Worker consultation and participation

Content of the right and participatory bodies

Article 33 of Law 31/1995 lists the matters subject to mandatory consultation: the planning and organization of work within the company and the introduction of new technologies with regard to their consequences for safety and health; the organization and development of protection and prevention activities, including the designation of responsible workers or the use of an external prevention service; the designation of workers responsible for emergency measures; information and documentation procedures; the planning and organization of training; and any other action with substantial effects on safety and health. In companies with workers’ representatives, the consultation is carried out with them; in those without, it is carried out directly with the workers.

Worker safety representatives (Articles 35 to 37) are workers’ representatives with specific functions in prevention, appointed by and from among the staff representatives in a number proportional to the workforce (from one in companies with up to 49 employees with a staff representative, to eight in those with more than 4,000). They have the authority to collaborate with management, promote worker cooperation, conduct prior consultation, monitor and control compliance, and accompany technicians during assessments and the Labor Inspectorate during visits, access preventive information and documentation, be informed of any damages incurred, visit workplaces, request the adoption of measures, and propose to the representative body the cessation of activities in the event of a serious and imminent risk . They have access to time off for work, training provided by the company, and guarantees of confidentiality and protection against retaliation.

The health and safety committee (articles 38 and 39) is a joint, collegiate body for participation, intended for regular and periodic consultation on the company’s prevention measures. It is mandatory in companies or centers with fifty or more employees and is composed of the worker safety representatives and an equal number of employer representatives. It meets at least quarterly. The committee participates in the development, implementation, and evaluation of prevention plans and programs, promotes initiatives, and is informed about the current state of prevention, the damages incurred, and the annual report and program of the prevention service.

Participation in preventive practice

• Risk assessment. Consultation on the procedure and participation of exposed persons in the identification of hazards and in the assessment of the actual working conditions.
• Planning. Participation in prioritizing measures, deadlines, and monitoring their implementation.
• Changes. Prior consultation regarding new technologies, equipment, processes, reorganizations, and relocations.
• Emergencies. Consultation on the designation of emergency teams and participation in drills and review of plans.
• Training and information. Consultation on the training project, the content and the information procedures.
• Damage investigation. Information to accident and illness worker safety representatives and participation in their analysis.
• Psychosocial and ergonomic risks. Participation in the assessment through questionnaires, discussion groups and proposals for organizational measures.
• Management systems. ISO 45001 requires consultation and participation of non-managerial workers in the design, implementation and improvement of the system.

Guarantees and associated obligations

• Advance notice. The consultation must be prior to the decision, with sufficient time and documentation to issue a report within fifteen days (article 36.3).
• Information. Worker safety representatives have access to the preventive documentation of article 23 and the information of articles 18 and 22, within the limits of confidentiality of health data.
• Resources. Time off, company-provided training, resources and time for the performance of their duties.
• Professional secrecy. Worker safety representatives maintain confidentiality regarding the confidential information they access.
• Protection. Guarantees for staff representatives against sanctions and reprisals.
• Direct consultation. In the absence of representatives, the consultation is carried out directly with the staff, and the absence of representation does not exempt from the obligation.
• Infringements. Failure to comply with the obligations of consultation and participation constitutes a serious infringement under the Law on Infringements and Sanctions in the Social Order.

Organizational application: how to ensure consultation and participation

1. Identify the existing representation (staff delegates, works council, worker safety representatives) and, where appropriate, establish the health and safety committee with its operating regulations.
2. Define a consultation procedure that identifies the subjects, deadlines, documentation to be submitted, and the record of consultations and reports issued.
3. Integrate consultation into processes: risk assessment, planning, changes, emergencies, training and information, with consultation points prior to each decision.
4. Provide worker safety representatives with training, time off, documentation and access to workplaces and assessments.
5. Hold committee meetings with the legally required frequency, with an agenda, minutes and follow-up on agreements.
6. Enable channels for direct employee participation (risk communication, proposals, surveys) and respond to contributions.
7. Evaluate the functioning of the consultation and participation in the review of the management system and correct any deficiencies.

Preventive management software allows you to record the consultations carried out, the reports of the worker safety representatives, the minutes and agreements of the safety and health committee and the communications of the staff, and link them with the risk assessment and planning with traceability.

Limits and common mistakes

1. Consulting after having made the decision or without sufficient documentation or time, which empties the right of content.
2. Failure to establish the safety and health committee when required, or failure to meet with the legally required frequency.
3. Denying worker safety representatives access to preventive documentation or to visits and assessments.
4. Confusing information with consultation: informing does not replace consulting.
5. Failure to respond to the proposals and risk communications of the staff.
6. Omitting direct consultation with workers in companies without representation.

The detailed legal framework is set out in Chapter V of Law 31/1995 and in the regulations on worker representation; this document is for informational purposes only.

Regulatory and reference framework

• Law 31/1995, of November 8. Law on Prevention of Occupational Risks; Chapter V, consultation and participation of workers (articles 33 to 40).
• Directive 89/391/EEC . Framework Directive on safety and health at work; consultation and participation of workers (Article 11).
• Royal Decree 39/1997, of January 17. Regulation of Prevention Services; consultation on the evaluation, planning and preventive organization.
• Royal Legislative Decree 2/2015, of October 23. Workers ‘ Statute; workers’ representation and guarantees.
• Royal Legislative Decree 5/2000, of August 4. Law on Infringements and Sanctions in the Social Order; infringements in matters of consultation and participation.
• INSST. List of Technical Prevention Notes on consultation, training and information . Technical prevention notes on consultation and participation.
• ISO 45001:2018 . Requirements for consultation and participation of workers in occupational health and safety management systems.

Collective agreements can expand the powers and resources of worker safety representatives and create sectoral or territorial participation bodies.