Understanding the New Health and Safety at Work Act: Are You Prepared?

Authors: Ann Bugeja & Christine Borg Millo

The protection of health and safety at work is considered to be one of public interest, where the physical, psychological and social well being of all workers at all times, is a key responsibility and obligation at law.[1]

In this regard, the new Health and Safety at Work Act, 2024, issued on the 9th of August 2024, by virtue of Act No. XXXIII of 2024 (hereinafter referred to as the “Act”) particularly focuses on the promotion and safeguarding of the health and safety of workers at any workplace and applies to all sectors of work activity, both public and private, and includes work activities carried out by self-employed individuals.

This article provides the reader with a better insight into the main duties of the respective bodies or individuals responsible to sustain a proper level of safety of employees at their place of work.

Duties of the established Authority

An Authority, comprising of a Governing Board (hereinafter referred to as the “Board”) and the Health and Safety Executive, (hereinafter referred to as the “Executive”), as established in the Act[2], shall be responsible for the promotion of health and safety at the workplace, ensuring that the employers fulfil their responsibilities and obligations. Notably, the proposed Authority shall be responsible for:

• Recommending strategies relating to health and safety at work;
• Preparing draft regulations;
• Advising on guidance documents;
• Soliciting participation by the social partners;
• Promoting initiatives in favour of high levels of health and safety at work;
• Fostering harmonious relations on health and safety matters at work between the various stakeholders and duty holders;
• Encouraging constructive dialogue between constituted bodies or organisations of whatever nature about the benefits of ensuring health and safety at work; and
• Engaging in regular consultations with constituted bodies regarding matters pertinent to the protection of workers’ health and safety.

The Board consists of nine (9) members, two (2) of which have the role to act as the workers’ health and safety representatives as being those persons elected, chosen or designated to represent workers on all matters relating to the promotion and protection of their health or safety at work.  The representatives would be consulted in advance and within a reasonable time by the employer, on matters which may affect health and safety at work, where they are:

1. given access to, and may request electronic copies of documents prepared in connection with health and safety at work; and
2. provided with the necessary means, including the time necessary to allow them to carry out their role as representatives.

Notably, no action, disciplinary or otherwise, may be taken by an employer against a representative who acts in good faith in carrying out the duties pertaining to such a position. Moreover, the proposed Chief Executive Officer[3], who heads the Executive, shall be tasked with carrying out any investigation on any matter concerning health and safety at work, including but not limited to the investigation of any accident, incident, injury, disease or death occurring as a result, or by reason of, any association with work, as well as investigations to ascertain the level of health and safety provided at any workplace.[4]

Duties of the Employer

To adequately and effectively safeguard the physical and psychological well-being of his/her employees or workers, the employer is tasked with enforcing all those measures which must be taken to prevent “physical and psychological ill-health, injury or death at work”. The Act bases this responsibility on the principle of “prevention”[5] and lists the following factors which form the foundation of this principle:

• Avoidance of risk;
• Identification of hazards associated with work;
• Evaluation of those risks which cannot be avoided;
• Control at source of those risks which cannot be avoided;
• Taking all measures to reduce risk and danger as much as practically possible, according to the particular case;
• Giving collective protective measures priority over individual protective measures;
• Adapting the work to the employee, especially in the design of workplaces, the choice of work equipment and the choice of working and production methods, with the aim of alleviating monotonous work and work at a predetermined work-rate, and to reduce their effect on health;
• Adapting to technical progress in the interest of health and safety at work;
• Development of a coherent overall Company prevention policy which covers technology, the organisation of work, working conditions, social relationships and the influence of factors related to the working environment; and
• Replacing the dangerous[6] by the non-dangerous or the less dangerous.

Duties of the Health and Safety Reporting Officer

The Act introduces several key provisions aimed at enhancing workplace safety, including the critical role of the Health and Safety Reporting Officer (hereinafter referred to as the “HSRO”). This high-ranking employee is appointed either by the employer or Executive, and is tasked with overseeing the implementation of health and safety measures in the workplace and ensuring compliance with the regulations. Key responsibilities and procedures for the HSRO include, inter alia:

• Responsibility for the day-to-day implementation, monitoring, and supervision of health and safety measures, policies and procedures in accordance with the Act and any related regulations;
• Reviewing and investigating health and safety breach reports, to determine whether further reporting to the employer is warranted;
• In instances where a breach is confirmed, preparing written reports within fifteen (15) days from the date the breach was first reported; and
• Escalating the matter to the Authority by providing the written report, in cases where the employer fails to take adequate action, or if an employee fails to comply with health and safety orders .

Failure to appoint an HSRO constitutes an offence under the Act and the employer shall be subject to a fine (multa) of not more than fifty thousand euro (€50,000), as determined by the Authority[7].

