web viewthe word "special" is found in the very directive n. 91/383/eec pursuant to ......
TRANSCRIPT
Health and Safety Legislation and Flexible Employment
Summary: 1. Introduction: Why study health and safety with reference to flexible employment-. 2. The new flexible employment rules and the latest Health and Safety Legislation; a) The legislative framework b) Health and safety rules applicable to flexible working types. ; c) The definition of "worker" in the matter of health and safety at work.. d). Recent changes to the rules on health and safety at work and non-standard work. 3. The European directive on health and safety in flexible employment. 4. Non-standard forms of work and health and safety. Promotion of health and safety at work : The prohibitions on the use of flexible forms of work in the absence of risk assessment in the company. 5. Preventive aspects on fixed-term contracts. 6. Protection of health and safety in temporary agency work. 7. Health and safety in apprenticeship job contracts. 8. Conclusions.
1. Introduction: Why study health and safety with reference to flexible employment
Economic crisis, globalization and new organizational production systems produced a trail of
increased unemployment and social exclusion all over the world, Europe and Italy not excluded (1).
Since the '90s, the Italian legal system-in the wake of the European Employment Strategy (EES)
first, and of the Lisbon process afterwards - adopted a labor market policy aimed at giving more
space to non standard forms of employment (2) also to facilitate the entry into the formal labor
market in order to curb undeclared work (informal economy) (3).These types of contracts are used
to hire also the so-called Priority Groups (4), i.e. target of disadvantaged population, subject to
greater health and safety at work risks (5).
1() ROMAGNOLI, Il diritto del lavoro nell’età della globalizzazione, in Lavoro e Diritto, n. 4, 2003, 569 ss; SCIARRA, Globale e locale: prove di razionalità per il diritto del lavoro, in Sociologia del diritto, 2004, n. 3, 23. 2() There is no official definition of “non-standard forms of employment”. Typically, NSFE covers work that falls outside the scope of a standard employment relationship, which itself is understood as being full-time, open-ended work, within a subordinate employment relationship, see. Non-standard forms of employment, ILO, Geneva, 2015.3() For literature references since the ‘90s , see the following reconstruction, containing also doctrinal references: DEL PUNTA, Dal Protocollo Giugni al Decreto Biagi, in ICHINO (a cura di), Il diritto del lavoro nell’Italia repubblicana, Giuffré, 2008, 253 ss. For an economic analysis see: NANNICINI, L’analisi economica della flessibilità nel mercato del lavoro,” in Lavoro flessibile: opportunità o vincolo?, Franco Angeli Edizioni, 2005, 71-82.4() OSHA, Workforce diversity and risk assessment: Ensuring everyone is covered, OSHA, 2009, in osha.europa.eu.5() Ageing workers, Migrant workers, People with disabilities, Women, Young people, see. https://osha.europa.eu/en/priority_groups; see also the OSHA project “Safer and healthier work at any age – occupational safety and health (OSH) in the context of an ageing workforce” that aims at assessing the prerequisites for OSH strategies and systems in order to take into account an ageing
1
On the basis of the constitutional principle of the fundamental right to health the employer should
therefore ensure -even at higher costs -, specific measures to guarantee health and safety at work
(6).
The need for greater protection for flexible job contracts (or for trainee) is explained if we evaluate
the condition of greater risk faced by workers hired through flexible forms of work.
This statement is largely supported by researches carried out by Eurispes / Ispesl in 2003: -
"Accidents at work and atypical work" (7) and by the European Agency for Safety and Health at
Work in 2002: “New forms of contractual relationship and implications for occupational safety and
health”(8).
These reports noted how there is "a strong relationship between precarious employment (which
depends on having a stable contract or not) and poor working conditions".
The fragmentary and temporary characters of flexible working are often accompanied by a lack of
adequate information. and appropriate training, causing a risk exposure equal to twice or three times
that of a worker permanently inserted in the company.
In this regard, and with reference to temporary workers (hired by an agency), it has been observed
that the temporary nature and, consequently, the low level of knowledge of the work environment
produce insecurity and discomfort, exposing temporary workers to a greater risk than workers
employed with standard employment contracts.
The reason is that flexible workers are not able to develop what psychologists call "perception of
group risk", i.e. the ability to perceive implicitly or explicitly the agreements adopted by the
community of workers to overcome situations of danger or emergency. In addition, temporary
workers have a strong sense of frustration and alienation from work often caused by the
performance of monotonous, dangerous, or tiring tasks, that the permanent staff normally refuses
(so-called “outsourcing of the risk”). Sometimes these activities are carried out in a place isolated
from the rest of the community and this condition increases the risk of accidents due to inattention,
stress, neglect, lack of control over working conditions (9).
workforce and to ensure better prevention for all throughout the working life.6() “Investing in occupational safety and health improves companies' productivity and competitiveness. This is especially true for medium and large-sized companies”, see: Creating Safe and Healthy Workplaces for All, ILO, Geneva, 2014.7() Eurispes/Ispesl. (2003). Incidenti sul lavoro e lavoro atipico. Available at: http://archivio.rassegna.it/2003/sicurezza/articoli/atipici/02.htm . 8() Availableat: https://osha.europa.eu/en/publications/reports/206; see also: OSHA, New trends in accident prevention due to the changing world of work, 2002.9() BIAGI- LOPEZ, Terziario avanzato e nuovi lavori: osservazioni dal punto di vista della normativa prevenzionistica, DRI, 2000, 3, 295.
2
It should also be considered that the specific risks associated with the recruitment of flexible
workers can fall on all those who work in the workplace permanently. Hiring flexible workers
determines, therefore, an overall higher organizational risk, which has to to be properly governed
(10).
The need to adapt the health and safety rules to different types of job arrangements to permanent
full-time job, as flexible employment, is born from the desire to extend the protection granted to
permanent full-time employees also to self-employed or flexible workers, in accordance with the
spirit of the Directive n. 89/391 EC.
The previous system, in fact, was totally inadequate to the changes in the labor market (11), resulting
mainly from improvements introduced by Legislative Decree n. 10, n. 276 dated September 2003,
and Law n. 30 dated 14 February 2003. Legislative Decree N. 10 September 2003, n. 276 provided
health and safety rules for temporary workers hired by an agency, for jobs on call, as well as for
economically dependent job contracts. The above mentioned Legislative Decree. extended,
therefore, the subjective application of the health and safety regulation, limited in the past to
“standard” employment (art. 2, Legislative Decree n. 626 dated19 September 1994) .
At present, the Legislator is providing new rules for non-standard job contracts by means of a
Legislative Decree Draft which is now in Parliament, waiting for the non-binding approval of the
Labour’s Committee (n. 158/2015).
The subject of this paper is thus the health and safety rules relating to three flexible employment
jobs contracts provided by this decree scheme. The Legislator should focus more attention on health
and safety protection at work, also because these flexible employment jobs contracts - Fixed-term
contracts, Temporary agency work and Apprenticeship - are used to hire so-called Priority Groups:.
2. The new flexible employment rules and the latest Health and Safety Legislation:
a) The legislative framework
At present, all Italian Labour Laws, even Labour Market Laws (flexible employment rules), are
subject to modification by the Legislator,. A process that has been providing also new measures
to OSH rules in terms of simplification and rationalization.
