Understanding the Health and Safety at Work Act: Key Concepts and Recent Changes

On the 9th of August 2024, the Health and Safety at Work Act, Act XXXIII of 2024 (Chapter 646 of the Laws of Malta) (hereinafter referred to as the ”Act”) was published by Parliament. Upon coming into force, the Act shall repeal the Occupational Health and Safety Authority (“OHSA” or “Authority”) Act (Chapter 424 of the Laws of Malta) and its subsidiary legislation. The Act implements principles found in the Framework Directive (89/391/EEC) for health and safety at work, which principles are applicable across the European Union.

Objectives and the Scope of the Act

The primary objective of the Act is the promotion and safeguard of the health and safety of workers at work. Hence, the main changes implemented by the Act as compared to the previous OHSA Act include:

1. Restructuring the OHSA to delineate the roles and responsibilities of the various parts which make up the Authority whilst ensuring higher levels of governance;
2. Encouraging constructive dialogue between the OHSA and constituted bodies regarding the benefits of ensuring occupational health and safety;
3. Reforming the system of penalties to increase their deterrent effect, whilst ensuring fast and effective compliance;
4. Amplifying the duties of employers and workers;
5. Establishing a new Health and Safety Tribunal and introducing a special compromise procedure;
6. Introducing the appointment of a Health and Safety Reporting Officer (“HSRO”) for certain industries;
7. Introducing the concept of Administrative Instruments which will allow for considerably shorter time frames to allow the Authority to introduce urgent regulatory measures; and
8. Introducing the system of the publication of administrative penalties and Court decisions relating to duty holders.

Key Changes brought about by the Act:

The restructuring of the OHSA

The Act provides that the OHSA will retain its distinct legal personality, but it will be restructured to include a Governing Board and a Health and Safety Executive (the “Executive”).

The Governing Board will have the responsibility of ensuring that the Executive carries out its duties to a high level of governance. In this regard, the Governing Board shall ensure that the Executive implements health and safety initiatives as prescribed under the Act and the regulations made thereunder.  The Governing Board shall also review the Authority’s budgets, management accounts, internal procedures, human resource plans and financial audits, and may issue directives to the Executive regarding the same. This will serve as a system of checks and balances in connection with the performance of the members of the Executive.

The Governing Board shall have the duty to engage in regular consultation with constituted bodies regarding matters pertinent to the protection of workers’ health and safety as regulated in the Act. The latter amplifies that this Act serves to encourage dialogue between the OHSA and Constituted Bodies, defined under the Act as any body which is established to represent the interests of its members such as workers or employers and shall include any body recognized under the Malta Council for Economic and Social Development Act and other bodies of a similar nature which are recognized under any other law.

The Executive, headed by a Chief Executive Officer, will have the authority and responsibility to implement the provisions of the Act and shall have such functions and powers in respect of the Executive’s structures as set out in the Act.

An important aspect to note is that the Act stipulates that the Governing Board must avoid involvement in executive decisions or actions carried out by the Executive to achieve the goals and objectives of the Act.

The issuance of Administrative Instruments

This is a new concept being introduced through the Act, whereby the OHSA, with the approval of the Minister, will be able to issue Administrative Instruments, as defined under the Act and having the force of law, in order to regulate particular matters falling within its remit. These Administrative Instruments will generally be reserved to situations requiring urgent, incisive action by the OHSA. The Act outlines instances where an Administrative Instrument may be issued, including:

1. to determine the qualifications, standards and other requirements necessary to perform any task relating to the safeguard of health and safety at work;
2. to prohibit any work activity or use of any equipment at work which may place workers at a high level of risk to health and safety;
3. to regulate the mandatory insurance coverage that employers are required to provide for their workers; and
4. to specify the minimum accreditations required for individuals to be deemed competent persons.

Administrative Instruments shall be published on the OHSA’s website and any person who fails to comply with an Administrative Instrument shall be in breach of the Act.

The appointment of a Health and Safety Reporting Officer (“HSRO”)

In order to address proper compliance with the terms of the Act and its regulations and in view of the nature of work conducted by an employer, the Act provides that employers may be required to appoint a HSRO who shall be tasked with the supervision and monitoring of the day-to-day implementation of the health and safety at work measures, policies and procedures of the Act and any regulations made thereunder. The HSRO is required to be a high-ranking employee at management level.

The HSRO is responsible for receiving reports from other officials, workers or other persons regarding information or concerns that could indicate a breach of the Act. After conducting investigations, the HSRO is required to submit a written report to the employers if a breach is identified. If, based on the report, the Employer fails to reasonably implement the recommendations, the matter will be reported to the OHSA.

