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IUS NOVUM
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2023, vol. 17, no. 3, pp. 47–56
COMPLIANCE AND ITS CONTRIBUTIONS
TO SAFETY AT WORK
PAULA ANDREA RAMIREZ BARBOSA*
DOI: 10.2478/in-2023-0021
ABSTRACT
Labour compliance is essential to protect workers’ rights and promote sustainable, responsible
and effective business development. It necessitates continuous preparation of preventive
compliance reports on occupational risks, usually requiring studies and their timely updates,
risk analysis, training-oriented resource management, and training of workers and managers.
Greater self-regulation, such as compliance, can help mitigate risk of penal sanctions for
individuals who fail to comply with risk prevention regulations, seriously endangering health
and safety at work. A robust and effective compliance programme in this area aims to ensure
legal and contractual obligations are met, particularly with respect to protecting the life and
health of workers. Compliance can also bolster company success, minimise reputational
damage for corporations, avoid payment of hefty fines and suspension of permits and licenses
that would halt operations, among others.
Keywords: compliance, safety and health at work, responsibilities, company, employer, workers
1. INTRODUCTION
Preventing occupational accidents is important not only to protect the life and
health of workers, but also to allow organisations with effective occupational
health and safety systems to save money and achieve their development objectives.
Work accidents and occupational diseases violate worker rights, negatively impact
the corporate charter goals, and affect corporations’ development. Each year sees
* PhD in Law from the University of Salamanca and master’s degree in political studies
from the University of Salamanca, Professor at the Universidad Católica and Externado de
Colombia (Colombia), e-mail: paramirez@ucatolica.edu.co, ORCID: 0000-0001-9739-1236.
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48 PAULA ANDREA RAMIREZ BARBOSA
fatalities and injurie among workers due to occupational accidents and diseases,
with over 2.78 million deaths and 374 million non-fatal injuries occurring in the
workplace. These result in an average of four days of work absenteeism.1 Cost
impact the economic, social and personal lives of workers, particularly affecting
their lives, health and integrity because of non-compliance with occupational health
and safety regulations. The highest rate of related deaths in this area stems from
occupational diseases rather than occupational accidents. Labour accidents produce
an economic impact of approximately 3.94 percent of the global Gross Domestic
Product annually.2
The violation of workers’ rights thrives in a labour market which is marked by
lack of preventive measures and characterised by precariousness, informality, and
emerging risks, intensifying workplace dangers and occupational accidents. On the
other hand, violence and harassment at work also affect worker health and safety,
as well as organisations’ productivity and reputation. Proof of this, in June 2019, at
the ILO Centenary Conference, the Violence and Harassment Convention (No. 190)
and its accompanying Recommendation (No. 206) were adopted, highlighting the
prohibition and prevention of workplace violence and harassment due to their
global consequences.3
In this context, occupational risks, technological advances, and evolving market
demands have prompted a shift in productive relationship conditions. The facts
demonstrate that observing measures aimed at promoting health and safety at work
is increasingly recognised as a valuable asset for companies. The Covid-19 pandemic
underscored the importance of prevention and control measures to protect those
involved in labour relations from exposure to this biological risk, and the necessity
to adopt measures preventing new infections.4
Exposure to the virus in the workplace and its impact on workers underscore
the need to prioritise company health and safety management, based on risk
assessment and the adoption of preventative and protective measures. These include
implementing strict work protocols, sanitary measures, adequate and sufficient
personal protective equipment, job design, work organisation, preventative training,
and surveillance of the workers’ health.5 Furthermore, worker participation and
1 OIT, Seguridad y salud en el trabajo frente a la pandemia, 2020, available at: https://www.ilo.
org/wcmsp5/groups/public/---americas/---ro-lima/documents/briefingnote/wcms_742469.pdf.
2 Available at: https://www.ilo.org/global/topics/safety-and-health-at-work/lang--es/
index.htm.
