The regulatory changes in risk governance and the duty of care towards travelling staff

In the last few years, some interesting initiatives have been launched having an impact on the duty of care and on the entire legislation concerning the security of workers.

In 2015, two laws were issued containing extremely important measures regarding the Employer’s duty of care towards travelling staff.

However, these measures may have not been taken into account by the workers in the accident prevention sector, since they have been included in legislation that does not refer to this sector.

Nevertheless, they have a very strong impact on the obligations related to the Employer and must be known and understood in full.

In 2016, the advisory commission at the Ministry of Labour specified – if it were necessary to do so – that the expression “all risks” means that workers must also be protected from risks that are external to working activities, but still have an impact on them, including wars, acts of terrorism, petty crime, etc.

In particular:

A. Law, 17 April 2015, no. 43 on: “Conversion into law, with amendments, of the law decree of 18 February 2015, no. 7, containing urgent measures to combat terrorism, including international terrorism … “- Article 19a dealing with” Measures on travellers security”.

  1. Law Decree, 14 September 2015, no.151 on: “Measures for the rationalisation and simplification of procedures and obligations for citizens and businesses and other measures on work relations and equal opportunities …” – Article 18, dealing with the “Abrogation of authorisation to work abroad” and more in particular the “Working conditions of Italian workers employed or transferred abroad“.
  2. Opinion of the Commissione degli Interpelli, 25 October 2016, no. 11 on: “art. 12, legislative decree no. 81/2008 and following modifications and integrations – in response to the opinion related to the environmental risks assessment and security on the workplace of travelling staff for airline companies”.

The first measure to be taken into account is Article 19a of the Law, 17 April 2015, no. 43.

The article establishes that: “The Ministry of Foreign Affairs and International Cooperation, also through the support of information bodies … publishes, through its institutional website, the conditions and the possible risks for the security of Italian citizens travelling abroad … it also indicates, via its own institutional website, low risk behaviours to adopt, including the recommendation not to travel to certain areas. However, the consequences of travelling abroad fall within the exclusive individual responsibility of those who take the decision to undertake or plan the travel“.

This last paragraph should be read in light of the principle of law referred to by the Court of Cassation with the judgement, no. 8486 of 8 April 2013 and according to which “it is the responsibility of the entrepreneur to assess if the activity of the company poses risks non related to the job, which impose the obligation to implement prevention measures“. Precisely, the aforementioned obligation “will have a content that cannot be theorised a priori“, but it can be clearly identified in real life in the light of the commonly used security techniques (Cassation no. 5048/88)”.

From the combined reading of the law and the principle of jurisprudence, the Employer’s responsibility for risk prevention, with particular reference to security risks, related to the sending of employees abroad, is clearly evident.

The website Viaggiare Sicuri states: “Recently, the international scenario went through a progressive change. New risk factors have emerged, giving rise to multiple threats which are hardly predictable. Today, more than ever, it therefore appears necessary to verify and understand in advance the context in which every citizen will be facing during the period abroad, using the available information and, above all, those made available by the Farnesina, which are the result of a qualified work of analysis aimed at encouraging conscious and responsible travel choices.

Among the types of risk that may involve Italian citizens abroad, the most dangerous today is certainly the growing aggressiveness of new terrorist groups carrying out attacks or kidnappings in areas considered as safe. The actions of terrorist groups do not only affect institutional targets but also the so-called “soft targets” (such as sports events, theatres, restaurants, hotels, clubs, schools, shopping centres and tourist facilities, as well air, sea and land transport), in particular those reporting a high presence of foreign citizens.

These attacks, though carried out to a greater extent in countries and areas at war or marked by significant critical issues such as Syria, Libya, Iraq or Afghanistan, have not, however, spared European capitals and other countries. Even through the intense work of monitoring and analysis by the bodies in charge is carried out, it is very difficult to foresee such events, as recent tragic episodes show. In any case, it is advisable that before any travel abroad, citizens take into account the directives addressed to them, carefully assessing the situation of the country they intend to visit.

