The Consolidated Security strengthened partnership mechanisms aiming at a strong role of workers' representative Security (RLS) RLS
Role stronger
strong role of RLS with the Consolidated
With the reform process, achieved through the Leg. April 9, 2008, No 81 , the legislature has attempted to strengthen the mechanisms of co-focusing especially on a greater role of workers' representative for Security (RLS). This figure of prevention is now equipped with new force as a result of some important innovations in art. 47 ff and its primary function is to ensure the workers to exercise their rights of participation and control in health and safety at work, with particular reference to the fundamental choices the employer.
POWERS OF RLS
The Legislative Decree no. 81/2008, has essentially taken over the contents of Art. 19, Legislative Decree no. 626/1994, and confirmed the advisory tasks and control, with the right by the RLS, to receive information from supervisors, in particular, it reaffirmed the right of RLS to obtain a copy of risk (DVR) requirements of Art. 17:28, Legislative Decree no. 81/2008, after a request.
Paragraph 5 has also extended this right to the single risk assessment interference (DUVRI) governed by Article hours. 26, a copy of which may be required by both the buyer and the RLS RLS firm of contractors. This legal framework is complemented by the provision of an active role in collective bargaining, which can introduce additional functions and a particular discipline to those listed above. 50.
of this system of consultation and participation, which seeks to give effect to the principles contained in the so-called Workers' Statute, it is worth expanding on some critical issues arising from the first application of the so-called Consolidated safety. In particular with regard to the management requirements of the employer, the question of the companies in which the RLS is absent and communication INAIL (Article 18, paragraph 1, letter aa), in light of the provisions of Decree 30 December 2008, n. 207 (so-called "milleproroghe") which granted a partial extension of only a few delicate requirements of the Legislative Decree no. 81/2008 which had not yet entered into force May 15, 2008.
The election of RLS
Article 47, paragraph 2: In all companies, or branches, shall be elected or appointed representative of workers' safety.
In particular, those in which they are employed up to 15 workers, the representative workers' safety is usually directly elected by the workers within them, or is located, for most companies, within the territorial or productive sector.
Instead, those in which they are employed in more than 15 workers, the workers' safety representative is elected or appointed by the workers within the trade unions in the company (RSA) and, in cases where they are absent, the representative is elected by employees of the company in them.
The obligations of the employer
Therefore, it is clear that these obligations are imposed on the community of workers and not the
The employer is obliged workers in order to inform the law relating to consultation and participation (Article 36, paragraph 2, letter a) and, subsequently, to ensure the RLS training (art.37, commi10, 11 and 12), l ' exercise of the powers set out in Article .50 (Article 18, comma1, letter s) as well as to report annually to INAIL the name. These obligations arise on the part of the employer from the time when the same became aware that the election.
Incompatibility of roles
preventative model introduced by Legislative Decree No. 626/1994, was based on the principle of cooperation between the "actors" of security. On the contrary, however, the Legislative Decree 81/2008 seems to propose a model tends to conflict, of confrontation between the different stakeholders see it renewed the roles of responsible and competent physician, the exaltation of the exercise of disciplinary power and dictated to the new incompatibility ' election RLS. In fact, taking a controversial approach adopted by the Supreme Court, the legislature established in paragraph 7, Art. 50 that the performance of a representative of the workers' safety is incompatible with the appointment of Head of Prevention and Protection (RSPP) and the service representative of Prevention and Protection (ASPP).
Thus, for example, a worker designated by the employer as first aid officer all'antincendio or business (Articles 43 et seq) is entitled to be elected as the RLS, however, the election of a PPSM or ASPP determines a hypothesis for revocation of the appointment.
The non-election of RLS Company
If workers do not elect their own RLS, functions will be exercised by the representatives of local or site (Articles 48 and 49), unless otherwise agreed between the trade unions of workers and employers Work comparatively representative at national level, and in this case, the employer must also contribute to the special fund provided for in art. 52 created under the INAIL (Article 48, paragraph 3). In particular, as regards the figure of the workers' representative to the territorial security (RLST), the criteria for election are identified by national collective agreements, interconfederal or category, awarded to the associations of employers and workers comparatively representative at national level, in the absence of these agreements, the election or appointment shall be identified by the Minister of Labour.
RLS and micro
a very sensitive case of micro businesses employing one worker in this case, very common, it is necessary to understand whether the same can assume the post of representative or If, however, must necessarily be carried out the intervention of the RLST. In fact, we must consider that the RLS has, by its nature, functions, representation of a community defined, as is also the same meaning as defined in Art. 2, paragraph 1, letter i), which speaks of "person elected or appointed to represent workers with regard to the issues of health and safety at work", a characterization in a non-confrontational and participatory, in the extreme case in question, as there is no prohibition or restriction in Legislative Decree no. 81/2008, in principle, it appears that the only eligible employee to assume the role of representative, subject to fulfillment by the employer of all obligations and in accordance with the provisions of collective bargaining where applicable.
would be desirable, however, a corrective action of the legislature to regulate this hypothesis and to facilitate the fulfillment of obligations by micro-enterprises.
