Occupational Health and Safety

By Mihaela Rotaru and Lucian-Ionel Cioca

This comprehensive handbook delves into the essence of Occupational Health and Safety (OHS), exploring the dynamic interplay between regulations, practical methodologies, and the broader impact of OHS on organizations. The goal of the book is to help readers understand OHS practices in the workplace and how to implement a plan. Chapter 1 establishes the conceptual framework of OHS and provides a foundational understanding of the subject. Moving forward, Chapters 2 and 3 dive into the international and national legal requirements, giving a comparative overview of OHS legislation in the EU and specific regulations in Romania, Italy, and Spain. Chapter 4 introduces readers to risk assessment tools and the OHS management process, while Chapter 5 emphasizes the importance of performance monitoring and measuring. Chapter 6 presents a step-by-step risk assessment methodology. Finally, Chapter 7 explores the significant impact of OHS on overall company performance, integrating ergonomics and organizational resilience. Key Features: Combines theoretical insights with practical applications for academics and OHS professionals. Offers an up-to-date analysis of OHS regulations, with a focus on EU guidelines and specific regulations for Romania, Italy, and Spain. Provides knowledge on risk assessment tools and performance monitoring methods for effective safety measures. Highlights the essential relationship between OHS and company performance with real-world examples and a systems approach. The book is ideal for a wide range of readers, including OHS trainees, professional safety managers, policymakers, researchers and students studying OHS practices, safety regulations and its organizational impact. Readership OHS trainees, professional safety managers, policymakers, researchers and students studying OHS practices, safety regulations and its organizational impact.

• Language: English
• Publisher: Bentham Science Publishers
• Release date: Jan 26, 2024
• ISBN: 9789815165524

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Conceptual Framework of Occupational Health and Safety

Lucian-Ionel Cioca¹, Mihaela Rotaru¹, *

¹ Faculty of Engineering, Lucian Blaga Univesity of Sibiu, Sibiu, Romania

Abstract

The purpose of this chapter is to introduce the reader to the conceptual framework of Occupational Safety and Health (OSH). It examines the legal framework for safety and health, focusing on the key features and significant historical changes of both old and modern legislative OSH frameworks. The chapter presents a variety of legal instruments with different jurisdictions and legislative orders, and it concentrates on the offender of the omission who has created a risky condition that has made it easier for the consequence to arise by earlier action or inaction. In addition, the active subject of the offense is recognised as the individual who must adopt legal safety and health measures at work, as well as patrimonial culpability when the employer fails to comply with legal obligations to guarantee health and safety at work. After reading this chapter, the reader should be able to outline the legal framework for safety and health and to describe the influence of the European Union on OSH, identifying the key sources of health and safety information.

Keywords: European Union, Legal framework, Occupational Health and Safety (OHS).

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* Corresponding author Mihaela Rotaru: Faculty of Engineering, Lucian Blaga Univesity of Sibiu, Sibiu, Romania; E-mail: [e-mail]

THE LEGAL FRAMEWORK FOR SAFETY AND HEALTH

This section supports communities and relevant stakeholders in comprehending Occupational Safety and Health (OSH) standards and regulatory measures. It also seeks to help users distinguish between outdated and actual regulatory regulations by analysing the primary characteristics and major historical transitions of both old and new legislative OSH frameworks. It also aims to assess the factors that contribute to the effectiveness of OSH Agency’s regulations [1].

The composition of occupational health and safety (OSH) legislation is a multifaceted and intricate ensemble of legal instruments. These instruments exhibit a remarkable diversity in terms of jurisdiction and legislative order, as

illustrated in Fig. (1). This comprehensive framework encompasses a wide spectrum of laws and regulations, ranging from fundamental OSH statutes to intricate hazard-based regulations. It also includes oversight of the manufacturing of products, equipment, and chemical substances, each governed by distinct legal frameworks. Moreover, the landscape of OSH legislation extends to encompass detailed regulations, technological safety standards, as well as codes of practice and recommendations, which serve to provide invaluable guidance and best practices for compliance, even though they may not be legally mandatory. Thus, this intricate web of legal provisions forms the cornerstone of safeguarding the health and well-being of workers across various industries and jurisdictions.

Fig. (1))

Hierarchy of legal instruments.

OSH rules can also be found in other sectors of legislation, such as social security, and public health.

In different nations, the terminology used to delineate various legal instruments and their associated attributes may exhibit variations. These distinctions encompass critical elements such as the adoption procedure, competent authority, legal hierarchy, and scope, each of which contributes to the unique characterisation of every legal instrument.

