Dr Ignazio Quattrin — Head of CEPER Legal Department
Analysis of business and production realities confirms the ever-growing resort to outsourcing — contracting activities, works or services to “third-party” entities distinct from the principal (client).
This may occur for a variety of reasons: the complexity or specificity of the activities or services, following a fully logical and coherent rationale (the primary purpose of contracting is to draw on capabilities that are different, complementary or functional to the client’s needs and resources); the excessive cost or organisational complexity of maintaining or establishing a competent in-house service; external demand; specific temporary specialisms not available within the client’s own organisation; economies of scale; or simply to transfer to a third party the business risk, along with the associated health and safety risks for the workers involved.
Regardless of the legitimate reasons behind contracting, in all the scenarios described, the client’s liability arises from the very outset — starting with the obligation to verify the technical-professional suitability of the chosen external provider, whether on a temporary, permanent or intermittent basis. The essence of contracting remains the same: a party, the true dominus of this decision, has deemed it appropriate, useful or strategic to transfer (by contractual assignment) certain activities to a third party in exchange for consideration (Article 1655 of the Italian Civil Code), and this decision will define, insofar as relevant, the client’s potential liability.
From a civil law perspective, the matter is fairly straightforward, well defined and regulated. From a prevention standpoint, however, experience shows that such decisions can become the gateway to underestimation, carelessness, harm, risk and, all too often, workplace accidents.
Contracting, while potentially offering production-related savings in terms of organisation and cost, is — from the perspective of the health and safety of workers — a generator of problems, a source of complications and a trigger for compliance obligations only partially detailed by the special legislation (Legislative Decree 81/2008 as subsequently amended and supplemented). In essence, poorly managed or designed contracting can amplify risk, which is sometimes underestimated. Accident statistics confirm this.
The consequences of such decisions are clearly and frequently underestimated.
What is particularly noteworthy is that, with increasing frequency — beyond the factual investigation of accident dynamics, working practices and actual execution of work activities, and even before examining failures in coordination or the management of cooperation between client and contractor, or the assessment and management of interference between work processes and compliance with the relevant measures (usually set out in the DUVRI) — the control and judicial authorities focus their investigations “upstream” of the event: the root of the problem can, and often reasonably does, lie (also) in the selection of the counterparty, in the qualification process, in the steps that led to selecting THAT particular supplier over others — in other words, in the deficient, inadequate or absent verification of the contractor’s technical-professional suitability.
The picture grows even bleaker when one considers that contracting can mark the start of a chain of subcontracts — more or less controlled, deliberate and transparent — thereby creating expectations of protection that diminish progressively as control over the chain fragments and the coherence of supplier selection erodes. Subcontracting, while legitimate, should be a strength rather than a point of vulnerability in the system of entrusting services, activities or works.
In legal terms, the legislation condenses everything into a preliminary obligation — a responsibility of the client — to verify technical-professional suitability, both in the standard intra-company context (Article 26(1)(a)) and in the special context (temporary or mobile construction sites, Article 90(9)(a)).
This verification and selection process is increasingly the subject of scrutiny and judgement (unfortunately, inevitably ex post) by the courts, confirming its strategic importance not only for prevention but also from a business perspective. Choosing a poor or unsuitable business partner creates potential — and sometimes actual — harm that often outweighs any calculated or hoped-for savings. In any event, even before an incident occurs, the obligations in question are subject to autonomous violation proceedings against the client, or the client’s representative (e.g. the Works Manager). For this reason alone, due attention should be devoted to selecting suppliers and verifying their technical-professional suitability, as a matter of prudence, resource efficiency and concern for the health and protection of those involved.
What in fact occurs, however, is a pattern of negligence or blind trust whereby clients all too often rely on formal document collection (it must be said that the legislation does not help, given its bare-bones formulation) or, worse still, abuse self-certifications that are sometimes patently and evidently untrue or insufficient. A more rigorous, objective and penetrating check could instead eliminate unwelcome consequences or post-hoc liabilities at the root. This is the true meaning of the word “prevent”, which in turn averts liability falling on the client.
It should be added that, on the one hand, this obligation is not by chance the first requirement the legislation imposes on the prospective client; however, it does not end with a mere office exercise — perhaps superficial or archival — but becomes genuinely protective only if it continues by cross-referencing actual data with declared data: that is, through effective verification (even if only on a sample basis) in the field, of the reliability and adequacy of the selected partner. The quality of a supplier, whose performance and compliance with agreements and legal requirements one genuinely wishes to assess, can only be evaluated over the entire duration of the contract. Particularly in prevention matters, form alone without the support of substance and, above all, continuity (i.e. without a method, an effective selection and control system) is never sufficient (note 1). Nor is it protective to confine oneself to what the legislation prescribes by acquiring and verifying documents that, in reality, are wholly inadequate to protect the client or guarantee actual safety: the obligation has, within its folds and cross-references, a broader scope, and is also the product — and combined effect — of other related regulations (joint and several liability, contractual, insurance and remuneration compliance, liability for damage to property or persons, etc.), which is why maximum attention, effort and adequate resources should be devoted to the supplier selection and qualification process.
It is worth noting that it is only within the special legislation (temporary or mobile construction sites) that one finds a definition — an illuminating one at that — of technical-professional suitability, useful for our purposes, while in the general legislation, more than ten years after its enactment, the promised clarifications have never materialised (note 2).
Article 89(1)(l), definition of technical-professional suitability: “possession of organisational capacity, as well as availability of workforce, machinery and equipment, in relation to the execution of the works”.
