FUNDACIÓN MAPFRESeguridad y Medio Ambiente

Year 31 Nº 124 2011

The legal safeguarding of the health and safety of state employees LEGISTATION

Government authorities are the institutions for satisfying general interests in the most objective way and providing public services. To carry out this remit they have to take on employees and then abide by occupational health and safety legislation in relation thereto. As employers, therefore, government authorities, are bound by preventive legislation. This study looks at the most significant idiosyncrasies of preventive action insofar as government authorities are concerned.

AUTHORS: JUAN GIL PLANA.
Doctor in Law. Associate Professor of Labour and Social Security Law at the Universidad Complutense de Madrid.

The coming into force of the Basic Statute of Public Employees (Estatuto Básico del Empleado Público: EBEP) represented a legislation milestone. Witness the very use of the term «empleado público» (public employee, used in the singular in the Spanish title) in the heading of the law itself, telling us that it is not dealing only with tenured public servants but also all non-tenured staff working for government authorities under an employment contract. When determining the preventive legislation applicable to public employees, therefore, we are faced right from the start with the possible existence of two different strands of legislation applicable to each of the two different types of government employee.

In terms of occupational health and safety the EBEP contains two references targeted at both tenured civil servants and non-tenured staff, given that the articles containing these references use the generic term «empleado público». The first reference, in section 1) of article 14 of the EBEP, dealing with individual rights, lays it down that public employees are entitled to «receive effective health-and-safety-at-work protection». The second, in section 9 of article 54 of the EBEP, dealing with the public employee’s conduct, lays it down that the latter «will observe health and safety rules». Both these references are therefore generic but significant, not only in terms of their groundbreaking nature with reference to pre- EBEP legislation, but also because of the intention of awarding the same occupational risk protection to both tenured and non-tenured staff. This intention follows from the formulation of both concepts, namely the individual right to protection and the principle that their behaviour has to be abide by health and safety rules, all under the umbrella expression of «empleado público».

The EBEP makes two more references to preventive matters, but targeted solely at tenured civil servants as a body. Article 37.1.j) of the EBEP states that occupational risk legislation, among other matters, will be the object of negotiation in relation to its respective ambit and in relation to the powers and responsibilities of each government authority, and with the scope laid down by law in each case. In other words health-and-safety-at work matters may be established by means of collective bargaining whenever the law allows for such. Article 40.1.e) of the EBEP, for its part, stipulates that the Juntas de Personal (literally Personnel Boards, the worker representative arrangement for electoral units with over 50 civil servants and the Delegados de Personal (literally Personnel Delegates, the worker representative arrangement for electoral units with 6 to 50 civil servants) will be empowered, among other duties, to look out for compliance with occupational risk prevention legislation and take such legal action as may turn out to be necessary before the competent authorities.

If we look at the legal system pertaining to non-tenured staff of the government authorities, in particular in terms of the applicable labour legislation, we find that article 19 of the Statute of Workers’ Rights (Estatuto de los Trabajadores: hereinafter ET) contains similar preventive references. It could therefore be concluded that the passing of the EBEP introduces no new features to the current body of labour legislation.

Public Employees included in the LPRL

Leaving aside the abovementioned legal provisions, the overriding law on occupational health and safety is still the Spanish Occupational Risks Prevention Act 31/1995 of 8 November (Ley de Prevención de Riesgos Laborales: hereinafter LPRL). This law, when dealing with its scope of application, lays it down that both the LPRL and any regulations developing this law further will be applicable not only in the field of labour regulations dealt with in the ET but also in terms of the tenured relations of the personnel working for government authorities, with such special features as may be laid down in the EBEP or the development regulations thereof (Article 3.1 LPRL).

To make things perfectly clear it points out that any reference to workers and employers in the EBEP will also be understood to take in tenured personnel and the government authority this staff is working for, with regard to the provisions of the LPRL. The latter will be regarded as basic in character, the remaining precepts then being applicable in default of any specific legislation laid down by the government authorities [Article 3.1 and Additional Provision 3.2.a) and c) LPRL]. Nonetheless, despite this blanket inclusion of public employees under the LPRL, the latter than makes a series of clarifications, which, barring the reference to domestic personnel (excepted from the LPRL under article 3.4), affects groups working in the public sector.

Firstly, it states that the LPRL’s provisions will be applicable to military establishments together with such special arrangements as may be laid down in specific legislation (Article 3.3 LPRL). In terms of non-tenured staff and tenured civil servants working for establishments dependent on the military authorities, Additional Provision 9 of the LPRL talks of “adaptation” to national defence requirements not only of preventive rights and obligations but also the workers’ rights of consultation and participation in occupational risk prevention, meaning that due consideration will have to be given to the organisational idiosyncrasies and current personnel-representation system in military establishments, including military colleges [as laid down in the Supreme Court Judgment of 27 July 2005 (RJ 8344)]; this adaptation is currently dealt with in Royal Decree (Real Decreto: RD) 1932/1998 of 11 September.

In relation to military personnel, under Additional Provision 9 bis of the LPRL, the regulation of preventive rights and duties, the consultation and participation rights of workers and the liabilities and penalties system will all be «applicable» pursuant to military legislation; the particular application of these aspects is dealt with in RD 1755/2007 of 28 December.

Secondly, in terms of persons working for penitentiary establishments, provision is made for «adaptation» of the LPRL to the activities whose particular characteristics call for special regulation, to be effected in terms of the provisions laid down in Act 7/1990 of 19 July on collective negotiation and participation in the determination of the working conditions of public employees (Ley sobre negociación colectiva y participación en la determinación de las condiciones de trabajo de los empleados públicos (Article 3.3 LPRL); this reference currently has to be construed as pertaining to the collective negotiation procedure laid down in articles 33 to 38 of the EBEP. The LPRL will therefore be applicable except to singular activities calling for legislation in their own right. Legal theory has not yet laid down any special arrangements for collective negotiation over occupational health and safety in this particular ambit.1

Thirdly, the LPRL will not be applicable to a series of activities whose particular features debar same in a number of public functions, namely: a) police, security and customs officers, b) operative civil protection services and forensic examination in cases of grave risk, catastrophe and public calamity, and c) armed forces and military activities of the Guardia Civil. Notwithstanding the above, the LPRL becomes the benchmark health and safety legislation for these groups, setting itself forth as the basis to underpin any specific legislation that may be passed protecting the health and safety of the workers in these activities (Article 3.2 LPRL).

