Cap. 646 Art. 14Responsibilities of the employer and the HSRO.

(1) When an employer has appointed an HSRO to perform the duties referred to in article 13, this does not relieve the employer of his duties established in terms of this Act and shall not affect the principle of employers’ responsibility as provided for in this Act or any regulations made thereunder.

(2) The employer shall have the duty to ensure that the HSRO shall be given access to whatever resources are required for the fulfilment of his role and the implementation of any recommendation he may make in accordance with sub-article (1).

(3) The employer shall provide the HSRO with unrestricted access to any relevant information held by himself.

(4) In such instances where an HSRO is required in terms of the Act, the employer shall notify the Authority of the details of the appointed HSRO and any subsequent changes thereto. A HSRO shall retain all responsibilities under the Act until such time as the Authority is notified with such resignation. If a person appointed to act as HSRO ceases to act as such for any reason, in such instances, the HSRO shall notify the Authority with such cessation: Provided that in the case of demise of the HSRO, the employer shall notify the Authority within fourteen (14) days from such demise.

(5) The HSRO shall consult the workers’ health and safety representative for the purposes of preparing the report as outlined under article 13(1)(c).

(6) In order to preserve health and safety at work, the employer shall take into account any report made by the HSRO in accordance with article 13(1)(d) and within a reasonable time shall take all reasonable measures to rectify the breach of this Act or any regulations made thereunder by implementing the recommendations made by the HSRO or otherwise.

(7) No action, or other proceeding for damages shall lie or be instituted against the HSRO for:

(a) any act done in pursuance of this Act and any regulations made thereunder, unless the HSRO has acted in a negligent manner which shall include inter alia the non-observance of his duties as provided in accordance with this Act and any regulations made thereunder; or

(b) any act done or omitted to be done in the performance of his functions where it is sufficiently proven that the employer failed to provide the HSRO with the necessary information in accordance with sub-article (3) and the HSRO would have reported such lack of information to the Authority.

(8) It shall be considered an offence under this Act for the HSRO to fail to submit a report to the Authority in accordance with article 13(1)(d).

(9) In cases where a worker or any person, whether acting on his own behalf or on behalf of a worker, reports a matter in terms of this article to the HSRO, the HSRO should inform the employer in writing immediately on the matter and shall prepare his written report in relation to such a matter within fifteen (15) days from the date on which such matter was reported to him. Such report shall be provided to the employer and the worker accordingly. Where deemed necessary by the HSRO, the report shall make such recommendations and stipulate such time frames as the HSRO may deem appropriate after having consulted the employer in relation to the timelines for such implementation, taking into account the obligations of the employer under this Act. A person failing to present such a report shall be guilty of an offence against this Act.

(10) In cases where a worker or any person making a report is satisfied with the findings of the report, the HSRO shall register the matter accordingly in his register, and the matter shall be considered to be conclusively determined provided that any recommendation made by the HSRO is implemented accordingly within stipulated time frames.

(11) In cases where the recommendations made by the HSRO are not implemented, the HSRO shall report such lack of implementation to the Authority and the employer shall be guilty of an offence under this Act.

(12) In cases where the HSRO determines that the employer has not correctly implemented the terms of the report presented by him in terms of this article, the HSRO shall provide his report made in accordance to article 13(1)(d) to the Authority within fifteen (15) days from the end date of the implementation period. The Authority having received such a report from the HSRO in accordance with article 13(1)(d) shall finally determine whether the employer acted correctly in not implementing any of the recommendations of the HSRO in terms of this submitted report. If the Authority determines that the employer should have implemented the recommendations made by the HSRO, then such lack of implementation shall be considered to be an offence under this Act:

Provided that the employer shall not have committed an offence under this Act if the Authority determines that the lack of implementation was due to lack of agreement on the interpretation of the duties of the employer under this Act and only in such instances where such lack of implementation could not have reasonably resulted in a risk of any form of bodily or psychological harm or death of a worker.

(13) In cases where a worker or any person presenting a report in writing to the HSRO is not satisfied with the report or recommendations prepared by the HSRO in relation to any matter raised by such worker or person, such worker or person shall be entitled to report the matter to the Authority. The Authority shall investigate such a matter accordingly and shall communicate its findings to such worker or person, the employer and the HSRO in writing. Should it be determined that the HSRO has failed to make the correct recommendations to the employer in terms of this Act, in that case the HSRO shall be guilty of an offence under this Act.

(14) Failure to appoint an HSRO in accordance with the provisions of this Act shall constitute an offence against this Act. Any employer found guilty of this offence shall be subject to a fine (multa) of not more than fifty thousand euro (€50,000), as determined by the Authority.

(15) In cases where a worker or any person submitting a report in writing to the employer in accordance with this article is not satisfied with the report or recommendations prepared by the employer in relation to any matter raised by such worker or person, such worker or person shall be entitled to report the matter to the Authority. The Authority shall investigate such a matter accordingly and shall communicate its findings to such worker or person, and the employer in writing. If it is determined that the employer failed to correctly address the matters raised by the worker or person in terms of this Act, in such case the employer shall be guilty of an offence under this Act.