3 According to official data from the Spanish Ministry of Labour, “between January and
April 2021, 176,624 work accidents with leave and 176,522 without leave were recorded. The
sectors of economic activity with the highest accident rates are manufacturing industry and
construction. Despite a decrease in productive activities and the rise of teleworking, the number
of occupational accidents greatly exceeds the cases of the previous year. Accidents with sick leave
increased by 16.9% and accidents without sick leave by 8.5%. However, those that resulted in the
death of the worker were slightly reduced. There were 176 fatal accidents, eight fewer than in
the same period in 2020. Most of the victims were between 45 and 59 years of age at the time of
death.” Available at: https://cronicaglobal.elespanol.com/vida/aumentan-accidentes-laborales-
pesar-teletrabajo-nprs_511581_102.html.
4 OIT, Seguridad y salud…, op. cit.
5 Ibidem.
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49COMPLIANCE AND ITS CONTRIBUTIONS TO SAFETY AT WORK
cooperation and/or that of their representatives in managing this risk, particularly
through bipartite instances of social dialogue in companies or collective bargaining
are some of the crucial aspects in this regard. In this scenario, the importance of
compliance arises as an effective tool in preventing and delimiting corporate and
individual criminal responsibilities.6
II. THE CRIMINAL PROTECTION OF SAFETY
AND HEALTH AT WORK AND ITS PREVENTIVE RELEVANCE
Crimes related to workplace safety and health presuppose criminal law barriers
protecting life and health of workers as an essential assumption of the right to decent
and safe work.7 Protection in this area aims to avoid occupational risks by adopting
necessary preventative measures in various productive activities.8 The legally
obligated party is liable if he/she fails to provide workers with the safety measures
necessary for them to carry out their work safely and with the least possible risk.
Consequently, this safeguard is not limited to the rights of each individual worker,
but rather covers the interests of a group of workers who carry out their productive
work in a particular workplace.9
Taking into account the above, the lack of safeguards will include cases such
as failure to provide appropriate sanitary and environmental conditions, lack of
a general plan for the occupational hazards prevention, non-compliance with
measures related to the toxic and polluting substances treatment, absence of effective
actions against harassment, failure to provide biosecurity measures, lack of training,
or failure to update safety measures, among others.10
For example, the norm provided for in Article 316 of the Spanish Penal Code
penalises omissive conduct which consists of failing to provide necessary means
for workers to carry out their activity with the safety and health measures required
by labour regulations.11 Those legally obliged within the framework of their
functional powers, or assumed by an effective delegation, must provide specific
6
Ramírez Barbosa, P.A., Ferré Olivé, J.C., Compliance, Derecho penal corporativo y buena gober-
nanza empresarial, Bogotá, 2019.
7
Hortal Ibarra, J., Protección penal de la seguridad en el trabajo, Barcelona, 2004.
8
Ramirez Barbosa, P.A., El delito contra la seguridad y salud en el trabajo. Análisis dogmático
de los artículos 316 y 317 del Código Penal español, Madrid, 2007.
9
The typical conduct of this crime, in its wilful modality, is described in Article 316 of
the Criminal Code (Código Penal, CP), which penalises creating a danger or serious risk to the
life, health, or physical integrity of workers by not providing them with the necessary means to
ensure health and safety at work.
10 Article 317 CP punishes the typical conduct described in Article 316 CP when carried
out with serious negligence, which implies a breach of the duty of care due to the lack of all
provisions required of the guarantor of the safety and health of workers, but without awareness
of danger.
11 The measures consist of both material and immaterial ones. The latter include education,
information, training and updating of the worker.
