The obligations of the self-employed
January 17th 2012 -
Question
Article 21, paragraph 2 of Legislative Decree 81/2008 stipulates that the self-employed can benefit from the health surveillance provided for in Article 41 (regular and preventive medical examinations) and can participate in special training courses on health and safety at work according to plan referred to ‘ Article 37. This means that for the same not required to undergo health surveillance and to attend training courses?
Response
From an initial and superficial reading of Article. 21 of Legislative Decree No 9/4/2008 81, containing the Consolidated Law on health and safety at work, it would seem that the self-employed person is obliged only to those obligations expressly stated in paragraph 1 of that article and that is to use work equipment in accordance with the provisions of Title III D. Decree No 81/2008 (letter a) be in possession of personal protective equipment and use in accordance with the provisions of Title III of the Legislative Decree (b) and to obtain a special identification card bearing a photograph containing their personal details, if they carry out their performance in a workplace in which you conducted business under the contract or subcontract (c ).
But things are not like this and what follows from a closer examination and a more comprehensive reading of the above mentioned Decree No 81/2008, no way would an interpretation of the provisions of the law so restrictive in light of the addresses provided by the enabling act No 3/8/2007 123 and the logic of prevention must be the basis of which ensured the health and safety of all workers and all those who work in their workplaces.
We observe first that the provisions contained in D. Decree No 81/2008, as indicated in Art. 3, paragraph 4 of the decree and related to its scope, “applies to all employees and workers, and self-employed and those equivalent to the subject, except as provided by the following paragraphs of this article” to which paragraph 11 more states that “in relation to workers employed under Article 2222 of the Civil Code shall apply the provisions of Articles 21 and 26″.
It is therefore obvious that the legislature, even in order to initiate the information contained in the above mentioned enabling law No 123/2007, wanted, in order to protect the health and safety at work and enforcement of prevention of accidents and occupational diseases, to equate self-employed workers to other workers as a result of these imposing the same obligations that the Decree imposes the same as all other workers, provided of course that the provisions that are intended specifically for them and is contained in Art. 21, which establishes the specific requirements in addition to the components of family businesses for the self-employed, which in art. 26 which imposes obligations on the same self-employed also in the case of contracts, for work or administration.
From the foregoing it seems clear then that the self-employed person must fulfill the obligations that the D. Decree No 81/2008 by Art. 20 makes the responsibility of all employees. In this article, however, paragraph 1 states that “every worker has to take care of your health and safety and those of other people in the workplace, which bear the effects of his actions or omissions” and among these obligations can be found precisely in paragraph 2, letter h) to participate in training programs and training and to paragraph 2 letter i) to undergo health checks provided by the Legislative Decree or otherwise ordered by the physician.
The belief, widespread enough to tell the truth, that the self-employed person has no obligation to undergo training and health surveillance in relation to the risks of their work comes from what we consider an imprecision of the legislature that would have caused them to enter explicitly in Article 21 of Legislative Decree No 81/2008 with the requirements listed in paragraph 1 in it and a cursory reading of paragraph 2 of that article which indicates that the person referred to in paragraph 1, including precisely the self-employed, are entitled:
“A) receive health surveillance in accordance with the provisions of article 41, subject to requirements under special rules;
b) participate in special training courses on health and safety at work, focusing on the risks of their activities, according to the provisions of article 37, subject to requirements under special rules. ”
It is quite clear now that the power that the legislature expressed in paragraph 2 is not to undergo health surveillance in relation to the risks specific to their businesses and training focused on those risks, which as mentioned above are considered mandatory, but can “benefit” to execute its self-defense, health surveillance undergoing medical examination at their own expense, by the competent physician of the employer where it is located, as you would any other employee who is working for it, and can also “participate”, always at his own expense, to specific training courses on health and safety at work to which the employer is the host starts its employees.
A confirmation of the above made regarding the obligations that the Consolidated intended to charge the self-employed descends, finally, by reading the same Annex XVII to the Consolidated documentation showing that the self-employed businesses must issue in case of contract, the employer customer before starting work in order to allow the same verification of their technical and professional competence under Article. 26 paragraph 1 letter a) of D. Decree No 81/2008, showing the obligations related to contracts or work or of administration, and with regard to temporary or mobile construction sites laid down in Article. 90 paragraph 9 letter a) charged to the customer on whose behalf the entire work is done.
In this Annex XVII, in fact, in paragraph 2 between the documents that the self-employed must show at least the client is explicitly referred to in subparagraph d) “statements concerning their training and their suitability for the health care provided by this decree,” the literature in the case of temporary or mobile sites you are required to transmit among other things, pursuant to art. 90 9 paragraph c) to the competent authorities before the work covered by the permit to construct or denunciation login.
With the reading of Annex XVII Although he explicitly called for by Title IV for the verification of technical and professional firms operating in temporary or mobile, will therefore be applicable, the same being contained within the Consolidated, also for verification of all technical and professional business activities in art. 26 of Title I of the D. Decree is believed that ultimately there is no room for any other interpretation, and that has been permanently dissolved any doubt as to the obligations of both the self-employed health surveillance, if necessary, that specific training in health and safety at work.