Furthermore, the Act introduces offences and administrative penalties for those acts or omissions which do not constitute a criminal offence, but which would otherwise still be subject to an administrative penalty for wrongdoings and failing to comply with the law. It is at the discretion of the Authority to institute such penalties, which penalties cannot exceed the amount of twenty thousand euro (€20,000) for each breach of an administrative nature. The Authority can also specify the period within which the administrative penalty needs to be paid.

Duties of Health and Safety at Work Officers

In addition to the HSRO, the Executive must appoint officers[8] to ensure the general implementation of the rules under the Act. To properly carry out his/her duties entrusted to him/her, the officer has the below powers, with such powers being non-exhaustive:

• Enter freely in any workplace, at any time of day or night, with or without previous notice;
• Request the assistance of a member of the Police Force in the execution of his/her duties;
• Question, whether alone or in the presence of witnesses, any employer or worker, on any of the matters falling under this Act;
• Inspect any book, document, design, plan or list of technical specifications which may provide information or clarification regarding health and safety at work at any workplace;
• Take possession, upon giving receipt therefor, of any object required for tests or as evidence of any accident, injury or disease at work, or of any alleged breach of this Act;
• Examine or see to the examination of workplaces and of any object therein, and to take samples for examination of any article, substance or material found in any workplace or within its curtilage, and to ensure that such samples are preserved for use as evidence in any proceedings in accordance with this Act;
• Order that nothing be disturbed at a workplace for any period which may be reasonably required for any examination, investigation or inspection;
• Require the operation of any equipment, machine or device, system or procedure which may be relevant to any examination, investigation or inspection;
• Require any employer to provide a certificate signed by a Perit[9], mechanical or electrical engineer or medical practitioner, relating to information and assessment of the safety of the building, structure, installation or else the overall health of workers, at the employer’s expense;
• Require any duty holder, employer, agent, manufacturer, or the like to provide, at their expense, any document, certificate or list of technical specifications regarding any matter concerning health and safety at work, the method of handling or use of any plant, installation, equipment, machinery, article, substance or chemical which is used or intended to be used at work; and
• Disclose to the Court or to the Tribunal such results or information received or collected during the investigations.

Duties of the Employees/Workers

Similar to the duties of the employer, the Act specifies that any employee has their own personal duty to take care, as far as possible, of their own health and safety, and that of other persons affected by his/her acts or omissions at work,[10] in accordance with the training and instructions provided by his employer in this regard. Therefore, care must be taken to:

• Correctly utilise machinery, apparatus, tools, dangerous substances, transport equipment and other means of production;
• Correctly use personal protective equipment provided to them and, after use, return it to its proper place;
• Refrain from disconnecting, changing or removing arbitrarily fitted safety devices, including those fitted to machinery, apparatus, tools, plant and buildings; and
• Immediately inform the employer and workers of any work situation they have reasonable grounds to consider a serious and immediate danger to health and safety and of any shortcomings in the protection arrangements.

The Health and Safety Tribunal

Lastly, the independent and impartial Health and Safety Tribunal[11], composed of one (1) chairperson and two (2) other members, has two (2) main competencies:

• Hear appeals brought by any person following decisions, orders, or administrative instruments issued by the Authority; and
• Hear claims in connection with breaches of an administrative nature and as a result of which an administrative penalty can be imposed.

Furthermore, any aggrieved party following the decision of the Tribunal may file for an appeal within twenty (20) days from the date of the decision, solely on points of law and not on points of fact.

Concluding remarks

The enacted Act is designed for employers to be held accountable for workplace accidents, injuries, and illnesses, as they are expected to take measures that include identifying potential hazards, avoiding risks, providing adequate training and supervision, and implementing a coherent Health and Safety Policy. Such a policy must be regularly updated and communicated clearly to all employees, ensuring that safety standards are consistently upheld, with the assistance and guidance of the HSRO in certain cases.

Conversely, employees have the duty to adhere to health and safety instructions, use protective equipment appropriately, and report any dangers or unsafe conditions they observe. Essentially, the Act establishes a framework of shared responsibility between employers and employees to create a safer working environment, fostering a culture of accountability and proactive prevention of workplace hazards.

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[1] Article 5 of the Act;

[2] Articles 4 and 9 of the Act;

[3] Article 9 of the Act;

[4] Article 9 (3) (g) of the Act;

[5] Article 12 of the Act;

[6] Although the term is not defined in the Act, it would mean any workplace condition, substance, or practice that could reasonably cause harm or injury to workers;

[7] Article 14(14) of the Act;

[8] Article 18 of the Act;

[9] An Architect and Civil Engineer;

[10] Article 15 of the Act;

[11] Article 23 of the Act.