Thanks to the valuable collaboration with experts in criminal and labor law, A&P Firm highlighted, during the Webinar, the responsibilities enlisted by the Decree Law 231/2001 for Italian Companies and their top managers, who send their employees to work in Countries considered at “high geopolitical risk”.
Table of contents:
- Supreme Court of Cassation provisions with regard to criminal responsibility pursuant to the Decree Law 231/2001
- The Company top managers’ responsibilities
- The Corporate responsibilities and the MOG 231
- Differences between the MOG 231 and the ISO 45001 certification
- The functions of the A&P Firm’s application software: monitoring workers abroad
- Regulatory Framework
- How we can help you
- Book a free-phone call
- Get a quotation
1. Supreme Court of Cassation provisions with regard to criminal responsibility pursuant to the Decree Law 231/2001
As per the Decree Law 231/2001 the Supreme Court of Cassation provides that:
- The financial and criminal liability of managers and of the corporation may be objected in case of personal injury or accident occurring abroad;
- For an accident that occurred abroad, the Italian criminal jurisdiction is relevant, on the sole ground that the training and information of the employee had to be carried out at the Italian company’s premises;
- The owner must inspect the Company, where the worker will work and the safety conditions of the construction site.
2. The Company top managers’ responsibilities
If workers are injured abroad, the Entrepreneur and the Company will be held responsible, in compliance with the Decree Law 231/2001:
- For the crimes of involuntary homicide or injury, in case of accident at work;
- For contributory negligence for intentional offence, if the worker is victim of willful injury or murder;
- Financially, for the Differential damage endured by the worker as a consequence of the crime.
The Chief of the Board of Directors or the CEO, the members of the Board of Director, the HR Manager, those holding delegated functions (like safety or assignment), the facility manager or Director, will be potentially liable in the Italian Courts.
3. The Corporate responsibilities and the MOG 231
The Decree Law 231/01 establishes a form of autonomous responsibility of the juridical person in addition to the responsibility of the physical person committing the offence (for example employees, managers, stakeholders). Therefore, the criminal responsibility of the entity is objected only if:
- Any of the predicated offences occurs (for example, murder, willful severe or extremely severe injuries, committed violating the norms safeguarding health and safety at work and other norms listed by the Decree Law 231/2001);
- The predicated offence is committed in the interest or for the benefit of the entity.
However, despite the subsistence of a predicated offence, the Company is exempted from any liability if it can prove the adoption of a suitable Organizational and Management Model (MOG) and the naming of an Entity in charge of monitoring the Model efficiency and its application.
4. Differences between the MOG 231 and the ISO 45001 certification
With regard to Safety at Work, several Italian companies obtained the ISO 45001 certification, that is an international standard safeguarding not only employees, but also occasional visitors from accidents and illnesses related to the working environment.
Nevertheless, the Certification cannot replace the MOG 231. Indeed, for an efficient safeguard in courts, it is strongly recommended to adopt the processes listed by the Decree Law 231/2001.
4.1. The 231 Special Section devoted to foreign posting as a corporate model for top managers protection
Often companies operating abroad do not include provisions for foreign posting within their own Model, even if implementing an Organizational and Management model.
Therefore, the adoption of a Special Section, with detailed protocols for foreign posting, will considerably reduce the personal criminal risks for the top managers of the Company, in case any injury occurs abroad.
4.2. How to implement the provisions of the Special Section devoted to foreign posting?
Companies adopting a MOG 231 and a Special Section for foreign posting can implement the necessary measures to Safely manage several business trips through an online application Software managed by the A&P Firm, thus saving costs and money.
5. The functions of the A&P Firm’s application software: monitoring workers abroad
The A&P Firm Software allows the Occupational Health and Safety Officer and the HR of a company to constantly monitor the location of their workers and/or of external collaborators abroad and to check the level of risk of these places.
5.1. Monitoring the risk for geographical areas and not Countries
Compared to traditional Risk Assessment tools, the real innovation of the A&P Firm’s application software is the possibility of geolocating the single foreign address (or the journey in the national territory) and to monitor it on an interactive map, while checking the corresponding level of risk.
5.2. An electronic archive keeping track of everything
Compared to a traditional manual approach, the A&P Firm’s application Software allows companies to keep track, within its own database, of all the Travel Security documentation developed from the pre-departure phase to the completion of the foreign posting.
5.3. Pre-departure notices for a Safe travel
In the pre-departure phase, it is fundamental that the sending Company checks its compliance with the immigration, remuneration, insurance, and health requirements of the foreign Country taking into account the feature of the specific workplace abroad, in compliance with the Decree Law 81/2008.
5.4. Geopolitical information always available online
The organization of a travel abroad by the Company’s HR Manager and Occupational Health and Safety Officer cannot avoid considering the geopolitical risks of the foreign Country where the work tasks will be performed. Therefore, external inputs like Safety, Risk of terrorist attacks, local customs, health situation, natural disasters and general organizational aspects become extremely relevant.
5.5. Activating automatically precautionary and emergency processes
It is up to the Company and top managers to prevent possible criminal and pecuniary liabilities against them, by developing precautionary and emergency processes, safeguarding their workers and/or external collaborators posted abroad through operation plans developed by Occupational Health and Safety Officer asseverated by Lawyers expert in Safety in compliance with the Decree Law 81/2008.
5.6. Monitoring the risk status during the entire business trip
Together with a proper management of the pre-departure phase, it is essential to constantly check the risk status of the business trip abroad exploiting a new automatic process through the online application Software of the A&P Firm.