Worker safety representative

What is a worker safety representative?

Law 31/1995 recognizes the right of workers to participate in matters related to risk prevention within the company and channels this right, in companies with employee representation, through worker safety representatives. They are, therefore, a representative, not a technical, figure: they do not replace the prevention service or the designated workers, although they collaborate closely with them and have access to the company’s prevention information and documentation.

The appointment is made by the staff representatives, who elect the delegates from among their own members. In companies with up to 30 employees, the staff representative is the health and safety delegate; in companies with 31 to 49 employees, the staff representative elects the delegate from among the other representatives. For companies with 50 or more employees, the scale in Article 35.2 establishes two delegates for companies with up to 100 employees, three for companies with up to 500, four for companies with up to 1,000, five for companies with up to 2,000, six for companies with up to 3,000, seven for companies with up to 4,000, and eight for companies with more than 4,001. Collective bargaining agreements may establish other appointment systems and create specific bodies for these delegates.

Worker safety representatives, together with company representatives, form the health and safety committee in centers with 50 or more workers, and also retain their own powers which they exercise individually or jointly.

Powers and responsibilities

• Responsibilities (Article 36.1). Collaborate with management in improving preventive action; promote and encourage worker cooperation in the implementation of regulations; be consulted in advance on decisions in Article 33 (organization of work, new technologies, preventive organization, training, among others); and carry out monitoring and control over compliance with regulations.
• Powers (Article 36.2). To accompany the technicians in the evaluations and the Labor Inspectorate in its visits; to have access to the information and documentation relating to the working conditions, with the limitations of Article 22.4 on health data; to be informed of the damage caused to the health of the workers and of the protection and prevention activities; to carry out visits to the workplaces; to request the adoption of measures; and to propose to the representative body the stoppage of activities in case of serious and imminent risk (Article 21.3).
• Prior consultation. The reports that the delegates must issue as a result of the consultation are prepared within fifteen days or within the necessary time in the face of imminent risks; if the company decides not to adopt the proposed measures, it must justify this decision.
• Guarantees (Article 37). They have the guarantees of Article 68 of the Workers’ Statute; the time spent at committee meetings, accompaniment and visits for health damages is considered effective working time and is not charged to the time credit; the company must provide them with the necessary means and training, the time of which is also considered working time.
• Professional secrecy. They are subject to the duty of secrecy regarding the information they access by reason of their position (Article 65.2 of the Workers’ Statute).

Relationship with other preventive figures

• Designated worker. Person appointed by the employer to handle preventive activities; this is a technical role, not a representative one.
• Prevention service. It advises the employer and the representatives; the delegates have the right to know its annual report and program and its reports.
• Health and Safety Committee. Joint body of which they are a part; the individual powers of the delegates remain within it.
• Preventive resource . Required presence in certain activities; it may fall to designated workers or the prevention service, it is not a function of the delegates.
• Union delegate. Represents the union section; may attend the committee with voice but without vote, but is not a worker safety representative unless appointed as such.

Organizational application: how to integrate delegates

1. Document the designation (minutes of the staff representatives) and communicate it to the staff, the prevention service and the health and safety committee.
2. Provide the necessary preventive training, with content adapted to the risks of the company and repeated when conditions change.
3. Establish a prior consultation procedure with deadlines, registration of the consultation, the report received and the company’s reasoned response.
4. Provide access to risk assessment, preventive planning, control results and accident investigations, respecting the confidentiality of health data.
5. Plan the accompaniment in evaluations, inspections and visits, and record the proposals of the delegates with the decision adopted.
6. Summon the delegates involved in the investigation of accidents and incidents and inform them of any health damages immediately.
7. Recognize the time spent on preventive functions as working time and provide the necessary resources (space, documentation, access to the management system).

A digital preventive management system allows for the registration of inquiries, proposals, and responses, provides delegates with read-only access to the documentation that the law recognizes for them, and maintains traceability of participation.

Limits and common mistakes

1. Not appointing delegates when there is staff representation, or appointing them without the required training and resources.
2. Consulting after deciding, or not responding in a reasoned way to the proposals, which empties the prior consultation of content.
3. Denying or delaying access to preventive documentation, or confusing professional secrecy with the denial of information.
4. To include in the time credit the time spent in committee meetings or accompanying persons, which the law considers as effective working time.
5. Attributing to the delegates technical or execution responsibilities that correspond to the employer and the preventive organization.
6. Treating the figure as a formal procedure instead of as a channel for improving the preventive system.

Failure to comply with the rights to information, consultation and participation is a serious offense under Article 12.11 of the Law on Infringements and Sanctions in the Social Order.

Regulatory framework in Spain

• Law 31/1995, articles 33 to 37. Consultation and participation, worker safety representatives, powers, faculties and guarantees.
• Royal Legislative Decree 2/2015, Workers’ Statute, articles 62 to 68. Staff representation, professional secrecy and guarantees of representatives.
• Royal Decree 39/1997, articles 1, 3 and 16. Integration of prevention and consultation with representatives on the evaluation procedure and the organizational modality.
• Royal Legislative Decree 5/2000, Law on Infringements and Sanctions in the Social Order, article 12.11 . Serious infringement for failing to comply with the rights of information, consultation and participation.

Directive 89/391/EEC, Article 11, establishes the consultation and balanced participation of workers and their representatives with specific functions in occupational safety and health. In Colombia, participation is channeled through the Joint Occupational Safety and Health Committee (COPASST) and the occupational safety and health representative.