The aim of this article is to provide a brief overview of the regulation and practice of worker participation and its influence in management processes, with regard to the Spanish workplace regulatory framework and the practice of information, consultation and other forms of employee involvement in the Spanish occupational safety and health system.
Full worker participation is strongly promoted in all ILO OSH standards, and particularly in the ILO Convention on Occupational Safety and Health, 1981 (No. 155)  and its accompanying Recommendation (No. 164) , as well as in the ILO Guidelines on the occupational safety and health management system.
The existence of a workplace employee representative and participation structure, based on law or collective agreements, is a distinctive and important feature of the European Union labour market. The Council Directive 2001/86/EC, of 8 October 2001, supplementing the Statute for a European company with regard to the involvement of employees, governs the involvement of employees in the affairs of European public limited-liability companies (Societas Europaea), as referred to in Council Regulation (EC) No 2157/2001, of 8 October 2001, on the Statute for a European company . In Spain, the Directive 2001/86/EC was transposed by the Law 31/2006, of 18 October 2008, with regard to the involvement of employees .
The European Directive 2002/14/CE established the regulatory framework of the information and consultation system between employer and employee representatives organised in work council-type structures. The Directive 2002/14/CE was transposed into Spanish law by the Law 38/2007, of 16 November 2007 . So, on questions such as restructuring the workforce, transferring production, changing working hours, payments systems and training the works council (comités de empresa) must be informed in advance and be able to comment. Legislation to implement the 2002 European Directive on information and consultation slightly strengthened these general consultation rights as it included an improved definition as to when the consultation should occur.
The Law 31/1995, of 8 November 1995, on prevention of occupational risks  transposed into the Spanish legislation the Council Directive 89/391/EEC , on the introduction of measures to encourage improvements in the safety and health of workers at work, and contains the general legal framework in which the Community policy on prevention operates.
Chapter five of the Law 31/1995  regulates worker consultation and participation in matters related to safety and health at the workplace. Based on the current system of collective bargaining in force in Spain, the law clearly defines the rights of health and safety representatives (delegados de prevención), including the right to be adequately informed by the employer on current and future hazards, and to be consulted over health and safety arrangements in the workplace, conferring on them the necessary powers, competence and guarantees.
Alongside this, the Spanish law on prevention of occupational risks promotes the health and safety committees (comités de seguridad y salud), based on the experience of an established and traditional figure in the Spanish labour legal system, and conceived as the joint representative body of both workers and employers in order to enhance the development of a balanced participation in all matters concerning OSH.
AII this without prejudice to the possibilities granted by Spanish law on collective bargaining arrangements that allows works councils (comités de empresa) negotiate binding collective agreements covering pay and work conditions in their company, or part of their company, compatible with the object of the OSH Spanish law.
On the company level, worker participation in OSH matters can be developed in three different ways:
- General worker participation,
- Specific health and safety participation at the workplace,
- Direct participation.
General worker participation
OSH management is not able to function properly without the existence of effective social dialogue, whether in the context of health and safety committees (comités de seguridad y salud), or other mechanisms such as collective bargaining arrangements. In Spain, social partners participate actively in the system of collective bargaining as a fundamental part for negotiation and subscription of union agreements in OSH matters. In this way, the third objective of the Spanish Strategy on Safety and Health at Work promotes the role of the social partners and the involvement of workers and employers in the improvement of safety and health at workplace. The objective is to increase the participation of workers and employers, through the employers' and unions' most representative organizations, to improve working conditions and health and safety at workplace.
In 2011, Spanish government introduced legislation giving a greater role to company bargaining. Company agreements are able to set terms on wages, hours, grading and other issues which can be either worse or better than those in industry-level agreements. Currently, most employees are covered by provincial-level agreements for their industries, but in future company agreements will have precedence, even if the provincial-level agreement is still in force.
Collective agreements are legally binding on all employees in the area they cover, provided the negotiating parties are entitled to sign the agreement. At the company and plant level the appropriate bodies are the employer and the works council (comité de empresa). But at higher levels the only trade unions who can sign the agreement on behalf of all the employees are the most representative unions at national or regional level or unions which can show that they have a specific level of support in the area covered by the negotiations.
