The obligation to protect the life and health of the employee – The Safety Engineer
In our previous article we referred to the ancillary obligations of the Employer deriving from the employment contract and employment relationship that they develop with their employees. The obligations that are characterized as “ancillary” are not, at all, of minor importance and value. After all, how would one characterize as minor obligations related to the protection of the life and health of the employee? Their fulfilment is required (and rightly so) by the existing institutional framework. The advent of the pandemic, moreover, reminded us very strongly of their value. But life and health are goods that we must protect at all times. Of course, in the work environment as well. The Safety Engineer (should) work in this direction. Respectively, the Occupational Physician who occupied us in our aforementioned article.
Let us now try to approach the institution of the Safety Engineer.
Η κύρια και οι παρεπόμενες υποχρεώσεις του εργοδότη από τη σύμβαση εργασίας
The main and ancillary obligations of the employer deriving from the employment contract
We have already seen in our previous articles that the main obligation of the employer is the payment to the employee of the legal or, as the case may be, the agreed upon salary (648 Civil Code). The employer, however, is also burdened with the “welfare obligation” which can be broken down in several ancillary obligations. Among them are those related to the protection of personal and property goods of employees. The protection, ie, of their life and health, their personality and property.
The fulfillment of the specific obligations is not left to the good will of the employer. The State has not chosen to remain a passive spectator. It enforces and supervises their implementation based on the existing institutional framework. A possible breach of the above ancillary obligations is linked to a number of civil, criminal and administrative sanctions. It is these data that, among other things, demonstrate the special care of the State regarding their observance.
Ειδικότερα: η υποχρέωση προστασίας της ζωής και της υγείας του εργαζόμενου
In particular: the obligation to protect the life and health of the employee
The obligation to protect the life and health of employees is ensured by a series of provisions of civil, public and criminal law.
The obligation of the employer to protect the life and health of the employee in the context of the employment relationship is established by the Civil Code. The relevant provision (662 of the Civil Code) provides: “The employer must arrange for the work and its premises, as well as for the accommodation, facilities and machinery or tools, in order to protect the life and health of the employee.”
In addition, there is a set of provisions of public law aimed at the comprehensive protection of employees. These provisions constitute the legislation on health and safety at work.
These are the provisions that are part of either the general or the specific, relevant, legislation. That means that some provisions concern all employees, while others concern only specific categories of employees (eg Presidential Decree 788/1980 “on security measures during the execution of construction projects”).
A milestone in the legislation for the health and safety of employees is Law 1568/1995 (: “Health-Safety of employees”). This law has been innovative in the field of obligation of the employer to precautionary protect the life and health of employees. Its scope extends, with few exceptions, to all activities of the private and public sector. After the adoption of this law, various, supplementary, legislations were issued. All of them were codified by Law 3850/2010.
The innovations of law 1568/1995 concerned the introduction of completely new institutions in the field of safety and health at work in our country. As such are the institutions of the Safety Engineer and the Occupational Physician -already provided for by Law 3850/2010.
The Safety Engineer
The obligation to employ a Safety Engineer
The obligation to employ a Safety Engineer concerns all businesses. And this regardless of the number of employees they employ (article 8 §§1 & 2 law 3850/2010).
The role and duties of the Safety Engineer
The role of the Safety Engineer (who is organizationally directly under the management of the business) is preventive and advisory. It aims to create a safe working environment with the ultimate goal of preventing accidents at work.
The advisory responsibilities of the Safety Engineer are provided in detail in the provision of article 14 of law 3850/2010.
The Safety Engineer ” provides suggestions and advice to the employer, in writing or orally, on issues related to the health and safety of employees and the prevention of accidents at work. The written instructions are recorded by the Safety Engineer in a special book of the business, which is paged and certified by the Labor Inspectorate. The employer is obliged to be informed of (and sign as a testimony that they were informed) of the suggestions that are registered in this book “. (Article 14 §1)
In addition, “advises on the design, planning, construction and maintenance of facilities, the introduction of new production processes, procurement of tools and equipment, selection and control of the effectiveness of personal protective equipment, as well as configuration and arrangement of jobs and work environment and general organization of the production process” (article 14 §2 par. a).
At the same time, the Safety Engineer “checks the safety of the facilities and technical means, before their operation, as well as the production processes and working methods before their application and supervises the implementation of the health and safety measures of the employees and the prevention of accidents, and give the relevant information to the competent heads of departments or to the management of the business (article 14 §2 par. b).
At the same time, the Safety Engineer has supervisory responsibilities, which are provided for in detail in the provision of article 15 §1 of law 3850/2010. Specifically, they must:
“(a) regularly inspect the occupational health and safety of employees, report to the employer any omissions of health and safety measures, propose measures to deal with them and supervise their implementation;
(b) supervise the proper use of personal protective equipment;
(c) investigate the causes of accidents at work, analyze and evaluate the results of their investigations and propose measures to prevent similar accidents;
- d) supervise the execution of fire safety and alarm drills to determine the readiness to deal with accidents”.