At the foundation of each nation's legal system lies its constitution, establishing the overarching framework for legislative governance. Within this framework, the legal provisions pertaining to occupational safety and health find their grounding firmly rooted in the principles enshrined in both the Declaration of Human Rights and the respective national constitutions. These principles uphold the fundamental rights of individuals, including 'the right to life and the right to bodily and mental integrity' as stated in the Declaration of Human Rights [2].

Legislation governing occupational safety and health can be categorised in three ways, as illustrated in Fig. (2).

Fig. (2))

Types of legislation.

1) According to the subject of regulation

Fundamental law - with specific reference to actions pertaining to occupational safety and health.

Related legislation - legislation providing restrictions on occupational safety and health.

2) In terms of the required application and regulatory nature

Primary legislation - which establishes the general framework, principles, and fundamental rules for occupational safety and health.

Secondary legislation - legislative provisions that detail the provisions of primary legislation and include regulations that are mandatory for all economic agents for an activity or only for a certain category of persons. This category includes government decisions, orders, and methodological guidelines for their implementation.

Tertiary legislation - comprises the workplace safety and health guidelines published by each organisation. These are solely legally binding for the issuing organisation [3].

3) Depending on legal liability for occupational safety and health

Civil liability

Criminal liability

Patrimonial liability

Fig. (3) illustrates the dynamic landscape of Employer and Employee Responsibilities in Health and Safety at Work. It exemplifies how violations of legislation governing health and safety at work can lead to a spectrum of legal consequences, including employee disciplinary actions, civil liability, criminal charges, or misdemeanor penalties. These legal responsibilities are determined based on the specific criteria outlined in relevant areas of law and the resulting legal consequences.

Fig. (3))

Employer and employee responsibilities in health and safety at work.

Within this framework, employers play a pivotal role in safeguarding their employees' well-being across various legal domains. This responsibility extends not only to direct employees but also encompasses any third parties employed or contracted by the employer. Importantly, employees' duties do not absolve employers of their own responsibilities, emphasising the shared commitment to workplace safety.

Moreover, businesses bear the duty of ensuring a safe and healthy work environment for their employees. This obligation necessitates proactive planning and the implementation of suitable safety measures. It is worth noting that this duty remains intact even when employers engage external parties, agents, organizations, or companies to oversee employee health and safety within their business operations

Civil Liability

One of the fundamental purposes of civil culpability is to repair the harm caused by a specific act and, in doing so, to put the victim back in a position as similar as feasible to what they were in before the harm was done.

In cases when an employee has experienced substantial or non-material harm as a result of an employer’s negligence while performing his obligations, the employer must provide restitution under the laws and principles of civil responsibility. Additionally, the employer is responsible under civil law for any harm brought on by occupational illnesses or accidents, to the extent that the harm is not entirely compensated by state social security payments. Therefore, this obligation is limited to the difference between the victim’s actual damages and any monetary or social security benefits awarded in line with the law.

Administrative law-specific contravention accountability is a type of legal responsibility that entails the application of contravention sanctions to those found in violation of the laws that define and enforce contraventions. A contravention is an act conducted against a fault that is defined and penalised by the applicable legal laws.

In certain situations, a deliberate violation of primarily legal requirements governing workplace health and safety may result in the commission offense.

Employers are the sole parties subject to violations.

The labour inspector compiles a report that establishes the offense and imposes a fine within the legal parameters while taking the circumstances of the offense into account.

As a result, the firm bears the legal and criminal responsibility, not the directors. The rules of the civil code’s ordinary law will apply to the director’s liability to the company if he fails to execute or performs improperly his responsibilities under the decision of the general meeting, articles of association, legislation, or the contract. The director, however, shall not be personally responsible for the debts he incurs in the name and on behalf of the principle provided he performs his duties in accordance with and within the confines of the mandate.

Similarly, when a board of directors is in charge of running the business, it makes little difference whether the board members collaborated or worked independently because they serve as a single entity.

Criminal Liability

There is no identifiable connection between the concepts of workplace accidents and an offense to health and safety at work. Any accident at work might be brought on by a criminal act, but it could also be brought on by a series of civil violations. Under the Criminal Code, the following are violations of workplace health and safety:

Failing to implement measures to promote worker safety and health;

The offense of disregarding the rules established.

A legal or contractual duty to act exists for both the employer and the employees. In various instances, the offender of the omission has also established a dangerous situation that has made it easier for the consequence to occur by prior action or inactivity.

The crime of neglecting to implement authorised occupational safety and health measures is a hazard offense, which does not need that an occupational accident or sickness actually occur. If, however, an occupational accident or sickness occurs, there is an ideal confluence of offenses between the offence under examination and the offence of harm or manslaughter.

