In Oviedo last December the 2nd, the latest conference organized by the Asturian Federation of Employers (FADE) was held within the series “Prevention of Occupational Risks in the International Field”. This time the target country was none other than our neighbouring country: Portugal. True to its appointment, Prevencontrol attended the conference.
Portuguese legislation on OHS.
As you know, the Portuguese legislation on the prevention of occupational risks comes from the Spanish Similarly Framework Directive. This results in the legislation having a high degree of similarity, and even more so if we consider other factors such as geographical proximity, cultural … and excellent diplomatic relations maintained by both territories. In this post we have included some of the texts that make up the basic rules on prevention of occupational risks that are applicable to the Portuguese territory:
- Law 7/2009 (Labour Code): In Articles 281-284 it establishes some general principles concerning health and safety at work.
- Law 102/2009: This law incorporates into Portuguese law Directive No. 89/391/EEC, and in application of Article 284 of Law No.7/2009, it establishes a new system to promote Health and Safety.
- Decree-Law No. 109/2000 of 30 June 2000. Sets the organization and operating principles for safety, hygiene and health at work services.
- Decree-Law No. 50/2005 of 25 February 2005. Regulates the minimum safety requirements relating to the use of work machines and equipment.
- Law 98/2009: Regulates work accidents and occupational diseases.
Health and Safety Management.
As is the case in Spain, Portuguese legislation assigns the entrepreneur the duty to ensure the safety and health of workers in their charge. Compliance with this requirement translates into needing to organize safety within the company. To do this, a Portuguese employer may choose one of the following OSH service modalities:
- Employer assumption: Only applicable to companies employing up to 9 workers and whose activity is not considered high risk. The employer must have appropriate training (valid for a period of five years) and regularly belong in the establishment.
- Designated worker: Under the same conditions, the employer may choose to delegate safety management to a worker that is duly qualified.
- Internal service: Organizations with more than 400 workers and companies in the same group that exceed this figure and that are within 50 kms are required to adopt this system. For example, if two companies of the same group with 200 and 250 each are located within 50 km in distance, they must use an in-house service that covers both centres. Similarly, any company whose business is legally classified as a special risk and has more than 30 employees must provide an in-house service.
- Common service: In this case, several companies not belonging to the same group -and not required to be a safety service itself- can agree in writing to share a safety service, which can only work within these companies and their workers.
- External service: Portuguese external safety services must have the appropriate certification from the labour authority of Portugal. For health and safety at work activities this accreditation shall be issued by the Autoridade para as Condiçoes do Trabalho (ACT); for activities relating to occupational medicine the accrediting agency is the Direcção Geral da Saúde (DGS).
The risk assessment report is the quintessential document by means of which many of the obligations attributed to the employer on safety and health is articulated. The risk factors to identify and subsequently assess do not differ at all from those that we already know as technicians here in Spain. However, note that Portuguese regulations particularly affect the treatment that should be made in risk factors likely to affect the genetic makeup and reproductive capacity of exposed workers. The stages of risk assessment as well as the assumptions that motivate a review do not vary from country to country.
The materialization of an accident at work leads to a subsequent management, with the the employer being primarily responsible for:
- Accident notification: Work accidents must be reported to the ACT as the rule thus establishes. The deadlines for reporting differ depending on their severity: 24 hours for severe or fatal accidents and 48 hours for the rest, from the moment of becoming aware of the accident. The injured worker is also obliged to inform the employer about it, in cases where the employer is not in the same workplace. 48 hours is available for this.
- Accident record: As is the case in Spain, there is an obligation to record the occupational accidents that occurred within the company. Although not discussed in the conference, we must bring out the long period of registration required by the Portuguese legislation: 40 years. (Art. 46, Law 102/2009 of 10 September).
- Accident investigation: Work accidents should be investigated in order to determine the causes in order to review the risk assessment.
Proposals for new conferences
Overall, the conference was a fascinating exhibition of law applicable to the Portuguese territory for safety and health at work. However, the presentation was very focused on generally describing the regulatory framework on which the prevention of occupational hazards in Portugal is articulated. In this sense, we propose two points that would have added more interest, if possible, to the presentations:
- Implications concerning safety in cases of displacement of a Spanish worker in the neighbouring country. Take for example the obligation to notify the labour authorities of accidents involving our worker who has travelled. In this case, the employer should notify the event both to the Portuguese labour authority and the Spanish in cases in which it was chosen to keep our legislation as applicable with regard to social security. The lack of a detail like this can end up materializing in the form of a financial penalty for the company.
- Differences between the legislation of both countries. One of the phrases that was the most pronounced throughout the day was: “As you see, there are virtually no differences in OHS requirements in both countries.” The parallelism between the two regulations is well known, true, but there are nuances, the ignorance of which may result in a loss of efficiency in terms of the results of companies that venture to set up in Portugal. We leave you with a brief summary table based on differences in our International OHS database:
|OHS organisations||The Portuguese organizations are centralized and carry out their activity throughout the country. In Spain, due to its state model, not all operate nationwide, which creates problems in coordination and a lack of legal harmonization that Portugal, in this sense, lacks.|
|DOCUMENTS AND RECORDS|
|OHS Records / Documents||The recording time is substantially greater in Portugal, with a period of 40 years.|
|Accident registration||In Portugal registration is required for both accidents and incidents that have occurred in the company. In Spain, you must register occupational accidents leading to an absence of more than one day of work.|
|Safety organizations, models||In Portugal it is mandatory to set up an in-house safety service in companies with more than 400 employees or more than 30 exposed if they work doing a dangerous activity. A geographical factor is added: a radius of 50 Kms between establishments.|
|OHS Training||Portuguese companies must provide training, in addition to the risks of the job, on the risks arising from the activities of the company.|
|Work accident / occupational sickness||Unlike Spain, Portugal does not count nontraumatic pathologies as work accidents, or injuries caused by third-party episodes of violence.|
|Health surveillance||In Portugal, health monitoring is mandatory for all employees, regardless of activity, while in Spain they can only be made when the employee gives their consent, which is voluntary, except in exceptional cases.|
Congratulations to FADE for the initiative!
PrevenControl es la firma especializada en seguridad y salud laboral que propone soluciones eficaces e innovadoras para la mejora del negocio y la reputación de sus clientes a través de la consultoría, el uso de la tecnología y la formación.