The OSH regulation has always been seen as a part system of all the regulations related to labor
issues and this interpretation is confirmed if we analyze the Italian system; at present in fact, the
10() ANGELINI, Lavori flessibili e sicurezza nei luoghi di lavoro: una criticità da governare, 2007, in www.olympus.uniurb.it 11() BIAGI, LOPEZ Terziario avanzato e nuovi lavori: osservazioni dal punto di vista della normativa prevenzionistica. Dir. Rel. Ind. 2000; 3: 295
3
Legislator , has provided two specific implementation decrees with Law 183/2014; the first one (n.
158/2015) is a draft legislative decree concerning the organic Law on the types of contracts and the
review of the regulation of tasks. The second one, which concerns general measures on OSH, has
not yet been published (12). However, Decree Law n. 69 dated 22 June2013(13) (“decreto del fare”)
converted in Law n. 98 dated 9 August 2013, (14), had already promoted some changes with
reference to health and safety at work, in terms of simplification and rationalization .
This does not mean that the two tracks are separated, and the topic of this paper demonstrates it.
It is necessary to combine flexible employment rules with general OSH rules (15).
It is interesting to note that these legal texts contain provisions for rationalization and
simplification; different types of flexible working are moving towards a " codification " , while it
can be observed that the rules on prevention in the workplace are changing in terms of
simplification of some of the procedures required by the law of 2008, as amended in 2009 .
The main topics will be information, training and medical surveillance for non-standard forms of
work, because, as seen above, these are the most important aspects to consider regarding the issue
analyzed.
This paper focuses on civil law and, even though criminal law16 is obviously involved in OSH, it
is not possible, for space reasons , to include the system of sanctions.
We outline below the flexible contracts and the ways in which the so-called Priority Groups are
employed or recruited :
Non-standard forms of work:
1. Part-time 2. On call job3. Fixed-term contract4. Temporary agency work5. Apprenticeship6. Economic dependent work7. Accessory work
12() Art . 1, par.5 of Law no . 183/ 2014 authorizes the Government to adopt one or more legislative decrees containing provisions for simplification and rationalization of procedures and obligations for citizens and enterprises , including those relating to health and safety at work.13() In Gazzetta Ufficiale, Serie generale, 21 giugno 2013, n. 144, Supplemento ordinario n. 50.14() In Gazzetta Ufficiale, Serie Generale, 20 agosto 2013, n. 194, Supplemento ordinario n. 63.15() TIRABOSCHI, Campo di applicazione e tipologie contrattuali, in TIRABOSCHI - FANTINI (a cura di), Il testo unico della salute e sicurezza sul lavoro dopo il correttivo (d.lgs. n. 106/2009), Giuffré, 2009, 139, He argues that it would be appropriate to make a rationalization and coordination of effective OSH discipline with the more general labor market system.16() For criminal law, see, SOPRANI, Sicurezza e Prevenzione nei luoghi di lavoro, Milano, 2001, e a GRILLI, Diritto penale del lavoro, Milano 1985.
4
8. Stage
This paper takes into account, in particular, some types of contracts as it cannot, for space reasons,
cover the entire, very interesting universe of precarious work . Some of the main types of
employment contracts - used by enterprises to hire so-called Priority groups (17) -.have been
therefore selected in order to analyze them in terms of prevention of health and safety at work
b) Health and safety general rules applicable to flexible working types
It is important to say that in Italy we have always had an impressive corpus of rules regarding OSH,
which first developed in 1898, expanded during the1950s , and was finally “codified” in 1994, with
Decree n. 626.
At the present, the health and safety at work regulation in Italy is provided by Legislative Decree n.
81 dated 9 April 2008, as amended and supplemented by Legislative Decree n. 106 dated 3 August
2009, (18) and by Decree n. 69 22 June 2013 (“decreto del fare”), converted in Law n. 989 August
2013,. This last one aims at making the management of health and safety in the company more "
simple " and "effective " ;Finally , art. 2087 of the Italian Civil Code (cc) (19) can be regarded as the
“closing rule” of the system.
The purpose of the legislation of 2008 and subsequent amendments, read in connection with art.
2087 cc , is to help to reduce accidents at work. The European strategy developed by the European
Commission for health and safety at work in 2007-2012 has in fact stated that 25% of all accidents
at work in the EU take place in Italy.
17() GIOVANNONE-SPATTINI (a cura di), Lavoro in ambiente domestico, telelavoro e lavoro a progetto: linee guida e buone prassi per la prevenzione dai rischi, anche in chiave comparata, alla luce della riforma del mercato del lavoro in Italia, 2009, ADAPT.18() PASCUCCI, 3 agosto 2007- 3 agosto 2009. Due anni di attività legislativa per la salute e sicurezza dei lavoratori, Fano, 2011. V. DUBINI e FANTINI (a cura di), Guide alla sicurezza sul lavoro – volume I: Il sistema legislativo e istituzionale, EPC, 2014; TIRABOSCHI - FANTINI (a cura di), Il testo unico della salute e sicurezza sul lavoro dopo il correttivo (d.lgs. n. 106/2009), cit.; Le nuove regole per la salute e sicurezza dei lavoratori, a cura di ZOPPOLI, PASCUCCI, NATULLO, 2010.19 Since 1942.
5
Legislative Decree n.81/2008 pursues its objectives "in accordance with EU legislation (20 ) and
international conventions " and with the competences of State and Regions" ensuring uniformity to
the protection of workers throughout the country through the respect for the basic level of benefits
relating to civil and social rights" (21)
Title I ( "Common Principles " ) contains "general provisions to be applied to all firms , both private
and public, subject to the provisions on health and safety at work" (22) (23).
In fact, one of the major innovations of the 2008 Decree is the very improvement of the provisions
on health and safety (artt. 2 and 3) as they now refer to all workers, even to the autonomous ones, in
case they are inserted in a work environment, without any formal differentiation, in application of
the principle of the effectiveness of accident prevention regulations (24) .
20() See the Framework Directive n. 89/391. Particular Directives followed (applying the principles stated by Directive n. 89/391 to the single topics regulated in detail time after time) such as n . 89/654 (Workplaces), n. 89/655 (Work Equipment), n. 89/656 (personal protective equipment), 90/269 (manual handling), n. 90/270 (use of video terminals), n. 90/394 (carcinogens), 90/679 (biological agents), n. 92/57 (temporary and mobile sites), n . 92/58 (safety signs), n . 92/85 (maternity protection), n . 92/91 (extractive industries operating with drilling), n . 92/104 (mineral-extracting industries), n . 93/88 (biological agents), n . 93/103 (work on board fishing vessels), n . 93/104 (working hours), n. 94/33 (protection of young people at work) and n . 97/42 (carcinogens agents).21()Therefore, the national legislation allows modifications by regional laws, in application of the subsidiarity principle which operates in those areas between the State and the Regions, in light of the principle of cooperation between regional and state legislation. In this context, regions operate through a system of opting out upwards, i.e. only by means of derogations for improvement. See also art . 1 , paragraph 3, of Law no . 123/2007 . See also: PERSIANI, Devolution e diritto del lavoro, in ADL., 2002, 19, e BIAGI, Il lavoro nella riforma costituzionale, DRI, 2002, 160. TROJSI, La potestà legislativa dello Stato e delle Regioni, in Le nuove…., cit. 15 ss. ZOPPOLI, Art. 1, Le nuove regole…., 7.22() See “Explanatory report (“Relazione illustrativa”) to Legislative Decree n. 81/2008.23() The above mentioned 2008 Decree implements the enabling act, i.e. Law n. 123 dated 3 August 2007, about the reorganization, coordination, harmonization and simplification of existing provisions for the adjustment of the protection of health and safety at work for all workers (men and women), employees and self-employed workers, as well as subject to those equivalent.In particular, the enabling act includes: 1) protection measures for certain categories of male and female workers and for specific types of jobs or sectors of activity, 2) appropriate and specific protection measures for the self-employed, in relation to the risks of the activities conducted in accordance with the principles of Council Recommendation 2003/134/EC dated18 February 2003 (art. 1, paragraph 2, lett. c).24() It is important to consider that the Legislative Decree n. 626/1994 had already outlined a new OSH model, in which the safety of the places is considered a goal to be achieved through the coordinated action of employers and workers, as well as by virtue of a proper planning of safety in relation to the specific needs of the individual working environment. See: FANTINI- GIULIANI, entry: Salute e sicurezza sul lavoro, in Il diritto del lavoro, a cura di AMOROSO-DI CERBO-MARESCA, Milano, 2009, 2070 ss.
