Croatia: Limited outsourcing possibilities for health and safety tasks
A new act on health and safety (the “Act”) limits outsourcing possibilities for health and safety tasks.
Agreements with external professionals for performing occupational health and safety tasks (either natural or legal persons authorised by the Institute for Improving Occupational Health and Safety) should, according to the new Act, become an exception. Only in cases when the employer due to objective and justified reasons is not able to perform occupational health and safety tasks himself or is not able to consign these tasks to one of his employees, can the employer mandate an external person to perform occupational health and safety tasks (outsourcing).
When the new Act came into force in June 2014 it caused uncertainty regarding the proper application of the provisions regulating when an employer was not obliged to perform occupational health and safety tasks within its organisation (by itself or by consignment to one of his employees) and was authorised to mandate external professionals. Due to unclear provisions there is a big number of employers, especially small employers (who have up to 49 employees), who have mandated external professionals to perform occupational health and safety tasks. Such course of action is beneficial for employers since on the one hand the tasks are performed by persons specifically educated to perform occupational health and safety tasks and who are experienced in this area, and on the other hand their employees can fully concentrate on their primary tasks and assignments. Another consequence of outsourcing health and safety tasks was an increase in the business activity of persons authorised to perform occupational health and safety tasks.
A new regulatory provision which came into force on 25 April 2015 clarifies this ambiguity. The new provision defines in detail the meaning of the term “objective and justified reasons” and lists four cases where the employer is allowed to mandate an external professional to perform occupational health and safety tasks. The four cases are the following:
- the employer has just started operating or has not been operating for more than 3 months since the day when its occupational health and safety obligations commenced,
- due to unexpected reasons (death, termination of employment agreement etc.) the employer is temporarily, but in any case no more than up to three months from the day such unexpected reason occurred, without the employee who acted as an occupational health and safety specialist,
- the employer has up to 249 employees and none of the employees has the necessary professional qualification for taking the exam to become an occupational health and safety specialist,
- due to a temporary increase in the number of employees the burden of occupational health and safety obligations has also temporarily increased.
If this provision is not changed, there is a possibility that professionals performing health and safety tasks for third persons will lose a great part of their business. What is more, employers will have to educate one or more of their employees to become an occupational health and safety specialist (or employ a new employee who already has the title) and this will reduce the relevant employee’s capacity to perform primary work tasks and assignments as existing obligations are increased by occupational health and safety tasks.
In light of the above, the Croatian Employers Association (HUP) together with professionals performing occupational health and safety tasks has suggested amendments to the mentioned provision. The suggested amendments propose to expand circumstances when employers (especially small employers performing low risk work) are authorised to mandate external professionals to perform occupational health and safety tasks.
As many employers have already outsourced health and safety tasks to external professionals employers (other than in the four cases listed above) will have to keep an eye on the subject of discussion. If the new provision is not changed by 25 January 2016 when it is due to come into force, employers will have to terminate such agreements with external professionals and engage an internal health and safety expert.