The particular measures adopted for the police are pooled in RD 2/2006 of 16 January; in relation to the Guardia Civil they are laid down in RD 179/2005 of 18 February; these are therefore singular measures passed under the aegis of the General State Government (Administración General del Estado: AGE).

Community interpretation of the exclusion laid down in LPRL

Notwithstanding the aforementioned state regulation, the occupational health and safety exclusion for some activities laid down in article 3.2 LPRL acquires special importance in terms of safeguarding preventive rights of public employees, given that these services are provided by persons working for the government authorities. Several questions are begged here. First and foremost whether the implementation of Community legislation into Spanish law is correct in this sense, given that article 2 of Directive 89/391/EEC lays it down that this community legislation will be applied to all activity sectors, public or private (industrial, agricultural, commercial, administrative, service, educational, cultural, leisure, etc.). It shall not be applicable where particular characteristics of certain specific public service activities, such as the armed forces or the police or certain specific activities in the civil protection services, inevitably conflict with it. In that event, the safety and health of workers must be ensured as far as possible in the light of the objectives of this Directive. The second doubt is whether the legal exclusion refers to the group of workers carrying out these activities or only to the carrying out of these activities per se, the persons carrying them out still being subject to the LPRL in all the other activities they carry out.

THE COMING INTO FORCE OF THE EBEP REPRESENTED A LEGISLATION MILESTONE, INSOFAR AS IT DEALS NOT ONLY WITH TENURED CIVIL SERVANTS BUT ALSO NON-TENURED STAFF WORKING FOR GOVERNMENT AUTHORITIES UNDER AN EMPLOYMENT CONTRACT

These doubts have been dealt with by Community case law, for example in the judgment of the European Court of Justice of 12 January 2006, European Commission v. Spain, Case C-132/04 (ECJ 2006/12), handed down precisely with regard to the aforementioned LPRL exclusion. This decision assesses compliance of the Spanish legislation with Directive 89/391/EEC on the basis of tried and tested EU jurisprudence in previous decisions.

First and foremost, it is clear both from the object of Directive 89/391, namely to encourage improvements in the safety and health of workers at work, and from the wording of Article 2(1) thereof, that it must necessarily be broad in scope and that the exceptions thereto must be interpreted restrictively [see Judgment of the Court of 3 October 2000, Simap, C-303/98 (European Court of Justice 2000/234); 5 October 2004, Pfeiffer et al, joined cases C-397/01 to C-403/01 (European Court of Justice 2004/272)]. It therefore follows from the above case law that this exclusion from the broadly-defined field of application of Directive 89/391 should be so construed that its scope is restricted to what is strictly necessary in order to safeguard the interests that it allows the member states to protect.

Secondly, it should be remembered that the criteria used in Community law to determine the scope of application of Directive 89/391/EEC is not based on the workers’ membership of various sectors of activity considered as a whole, such as the armed forces, the police or the civil protection service, but rather exclusively on the specific nature of certain special remits and tasks carried out by the workers within those sectors, as grounds for an exception from the rules laid down by said Directive, in the interests of ensuring effective protection of the group as a whole. Directive 89/391/EEC will therefore be applied to the groups carrying out these and other activities, given that said tasks are conducted in habitual conditions, depending on the particular mission entrusted to the service concerned. This is so even when the interventions deriving from these activities are, by their very nature, unpredictable and might expose the workers concerned to some health and/or safety risks. The exception provided for in article 2.2 of the Directive can therefore be applied only in the event of exceptional circumstances in which the correct development of the measures designed to safeguard the population from situations of exceptional risk calls for the personnel who have to confront a situation of this type to concede absolute priority to the end in view to ensure that this can be achieved [see the ruling of 14 July 2005, Personalrat der Feuerwehr Hamburg, Case C-52/04 (European Court of Justice 2005/249)].

Thirdly, with regard to exceptional circumstances calling for the adoption of essential measures for safeguarding life, health and collective safety and whose correct performance would be jeopardised if all the rules of Directive 89/391/CEE were enforced, the need of ensuring the safety and integrity of the group as a whole, in view of the special characteristics of some specific activities, should be allowed to override temporarily the objective of said Directive, which is to guarantee the health and safety of workers. In an exceptional situation of this type, however, the Community exception does not exempt the competent authorities from watching out for the health and safety of workers and ensuring that it is safeguarded «as far as this is possible».

On this line of reasoning the EU Court concludes that the Spanish legislation has not correctly implemented Community legislation. Consequently, the exception laid down in the LPRL has to be construed as referring to the activities per se rather than the groups carrying them out. With regard to these activities, the preventive protection should be ensured with the scope compatible with the situation set up by said activities, preventive protection therefore playing second fiddle to the need of safeguarding the group as a whole.

It should be noted here that the European Union Court, dealing with a question of organising work time, specifically in the ruling of the European Court of Justice of 14 July 2005, Personalrat der Feuerwehr Hamburg, Case C-52/04 (European Court of Justice 2005/249), established that the activities carried out by the task forces of a public firefighting service fall within the protection scope of the Community rule and should therefore be construed as included in the field of application of the LPRL. Also dealing with a working time question, the judgment of the European Court of Justice of 3 October 2000, Simap, Case C-303/98 (European Court of Justice 2000/234) and the ruling of 3 July 2001, Sergas, Case C-241/99 (European Court of Justice 2001/219), found that medical and nursing staff providing primary healthcare fall within the framework directive’s field of application and are hence not comprised in any of the cases of exclusion provided for in said legislation. Conversely, the judgment of the European Court of Justice of 5 October 2004, Pfeiffer et al, joined cases C-397/01 to C-403/01 (European Court of Justice 2004/272), concluded that the activity of an emergency worker in attendance in an ambulance or emergency health vehicle in the context of an emergency service for succouring the injured or ill, organised by an association like the German Red Cross, cannot be comprised in the exclusion mentioned in the previous section.

Other groups not expressly mentioned in the LPRL

There is a number of public service groups that are not expressly and individually mentioned in the LPRL; application to them of the preventive legislation can therefore also prove tricky.