6
In the civil law code of 1942 , as above mentioned, art . 2087 cc (25)is the main reference in terms of
protection of the physical and moral integrity of the employee (26); This article - which is
considered applicable to any labor organization, both public and private, regardless of size and
complexity -, provides for the adoption of all appropriate measures to prevent injuries to the
individual workers, deriving from the work activity itself. Art. 2087 is a “dynamic” rule, as it gives
the opportunity to adapt the constitutional values to any possible situation (27).
These rules shall implement the principles expressed in the Italian Constitution in art. 32 (28), art.
35 (29), art. 38 (30) (which protects unfit, ill or injured workers , providing maintenance and
25() Art. 2087 c.c. “l‘imprenditore è tenuto ad adottare nell’esercizio dell’impresa le misure che, (…), sono necessarie a tutelare l’integrità fisica e la personalità morale del lavoratore”: “The entrepreneur must adopt, with reference to the business activity, all measures (…), necessary to protect the physical integrity and the moral personality of the worker”. 26()See, among others: Cass. lav. 5 February 2014, n. 2626, available at: www.olympus.uniurb.it; Cass. pen., 7 April 2011, n. 13777apparently unreleased (???) ; Cass. lav. 28 June 2008, n. 17309,in GL., n. 37, 2008, 32; Cass. pen., sez. IV, 29 November 2005, in ISL, 2006, 58; Cass. pen. 18 May 2005, ibidem, 2005, 521, and also, among many: Cass. pen., sez. IV, 2 July 1999, in Foro It., 2000, II, 260, with a note by R. GUARINIELLO.27() M. LEPORE, Manuale di diritto della sicurezza sul lavoro, Roma, Libreria dello Stato, 2010, 16. Cass., sez. lav., 7 June 2013, n. 14468:“L’adempimento dell’obbligo di tutela dell’integrità fisica del lavoratore imposto dall’articolo 2087 del codice civile è un obbligo di prevenzione che impone al datore di lavoro di adottare non solo le particolari misure tassativamente imposte dalla legge in relazione allo specifico tipo d’attività esercitata e quelle generiche dettate dalla comune prudenza, ma anche tutte le altre misure che in concreto si rendano necessarie per proteggere il lavoratore dai rischi connessi tanto all’impiego d’attrezzi e macchinari quanto all’ambiente di lavoro”. “The fulfillment of the obligation to preserve the worker’s physical integrity established by art. 2087 cc, is a prevention obligation which requires the employer to implement not only the peculiar measures imposed by the law with reference to the specific types of activity as well as the generic measures laid down by common caution, but also all other measures which have to be implemented in the concrete situation in order to protect the worker from the risks related both to the use of tools and to the working environment”. 28 Art. 32: “The Republic safeguards health as a fundamental right of the individual and as a collective interest, and guarantees free medical care to the indigent (…)”. 29 Art. 35: “The Republic protects work in all its forms and practices. It provides for the training and professional advancement of workers.It promotes and encourages international agreements and organizations which have the aim of establishing and regulating labor rights”.30 Art. 38: “Every citizen unable to work and without the necessary means of subsistence has a right to welfare support. Workers have the right to be assured adequate means for their needs and necessities in the case of accidents, illness, disability, old age and involuntary unemployment. Disabled and handicapped persons have the right to education and vocational training. The duties laid down in this article are provided for by entities and institutions established by or supported by the State.Private-sector assistance may be freely provided”.
7
support), art. 41, paragraph 2 (31) and art. 2 ( “The Republic recognizes and guarantees the
inviolable rights of the person”), as well the art. 3, paragraph 2, which states the substantial
equality of all citizens under our system of employment law.
c) The definition of "worker" with reference to health and safety at work
First of all, it is necessary to point out the definition of “worker” in the framework of health and
safety regulation, which is different from the definition provided by Labor Law in general, as we
will see below.
Article 2, c. 1, letter a) of Legislative Decree n. 81 dated 9 April 2008 concerns all types of job
contracts mentioned, which include the term "worker". “Worker” is "a person who, regardless of the
type of contract, has a job in the public or private sector, with or without pay, even for the only
purpose of learning a craft, art or profession, other than workers in the domestic and family field
(...) ".
These laws have been also extended to all individuals “equated with” workers (32), as well as to
volunteers (according to procedures and limits heavily influenced by Legislative Decree n.
106/2009) and finally to workers employed by means of flexible contracts, this last point being
particularly relevant here (33).
31 Art. 41: “Private-sector economic initiative is freely exercised.It cannot be conducted in conflict with social usefulness or in such a manner that could damage safety, liberty and human dignity.The law shall provide for appropriate programmes and controls so that public and private-sector economic activity may be oriented and co-ordinated for social purposes”. 32() About the problem of individuals other than workers (but equated with workers) and therefore excluded from the scope of the law, see: ANTONUCCI, Il campo di applicazione oggettivo e soggettivo, in La nuova sicurezza in azienda. Commentario al titolo I del D. Lgs. n. 81/2008, a cura di G. SANTORO PASSARELLI, IPSOA, 2008, 21; G. BUBOLA, P. DE VITA, Volontariato e lavori socialmente utili, Il Testo Unico della salute e sicurezza sul lavoro, (a cura di TIRABOSCHI e FANTINI), cit., 387. In particular, Legislative Decree n. 81/2008 includes also associate workers (even de facto), of cooperatives or companies, associate partners ex artt. 2549 c.c. and ff., trainees foreseen by specific regional laws - aimed at realizing a work-related learning or at making the choice of a job easier by means of a direct knowledge of the world of work -, other individuals following an educational or professional path and, finally, people involved in community service. 33() Law n. 123/2007,art. 2, par. 1, lett. c) states that the Decree “applies to all workers, self-employed or otherwise, as well as to equated subjects” (art. 3, par. 4). About the extension of the protection provided by Legislative Decree n. 626/1994 to subjects other than employed workers as, for example, people who, for different reasons, find themselves in the workplace, see: . M. LEPORE, Manuale di diritto della sicurezza del lavoro, cit., 69; for case law see: Cass. pen., sez. IV, 17 November 2009, 43966, in ASL, 2010, n. 2, 135.