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50 PAULA ANDREA RAMIREZ BARBOSA
and appropriate safety measures for each job, suitable in risk control and in the
development of workers’ productive activities.12
The duty of persons bound by extra-criminal regulations or by the assumption
of organisational duties through delegation must focus on facilitating the required
measures to prevent damage and avoid dangers at work, even if their conduct
does not entirely eliminate accidents or diseases at work.13 The extent of the unjust
damage caused by an offence relating to specific danger is determined by verifying
the breach of any specific obligations, as long as a risk to the safety and/or health
of workers arises, even if ultimately no damage is produced.14
As this constitutes a blank criminal type, non-observance of occupational risk
prevention regulations is required, mainly the Occupational Risk Prevention Law
and other legal provisions, as a necessary assumption of breach of the obligation to
protect health and safety at work. The consequent omission must entail a danger
to the life or health of affected workers.
This implies that the omissive conduct of the person responsible for adopting
safety measures generates a danger that could have been avoided or prevented,
had they adequately provided the means at their disposal. Obligated parties are
those in managerial or command functions within a corporation, whether superior,
intermediate, or basic execution. They exercise such functions both by regulatory
and factual obligations, and, therefore, must comply with and enforce regulations
to ensure work is conducted under safe conditions.15
The aforementioned legal measure is addressed to those legally obliged in this
area, including administrators or managers who fail to adopt the required measures.
Article 318 CP provides that, if the typical conduct is attributed to a legal person,
criminal responsibility falls not only on administrators but on any person responsible
or aware of the facts, even temporarily.16
Therefore, as provided by Law 1/2015 of 30 March measures such as the
suspension of activities, premises and establishments closure, the prohibition of
future activities during which the crime was committed, facilitated, or concealed
may be imposed. Similarly, the judicial authority may order disqualification
from obtaining subsidies and public aid, contracting with the public sector, and
enjoying tax or Social Security benefits and incentives, and may even order judicial
intervention to safeguard the rights of workers or creditors.17
12 Ramirez Barbosa, P.A., El delito contra…, op. cit., p. 153 et seq.
13 De Vicente Martinez, R., Seguridad en el trabajo y Derecho penal, Barcelona, 2001.
14 Ramirez Barbosa, P.A., El delito contra…, op. cit., p. 129 et seq.
15 Meini, I., Responsabilidad penal del empresario por los hechos cometidos por sus subordinados,
Valencia, 2003.
16 TS 162/2019 of 26 March 2019, Criminal liability of legal persons, where it is highlighted
that it is impossible in crimes against workers (Article 318 CP).
17 STS, Sala de lo Social 58, 19 January 2021, the criminal conviction of the company man-
ager does not prevent the imposition of an administrative sanction on the legal person for vio-
lating the regulations on occupational risk prevention. The decision states that: “the principle
»non bis in idem« has not been infringed, because the triple subjective, factual, and fundamental
identity required for the application of said principle does not coincide between the criminal
and administrative sanctions. Consequently, the criminal conviction of the company manager
as the perpetrator of a crime against the workers’ rights and another of injuries due to serious
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51COMPLIANCE AND ITS CONTRIBUTIONS TO SAFETY AT WORK
III. DELIMITATION OF RESPONSIBILITIES
IN SAFETY AND HEALTH AT WORK
The Spanish Law No. 31/1995 of 8 November 1995 on Occupational Risk Prevention
stipulates that every employer is obliged to guarantee the safety and health
of workers when they perform their tasks for that employer. To this end, every
employer should prevent occupational risks by implementing measures necessary
for this purpose.18
The omission in this crime can be intentional when the active party is aware of
their obligation to prevent risks, by providing and making available necessary safety
measures, yet deliberately decides not to carry it out, thereby seriously endangering
the life or health of workers. The omission will be considered imprudent when the
breach of obligations to provide security measures, did not account for the degree
of danger its absence caused, nor did it condone it.19
The necessity for criminal intervention in this crime is justified considering data
from the International Labor Organization, which highlights that “every 15 seconds,
a worker dies from a work-related accident or disease” and, in that same interval of
time, “every 15 seconds, 153 workers have a work-related accident”. Which means
that every day 6,300 people die as a result of occupational accidents or work-related
diseases. The impact on Human Rights is evident, and despite the existence of
multiple regulations of various natures, this serious problems persists.20
On a regulatory basis, crimes against workplace safety and health do not imply
direct liability of the legal person, and their occurrence requires the existence of
common rights and obligations to promote safe work with effective measures
to prevent occupational hazards, in accordance with the constitutional norm of
Article 40.2 of the Spanish Constitution, the laws on the prevention of occupational
risks, and other implementing legislation.21
It is crucial to identify and verify the type of legal and factual activities
assigned to the people within the business structure. The fundamental step is to
determine competence against the duty to provide appropriate workplace safety
negligence, does not prevent the company from being imposed a sanction for the infringement
of the regulations on occupational risk prevention”.
