As we have just noted, in our country, any company with at least one contract worker is legally obliged to set up a PRL management system. In addition, in certain circumstances, it is required to carry out audits of that management system. Let`s see what those circumstances are. The second basic idea is that the implementation of a PRL management system in Spain is not an optional issue. Indeed, Law 31/1995 on the Prevention of Occupational Risks makes the introduction of a management system a legal obligation for all companies with at least one contract worker. This mandatory PRL system is subject to certain circumstances that must be verified. (We will examine these circumstances below.) This legal audit obligation is supported by Chapter V of the R.S.P. (Regulation of Prevention Services). In particular, the law generally stipulates that companies that have not completed the prevention service with a specialized body of other persons must submit the review of their prevention system to the control of an external audit or evaluation.
On the other hand, it follows from the content of Article 29 of the RSP that undertakings which are required to set up their own prevention service, those which have been integrated into a common prevention service with more than 50 workers or whose activity has been included in Annex I to RD 39/97, those which develop their prevention activities with their own and external (that is to say, mixed) resources, Kind. 31 to RSP, or those who have chosen to appoint workers to take on the preventive activity with more than 50 workers or to carry out activities listed in Annex I to RD 39/97 (hazardous activities), are required by law to carry out a mandatory review of their prevention systems. Without prejudice to the above, it should not be forgotten that it will also be mandatory to pass an external audit for companies that, although not legally obliged to do so, will be ordered in this regard by the Labour Authority if they consider that there are special risk conditions for accident data of the company or industry. or for external information or arrival through any channel, according to a corresponding report by the Labour Inspectorate. (Article 29(4) of the RSP). In fact, from a legal point of view, it is simply not possible for a company with more than 500 employees to agree with the legal representation of employees to form its own prevention service, since its constitution is mandatory, since it is not a provision of the Equipment Act (yes, on the other hand, allowing possible improvements to the minimum requirements, since it is an unavailable minimum necessary right, -art. 2.2 LPRL-). For that reason, in the latter case, the possibility of an additional two-year extension provided for by law simply does not exist, since it is not one of the cases covered by the exception to the two- or four-year repetition rule. We have seen the two basic modalities of the prL audit that can be carried out.
We have legal audits which, in some cases, are mandatory and limited at national level. On the other hand, there are compliance audits that are voluntary and have an international scope. In any event, as already mentioned, the application of a voluntary standard does not exempt strict compliance with the relevant legislation. It can be a great supplement, but it can never be a substitute. On the other hand, companies that are not required by law to carry out an external audit (or those that are required as an improvement in terms of periodicity or scope greater than that required by law) can still decide to subject their prevention system to a voluntary audit, as provided for in Article 33bis of the RSP. As far as the content is concerned, we understand that the Pact implies that there is more than one option for organising prevention. This means that the undertakings in which it is agreed with the employees` representation are exclusively those in which there is more than one legally possible possibility of organising their preventive activities in one of the arrangements laid down in Chapter III of the RSP (depending on the size of the undertaking and the nature and distribution of the risks involved). If the company is obliged to carry out the audit, it must do so within 12 months of planning the prevention activity.
You must then repeat this audit every 4 years. If the company carries out the activities listed in Annex I of the R.S.P., the audit is repeated every 2 years. In general, he must repeat the examination if the labour authority puts it in place. First of all, we must specify that the wording of this agreement or pact must be in writing and signed with the prevention delegates (art. 35 LPRL), for this purpose, it should be recalled that these delegates are appointed by and from among the legal representatives of the employees of the company, it must be clarified that in our country, in many companies, there is in fact no legal representation of the employees (and consequently, the prevention agent), since the workers have not exercised this right. In the latter cases, there would be no possibility of concluding such pacts until there was a valid interlocutor for them. On the other hand, in companies with fifty or more employees, we will have what is called the health and safety committee (Art. 38 LPRL), which, in these cases, appears to be the most appropriate area for adopting such agreements or pacts, as explained in Article 30.4 of RD 39/97 above. With regard to this issue, there are some common treaties, so that we can ask ourselves other questions that also concern and clarify the scope of the concept of agreement with specialised legal representatives, such as: the importance of this specific obligation to control, and not the public, the existing prevention system in the company is to determine the effectiveness and relevance of the mandatory prevention activity in companies. to insure. in cases where the legislator has allowed the prevention organization to be taken over by the employer himself, by employees designated by him, or in cases where it is managed by his own prevention services or by a mixed system.
However, as specified in the criteria of the National Institute of Occupational Safety and Health for carrying out audits of the risk prevention system regulated in Chapter V of the RSP: “. Article 30 of the PHN defines the specific objectives of the audit, focusing on the analysis of the risk assessment, the nature and planning of preventive measures and the organisation of the resources needed to carry them out. Therefore, the audit is not intended to verify whether the existing working conditions in the company comply with the law at any given time or not. In our view, this may be the case, since the scope of the pact or agreement that may be concluded with the prevention delegates is not legally limited, nor is its validity and the effect of extending the validity of the audit by two years conditional.