during the performance of work.
In addition, a system of tracking and recording of worker training activities in special register (including computerized) is introduced, that is, those practical activities aimed at providing knowledge for the proper and safe use of equipment, machines, facilities, substances, devices, including personal protective equipment, as well as in the applied exercise in the case of safe work procedures.
Training for supervisors will be carried out entirely by in-person and repeated mode, at least every two years and in any case when it becomes necessary due to the evolution of existing risks or the emergence of new risks (Art. 37, paragraph 7-ter, Legislative Decree No. 81/2008).
- The role of joint bodies
The Ministry of Labor and Social Policy shall establish the Directory of Joint Bodies, after defining the identification criteria after consulting the comparatively most representative employers' and employees' trade unions nationwide for the sector to which they belong, within one hundred and eighty days from the effective date of the new decree.
In addition, the new Article 51, paragraph 8-bis, Legislative Decree no. 81/2008 stipulates that joint bodies must report annually, like the Labor Inspectorate and INAIL, data on: a) companies that have joined the system of joint bodies and those that have carried out training organized by them; b) territorial workers' safety representatives; and c) issuance of affidavits of adoption and effective implementation of safety organization and management models (Legislative Decree No. 231/2001, Art. 30 of Legislative Decree No. 81/2008).
Moreover, the data communicated by the joint bodies will be used for the purpose of identifying priority criteria in the planning of supervision by the Labor Inspectorate and reward criteria in the determination of insurance charges by INAIL