18 Law 31/95 of 8 November 1995 on Occupational Risk Prevention imposes a series of obli-
gations on the employer and the worker to guarantee safety and health at work. Article 42 of the
that Law provides that “failure to comply with their obligations in the prevention of occupational
risk area by employers gives rise to administrative responsibilities, and so, where appropriate, to
criminal and civil responsibilities for damages which can be derived from such non-fulfilment”.
19 Relevant regulations include the Royal Legislative Decree 5/2000 of 4 August 2000, which
approves the revised text of the Law on Infractions and sanctions in the social order; Royal
Legislative Decree 2/2015, of 23 October 2015, approving the consolidated text of the Workers’
Statute Law and Royal Legislative Decree 8/2015 of 30 October 2015 approving the text recast
of the General Law of Social Security. Additionally, there are sector-specific regulations related
to safety and health at work that are pertinent to its assurance.
20 Ramirez Barbosa, P.A., El delito contra…, op. cit., p. 156 et seq.
21 Lascuraín Sánchez, J.A., ‘La prevención penal de los riesgos laborales: cinco preguntas’,
in: Carbonell Mateu, J.C. (coord.), Dykinson, S.L. (ed.), Estudios penales en homenaje al profesor Cobo
del Rosal, Madrid, 2006, pp. 568–573.
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52 PAULA ANDREA RAMIREZ BARBOSA
and health measures, and if the breach of said obligation was the causative factor
in endangering workers’ life and health. Within this protective scope, it is important
to define the functions that may be performed by manufacturers, suppliers and
importers, promoters, technical architects, or prevention delegates, among others,
who are not directly charged with the duty to ensure the protection of the workers’
rights, but who contribute to the maintenance of specific safety measures in the
workplace, either by virtue of special powers mandated by the Law, or by specific
acts resulting from business decentralisation.
Failure to provide safety instruments at work implies not providing workers
with material means, which may coincide with a breach of the information, control,
and training duties, related to prevention of situations endangering the legal rights
of the worker. Nevertheless, it is pertinent to establish the scope of the ‘medium’,
and the existence of a link between the failure to observe workplace safety
instruments, and the danger to the workers’ interests. This also requires determining
the extent to which the omission of the particular safety measure contributes to the
creation of the typical risk.22
Non-compliance with occupational risk prevention policies, which endangers the
life and health of workers, must be a result of an intentional or reckless failure to fulfil
the company’s safety duties, by those legally or factually responsible, who are assigned
such duties. This includes the protective scope of criminal law. The commission
of a crime can be tied to deficient business policies in occupational risk prevention,
insufficient budget allocation for risk mitigation actions, deficiencies in delegation,
transferring security obligations to the employer, the undue Updating of the provisions
for detecting risks that lead to occupational accidents or business indifference.23
The prevention and protection of occupational safety and health should be
formulated from the design of the corporate project, highlighting the importance of
an effective compliance programme in preventing workplace accidents. It is, therefore,
necessary to implement good governance policies for anticipating risks that may affect
workers. This requires carrying out an initial evaluation of inherent work-related risks
and its periodic update as exogenous and endogenous circumstances of each productive
sector change. In addition, the compliance elements can reinforce corporate objectives
such as the adoption of information and training measures covering, inter alia, the
actual extent of risks arising from work, and strategies to prevent, mitigate, and address
them once they occur, considering the companies’ peculiarities, their corporate purpose,
number of employees and hazardous nature of the assigned tasks.24
22 “Compliance and safety management begins with your senior management team. It’s
their voice and actions that make safety a priority. It’s one of the key components of business
development. Without a safe and healthy workforce, it’s difficult to move forward. Productiv-
ity and the future often take a front seat. But don’t put worker safety aside. If you want to see
success all around, safety compliance management should certainly be a focus”. Available at:
https://www.safetybydesigninc.com/safety-compliance-services-company-management/.
