MT
HEALTH AND SAFETY AT WORK ACT
Table of Provisions (46)
Statutory Text (46 Articles)
CHAPTER 646
HEALTH AND SAFETY AT WORK ACT
AN ACT to provide for the regulation of matters relating to health and
safety at work and particularly the promotion and safeguard of the health and
safety of workers at work, and to provide for matters emanating from,
connected with or ancillary thereto.
26th November, 2024
ACT XXXIII of 2024.
PART I
Preliminary
(1)
The short title of this Act is the Health and Safety at
Work Act.
(2)
The scope of this Act is the promotion and safeguard of the
health and safety of workers at work.
In this Act, unless the context otherwise requires
"Authority" means the Occupational Health and Safety
Authority as established by article 4;
"administrative instrument" means such instruments in
accordance with article 17 which are required to discharge the
Authority’s functions and shall include any order, directive,
protocol, guideline, explanatory memorandum, information
circular, including notices, or other publication issued by the
Authority;
"Board" means the Governing Board regulated in
accordance with articles 4, 7 and 8;
"Chief Executive" means the Chief Executive Officer
appointed under article 9;
"client" means any natural or legal person for whom a
project is carried out;
"Code of Practice" means a standard, specification or
any other written or illustrated form of practical guidance,
instruction or control;
"competent person" means a person possessing
adequatequalifications and minimum accreditations in terms of
law or where required, as established by the Authority through
administrative instruments, suitable training and sufficient
HEALTH AND SAFETY AT WORK
knowledge, experience and skill for the safe performance of the
specific task or work required, and who provides advice with
regard to the health and safety at work preventive and
protective measures required to be taken, and whose name
appears in the competent person register administered or
otherwise delegated by the Authority in relation to such matters
which are regulated by the Authority;
"constituted bodies" means any body which is
established to represent the interests of its members such as
workers or employers and shall include any body recognised
under the Malta Council for Economic and Social Development
Act and other bodies of a similar nature which are recognised
under any other law;
"disciplined force" shall have the same meaning as
assigned to it in article 47 of the Constitution and shall include
the Civil Protection Department established by the Civil
Protection Act;
"duty holder" means any person who has a duty or
obligation to fulfill and, or the responsibility to ensure that a duty
or an obligation is fulfilled by virtue of any requirement of this
Act or of subsidiary legislation, and shall include as the case may
be, an employer, a self-employed person, a worker, a client, a
project supervisor for health and safety matters, a manager who
is responsible for workers, a supervisor who is responsible for
workers, an HSRO and any other person to whom this Act or any
subsidiary legislation made thereunder assigns a duty or
responsibility;
"employer" means any person for whom work or a
service is performed by a worker or other person who has an
employment relationship with a worker, and includes a
contractor or subcontractor who performs work or provides a
service or undertakes to perform any work or to supply
services, and
(a)
in relation to work performed under a
contract for services means the contractor or
subcontractor, but shall not include the directors,
managers, partners or owners, occupiers or possessors
on behalf of whom work is being carried out, except as
regards any of the tools, materials or equipment
provided by them with regard to any defects thereof or
therein which are known and not declared or which
could have been known;
(b)
in respect of all other organisations
including voluntary ones or in respect of any other form
of employment under a contract of service, includes any
of the persons in overall direction or having day-to-day
management;
"Executive" means the Health and Safety Executive
regulated in accordance with articles 4 and 9;
"financial year" means any period of twelve (12) months
ending on the 31 st December as determined from time to time
by virtue of administrative instruments
Provided that the financial year which
commences on a date after the 1st January shall be extended for
such period so as to terminate on the subsequent 31st
December;
"HSRO" means the Health and Safety Reporting Officer
appointed in accordance with article 12(8) and who is a high-
ranking employee at management level, or such other person
which an employer may appoint, as may be established by
regulations issued in terms of this Act;
"Minister" means the Minister responsible for health and
safety at work;
"officer" means a health and safety at work officer
appointed in accordance with article 18 and who is in
possession of a certificate of appointment issued according to
the provisions of the said article;
"person" includes a body of persons and any body
corporate established by or under any law;
"public officer" in relation to article 21 shall have the
same meaning assigned to it by article 124 of the Constitution
but does not include the Chief Justice, a judge of the Superior
Courts or a magistrate of the Inferior Courts;
"self-employed person" means a person who works for
profit or gain other than under a contract of employment;
"Tribunal" means the Health and Safety Tribunal as
established by article 23;
"work" means any duty, activity, task or service
producing a product or result, carried out by a worker or self-
employed person and being performed for payment or for free
or in exchange for goods, for services, for profit or for benefit;
"worker" means any person employed by an employer to
perform work, or who provides a service to another person
under a contract of service or for service, whether such contract
is in writing or otherwise, and includes a trainee, an apprentice,
HEALTH AND SAFETY AT WORK
a volunteer, who were it not for the lack of remuneration, would
essentially be undertaking responsibilities akin to those of a
paid employee and a self-employed person, but shall not
include the crew of a ship or an aircraft registered in Malta or
any other person employed thereon as part of the ship or
aircraft’s complement;
"workers’ health and safety representative" means a
person elected, chosen or designated, as prescribed in
regulations, to represent workers on all matters relating to the
promotion and protection of their health or safety at work;
"workplace" means any premises, place, facility,
vehicle, vessel or seacraft or any other movable or immovable
or location, whether public or private, where work is carried out
or to which the worker has access in the course of his
employment, and without prejudice to the generality of the
foregoing, shall include a vehicle or vessel or any other seacraft
where such vessel or seacraft is within a port in Malta or the
internal or territorial waters thereof, or at any dockyard,
harbour or other similar installation in Malta, other than a
warship belonging to a foreign state.
This Act shall apply to all workplaces and to all sectors of
work activity, both public and private, and to all work activities,
including those carried out by self-employed persons but shall not
apply to those specific activities carried out by members of a
disciplined force or a civil protection service, having characteristics
particular to an activity by the disciplined force inevitably conflicting
with this Act, including activities relating to civil emergencies, public
order, national security or operations by the military
Provided that with regard to the exclusions mentioned in the
previous paragraph, the health and safety of the workers concerned
shall be protected for the purposes of the scope of this Act
Provided further that the phrase "operations by the military"
shall exclude any action antecedent to the operation.
PART II
Establishment, Functions and Conduct of the Authority
(1)
There shall be established an Authority which shall
consist of a Board and the Executive.
(2)
The Authority shall be responsible for promoting health and
safety at work as defined in the Act and to ensure, within the limits of
its responsibilities as prescribed in this Act, that duty holders fulfil
their obligations at law.
(3)
The Authority shall be a body corporate having a distinct
legal personality and subject to the provisions of this Act, shall be
capable of entering into contracts, of acquiring, holding and disposing
of any kind of property for the purposes of its functions, of suing and
being sued, and shall be empowered to do all such things and enter into
all such transactions as are incidental or conducive to the exercise or
performance of its functions under this Act.
(4)
The legal and judicial representation of the Authority shall
be vested in the Chief Executive
Provided that the Chief Executive may appoint any one (1)
or more of the employees of the Authority to appear in the name and
on behalf of the Authority in any proceedings and in any act, contract,
instrument, or other document whatsoever.
(5)
The Board shall be composed of the following nine (9)
members
(a)
a Chairperson appointed by the Minister;
(b)
the Director of Industrial and Employment
Relations;
(c) a person appointed by the Minister with
competence in health and, or safety at work or who has been
listed in the register of competent persons;
(d)
a person appointed by the Minister responsible
for health;
(e)
a person appointed by the Minister responsible
for economic affairs;
(f)
two (2) members appointed by the Minister to
represent the interests of workers, following consultation with
the said body or bodies as the Minister may, from time to time,
consider to be the principal representatives of workers;
(g)
two (2) members appointed by the Minister to
represent the interests of employers, following consultation
with the said body or bodies as the Minister may, from time to
time, consider to be the principal representatives of employers.
(6)
The Minister shall appoint a person to be the secretary of the
Board as well as any one (1) of its members as a Deputy Chairperson
who shall exercise the duties of the Chairperson in the case that the
Chairperson is unable to attend to his duties for whatever reason.
(7)
The Chairperson and the other members of the Board shall
hold office for a period of two (2) years, but the members so appointed
may be reappointed on the expiration of any of their term of office
Provided that if a member is appointed at any time after the
other members have already been appointed, the term of appointment
of the said member shall end on the same date as that of the other
members.