So, at the company level, the primary bodies of general worker participation in enterprises are works councils (comités de empresa) and recognised workplace trade union representatives (delegados sindicales). These bodies are regulated by the Workers Statute (Law 1/1995 of 24 March 1995 - Estatuto de los Trabajadores) the Civil Servants Statute and the Law on Trade Union Freedom. The main task of both bodies is the representation of workers and their interests in all issues directly affecting their working conditions. OSH is part of the working conditions at the enterprise and is usually among the major fields of discussion for the worker participation.
The right to elect worker representatives begins in workplaces with more than 10 workers and they can be elected in workplaces with as few as six people if a majority of workers want this. Where there are fewer than 50 employees, the representatives are called worker delegates (delegados de personal). If there are 50 or more workers, then the representatives are elected as members of a works council (comité de empresa). There is no difference in terms of rights and duties between the worker delegates and the works council.
Once elected the works council sets its own rules of procedure, for its meetings and actions. But the works council must elect from its members a secretary and a chair. Normally the chair comes from the union with the largest number of members on the works council and the secretary from the next biggest union. The works council must also meet at least once every two months and works council decisions should be taken by a majority of its members not simply the majority of those present at its meetings. The works council can also set up sub-committees on a range of issues.
The tasks of the works council cover information and consultation, the provision of limited protection for individual employees, the monitoring of the application of certain labour regulations and the control of social facilities at the workplace. However, they have no powers to prevent management acting as it wishes in the final instance. Unlike works councils in some other European States, works councils in Spain are also involved in collective bargaining. On economic and financial matters, such as sales figures or profits, there is only a requirement that works councils should be informed. The works council also has rights to information on the type and number of new employment contracts being signed by the employer. The employer must also give the works council statistics on absenteeism, accidents at work and occupational illness.
These powers are strengthened by the fact that the works council also has a duty to monitor that the employer is complying with the law, as far as employment, social security and health and safety issues are concerned.
Likewise, in the collective bargaining or in the agreements referred to in article 83.3 of the Workers Statute (Estatuto de los Trabajadores)  there can be agreement that the powers conferred by the Law 31/1995  on health and safety representatives could be carried out by the specific bodies created in the collective agreement itself or in the aforementioned agreements. The said bodies are able to take on, in accordance with the agreed terms, general powers with regard to the establishments included in the area of the collective agreement, in order to encourage a better compliance of the OSH legislation.
Equally, within the scope of the Public Administrations there is the ability to establish, in accordance with the terms laid down in the Law 7/1990, of 19 July 1990, regarding collective bargaining and participation in the determination of the working conditions of public employees , other methods of designation of health and safety representatives and to agree that the powers the Law 31/1995  confers upon those representatives may be exercised by specific bodies.
Specific health and safety participation at the workplace
Alongside such general forms of works representation, in enterprises or establishments with six or more workers, the formal participation of workers in matters related to safety and health at the workplace is regulated by the Law 31/1995 . So, at company level, health and safety committees (comités de seguridad y salud) and health and safety representatives (delegados de prevención) are specific forms of workplace participation with the task of representing the views and needs of workers in all matters concerning OSH.
Health and safety representatives
The Law 31/1995, of 8 November 1995, on prevention of occupational risks  defines health and safety representatives (delegados de prevención) as the workers representatives responsible for risk prevention at work. In enterprises or establishments with less than 50 workers, health and safety representatives develop the same role than a health and safety committee.
In establishments with 30 or less workers, the health and safety representative is the staff representative. In establishments with between 31 and 49 employees, the health and safety representative is chosen by and from amongst the worker delegates. As regards establishments with more than 50 workers, the number of representatives depends on the size of the workforce at the establishment, in accordance with the following scale:
- From 50 up to 100 workers: 2 health and safety representatives,
- From 101 up to 500 workers: 3 health and safety representatives,
- From 501 up to 1.000 workers: 4 health and safety representatives,
- From 1.001 up to 2.000 workers: 5 health and safety representatives,
- From 2.001 up to 3.000 workers: 6 health and safety representatives,
- From 3.001 up to 4.000 workers: 7 health and safety representatives,
- From 4.001 and upwards: 8 health and safety representatives.