8
The definition provided by the Italian Legislator in 2008 appears even wider than the one provided
at a EU level (this last one making reference to “any person hired by an employer” and therefore
essentially concerning employees) and enables to define as “workers” all individuals functionally
involved in the organization of the working activity by the employer, whatever the aims of the latter
(34).
With reference to this issue, the 2008 Decree and its later amendments codified a trend already
supported by court decisions when Legislative Decree n. 626/1994 was still in force, this last one
considering “workers” all individuals working as employees (art. 2094 c.c) (35) .
In short, the amended version of the 2008 Decree is characterized by the importance given to the
concrete relationship between worker and employer, which is independent from its formal
definition (“worker” is a person performing a working activity in the framework of the employer’s
organization, both in the private and in the public sector (36), “with no reference to the kind of
contract signed”) (37).
Labor Law literature considers that the inspiration of the rule is the general principle of
effectiveness, "on the assumption that the health and safety obligation is imposed upon the person
that benefits in concrete of the work" (38).
As Labor Law scholars have observed, the Legislator, having received a mandate from Parliament,
could - on the basis of the parliamentary decree -, foresee specific rules for non-standard forms of
work (39).
In this regard, we have to favorably consider the additions to art. 28 of Legislative Decree n. 106
2009 whereas it now states that, in writing the Document on the Assessment of Risks, also the risks
related or linked to the specific “type of contract” have to be considered. Evaluation, and even more
34() In this sense see again PASCUCCI, 3 agosto 2007-3 agosto 2009, Due anni di attività legislativa per la salute e sicurezza dei lavoratori, Fano, 2011, 40.35()See: VENTURI, Lavoratore: definizione e obblighi, in TIRABOSCHI E FANTINI(a cura di), Il Testo Unico della salute e sicurezza sul lavoro, cit., 372. Case law:see . Cass. n. 46515/2004; Cass. n. 478/2002.36() MONDA, Il campo di applicazione oggettivo, in ZOPPOLI, PASCUCCI, NATULLO (a cura di), in “Le nuove regole per la salute e la sicurezza dei lavoratori”, IPSOA, 2010, 9337( ) See. Art. 3, par. 4), Decree 81/ 2008. About this issue see, a LEPORE, Manuale di diritto della sicurezza sul lavoro, cit., 29 ff; TIRABOSCHI, La tutela della salute e sicurezza nei luoghi di lavoro dopo il decreto legislativo n. 106 del 2009: il nuovo Testo unico”, in Il Testo unico della salute e sicurezza sul lavoro dopo il correttivo cit., 2 ss. 38() BIAGI, TIRABOSCHI, Lavoro atipico: profili qualificatori e intensità dell’obbligo di sicurezza, DRI, 1999; 1: 5939() In this sense see again PASCUCCI, 3 agosto 2007-3 agosto 2009, cit., 53. M. TIRABOSCHI, Campo di applicazione e tipologie contrattuali, Commentario al T.U., cit., 139
9
prevention, have to be adapted and enforced taking into account the specific features of the different
types of contract.
d) Recent changes to the rules on health and safety at work and non-standard work.
After a long parliamentary procedure, Decree n. 69 dated 22 June 2013, (40) (“decreto del fare”)
was adopted and then turned into Law no. 98 dated 9 August 2013(41). The inspiration was given
by the fact that the legislative corpus on OSH is increasingly difficult to apply, especially within
the SME in the era of the economic crisis. In 2012 and 2013 Governments therefore applied for
simplification rules, also inspired by European initiatives.
These simplification proposals consist in the elimination of formal activities and foresee as well
forms of telematics communication, in order to make it possible for employers – both in the
private and public sector – to concentrate attention, resources and activities on the fulfillments
necessary to achieve and maintain the levels of health and safety protection that international
law as well as Italian law impose.
These rules have considerably modified Legislative Decree n. 81/2008 with reference to the
issues analyzed in this paper:
1) Simplification for short-term jobs: Simplification measures of the fulfillments
concerning health information, training and monitoring, applicable to periods of less-
than 50 days of work in the enterprise per solar year, have been introduced. The aim
is to take into account, by means of adequate certificates, the obligations fulfilled by
the employer considered, or by other employers, during the solar year. These
simplifications, according to art. 3, sub. 13-bis of Legislative Decree n. 81/2008, will
be defined by an interministerial Decree, which is still to be issued.
2) Simplification for temporary and seasonal workers. A new subsection (sub. 13-ter)
has been added to art. 3 of Legislative Decree n. 81/2008. It states that, with reference
to factory farms, new simplification measures of the obligations related to health
information, training, evaluation of risks and monitoring will be defined by a specific
decree, with particular reference to temporary and seasonal workers and to small
businesses.
3. The European Directive on health and safety in flexible employment.40() In Gazzetta Ufficiale, Serie generale, 21 June 2013, n. 144, Supplemento ordinario n. 50.41() In Gazzetta Ufficiale, Serie Generale, 20 August 2013, n. 194, Supplemento ordinario n. 63.
10
Before dealing with the topic of health and safety in the workplace, with particular attention to
flexible forms of employment, it is necessary to briefly remind of the changes introduced by the EU
Legislator, as part of the Italian legislation to be examined (supply contracts and fixed-term
contracts) derives from the European legislation.
In fact, in the context we have just described, the specific European rules for the protection of
workers on fixed-term contracts and temporary workers employed by the agency are particularly
relevant.
The European Union Legislator of the late‘80s, encouraged by researches that showed exposure to
increased risk of accidents and occupational diseases of workers hired through an agency, as well as
through fixed-term contracts, has adopted Directive n. 383 dated 25 June 1991.
This Directive was adopted as "complementary and particular" (fourth Considerando), i.e. as an
integrative system of the one foreseen for permanent full-time workers, regulated by the Framework
Directive n. 89/391/EC (42) and its "daughters" directives adopted ex Article 16 of the same.
Through this apparatus the Community Legislator aimed at providing workers employed under the
two types of contracts with the same level of protection of workers permanently hired by the
company (the user in case of agency work). The Legislator also aimed at avoiding the use of these
forms of work to justify a different treatment with reference to the protection of health and safety in
the workplace, especially when it came to personal work equipment (art. 2).
4. Promotion of health and safety at work : The prohibitions on the use of flexible forms of work in the absence of risk assessment in the company
Important and specific rules in the matter of health and safety in the workplace – which are foreseen
only for some types of contracts (on-call contracts, fixed-term contracts and supply contracts) -,
impose peremptory prohibitions on the use of these flexible forms of work, in the absence of the
most important document for this matter: the assessment of the risks.. Therefore, the Italian system
foresees specific prohibitions with reference to the possibility to establish terms to employment
contracts (art. 18 d) and to use supply contracts (art. 30 d) for employers who have not carried out
the evaluation of risks according to art. 28 and ff. of Legislative Decree 81/2008 and later
amendments.
The aim is to provide a safe place to work, where the standards to protect the health and safety of
workers are applied.
42() Gazzetta Ufficiale Comunità Europea n. 183, 29 June 1989.