Failure on the part of the employer to an appoint a HSRO (as required in terms of law) shall constitute an offence and the employer shall be subject to a fine (multa) of not more than fifty thousand Euro (50,000) as determined by the Authority.

These new provisions and their applicability shall come into effect once the Minister issues regulations in terms of the Act in order to regulate such a role. However, the Authority may, in such instances where serious and consistent breaches of the Act and its regulations become apparent, order that a HSRO is appointed by an employer for such time as the Authority may deem necessary. In such instance, the terms of the Act relating to the HSRO shall apply to such employer irrespective of whether regulations have been published.

Other Employer responsibilities

Other responsibilities which have been introduced by virtue of the Act in addition to those that employers were already obliged to fulfil under the previous OHSA Act include the obligation to prepare and review, as and when appropriate, a statement of the general policy with respect to health and safety at work, which shall include the main measures for the implementation of such a policy; and to bring the statement and any review of it to the notice of all the workers and their representatives. It shall also be the duty of the employer to inform any contractor, self-employed person and workers from outside the organization of the contents of the health and safety at work policy, the presence of specific hazards at the place of work, the resultant risks and the preventive and protective measures required to be taken. Furthermore, it is the duty of the employer to ensure that the provisions of the policy are abided at all times.

System of publication of administrative penalties and Court decisions relating to duty holders

The Act provides for the power of the Authority to publish on its website any administrative penalties that have been imposed by it against duty holders, which penalties have become final for any breaches of the provisions of the Act, its regulations and its Administrative Instruments, or cases that have been decided by the Courts of Malta against duty holders until such time that it is removed from the conduct certificate of the said duty holder.

These new provisions and their applicability will also take effect once the Minister issues regulations under the Act, with further details in relation thereto expected to be provided through such regulations.

Revision of the penalty system, the introduction of a Health and Safety Tribunal and the Special Compromise Procedure

The Act has revised the system of fines and administrative penalties, increasing applicable fines to not less than one thousand euro (€1,000) and not exceeding fifty thousand euro (€50,000) for each and every offence committed against this Act, and for which a person has been found guilty. Or else a person may be liable to a term of not more than (2) years or to both such fine and imprisonment.  On a second or subsequent conviction, the Act prescribes a fine (multa) of not less than two thousand euro (€2,000)  but not exceeding fifty thousand euro (Euro 50,000) for each and every offence for which a person has been found guilty, or to imprisonment for a term of not less than one (1) year and not exceeding four (4) years or to both such fine and such imprisonment.

The Act also gives intimated parties the opportunity to formally object to an infringement categorized as an administrative penalty before the Health and Safety Tribunal which will be set up to hear claims in connection with infringements which are of an administrative nature. The Health and Safety Tribunal shall also be competent to hear appeals by any person following decisions, orders or Administrative Instruments issued by the Authority. This shall be without prejudice to proceedings in the Criminal Courts dealing with offences committed in relation to the presence of an immediate and serious risk to occupational health and safety or where there a fatality or serious injury or disease to any persons has resulted at a place of work. In the absence of an appeal, the decision of the Authority in awarding an administrative penalty shall become final and shall constitute an executive title.

The Act also introduces a special compromise procedure which will be applicable to a person who has committed an offence against the Act, other than in circumstances involving a fatality or when the breach is administrative in nature. In this respect, the Authority may give notice in writing to such person indicating the steps to be taken to remedy the offence and indicating a compromise fine which he is required to pay in respect of that offence. The person named in the notice has the option to admit that he is guilty and hence be deemed to have committed the offence, provided that he pays the  compromise fine or, in the case of a remediable offence, remedy the offence to the satisfaction of the Authority within the period of sixty (60) days.  If such person opts to do so, no further proceedings may be taken against the said person in respect of the same facts. Alternatively, where such person does not accept or, in the case of a remediable offence, having accepted such responsibility, fails to remedy the offence within the specified period,  criminal proceedings may be taken against him in accordance with the provisions of law applicable to the offence, even if he has paid the compromise fine.

Conclusion

It is to be noted that the Act serves as an enabling act, providing the foundational framework for the new legal provisions. Specific aspects, such as the procedures for publication of administrative penalties and the HSRO, will be governed by subsequent regulations. In fact, the Act stipulates that it shall come into force on such date as the Minister responsible for health and safety at work may by notice in the Gazette establish and different dates may be so established for different provisions and different purposes of the Act.