When Organic Law 5/2010 reforming the Penal Code decreed the criminal liability of legal entities, it did not include crimes against the rights of workers, due to the effectiveness of the administrative sanction of these non-compliance through the application of the Law. of Violations and Sanctions of Social Security. However, subsequently another Organic Law, 14/2022, modified article 311 of the Penal Code, which implies the criminal protection of workers through a list of minimum and inalienable conditions in matters of labor contracting. With this “explanation of reasons and Mar Alarcón, professor of Labor and Social Security Law at the Rey Juan Carlos University of Madrid (URJC), has started the ORH/IRRST Webinar “Regulatory compliance in occupational health 1”, in which has carried out an exhaustive analysis of the criminal responsibilities that companies acquire regarding occupational risks.
In his speech, has reviewed in depth the different regulations, both international, community and nationalwhich make up the framework of regulatory compliance in this matter, whose breadth and complexity responds to the objective of guaranteeing the safety and health of workers in all aspects related to work. It is, therefore, a comprehensive and universal duty, applying the necessary prevention measures in accordance with the following principles:
- Avoid risks fighting them at their source and evaluating those that cannot be avoided.
- Adapt the job to the person, what is carried out through ergonomics in its different aspects:
- when conceiving and designing jobs;
- when choosing equipment and work and production methods with a view to mitigating monotonous and repetitive work and reducing its effects on health;
- take into consideration the professional capabilities of workers in matters of safety and health when entrusting them with tasks (art. 15.2 LPRL);
- guarantee that only workers with adequate information can access areas of serious and specific risk (art. 15.3 LPRL).
- Take into account the evolution of the technique.
- Substitute the dangerous so it entails little or no danger.
- Plan prevention seeking a coherent whole that integrates the organization of work, working conditions, social relationships and the influence of environmental factors on work.
- Put collective protection first to the individual.
- Give proper instructions to the workers.
The prevention of occupational risks must be integrated into the general management system of the company, both in all of its activities and at all hierarchical levels of the company, through the implementation and application of an occupational risk prevention plan. This must include the organizational structure, the distribution of functions and responsibilities, the practices, procedures, processes and resources necessary to carry out the risk prevention action in the company, in the terms established by regulation.
He prevention plan constitutes the starting point for concrete and effective prevention actionsthrough what the LPRL describes as “the essential instruments for the management and application” of the same, which are the evaluation of occupational risks and the planning of preventive activity. Regarding these and other instruments and tools, the Plan distributes the functions to be performed by each person present in the companies, starting with the General Management and reaching all workers.
Besides, The employer must plan his preventive activity based on an initial evaluation of the risks to safety and health. of workers, which takes into consideration all relevant elements (work equipment, chemical substances or preparations, workplaces, etc.) to, after said evaluation, be able to adopt prevention activities, as well as the work and production methods applied in order to “guarantee the highest level of safety and health of workers, integrating them into the set of activities of the company and at all hierarchical levels”, either totally eliminating those risks that are possible, or avoiding their consequences as much as possible.
The situations that give rise to the revision of the evaluation carried out are the following:
- Firstly, the review will proceed when established by a specific provision (law, regulation, collective agreement or specific technical provisions relating to specific risks).
- When damage to the health of workers has been detected.
- When it has been appreciated that prevention activities may be inadequate or insufficient, which is especially relevant in cases in which there may have been harassment towards a worker.
For this, the results of:
- Investigation into the causes of health damage that has occurred.
- Activities to reduce risks.
- Activities to control risks.
Once the existence of risks has been confirmed by the evaluation, the company is obliged to plan the appropriate preventive activity “in order to eliminate or control and reduce said risks, in accordance with an order of priorities based on their magnitude and number of workers exposed to them.” the same ones.”
The planning of preventive activity must include:
- The designation of those responsible and the deadline to carry out each preventive activity, the necessary human and material resources, as well as the allocation of the financial resources necessary to achieve the proposed objectives.
- Emergency measures (first aid, fire fighting and evacuation of workers).
- The way to carry out health surveillance.
- Information and training of workers in preventive matters.
- Coordination of all these aspects.
Finally, preventive planning must be debated within the Health and Safety Committee, as provided in art. 39.1.a) of the LPRL.
Next Friday, October 4, Mar Alarcón will give a second session in which he will provide specific cases to exemplify the scope of criminal responsibilities in this matter.