11
The Italian Supreme Court (43) has established that, as far as fixed-term contracts are concerned, in
case of breach of this rule, the judge can dispose the transformation of a fixed-term contract into an
open-ended contract.
5. Preventive aspects on fixed term contracts. The transposition of Directive n. 91/383/EEC regarding fixed-term contracts was made through
Legislative Decree n. 242 dated 19 March 1996, which amends Legislative Decree n. 626 19
September 1994. Now, as above mentioned, Decree n. 81/2008 foresees a general rule according to
which the rules of that decree must be applied to all employees, as no specific regulation for fixed-
term contracts is provided.
We have seen, however, that the European Legislator, more careful to the risks of workers
temporarily inserted in a company (considerando IV, Directive n. 91/383/EEC), has requested
safety and health "special additional rules" for fixed-term workers.
An author (44) very interested in the problems of health and safety of non-standard workers argued
that Directive n. 91/383/EEC, as it regards the employment contract for a specified period of time,
is still awaiting effective implementation. According to this author, it can be said that the
transposition of the directive has taken place only from a formal point of view and the situation
could be said to be only partially changed as a result of the reform of the regulation of fixed-term
contract brought by Legislative Decree n. 368 dated 6 September 2001 , which devotes the first
paragraph of Article 7 to the training of workers for the prevention of work-related risks.
With reference to the training, as above mentioned, it can be assumed that Legislative Decree n. 368
dated 6 September 2001, has properly transposed Directive n. 91/383/EC. Thus, Article 7,
paragraph 1, taking the provisions of Article 4 of the Directive provides that "a worker employed
under fixed-term contract must receive adequate and appropriate training to the characteristics of
the tasks of the contract, in order to prevent specific risks associated with the execution of the
work". The Labor Law Literature (45) believes, therefore, that the worker who is hired out under the
training aspect is sufficiently protected by the "joint work" of Article 7 of Legislative Decree n. 368
dated 6 September 2001 , and the general regulations regarding health and safety of workers
(Legislative Decree n. 81 dated 9 April 2008 and subsequent amendments and additions) and the
43() Corte di Cass., sez. lav., 2 April 2012, n. 5241 44() TIRABOSCHI, Salute e sicurezza dei lavoratori temporanei: l’anomalia del caso italiano. DPL 1997; 128445() TIRABOSCHI, Articolo 7. Formazione. BIAGI, Il nuovo lavoro a termine. Commentario al D. Lgs. n. 368/01. Giuffrè, Milano, 2002.
12
general principle of equal treatment embodied in Article 6, Legislative Decree n. 368 dated 6
September 2001.
However, it is necessary to specify that the scheme of the above mentioned Legislative Decree n.
158, does not foresee anymore, as far as the rules on fixed-term contracts are concerned (art. 17-27),
a training “sufficient” and “adequate” to the characters of the contract’s tasks, aimed at preventing
the specific risks linked to the execution of the work. With reference to the worker’s information,
we have to refer to the general Article 36, Legislative Decree n. 81 dated 9 April 2008. The decree
requires that the information must be "adequate" and addressed to "each worker." This means that
the employer must relate the information to any work situation (individual or group of workers),
also the fixed-term workers.
Article 36, paragraph 2, letter a), Legislative Decree n. 81 dated 9 April 2008 also provides that the
employer shall ensure that each worker receives adequate information on the specific risks to which
he/she is exposed in connection to the activity, as Article 3, Directive n. 91/383/EC says. This rule
states that "without prejudice to Article 10 of Directive n. 89/391/EEC, Member States shall take
the necessary steps to ensure that: 1.before a worker with an employment relationship as referred to
in Article 1 takes up any activity, he/she is informed by the undertaking and/or establishment
making use of his services of the risks which he faces such information: -covers, in particular, any
special occupational qualifications or skills or special medical surveillance required, as defined in
national legislation, and -states clearly any increased specific risks, as defined in national
legislation, that the job may entail”.
The Legislator, however, did not follow entirely the provisions of the Article of the last mentioned
Directive, laying down specific rules on information about "the need for special occupational
qualifications or skills or special medical surveillance”.
Even for the medical surveillance we have to refer to the general rules set out in Art. 38 of
Legislative Decree n. 81 dated 9 April 2008, when workers are hired and require medical
surveillance. However, there is no special rule governing the institution of “special” medical
surveillance in the legislative decree governing the fixed-term contract. It lacks the special character
of the health surveillance which the European Legislator seems to have wanted to give by using the
name of "special medical surveillance" (art. 5 Directive n. 91/383/EEC).
6. Protection of health and safety in temporary agency work. Legislative Decree n. 276 dated 10 September 2003 has introduced the concept of
“somministrazione di lavoro”, i.e. temporary agency work ( artt. 20-28), reformulating in terms of
flexibility the previous “lavoro temporaneo”, through the repeal of Articles 1-11 of Law n.
13
196/1997, as well as of the historic Law n. 1369/1960, which imposed a ban on labor brokering.
The Legislator has provided a detailed set of rules to adjust the particular structure of the trilateral
relationship, consisting of agency, user firm and worker. These rules can be considered as a
continuation of the health and safety rules scheduled for temporary work, governed by Directive n.
91/383/EC. It is important to underline that holder of the employment relationship is the agency ,
but the user is the one who takes advantage of the work performance.
For this reason specific rules are foreseen from a formal point of view for the employer (the
agency), and for the user.
In this job contract a set of requirements should be given, including the presence of "potential risks
to the integrity and health of the worker and the preventive measures" (art. 21, paragraph 1, lett. d).
If the contract is not written, it is considered null and void and workers are considered employed by
the user (art. 21, paragraph 4).
The goal is to bring to the attention of the agency the activity and the risks which will set out its
employee. After the changes made by Legislative Decree n. 24 dated 2 March 2012, the provisions
about information on temporary contract, including those relating to the safety requirements
imposed on the user, must be notified in writing also to the employee as required by Article 7 of
Directive n. 91/383/EC.
Core of the law on health and safety in employment agency regards the ownership of the health and
safety bond to be shared between agency and user.
As above mentioned, this relationship is characterized by a complex employer’s figure, composed
of staff agency, which is the employer from the formal point of view and the user, who is not tied to
the worker, but has some obligations towards the same.
The employees are thus protected to the best in the exercise of their work and are guaranteed the
same protection of workers employed permanently by the user. By means of the general principle of
equal treatment between permanent workers and temporary workers laid down in art. 23, paragraph
1, and art. 24, Legislative Decree n. 276 dated 10 September 2003, the Legislator has provided a
system in which the agency is entitled to the obligations of a general nature and the user to specific
ones.
Article 3, paragraph 5, of Legislative Decree n. 81 dated 9 April 2008, provides that "except as
specifically provided in paragraph 5 of Article 23 of Legislative Decree n. 276 dated 10 September
2003 , all the obligations of prevention and protection are the user’s responsibility".
This configuration confirms the Legislator’s will to identify the user as employer from the point of
view of the prevention of risks in the workplace. However, scholars have argued that, ex Legislative
Decree n. 81/2008, the employer still plays a role, at least in the phase preceding the beginning of
14
the working activity in the user’s enterprise (e.g. suitability test, even though this test should be
done, de iure, by the competent physician) (46).