The first doubt arises in terms of people working for the Justice Authority in view of their independence from the general government under article 117 of the Spanish Constitution. Regardless of whether or not they form part of the public service, the lack of any specific reference to this group in the LPRL has to be construed as applicability of this law thereto, in view of the very restrictive interpretation of the exclusions to applicability of the LPRL laid down in Community case law, limiting them not to given groups but to given activities, even stipulating that in performing them due protection of occupational health and safety should be ensured insofar as confrontation with collective interest allows. The preventive legislation will only cede, therefore, when proven to be incompatible with the safeguarding of this interest. In line with the applicability of preventive legislation to this group, Opinion 6/2001 of 5 December from the State Legal Service Directorate (Dirección del Servicio Jurídico del Estado) concluded that the personnel of the Justice Authority could not be construed as excluded from the sphere or application of the LPRL on the grounds that there is no express reference to the exclusion of this group’s activity. It should therefore be considered that the expression “Administraciones Públicas” (government authorities) used by the LPRL does not correspond to its legal meaning laid down in the Administrative Procedure Law 30/1992 of 26 November (Ley de Régimen Jurídico de las Administraciones Públicas y del Procedimiento Administrativo Común) but rather in the much broader sense of a public employer in charge of personnel working under an employment contract and/or tenured civil servants.

The second doubt is posed by trainee research personnel (called “becarios de investigación” in Spanish) when carrying out their research work for government authorities; one of the most important problems is posed by research fellows in public universities.

The legal system for trainee research personnel is laid down in Real Decreto 63/2006 of 27 January, establishing the general legal system of trainee research personnel and their relation with the public authorities and private organisations they are working for (Article 1 RDPI).2

Within research personnel a distinction is made between two different legal situations, firstly, the grant-receiving stage during the first two years after the grant award [Article 4.1.a) RDPI], and then the following hired situation under a contract after obtaining the Diploma of Advanced Studies (Diploma de Estudios Avanzados) or the administrative document standing in for same, comprising at most the following two year period, in which an employment contract is drawn up with the organisation, centre or institution the researcher is working for [Article 4.1.B) RDPI].

Application of the LPRL and its development regulations poses no problems whatsoever in terms of the contracted research personnel insofar as the labour rights thereof are recognised, as well as the entitlement to social security rights deriving from the signed contract (Article 5.3 RDPI), including the right to occupational health and safety.

Less clear cut is application to the grant-receiving researchers, whose rights are not recognised in the same terms as the contracted research personnel. The prima facie conclusion would be the exclusion of this group. Nonetheless, research personnel are bound by law to abide by the internal bylaws of the organisation or institution they are working for. Unlike in previous legislation, express reference is also now made to their duty to abide by the working conditions and occupational risk prevention rules [Article 6.d) RDPI]. As such they are bound to observe the LPRL and other preventive legislation. In my opinion this means the inclusion of grant-receiving research personnel, since it is not logical to oblige this group to abide by preventive rules except on the basis of a previous and tacit assumption of the applicability of said legislation to this group.

Personnel working on a voluntary basis through public organisations, whose legal system is laid down in the Voluntary Workers’ Act 6/1996 of 15 January (Ley del Voluntariado: LV), represent the third problematic group in terms of application of the preventive legislation. Prima facie this group would not be included in the field of application of occupational health and safety legislation, since the volunteer worker is defined as he or she who works on an altruistic basis in return for no economic consideration, albeit with the right to claim expenses related thereto [Article 3.1.a) and c) LV]. Insofar as they are not paid workers therefore, they do not come under the preventive umbrella.

Nonetheless, this prima facie conclusion is blurred by the fact that volunteer workers are entitled to due health and safety conditions as part of the rights associated with their activity and insofar as this is compatible with the characteristics thereof [Article 6.g) LV]. It is also established that the organization for whom the volunteers are working shall guarantee that this work is carried out under due conditions of health and safety, in terms of the nature and characteristics thereof [Article 8.2.f) LV]. This all suggests that this group will benefit at least from the preventive action performed by the public organisation in relation to its workers. It has been mooted that in view of the fact «that the volunteer workers’ right should undoubtedly be set up in due correspondence with the provisions laid down in labour legislation […], volunteers are entitled to demand from the organisations they are working for that risk prevention plans be set up in the workplaces along the same lines as those provided for in Act 31/1995; given that the legal right protected is the same in both cases: i.e., the person carrying out an activity for a third party (this third party then being bound to safeguard the physical integrity of whoever works for same). In this case the liabilities deriving from any breach of the health-and-safety-at-work obligations would, for the defaulting organisations, have both penal consequences (Articles 316 and 147 of the Spanish Penal Code) and civil consequences (1101 of the Spanish Civil Code)».3

PREVENTION SERVICES

Legal System

Chapter IV of the LPRL deals with the regulation of the prevention services in charge of compliance with the preventive duty incumbent on the employer and, ipso facto, on the government authority as an employer of tenured and non-tenured staff. It has been developed in Real Decreto 39/1997 of 17 January, approving the Occupational Risk Prevention Services Regulation (Reglamento de Servicios de Prevención de Riesgos Laborales: hereinafter RSP).

The prevention service can be set up under four different possible arrangements: firstly, the employer can take on responsibility for its own preventive action; secondly it can designate one or several workers for these duties; thirdly it can set up its own inhouse prevention service and fourthly it can outsource the prevention service to a specialist organisation (Article 30 LPRL and Article 10 RSP).

Of these four different preventive arrangements, the employer is eligible for taking on preventive services itself only if the firm has ten or fewer workers and carries out its activity habitually in the work centre and has the capacity to do so in view of the risks actually existing in the firm concerned (Article 30.5 LPRL). This form of organising the prevention service is therefore designed for very small working environments with few workers and is also dependent on the employer’s effective presence in the workplace and sufficient training and expertise in preventive matters.

Government authorities are not eligible for this arrangement either at national or regional level or even in most of the local authorities. Furthermore, even in local authorities employing ten or fewer workers and theoretically eligible for this option, the fact that the effective employer is an elected official, often unpaid, who is not often present in the work place or well versed in preventive matters means that this preventive arrangement can practically be ruled out for local government too.