At this point, it remains only to examine how various judicial rulings have underscored and given weight to the verification of technical-professional suitability, highlighting the client’s inadequate compliance, in the form of a finding of negligence in selection (culpa in eligendo) and, at times, supervisory negligence (culpa in vigilando).
Court of Cassation, Civil Division, 6/7/1979 No. 14371
In matters of negligent offences involving workplace accidents, the principal bears liability where execution of the works was entrusted to a contractor patently lacking the necessary technical capability.
Court of Cassation, Criminal Division, Section IV, 27/8/2014 No. 36268
The wording “in relation to the works” contains a precise rule of diligence and prudence that the client commissioning contracted works must follow and, in particular, the obligation to ascertain that the person entrusted with the task is not only in possession of the certificates of suitability required by law — as evidenced by the reference, albeit not exclusive, to the chamber of commerce certificate — but also possesses technical and professional capability proportionate to the type of activity to be commissioned and the specific manner in which it is to be performed. (…) Article 26 of Legislative Decree 81/2008 as subsequently amended and supplemented serves an integrative function with respect to the criminal provision penalising the offence of negligent injury, placing upon the client the obligation to ensure that the contracting company operating in the client’s premises also complies with prevention measures, for whose non-observance the client shall be called to answer, where the client was in a position to perceive the inadequacy. (…) Already at the stage of selecting the contracting party, the client had the opportunity to verify the shortcomings of the contracting company in terms of safety, considering that the contractor’s organisational deficiencies in safety measures, where readily perceivable, also implicated the client’s liability. (…) The client’s duty of diligence does not end with selecting a company technically capable of executing the commissioned work, but extends to verifying the contractor’s technical-professional suitability to carry out specified works under safe conditions for workers. Court of Cassation, Civil Division, 11/6/2012 No. 9441: (…) the evidence on record did not in any way support the conclusion that the contractor presented as a reliable party, such as to exclude the principal’s obligation to oversee the performance of contracted activities, by virtue of the general principles in this area. The assessment of the contractor’s technical and specific suitability, as well as professional reliability, to execute the assigned task must be carried out not in the abstract but in concrete terms, carefully evaluating the contractor’s technical and organisational resources (culpa in eligendo and culpa in vigilando).
Court of Cassation, Criminal Division, Section IV, 20/4/2017 No. 19036
(…) the client’s negligent conduct is reconstructed both with reference to the selection of the contracting company — having regard to the verification obligations imposed by the legislation — and on the basis of the failure to monitor the employer’s adoption of general health and safety protection measures for workers in the workplace, which in this case were entirely omitted. Such measures need not be implemented by the client, as they fall squarely within the employer’s own obligations; however, their actual adoption by the employer must be verified and, where an omission is ascertained, demanded by the client. The verification obligation attributable to the client did not, in this case, translate into an impermissible duty of pervasive, continuous and granular control over the organisation and progress of works — which the law does not envisage — nor into a reproach for the violation of obligations incumbent upon another legal guarantor. Rather, it was delineated and calibrated according to the capacity to govern the source of danger on the part of the entity holding the primary interest in the execution of the works, which set in motion the activity in which the victim’s exposure to risk materialised. (…) The client, even when not interfering in their execution, nonetheless remains obligated to verify the technical-professional suitability of the selected company and self-employed workers in relation to the works entrusted. The client ultimately shares responsibility, together with the other legally identified guarantor figures — each bearing precise duties, differently articulated by the legislator — for risk management in connection with the execution of works having specific characteristics and directly attributable to the client, as the originator, designer and funder, and therefore the true dominus of the works, possessing powers of injunction whose non-exercise, in this case, allowed works to continue in total disregard of the most elementary rules safeguarding the safety of workers engaged in the execution of the works, thereby standing in a causal relationship with the worker’s death.
The words of the Supreme Court over time are lucidly effective, requiring little commentary, much reflection and diligent future application. In this area, regrettably, the words of the United Sections (note 3) remain valid and current: all too often, companies risk suffering severe consequences from choices that are “economically seductive but ruinous for safety”.
NOTE
1 — See, for example, the ruling at the following link: http://olympus.uniurb.it/index.php?option=com_content&view=article&id=15888:cassazione-penale,-sez-4,-20-luglio-2016,-n-31213-infortunio-durante-i-lavori-di-pulizia-e-bonifica-assenza-di-misure-per-la-salute-e-sicurezza-dei-lavori-omessa-verifica-dell-idoneit%C3%A0-tecnico-professionale-delle-imprese-esecutrici-dei-lavori&catid=17&Itemid=138 in which the client is explicitly reproached not only for negligence and gross carelessness at the initial assessment stage, but also for failing to carry out adequate ongoing checks, which would have made it possible to prevent the harmful event by readily detecting the actual unsuitability of the contracted supplier.
2 — The qualification procedures established by the decree referred to in Article 6(8)(g), for verifying the technical-professional suitability of contracting companies or self-employed workers in relation to the works, services and supplies to be contracted out, have never been enacted in a specific decree. The legislation remains “incomplete”, but perhaps, with hindsight (and given the effectiveness of Annex XVII in the special context), this is almost for the better — despite the practical paradox of applying, after more than ten years, a provision designed to be “temporary”. In practice, custom has filled the gaps left by the legislator, for better or worse.
3 — Court of Cassation, Criminal Division, United Sections, 18/9/2014 No. 38343
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