In Spain, according to the national survey on safety and health enterprises management companies ,slightly over 40% of workplaces with six or more employees have prevention representatives. In industrial branches, over 50% of workplaces have representatives. In addition, 16.6% of companies with fewer than 6 employees also have health and safety representative.
According to the referred survey, OSH management measures are more likely to be seen as effective in workplaces in which there is worker representation. In line with this, measures to manage OSH risks are more commonly applied in establishments where there is health and safety representative (Table 1).
The percentage of presence health and safety representative is largely determined by the size of the workforce:
- From 6 to 9 workers: 27.9%,
- From 10 to 49 workers: 48.8%,
- From 50 to 249 workers: 75.2%,
- From 250 to 499 workers: 86.4%,
- From 500 and upwards: 100%.
Tasks and rights of health and safety representatives
Health and safety representatives assume the following tasks:
- To collaborate with the employer in the improvement of the preventive action.
- To promote and encourage the cooperation of workers in the enforcement of the OSH regulations.
- To be consulted by the employer, before its implementation, about the provisions referred to in article 33 of the Law 31/1995 ,
- To perform a task of surveillance and control over the fulfilment of the OSH legislation.
Health and safety representatives have the following rights:
- To accompany the experts in the assessments of a preventive nature in the working environment, as well as, in accordance with the provisions of article 40 of the Law 31/1995 , the Labour and Social Security Inspectors in their inspections and checks which are carried out in workplaces in order to verify the compliance of the law on occupational risk prevention, being able to make to them any remarks which they deem appropriate;
- To have access, within the limitations laid down in the Article 22.4 of the Law 31/1995 , to the necessary information and documentation related to the working conditions and, in particular, to the one referred to in articles 18 and 23 of the Law 31/1995 . Where the information is subject to the described limitations, it is only supplied in such a way to ensure confidentiality;
- To be informed by the employer of the injuries caused to the workers' health once the employer is aware of them, and to be able to attend, even outside working hours, the scene of the accident in order to discover the relevant circumstances;
- To receive from the employer information from the persons or bodies responsible for protection and prevention within the enterprise, and the competent bodies that have specific responsibility for the safety and health of workers, without prejudice to the provision referred to in Article 40 of the Law 31/1995  in the matter of collaboration with the Labour and Social Security Inspectorate;
- To carry out inspections of the workplace in order to monitor and control the state of the working conditions, and with this objective to be able to enter any area of the workplace and to be able to communicate with the workers during working hours, in such a way that the normal working process is not altered;
- To demand that the employer adopts preventive measures in order to improve the levels of safety and health protection of the workers, being able to this end, to make proposals to the employer and to the safety and health committee, to be brought up within the said committee;
- To put forward to the representative body of workers the adoption of the stoppage agreement of activities referred to in Article 21.3 of the Law 31/1995 .
The reports, which health and safety representatives (delegados de prevención) have to issue in accordance with the Law 31/1995 , have to be prepared within a period of fifteen days, or within the required timeframe when dealing with the taking of measures to prevent imminent risks. Should the timeframe elapse without a report having been issued, the employer shall be able make their own decision. The negative decision of the employer of adopting the measures proposed by the health and safety representatives in accordance with the provision of Law 31/1995  must be explained.
Management representatives were asked what, in their opinion, were the most important OSH matters consulted with workers and/or their health and safety representatives (Table 2).
The Spanish law on prevention of occupational risks sets the number of health and safety representatives depending on the number of workers. According to the company representatives most workplaces with health and safety representatives have appointed the number of safety representatives required by law (93.4%). However, should be noted that the 38.1% of workplaces with a number of workers between 50 and 100 have only one representative when they should have two of them. In workplaces within 101 and 500 workers, the 31.9% of them have one or two health and safety representatives when they should have three.
Furthermore the results show a predominance of males health and safety representatives: 76.4% of men compared with 23.6% of women.
There are also significant differences by sector. In Industry sector is more common to have safety representatives (55.4%) than in Services (38.8%), or Agricultural and Construction (both with a 44.9%).
Adequate information and training of health and safety representatives have also been highlighted as a main factor conditioning the effectiveness of worker participation (92.5% of safety representatives in companies have received adequate training)
The lack of training of health and safety representatives is more prevalent in the service sector (3.7%) and, within this sector, transport and communications (21.7%), followed by veterinary health and social services (6.9%) and other social and personal services (5.9%).
