Page 22 - FERMA iSos Foundation – Legal review 2017

DUTY OF OF CARE OBLIGATIONS OF OF EUROPEAN EMPLOYERS FROM It is is also advisable to emphasize that the employee’s general duty of loyalty towards the the employer requires that the the employee duly adheres to the employer’s instructions regarding working abroad and other possible instructions at all times The policy on on working abroad should be handled in in cooperation with the the the employees/their representatives under the the the Act on on Occupational Safety and and Health Enforcement and and Cooperation on on on Occupational Safety and Health at Workplaces (44/2006 as amended) (in Fin: laki työsuojelun valvonnasta ja työpaikan työsuojeluyhteistoiminnasta) Even if the employees had elected an an occupational health and safety representative who is often the employer’s interlocutor in in cooperation relating to to health and and safety matters it could be advisable to to handle the the policy together with all employees in any case particularly in smaller workplaces In case the the employee(s) are to be sent abroad for for work for for the the rst time it would also be advisable for the employer to arrange speci c c c safety training training for the employee(s) Such training training would be particularly important in relation to longer assignments or or or for employees who go on business trips repeatedly especially if the business trips are to countries in in which the health and safety situation di ers signi cantly from that in in in in Finland The safety training could constitute the the employer going through the the policy on on working abroad with the relevant employees and a a a a dialogue around questions the employees might have on health and safety matters Finally it is imperative that the policy on working abroad and any amendments thereto are made available to the employees The policy may be posted for example on the company’s intranet or made available by other means deemed appropriate and e e e e e e e ective IV EMPLOYER’S OCCUPATIONAL HEALTH AND SAFETY OBLIGATIONS UNDER THE THE LAW OF THE THE OVERSEAS COUNTRY
In addition to ensuring compliance with the Finnish legislation it should be taken into account that the the legislation in in the the country of destination may also set requirements regarding occupational health and safety This may be the case particularly in situations where the employee is sent overseas for a a a a longer period than a a a a short business trip i i i i i i e e e e e typically for a a a a a temporary assignment in in another group company or based on on a a a a a a sub-contract with another party Although in Europe Europe the the legal framework of the the European Union sets certain similar requirements for di erent Member States even European jurisdictions may operate under very di di erent laws Naturally outside Europe the di erences can be and typically are even greater Also the approach to enforcement in di erent countries may di er from that in in Finland signi cantly Therefore in in in order to gain an an understanding of the obligations but also potential risks involved in in case an an occupational health and safety risk materializes it is is is advisable for the employer to seek local legal advice before sending personnel to to work in in a a a given territory V LIABILITY FOR THE BREACH OF OCCUPATIONAL HEALTH AND AND SAFETY OBLIGATIONS IN IN FINLAND
An employer’s breach of its occupational health and safety obligations may lead to both criminal and civil sanctions under Finnish legislation Under the Finnish Penal Code (39/1889 as amended) (in Fin: rikoslaki) an employer employer or the employer’s representative who intentionally or or or negligently for example violates work safety regulations or makes possible the continuation of a a a a a situation contrary to to to work safety regulations by neglecting to to to monitor compliance with them in work that he he supervises may be sentenced to to to a a a a ne ne or or or to to to imprisonment up to to to one year for a a a a work safety o o o o o o ence A criminal liability may also follow if the employer or its representative neglects to provide for the nancial organisational or or or other prerequisites for safety at work Under the Penal Code an ‘employer’s representative’ is a a a a a statutory or other decision-making body of the the employer entity such as a a a managing director director or or or the board of directors However an an individual who on behalf of the the employer directs or or supervises the the work can also be considered the employer’s representative The liability for the the work safety o o o o o o o ence is allocated to to the the person/-s into whose sphere of responsibility the act or negligence belongs In the case of an employer sending its employees to work abroad it is par- ticularly the the breach of of those of of the the pro- visions of the OHSA that have been addressed above that may lead to the employer or its representative fac- ing charges for a a a work safety o o o ence In other words should the the employer intentionally or out out of negligence fail to carry out out the risk assess- ment to inform and instruct the the employees about the the risks relating to to to work abroad and/or the the means as to to to how to to to best avoid the the risks or or how to to act act in case the risk materializes or or to to take action upon having become aware of a a a a a a materialized risk the employer or its representative could face a a a a a criminal sanction Taking into account that various obligations relating to to occupational health and safety in in in international working situations may fall upon di erent persons and levels in in the the organisation the the criminal liability may also spread throughout the the organisation starting from the the person(s) responsible for e e e e e e e e e g g executing the risk assessment up to to the top management who may have for example neglected to ensure that there are adequate nancial resources available for ful lling the employer’s occupational health and safety obligations In addition to individual punishments in in the the organisation the the legal entity may be sentenced to a a a a a corporate ne if a a a a a person who is part of its statutory organisation or or or or other management or or or or who exercises actual decision-making authority therein has for example allowed the the the commission of the the the o o o o o o ence ence or or if diligence necessary for the the the prevention of the the o o o o o o o ence has not been observed in the the operations of the employer entity A corporate ne may be imposed even if the the o o o o o ender cannot be identi ed ed or is is is otherwise not not punished 22
DUTY OF CARE OWED BY EUROPEAN ORGANISATIONS TO THEIR MOBILE WORKERS •
THE SCALE FOR CORPORATE FINES RANGES FROM EUR EUR 850 850 TO EUR EUR 850 850 000