However, art. 23, paragraph 5, of Legislative Decree n. 276 dated 10 September 2003provides that
"the staff agency informs the employees about the risks on health and safety associated with
production activities in general and trains them to the use of work equipment necessary to perform
the work for which they are taken in accordance with the general OSH provisions”.
The temporary work contract may provide that this requirement is fulfilled by the user, in which
case that fact shall be indicated in the contract with the employee.
Nevertheless, it has to be underlined that the scheme provided by Legislative Decree n. 158 in order
to make temporary agency work more appealing, does not confirm this last rule, which can foresee
that the obligations of information, education and training – very important from the point of view
of safety at work and also confirmed by art. 33, par. 4 of the scheme – have to be fulfilled by the
user.
In the event that the duties for which the employee is used require special medical surveillance, or
involve special risks, the user shall notify the employee in accordance with the general OSH
provisions.
The user has also the duty - in relation to the worker - to guarantee all the protection requirements
laid down with respect of his/her employees and is responsible for the violation of the safety
requirements as provided by the law and by collective bargaining".
The Labor Law literature has raised doubts about the choice of the Legislator to have given to the
agency the duty of training with respect to the equipment that will be used for the execution of
assigned tasks (47).
According to Article 23, paragraph 5, first sentence, of Legislative Decree n. 276 dated 10
September 2003, the staff agency has the duty to inform in general workers of the risks for safety
and health related to productive activities and is obliged to train workers to use work equipment
necessary for the performance of work for which they are taken, in accordance with the provisions
contained in Legislative Decree n. 81 dated 9 April 2008 and subsequent amendments.
As already seen, the law states that the staff agency contract may provide that "this obligation is
fulfilled by the user". In this case, however, it must be stated in the individual work contract.
The requirement for general information remains in the hands of the agency, in accordance with the
provisions of the European Community Legislator. Article 7 of Directive n. 91/383states , in fact,
that the supplying agency, duly informed by the user about the professional title and the
46() PASCUCCI, 3 agosto 2007 – 3 agosto 2009, cit., 58.47() BIZZARRO, Il lavoratore in somministrazione. TIRABOSCHI, FANTINI, Il Testo Unico della salute e sicurezza sul lavoro. Giuffré, Milano, 2008, 178.
15
characteristics of the workplace, is the one who has to inform the employees before they carry on
their business.
The agency, thus, could play one of its typical functions, namely that of finding on the market
already qualified workers to successively supply them to the user’s undertaking in order to place
them immediately in the production cycle. Only when the user deems most useful, for reasons of
speed (e.g., for the need to demonstrate the operation of machinery in the place where they are
located) or safety (e.g. for the use of particularly dangerous instruments), to act directly on the
education and training of workers, it would be possible, through a proxy included in the leasing
contract, to provide that the obligation at hand is fulfilled by the user himself (48).
The user is, however, expressly obliged to inform employees, pursuant to Legislative Decree n. 81
dated 9 April 2008, in case the duties for which the employee is used require special medical
surveillance or involve specific risks. It also required to observe "all the requirements for protection
provided for in respect of its staff and is responsible for the violation of the safety requirements
stipulated by the law and collective agreements" (art. 23, paragraph 5, third and fourth period).
With particular reference to training, it is necessary to refer to art. 37, par. 4 of Decree n. 81/2008
which foresees that education and training (whereas stated) must be provided “from the beginning
of utilization in case of temporary agency work”. The duty to train on the use of working equipment
falls, according to the law, on the agency, unless differently stated in the contract, and “it appears
problematic to fulfill this duty in a moment in which the worker is already inserted in the user’s
organization” (49).
The cited provisions show the obligation of the user to provide medical surveillance for workers
who are sent on a mission by the agency, when they are employed in workplaces particularly risky
for their physical safety (50).
Nevertheless, some scholars admit the intervention of agencies with reference to medical
surveillance, especially in case of the verification of the suitability of temporary workers before the
beginning of their activity in the workplace (51).
48() NICCOLAI, Lavoro temporaneo e autonomia private. Giappichelli Editore, Torino, 200349() Vedi FANTINI-GIULIANI, Salute e sicurezza nei luoghi di lavoro, 2014, Giuffré; M. LEPORE, Manuale di diritto della sicurezza sul lavoro, cit., 61. According to the Italian Supreme Court (Cass.pen., sez. IV, 5 July 2010, n. 25553, in ISL, 2010, n. 10, 543), information provided only orally by the user to the worker, without the dossier usually delivered to the employees, have to be considered insufficient. 50() See Circolare n. 7 dated 22 February 2005 of the Ministry of Labor. It states that obligations related to medical surveillance – both preventive and periodic – have to be fulfilled by the user’s enterprise on the basis of the assumption that it has, towards temporary workers, the same protection and safety obligations that the law or the collective agreements foresee for its employees.
16
However, in order to better protect and guarantee the worker, part of the Labor Law Literature (13 52) is led to believe that medical surveillance should be guaranteed by the collaboration between the
agency’s and the user’s competent physicians (without this, however, engineers lack of information)
being the two doctors called out to everyone in the health work and time they deserve. In this case,
the competent doctor appointed by the giver is entitled to preventive medical examinations (pre-hire
visits), in order to ascertain the suitability of the employee to perform the tasks requested by the
user without risking his/her safety. The task of the physician in charge of the user, however, is to
verify the suitability of the worker from the beginning of the work performance throughout the
period in which he/she remains at the user’s firm (so-called periodic visits).
It must be considered, among other things, that the health control in the framework of flexible work
takes the name of "special medical surveillance". The word "special" is found in the very Directive
n. 91/383/EEC pursuant to Article 5 and seems to want to give a more specific content than the
mandatory "health medical surveillance" requested in the cases provided for by general legislation
on safety and health of workers (articles 38 and ff. Legislative Decree n. 81 dated 9 April 2008).
The Legislator however, has not given any specific definition, so, one still has to refer to the
definition given by the doctrine that "special medical surveillance" is"the complex of investigations
specifically prescribed for each occupation dangerous or noxious agents, such as lead, asbestos and
noise in accordance with legislative Decree n. 277 dated 15 August 1991 for the display screen,
carcinogens, chemical and biological agents, pursuant to Legislative Decree n. 81 dated 9 April
2008 (53).
Furthermore, it should be noted, that Article 5, 3rd par. of the Directive n. 91/383, which proposes
the extension of health surveillance over the term of their employment, has not been implemented
by the Italian Legislator.
This measure would allow all workers on a mission to a user, to prevent the so-called "Diseases of
the future", i.e. those diseases that occur after long periods of time. Another relevant provision for
the principle of equal treatment between agency workers and workers permanently employed by the
user, concerns Article 22, paragraph 5, of Legislative Decree n. 276 dated 10 September 2003,
according to which those who work on the staff of the user are calculated for the purposes of law or
51() See LAI, Flessibilità e sicurezza del lavoro, Giappichelli, 2006, 176; On the contrary, SOPRANI, Somministrazione di lavoro e tutela prevenzionistica, in ISL, 2004, n. 14, 995) thinks that, according to a particular interpretation of art. 21, par. 1, lett. d), this very obligation has to be fulfilled by the agency. 52() DEL FORNO, Sicurezza e sorveglianza sanitaria nel lavoro interinale. RivistAmbiente 2002; 2: 239-242.53() DEL FORNO, Sicurezza e sorveglianza sanitaria nel lavoro interinale. RivistAmbiente 2002; 2:
239-242. 17
collective bargaining matters relating to hygiene and safety at work. The forecast is easily justified
as workers employed under temporary contracts, and user’s employees carry out the work in the
same environment and develop a common interest in terms of safety and health at work.