Guarantees and professional secrecy of health and safety representatives
The provision of article 68 of the Workers Statute (Estatuto de los Trabajadores)  in the area of guarantees is applied to health and safety representatives (delegados de prevención) in their role as workers representatives. The law lays down health and safety representatives are legally entitled to paid time off for their duties. In addition, the employer is obliged to provide the health and safety representatives with the basic provisions for its activities.
Health and safety representatives (delegados de prevención) have the right to training adequate to develop its functions. This training is provided by the employer through his own means, or through an arrangement with other bodies or specialised organisations in that field, and is adapted to the evolution of the risks and the development of new ones, being periodically repeated when deemed necessary. Time spent in training is considered as time worked and it is paid by the employer.
Health and safety representatives (delegados de prevención) are under the obligation to keep the due professional secrecy with regard to the information to which they may have access as a result of their functions in the enterprise, in accordance with article 65.2 of the Workers Statute .In the case of civil servants, applies the regulation contained in the Civil Servants Statute .
Health and safety committees
The Law 31/1995  defines the safety and health committee (comités de seguridad y salud) as a joint body intended to provide regular periodic consultation on enterprise decision-making on OSH matters. The committee consists of the health and safety representatives (delegados de prevención), on the one hand, and the employer and/or his/her representatives (equal in number to the health and safety representatives), on the other. In Spain, health and safety committees must be set up in all enterprises or establishments with a workforce of 50 workers or more.
Health and safety committee (comités de seguridad y salud) sets its own rules of procedure, for its meetings and actions. Worker delegates and technical experts responsible for prevention within the enterprise, but who are not on the committee, are able to participate in health and safety committee meetings, with voice but without vote. In the same conditions, there exists the possibility of workers in the enterprise to participate, if they have special qualifications or information relating to specific, issues which are being debated in this body, and external prevention experts, provided that they are requested by any party of the committee.
The enterprises with several workplaces, and which are entitled to have a health and safety committee, are able to reach an agreement with their workers on the establishment of an inter-workplace committee, with the functions conferred on it by the agreement.
In Spain, according to the national survey of safety management and health companies in 81% of the enterprises or establishments, which have appointed at least one safety representative and have a workforce of over 49 employees, there is a health and safety committee. This frequency is 76.8% in enterprises or establishments with a workforce between 50 and 249 employees and reaches 100% in those with 250 or more workers.
Health and safety committees are largely found at workplaces with 50 or more employees who have prevention representatives (81%), 76.8% in workplaces with a workforce between 50 and 249 employees and 100% in those with 250 or more workers
These committees most frequently hold four or more meetings per year; the frequency increases the larger the workplace is.. By sector, 71.5% of workplaces in the Industry sector conducted three or more meetings in 2008. By contrast, the Committee did not meet during this same year in 30.6% of workplaces in the Agricultural sector.
Tasks and rights of the health and safety committee
Health and safety committees have the following functions:
- To take part in the drafting, implementation and assessment of the company’s risk prevention plans and programmes. To this end, and before implementation, their impact on risk prevention will be considered, as well as the impact of the prevention modality election, and if appropriate, the performance of the external entities contracted to carry out preventive activities, the projects related to planning, work organization and the introduction of new technologies, the organization and implementation of the protection and preventive activities referred to in article 16 of Law 31/1995 and the development and organization of prevention related training, are all discussed within this Committee;
- To promote initiatives about methods and procedures for the effective prevention of risks, putting forward the improvement of conditions or correction of the existing deficiencies.
In the exercise of its functions, health and safety committees have the following powers:
- To know directly the situation relating to risk prevention at the workplace, carrying out the necessary visits in order to achieve this;
- To be familiar with as many documents and reports relating to the working conditions as necessary to carry out their functions and, where appropriate, ones coming from the activities of the prevention service;
- To be aware of and to analyse the damage caused to the health or to the physical integrity of workers, for the purpose of assessing the causes and to propose the appropriate preventive measures;
- To know and to inform the annual report and planning of prevention services.