The employer’s choice of the prevention service is not completely untrammelled; under certain circumstances the firm is legally bound to set up its own inhouse prevention service. Indeed, Article 14 of the RSP lays down three cases in which the employer is bound to set up an inhouse service, namely:

  1. firms employing more than 500 workers.
  2. firms employing 250 to 500 workers carrying out work involving exposure to ionizing radiation in controlled zones or work involving exposure to toxic or very toxic agents, especially category 1 or 2 carcinogenic, mutagenic or reproductive toxins, pursuant to Real Decreto 363/1995 and Real Decreto 1078/1993, or activities involving high risk chemical products dealt with by Real Decreto 886/1988, or work involving exposure to biological agents of groups 3 and 4 under Directive 90/679/CEE or the manufacture, handling and use of explosives including fireworks and other explosive-containing objects or instruments.
  3. firms not included in the above two categories but which are required by the labour authority to set up an inhouse service after an inspection by the Factory and Social Security Inspectorate (Inspección de Trabajo y Seguridad Social) and, as the case may be, the preventive organisations of the regional authorities, in view of the hazardousness of the activity carried out or the frequency or gravity of the accident rate in the firm, unless it opts for a concerted arrangement with an outside specialist organisation.

THE COURT OF THE EUROPEAN UNION LAID IT DOWN THAT ACTIVITIES OF TASK FORCES IN A PUBLIC FIREFIGHTING SERVICE ARE INCLUDED IN THE SPHERE OF PROTECTION OF THE COMMUNITY LEGISLATION AND IPSO FACTO IN THE FIELD OF APPLICATION OF THE LPRL

As regards the arrangements for setting up the inhouse prevention service, the designation of one or several workers comes across as a fallback option when the conditions for obligatory setting up of the inhouse service do not obtain or the service has not been outsourced (Article 12 RSP). This latter arrangement can be adopted when the designation of one or several workers is insufficient for carrying out the prevention service and the conditions for obligatory setting up of the inhouse service do not obtain or when so decided by the labour authority after an inspection by the Inspección de Trabajo, when it has not been decided to outsource the service or when the employer has partly taken on the preventive activity his or herself (Article 16.1 RSP).

The particular features of government authorities in terms of choosing the prevention service

The moot point here is whether government authorities are subject to the abovementioned prevention service provisions and whether, for example, a government authority with over 500 workers is obliged to set up an inhouse service and is not allowed to outsource. In principle it would seem that the answer is yes. Nonetheless the situation is less clear cut in terms of the other conditions laid down in the RSP.

First and foremost articles 11, 14 and 16.1 of the RSP are not considered to be basic rules in relation to tenured civil servants working for government authorities, as set forth in section 2.a) of additional provision one of the RSP.

Secondly, application of the regulation on the various prevention service arrangements are conditional upon the non-existence of any specific legislation on the matter within the general government, as laid down in additional provision 4 of the RSP in the following terms: «in the sphere of government authorities the organisation of the necessary resources for the carrying out of preventive activities and the definition of the functions and qualification levels of the people carrying them out will be effected in the terms laid down in such specific legislation as may be passed for that purpose, pursuant to the provisions laid down in article 31.1, in additional provision three of the Ley de Prevención de Riesgos Laborales and in additional provision one of this Regulation, after due consultation with the most representative trade union organisations in the terms laid down in the Act (Ley) 7/1990 of 19 July on collective negotiation and participation in the determination of the working conditions of public employees [currently the EBEP]», concluding that only «in default of said specific legislation will the provisions laid down herein be applicable.»

If we bear in mind Article 31.1 of the LPRL and additional provisions 1 and 4 of the RSP, the conclusion that must be drawn is that government authorities at all three levels are entitled to pass specific legislation to regulate, among other matters, the organisation of the necessary resources for carrying out the preventive activities and decide on the prevention service arrangement that best suits their particular needs. In the case of the central government this would take the form of a regulation; for a regional authority, a decree; for a local authority, a decreto de alcaldía (mayoral decree) or resolución de la Diputación (provincial resolution). The obligatory nature of the inhouse service, therefore, or, what comes to the same thing, application of the provisions laid down in Article 14 of the RSP, will be applicable whenever there is no agreement passed down by the competent body regulating the organisation of the necessary resources for carrying out the preventive activities that best suit the needs of this particular government authority.

This conclusion is recorded in the interpretative administrative criterion followed by the Inspección de Trabajo, as contained in the answer dated 20 March 2009 of the Directorate General of Employment (Dirección General de Trabajo) of the Ministry of Employment and Immigration (Ministerio de Trabajo e Inmigración) given to an enquiry about medical checks of local police forces. This answer points out that both the LPRL and the RSP lay down a special treatment in certain questions pertaining to tenured civil servants working for government authorities. The matters deemed to be included therein take in «the organisation of the necessary resources for carrying out the preventive activities and the functioning thereof». Even when this administrative criterion refers to tenured civil servants there is no reason whatsoever for it not to be extended to non tenured personnel of government authorities, given that the underlying legislative provisions refer to government authorities rather than tenured civil servants. This reference takes in all the personnel whether tenured or non tenured.

And this would seem to be the opinion handed down by Spain’s highest court, the Tribunal Supremo (Supreme Court), with regard to the facts set out below. In 2000, the Junta de Castilla y León (Regional Council of Castilla y León) as well as its Gerencia de Servicios Sociales (Social Services Board), both of which administrative authorities were known to have more than 500 workers, had not set up an inhouse or outsourced prevention service. This fact was brought out by the worker representation in the Joint Committee of the first Collective Bargaining Agreement for the Non-Tenured Staff of the General Administration of the Regional Authority of Castilla y León. After this claim had been lodged by the trade union body the president of the Committee answered that a decree on the creation of the prevention services was in the pipeline, which would be made known to the trade union representation through the Inter-Centre Committee.

When the decree for organising the preventive services, ostensibly drawn up, was neither published nor brought into force, the worker representation filed a petition for the Junta de Castilla y León to be declared obliged to set up its own, sufficient prevention service.

This industrial dispute was dealt with by a judgment of the Tribunal Superior de Justicia de Castilla y León (Higher Court of Justice of Castilla y León) dated in Valladolid on 19 de June 2000 (AS 2000/2945), based on the following grounds.