(8)
A person shall not be qualified to hold office as a member of
the Board, if that person
(a)
is a Minister or a Parliamentary Secretary;
(b)
is legally incapacitated;
(c)
has been declared bankrupt or has made a
composition or arrangement with his creditors;
(d)
has been convicted of a crime affecting public
trust, theft or fraud, or knowingly receiving property obtained
by theft or fraud, or of any offence under this Act; or
(e)
has a financial or other interest in any enterprise
or activity which is likely to affect the discharge of the
functions as a member of the Board
Provided that the disqualification of a person under this
paragraph may be waived by the Minister if the interest is declared and
the declaration is published in the Gazette.
(9) Subject to the provisions of this article, the office of a
member of the Board shall become vacant at the expiration of the term
of office.
(10) A member of the Board may be removed from office by the
Minister if, in the opinion of the Minister, the said member is unfit to
continue in office or has become incapable of properly performing the
duties as a member.
(11) If a member resigns or if the office of a member of the
Board is otherwise vacant or if a member is for any reason unable to
perform the functions of the office, the Minister may appoint a person
who is qualified to be appointed as a temporary member of the
Authority and any person so appointed shall, subject to the provisions
of sub-articles (5) and (6), cease to be a member when a person has
been appointed to occupy the vacancy or, as the case may be, when the
member who was unable to perform the functions of the office
resumes such functions.
(12) Any member of the Board who has any direct or indirect
interest in any contract made or proposed to be made by the Authority,
not being an interest which disqualifies such member from remaining a
member, shall disclose the nature of the interest at the first meeting of
the Board after the relevant facts have come to such member ’s
knowledge. The said disclosure shall then be recorded in the minutes
of the meeting and the member having an interest as aforesaid shall
withdraw from any meetings at which such contract is discussed. Any
such disclosure shall be communicated to the Minister without delay
Provided that where the interest of the member is such as to
disqualify that member from remaining a member, he shall report the
fact immediately to the Minister and tender his resignation.
(13) The appointment of any person as a member of the Board
and the termination of office or resignation of any such person, as well
as any additional functions assigned to the Board by the Minister shall
be notified in the Gazette and it shall have immediate effect
Provided that failure to publish the appointment or
termination of office, as the case may be, shall have no effect on the
validity of the said appointment or termination.
(14) The Chairperson and the members of the Board shall be
remunerated as the Minister may determine, from time to time.
(1)
The protection of health and safety at work shall be
considered of public interest.
(2)
The Authority shall be responsible for ensuring that the
physical, psychological and social wellbeing of all workers in all
workplaces is promoted and to ensure that it is safeguarded by
whoever is so obliged to do.
It shall be the duty of the Authority to ensure that the levels
of protection with regard to health and safety at work established by
this Act and by regulations made thereunder are maintained.
(1)
The Board shall be responsible for ensuring that the
Executive carries out its duties to a high level and shall oversee that
the Executive implements health and safety at work initiatives as
prescribed in the Act and in regulations made thereunder.
(2)
The Board shall review and oversee that the Executive
reaches the targets set out for the Authority by the Minister or which
the Executive itself proposes in relation to the various duties of the
Authority under this Act.
(3)
The Board shall review the Authority’s budgets,
management accounts, internal procedures, human resource plans and
the financial audits.
(4)
The Board shall approve and adopt the Authority’s estimates
of its income and expenditure for the subsequent year.
(5)
The Board shall also have the following functions
(a)
recommend strategies by which the general
HEALTH AND SAFETY AT WORK
national policy relating to health and safety at work, indicated
to the Authority by the Minister, may be implemented;
(b)
advise the Minister regarding the drafting of
policies and regulations to promote, maintain and protect a high
level of health and safety at work, and on any matter
concerning the Authority;
(c)
recommend and if required prepare draft
regulations for the Minister’s consideration, guidance
documents, and Codes of Practice required to promote,
maintain and protect a high level of health and safety at work
Provided that the Board may appoint for this
purpose, committees or sub-committees and it may co-opt on
the said committees or sub-committees competent persons from
outside its membership who, in the opinion of the Board, have
professional or expert knowledge on any matter dealt with
under this Act so however that the co-opted members shall not
have a vote on any matter before a committee or sub-
committee;
(d)
to solicit participation by the social partners and
promote initiatives in favour of high levels of health and safety
at work;
(e)
to foster harmonious relations on matters of
health and safety at work between the various stakeholders and
duty holders;
(f)
to encourage and support a constructive dialogue
between constituted bodies or organisations of whatever nature
about the benefits of ensuring health and safety at work;
(g)
to engage in regular consultations with
constituted bodies regarding matters pertinent to the protection
of workers’ health and safety as regulated in this Act.
(6)
Prior to the implementation of any policy relating to health
and safety at work, the Minister shall request the Board to provide any
recommendations or opinions it may have in relation to any policy.
(7)
The Board shall refrain from being involved in executive
decisions or actions taken by the Executive in fulfilment of the scope
and objectives of the Act.
(8)
The Board shall on an annual basis and prior to the
commencement of the Authority’s financial year, present to the
Minister a report in relation to its activities under the Act.
(9)
The Board may also undertake such other activity it may
deem necessary or expedient for the purposes of its functions and
objectives under this Act.
(10) The Authority may, with the approval of the Minister, act as
an agent or otherwise on behalf of other persons for any matter related
to health and safety at work.
(1)
The meetings of the Board shall be called by the
Chairperson as often as may be necessary, but at least once (1) a
month, either on his own initiative or at the request of any two (2) of
the other members.
(2)
Half the number of members who at that point constitute the
Board shall form a quorum. Decisions shall be adopted by a simple
majority of the votes of the members present and voting. The
Chairperson, or in the Chairperson’s absence the Deputy Chairperson,
shall have an initial vote and in the event of an equality of votes, a
casting vote
Provided that without prejudice to the other requirements of
this Act, no decision which is not supported by at least two (2)
members of the Board shall be valid.
(3)
Subject to the provisions of this Act, the Board may regulate
its own procedure.
(4)
Without prejudice to the provisions of this article, no act or
procedure of the Board shall be invalidated merely by reason of the
existence of any vacancy among the members.
(5)
All acts done by any person acting in good faith as a
member of the Board shall be valid notwithstanding that some defect
in the appointment or the qualification be discovered afterwards. No
act or procedure of the Board shall be questioned on the ground of a
breach of the provisions of article 4(12) by a member.
(6)
The secretary of the Board shall have the duty to make the
necessary preparations for the meetings of the Board and to keep
minutes of the said meetings.
(1)
The Executive shall be headed by a Chief Executive
who shall be appointed by the Minister in consultation with the
Governing Board for a defined period under such terms as established
in the letter of appointment and the said period may be extended for
further periods as necessary.
(2)
The Executive shall have the authority and responsibility for
the implementation of the provisions of the Act and shall have such
functions and powers in respect of its structures as are set out in the
Act and such other functions and powers as may be delegated to it by
virtue of any other law, or as may be assigned to it by the Minister.
(3)
The Executive shall have the following functions
HEALTH AND SAFETY AT WORK
(a)
apply the provisions of this Act and of any
regulations made thereunder;
(b)
establish implementation strategies and policies
related to health and safety at work;
(c)
monitor compliance with relevant laws relating to
health and safety at work and to take enforcement action where
necessary;
(d)
promote and disseminate information regarding
health and safety at work, and the methods required to prevent
injury, ill health or death at work;
(e)
collate and analyse data and statistics on injuries
at work, ill health and deaths and on matters ancillary to health
and safety at work
Provided that the Executive may request any data
or information from any person including any Government
department, agency, entity or corporation on any matter,
directly or indirectly related to health and safety at work, and
such data or information shall be provided without delay
Provided further that any such data or information
shall be deemed to have been given and received under the
obligation of confidentiality and with respect to the provisions
of the Regulation (EU) 2016/679 of the European Parliament
and of the Council of 27 April 2016 on the protection of natural
persons with regard to the processing of personal data and on
the free movement of such data, and repealing Directive 95/46/
EC (General Data Protection Regulation);
(f)
keep registers of such plant, installations,
equipment, machinery, articles, substances, or chemicals
intended for use at the workplace, as it may deem appropriate,
which provide a serious risk to health and safety at work;
(g)
carry 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, and the duty of the
Authority to ensure the enforcement of any provision of this
Act shall not be reason to debar the carrying out of such
investigations
Provided that when carrying out the said
investigation, the Executive may request any information,
documentation or any item or thing deemed necessary by the
Executive for the conclusion of the investigation
Provided further that the Executive may appoint
competent persons from the register mentioned in paragraph (i)
to accompany and assist in any investigation;
(h)
promote and carry out, coordinate or commission,
and where the Authority deems necessary publish, scientific
research, surveys or other professional studies aimed at better
methods of preventing illness, injury, or death at work;
(i)
keep registers, if applicable in accordance with
this Act, of competent persons in matters related to health and
safety at work, and to develop schemes as are necessary for the
accreditation of competence and, or certification in the field of
health and safety at work
Provided that the Executive may determine the
minimum qualifications required before the name of a person
may be entered into the register;
(j)
shall receive and review reports submitted by the
HSRO and take the appropriate action to address the identified
concerns;
(k)
issue administrative instruments as defined in
article 2; and, or
(l)
impose administrative penalties and fines (multi)
as referred to in articles 25, 26 and 27.
