Contribution prepared by attorney Niccolò Medica and doctor Niccolò Ballerini, published in N&T Plus Diritto – Il Sole 24ORE.
Law No. 215 of December 17, 2021, converting Decree-Law No. 146/2021, amended Articles 18 and 19 of Legislative Decree No. 81/2008, assigning to the supervisor an increasingly relevant role in the company’s occupational health and safety management system.
Within Article 18 of Legislative Decree No. 81/2008, concerning “Obligations of the Employer and the Manager”, a new provision has been inserted at paragraph 1, letter b-bis), which imposes on the employer and managers the obligation to “identify the supervisor or supervisors for carrying out the surveillance activities referred to in Article 19. Collective labor contracts and agreements may establish the remuneration due to the supervisor for performing the activities mentioned in the preceding paragraph. The supervisor may not suffer any prejudice as a result of performing his or her duties“.
Article 26 of Legislative Decree No. 81/2008 has also been amended, which, at paragraph 8-bis), provides, also for activities carried out under contract or subcontract arrangements, the obligation on contractor and subcontractor employers to identify and expressly indicate to the client the personnel identified by them in order to perform the functions of supervisor.
The importance of such designation obligations is underscored by the provision of Article 55, paragraph 5, letter d), of Legislative Decree No. 81/2008, which provides for imprisonment from two to four months or a fine from 1,500 to 6,000 euros for violations of Article 18, paragraph 1, letter b-bis), that is, in cases where the employer or manager has not identified the figure of the supervisor.
The same penalty is also provided in case of violation of Article 26, paragraph 8-bis), of Legislative Decree No. 81/2008, that is, when contractor or subcontractor employers have not indicated to the client employer the personnel performing the role of supervisor.
Law No. 215/2021 has introduced some important innovations also in relation to the duties imposed on the supervisor.
Article 19, paragraph 1, letter a), of Legislative Decree No. 81/2008 has been amended to provide that the supervisor must “oversee and ensure compliance by individual workers with their legal obligations, as well as with company provisions on occupational health and safety and the use of collective protection equipment and personal protective devices made available to them“.
Furthermore, should the supervisor identify behaviors not in compliance with the provisions and instructions issued by the employer and managers for the purposes of collective and individual protection, he or she has the duty to intervene to “modify the non-compliant behavior by providing the necessary safety instructions“. In the event that the instructions provided by the supervisor are not implemented, thus persisting in the non-compliance identified, the supervisor has the obligation to interrupt the worker’s activity and inform direct superiors.
Finally, letter f-bis) introduced at paragraph 1 of Article 19 of Legislative Decree No. 81/2008 provides for the obligation of the supervisor to have the activity temporarily interrupted and, in any case, to promptly report to the employer and manager any non-conformities identified should he or she identify “deficiencies in work equipment and machinery and any hazardous condition identified during surveillance“.
