Entities specialized in prevention of occupational risks

SPAs are legal entities of a private nature that must be accredited by the competent public authority.

The employer must resort to this preventive modality, when any of the following circumstances occur:

• When the appointment of one or more workers is insufficient and there is no legal obligation to establish their own prevention service.
• In the event that an own prevention service is not constituted.
• When the employer only partially assumes the preventive functions.

They are entities that must be in a position to provide the company with the advice and support it needs in relation to the concerted activities, taking into account that the responsibility for their execution lies with the company itself, without prejudice to the direct responsibility that corresponds to them. said entities in the development and execution of activities such as risk assessment, health surveillance or other contracted activities.

The SPAs must directly assume the development of the following functions, as long as they have been arranged in the contract signed between the company and the SPA:

• Design, implementation and application of an occupational risk prevention plan that allows the integration of prevention in the company.
• The evaluation of risk factors that may affect the safety and health of workers.
• The planning of preventive activity and the determination of priorities in the adoption of preventive measures and the monitoring of their effectiveness.
• Information and training of workers.
• Provision of first aid and emergency plans.
• Surveillance of the health of workers in relation to the risks arising from work.

If a company does not have any of its own resources specifically dedicated to prevention, it must contract an entire "comprehensive service" with a SPA. Therefore it is very important to youservice delivery agreement (commercial contract that has been made with the SPA), both its content and its knowledge by the employer, since it will be the one that determines the prevention activities that the SPA will carry out in the company in that specific company.
 
From the regulatory provisions that regulate the issue of occupational risk prevention, it can be deduced that:

• In the performance of a SPA that acts as a prevention service, two types of functions are distinguished:

1. Advice both to the employer, such as advice and assistance to workers and their representatives, and specialized representative bodies (Health and Safety Committee), and
2. Execution of preventive activities whose performance requires the specialized knowledge that the company lacks.

• Hiring a SPA as a company prevention service does not exempt the employer from the obligation to integrate prevention at all levels of the company.

In relation to the contract or agreement established between the company and a SPA, this must include, at a minimum, the following aspects:

• Identification of the specialized entity that acts as a prevention service outside the company.
• Identification of the company receiving the activity, as well as the work centers of the same to which said activity is contracted.
• Aspects of the preventive activity to be carried out in the company, specifying the specific actions, as well as the means to carry it out.
• Worker health surveillance activity, where appropriate.
• concert duration.
• Economic conditions of the concert.

A SPA that provides a "comprehensive service" to a company must annually carry out a situation analysis, based on the data available at that time, and submit to the employer a general prevention planning proposal that includes, duly prioritized, both the measures whose execution corresponds directly to the employer (for example, the acquisition of PPE), such as activities that could be carried out by the SPA itself (for example, the performance of hygiene measurements).

The contract or annual program must basically contain the following types of activity:

• General analysis and planning.
• "Regular" activities that had already been carried out in previous years and that must continue to be carried out (scheduled evaluation reviews, control of critical elements, environmental controls, updating of training, etc.).
• "New" activities that need to result from an assessment update, or that were previously completed but had been postponed for priority reasons.
• "Occasional" activities such as specific advice, accident investigation, evaluation reviews due to changes in working conditions, etc.

In relation to the agreements that are signed, the vast majority of them exclude preventive activities necessary for the employer to be in a position to adopt prevention decisions, such as complementary evaluations of specific risks, the complexity of which requires specialized attention, as they are:

• The evaluations of work equipment not subject to CE marking (equipment prior to the year 1995) where its compliance is carried out according to Annex I of RD 1215/1997, of July 18, which establishes the minimum provisions of safety and health for the use by workers of work equipment. It must be taken into account that, at a minimum, the general risk assessment must be carried out by "direct observation" (without the need to carry out tests and trials), which can be carried out by a prevention technician with higher level training and experience in this matter, without Prejudice that in cases of very old, deteriorated or poorly maintained equipment, the intervention of a competent technician from a specialized organization or laboratories may be necessary.
• The evaluation of risks due to exposure to certain physical, chemical or biological agents, in particular, when the evaluation procedure includes measurements of a certain complexity.
• The evaluation of ergonomic and psychosocial risks, except in very specific cases such as data display screens or manual handling of loads, both of which are subject to specific regulation.

It must be taken into account that these specific evaluations must be carried out in the event that the risk exists in the company, therefore, they must be included in the contract in those cases in which the general agreement carried out by the SPA does not contemplate them.

It can be considered as a general rule that companies that have contracted the prevention service with a specialized entity, and do not carry out preventive work with their own means, are exempt from having to carry out the audit.

But it must be taken into account that if preventive tasks are carried out with their own resources, or in a mixed way (own and external), the companies that do not carry out the activities included in Annex I of RD 39/1997, and those that have a maximum of 50 workers and who carry out preventive work with their own means, which also show effectiveness in their preventive system, both due to the limited number of workers, and due to the lack of complexity of their preventive activities, will serve with the notification to the labor authority .