(1)
The Chief Executive shall be responsible for the
implementation of the objectives of the Authority in the exercise of its
functions and, without prejudice to the generality of the foregoing, he
shall
(a)
be responsible for the implementation and
fulfilment of the Authority’s established goals for the efficient
use of its resources;
(b)
ensure that the necessary strategies for meeting
the objectives of the Authority are developed; and
(c)
have such other duties relating to health and
safety at work as the Minister may assign from time to time.
(1)
In the exercise of its functions, the Authority acting
through the Executive shall
(a)
give effect, as soon as practicable, to any
direction, which the Minister may give to it in relation to the
policy to be followed in the discharge of its functions, and in
relation to any matter which appears to the Minister to affect
health and safety at work; and
(b)
afford to the Minister facilities for obtaining any
information with regard to the property and activities of the
Authority and for this purpose the Authority shall furnish the
Minister with returns, accounts and other information with
respect thereto, and afford facilities for the verification of any
information furnished in such manner and at such times as the
Minister may reasonably require.
(2)
The Authority shall, on its own initiative or at the request of
the Minister, advise the Minister on any matter concerning health and
safety at work.
(3)
The Authority shall transmit a copy of the minutes of its
meetings to the Minister as soon as practicable after each meeting.
(4)
The Minister shall seek the advice of the Authority before
making regulations as provided in article 45 and the said advice shall
however not be binding on the Minster.
(5)
The Authority shall, not later than six (6) weeks after the
end of each financial year, prepare and submit to the Minister an
annual report that generally covers the activities of the Authority
during such preceding financial year and which contains such
information related to the proceedings and policy of the Authority as
the Minister may from time to time require and shall consist of
(a)
a report on the operation of the Authority during
the preceding financial year; and
(b)
any research, surveys or other professional
studies and analysis of educational programmes and structures
related to activities concerning health and safety at work that
the Authority deems necessary.
(6)
The Minister shall ensure that a copy of each such report is
placed on the Table of the House of Representatives together with the
estimates as provided in article 38(5).
PART III
Duties
(1)
It shall be the duty of an employer to ensure the
physical and psychological wellbeing of his workers at all times and of
all persons who may be affected by the work being carried out for such
employer at their workplace.
(2)
The measures that shall be taken by an employer to prevent
physical and psychological ill-health, injury or death at work, shall be
taken on the basis of the following general principles of prevention,
that is
(a)
by the avoidance of risk;
(b)
by the identification of hazards associated with
work;
(c)
by the evaluation of those risks which cannot be
avoided;
(d)
by the control at source of those risks which
cannot be avoided;
(e)
by taking all the necessary measures to reduce
risk and danger as much as reasonably practicable, according to
the particular case;
(f)
by giving collective protective measures priority
over individual protective measures;
(g)
by adapting the work to the worker, particularly
insofar as the design of workplaces, the choice of work
equipment and the choice of working and production methods
are concerned, in particular with a view to alleviating
monotonous work and work at a predetermined work-rate, and
to reducing their effect on health;
(h)
by adapting to technical progress in the interest of
health and safety at work;
(i)
by the development of a coherent overall
prevention policy which covers technology, the organisation of
work, working conditions, social relationships and the
influence of factors related to the working environment;
(j)
by replacing the dangerous by the non-dangerous
or the less dangerous; and
(k)
by giving appropriate instructions to workers.
(3)
Without prejudice to the generality of sub-article (2), it shall
be the duty of an employer to provide such information, instruction,
training and supervision as is required to ensure health and safety at
work.
(4)
It shall be the duty of an employer to ensure that at
workplaces wherein a number of workers are employed as may be
established by regulations issued by virtue of this Act, there shall be
elected, chosen or otherwise designated a person or persons to act as
the workers’ health and safety representative or representatives, and
who shall be consulted in advance and in good time by the employer
on matters which may affect health and safety at work. Such
representatives shall
(a)
be given access to, and may request electronic
copies of documents prepared in connection with health and
safety at work; and
(b)
they shall also be provided with the necessary
means, including the time necessary to allow them to carry out
their role as representatives
Provided that 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.
(5)
An employer shall prepare and review as and when
appropriate, a statement of the general policy with respect to health
and safety at work, which shall include the main measures for the
implementation of such a policy, and to bring the declaration and any
review of it to the notice of all the workers and their representatives.
(6)
It shall be the duty of the employer to inform any contractor,
self-employed person and workers from outside the organization of the
contents of the health and safety at work policy, the presence of
specific hazards at work, the resultant risks, and the preventive and
protective measures required to be taken, and shall ensure that the
provisions of the policy are abided by at all times.
(7)
An employer shall ensure that any measure required to be
taken by virtue of any provision of this Act or of any regulations made
thereunder, does not involve financial cost to the workers.
(8)
The Minister may by regulations issued in accordance with
this Act, in order to address proper compliance with the terms of this
Act and the regulations made thereunder or otherwise in view of the
nature of work conducted by an employer, require an employer to
appoint an HSRO who shall be tasked with the supervision and
monitoring of the day-to-day implementation of the health and safety
at work measures, policies and procedures of this Act and any
regulations made thereunder
Provided that, without prejudice to the rights of the
Authority under this Act and the regulations made thereunder, the
Authority may, in such cases where serious and consistent breaches of
this Act and the regulations made thereunder become apparent, order
that an HSRO is appointed by an employer for such time as the
Authority may deem necessary. In such cases, the terms of the Act
relating to the HSRO shall apply to such employer irrespective of
whether regulations in terms of this sub-article have been published.
(1)
The HSRO shall have the following duties
(a)
receive a report made by other officials, workers
or any person of any information or other matter which may
give rise to information or suspicion of a breach of this Act or
any regulations made thereunder;
(b)
conduct investigations necessary to determine
whether the information or matter referred to in paragraph (a),
warrants a report to be made to the employer;
(c)
provide a report in writing to the employer when
the HSRO considers there to be a breach of this Act or any
regulations made thereunder, which shall also include
recommendations for the rectification thereof; and
(d)
provide a report in writing to the Authority where
the HSRO determines that following a report made by him to
the employer in accordance with paragraph (c), the employer
did not reasonably implement the recommendations made
therein or did not seek to comply with the provisions of this Act
or its subsidiary legislation, within a reasonable time.
(2)
Where following the consideration of a report in accordance
with sub-article (1)(d) the HSRO determines that no reporting to the
Authority is necessary, the HSRO shall record the reasons for such
determination in writing and, upon request, shall make it available to
the Authority. A register to this effect shall be kept by the HSRO.
(3)
The employer shall at all times be kept fully informed of
any communication, exchanges or discussions between the HSRO and
the Authority and shall be entitled to participate at any stage thereof.
(1) When an employer has appointed an HSRO to
perform the duties referred to in article 13, this does not relieve the
employer of his duties established in terms of this Act and shall not
affect the principle of employers’ responsibility as provided for in this
Act or any regulations made thereunder.
(2)
The employer shall have the duty to ensure that the HSRO
shall be given access to whatever resources are required for the
fulfilment of his role and the implementation of any recommendation
he may make in accordance with sub-article (1).
(3)
The employer shall provide the HSRO with unrestricted
access to any relevant information held by himself.