In the first place, although «Article 30 of the Ley de Prevención de Riesgos Laborales of 8 November 1995 (Ley 31/1995), in reference to the prevention of occupational risks and protection therefrom, stipulates that the employer will designate one or several workers to take care of this activity and will set up an inhouse prevention service or outsource it to a specialist organisation, i.e., is given the option of an inhouse service or outsourced service», it is no less true «that Article 14 of RD 39/1997 of 17 January, approving the prevention services regulation, establishes that an inhouse prevention service will have to be set up by firms with more than 500 workers or firms with 250 to 500 workers carrying out activities included in Annex 1, all involving hazardous, onerous or insalubrious processes.» In view of the wording of this latter precept, therefore «it would seem that the Junta de Castilla y León would be bound to set up an inhouse prevention service».

THE CONCURRENCE OF PUBLIC AND PRIVATE EMPLOYEES IN THE SAME WORKPLACE BEGS A SERIES OF QUESTIONS IN TERMS OF ENSURING THE HEALTH AND SAFETY OF PUBLIC EMPLOYEES

Secondly, however, on the basis of the very questionable applicability to the Junta de Castilla y León of Real Decreto 1488/1998, currently revoked and replaced by Real Decreto 67/2010, it considers that «Article 6 of RD 1488/1998 […] allows the option of setting up an inhouse prevention service or outsourcing, albeit with the further provision that the undertaking may be shared between inhouse and outsourced services», concluding that «if, as we have said, the Junta de Castilla y León has not yet set up prevention services for its workers (obviously this Chamber cannot rule on the group of tenured civil servants), the claim made in the industrial dispute has to be allowed, but not in the terms it has been broached, i.e., that the Junta de Castilla y León is bound to set up an inhouse prevention service but rather that it also entitled to outsource it, otherwise, i.e., if it were obliged to set up an inhouse service as claimed, we would thereby be limiting the organisational powers corresponding thereto as an undertaking, this also being backed up by the aforementioned legal support; such is the tenor of the decree currently being drawn up by the Junta de Castilla y León, which is going to regulate the occupational risk prevention of the Regional Authority of Castilla y León and will obviously affect both the tenured and non-tenured personnel thereof».

Since the claim brought in the industrial dispute sought a ruling that the Junta de Castilla y León was bound to set up an inhouse service and the judgment declared that the regional authority was bound to set up an inhouse service or outsource it to a specialist organisation, there was therefore a contradiction between the ruling sought and the ruling handed down. This prompted the trade union to lodge a cassation appeal before the Tribunal Supremo, which was dealt with in the judgment of 24 April 2001 (RJ 2001/5119), declaring that the regional authority was bound to set up a sufficient inhouse prevention service without entitlement to outsource the service.

Nonetheless, the ruling handed down in this judgment of the Tribunal Supremo, which seems to run counter to the vaunted possibility of government authorities to decide freely on the organisation of the prevention service, as set forth herein, cannot be extrapolated automatically to any other case if we take into account the arguments used in the judgment.

On one hand the judgment of the Tribunal Supremo criticises and disallows the application without grounds to regional authorities of RD 1488/1998, which adapted prevention legislation to the Administración General del Estado (Central Government), given that this applicability «cannot be maintained in view of articles 1 and 2 of said Real Decreto, which lay down the object and scope of application thereof, since it determines the sole object of the Decreto to be to adapt Act 31/1995 and Regulation 39/1997 to the Administración General del Estado, with no reference whatsoever to regional authorities. This exclusion is confirmed in article 2, which determines the scope of application in four sections taking in: the Administración General del Estado and public organisations linked thereto or dependant thereon; military centres and establishments; penitentiary establishments, police, security and customs forces or services carrying out civil protection and forensic examination. It is therefore clear that the appeal is correct in claiming an infringement on the grounds of undue application of said legal rule».

On the other hand, the Tribunal Supremo considers that the provisions laid down in article 31.1 and additional provision 3 of the LPRL, and also additional provision 1 and 4 of the RSP are crucial to interpreting the question in dispute, concluding that «it is clear that government authorities are entitled to dictate specific legislation to regulate among other matters the organisation of the necessary resources for carrying out prevention activities». For the Administración General del Estado this specific legislation takes the particular form of Real Decreto 67/2010, but it does not exist with respect to the regional government against which the claim is brought. This explains the ruling given in the judgment of the Tribunal Supremo, as expressly recognised in the statement that «this lack of specific regulation seems to be provisional since the judgment itself recognises in section six of proven facts that there is evidence that a decree has been drawn up but not yet published. For that reason, when this specific legislation is passed the tenor of this claim may have to be interpreted in relation thereto, but until such time application has to be made of the provisions laid down in Regulation 39/1997 as expressly set forth in paragraph two of additional provision four thereof, which runs as follows: «in default of said specific legislation the provisions laid down in this Regulation will be applicable». And as a premise for its ruling it states that «in light of all the grounds set out above and albeit with provisional validity, application of the Regulation leads to upholding of the appeal, since pursuant to article 14, the Junta de Castilla y León has to set up an inhouse occupational risk prevention service».

THE COORDINATION OF ACTIVITIES IN GOVERNMENT AUTHORITIES

One of the trends that is currently marking labour relations is the growing tendency to outsource activities of the production cycle, whether core activities or otherwise. Contrary to what might be expected, the phenomenon of productive decentralisation is not foreign to the public sector, which also recurs to indirect management of certain public services by means of different techniques, the commonest arrangement being government concessions.

Productive decentralisation arose during the seventies of last century as a response to market demands and the economic crisis, whereas government concessions date right back to the nineteenth century, dominated by the liberal ideology, and arose from the need of meeting the demands of technological development without waiving the shibboleth of non state intervention. Despite these different starting points a snapshot of today’s situation shows a fairly similar picture in terms of outsourcing in the private arena and government concessions: namely a centre with its own legal personality (be it a private employer or government authority) hands over part of its activity, inherent or otherwise, to another centre with its own legal personality (normally a private employer, though transfer to another government authority can by no means be ruled out).