Finally, in order to improve working conditions, they are obliged (article 15 §2 law 3850/2010):
“(a) to ensure that employees in the undertaking comply with the rules of health and safety of employees and inform and guide them to prevent occupational hazards posed by their work;
(b) to participate in the development and implementation of employee health and safety training programs.”
Who can act as a Safety Engineer?
The employer has several options for hiring a Safety Engineer. They can choose as a Safety Engineer someone already employed by their business or a third person. They can also choose to receive these services from a company that provides External Protection and Prevention Services. In some cases, the employer themselves are entitled to perform the duties of a Safety Engineer. The employer can also adopt a combination of the above options (article 9 §1 law 3850/2010).
However, the selection of the Safety Engineer by the employer is not without conditions. It is, on the contrary, a associated with the category to which the business belongs and the number of employees it employs.
Businesses are classified into three categories (A, B and C) depending on the sector of their economic activity (Article 10 of Law 3850/2010). This categorization proves to be particularly important, as it determines: (a) the working hours of the Safety Engineer (article 21 of law 3850/2010) and (b) the qualifications that they must have (article 11 of law 3850/2010).
Η υποχρέωση γνωστοποίησης στην Επιθεώρηση Εργασίας
The obligation to notify the Labor Inspectorate
The employer is obliged to notify in writing to the Labor Inspectorate the information of the one who assumes the duties of the Safety Engineer. When the latter is a third party, the employer is obliged to share a copy of their employment contract In the case of hiring company that provides External Protection and Prevention Services, the employer must also share the relevant contract, which in fact must bear the content defined by law (article 9 §7 of law 3859/2010). Finally, when an employee of the business is appointed as a Safety Engineer, the employer must share with the Labor Inspectorate a copy of the written assignment of duties and, in addition, of the corresponding declaration of acceptance.
Η Εκτίμηση του Επαγγελματικού Κινδύνου
Occupational Risk Assessment
Occupational Risk Assessment is the written assessment of the risks created at work. Risks related to the safety and health of employees. It concerns the existing risks and, in addition, those that are likely to occur. It includes, of course, the groups of employees who are exposed to particular risks.
The Occupational Risk Assessment is, unfortunately, a rather degraded obligation in the minds of most of us. It is, however, particularly important. And, most importantly, legally mandatory for all businesses, without exception. It is subject to the special obligations of the employer (article 43 of law 3850/2010).
The drafting of the Occupational Risk Assessment can be carried out by: (a) the Safety Engineer, (b) the Occupational Physician, (c) the company that provides External Protection and Prevention Services.
Its purpose is:
“a) to identify the sources of occupational risk, ie what could pose a risk to the safety and health of employees;
- b) to determine whether and by what measures the sources of risk can be eliminated or avoided, and if this is not possible;
- c) to record the precautionary measures already in place and propose what should be taken in addition to controlling risks and protecting employees. “
Ensuring the life and health of their employees is one of the most important obligations of the Employer. There is an adequate legal framework that defines and sufficiently specifies its obligations. As we mentioned in the introduction, the Safety Engineer, the Occupational Physician and the Occupational Risk Assessment hold important positions among them.
The Safety Engineer and their services should not be approached as another “burden” of the business. We see their value, as a rule, only when something bad happens. We then (we, the Safety Engineer and the Labor Inspectorate) refer to the Safety Engineer’s suggestions in the relevant book – as well as to the Occupational Risk Assessment.
Afterwards.
Unfortunately.
Let’s try to see things “differently”.
The selection and utilization of the services of the appropriate Safety Engineer ensures the life and health of the business’s employees. It is a stabilizing factor in business-employee relations. It increases the degree of satisfaction of the latter. It reduces potential problems (of civil, criminal, administrative nature – and more) of the business. It increases its prestige. Reduces its costs. It helps the entrepreneur and senior management to focus on business development and ultimately prosperity.
And when the (always undesirable) accident at work takes place, one thing is for sure: its consequences will be more mitigated in relation to the (possible) non-implementation of the measures indicated by the Safety Engineer.
Let us therefore support and further strengthen the institution and the work of the Safety Engineer.
Only benefits for employees and, of course, for the business can be obtained!
Stavros Koumentakis
Managing Partner
P.S. A brief version of this article has been published in MAKEDONIA Newspaper (November 8, 2020).
Disclaimer: the information provided in this article is not (and is not intended to) constitute legal advice. Legal advice can only be offered by a competent attorney and after the latter takes into consideration all the relevant to your case data that you will provide them with. See here for more details.