In order to comply with the provisions of the Law 31/1995  regarding the collaboration amongst enterprises, and based on the assumptions of overlapping activities in the same workplace, it is possible to arrange joint meetings of the safety and health committee or, in its absence, of the prevention representatives and employers of the enterprises which do not have such committees, or other measures of co-ordinated action.
In companies without a formal representation of workers in OSH matters, the employer is obliged to consult workers on the adoption of decisions related to:
- The planning and organisation of work in the enterprise and the introduction of new technologies, in everything that could have a consequence for the safety and health of workers. These consequences could be derived from the choice of equipment, the determination and adaptation of the working conditions or the impact of the environmental factors at work.
- The planning and organisation of the activities of protection of health and prevention of occupational risks in the enterprise, including the designation of workers for those activities, or the arrangement of contracts with external services;
- The designation of workers to carry out emergency measures;
- The procedures of information and documentation referred to in Articles 18.1 and 3.1 of the Law 31/1995 ;
- The planning and organisation of the training in preventive services;
- Any other action, which may substantially affect the safety and health of workers.
Likewise, workers and their representatives are able to appeal to the Labour and Social Security Inspectorate if they consider that the measures taken and the means employed by the employer are inadequate for the purposes of ensuring safety and health at work.
During the inspection visits to the workplace in order to establish whether the risk prevention legislation at work is being upheld, the Labour and Social Security Inspector must report their presence to the following: Employer or his representative, to the inspected person, to the safety and health committee, to the prevention representative or, in their absence, to the workers' legal representatives, so that they can accompany him during the carrying out of the inspection and to submit any observations which they deem appropriate, unless the Inspector considers that these comments may harm the task in hand.
The Labour and Social Security Inspectorate informs the prevention representatives about the results of the inspection visits and the subsequent measures, and also to the employer by way of a note in the Visit Log Book of the Labour and Social Security Inspectorate which must be in each workplace.
The most highly represented union and employer organisations are consulted prior to plans being carried out by the Labour and Social Security Inspectorate in the matter of the risks prevention at work, particularly regarding specific programmes for enterprises with fewer than six workers, and they shall be informed of the results of the said plans.
On the supra-enterprise level, it is sectoral agreements that can be bargained on at different territorial levels, with a high number of provincial agreements — at least in some sectors — which are gradually substituting regional or national agreements. Inter-professional agreements exceed the scope of a sector, establishing common criteria for the development of collective bargaining on lower levels (art. 83.2 Workers Statute) .
National level agreements cover both major non-pay issues and, since 2002, with the exception of 2009, guidelines on pay increases for lower level bargainers. In recent years the major non-pay agreements between the government, unions and employers have covered a range of topics including, attempts to increase the number of workers on permanent contracts and reduce the number of temporary workers – a major problem in Spain, improvements in training, changes in social security arrangements, equality of treatment and opportunities for men and women, and health and safety. The European framework agreement on violence at work was also implemented in this way.
A recent major agreement was signed by the government, the employers and the two main union confederations CCOO and UGT in February 2011. Its key component was an agreement on pensions, but it also included active labour market measures to reduce unemployment, industrial and energy policy, a promise by the government to reopen talks with the unions on the public sector, and reforming the collective bargaining system.
In Spain, sector-based collective negotiation is used to negotiate the creation of specific sector bodies, made up of employer and worker representatives, in order to develop programmes that are designed to raise awareness and inform about the occupational risks in the sector.
Collective agreements are the result of bargaining carried out by representatives of two groups, the workers and the employers. The law lays down specific rules as to how negotiations are to be conducted and the composition of both sides. Therefore, there are two bargaining parties in a collective agreement: the worker representation and the employer representation. The collective agreement includes regulatory content comprised, on one hand, “of the general, formal agreements that comprise it as a legal standard" and on the other, “the particular agreements that regulate the working conditions of employers and workers contained in its scope" (Supreme Court ruling of 21 December 1994). This material content reaches, in accordance with article 85.1 of the Workers Statute :The conditions that affect individual employment relationships: “labour-related matters or matters of an economic nature (…) and several others that affect employment conditions" including the typical ones regarding occupational structures, wages and working time, duration, termination and expiration of the employment contract, disciplinary issues, health and safety in the workplace, etc.