23 Ramírez Barbosa, P., Ferré Olivé, J.C., Compliance, Derecho Penal Corporativo…, op. cit.,
p. 50 et seq.
24 Lascuraín Sánchez, J.A., ‘La delegación como mecanismo de prevención y de generación
de deberes penales’, in: AA.VV., Manual de Cumplimiento Penal en la Empresa, Valencia, 2015,
p. 172.
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53COMPLIANCE AND ITS CONTRIBUTIONS TO SAFETY AT WORK
IV. THE SIGNIFICANCE OF COMPLIANCE
IN WORKPLACE RISK PREVENTION
Introducing compliance programmes to prevent risks that may affect the safety and health
of workers, starts with the commitment of senior business management and a recog-
nition of the importance of compliance management in this area as a key factor for
successful work. There are both legal and ethical obligations aimed at guaranteeing that
productive activities are carried out safely and are timely updated in response to the
endogenous and exogenous risks of each productive activity. Additionally, workplace
safety can affect a company’s reputation and be one of the deciding factors for customers
to choose its products or services over those of its competitors. The priority is to foster
a culture of occupational health and safety compliance that reinforces the protection of
the essential rights of workers in all companies.
Compliance aimed at preventing occupational accidents involves more than
just the absence of unforeseen risks. It signifies a substantial commitment to make
occupational health and safety one of the focal points of every activity carried out.
When a company prioritises safety compliance, its managers design key indicators
and strategic objectives, which are then integrated into compliance programmes,
thereby fostering good corporate governance.
Once there is a clear vision of what a safe work environment will entail,
alongside measurable objectives to determine progress, the implementation of
specific actions for the prevention, control, mitigation, and handling of occupational
risks will be effective in the company’s organisational culture. Conversely, the lack
of such measures has a negative impact on the development and management of
social objectives. Health and safety compliance directly affects the realisation of the
corporate social purpose and productivity in the company. Good compliance
measures can reduce overhead costs and foster a healthier organisational culture
required for sustainable success.25
An effective compliance program should: (a) Implement specific actions
that ensure workers have an adequate system in their workplaces. (b) Possess
information systems and real-time risks reporting in response to the individual
needs of each company. (c) Consider the company characteristics, the endogenous
and exogenous risks to the business activity, including the specific location, number
of workers, capacity building and training systems. (d) Allocate financial resources
and budget for health and safety compliance that must be adequate to achieve
an authentic culture of risk prevention at work. (e) Maintain measures aimed at
training, informing, and supporting all company members and related third parties
in health and safety matters as a strategic priority. (f) Conduct assertive and regular
communication with workers regarding business changes, risk updates, regulatory
and contractual developments relevant to the prevention and assurance of workplace
safety and health, among others.
25 Ramírez Barbosa, P.A., Olivé Ferré, J.C., Compliance, Derecho Penal Corporativo…, op. cit.,
p. 160 et seq.
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54 PAULA ANDREA RAMIREZ BARBOSA
In this area, it is advisable to conduct continuous audits that can either be
internally led or carried out by an external security consultant. Compliance measures
regarding safety should aim to avoid complex reporting systems, inadequate
training, and workload overflows that, despite the intention of observation, imply
inefficiency in their implementation. This implies that workers have sufficient
time to fulfil any reporting requirements, or that the security team is adequate,
hence the level of compliance and willingness to comply must then be articulated.