Indirect management of public services as a decentralisation process proper to government authorities in their own right can lead to a situation where public and private employees coexist in the same workplace or the presence of private employees in public work centres, public employees in private work centres or even a public service run in private centres built on land of public tenure. All these possible interactions obviously beg a number of questions in terms of ensuring protection of the health and safety of public employees and also in terms of meeting the prevention obligation incumbent on the government authority as an employer.

Different Community and international rules, duly implemented into Spain’s body of law, have served as inspiration for Article 24 of the LPRL which establishes general coordination obligations, subsequently fleshed out by RD 171/2004 of 30 January.

Cases of Concurrence

Article 24 of LPRL and RD 171/2004 distinguish between three cases of concurrence of business activities, each one calling for different coordination obligations. In any case these obligations are cumulative, i.e., they are non exclusive and can be phased in progressively.

  1. Concurrence of workers from several firms in the same workplace
    The first case of business concurrence dealt with in Article 24 of the LPRL is the physical coexistence of workers from several firms in the same workplace. According to this article, «When workers from two or more firms are working in the same work centre, these firms shall cooperate in the application of the occupational risk prevention legislation. To this end they will establish such coordination and liaison arrangements as may be necessary in terms of the prevention of occupational risks and the information thereon and on their respective workers in the terms laid down in article 18.1 hereof.» In this case the legal link or relation uniting the firms is irrelevant and each one of them is «in the same position vis-à-vis the rest». The obligation therefore arises from the mere fact of sharing the same workspace. Should there be any doubt about this statement Article 4.1 of RD 171/2004 clears it up forthrightly, stating that «the cooperation duty will be applicable to all companies and freelance workers concurrent in the same workplace, whether or not there are any legal relations between them».
    In relation to the information-giving duty, it should be pointed out in the first place that, after the coming into force of RD 171/2004, this duty is no longer translated exclusively into an obligation of the companies towards their workers – as laid down in Article 24.1 of the LPRL – but also of one concurrent company to another. Indeed, the cooperation duty, according to Article 4.2 of the RD 171/2004, calls for reciprocal information between the concurrent companies «on the specific risks involved in the activities being carried out in the workplace that might affect the workers of the other concurrent firms in the same workplace, especially such risks as may be aggravated or modified by circumstances deriving from the concurrence of different activities».
    The information also takes in such work accidents as may have occurred as a result of the risks implied by the concurrent activities. The employer whose worker or workers have suffered the accident shall inform the other employers present in the workplace.
  2. Concurrence of workers from several firms in a workplace of which one employer is tenure holder
    As regards the workplace tenure holder, Article 24.2 of the LPRL runs as follows: «The workplace tenure-holding employer will take such measures as may be necessary to ensure that those other employers carrying out activities in its workplace receive suitable information and instructions in relation to risks existing in the workplace and the corresponding protection and prevention measures as well as the emergency measures to apply, then passing on this information to its workers.» Once again the legal link or relation uniting the firms is irrelevant. Unlike the former case, however, one of them occupies the pre-eminent position of workplace tenure holder.
    There are two specific measures to be adopted by the workplace tenure holder whose workers carry out activities therein; when the workplace tenure holder has no workers in the workplace it will be bound to meet only the first of the two information-giving measures pointed out below:
    • It shall inform the other concurrent employers «of the workplace risks that might affect the activities carried out therein, the risk prevention measures taken and the emergency measures to be applied » (Article 7.1 RD 171/2004). The information refers to the risks posed by the tenure-holding employer’s workplace rather than the specific risks or the risks deriving from the particular activity carried out by each one of the concurrent firms. The same goes for the measures about which information is to be given, which will be those adopted by the tenure-holding employer in relation to its fixtures, machinery, etc.
    • It shall give instructions to the concurrent employers about the prevention of workplace risks and the measures to be taken in the event of any emergency. (Article 8.1 RD 171/2004). Quid pro quo, the workplace tenure holding employer who has workers carrying out activities therein will in return receive from each employer information about the specific risks of the activities carried out by each firm in the workplace. It is after receiving this information that it will pass on the pertinent instructions to the rest of the employers. The tenure holding employer is therefore conversant with the risks posed by its own workplace and also the specific risks of the activities carried out therein. Working from this information it will be able to assess the workplace risks, which might have increased as a result of the activities carried out therein by the different firms and take the corresponding measures, including emergency measures. After making the due assessment it will pass on the corresponding assessment, give the due instructions to the concurrent employers for the purpose of preventing workplace risks.
  3. Concurrence of workers from several firms in the same workplace when there is a main employer
    The third case of concurrence dealt with in Article 24.3 of the LPRL refers to the existence of subcontracting relations between the concurrent firms. According to this article «Firms that contract or subcontract out to others work or services pertaining to their own rightful activity and carried out in their own workplaces shall watch out for compliance by said contractors and subcontractors with occupational risks prevention legislation». The safety duties of the contracting or subcontracting firm in relation to the workers of the contracted or subcontracted firms are especially reinforced to ensure proper protection of the health and safety of the affected workers.
    The main employer’s obligations are especially strict when it contracts out part of its own activity. In such cases the main employer not only has to fulfil its cooperation duty with the concurrent firms in the same workplace and its information- and instruction-giving information if it is also workplace tenure holder but also watch out for compliance with occupational risk prevention legislation by the contracted and subcontracted firms.
    Article 10 of RD 171/2004 has tried to flesh out the scope of this enforcement duty. In doing so it seems to make it clear that the enforcement duty involves checking that the contracted and subcontracted firms fulfil their occupational risk prevention obligations rather than specifically watching over the workers of said firms. It also specifies the objective scope of the enforcement duty, pointing out the specific matters that the main employer must enforce on the subcontractors and contractors. Thus, the main employer, before going ahead with its activity in the workplace, will ask the contracted and subcontracted firms to «declare in writing that they have carried out the risk-assessment and prevention-planning for the contracted work and services». It will also ask said firms to «declare in writing that they have fulfilled their information-giving and training obligations with respect to the workers who are going to work in the workplace». It is not therefore a question of enforcing all the occupational risk prevention legislation but only the obligations pertaining to risk assessment and the planning of preventive activity and the giving of information and training to the workers.