The qualified active subject is the one who is required by law to take workplace safety and health precautions.

The legal provisions, which clearly state that those who lead, organise, and control the work process are accountable for implementing occupational safety measures, serve as the definition of the active subject rather than the criminal law.

The active subject of the offense is both the person who is required to take legal, safety and health measures at work because of the employment relationship and has been given permission to do so by order, decision, or agreement and the person who actually does certain jobs or tasks, no matter how the permission was given.

Patrimonial Liability

According to the Law on Health and Safety at work, an accident at work is a violent injury to the body as also acute occupational poisoning that occurs during the work process or in performing work duties and causes temporary incapacity for work of at least three timeline days, disability, or death. In certain instances, the employer may be held financially liable if the workplace accident was caused by the employer’s negligence, lack of reasonable care, or conduct involving actions or omissions, as well as the need for sensible and cautious behaviour, and the employer failed to comply with the legal requirements to ensure health and safety at work.

According to the law on Health and Safety at Work, occupational disease is a condition that results from the practice of a trade or profession and is caused by harmful physical, chemical, or biological agents of the workplace, as well as the overstressing of various organs or systems of the body during work.

Thus, if an employee has incurred material or non-material loss as a consequence of the employer’s fault in the execution of the individual employment contract (i.e., during or in connection with performing job responsibilities), the Labour Code requires the employer to pay the employee according to the norms and principles of contractual civil responsibility.

The following three criteria need to be established to prove an employer’s negligence [4, 5]:

A duty was owed to the employee by the employer as the accident occurred during his/her employment;

There was a breach of that duty because the event was predictable and all precautions had not been taken;

The breach resulted in the specific injury, disease, damage, and/or loss suffered. There must be a causal link between the employer’s wrongful act and the damage suffered by the employee.

THE INFLUENCE OF THE EUROPEAN UNION ON HEALTH AND SAFETY

Improving workplace health and safety has been a priority for the EU since the 1980s. The legal basis for health and safety at work in the EU is Article 153 of the Treaty on the Functioning of the European Union [6, 7]. This article sets out the European Union's right to take measures in the field of occupational safety and health, based on the principle of preventive action. As a result of this, the European Union has adopted a wide variety of community measures [7] that have been enacted in the form of Directives, which set minimum requirements for safety and health in specific workplaces [8, 9]. All EU Member States have to adopt legislation in their own countries that comprises the minimum set of requirements. They may exceed those standards when transposing the Directives, but they may not lower the existing ones. It is mandatory to ensure that, according to each country legislation, there are structures providing employee representation in the area of health and safety [10]. This representation (Fig. 4) is organised differently in different countries, with a combination of employee health and safety representatives with their own powers, a joint employee/employer committee being the most common, and different OSH government or public organisations [10]. The Health and Safety at Work Framework Council Directive 89/391 also requires all Member states to ensure that employees are informed and consulted about health and safety matters at the workplace [10].

Fig. (4))

Tripartite approach for health and safety in EU.

The OSH institutional formation started with several occupational health and safety research programs conducted under the guidance of the European Coal and Steel Community (ECSC). In 1957, when the European Economic Community (EEC) was established, the necessity for a worldwide response to the OSH challenge became apparent. The Advisory Committee for Safety, Hygiene, and Health Protection at Work was established in 1974 by Council Decision 74/325/EEC because minimum OHS standards were required for the completion of the European single market. Health and safety at work articles were first included in the EEC Treaty with the adoption of the Single European Act in 1987. It established basic standards and permitted the Council to approve occupational health and safety directives with a qualified majority. The objectives were [11]:

To improve workers' health and safety at work;

To harmonise conditions in the working environment;

To prevent social dumping as a completion of the internal market progressed;

To prevent businesses from relocating to regions with a lower level of protection in order to gain a competitive advantage.

The Amsterdam Treaty (1997) elevated the importance of employment concerns. Parliament and the Council issued, for the first time, directives establishing minimum criteria in the areas of health and safety at work and working conditions through the co-decision mechanism.

The European Union's Charter of Fundamental Rights became enforceable in 2007 with the entrance into force of the Lisbon Treaty, making it mandatory for Member States to follow enforcing EU legislation.

In November 2017, the Council, the Commission, and the Parliament agreed on the European Pillar of Social Rights, which outlines 20 rights and principles [8]. Among them is the right to work in conditions that respect employees' health, safety, and dignity, which is inscribed in Article 31 of the Charter of Fundamental Rights. According to principle 10, employees are entitled to a high degree of protection for their health and safety at work, as well as a working environment that is tailored to their professional demands and allows them to be active in the labour market for a longer