The power to access the company RLST
For the exercise of its powers, the RLST have access to the workplace in compliance with the terms of the notice period and identified by the agreements referred to in paragraph 2, Art. 48. The period of notice does not operate in case of serious injury. In this latter case, access is subject to joint reporting agency. If the
employer prevents access of RLST, the latter shall forward to the joint or, failing that, to the supervisory body of local authority (or ASL Provincial Department of Labour).
the VDR in companies without RLS
The structured framework of the powers outlined in Article. 50 also involves many operational challenges for companies in which workers have no elected representative and the joint body (provided for by the Fund. 52 is not yet operating) has not yet announced the name of the RLST, and these difficulties are likely to worsen due to the failure to extend the obligation to assess risk according to Legislative Decree no. 81/2008, which was not included in the DL No 207/2008. This situation is very common in small businesses because it is the attitude that you find particularly difficult recently among workers - often in fear of criminal liability, are not available to fill the job - and the inevitable time set up of the new system based on the figure of RLST, in many cases still in their infancy.
Since the consultation and participation by the employee representative is considered to be decisive in a number of preventative decisions by the employer, for example, risk assessment or the appointment of the RSPP and competent physician, the immediate effect that seems to be derived from a first reading of the rule is that if this figure is missing for these reasons, the employer could not proceed with the administration attributed to the same and those provided for under Article. 50.
However, such an interpretation would be in sharp contrast with the constitutional principles of the protection of the worker's right to health (Articles 32 and 41 of the Constitution) and with the prohibition in Article. 2087, cc, as well as the same measures for protection of art. 15, Legislative Decree no. 81/2008.
Accordingly, given the nature of the post of representative of workers' safety, it seems safe to assume, however, that in this case il datore di lavoro, preso atto della mancata elezione del RLS e della mancata comunicazione del RLST, deve comunque procedere a osservare gli adempimenti previsti dal D.Lgs. n. 81/2008 e, sotto il profilo procedurale, dovrà garantire la partecipazione e la consultazione di tutti i lavoratori in sede di riunione periodica prevista dall'art. 35, verbalizzando sia la situazione che si è venuta a creare sia le osservazioni dei partecipanti, rinviando a un successivo atto di ratifica delle decisioni adottate da parte del rappresentante non appena lo stesso sarà eletto o comunicato.
Il contributo obbligatorio per le imprese senza RLS interno
La mancata elezione da parte dei lavoratori del RLS comporta anche l'obbligo, a carico del datore di lavoro, del versamento del contributo annuale a un apposito Fondo di sostegno alla PMI, ai RLST e alla pariteticità, la cui gestione è affidata all'INAIL e opera per tutte quelle "realtà" nelle quali i CCNL e la contrattazione integrativa "non preveda o costituisca sistemi di rappresentanza dei lavoratori e di pariteticità migliorativi o, almeno, di pari livello".
La norma è poco chiara e ha individuato gli obiettivi del fondo nel finanziamento delle attività dei RLST, della formazione dei datori di lavoro delle PMI e del sostegno alle attività degli organismi paritetici. L'importo che deve essere versato è pari a due ore lavorative annue per ogni lavoratore occupato presso l'azienda ovvero l'unità productive will be a special inter-ministerial decree to establish the mode of operation of the fund.
The annual INAIL
Another controversial aspect of the new legislation is the introduction of the requirement that the employer and the manager, INAIL report annually the names of the representatives of the employees security (Article 18, paragraph 1, letter y). In recent months there has been much discussion about the extent of this performance, in particular as regards both the deadline coincided with the first few seconds December 31, 2008 and the content of communications to be addressed and INAIL. A
prime example in this sense, the forms proposed by some software company that provides a communication scheme which, however, does not seem consistent with the goals of the standard. In fact, given that the performance was purely administrative and is, therefore, civil penalties, but with a fine of € 500 (Article 55, paragraph 4, letter o), its rationale is to monitor the presence of both of RLS in companies, also for other interventions, both in time to build a bank of RLS.
To avoid unnecessary alarm and Solutions "fanciful", it should be noted that the same INAIL, with a note July 18, 2008 (see box 2), stated that employers Work should not make any more fulfilling because it will be the same Institute insurer to establish the terms and conditions of communication with a view to maximum operational simplification.
Probably, this performance will be included in the annual self-assessment procedure or the prize will be attracted by the new national information system for the prevention (SINPIA) in the workplace, which should begin soon (art. 8).
Conclusions In the new system of consultation and participation as defined by Legislative Decree no. 81/2008 lurk a number of anomalies that might have negative impact particularly on the micro and small enterprises. In particular, the generalized forecast people from outside the corporate context, although functional in particular areas, in many other risks, however, to generate new conflicts regardless, then, new costs for businesses - such as, for example, the contribution to the Fund pursuant to Art. 52 and training - that appear to be increasingly unsustainable.
Added to this is a mechanism for sharing too jagged for these reasons have to be reviewed, and in this sense, the natural place is the enactment of the amending decree to the Legislative Decree no. 81/2008 which should be published later this year.
Source: confartigianatobologna.it
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