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Royal Decree 216/1999, Of 5 February, On Minimum Requirements For Safety And Health At Work In The Field Of Temporary Work Companies.

Original Language Title: Real Decreto 216/1999, de 5 de febrero, sobre disposiciones mínimas de seguridad y salud en el trabajo en el ámbito de las empresas de trabajo temporal.

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Article 28 of the Law of 8 November 1995 on the Prevention of Occupational Risks, relating to temporary employment relationships, of a given duration and in temporary employment, provides that workers with the right to work These working relationships should enjoy the same level of security and health protection as the remaining employees of the company in which they provide their services. To that end, the article lays down the duties and obligations of a preventive nature which correspond to the undertaking in which the services required are provided and, where appropriate, those to be assumed by the temporary work undertaking.

Directive 91 /383/EEC of the Council of 25 June on the completion of measures to promote the improvement of the safety and health of workers with a working relationship of a certain duration or of undertakings In the case of a temporary employment, it is concluded that, in general, workers in temporary employment undertakings are more exposed than the other workers in certain sectors to the risks of accidents at work occupational diseases, adding that the additional risks mentioned are partly related to specific modes of integration in the enterprise, and that such risks can be reduced by appropriate information and training from the start of the employment relationship.

In the case of temporary employment companies, the reference in the Directive to the specific modes of integration in the enterprise is to assess the peculiar triangular relationship generated by the contract for the provision of Law 14/1994 of 1 June 1994 regulating temporary employment undertakings, in such a way that the worker employed by a temporary work firm provides services within the organisational scope of a different undertaking, the user undertaking, with its consequent effects on its presence in a field of working conditions, and with this of occupational risks, which is not that of your employer. It is this circumstance that motivates the obligations of these two entrepreneurs to be dealt with in a special way, in particular by reinforcing those relating to information and training, where the reduction of risks is conducive to this. laying down measures limiting the performance of certain work in which, due to its particular danger, the adoption of preventive measures of a different nature does not guarantee adequate levels of safety.

On this line, Law 14/1994 of 1 June established specific training obligations for the temporary work company and obligations of the user undertaking in the field of safety and health protection. of the workers, as well as of information to them on the risks of the job to be developed and on the measures of prevention and protection to be applied. For its part, the Royal Decree 4/1995 of 13 January, for which the abovementioned Law is developed, formalised the reporting obligations as an integral part of the content of the contracts for making available and the contracts themselves temporary work and orders for the service of contract workers. Finally, Article 8 of Law 14/94 cited the impossibility of concluding contracts for the making available of those activities and works in which it is to be determined, in accordance with its special rules, dangerousness.

In order to integrate and develop the abovementioned legal principles, taking into account the content of the abovementioned Directive 91 /383/EEC, it is necessary, by means of this Royal Decree, to make the necessary measures for the implementation of the specific duties and obligations of temporary work enterprises and of user undertakings in the recruitment and development of this type of work, in order to ensure the right of workers to the same level of employment. protection of their safety and health, which the remaining employees of the company in which they are provide their services, as well as establishing the relationship of activities and works which, due to their particular danger, should be excluded from the conclusion of making contracts available.

In its virtue, in accordance with the provisions of Article 6.1.f) of Law 31/1995, of 8 November, of the Prevention of Occupational Risks, and in Article 8.b) of Law 14/1994 of 1 June, on which undertakings are regulated temporary work, on a proposal from the Minister of Labour and Social Affairs, consulted by the most representative employers ' and trade unions, heard by the National Commission on Safety and Health at Work, in agreement with the State Council and after deliberation by the Council of Ministers at its meeting on 5 February 1999,

DISPONGO:

Article 1. Object and scope of application.

1. This Royal Decree establishes, within the framework of Law 31/1995 of 8 November of the Prevention of Occupational Risks, the minimum specific provisions for the protection of the safety and health of workers employed by undertakings in the temporary work governed by Law 14/1994 of 1 June 1994 to be made available to user undertakings, in order to guarantee these workers, whatever their mode of employment, the same level of protection as the remaining employees of the company in which they provide their services, as well as the determination of the activities and work on which, due to their particular danger, no contracts for making available may be concluded.

2. The provisions of Royal Decree 39/1997 of 17 January 1997 on the Regulation of the Prevention Services shall apply in full in the field referred to in the preceding paragraph, without prejudice to specific provisions provided for in this Royal Decree.

Article 2. Provisions concerning the conclusion of the contract for making available.

1. Prior to the conclusion of the contract for making available, the user undertaking must inform the temporary agency of the characteristics of the job and of the tasks to be carried out on its risks. (a) vocational training and the skills, skills and professional qualifications required, all from the point of view of the protection of the health and safety of the worker to be employed and of the other workers of the user company. To this end, the conclusion of a contract for the provision of a contract will only be possible for the coverage of a job in respect of which the mandatory occupational risk assessment has been carried out in advance, in accordance with the provisions of the Article 15 (1) (b) and 16 of the Law on the Prevention of Occupational Risks and Chapter II of the Prevention Services Regulation.

