13 November 2019

Employment relationship within Religious Entities: an introduction to workplace safety

In this document, we want to give an initial introduction to one of the most recent, as well as one of the most important, regulations for entities with employees: workplace safety.

This topic is a vast one (just within the specific area of Religious Entities, there are different safety risks that exist within the kitchen, during the restocking of a pantry, or even during the restructuring of buildings) and a landmark reform was introduced in 2008: with this reform, workplace safety became a way of conducting business rather than simply a set of rules to follow.

While it may seem to be a law of little application for some, it is advisable to become familiar with some concepts and guidelines. In fact, the consequences for failing to meeting workplace safety standards can be quite heavy in certain respects, and even for individual incidents, can result in huge asset losses and liability on the defaulting entity and its representatives.

Even within the Italian Constitution, we can find the first workplace safety guideline. Article 41 establishes that “economic initiative is free. It cannot be carried out in contrast to the social good or in a manner that causes damage to safety, to freedom, to human dignity”.

Therefore everyone, even RE (Religious Entities), must conform to these principles, codified as well in the Civil Code, in which Article 2081 states “in carrying out the business activity, the entrepreneur is required to adopt such measures – keeping in mind the specific type of work, the experience and techniques used – as are necessary to protect the physical and moral integrity of the workers”.

Religious Entity (RE) workers who are comparable to employees of commercial enterprises

As noted, the rules that we have just seen make an explicit reference to “company” and “entrepreneur”.

This is because it is in the commercial setting that the most dangerous work is carried out and therefore a stricter approach is required for these types of employers.

As it often happens for Religious Entities, we must distinguish between workers who can be viewed as comparable to employees of a commercial enterprise (such as in the case of Religious Entities that also have activities such as hotels, restaurants, etc.) from those which are true domestic workers.

This distinction is fundamental: in fact, for workers that are comparable to employees of commercial enterprises, Legislative Degree n. 81/2008 applies. This decree has been, as stated initially, a truly comprehensive reform that substituted the previous legislation. In particular, workplace safety has changed from being a series of obligations, which were more or less “static”, to a real, on-going activity with the aim of continuously improving workplaces.

The main general measures to safeguard workers (Art. 15 Legislative Decree 81/2008)

Such level of engagement requested of the employer can also be found in the measures and general requirements for safety as established in Legislative Decree n. 81/2008, which are:

  • the Risk Assessment Document [Documento di Valutazione dei Rischi (DVR)], a fundamental requirement that will be explained soon;
  • a prevention plan (for example, periodic visits by health inspectors to confirm the suitable placement of workers in their specific tasks);
  • risk reduction at the source (such as replacing machinery with a safer model so that it is safer for the employee);
  • risk elimination (such as installing anti-slip floor mats on the stairs) and residual risk management (which refers to the risks that cannot be fully eliminated regardless of the measures taken);
  • information and training for workers (all workers must have regard for their own health and must be trained on this matter);
  • signs and safety warnings (there is a full and complete list of symbols attached to Legislative Decree 81/2008 to be applied in specific situations);
  • safety devices (such as safety helmets or oven mitts);
  • programmed maintenance (for machinery or structures that must respect specific sector requirements).

Therefore, as we have seen, workplace safety is a fundamental aspect of managing a business; it is not sufficient to draw up documents and place them in a drawer, rather, they must be continuously updated.

Obligations for Religious Entities: the Risk Assessment Document and on-going monitoring of the workplace

Given that Religious Entities can also be true employers, comparable to those which run commercial enterprises, a very important requirement for workplace safety should be highlighted: the creation of a Risk Assessment Document (RAD).

The failure to create a RAD is punishable by severe penalties for the employer.

Within this document, all the different risks that could threaten the health or safety of the worker must be specifically identified.

In particular, this document must contain:

  • an assessment report of all the risks to health and safety during work activities, in which the specific criteria adopted for determining how these risks are assessed shall be included;
  • an indication of implemented preventive and protective measures and individual safety devices that have been adopted;
  • the action plan developed to ensure that the level of workplace safety will improve over time;
  • a description of the procedures to be taken in order to implement the measures, including as well which roles within the organization are to be responsible for carrying them out, assigning them to persons who are in possession of the required skills and capabilities;
  • the name of the person nominated as Head of prevention and protection services (HPPS) [responsabile del servizio di prevenzione e protezione (RSPP)], the name of the workers’ security representative or territorial representative and the name of the doctor who participated in the risk assessment;
  • the identification of tasks that may expose workers to specific risks and that require recognized professional skills, specific experience, adequate education and training.

