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Health and Safety Representation

Health and safety representatives in Spain should be present in all companies and workplaces employing more than five people. They are chosen by and from among the existing employee representatives. They have substantial consultation rights, and in larger companies (50 or more employees) they work with the employer in health and safety committees.

Basic approach at workplace level

 

Employees have a right to effective protection in the area of health and safety at work and this should be guaranteed by the employer. Employees’ rights to be informed and consulted about health and safety issues are part of this right to protection.

 

Employee health and safety bodies

 

Where there are six or more employees, health and safety representation is provided through special health and safety representatives, known as prevention delegates (delegados de prevención), chosen from among the existing employee representatives. In larger companies or workplaces (50 or more employees) there is also a joint employee/employer health and safety committee (Comité de Seguridad y Salud).

 

Numbers and structure

 

Employees are entitled to participate in health and safety issues and once there are six or more employees, either in the company or the workplace, this participation is through specially designated health and safety representatives, known as prevention delegates. The number of these prevention delegates increases with the number employed (see table).

 

Number of employees

Prevention delegates

6 to 49

1

50 to 100

2

101 to 500

3

501 to 1,000

4

1,001 to 2,000

5

2,001 to 3,000

6

3,001 to 4,000

7

More than 4,000

8

 

In addition, in all companies or workplaces with 50 or more employees, a health and safety committee should be set up. This consists of the prevention delegates and an equal number of representatives of the employer. Also participating in the meeting of the health and safety committee are the trade union delegate or delegates (one or more employees representing the union in companies with more than 250 employees) and the health and safety professionals employed by the company. Both groups can speak at the meetings, but they do not have a vote. The health and safety professionals are not included in the headcount of employer representatives.

 

In companies with several separate workplaces, it is possible to set up a joint health and safety committee covering them all. However, this depends on the employer reaching an agreement with the workforce and the agreement also determines the powers of this joint committee.

 

Research by the European Agency for Safety and Health at Work in 2014 found that 51% of workplaces in Spain had safety representatives (prevention delegates)  and 20% had a health and safety committee. These are both slightly below the EU-28 averages, which are 58% for health and safety representatives and 21% for health and safety committees. (The figures are for workplaces with five or more employees.)[1]  

 

National figures for the proportion of workplaces with prevention delegates are higher at 64%.[2]  However, this is not surprising as these figures, from the 2015 National Survey of Working Conditions, are based on workplaces with 10 employees or more, and on average larger workplaces are more likely to have employee representation.

 

Tasks and rights

 

The basic principle is that employees have a right to participate in health and safety issues and that, once there are six or more employees, this is done through the prevention delegates (and the health and safety committee in bigger companies).

 

The main tasks of the prevention delegates are:

  • to work with management to improve action on risk prevention;
  • to promote and encourage employees’ cooperation in applying health and safety regulations;
  • to monitor compliance with health and safety regulations; and
  • to be consulted by the employer in advance about the following issues:
    • work organisation and planning in the company, including the introduction of new technology and its health and safety impact;
    • the organisation of health and safety and risk prevention measures in the company, including the appointment of health and safety professionals or the use of an external health and safety agency;
    • the designation of employees responsible for reacting to emergencies;
    • the provision of health and safety information to employees; and
    • employees’ health and safety training.

 

What is meant under the consultation referred to above is that the employer must give the prevention delegates a period of 15 days to respond to proposals, unless a shorter period is necessary to prevent an imminent risk. If the employer decides reject the prevention delegates’ proposals, he or she must provide grounds for this rejection.    