2. The information referred to in the preceding paragraph shall necessarily include the results of the risk assessment of the job to be covered, with the specification of the data relating to:

(a) General occupational hazards existing in the workplace and which could affect the worker, as well as the specific job opportunities to be covered.

(b) Prevention measures to be taken in relation to the general and specific risks which may affect the worker, including the reference to the individual protective equipment to be used and which shall be placed at their disposition.

c) Training in the prevention of occupational risks to be possessed by the worker.

(d) Health surveillance measures to be taken in relation to the job to be carried out, specifying whether, in accordance with the applicable rules, such measures are of a mandatory or voluntary nature for the worker and their periodicity.

3. The information provided for in paragraphs 1 and 2 of this Article shall in any event be incorporated into the contract for making available.

Article 3. Provisions concerning the conclusion of the contract of employment.

1. For the implementation of the contract of provision, the temporary work undertaking shall contract or assign the service to a worker who meets, or may, if necessary, meet the training referred to in paragraph 3 of this Article, the requirements laid down therein for the prevention of occupational risks, making sure that they are appropriate in this respect.

2. The workers referred to in the preceding paragraph shall be informed in advance by the temporary work undertaking of any information received from the user undertaking in accordance with Article 2. Such information shall be incorporated into the also to the specified duration work contract or service order, if any.

3. The temporary work undertaking must ensure that the worker, in advance of his/her making available to the user undertaking, has the theoretical and practical training in preventive matters necessary for the job to be performed.

To this end, it will verify that the training of the worker is the required one and that it is updated and adapted to the evolution of the teams and working methods and to the progress of the technical knowledge. If not, it must provide the worker with his own or concerted means of training for the time required, which shall form part of the duration of the contract for making available, but shall, in any event, be provided to the worker. effective provision of services.

If there is a need for a special training in the workplace, this part of the training may be carried out by the temporary work company in the user company itself, before the effective start of the work. This training may also be provided by the user undertaking, under the temporary work undertaking, after written agreement between the two companies.

4. The workers made available are entitled to the periodic monitoring of their health by the temporary work undertaking in the terms provided for in Article 22 of the Law on the Prevention of Occupational Risks and in Article 37.3 of the Regulation of the Prevention Services, taking into account the characteristics of the job to be performed, the results of the risk assessment carried out by the user undertaking and how much additional information is required by the responsible physician.

5. The temporary work undertaking must prove to the user undertaking that the worker at his disposal has received the information relating to the risks and preventive measures, has the necessary specific training and has with a health status compatible with the job to be performed.

This documentation will also be available to the prevention delegates or, failing this, the legal representatives of the workers in the temporary work company, and of the persons or bodies with competence in preventive material on the same.

Article 4. Obligations of the user undertaking prior to the commencement of the provision of the worker's services.

1. The user undertaking shall obtain the necessary information from the temporary work undertaking to ensure that the worker at his disposal meets the following conditions:

(a) It has been deemed to be fit through an adequate recognition of its health status for the performance of the services to be provided under the conditions under which it is to be performed, in accordance with the provisions of the Article 22 of the Law on the Prevention of Occupational Risks and Article 37.3 of the Prevention Services Regulation.

b) It has the qualifications and skills required for the performance of the tasks entrusted to it under the conditions in which it is to be carried out and has the necessary training, all in relation to the prevention of the risks to which it may be exposed, as provided for in Article 19 of the Law on the Prevention of Occupational Risks and its provisions for development.

(c) has received the information concerning the characteristics of the job and the tasks to be carried out, the qualifications and skills required and the results of the risk assessment to which it is Reference to Article 2 of this Royal Decree.

Likewise, the user company will inform the worker, as well as the risks to their health and safety, both of those who are in general in the company and of the specific of the post of work and tasks to be carried out, and on the appropriate prevention and protection measures and activities, in particular as regards possible emergency situations.

2. The user undertaking shall not permit the commencement of the provision of services in the same way as a worker at his disposal until he has been satisfied with the obligations of paragraph 1 above.

3. The user undertaking shall inform the prevention delegates or, failing that, the legal representatives of their employees, of the incorporation of any worker made available by a temporary work undertaking, specifying the position of work to be carried out, their risks and preventive measures and the information and training received by the worker. The worker may address these representatives in the exercise of their rights recognised in this Royal Decree and, in general, in the whole of the legislation on the prevention of occupational risks.

The information referred to in the preceding paragraph shall also be provided by the user undertaking to its prevention service or, where appropriate, to designated workers for the development of preventive activities.

Article 5. Obligations of the user undertaking from the start of the provision of the worker's services.

1. The user undertaking shall be responsible for the conditions of execution of the work of the workers made available to him by a temporary work undertaking in all matters relating to the protection of his health and safety, by assuring them himself. level of protection than the remaining employees of the company.

2. In the case of the coordination of business activities referred to in Article 24 of the Law on the Prevention of Occupational Risks, account must be taken of the incorporation in any of the concurrent undertakings of workers to be made available by a temporary work company.