A JUDGMENT OF THE TRIBUNAL SUPREMO OBLIGED THE JUNTA DE CASTILLA Y LEÓN TO SET UP AN INHOUSE PREVENTION SERVICE, RULING OUT THE POSSIBILITY OF OUTSOURCING THE SERVICE

The problems of applying prevention coordination legislation in government authorities

When government authorities decide to provide public services by means of indirect management, the application of prevention coordination legislation does not usually pose any problem at all. Take the example of a cleansing contract for municipal offices, where it is clear that the concurrence of public employees and the workers of the cleansing firm obliges the government authority to observe the prevention coordination obligations as the main employer and tenure holding employer, as well as an employer with workers in a workplace with concurrence of workers from other firms.

Nonetheless there might also be cases in which the government authority, without setting public employees to work on the indirect management of a service, limits itself to assigning the land on which this is to be carried out, without even supplying a building. For example a local council that assigns land for indirect management of a municipal dog pound. Would prevention legislation in terms of business interaction be applicable in such a case?

No clear answer is given by a close look at the wording of the legislation. Article 24 of the LPRL, as well as its development regulation RD 171/2004, refer to the coordination of business activities. Rather than breaking it down into two differentiated activities they speak about a single one, the indirectly managed public service, so the obligations would not be applicable. This would lead to the conclusion that the aforementioned legislation would not be applicable. Nonetheless, the specific regulation of prevention coordination strays well beyond the concurrence of activities. Thus, both article 24.2 of the LPRL and articles 6 to 8 of RD 171/2004 establish a series of obligations incumbent on the tenure holding employer. The latter is defined as the party with powers for setting up and managing the workplace but it should not be forgotten here that in the case of government authorities the tenureship of the public service is always and in all cases held by the government authority. This would suggest an affirmative response to the original question.

There is a judicial ruling dealing with this problem. A skilled worker hired by a private firm suffered a work accident while repairing the roof of the main entrance to a municipal cemetery. The repair had been contracted by the local council with the worker’s firm. No shoring had been fitted and the worker had received no training courses. As a result of the work accident the worker ended up in a state of permanent total disablement and lodged a compensation claim against his company and against the council. The claim was partially upheld, for the company was found to be culpable and the local authority acquitted.

The worker then lodged an appeal against this finding, seeking, among other claims, that the council also be held culpable for infringement of the prevention-coordination provisions laid down in article 24 of the LPRL. This appeal was dismissed in a judgment of the Higher Court of Justice of Extremadura of 2 December 2004 (AS 2004/3170), on the grounds that sections 1 and 2 of article 24 of the LPRL work from the same premise «of workers from two or more firms carrying out activities in the same workplace, in which case they would be bound to cooperate in application of occupational risk prevention legislation. This circumstance did not obtain in the workplace where the accident we are dealing with here took place, for the municipal cemetery where the work was being carried out cannot be regarded as such but merely the site of the work, i.e., the roof of the main entrance, which the defendant firm was repairing. In said workplace there is no record of activities being carried out by workers other than those of said firm, the construction firm, since, according to the facts set forth in the judgment hereby appealed against, there was no participation therein by the workers of the local council, also a defendant in this case. There are therefore no grounds for application of the first two sections of article 24 of Ley 31/1995, which works from the premise of workers from two or more firms working in the same workplace. It is not sufficient for the site involved to belong to a company other than the one carrying out the work or service. This follows not only from this law itself but also from Real Decreto 171/2004 of 30 January, developing same, which is based on the premise that all the companies referred to carry out activities in a single workplace, thereby implying risks not only for the workers of each firm but also for the others coexisting in the same workplace and hence entailing coordination obligations between all of them to obviate, as far as possible, said risks. This does not obtain if the workplace tenure holding firm carries out no activity whatsoever therein and hence provokes no risks whatsoever for its workers, since none of them work in the workplace concerned, nor for the company or companies who have workers therein».

Applicability of the main employer’s obligations as set forth in Article 24.3 of the LPRL is also ruled out, according to the wording of this paragraph itself: «Firms that contract or subcontract out to others work or services pertaining to their own rightful activity and carried out in their own workplaces shall watch out for compliance by said contractors and subcontractors with occupational risks prevention legislation». The very wording of the prevention obligation therefore «shows that for these sections to come into play the main company must also carry out some activity in the workplace […], but neither can liability be extended to the defendant council thereunder, since the first court understood that the work being carried out in the workplace where the accident occurred did not correspond to the rightful activity of the municipal corporation». Delving further into this third possibility it accepts as true that case law has established that «it is therefore the occurrence of the accident within the sphere of responsibility of the main employer in terms of health and safety that determines, in the event of any breach, the extension thereto of liability for repairing the damage caused, because it is not a case of the mere extension of the guarantee via the contract but rather liability deriving from the employer’s safety obligation vis-à-vis all those working in a productive unit that falls under the latter’s control». Nonetheless, in the view of the appeal court, there is no evidence «in the facts as related in the judgment being appealed against herein that it was the local council that in fact controlled execution of the work concerned and neither does the appellant make any claims to this effect.» More light here is shed by the high court in a judgment of 16 December 1997 (RJ 1997/9320), ruling that the work be carried out in the main employer’s workplace with its production instruments and under its control, in which case it would be «perfectly possible for a negligent or improper performance by the main employer to cause damage or harm to the contracted employee and even that this performance might be the cause of the work accident suffered by the latter. In this case, it goes on, the main employer could be considered to be the defaulting employer», adding that «although this conclusion is drawn in a clear case of contracting a work or service corresponding to the rightful activity, the important and decisive point is not this qualification but rather the fact that the accident’s cause can be put down to a culpable breach of the main employer within its sphere of liability.» This circumstance, it insists, «does not appear herein and neither does the claimant gives grounds for such».

In sum, the fairly skimpy case law handed down to date concludes that application of the cases laid down in sections 24.1 and 2 of the LPRL and also in articles 4 to 9 of RD 171/2004, depends on the concurrence of the government authority’s workers with workers of other authorities or private firms. Applicability of section 24.3 of the LPRL and article 10 of RD 171/2004 is dependent not on the concurrence of workers but real and effective control wielded by the authority over the performance of the public service or activity when the latter is not in itself considered to be a public service.