(4)
In such instances where an HSRO is required in terms of the
Act, the employer shall notify the Authority of the details of the
appointed HSRO and any subsequent changes thereto. A HSRO shall
retain all responsibilities under the Act until such time as the Authority
is notified with such resignation. If a person appointed to act as HSRO
ceases to act as such for any reason, in such instances, the HSRO shall
notify the Authority with such cessation
Provided that in the case of demise of the HSRO, the
employer shall notify the Authority within fourteen (14) days from
such demise.
(5)
The HSRO shall consult the workers’ health and safety
representative for the purposes of preparing the report as outlined
under article 13(1)(c).
(6)
In order to preserve health and safety at work, the employer
shall take into account any report made by the HSRO in accordance
with article 13(1)(d) and within a reasonable time shall take all
reasonable measures to rectify the breach of this Act or any regulations
made thereunder by implementing the recommendations made by the
HSRO or otherwise.
(7)
No action, or other proceeding for damages shall lie or be
instituted against the HSRO for
(a)
any act done in pursuance of this Act and any
regulations made thereunder, unless the HSRO has acted in a
negligent manner which shall include inter alia the non-
observance of his duties as provided in accordance with this
Act and any regulations made thereunder; or
(b)
any act done or omitted to be done in the
performance of his functions where it is sufficiently proven that
the employer failed to provide the HSRO with the necessary
information in accordance with sub-article (3) and the HSRO
would have reported such lack of information to the Authority.
(8)
It shall be considered an offence under this Act for the
HSRO to fail to submit a report to the Authority in accordance with
article 13(1)(d).
(9)
In cases where a worker or any person, whether acting on his
own behalf or on behalf of a worker, reports a matter in terms of this
article to the HSRO, the HSRO should inform the employer in writing
immediately on the matter and shall prepare his written report in relation
to such a matter within fifteen (15) days from the date on which such
matter was reported to him. Such report shall be provided to the
employer and the worker accordingly. Where deemed necessary by the
HSRO, the report shall make such recommendations and stipulate such
time frames as the HSRO may deem appropriate after having consulted
the employer in relation to the timelines for such implementation, taking
into account the obligations of the employer under this Act. A person
failing to present such a report shall be guilty of an offence against this
Act.
(10) In cases where a worker or any person making a report is
satisfied with the findings of the report, the HSRO shall register the
matter accordingly in his register, and the matter shall be considered to
be conclusively determined provided that any recommendation made
by the HSRO is implemented accordingly within stipulated time
frames.
(11) In cases where the recommendations made by the HSRO are
not implemented, the HSRO shall report such lack of implementation
to the Authority and the employer shall be guilty of an offence under
this Act.
(12) In cases where the HSRO determines that the employer has
not correctly implemented the terms of the report presented by him in
terms of this article, the HSRO shall provide his report made in
accordance to article 13(1)(d) to the Authority within fifteen (15) days
from the end date of the implementation period. The Authority having
received such a report from the HSRO in accordance with article
13(1)(d) shall finally determine whether the employer acted correctly
in not implementing any of the recommendations of the HSRO in
terms of this submitted report. If the Authority determines that the
employer should have implemented the recommendations made by the
HSRO, then such lack of implementation shall be considered to be an
offence under this Act
Provided that the employer shall not have committed an
offence under this Act if the Authority determines that the lack of
implementation was due to lack of agreement on the interpretation of
the duties of the employer under this Act and only in such instances
where such lack of implementation could not have reasonably resulted
in a risk of any form of bodily or psychological harm or death of a
worker.
(13) In cases where a worker or any person presenting a report
in writing to the HSRO is not satisfied with the report or
recommendations prepared by the HSRO in relation to any matter
raised by such worker or person, such worker or person shall be
entitled to report the matter to the Authority. The Authority shall
investigate such a matter accordingly and shall communicate its
findings to such worker or person, the employer and the HSRO in
writing. Should it be determined that the HSRO has failed to make the
correct recommendations to the employer in terms of this Act, in that
case the HSRO shall be guilty of an offence under this Act.
(14) Failure to appoint an HSRO in accordance with the
provisions of this Act shall constitute an offence against this Act. Any
employer found guilty of this offence shall be subject to a fine (multa)
of not more than fifty thousand euro (€50,000), as determined by the
Authority.
(15) In cases where a worker or any person submitting a report in
writing to the employer in accordance with this article is not satisfied
with the report or recommendations prepared by the employer in
relation to any matter raised by such worker or person, such worker or
person shall be entitled to report the matter to the Authority. The
Authority shall investigate such a matter accordingly and shall
communicate its findings to such worker or person, and the employer
in writing. If it is determined that the employer failed to correctly
address the matters raised by the worker or person in terms of this Act,
in such case the employer shall be guilty of an offence under this Act.
(1)
It shall be the responsibility of each worker to take
care as far as possible of his own health and safety and that of other
persons affected by his acts or omissions at work in accordance with
his training and the instructions given by his employer.
(2)
Workers shall in accordance with their training and the
instructions given by their employer
(a)
make correct use of machinery, apparatus, tools,
dangerous substances, transport equipment and other means of
production;
(b) make correct use of the personal protective
equipment provided to them and, after use, return it to its proper
place;
(c)
refrain from disconnecting, changing or removing
arbitrarily fitted safety devices, including those fitted to
machinery, apparatus, tools, plant and buildings, and use such
safety devices correctly; and
(d)
immediately inform the employer and, or the
workers with specific responsibility for the health and safety of
workers of any work situation they have reasonable grounds for
considering represents a serious and immediate danger to health
and safety and of any shortcomings in the protection
arrangements.
(3)
It shall be the duty for every worker to cooperate with the
employer and with the workers’ health and safety representative or
representatives at work, on all matters relating to health and safety.
(4)
A worker shall not engage in any improper conduct or
behaviour that is likely to endanger his own health and safety at work
or that of any other person.
The statutory provisions applicable to employers shall also
apply to a self-employed person. Particularly a self-employed person
shall assess all risks to the health and safety of all persons, including
his own, arising out of the work to be carried out by the self-employed
person and shall take all appropriate measures according to the general
principles of prevention as established in this Act.
Part IV
Administrative Instruments
(1)
The Chief Executive shall have the power, with the
approval of the Minister to issue administrative instruments, which at
his discretion, are required for the discharge of the Authority’s
functions under this Act and which ensure adequate health and safety
standards at work.
(2)
The content of an administrative instrument may
furthermore reinforce and supplement, in part or in whole any
provision contained within this Act, and may even apply solely to one
particular case or matter
Provided that an administrative instrument may also be
limited to such periods of time as the Chief Executive deems fit.
(3)
Administrative instruments shall be published on the
A u t h o r i t y ’s w e b s i t e a n d m a y b e u s e d a s m e a s u r e s f o r t h e
implementation of any requirement which shall be enforced by or
under the provisions of this Act.
(4)
Administrative instruments shall have the force of law and
be binding in their generality.
(5)
Without prejudice to the generality of the foregoing, an
administrative instrument may be issued to
(a)
determine the qualifications, standards and other
requirements necessary to perform any task relating to the
safeguard of health and safety at work;
(b)
prohibit any work activity or use of any
equipment at work which may place workers at a high level of
risk to health and safety;
(c)
to regulate the mandatory insurance coverage that
employers are required to provide for their workers; and, or
(d)
to specify the minimum accreditations required
for individuals to be deemed competent persons.
PART V
Health and Safety at Work Officers
(1)
The Executive shall appoint officers who shall have
such functions relating to the general implementation of this Act or of
any regulations made thereunder, as well as for performing such work
or assuming such responsibilities as may be prescribed or as may be
assigned to them by the Authority.
HEALTH AND SAFETY AT WORK
(2)
An officer shall be issued with an identification document
signed by the Chief Executive, and such document shall be produced
at the time of any examination, investigation or inspection
Provided that the Chief Executive shall be deemed to be an
officer, and his identification document as an officer shall be signed by
the Chairperson of the Board.