3. In order to enable the temporary work undertaking to fulfil its obligations in relation to the periodic monitoring of the health of workers made available, the user undertaking shall inform the undertaking of the results of the assessment of the risks to which such workers are exposed, with the required periodicity. Such information shall, in any event, include the determination of the nature, degree and duration of the workers ' exposure to agents, procedures or working conditions which may have a negative impact on their health, or which they may be relevant in order to assess subsequent employee additions to the same or different user undertaking.

Article 6. Provisions concerning the organisation of preventive activities in the temporary work undertaking and in the user undertaking.

1. Temporary work enterprises must organise their resources for the development of preventive activities in relation to their employees, including contract workers to be made available to user undertakings, in accordance with the Provisions of Chapter III of Royal Decree 39/1997 of 17 January 1997 on the Regulation of the Prevention Services. In order to determine the form of organisation to be used and the means and resources required for such activity, temporary contract workers to be made available to user undertakings shall be counted on average. monthly of workers on the high for the last twelve months.

2. User undertakings shall account for the monthly average of workers made available to them by temporary employment undertakings in the last 12 months in order to determine the means, resources and arrangements for the organisation of their activities. prevention in accordance with the provisions of Chapter III of the Prevention Services Regulation.

3. Without prejudice to the functions and responsibilities of the temporary work undertaking in the organisation of preventive activities, workers made available to a user undertaking may at all times be able to apply to workers or to the prevention services existing in the user undertaking, on an equal footing with the other employees of the user undertaking.

The designated workers or, their case, the prevention services of the temporary agency and the user undertaking must coordinate their activities in order to ensure adequate protection of the health and safety of the workers. workers made available. In particular, any information relevant to the protection of the health and safety of such workers shall be transmitted, without prejudice to the confidentiality of the medical information of a personal nature to which the Article 22 of the Law on the Prevention of Occupational Risks.

Article 7. Documentation.

1. The documentation relating to the information and data referred to in this Royal Decree shall be recorded and maintained by the temporary work company as well as by the user undertaking, in the terms and for the purposes specified in the article. 23 of the Labor Risk Prevention Act.

2. The user undertaking shall be obliged to inform the temporary work undertaking in writing of any damage to the health of the worker, as provided for in the development of his work, in order to enable it to comply with the obligation of notification referred to in Article 23 (3) of the Law on the Prevention of Occupational Risks, within the time limits and terms laid down. In the event of non-compliance by the user undertaking of this reporting obligation, that undertaking shall be responsible for the effects arising from the non-compliance by the temporary work undertaking of its reporting obligation.

3. In the notification by the temporary work undertaking to the labour authority of the damage caused to the health of the workers made available, the name or social name of the user undertaking, its sector of activity, shall be recorded in any case. the activity and address of the centre or place of work where the damage occurred.

Article 8. Activities and work of particular danger.

In accordance with the provisions of Article 8 (b) of Law 14/1994 of 1 June 1994 governing temporary employment undertakings, no provision may be made for the provision of a contract for the implementation of the the following work on special hazard activities:

(a) Work in construction works referred to in Annex II to Royal Decree 1627/1997 of 24 October establishing minimum safety and health requirements for construction works.

(b) Open and indoor mining works referred to in Article 2 of Royal Decree No 1389/1997 of 5 September 1997 laying down minimum requirements for the protection of the safety and health of workers workers in mining activities, which require the use of mining techniques.

(c) Own works of the extractive industries by land-based surveys referred to in Article 109 of the General Basic Standards Regulation of Minera, as amended by Royal Decree 150/1996 of 2 December 1996. February.

d) Jobs on offshore platforms.

e) works directly related to the manufacture, handling and use of explosives, including pyrotechnic articles and other objects or instruments containing explosives, covered by the Regulation explosives, approved by Royal Decree 230/1998 of 16 February.

(f) Work involving exposure to ionising radiation in areas controlled by Royal Decree 53/1992 of 24 January on health protection against ionizing radiation.

g) Jobs involving exposure to carcinogenic, mutagenic or toxic agents for reproduction, first and second category, according to Royal Decree 363/1995 of 10 March, which approves the Regulation on the notification of new substances and classification, packaging and labelling of dangerous substances, and Royal Decree 1078/1993 of 2 July 1993 on the classification, packaging and labelling of dangerous preparations, and their respective standards for development and adaptation to the technical progress.

(h) Work involving the exposure to biological agents of groups 3 and 4, according to Royal Decree 664/1997 of 12 May on the protection of workers from the risks related to exposure to agents biological during the work, as well as its standards of modification, development and adaptation to technical progress.

i) Jobs with high voltage electrical hazards.

Single end disposition. Powers of development.

The Minister of Labour and Social Affairs is hereby authorised to issue, on the basis of a report from the National Commission on Safety and Health at Work, how many provisions are necessary for the implementation and development of this Royal Decree.

Given in Madrid to February 5, 1999.

JOHN CARLOS R.

The Minister of Labour and Social Affairs,

MANUEL PIMENTEL MISSILES