PARTICULAR FEATURES OF GOVERNMENT AUTHORITIES IN TERMS OF PREVENTION PENALTIES

PARTICULAR FEATURES OF GOVERNMENT AUTHORITIES IN TERMS OF PREVENTION PENALTIES

One last question needs to be dealt with here even though it does not in itself give rise to difficulties of interpretation. Legal theorists have nonetheless expressed different opinions about the particular measures to be taken when a government authority falls down on its prevention measures.

Any breach of occupational health and safety legislation by a private employer is subject to the penalising regime laid down in Real Decreto Legislativo (Royal Legislative Decree) 5/2000 of 4 August, approving the revised text of the Labour Infringements and Penalties Law (Ley de Infracciones y Sanciones del Orden Social: LISOS). Conversely, article 45 of the LPRL stipulates that any breaches by civil personnel working for government authorities will be dealt with in terms of the obligation, imposed by decision of the competent authority, to take the corresponding corrective measures to put right the breach.

No fines are therefore envisaged for government authorities but rather the enforcement of corrective measures. This solution is open to criticism on the grounds that the imposition of fines is a much more effective deterrent against breaches than the mere obligation to put right the fault. This arrangement could balk the effective safeguarding of public employees’ right to proper protection and risk prevention, since authorities, in the absence of any fines, might well come to the conclusion that voluntary abidance by the legislation is more expensive than the adoption of corrective measures.

FINES ARE NOT ENVISAGED FOR GOVERNMENT AUTHORITIES BUT RATHER THE ENFORCEMENT OF CORRECTIVE MEASURES; THIS ARRANGEMENT IS OPEN TO CRITICISM

The adoption of corrective measures will be established in terms of the particular rules laid down for each case. For the Administración General del Estado these provisions are laid down in Real Decreto 707/2002 of 19 July. Nonetheless, article 45 of the LPRL stipulates that, at central government level, this procedure will abide by the following steps:

  1. The procedure will be initiated by the competent organisation of the Inspección de Trabajo y Seguridad Social by higher order, either ex officio or at the behest of personnel representatives.
  2. After looking into the matter the Inspectorate will draw up a requirement of the measures to be taken and the deadline, passing on this information to the government unit inspected for it to make any pleas.
  3. In the event of any discrepancy between competent ministers as a result of the application of this procedure, the case will be sent up to the Consejo de Ministros (Council of Ministers) for its final decision.

Although Real Decreto 707/2002 lays down the administrative procedure for enforcement of corrective measures after any breach of prevention legislation by the Administración General del Estado, it is established for civil personnel at lower levels of government only by default of their own legislation. The powers assigned to the Delegados del Gobierno (Government Delegates), therefore, to subsecretariats of the ministerial departments and the Consejo de Ministros would correspond, in any case to the respective governance bodies at each level of government (Additional Provision 2 RD 707/2002). Subsidiary enforcement of this Real Decreto is therefore established for the rest of the government authorities.

Article 45 of the LPRL uses the expression «personal al servicio de las administraciones públicas» (personnel working for government authorities) to ring fence the enforcement sphere of corrective measures. This begs the question of whether it is targeted only at tenured civil servants or also non-tenured personnel working for the government authority under an employment contract. Any breach by the latter would in principle be liable to a fine.

This doubt has been cleared up expressly and directly for the Administración General del Estado and in subsidiary fashion for the rest of the government levels, by Real Decreto 707/2002, demarcating its sphere of action and pointing out that this regulation will affect «all personnel employed in the various centres, offices or workplaces, regardless of whether the employment relation is tenured or non tenured». The enforcement of corrective measures, therefore, will be the solution for any breach of prevention legislation by a government authority regardless of whether the public employee concerned is tenured or non tenured.

That said, some groups or matters are excluded from the enforcement of corrective measures.

Firstly, this regulation will not be applicable to entidades públicas empresariales (public corporations), which are hence excluded from this procedure and subject to full application of the LISOS for all purposes (Article 2.2 RD 707/2002).

Secondly, military establishments and centres and the activities referred to in article 3.2 of the LPRL are excluded and are dealt with instead by their own specific legislation (Article 2.3 RD 707/2002).

Thirdly, it will not be applied to occupational risk prevention questions that arise with respect to the personnel of contractors, subcontractors of work and services or concessionaires of any type that carry out their activity on sites of the central government or its regional organisations, to which the ordinary procedure will always be applied. Notwithstanding the above, if the inspection activities carried out or the previous information collected suggests that the corresponding government body might be affected in any way as tenure holder of the site or by virtue of coordination obligations referred to in article 24 of the LPRL, this will be apprised thereof forthwith for such purposes as might be in order (Article 2.4 RD 707/2002).

Fourthly, it will not be applicable to central government bodies when they act as promoter of construction work under Real Decreto 1627/1997 of 24 October laying down minimum health and safety provisions on construction sites, which will be ruled by their own specific rules (Article 2.5 RD 707/2002).

(1) At state level the 4th Collective Bargaining Agreement for Non-Tenured Staff of the Secretariat General of Penitentiary Affairs dedicates five articles to the prevention of occupational risks, laying down a series of very general considerations that shed no light on the LPRL’s provisions. These considerations include the following: a) a series of worker rights are established – the right to the effective protection of his or her physical integrity and a suitable health-and-safety-at-work policy, the right to participation in preventive policies and control of the adopted preventive measures – as well as the duty of watching out for and implementing the risk prevention measures laid down by law and regulation (Article 81.1); b) Occupational Health and Safety Units are established (Article 82); c) Article 83 deals with changes in jobs due to accidents, illness or other circumstances that reduce the workers’ working capacity.

(2) See, among others, Cristóbal Roncero, R.: «El personal investigador en formación: un contrato común con peculiaridades», Revista Ministerio Trabajo e Inmigración, No. 83, 2009, pp. 323-352, Aguilera Izquierdo, R.: «El régimen jurídico del personal docente e investigador contratado por las Universidades Públicas de Madrid», Revista Española Derecho del Trabajo, 2003, No. 118, p. 563-581.

(3) De Nieves Nieto, N.: «Voluntariado y empleo en el tercer sector», Revista Ministerio Trabajo y Asuntos Sociales, No. 33, 2001, pp. 294-295.


ACKNOWLEDGEMENTS

This work has been funded by a FUNDACIÓN MAPFRE research grant. My thanks also go to Pilar Manzano Bayán

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