(1)
An officer shall have the following powers
(a)
to enter freely and without previous notice in any
workplace, at any time of day or night;
(b)
to request the assistance of a member of the
Police Force in the execution of his duties;
(c)
to question, alone or in the presence of witnesses,
including the person that put forward the complaint, any
employer or worker, including any person acting on behalf of
any employer or carrying out work for such employer, if such is
the case, on any of the matters falling under this Act or under
any regulations made thereunder;
(d)
to inspect any book, document, design, plan or
list of technical specifications which may provide information
or clarification with regard to health and safety at work at any
particular workplace;
(e)
to 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 or
of any regulations made thereunder;
(f)
to 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 for the purpose of protecting
health and safety at work, and to ensure that such samples are
preserved for use as evidence in any proceedings in accordance
with this Act or of any regulations made thereunder;
(g)
to order that nothing be disturbed at a workplace
for any period which may be reasonably required for the
purpose of any examination, investigation or inspection
referred to in this sub-article;
(h)
to require the operation or the setting in motion of
any equipment, machine, device, article or process, as well as
the operation of any system or procedure which, in the opinion
of the officer, may be relevant to any examination, investigation
or inspection referred to in paragraphs (a) to (e);
(i)
to require any employer to provide at his expense
(i)
a certificate signed by a Perit relating to
the safety of any building or structure, including any
temporary structures;
(ii)
a certificate signed by a mechanical or
electrical engineer regarding the safety of any
mechanical or electrical installation, as the case may be,
including any temporary installation;
(iii) a certificate signed by a medical
practitioner relating to the health at work of any worker
or any class of workers, which shall be presented to a
medical officer of the Authority;
(iv) any information relative to health and
safety at work, including information which refers to
protective measures and any certificates duly signed by
other persons competent in other areas ancillary to health
and safety at work;
(j)
to require any duty holder and, or employer,
agent, manufacturer, importer, supplier, user or other person to
provide at their expense any document, certificate or list of
technical specifications in relation to 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;
(k)
for the purposes of a prosecution for any offence
under this Act or of any regulations made thereunder, or for the
purposes of any appeal to the Tribunal against an order by an
officer, to disclose to the Court or to the Tribunal such results or
information received or collected during the course of the
investigations; and, or
(l)
any other power as is reasonably necessary for the
purpose of safeguarding health and safety at work.
(2)
In the case of reasonable suspicion of an offence under this
Act, a competent Court shall have the power and authority to give its
consent to the entry by an officer in any workplace at all times.
(1)
An officer may give an order, verbally or in writing,
to safeguard health or safety at work, and every person shall observe
such order forthwith until such time as it is revoked by an officer or
until it has been revoked by a competent Court or Tribunal
Provided that the person who receives the order, whether
such person is a worker or an employer, may defend oneself from the
charge of not having observed the order if he proves that compliance
with the order would have been of immediate detriment to health and
safety at work
Provided further that any order given verbally shall be
confirmed and notified in writing, including by electronic mail upon
the person to whom it was given within three (3) working days.
(2)
(a)
An officer may order that a workplace or part of a
workplace be sealed, and such officer may revoke any such order.
(b)
When a workplace or part thereof is sealed, no
person shall enter into a sealed area without an officer’s
permission.
(3)
When an officer makes an order in writing in accordance
with this article, that officer may affix in the workplace, or on any
equipment, machine, device, article or thing, a copy of the said order
and no person except an officer shall remove such copy unless
authorised to do so by an officer.
(4)
When an officer makes an order in writing in accordance
with this article, or issues a report of inspection to an employer or to a
person in charge of the work, the employer or person in charge of the
work shall forthwith cause a copy thereof to be posted in a
conspicuous place at the workplace where it is most likely to attract
the attention of workers.
(5)
An officer shall not be required to afford to an employer,
worker or other person an opportunity for a hearing before giving an
order.
(1)
Officers shall, for the purposes of the Criminal Code,
be deemed to be public officers.
(2)
A person may not threaten, insult, molest or disturb officers
in the performance of their duties, or knowingly give officers false
information, or break or tamper with any seal made, or with any
monitoring equipment installed, put up or left by an officer in a
workplace or, in the case of personal monitoring equipment, on a
worker.
No action, disciplinary or otherwise, or other proceeding for
damages, shall lie or be instituted against the Chief Executive, or
against an officer of the Authority for an act done or omitted to be
done by them in good faith in the execution or intended execution of
any power, right or duty in accordance with this Act or any regulations
made thereunder.
PART VI
The Health and Safety Tribunal
(1)
There shall be an independent and impartial Tribunal
which shall be competent to
(a)
hear appeals brought by any person following
decisions, orders, or administrative instruments issued by the
Authority; and
(b)
hear claims in connection with breaches of an
administrative nature and as a result of which an administrative
penalty can be imposed.
(2)
The Tribunal shall not be subject to the control or direction
of any other person or authority.
(3)
The Tribunal shall be composed of a Chairperson who has at
least five (5) years of experience as a warranted legal professional and
two (2) other members who are warranted professionals in fields
related to health and safety at work with at least five (5) years of
experience.
(4)
The Minister may by order in the Gazette establish panels of
the Tribunal, and may designate the categories of cases that shall be
assigned to each panel and may by subsequent order change, revoke or
substitute such order
Provided that nothing in this article and no changes in the
composition of the Tribunal or in the qualifications of experience
required of its members that may occur from time to time, shall effect
the validity of anything done or still to be done by the Tribunal as
composed when the case was assigned to it, or the continuation of
proceedings before it when such proceedings commenced.
(5)
The Chairperson and the two (2) other members shall be
appointed by the Minister for a period of three (3) years
Provided that the Minister may confirm any appointment
from year to year and may direct that the outgoing Chairperson or
member may continue to sit on the Tribunal in respect of any such
matter that he has already taken cognisance before the termination of
his appointment until such matter is determined.
(6)
The Chairperson shall have the right to administer the oath
and examine witnesses
Provided that a member of the Board and the Executive or
an employee of the Authority may not be appointed as a member of the
Tribunal.
(7)
The names of persons appointed to serve as Chairpersons or
as members of the Tribunal shall be published in the Gazette.
(8)
The Minister shall also appoint a person to act as secretary
of the Tribunal.
Any party to a decision delivered by the Tribunal who feels
aggrieved by a decision of the said Tribunal, may appeal on points of
law to the Court of Appeal by means of an application filed in the
registry of that court within twenty (20) days from the date on which
the decision of the Tribunal was served.
PART VII
Offences and Administrative Penalties
(1)
Every act or omission against this Act, and which
does not constitute a criminal offence, shall be subject to an
administrative penalty.
(2)
Without prejudice to all other powers of the Authority, the
Authority shall impose such administrative penalties or other sanctions
for the breach by any person of any provision of this Act or of an
administrative instrument made under it, as well as for the breach by
any person of European Union legislation which falls to be enforced
by the Authority which may supplemented from time to time by an
administrative instrument
Provided that the administrative penalties shall in all cases
be proportionate to the severity of the respective breach
Provided further that any administrative penalties or other
sanctions imposed may be supplemented from time to time by an
administrative instrument.
(3)
It shall be the discretion of the Authority to impose such
administrative penalties and decide the amount that shall be imposed
Provided that such administrative penalty shall not exceed
twenty thousand euro (€20,000) for each breach of an administrative
nature.
(4)
When the Authority imposes an administrative penalty it shall
cause a notice in writing to be served on the person on whom the
administrative penalty is being imposed
Provided that before imposing an administrative penalty the
Authority may, at its discretion, cause a notice in writing to be served
on any person who committed a breach of an administrative nature
informing such person of the said administrative breach, the remedial
action to be taken, and the time period during which the remedial
action is to be taken.The notice shall also provide that an
administrative penalty shall be imposed when the remedial action is not
undertaken as instructed and, or finalised within the time period
specified.
(5)
Following, the notice as provided for in sub-article (4), the
notified person shall have a period of twenty (20) working days within
which to admit the administrative penalty, including the payment of
any administrative penalty levied, or otherwise appeal such sanction
before the Tribunal as established in accordance with article 23
Provided that if an appeal is not filed, any administrative
penalty imposed shall constitute an executive title for all effects and
purposes of Title VII of Part I of Book Second of the Code of
Organization and Civil Procedure.
(6)
Any appeal from an administrative penalty not exceeding
one thousand five hundred euro (€1,500) shall be filed by means of a
written petition and submissions, and it shall be determined solely by
the Chairperson appointed in accordance with article 23(4).
(1)
Any person who acts in contravention of and, or who
conspires or attempts, or aids, abets, counsels or procures any other
person to contravene the provisions of articles 12, 14, 15, 16 or 45 or
any of the regulations made thereunder shall be guilty of an offence
against this Act.