With reference to the temporary agency work, the risks assessment (“valutazione dei rischi”), one of
the most important general measures required by health and safety law, "assumes the entire system
of prevention" (54), seems to have to be done by the user, which is required to fill (and keep) the
related document. The reason for this lies in the fact that the employee carries out his/her activities
in the environment and also in that the latter, and is subject to his power of direction and control.
Through the analysis of health and safety standards in temporary-agency work, it can be said that
Legislative Decree n. 276 dated 10 September 2003 has built a system of rules specific and
appropriate to the peculiarities of the above mentioned trilateral relationship, keeping some general
obligations for the agency, but equating the user, in terms of the obligations of security, to the figure
of the employer work which are normally imposed obligations prescribed by the regulations
preventative general, Legislative Decree n. 81/2008 and subsequent amendments and integrations.
In conclusion, it must be underlined that neither Legislative Decree 276/2003, nor the Legislative
Decree Draft n. 158/2015 have adopted the limits originally stated by Law n. 196/1997, which
foresaw the prohibition of the use of temporary agency work in case of dangerous activities, as
stated by Directive 91/393/CE (55).
7. Health and safety on apprenticeship job contract.In Italy the apprenticeship contract was reformed by Legislative Decree n. 167 dated 14 September
2011, that has reformulated the discipline.
There are different types of training: the training for the qualification and the professional degree;
the professional apprenticeship contract; apprenticeship of higher education and research;
apprenticeship for workers who lost the job. The first and the third type are closely related to the
sphere of education, whereas the second is loose, as much as the fourth.
Legislative Decree n. 167 dated 14 September 2011 (as well as Legislative Decree n. 276 dated 10
September 2003 which has innovated the discipline), does not expressly provide rules on prevention
in the workplace. Neither does the Legislative Decree Draft n. 158.
However, from the definition of "worker " provided by Legislative Decree n. 81 dated 9 April 2008,
as a "person who, regardless of the type of contract, has a job within the organization of a public or
54()LAI, La sicurezza del lavoro tra legge e contrattazione collettiva. Giappichelli Editore, Torino, 2002, 176.55() BONARDI, Art. 3, in MONTUSCHI (diretto da), La nuova sicurezza sul Lavoro-Principi comuni, Zanichelli, 2011, 70. SALITURO, I lavoratori in somministrazione, in PERSIANI-LEPORE, Il nuovo diritto della sicurezza sul lavoro, UTET, 2012, 65.
18
private employer, with or without subordination, but only in order to learn a craft, an art or a
profession", it is clear that the whole health and safety matter contained in the above mentioned
Legislative Decree applies to the employee's apprentice.
Case law has intervened to point out, however, that the preventative obligations against the
employer of the apprentice shall, in relation to information and training, be more stringent, given
the inexperience of the young worker (56). In fact, OSHA expressly states that “young people should
be given safe and healthy jobs that are within their capabilities. They require proper training and
supervision. They need to be actively engaged if they are to take on board the safety culture of their
workplace and cooperate on OSH matters; it is not enough to simply provide them with a handbook
of safety rules” (57).
A skills’ coordinator could contribute to supervision. Every three months, a progress review, during
which the apprentice’s performance is evaluated, gives the skills’ coordinator an opportunity to
capture the apprentice’s views on OSH. The apprentices, whether they are following a management
or a technical path, could be engaged in the safety culture of the organization (58).
8. Conclusions.The Legislator has over the years taken careful steps to develop prevention in the workplace for
workers employed with non-standard forms of work. An approach to identify and anticipate
emerging risks related to non-standard forms of work is always necessary.
Nevertheless, it seems that the Legislator has not been able to take this opportunity to introduce
adequate protection to respond in a "differential" way to the different needs that each type of
flexible contract raises, not taking into account also atypical or non-standard models of employment
for an indefinite period .
56() LAI, La sicurezza del lavoro nelle nuove tipologie contrattuali. DPL 2003; 36: 2428; DE MARCO, La responsabilità del datore di lavoro per il danno da infortunio subito dall’apprendista, nota a Cass. Sez. Lav. 18 maggio 2007 n. 11622. RIDL 2008; 1: 100–104.57() OSHA, E-Facts n. 78- Involving young workers in OSH, 2013, https://osha.europa.eu/en/publications/e-facts/e-fact-78-involving-young-workers-in-osh; see also European Agency for Safety and Health at Work, A safe start for young workers in practice, Office for Official Publications of the European Communities, Luxembourg, 2007. Available at: http://osha.europa.eu/en/publications/reports/GPB06/view 58() OSHA, E-Facts n. 78- Involving young workers in OSH, 2013, https://osha.europa.eu/en/publications/e-facts/e-fact-78-involving-young-workers-in-osh; see also European Agency for Safety and Health at Work, A safe start for young workers in practice, Office for Official Publications of the European Communities, Luxembourg, 2007. Available at: http://osha.europa.eu/en/publications/reports/GPB06/view
19
In this regard, it has been noted that the institution of the medical surveillance deserves an
appropriate definition, able to give specific content to the adjective "special", by which it is
connoted.
In this perspective, there is no doubt that Legislative Decree n. 276 dated10 September 2003, has
the merit of having taken an important step in extending the protections to new forms of work and
groups of workers that had not fully enjoyed the general rules.
Nevertheless, the mere reference to the application of general provisions is not enough to ensure
effective protection of workers "temporary involved" in the enterprise, as demonstrated with
reference to the fixed-term contract, while a specific discipline to protect workers is necessary for
each type of contract..
Those facts are not taken into account by the Decree Draft n. 158/2015 which, actually, does not
recall the content of Legislative Decree 368/2001 on the training of fixed- term contract workers. In
so doing, it leaves a gap in the legal system.
In other words, the assignment of effective safeguards - and not merely formal - outside of which
they have traditionally been charged cannot be derived only from the simple application of the rule
of equal treatment as it is already adequately supported, having precisely consider the additional
risks and specific risks, just to the nature and structure of the employment relationship to protect.
The Legislator has extended the legal protection to the flexible employment contracts, but the
reference to the “general” legal protection is not enough for a real protection of the occasional
worker, as he/she needs a specific protection. The result of this research pointed out that the
Legislator should have considered the differences between flexible employment contracts and
permanent contract, providing, e.g., a definition of “specific medical surveillance” for temporary
employment relationship.
In conclusion, rules, procedures and sanctions are necessary tools but, in order to effectively limit
work related injuries and occupational diseases, they have to be applied in an environment with an
adequate safety at work “culture”. In particular, specific rules have to be foreseen in order to protect
the most vulnerable brackets of workers, identified as Priority Groups, who are often hired by
means of flexible types of employment.