 

To enable prevention delegates to carry out these tasks, prevention delegates have the right:

  • to accompany health and safety professionals carrying out risk assessments as well as labour inspectors monitoring health and safety compliance – the prevention delegates can point out concerns to the inspectors in the course of their visits;
  • to have access to the appropriate documentation about working conditions;
  • to be informed by the employer about workers’ injuries or ill health and to examine the place where these have occurred;
  • to receive information from the health and safety professionals employed by the employer;
  • to visit workplaces and talk to employees;
  • to encourage management to take preventative measures and improve health and safety arrangements;
  • to propose to the employee representatives that they agree to order a halt to work to avoid a serious and imminent danger. (It is the main employee representatives, rather than the prevention delegates who have normally the right actually to halt work – see below.)

 

The joint health and safety committee also has a range of tasks and rights, and where there is no health and safety committee, these tasks and rights fall to the prevention delegates.

 

The tasks are to:

  • participate in the drawing up, implementation and evaluation of risk prevention measures, involving looking at the choice of measures, the activities of external agencies contracted by the company for health and safety, work organisation, new technologies and protective equipment; and
  • promote initiatives for effective risk prevention making proposals for improvement and to remedy failings.

 

The rights are to:

  • have direct knowledge of the risk prevention situation in the company, through appropriate workplace visits;
  • have knowledge of all the necessary documents about working conditions and health and safety activities in the company;
  • know about and to analyse any negative impacts on workers’ health in order to establish the causes and make proposals to avoid them; and
  • be given the annual report and proposals for action produced by the health and safety professionals in the company.

 

The legislation makes plain that the health and safety structures (prevention delegates and health and safety committees) do not remove the right of the existing structures of employee representation – the employee delegates (delegados de personal), the works council and the union representatives – to defend the interests of the employees in the area of risk prevention. As a result it is these structures that normally have the right to halt work in cases of imminent and serious risk. If work is halted in this way the employer and the health and safety authorities must be informed immediately and the authorities have 24 hours to either confirm or lift the suspension of work. (Only if the existing structures of employee representation cannot be brought together quickly enough, can a majority of prevention delegates agree to halt work.)

 

Both the health and safety structures and the existing structures of employee representation have particular rights with regard to the health and safety authorities. They can call on the authorities if they consider that the employer’s efforts in the area of health and safety are insufficient. The prevention delegates and the health and safety committee (or existing representatives if the health and safety representatives are not present) should be informed of inspections by the health and safety authorities, so that they can accompany the inspectors, and they should also be given the results of these inspections.

 

 Frequency of meetings

 

The health and safety committee meets every three months as well as when either side requests a meeting.

 

Election and term of office

 

In companies with up to 30 employees, the existing employee delegate is also the prevention delegate. In companies with between 31 and 49 employees the existing employee delegates (there should be three) choose one of their number to be the prevention delegate. In larger companies or workplaces the prevention delegates are chosen by and from among the works council members (companies and workplaces with more than 50 employees have employee-only works councils rather than employee delegates) and the trade union delegates (representatives of the union in companies with more than 250 employees).

 

Where there are no employee delegates or works council, the employees should elect a prevention delegate directly.

 

The period of office of employee delegates and works council members and therefore of prevention delegates is four years.

 

Resources, time off and training

 

Prevention delegates should use some of the time they are given for the other positions they hold as employee representatives for their health and safety work. By law, employee delegates and works council members get a set number of hours for their duties, although collective agreements can improve on this. The number rises as the size of the workforce increases, as follows: up to 100 workers –  each delegate or member gets 15 hours a month; 101 to 250 workers – 20 hours a month; 251 to 500 – 30 hours; 501 to 750 – 35 hours; and above 750 – 40 hours a month.

 

However, the legislation also makes clear that meetings of the health and safety committee and site inspections should not count against this total.

 

Prevention delegates should also receive the training and the means necessary to carry out their tasks. This training should be paid for by the employer and should take place during working time.

 

Protection against dismissal

 

As prevention delegates also hold other representative positions, they benefit from the protection against dismissal that these provide. They have priority in keeping their jobs where employees are being dismissed for economic or technical reasons; they cannot be dismissed as a result of exercising their rights; and they cannot be punished for allegedly serious misconduct without the works council having a right to make its case to the employer.