(2)
Any person who, in relation to any matter under this Act or
any regulations made thereunder
(a)
furnishes any information which that person
knows to be false, or recklessly furnishes any information
which is false;
(b)
with intent to deceive produces, furnishes, sends
or otherwise makes use of any document which is false;
(c)
wilfully refuses or without lawful reason
withholds any material information, proof of which shall be
brought by such person;
(d)
knowingly or recklessly makes any incorrect
statement or entry in any record or return or on any document
kept or furnished under this Act or any regulations made
thereunder;
(e)
unlawfully refuses or fails to answer to the best of
his knowledge any question made to him by an officer in the
exercise of such officer’s functions, or fails to co-operate fully
with an officer in the pursuance of such officer’s duties;
(f)
unlawfully refuses or fails to comply with any
requirement duly provided under this Act or under any
regulations made thereunder; or
(g)
hinders an officer in the performance of such
officer’s duty under this Act or under any regulations made
thereunder,
shall be guilty of an offence against this Act.
(3)
Any person who commits an offence against this Act or any
regulations made thereunder shall, on conviction, be liable to
imprisonment for a term of not more than two (2) years, or to a fine
(multa) of not less than one thousand euro (€1,000) but not exceeding
fifty thousand euro (€50,000) for every offence for which the person
has been found guilty, or to both such fine and imprisonment. On a
second or subsequent conviction such person shall be liable to a fine
(multa) of not less than two thousand euro (€2,000) but not exceeding
fifty thousand euro (€50,000) for every offence for which the person
has been found guilty, or to imprisonment for a term of not less than
one (1) year and not exceeding four (4) years, or to both such fine and
imprisonment. The Court may, at the request of the prosecution, cancel
or suspend all or any permits issued in terms of or in relation to this
Act including by regulations or administrative instruments, or all or
any licences or warrants issued to or in the name of the person found
guilty in connection with the workplace where the offence was
committed
Provided that the following failures shall not be deemed to
constitute an offence against this Act and shall be subject to an
administrative penalty
(a)
failure to make the necessary filings with the
Authority as required in terms of this Act and any regulations
made thereunder;
(b)
failure to keep any form of document, register,
general register, report and list as required in terms of this Act
and any regulations made thereunder;
(c)
the omission of a required entry in a register;
(d)
failure to carry out a suitable, sufficient and
systematic assessment of all health and safety hazards at the
workplace and the resultant risks involved; and
(e)
failure to appoint workers’ health and safety
representative.
(4)
Notwithstanding the provisions of article 370 of the
Criminal Code, the Court of Magistrates as a court of criminal
judicature shall be competent to try all offences against this Act.
(5)
In any proceeding referred to in sub-article (4), it shall be
lawful for the Chief Executive and, or any officer delegated by the said
Chief Executive, to examine or cross-examine witnesses, submit
proof, make submissions in support of the charge and generally
conduct the prosecution on behalf of or together with the Executive
Police
Provided that the sworn statement of the delegated officer
attesting that such officer has been duly delegated for that purpose
shall be conclusive proof of such fact.
(6)
Notwithstanding the provisions of sub-article (5), the Chief
Executive or the duly delegated officer may be produced as witnesses
Provided that if the prosecution produce them as witnesses,
they shall be heard before they commence to act as provided in sub-
article (5) unless the necessity of their testimony arises subsequently.
(7)
Where the Authority nominates any officer to be present
during an inquest in terms of article 546 of the Criminal Code, the
presence or any intervention by such officer during such inquest shall
not prohibit the said officer from future representation during
proceedings or from being summoned as a witness, including in civil
cases pertaining to health and safety at work
Provided that notwithstanding the provisions of the
Criminal Code the Authority shall be given a copy of any investigation
or inquiry, including the procès-verbal of any inquest carried out in
connection with any breach of this Act.
(8)
Notwithstanding the provisions of the Criminal Code, the
Attorney General shall have a right of appeal from any judgement
given by the Courts of Magistrates in respect of proceedings for any
offence against this Act or any regulations made thereunder.
(9)
The punishments provided for in this Act shall apply unless
the fact constitutes a more serious offence under the Criminal Code or
any other law, in which case the provisions of the Criminal Code or
such other law shall apply.
(10) Notwithstanding the provisions of the Criminal Code,
proceedings for an offence against this Act relating to a breach which
is not of an administrative nature may be instituted at any time within
six (6) years from the commission of the offence.
(1)
Notwithstanding any other law providing for the trial
and punishment of offences, where the Authority believes that a
person has committed an offence against this Act, other than in
circumstances involving a fatality or when the breach is administrative
in nature, the Authority may give notice in writing to such person
providing the following information
(a)
a description of the offence that the Authority
believes that such person has committed;
(b)
a list of the steps to be taken by such person to
remedy the offence;
(c)
whether the offence is remediable; and
(d)
a declaration that such person is required to pay a
compromise fine in respect of such offence
Provided that the Authority may not require the payment of
a compromise fine exceeding fifty thousand euro (€50,000).
(2)
Where a notice in accordance with this article has been
given, the person named in the notice may, within sixty (60) days of
the service of the notice, accept responsibility in writing for the
offence specified in the notice and within the same period of sixty (60)
days, remedy the offence if the offence is remediable, and pay or
undertake in writing to pay the fine indicated in the notice or such
other compromise fine as the Authority may accept instead, and in any
such case
(a)
the person named in the notice shall be deemed to
have committed the offence and to have admitted his guilt in
respect thereof, and the compromise fine paid, or agreed to be
paid, shall be the penalty to which he becomes liable to pay;
(b)
in the case of a remediable offence, if the offence
is remedied to the satisfaction of the Authority and the
compromise fine is paid within the period of sixty (60) days, no
further proceedings may be taken against the said person in
respect of the same facts
Provided that the agreement to pay the compromise fine
shall not extinguish any civil liability to make good any damages to
any person or authority
Provided that such person fails to pay the compromise fine
within the sixty (60) day period, such fine shall constitute a penalty
ordered by a court, and proceedings may be taken to recover the same
as a civil debt due to the Authority.
(3)
Where the person to whom notice is given under sub-article
(1) does not accept or, in the case of a remediable offence, having
accepted such responsibility, fails to remedy the offence within the
specified period, even if he has paid the compromise fine, criminal
proceedings may be taken against him in accordance with the
provisions of law applicable to the offence.
(1)
The Authority shall publish, on the Authority’s
website, any administrative penalty that has been imposed by the
Authority against duty holders that have become final for any breaches
of the provisions of this Act, any regulations made thereunder and
administrative instruments or any compromise fine paid in terms of
article 27, for such amount as may be determined from time to time by
regulations issued in terms of this Act. Such information shall remain
accessible on the Authority’s website for such period as determined by
regulations made under this Act.
(2)
The Authority shall publish any case relating to an offence
against this Act or any regulations made thereunder by a duty holder on
the Authority’s website that have been decided against duty holders.
Such publication shall remain accessible on the Authority’s website
until such time that it is removed from the conduct certificate of the said
duty holder.
(3)
Such publications shall include the following information
(a)
information on the type and the nature of the
breach;
(b)
the identity of the duty holder involved;
(c)
the amount of any administrative penalty
imposed;
(d)
a summary of the breach or offences committed;
and
(e)
the Court’s or Tribunal’s decision, as applicable,
and any pertinent detail related to the case.
(4)
The Authority shall update and maintain such publications
in a timely manner, ensuring accuracy and accessibility to the public.
(5)
The Authority shall establish and publish policies and
procedures to further regulate the publication of administrative
penalties and decisions by the Courts.
PART VIII
Administrative provisions
(1)
The Authority shall be empowered to delegate its
duties, functions, powers and responsibilities under this Act and any
regulations made thereunder to other competent authorities as it deems
necessary for the effective implementation and enforcement of health
and safety at work.
(2)
The delegated authority shall provide regular reports,
updates and information to the Authority regarding the implementation
of delegated duties, as may be requested by the Authority from time to
time, at least once every twelve (12) months.
(3)
The delegation of duties by the Authority shall not relieve
the Authority of its overall responsibility for ensuring the protection of
health and safety of all persons at work as directed by this Act and any
regulations made thereunder.
(4)
The Authority shall establish cooperation with any Ministry,
Government department or other organisation, whether local or
overseas, to promote and ensure the health and safety of all persons at
work.
(5)
The Minister may, from time to time, make regulations
prescribing additional procedures, requirements or conditions
governing the delegation of duties provided for in this article.
Subject to the provisions of the Constitution and any other
law applicable to or in connection thereto, including this Act, the
appointment of officers and other employees of the Authority shall be
made by the Chief Executive, and approved by the Authority. The
terms and conditions of employment shall be determined by the Chief
Executive with the approval of the Authority and with the concurrence
of the Minister.