The Viaggiare Sicuri website also states that “Once the decision to undertake a trip is taken responsibly, it is recommended that the citizens maintain a vigilant attitude and an appropriate behaviour, considering the places they visit. Above all, where the situation is precarious, it is suggested to communicate the movements through the Ministry of Foreign Affairs and International Cooperation website www.dovesiamonelmondo.it “.

With regard to the interpretation of art. 19a, a first jurisprudential ruling by the Court of Milan, which, with the Ordinance of 16 June 2015 of Section I, civil, gives an opinion on the question of the value of the information taken from the site Viaggiare Sicuri and notes that: “It is evident, therefore, that the information obtained from the “VIAGGIARE SICURI” website can be used to guide travellers’ choices and not, instead, to obtain reliable information on the security framework of a country“.

This ordinance is also compliant with what specifies the website of the Ministry, because it “provides the citizen with general information on foreign countries, including those relating to the conditions and possible risks for the security of those who undertake trips abroad, using sources deemed reliable, to allow informed and responsible choices. These conditions may, however, vary over time, in relation to the change of various factors – even of an environment nature – which are not always predictable, making the published data (which remain, however, only indicative) susceptible to continuous updates and changes. The Ministry of Foreign Affairs and International Cooperation is not, therefore, responsible for any damage to individuals or objects that may derive, directly or indirectly, from information published on the relative website. The responsibilities deriving from the choice to undertake a trip are also indicated in the art. 19 bis paragraph 3 of Law no. 43 of 17 April 2015, which converted into law the Law Decree no. 7 of 18 February 2015“.

From all of this, as noted above, the Employer is obliged to deepen the assessment of the risks present in the various countries, taking into consideration also what is reported on the Farnesina website, but not relying only on it. This in accordance with the measures of art. 28 of the Testo Unico sulla Salute e Sicurezza sul Lavoro, which requires the specific assessment of: “all risks to the workers’ health and safety, including those concerning groups of workers exposed to particular risks“.

The duty of the Employer is now explicit and explicitly confirmed by the measures of the Law Decree of 14 September 2015, no. 151 which relates to: “Measures for the rationalisation and simplification of procedures and obligations for citizens and businesses and other measures on work relations and equal opportunities “. The Decree, in art. 18, states that “the work contract for Italian workers to be employed or transferred abroad provides for:

  • An insurance for the journey to the place of destination and for the return trip, in case of death or permanent disability;
  • The type of logistical accommodation;
  • Adequate security measures“.

Therefore, even in the light of recent interventions by the Public Prosecutor against the Employer and in relation to incidents involving workers abroad as a result of the criminal activity of third parties, the Employer has to systematically proceed to a risk assessment and mitigation for the job performed abroad. This approach is now also confirmed by the Commissione per gli Interpelli pursuant to art. 12 of the Law Decree no. 81 of 2008.

The Commission itself, in the opinion no. 11 of 25 October 2016, related to the airline crew, answers the following question: “… if the legal obligation for the employer to assess all health and safety risks and, as a result, draw up a risk assessment document (Documento di Valutazione dei Rischi – DVR) also involves assessing the environmental and security situation keeping in mind security as well, particularly in foreign countries, but not only, including but not limited to geopolitical events, crimes by third parties, belligerency, and more generally all those factors potentially jeopardizing the psychophysical integrity of crews in the places (typically airports, hotels, route to and from airports and hotels and their surroundings) where they are operating and/or staying when on duty”.

In this regard, the Commissione considers that the Employer must “assess all risks, including potential and specific environmental risks related to the characteristics of the country in which the work will be performed, such as, for example, the so-called ‘aggravated general risks’ relating to the geopolitical situation of the country (e.g. civil wars, attacks, etc.) and to the healthcare conditions of the relevant geographical context; such risks are not considered abstractly, but shall be understood as having a reasonable and concrete chance of materialising in connection with the work carried out”.

In light of the above, we can confirm that Employers have a clear duty to protect their travelling staff.

Umberto Saccone, President of IFI Advisory