 

Other elements of workplace health and safety

 

The legislation allows employers to choose between four ways of dealing with their health and safety responsibilities, in part depending on the number of employees involved. They can undertake them themselves, choose one or more employees to carry them out, establish an internal health and safety prevention service, or make use of external specialist companies.

 

Employers can only undertake health and safety tasks themselves if they have 25 or fewer employees (10 in more dangerous industries) and have the appropriate skills and knowledge. If employees are chosen to undertake health and safety responsibilities, they must also be appropriately qualified and have sufficient time and resources to carry out the health and safety tasks they have been given. At the other end of the spectrum, larger employers, those with more than 500 employees (250 in dangerous industries), must establish their own internal health and safety prevention service, including appropriately qualified experts.

 

In practice, the vast majority of employers use the services of external experts. The national health and safety management survey in 2009 found that almost three quarters of employers (72.8%) used an external prevention service. The other ways of dealing with an employer’s health and safety responsibilities were used much less frequently: 15.0% gave health and safety duties to one or more employees; 9.9% undertook the responsibilities themselves; 4.9% had an internal health and safety service; 4.2% used a health and safety service shared with a relatively small number other companies, for example in the local area; and 10.1% had nothing. (0.6% did not know or did not reply.)[3]  

National context

 

The ministry responsible for health and safety at work is the Ministry of Employment and Social Security (Ministerio de Empleo y Seguridad Social) and the National Institute of Occupational Safety, Health and Welfare at Work (Instituto Nacional de Seguridad, Salud y Bienestar en el Trabajo – INSSBT, formerly the INSHT) has prime responsibility for promoting health and safety at work. The Inspectorate of Labour and Social Security (Inspección de Trabajo y Seguridad Social, ITSS) ensures compliance with health and safety legislation, as well as with more general labour and social security regulations.  

 

Trade unions and employers have a guaranteed role in health and safety at national level through their membership of the National Commission for Safety and Health at Work (Comisión Nacional de Seguridad y Salud en el Trabajo, CNSST). It has a total of 76 members, with 19 each coming from central government, regional government, the employers and the unions, and it is intended to have a key role in formulating and developing health and safety policy.[4]

 

There is no specific Spanish legislation on psychosocial risks, but, in its guide on the topic the Spanish labour inspectorate (ITSS) states they are implicitly included in the main Spanish health and safety law, the Law on the Prevention of Occupational Risks.[5]

 

Key legislation

 

Law 31/1995: Prevention of Occupational Risks, 8 November 1995

Ley 31/1995, de 8 de noviembre: Prevención de riesgos laborales

Royal Decree 39/1997, approving the regulation of prevention services, 17 January 1997

Real Decreto 39/1997, de 17 de enero, por el que se aprueba el Reglamento de los Servicios de Prevención.

[1] Second European Survey of Enterprises on New and Emerging Risks, European Agency for Safety and Health at Work, 2016

[2] Encuesta Nacional de Condiciones de Trabajo. 2015 6ª EWCS – España, Instituto Nacional de Seguridad e Higiene en el Trabajo (INSHT), 2017

[3] Encuesta Nacional de Gestión de la Seguridad y Salud en las Empresas (ENGE), 2009, INSHT

[4] For more information on the national context see  OSH system at national level – Spain by Carsten Brück,  OSH Wiki  https://oshwiki.eu/wiki/OSH_system_at_national_level_-_Spain

[5] Guía de actuaciones de la Inspección de Trabajo y Seguridad Social sobre Riesgos Psicosociales, 2012

L. Fulton (2018) Health and safety representation in Europe. Labour Research Department and ETUI (online publication). Produced with the assistance of the Workers' Interest Group of the Advisory Committee for Safety and Health at Work (of the EU Commission). Online publication available at http://www.worker-participation.eu/National-Industrial-Relations.