This leadership is only possible if top management considers health and safety
compliance a priority in their activities.
Compliance procedures are integrated with continuous monitoring, directed
towards risk assessment, measures adopted, and their progress. The evaluation and
supervision can stimulate implementation of additional measures, if required, and the
consolidation of an organisational culture of compliance with workplace safety and
health. The above should be complemented by periodic reviews and evaluations of
changes and business policies for risk management and productivity levels, allow the
implementation of any additional measures if needed.26
An effective and business development-oriented compliance programme in
the field of occupational health and safety must include in its structure a Code
of Ethics that includes specific actions against workplace and sexual harassment,
and other elements aimed at promoting ergonomics at work. Occupational risk
prevention models and internal complaint channels will yield positive results for
the company, but more importantly, a tangible protection of the fundamental legal
rights of workers as subjects of special protection.27
V. CONCLUSIONS
Compliance in the area of occupational health and safety encompasses a wide array
of laws, regulations, and standards aimed at preventing occupational accidents,
imposing duties on various public and private market players. These actions entail
measures to prevent dangerous situations for workers’ fundamental rights due to
non-compliance with provisions on safety measures, and to avoid occupational
deaths and diseases.
26 The crime against safety and health at work involves determining within the company who
is assigned the duties in Occupational Risk Prevention. These individuals can be integrated into
the business compliance system and be subject to supervision. The Compliance Officer role does
not eliminate the responsibility of the person legally obliged to provide the workplace safety and
health measures, and the occupational risk prevention delegate. In particular, the prevention techni-
cian is responsible for prevention in terms of occupational risk prevention; the prevention delegate
represents workers with specific functions in the field of occupational risk prevention; and the
compliance officer supervises regulatory compliance in all areas of the company, including obser-
vance of the Law 31/1995 on Occupational Risk Prevention and the regulations that develop its
provisions.
27 Ramírez Barbosa, P.A., Olivé Ferré, J.C., Compliance, Derecho Penal Corporativo…, op. cit.,
p. 160 et seq.
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2023, vol. 17, no. 3
55COMPLIANCE AND ITS CONTRIBUTIONS TO SAFETY AT WORK
Labour compliance is essential to protect workers’ rights and promote
sustainable, responsible and effective business development. It necessitates
continuous preparation of preventive compliance reports on occupational risks,
usually requiring studies and their timely updates, risk analysis, training-oriented
resource management, and training of workers and managers.
Greater self-regulation, such as compliance, can help mitigate risk of penal
sanctions for individuals who fail to comply with risk prevention regulations, seriously
endangering health and safety at work. It is necessary to develop Transparency and
Business Ethics Programmes and similar instruments with a preventive focus as
effective mechanisms preventing crimes against workers’ rights, despite the lack of
legal person responsibility in this sector in countries like Spain.
A robust and effective compliance programme in this area aims to ensure legal
and contractual obligations are met, particularly with respect to protecting the life
and health of workers.
Compliance can also bolster company success, minimise reputational damage
for corporations, and avoid payment of hefty fines and suspension of permits and
licenses that would halt operations, among others. It is essential to fortify compliance
actions in defence of the life and health of workers by detecting, prosecuting, and
effectively penalising individuals responsible for failing to provide the necessary
security means to prevent workplace accidents, whether due to fraud or recklessness.
When criminal and/or administrative responsibilities have been established, there
must be appropriate, practical, and effective sanctions to deter others from causing
similar harm.
Additionally, building a labour compliance programme in risk prevention
serves as a helpful instrument in preventing crime and serious administrative
offences in this area, alongside effective internal accounting controls and adequate
risk management, followed by policies and updated procedures tailored to the
corporation. These should be backed by the supervision of those responsible for
protecting workers’ legal assets.
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Cite as:
Ramirez Barbosa P.A. (2023) ‘Compliance and its contributions to safety at work’, Ius Novum
(Vol. 17) 3, 47–56. DOI 10.2478/in-2023-0021