(1)
The Prime Minister may from time to time, at the
request of the Authority, direct that any public officer who has the
necessary competences for the requested position be detailed for duty
with the Authority in such capacity and with effect from such date as
may be specified in the order.
(2)
A direction given in terms of sub-article (1) shall cease to
have effect after one (1) year from the date that the direction is given
Provided that the Prime Minister may specify a different
date of cessation and, or may revoke such direction before its
cessation
Provided further that the direction shall also cease to have
effect if the public officer retires from the public service, or otherwise
cease to hold office at an earlier date.
(1)
Any public officer detailed for duty with the
A u t h or it y in ac c o r d a nc e w i th ar t i c le 3 1 s h a l l be u n d e r t h e
administrative authority and control of the Authority during the time
that such direction is in force but shall for other intents and purposes
remain and be considered and treated as a public officer.
(2)
Without prejudice to the generality of the foregoing, a
public officer detailed for duty
(a)
shall not during the time while such public officer
is so detailed
(i)
be precluded from applying for a transfer
to a department of the Government in accordance with
the terms and conditions of service attached to the
appointment with the Government held by that public
officer at a date on which he was detailed for duty; or
(ii)
be so employed that the remuneration and
conditions of service are less favourable than those
which are attached to the appointment with the
Government held by such public officer at the date he
was detailed for duty or which would have become
attached to such appointment, during the said period, had
such public officer not been detailed for duty with the
Authority; and
(b)
shall be entitled to have the service with the
Authority considered as service with the Government for the
purpose of any pension, gratuity or benefit under the Pensions
Ordinance and the Widows’ and Orphans’ Pension Act, and of
any other right or privilege to which such public officer would
be entitled, and shall be liable to any liability to which he would
be liable, but for the fact that he is detailed for duty with the
Authority.
(3)
Where an application is made as provided in terms of sub-
article (2)(a)(i), the same consideration shall be given thereto as if the
public officer had not been detailed for duty with the Authority.
(4)
The Authority shall pay to the Government such
contributions as may from time to time be determined by the Minister
responsible for finance in respect of the cost of pensions and gratuities
earned by a public officer detailed for duty with the Authority during
the period in which such public officer is so detailed.
(1)
The Authority may, with the approval of the Prime
Minister, offer to any public officer detailed for duty with the
Authority in terms of article 31 permanent employment with the
Authority at a remuneration and on terms and conditions not less
favourable than those enjoyed by such public officer at the date of
such offer.
(2)
The terms and conditions comprised in any offer in terms of
sub-article (1) shall not be deemed to be less favourable merely
because they are not in all respects identical with or superior to those
enjoyed by the public officer concerned at the date of such offer, if
such terms and conditions taken as a whole, in the opinion of the Prime
Minister, offer substantially equivalent or greater benefits.
(3)
Every public officer who accepts an offer of permanent
employment with the Authority shall, for all purposes other than those
of the Pensions Ordinance and of the Widows’ and Orphans’ Pensions
Act, be deemed to have ceased to be in service with the Government
and to have entered into service with the Authority on the date of such
acceptance, and for the purposes of the Pensions Ordinance and of the
Widows’ and Orphans’ Pensions Act, so far as applicable to such
public officer, service with the Authority shall be deemed to be service
with the Government within the meanings thereof respectively.
(4)
Every such public officer who, immediately before
accepting permanent employment with the Authority, was entitled to
benefit under the Widows’ and Orphans’ Pensions Act, shall continue
to be so entitled to benefit as if service with the Authority were service
with the Government.
(5)
The Authority shall pay to the Government such
contributions as may from time to time be determined by the Minister
responsible for finance in respect of the cost of pensions and gratuities
earned by a public officer who has accepted permanent employment
with the Authority during the period commencing on the date of such
acceptance by the public officer.
(6)
(a)
For the purposes of this article, the posts and salary
grades with the Authority shall be classified in the most nearly
corresponding grades and incremental levels in the service of the
Government by reference to job description, skills, responsibilities and
other analogous factors.
(b)
The classification referred to in paragraph (a) shall be
carried out by a Board composed of a Chairperson appointed by the
Minister responsible for finance and two (2) other members, one (1) of
whom appointed by the Ministry responsible centrally for personnel
policies in the public service and the other appointed by the Authority.
The classification shall be subject to the final approval of the Minister
responsible for finance.
(c)
Such classification shall take place within three (3) months
of any adjustment of salaries of employees in the Government service
and, or of employees of the Authority.
(d)
No post shall be classified in a grade higher than that of
grade three (3) in the service of the Government or such other grade
that the Minister responsible for finance may from time to time by
notice in the Gazette determine.
(e)
Without prejudice to the provisions of article 113 of the
Constitution no person may, following a classification as provided for
in this article, be entitled to rights under the Pensions Ordinance less
favourable than those to which such person would have been entitled
prior to such classification.
PART IX
Financial Provisions
(1)
Without prejudice to the provisions of this article, the
Authority shall so conduct its affairs that the expenditure required for
the proper performance of its functions shall, as far as practicable, be
meted out of its revenue.
(2)
For such purpose the Authority shall levy all fees, rates and
other payments prescribed or deemed to be prescribed by or under this
Act or any other law related to the powers and functions of the
Authority.
(3)
The Authority shall also be paid by Government out of the
Consolidated Fund such sums as Parliament may from time to time
authorise to be appropriated to cover the costs of specified works to be
continued or otherwise carried out by the Authority, being works of
infrastructure or a similar capital nature.
(4)
Any excess of revenue over expenditure shall, subject to
such directives as the Minister, after consultation with the Minister
responsible for finance, may from time to time give, be applied by the
Authority to the formation of reserve funds to be used for the purposes
of the Authority, and without prejudice to the generality of the powers
given to the Minister by this sub-article, any direction given by the
Minister as aforesaid may order the transfer to the Government, or the
application in such manner as may be specified in the direction, of any
part of the fees, rates and other payments levied in accordance with
sub-article (2) or any such excess as aforesaid.
(5)
Any funds of the Authority not immediately required to
mete expenditure may be invested in such manner as may from time to
time be approved by the Minister.
(1)
For the purposes of carrying out any of its functions
under this Act, the Authority may, with the approval in writing of the
Minister responsible for finance, borrow or raise money in such
manner, from such person, body or authority, under such terms and
conditions as the Minister, after consultation as aforesaid, may in
writing approve.
(2)
The Authority may also from time to time borrow, by way of
overdraft or otherwise, such sums as it may require for carrying out its
functions in accordance with this Act
Provided that for any amount in excess of one hundred and
sixteen thousand and four hundred and sixty-eight euro and sixty
seven cents (€116,468.67), there shall be required the approval of the
Minister in writing.
The Minister responsible for finance may, after consultation
with the Minister, make advances to the Authority of such sums as the
Minister responsible for finance may agree to be required by the
Authority for carrying out any of its functions under this Act, and may
make such advances on such terms and conditions as the Minister
responsible for finance may, after consultation as aforesaid, deem
appropriate. Any such advance may be made by the Minister
responsible for finance out of the Consolidated Fund, and without
further appropriation other than this Act, by warrant, authorising the
Accountant General to make such advance.
(1)
The Minister responsible for finance may, for any
requirements of the Authority of a capital nature, contract or raise
money, or incur liabilities, for such periods and on such terms and
conditions as the Minister responsible for finance may deem
appropriate, and any sums due in respect of or in connection with any
such loan or liability shall be a charge on the Consolidated Fund.
(2)
Notice of any loan, liability or advance made or incurred
under the provisions of sub-article (1) shall be given by the Minister to
the House of Representatives as soon as practicable.
(3)
Pending the raising of any loan as mentioned in sub-article
(1), or for the purpose of providing the Authority with working capital,
the Minister responsible for finance may authorise the Accountant
General to make advances to the Authority out of the Treasury
Clearance Fund under such terms as may be specified by the Minister
upon the making thereof.
(4)
The proceeds of any loan raised for the purposes of making
advances to the Authority, and any other moneys to be advanced to the
Authority under this article, shall be paid into a fund specially
established for the purpose and which shall be known as the
"Occupational Health and Safety Authority Loan Fund".
(5)
Sums received by the Accountant General from the
Authority in respect of advances made to the Authority under sub-
article (3) shall be paid, as respects of amounts received by way of
repayment into the Treasury Clearance Fund and, as respects of
amount received by way of interest into the Consolidated Fund.