Said notification will demonstrate the concurrence of conditions that make it not mandatory to require the audit of the prevention system, as established in annex II of the notification regulation on the concurrence of conditions that do not make it necessary to resort to the audit of the prevention system. business.

Access from here to audit exemption request

The first audit must be carried out within the twelve months following the establishment of the planning of the preventive activity. 

After this, and as a general term, it must be repeated every four years, unless:

- The company carries out dangerous activities included in the aforementioned annex I of RD 39/1997.

- It is required by the labor authority, following a report from the Labor and Social Security Inspection, and where appropriate, from the technical bodies in preventive matters of the autonomous communities, in view of the accident rate or other circumstances that make it advisable.

1. The results of the audit must be reflected in a report that the audited company must keep available to the competent labor authority and the workers' representatives.

2. The audit report must reflect the following aspects:

- Identification of the auditing person or entity and the auditing team.

- Identification of the audited company.

- Purpose and scope of the audit.

- Date of issue of the audit report.

- Documentation that has served as the basis for the audit, including the information received from the workers' representatives, which will be included in the report.

- Summarized description of the methodology used to carry out the audit and, if applicable, identification of the technical standards used.

- Description of the different elements audited and the result of the audit in relation to each of them.

- Conclusions on the effectiveness of the prevention system and on the employer's compliance with the obligations established in the occupational risk prevention regulations.

- Signature of the head of the auditing person or entity.

3. The content of the audit report must faithfully reflect the reality verified in the company, and any alteration or distortion thereof is prohibited.

4. The company will adopt the necessary measures to correct those deficiencies that the results of the audit have revealed and that suppose non-compliance with the regulations on prevention of occupational risks.

The natural or legal persons who carry out the audit of the prevention system of a company may not maintain commercial, financial or any other type of relationship with the company, other than those inherent to their performance as auditors, which may affect their independence or influence in the results of their activities. In the same way, such persons may not carry out preventive activities coordination activities for the same or a different company, nor activities as a specialized entity to act as a prevention service, nor maintain commercial, financial or any other type of relationship with the latter. , with the exception of the following:

-The concert of the auditing person or entity with one or more external prevention services to carry out preventive activities in their own company.

-The contract to carry out the audit of the prevention system of an employer dedicated to the activity of external prevention service.

When the complexity of the verifications to be carried out makes it necessary, the persons or entities in charge of carrying out the audit may resort to other professionals who have the necessary knowledge, means and facilities to carry them out.

The specialized persons or entities that intend to carry out the audit activity of the prevention system must have the authorization of the competent labor authority of the place where their main facilities are located, upon request before it, in which the indicated provisions will be stated. in article 23 of RD 39/1997 modified by RD 337/2010.

The labor authority, after the reports it deems appropriate, will issue a resolution authorizing or denying the request made within a period of three months, counted from the entry of the request in the registry of the competent administrative body. Once this period has elapsed without an express resolution having been issued, the request may be understood to have been rejected.

The provisions for accreditation in articles 24 and 25, as well as the provisions of article 26 in relation to the maintenance of the authorization conditions and the termination, where appropriate, of the authorizations granted, shall apply to the authorization.

The art. 21 of the RSP establishes that joint prevention services may be constituted:

• Among those companies that simultaneously carry out activities in the same work center, building or shopping center, provided that the operability and efficiency of the service is guaranteed in the terms provided in article 15.3 of Royal Decree 39/1997.
• Among those companies belonging to the same productive sector or business group or that carry out their activities in an industrial estate or limited geographical area, which so agree by collective bargaining or through agreements on specific matters referred to in article 83.3 of the Statute of the workers or, failing that, which so they decide.

However, companies that have a legal obligation to have their own prevention service may not be part of joint prevention services set up for companies in a certain sector, but they can be part of those set up for companies in the same group.

The agreement for the constitution of the joint prevention service must be communicated in advance to the labor authority of the territory where its main facilities are located, in the event that said constitution has not been decided within the framework of collective bargaining.

Minimum content of the SPM constitution act:

• Specification of the legal basis to become an SPM.
• Declaration of the agreement of all companies to become SPM
• Statement confirming that the mandatory prior consultation has been carried out with the representatives of the workers of each of the joint ventures.
• Identification of each of the companies that have decided to set up the SPM.
• Address of the place where the main facilities of the SPM are located.
• Data of the joint prevention service (if it has its own legal personality).
• Identification of the preventive specialties assumed by the joint prevention service.
• Minimum conditions in which such prevention service must be developed, among others:
  • Human and material means.
  • Declaration that the preventive activity of the SPM will be limited to the participating companies.
  • Degree and form of participation of each of the joint ventures.