Updates on the Implementation of the Health and Safety at Work Act and Related Regulations

Commencement of the Health and Safety at Work Act, 2024 and Repeal of the Previous Act and Regulations

On the 26th November 2024, the Minister responsible for health and safety at work (the ‘Minister’) issued a commencement notice for the Health and Safety at Work Act, 2024 (the ‘Act’). Through this notice, the provisions of the Act were brought into force, thereby repealing the Occupational Health and Safety Authority Act (Cap. 424). On the same date, the Minister also repealed the Occupational Health and Safety Appeals Board (Procedure) Regulations (S.L.424.12) and the Occupational Health and Safety (Payment of Penalties) Regulations (S.L.424.33).

Introduction of the Health and Safety at Work (Procedures in Relation to the Issuance of Administrative Penalties) Regulations, 2024

Background

Alongside the commencement of the Act, the Minister, exercising the powers granted under the Act, has also issued the Health and Safety at Work (Procedures for Issuance of Administrative Penalties) Regulations, 2024 (the “Regulations”).

The Act revises the system of administrative penalties. These Regulations give intimated parties the opportunity to formally object to an offence categorized as an administrative penalty, in front of Health and Safety Tribunal, (which has been established under the provisions of the Act), and which will be set up to hear claims in connection with infringements which are of an administrative nature.

The previous Occupational Health and Safety (Payment of Penalties) Regulations (S.L. 424.33) which have been repealed on the same date as the commencement of the Act, had established a list of contraventions, and if the intimated party failed to pay the penalty stipulated in said regulations within fifteen days from receipt of the intimation, the said party would have been liable to criminal legal proceedings, leading, on conviction, to a fine.

Non-exhaustive list of administrative breaches

These Regulations establish a non-exhaustive list of administrative breaches which fall within five main categories as specified in the proviso to Article 26(3) of the Act, namely the:

(a) failure to make the necessary filings with the OHSA as required in terms of the Act and any regulations made thereunder;
(b) failure to keep any form of document, register, general register, report and list as required in terms of the Act and any regulations made thereunder;
(c) omission of a required entry in a register;
(d) failure to carry out a suitable, sufficient and systematic assessment of all health and safety hazards at the workplace and the resultant risks involved; and
(e)  failure to appoint workers’ health and safety representative.

As provided in the Act, since such breaches are not considered as a criminal offence, they will be subject to an administrative penalty. The Act mandates that the Occupational Health and Safety Authority (OHSA) impose such a penalty.

The scope of the Regulations

The scope of the Regulations is to establish a framework for the imposition of administrative penalties by the OHSA for those failures falling under the categories listed in the proviso to Article 26(3) of the Act.

The main objectives of the Regulations include:

1. To establish a non-exhaustive list of the breaches in terms of the proviso to Article 26(3) for which the OHSA may intimate for payment of an administrative penalty;
2. To establish the maximum penalty to be paid in respect of each such breaches as may be determined by the OHSA and which may be further specified by virtue of Administrative Instruments;
3. To provide the applicable procedure when the OHSA imposes the said administrative penalties;
4. To publish the fees required to be paid for an appeal before the Health and Safety Tribunal.

Administrative Penalty to be determined by the OHSA with reference to Schedule I

Whenever the OHSA imposes an administrative penalty on the basis of the proviso to Article 26(3) of the Act, Schedule I of the Regulations specifies the corresponding maximum penalty for every breach listed thereunder. Such list also includes the regulation from which each breach emanates and a general description thereof.

In the case of multiple administrative penalties, the Authority may, at its discretion, impose the full maximum penalty as specified in Schedule I, the second-highest penalty at two-thirds (2/3) of the maximum amount, and any remaining penalties at one-third (1/3) of their respective amounts.

Furthermore, by means of Administrative Instruments, the OHSA may publish administrative penalties and may also further specify or vary the nature and level of administrative penalties applicable to the various breaches.

The Regulations stipulate that the breaches and corresponding penalties listed in Schedule I shall apply with reference to other regulations issued under the Act, and the fact that such a reference is not made in the Schedules shall not constitute a reason for the non-application of these regulations.

Additionally, the Regulations address those situations where no specific regulation exists and, in such case, when sending an intimation for the payment of the penalty, the OHSA shall cite the closest equivalent description of a breach under Schedule I and the corresponding penalty. In determining which shall be the closest equivalent description, the OHSA shall consider the circumstances of the work activity or activities being carried out.

The imposition of an administrative penalty by the OHSA

Notice of the imposition of an administrative penalty shall be served by the OHSA. Such notice shall be served electronically by means of electronic mail to the electronic mail address previously provided by the person concerned to the OHSA and the receipt of the relevant electronic mail shall be confirmation of service. If no such address was provided then the OHSA shall send the notice by registered mail at the residential address of the natural or the registered office of the legal person, as the case may be.

Any action by the OHSA to impose a penalty must be initiated within two years from the date the OHSA’s investigation into the breaches is concluded. This provision is without prejudice to Article 25(4) of the Act, which stipulates that the period will begin from the date when the required remedial action is not undertaken.

The Act stipulates that, if an appeal is not filed, any imposed administrative penalty shall serve as an executive title.

Payment of penalty shall not prejudice the duty to undertake any measures

The payment of an administrative penalty does not relieve a person of his duty to undertake any measure by which health and safety at work may be safeguarded.

Furthermore, the Regulations do not affect the authority of the Health and Safety at Work Officers to issue orders, and such orders must continue to be observed by every person who receives them, whether a worker or an employer, until such an order is revoked.

Appeal from decision of the OHSA to impose an Administrative Penalty

The intimated person shall have a period of twenty working days to appeal the administrative penalty before the Health and Safety Tribunal. Schedule II of the Regulations outlines the fees which must accompany any application for an appeal.