Bibliography
1. ANGELINI, Sicurezza sul lavoro e nuove figure del mercato del lavoro, 2007, in
http://olympus.uniurb.it/
20
2. ANTONUCCI, Il campo di applicazione oggettivo e soggettivo, in La nuova sicurezza in azienda. Commentario al titolo I del D. Lgs. n. 81/2008, a cura di G. Santoro Passarelli, IPSOA, 2008,
3. BENACH, AMABLE , MUNTANER AND BENAVIDES, ‘Working conditions—The consequences of flexible work for health: Are we looking at the right place?’, Journal of Epidemiology and Community Health, n. 56, pp. 405–406, 2002;
4. BIAGI, Il lavoro nella riforma costituzionale, DRI, 2002, 160. 5. BIAGI, LOPEZ Terziario avanzato e nuovi lavori: osservazioni dal punto di vista della
normativa prevenzionistica. Dir. Rel. Ind. 2000; 3: 295.6. BIAGI, TIRABOSCHI Lavoro atipico: profili qualificatori e intensità dell’obbligo di
sicurezza. Dir. Rel. Ind. 1999; 1: 59.
7. BIZZARRO, Il lavoratore in somministrazione, TIRABOSCHI M., FANTINI L. Il Testo
Unico della salute e sicurezza sul lavoro. Giuffré, Milano, 2008.
8. BONARDI, Art. 3, in L. MONTUSCHI (diretto da), La nuova sicurezza sul Lavoro-Principi
comuni, Zanichelli, 2011, 70.
9. BUBOLA, DE VITA, Volontariato e lavori socialmente utili, Il Testo Unico della salute e sicurezza sul lavoro, (a cura di TIRABOSCHI e FANTINI), TIRABOSCHI M., FANTINI L. Il Testo Unico della salute e sicurezza sul lavoro. Giuffré, Milano, 387.
10. DE MARCO La responsabilità del datore di lavoro per il danno da infortunio subito
dall’apprendista, nota a Cass. Sez. Lav. 18 maggio 2007 n. 11622. RIDL 2008; 1: 100–104.
11. DE VITA La responsabilità del formatore per l’infortunio occorso a lavoratore apprendista,
nota a Cass. Pen. 7 aprile 2009, n. 15009.
12. DEL FORNO Sicurezza e sorveglianza sanitaria nel lavoro interinale. RivistAmbiente 2002;
2: 239-242.
13. DEL PUNTA, Dal Protocollo Giugni al Decreto Biagi, in ICHINO (a cura di), Il diritto del lavoro nell’Italia repubblicana, Giuffré, 2008, 253 ss.
14. DUBINI e FANTINI (a cura di), Guide alla sicurezza sul lavoro – volume I: Il sistema legislativo e istituzionale, EPC, 2014
15. EURISPES/ISPESL, Lavoratori atipici, 2003,
http://archivio.rassegna.it/2003/sicurezza/articoli/atipici/02.htm
16. FANTINI-GIULIANI, Salute e sicurezza nei luoghi di lavoro, 2014, Giuffré17. FANTINI-GIULIANI, voce Salute e sicurezza sul lavoro, in Il diritto del lavoro, a cura di
AMOROSO-DI CERBO-MARESCA, Milano, 2009, 2070 ss.18. GIOVANNONE-SPATTINI (a cura di), Lavoro in ambiente domestico, telelavoro e lavoro
a progetto: linee guida e buone prassi per la prevenzione dai rischi, anche in chiave comparata, alla luce della riforma del mercato del lavoro in Italia, 2009, ADAPT
19. GRILLI, Diritto penale del lavoro, Milano 1985.20. ILO, Creating Safe and Healthy Workplaces for All, ILO, Geneva, 2014.21. ILO, Non-standard forms of employment, Geneva, 2015
21
22. LAI M. La sicurezza del lavoro nelle nuove tipologie contrattuali. DPL 2003; 36: 2428.
23. LAI M. La sicurezza del lavoro tra legge e contrattazione collettiva. Giappichelli Editore,
Torino, 2002.
24. LAI, Flessibilità e sicurezza del lavoro, Giappichelli, 2006,
25. LEPORE, Manuale di diritto della sicurezza sul lavoro, Roma, Libreria dello Stato, 2010,
16.
26. MONDA, Il campo di applicazione oggettivo, in ZOPPOLI, PASCUCCI, NATULLO (a
cura di), in “Le nuove regole per la salute e la sicurezza dei lavoratori”, IPSOA, 2010, 93
27. NANNICINI T. L’analisi economica della flessibilità nel mercato del lavoro,” in Lavoro flessibile: opportunità o vincolo?, Franco Angeli Edizioni, 2005, 71-82.
28. NICCOLAI A. Lavoro temporaneo e autonomia private. Giappichelli Editore, Torino, 2003.
29. OSHA, A safe start for young workers in practice, Office for Official Publications of the European Communities, Luxembourg, 2007.
30. OSHA, E-Facts n. 78- Involving young workers in OSH, 2013, in https://osha.europa.eu/31. OSHA, Workforce diversity and risk assessment: Ensuring everyone is covered, OSHA,
2009, in osha.europa.eu.32. PASCUCCI, 3 agosto 2007- 3 agosto 2009. Due anni di attività legislativa per la salute e
sicurezza dei lavoratori, Fano, 2011
33. PERSIANI, Devolution e diritto del lavoro, in ADL., 2002, 19, e 34. ROMAGNOLI, Il diritto del lavoro nell’età della globalizzazione, in Lavoro e Diritto, n. 4,
2003, 569 ss; 35. SALITURO, I lavoratori in somministrazione, in PERSIANI-LEPORE, Il nuovo diritto
della sicurezza sul lavoro, UTET, 2012, 6536. SCIARRA, Globale e locale: prove di razionalità per il diritto del lavoro, in Sociologia del
diritto, 2004, n. 3, 23.37. SOPRANI, Sicurezza e Prevenzione nei luoghi di lavoro, Milano, 2001, e 38. TIRABOSCHI, Articolo 7. Formazione. Biagi M. Il nuovo lavoro a termine. Commentario
al D. Lgs. n. 368/01. Giuffrè, Milano, 2002.
39. TIRABOSCHI, Salute e sicurezza dei lavoratori temporanei: l’anomalia del caso italiano.
DPL 1997; 1284.
40. TIRABOSCHI, Campo di applicazione e tipologie contrattuali, in TIRABOSCHI - FANTINI (a cura di), Il testo unico della salute e sicurezza sul lavoro dopo il correttivo (d.lgs. n. 106/2009), Giuffré, 2009, 139.
41. TIRABOSCHI, La tutela della salute e sicurezza nei luoghi di lavoro dopo il decreto legislativo n. 106 del 2009: il nuovo Testo unico”, in TIRABOSCHI - FANTINI (a cura di), Il Testo unico della salute e sicurezza sul lavoro dopo il correttivo, Giuffré, 2009, 2 ss
42. TROJSI, La potestà legislativa dello Stato e delle Regioni, in ZOPPOLI, PASCUCCI, NATULLO (a cura di), Le nuove regole per la salute e sicurezza dei lavoratori, 2010, 15 ss.
43. VENTURI, Lavoratore: definizione e obblighi, in TIRABOSCHI - FANTINI (a cura di), Il Testo Unico della salute e sicurezza sul lavoro, Giuffré, 2008, 372
22
44. ZOPPOLI, Art. 1, in L. ZOPPOLI, P. PASCUCCI, G. NATULLO (a cura di), Le nuove regole per la salute e sicurezza dei lavoratori, 2010, 7.
23