Overall coverage of collective bargaining is high. Figures from the ministry of labour for 2009, show that in that year there were 5,536 collective agreements registered covering 11,115,200 employees. With 15.7 million employees in Spain in 2009 this is equivalent to 71% of the total.
There are some industry agreements at national level, such as those in the construction sector, banking, and chemical industries. Large and medium-sized companies will normally have their own agreements, sometimes at plant level, while smaller employers are covered by provincial agreements for their industry. These agreements cover exactly the same issues.
One of these results in the national collective agreement for the construction sector is the “Tarjeta Profesional de la Construcción" (TPC) (i.e. Professional Card for Construction). The TCP has been underpinned by the national collective agreement for the construction sector, making it compulsory for workers in all companies covered by the agreement to have the TPC card by 2012. TPC is a certification system for prevention issues for the sector. This card is promoted in a number of ways: via the Foundation’s centers and sites; via the training centers, via industry associations and trade unions; and via the Foundations webpage. Promotion takes the form of raising awareness and motivating workers to use the Card scheme, informing about the procedures required to obtain the card and answering queries. Applications are processed at the Foundation’s sites and training centers and through industry associations and trade unions .
The right of participation is exercised within the scope of the Public Administrations with the appropriate adaptations in regard to the diversity of their activities and conditions, the complexity and dispersion of their organized structure and their peculiarities in collective representation in the terms set up in the Law 7/1990, of 19 July 1990 . This law on collective bargaining and participation in the determination of the working conditions of civil servant is able to establish sectoral and decentralized scopes depending on the number of employees and establishments.
In order to carry out of the aforementioned adaptations within the scope of the General Administration of the State, the Government takes into account the following criteria:
- In no case did the referred adaptations affect the responsibilities, faculties and guarantees, recognized by the Law 35/1995 , of the prevention representatives and committees of safety and health;
- The specific scope is established, so that each case is adequate in exercising participation in the area of prevention within the organizing structure of the Administration. In general, the said scope will be within the remit of one of the personnel representative bodies in the service of the public Administrations, while others may be established in accordance with the characteristics of the activities and frequency of risks to which workers may be exposed;
- Where in the said scope there are different representative bodies of the personnel, a coordinated action is guaranteed by all included in the prevention and protection of safety and health at work, meaning that the participation be carried out in a joint manner amongst themselves, within the specific scope established to this end;
- In general, a single safety and health committee is setup within the scope of the representative bodies established in the Law on representation of public servants which is integrated by the designated prevention representatives in that area, not only for personnel of an administrative or statutory character, but also for personnel with an employment contract, and by representatives of the Administration in a number no higher than that of the prevention representatives. However, safety and health committees in other scopes can be set up when the reasons of the activity, as well as the type and frequency of risks are justifiable.
The National Commission for Safety and Health at Work was established in 1995 as the advisory body for the institutional participation of the central government, the autonomous communities and social partners with regard to OSH policies.
The Commission consists of a representative of each one of the autonomous communities and of an equal number of members of the General State Administration, pairing the aforementioned with representatives of the most representative organisations of employers and unions.
The National Commission of Safety and Health at Work has the task of providing formal opinion on the actions taken by the competent public Administration with regard to promoting the prevention of occupational risks, technical advice, surveillance and control referred to in the Law 31/1995  in which it informs and puts forward proposals relating to the said actions, specifically concerning:
- Criteria and general programmes of actions,
- Projects of provisions of general character,
- Coordination of the actions taken by the Public Administration competent on labour matter,
- Coordination among the Public Administrations competent on labour, health and industry matters.
This National Commission operates in plenary session, as both a permanent commission and as a working group, in accordance with the provisions, which setup the internal Regulations that the very Commission establishes.
The National Commission adopts its resolutions by majority. To that end, the representatives of Public Administrations shall have one vote each and the representatives of employers and unions organisations shall have two votes.
Some of its activities during 2012 were as follows:
- The establishment of a working group with the Autonomous Regions to define common goals in terms of research, study technical advice and promotion and dissemination of health and safety issues,
- The establishment of a road map to reduce occupational MSDs an psychosocial risks,
- The establishment of a road map to reduce work related road accidents.
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