The role of the Inspectorate SZW in safe working at height
Date: Oct. 12, 2020
Modified November 14, 2023
Written by: Ruud Olde
Reading time: +/- 2 minutes
Date: Oct. 12, 2020
Modified November 14, 2023
Written by: Ruud Olde
Reading time: +/- 2 minutes
Falling hazards are one of the most common causes of occupational accidents. Therefore, it is not for nothing that high demands are placed on an employer's duty of care in the roofing industry. In Roofs 2019 " Roofs 2019-06 June, Antoinette Niebeek already addressed the employer's far-reaching duty of care.
This contribution discusses the role of the Inspectorate SZW in monitoring and enforcing safe working at height. The Inspectorate SZW's approach is to improve safety in companies and reduce the number of occupational accidents. The Inspectorate SZW has various powers and enforcement instruments at its disposal. These are discussed in more detail using the following case study.
A one-man business specializes in roofing and building roof structures. The owner is working with an employee on a sloping thatched roof at a height of about 5 meters. In the process, no provisions have been made on one side of the roof to prevent the danger of falling. This is witnessed by two labor inspectors who drop by unexpectedly.[1]
The Inspectorate SZW oversees fair, healthy and safe work. It checks whether employers and employees comply with laws and regulations. This article focuses on supervision and enforcement of safe working at height.
Under the Occupational Health and Safety Act, employers must make adequate provisions for all work involving a risk of falling. Examples include the erection of safe scaffolding or the installation of railings or fencing. This is primarily for the protection of the employee working at height, but also because of the danger of an employee - or a passerby - being hit by a falling object. According to the Occupational Health and Safety Act, there is a danger of falling in any case in the presence of risk-increasing conditions, openings in floors, or if there is a danger of falling 2.5 meters or more.
As in the case above, the Inspectorate SZW does not always announce its visit. An inspector can visit without an appointment and may check the workplace without the permission of the business owner. The inspector may ask to see documents and ask questions of employees. In addition to conducting inspection visits, the inspection also investigates serious workplace accidents.
If the inspector finds during an inspection visit or after a labor accident that employers or employees are violating labor laws, the Inspectorate SZW takes enforcement action. The Inspectorate does this with a mix of instruments such as warnings, fines and stoppages. Which measure is taken depends on the severity of the violation. In the case above, based on the inspectors' fine report, the Minister SZW had imposed a fine on the employer for violating Section 3.16 of the Occupational Health and Safety Decree.
Now suppose that the roofer in the case study is inspected again several months later while at that time working without (roofing) scaffolding and fall harness. In that case, the Inspectorate could impose a doubled fine and a warning preventive stoppage of work.
Preventive shutdown is intended as an "ultimum remedium. This sanction can only be imposed if there is a repeated (similar) violation and the company has previously received an official warning. With a preventive shutdown, in principle, the work associated with the violations that have been committed is halted. In exceptional cases, the inspection may choose to shut down all work at a location or company. When designating work to be halted, the social consequences are taken into account. The economic consequences for third parties and the nature and extent of the violation are also taken into account.
In addition to a fine, a warning and a preventive shutdown are sanctions that regularly follow an inspection visit or a workplace accident. It is very important for employers to check whether the sanctions have been rightly imposed. A preventive shutdown in particular can have enormous (financial) consequences for business operations.
It may happen that your company unexpectedly does face a fine, warning or preventive shutdown. What can you do?
Pay attention to the role of the Inspectorate SZW in training and make sure employees know what is expected of them during an unannounced inspection.
Before a fine, warning or preventive shutdown is finally imposed, the Inspectorate SZW sends a letter about the intention. This letter gives you the opportunity to submit your views within two weeks. The opinion can explain why your company does not agree with the fine or warning and what measures have been taken to prevent further violations. Don't miss this opportunity.
You can object to the sanction imposed and, if necessary, appeal. If in the proceedings it turns out, for example, that the Inspectorate SZW has wrongly found a violation, or you as an employer can be blamed for a strongly diminished offense, this may lead to the withdrawal of the warning in addition to the withdrawal or reduction of the fine. If necessary, engage expert parties to support your position.
A preventive shutdown warning may hang over your head like a sword of Damocles. This is because an official warning remains in effect for five years. During that period, a company runs the risk of shutting down operations if another violation is found. You can request the withdrawal of the written warning. To do so, you must actively address the points for improvement. If the measures have been sufficiently and demonstrably implemented, you can submit a withdrawal request.
Finally, it is relevant that the Inspectorate SZW has a new approach to workplace accidents in which the victim suffered minor injuries. Under this approach, the employer is given its own responsibility. The employer himself must identify the circumstances of the accident and draw up an improvement plan. Accidents where the victim is seriously injured or where someone has died will continue to be investigated by the Inspectorate SZW in the regular way.
[1] ABRvS, Feb. 13, 2019, ECLI:NL:RVS:2019:423.
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