As can be seen, the RAD is not a simple “photograph” of the situation within the workplace, but is a proper plan of action in which the RE can safeguard the health of its employees.

An example will clarify that, behind the technical wording, it is possible to conceal a requirement that would otherwise be easily understood.

Imagine a situation where an employee works in a specific room. A light fixture with three light bulbs illuminates this room and this light fixture is more than sufficient to illuminate the room.

One day however, one of the light bulbs goes out, and the light is dimmed to a point that it is below the required level as per the legislated requirement (for ordinary offices, the room should be illuminated by at least 500 lux – the unit of measure of light per square meter).

With the RAD, the employer should have anticipated what procedure is to be followed to restore the level of ordinary light.

Thus, for example, it should have foreseen (1) the obligation on the part of the worker to report the malfunction or the obligation on the part of the Head of Prevention and Protection Services to regularly check the workplace to verify the state of illumination, thereby (2) triggering on the part of the HPPS a request for a new light bulb and (3) the resolution of the problem following its installation.

Therefore, the employer does not have a simple “static” obligation, but, in case of checks by the public authority, the employer must demonstrate that after the creation of the RAD it has in fact put the measures described in place, and in particular, that it has monitored the workplace conditions.

Appointing the Head of Prevention and Protection Services

Another fundamental obligation on Religious Entities towards their workers, who are similar to those of commercial businesses, is the appointment of a Head of Prevention and Protection Services.

This figure is the “boss” of workplace safety. In fact, the role of the HPPS can also held by the actual employer, such as in small business settings that do not pose any particular risks.

In this case, for example, instead of nominating a Head of Prevention and Protection services, the Religious Entity can have this role fulfilled by the legal representative, by the bursar (treasurer) or secretary or by another key figure within the organization who can carry out this role, with the obligation to complete a training course (with a minimum duration) and to update their training periodically.

Domestic workers – sector regulations and the obligation on risk information

As in other legislative areas, in the case of domestic work a series of obligations – that would be otherwise too burdensome and excessive to place upon an employer of domestic workers – do not apply.

In fact, the Consolidated Law itself excludes its application for domestic workers.

With this in mind, it should be mentioned that, while in a less incisive manner, legislation on workplace safety does exist also for domestic workers employed by Religious Entities.

In particular, with law n. 339/1958 it was established that an employer must “provide the worker, in cases where room and board is provided, with an environment that respects the physical and moral wellbeing of the worker…” (Art. 6).

This legislation, referencing situations in which there is a live-in aspect with the employee, seems to suggest that it excludes situations in which there is no room or board included. However, in reality this is not the case: legislation from 60 years ago has been integrated, for example, by National Collective Labour Agreements (Contratti Collettivi Nazionali del Lavoro or “CCNL”), as well as by court decisions.

For domestic workers, there is currently the National Collective Agreement for Domestic Work, which, while in very basic terms, does specifically address the topic of workplace safety.

In particular, in article 27 of the CCNL, it is established that “every worker has the right to a secure and healthy workplace, based on the provisions of the current legislation, relative to the domestic environment. To this end, the employer will be required to guarantee the presence of an electrical panel with a circuit breaker, a safety cut-out switch”.

Therefore, the collective bargaining has implemented, at least, minimal security measures to apply to this group of workers as well, as shown by the installation of a safety device as a mandatory element for household safety.

Moreover, “the employer must inform the worker of any potential risks that exist within the work environment related to the use of any appliances and the presence of any particular chemical, physical or biological material” (always within Art. 27 CCNL). As noted, while this article doesn’t require a RAD to be drafted, it does require that the employee be made aware of the presence of risks that could be present during the working hours. These could include, for example, aggressive detergents, the movement of objects, such as shaking out heavy blankets, and also the possibility of sick family members, with the consequential risk of the worker catching that illness.

Therefore, this obligation to inform is imposed on the employer, who will inform the employee “when identifying the duties or changing them, by giving him/her the specific document created by the bilateral sector Entity – Ebincolf” [in the case where such a document is not available, as much information as possible must be provided to the employee].

As we have seen, there are specific obligations for employers also in case of domestic workers. Since this is a category of workers that is often employed by Religious Entities, it is necessary from time to time, to verify the requirements to implement in order to be in line with the legislation and protect the workers.

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