(1)
The Chief Executive shall cause to be prepared in
every financial year, and shall not later than eight (8) weeks before the
end of each financial year adopt, estimates of the income and
expenditure of the Authority for the following financial year
Provided that the estimates of the Authority for the first (1)
financial year of the Authority shall be prepared and adopted within
such time as the Minister may by notice in writing to the Authority
specify.
(2)
In the preparation of such estimates the Chief Executive
shall take account of any funds and other monies that may be due to be
paid to the Authority out of the Consolidated Fund during the relevant
financial year, whether by virtue of this Act or an appropriation Act or
of any other law, and the Authority shall so prepare the said estimates
as to ensure that the total revenues of the Authority are at least
sufficient to mete all sums duly chargeable to its revenue account
including, but without prejudice to the generality thereof, depreciation.
(3)
The estimates shall be made in such forms and shall contain
such information and such comparisons with previous estimates as the
Minister may direct.
(4)
A copy of the estimates shall, upon their adoption by the
Authority, be sent forthwith by the Chief Executive to the Minister and
to the Minister responsible for finance.
(5)
The Minister shall, at the earliest opportunity and not later
than six (6) weeks after the Minister has received a copy of the
e s t i m a t e s o f t h e A u t h o r i t y o r, i f a t a n y t i m e t h e H o u s e o f
Representatives is not in session, within six (6) weeks from the
beginning of the next following session, cause such estimates to be
laid before the House of Representatives together with a motion that
the House approves the said estimates. Not more than one sitting shall
be allotted for the debate in the House of Representatives on such
motion and both the motion and the approval of the estimates by the
House of Representatives may be with or without amendment to the
estimates.
(1)
No expenditure shall be made or incurred by the
Authority unless it has been approved by the House of Representatives
as provided in article 38.
(2)
Notwithstanding the provisions of sub-article (1)
(a)
until the expiration of six (6) months from the
beginning of a financial year, or until the approval of the
estimates for such year by the House of Representatives,
whichever is the earlier date, the Authority may make or incur
expenditure for carrying out its functions in accordance with
this Act not exceeding in the aggregate one half of the amount
approved for the preceding financial year;
(b)
expenditure approved in respect of a head or sub-
head of the estimates may, with the approval of the Minister, be
incurred in respect of another head or sub-head of the estimates;
(c)
in respect of the first (1) financial year, the
Authority may make or incur expenditure until the approval of
the estimates for such year by the House of Representatives not
exceeding in the aggregate such amounts as the Minister
responsible for finance may, after consultation with the
Minister, allow;
(d)
if in respect of any financial year it is found that
the amount approved by the House of Representatives is not
sufficient, or if a need has arisen for expenditure for a purpose
not provided for in the estimates, the Authority may adopt
supplementary estimates for approval by the House of
Representatives and, pending such approval, the Authority may
in special circumstances and with the approval of the Minister,
incur the relative expenditure or part thereof as the said
Minister may so approve, and in any such case the provisions of
this Act applicable to the estimates shall, as soon as practicable,
apply to the supplementary estimates.
All estimates and supplementary estimates approved by the
House of Representatives shall, as soon as practicable, be published in
the Gazette.
(1)
The Authority shall cause to be duly kept books of
account and other records in respect of the Authority’s operations and
shall cause to be prepared a statement of accounts in respect of each
financial year.
(2)
The accounts of the Authority shall be audited by an auditor
to be appointed by it and approved by the Minister
Provided that the Minister responsible for finance may
require the books and other records of the Authority to be audited or
examined by the Auditor General who shall for this purpose have the
power to carry out such physical verifications and other verification,
and may require such information, as the Auditor General may deem
necessary.
(3)
After the end of each financial year, at the same time as a
copy of the estimates of the Authority is forwarded to the Minister in
accordance with article 38(4), the Authority shall cause a copy of the
statement of accounts duly audited to be transmitted to the Minister
and to the Minister responsible for finance together with a copy of any
report made by the auditor on such statement or on the accounts of the
Authority.
(4)
The Minister shall cause a copy of every such statement and
report to be laid on the Table of the House of Representatives together
with the motion tabled before the House of Representatives under
article 38(5).
(1)
All moneys of the Authority shall be paid into a bank
appointed as bankers by the Authority by a resolution of the Authority.
Such moneys shall, as far as practicable, be paid into the banks from
day to day, except for such sum as the Authority may require to retain
to mete petty disbursements and immediate payments.
(2)
All payments out of the funds of the Authority, except petty
disbursements not exceeding such sum as may be fixed by the
Authority, shall be made by such officer of the Authority as shall be
appointed or designated for the purpose.
(3)
Cheques against and withdrawals from any bank account of
the Authority shall be signed by such officer of the Authority as may
be appointed or designated by the Authority for that purpose and shall
be countersigned by the Chief Executive, or such other member or
officer of the Authority as may be authorised by the Authority for such
purpose.
(4)
The Authority shall also make provision with respect to
(a)
the manner in which and the officer by whom
payments are to be authorised or approved;
(b)
the title of any account held with the bank into
which the monies of the Authority are to be paid, and the
transfer of funds from one account into another;
(c)
the method to be adopted in making payments out
of the funds of the Authority; and
(d)
generally with respect to any matter which is
relevant to the proper keeping and control of the accounts,
books and other records and the control of the finances of the
Authority.
The Authority shall follow the Public Procurement
Regulations when entering into any contract for the supply of goods or
materials or for the execution of work or for the rendering of services,
to or for the benefit of the Authority.
The Authority shall, not later than six (6) weeks after the
end of each financial year, make and transmit to the Minister and to the
Minister responsible for finance, a report dealing generally with the
activities of the Authority during such financial year and containing
such information relating to the proceedings and policy of the
Authority as either of the said Ministers may from time to time
require. The Minister shall cause a copy of every such report to be laid
on the Table of the House together with the estimates as provided for
in article 38(5).
PART X
Miscellaneous
(1)
The Minister may make regulations for safeguarding
health and safety at work, for determining the precautions to be taken
for this purpose and generally for the purpose of carrying into
operation any of the provisions of this Act, and in particular, but
without prejudice to the generality of the foregoing, the Minister may
make regulations
(a)
prescribing anything that is required or authorised
by this Act to be prescribed;
(b)
concerning the testing, examination and the
certificates or seals of approval of any equipment, machinery,
device, article or thing used or intended to be used in a
HEALTH AND SAFETY AT WORK
workplace;
(c)
on the importation, presence, use, handling of, or
exposure to any chemical, biological or physical agent, or a
combination thereof, which may be used at the workplace;
(d)
on the methods, standards or procedures for
determining the amount, concentration or level of any physical,
chemical or biological agent in a workplace;
(e)
concerning the protection of workers from the
risks related to exposure to chemical, physical and biological
agents at the workplace;
(f)
on the notification, reporting and investigation of
deaths, diseases, injuries or other accidents or incidents
involving health and safety in a workplace;
(g)
on the hours a worker may be required to work;
(h)
relating to the safety of any equipment,
machinery, device, material, chemicals, process, article or thing
whatsoever used or intended to be used in a workplace;
(i)
relating to the right of a worker to refuse to work
or to do a particular work, the circumstances in which, and the
conditions under which the said right is exercisable;
(j)
prescribing or altering the procedure to be used
for an appeal to be made to the Tribunal and to regulate the
procedure to be used by the Tribunal;
(k)
regulating the assignment and delegation of duties
in accordance with the Act by an employer to any person, when
the employer is a body corporate. The said regulations shall
determine the responsibilities of such person being delegated or
assigned such duties in accordance with the Act. Such
regulations shall furthermore be drafted and interpreted
consistently with the terms of European Union legislation
regulating health and safety at work;
(l)
on any other matter related to health and safety at
work; and, or
(m) determine the qualifications, standards and other
requirements necessary to perform any task relating to the
safeguard of health and safety at work.
(2)
Without prejudice to any matter aforesaid, regulations made
by virtue of this article may also
(a)
distinguish between different classes of work
places, different classes of work and between different classes
of workers, and may also make other distinctions as may be
deemed appropriate;
(b)
prohibit, regulate, restrict, limit or control any
matter in respect of which regulations may be made; and
(c)
empower the Authority to require a licence,
certificate or other requirements in respect of any matter for
which regulations may be made and to levy fees or other
charges in respect thereof, or in respect of any service provided
by the Authority.