Continuing from the previous article on “responsibilities and penalties in OHS,” today we will talk about how the amounts of those penalties are calculated and graded.
Types of OHS Penalties
As we said, depending on how the OHS violation is classified, a financial penalty will apply, which will be communicated to the offender through a proposed infringement report.
Violations of occupational risk prevention rules will be penalized as follows:
- Minor violations: at the minimum level, a fine of 45 to 485 euros; at the medium level, 486 to 975 euros; and at the maximum level, 976 to 2,450 euros.
- Serious violations: at the minimum level, a fine of 2,451 to 9,830 euros; at the medium level, 9,831 to 24,585 euros; and at the maximum level, 24,586 to 49,180 euros.
- Very serious violations: at the minimum level, a fine of 49,181 to 196,745 euros; at the medium level, 196,746 to 491,865 euros; and at the maximum level, 491,866 to 983,736 euros.
When the offending party is an external prevention service, a person or entity that audits companies’ prevention systems, or an entity accredited to provide or certify training in occupational health and safety, serious and very serious violations may result, in addition to the fines provided for in the previous paragraph, in the cancellation of the accreditation granted by the labor authority.
Degrees of OHS Penalties
As we can see, each of the three levels of violation severity is in turn subdivided into degrees: minimum, medium, and maximum.
That said, when would the Labor Inspectorate penalize us at one degree or another? What criteria does the Labor Inspectorate follow to justify applying one degree or another?
Once violations have been classified in the manner provided by law, penalties are graded according to the negligence and intent of the offending party, fraud or collusion, failure to heed prior warnings and requests from the Inspectorate, the company’s turnover, the number of workers or beneficiaries affected where applicable, the harm caused, and the amount defrauded, as circumstances that may aggravate or mitigate the degree applied to the violation committed.
With regard to penalties for violations of occupational health and safety rules, the following criteria are taken into account when determining the degree:
a) The hazardousness of the activities carried out in the company or workplace.
b) The permanent or temporary nature of the risks inherent in those activities.
c) The seriousness of the harm caused, or that could have been caused, by the absence or inadequacy of the necessary preventive measures.
d) The number of workers affected.
e) The personal or collective protection measures adopted by the employer and the instructions the employer issued for risk prevention.
f) Failure to heed the prior warnings or requests referred to in Article 43 of Law 31/1995 of November 8, on Occupational Risk Prevention.
g) Failure to follow the proposals made by the prevention services, prevention representatives, or the company’s health and safety committee to correct existing legal deficiencies.
h) The employer’s general conduct regarding strict compliance with occupational health and safety regulations.
Resolution of Penalties
Based on the criteria set out above, the ITSS (Labor and Social Security Inspectorate) will impose a penalty according to the violation committed, at the degree it considers appropriate. For example, if the inspectorate carries out a verification at a company and detects a violation regarding “lack of sufficient and adequate training and information for workers” at the inspected company, the Labor Authority will propose a penalty classified as SERIOUS under Art. 12, section 8 of RD 5/2000 of August 4, approving the consolidated text of the Law on Infringements and Penalties in the Social Order, at the minimum degree and maximum amount. In other words, in this example, a proposed penalty of 2,450 euros would be imposed.
The legislation sets monetary ranges according to the degree of the penalty, so the inspector determines the amount of the penalty, which will not always be the minimum or maximum value of the range. An intermediate value may be set according to the criteria explained in the previous paragraphs.
The report of the Labor and Social Security Inspectorate that initiates the penalty proceedings, and the administrative decision that follows, must state the criteria used to grade the penalty, from among those listed in the preceding sections. When none of the circumstances listed in those sections is considered relevant for this purpose, the penalty will be imposed at the minimum degree, in its lower range.
Any violation consisting of the continued persistence of its commission will be penalized at the maximum of the applicable classification. We hope this article has cleared up any doubts about the penalty procedure the Labor Inspectorate uses in carrying out its duties.