Preventive organization modalities

The employer may undertake preventive activities, with the exception of activities related to monitoring the health of workers, when the following conditions are met:

a) That it is a company with up to ten employees, or, in the case of a company that employs up to twenty-five employees, that it has a single workplace.

b) That the activities carried out in the company are not included in Annex I of Royal Decree 39/1997, of January 17.

c) That the employer regularly carries out his professional activity at the workplace.

d) That it has the capacity corresponding to the preventive functions that it will develop, in accordance with the provisions of Chapter VI of Royal Decree 39/1997, of January 17.

The organization of the resources necessary for the development of preventive activities will be carried out by the employer in accordance with one of the preventive modalities established in article 10 of Royal Decree 39/1997.

This means that the employer must organize the necessary resources to carry out all preventive activities. Within this obligation to organize resources, the employer may undertake one or more preventive activities directly, while opting for one of the other options for the remaining preventive activities.

 “Workers' health monitoring, as well as other preventive activities not personally undertaken by the employer, must be covered by one of the other preventive organization methods provided.”

Although this is not the only option, employers often resort to contracting with one or more external prevention services for preventive activities that they do not personally undertake.

The employer may designate one or more workers to handle preventive activities in the company provided that:

- The designated workers must have the capacity corresponding to the functions to be performed, in accordance with the provisions of Chapter VI of Royal Decree 39/1997, of January 17, for the development of the preventive activities to be carried out.

- The number of designated workers, as well as the resources the employer provides and the time they have available to perform their activities, must be sufficient to adequately perform their duties.

Preventive activities that cannot be carried out by appointing one or more workers must be carried out by one or more of our own or third-party prevention services.

The organization of the resources necessary for the development of preventive activities will be carried out by the employer in accordance with one of the preventive modalities established in article 10 of Royal Decree 39/1997.

This implies that the employer must organize the necessary resources to carry out all preventive activities. Within this obligation to organize resources, the employer may designate one or more employees to carry out one or more preventive activities, while all other preventive activities may be assigned to one or more of its own or third-party prevention services.

"Preventive activities that cannot be carried out by appointing one or more workers must be carried out through one or more of our own or third-party prevention services."

When the employer has opted to organize the resources necessary for the development of one, several or all of the preventive activities in accordance with one or several of the other preventive modalities established in article 10 of Royal Decree 39/1997, of November 17, It is not necessary designate one or several workers for these.

The designation of workers will not be mandatory:

a) For those preventive activities that have been personally assumed by the employer.

b) For those preventive activities for which an in-house prevention service has been used.

c) For those preventive activities for which you have used an external prevention service.

For example, if the employer has opted to organize resources for the development of all preventive activities through the use of an external prevention service, they will not need to designate one or more workers.

Companies must organize resources to carry out preventive activities according to one of the modalities established in Chapter III of Royal Decree 39/1997, of January 17, which approves the Prevention Services Regulation (RSP). Thus, the employer must use a SPA when:

• You decide not to carry out the activities with your own resources; in other words, you opt for the use of a SPA as a preventive measure. In this case, you may use one or more SPAs to carry out all the preventive activities together.
• When the employer decides to undertake preventive activities, they must use a SPA for those not already undertaken. Please note that they must also use a SPA for the specialty of Occupational Medicine and any other preventive activities for which they lack the necessary training. For example, those with basic training cannot be considered for preventive training. However, even if they have the capacity to carry out these preventive activities, they may use one or more SPAs.
•  When the employer decides to organize resources to carry out preventive activities through one or more designated employees and/or its own prevention service. For preventive activities not carried out with its own resources, one or more SPAs must be used for their development.
• When the employer decides to organize resources to develop preventive activities through its own prevention service or a joint prevention service, it must resort to a SPA for those preventive activities not included in the preventive specialties assumed by these prevention services or when, in the case of assumed activities, they are highly complex or require the provision of particularly complex knowledge, facilities, or equipment.

External prevention services (SPA) are entities that must be able to provide the company with the advice and support it needs in relation to the preventive activities it arranges with the SPA.

This advice and support regarding preventive activities agreed upon with the SPA has been specified and developed in the regulations of Article 31 of Law 31/1995, of November 8, on the Prevention of Occupational Risks.

SPAs must directly assume the development of the following functions, provided that they have been agreed upon in the contract (agreement) 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.

From the regulatory provisions, it can be deduced that in the performance of a SPA two modes of action are distinguished:

• Advice to the employer, as well as advice and assistance to workers and their representatives, and to specialized representative bodies (Health and Safety Committee).
• Execution of preventive activities that require specialized knowledge that the company lacks.

It should always be kept in mind that the SPA has an advisory role, providing technical assistance and support to the company, an activity that can be classified as consulting. The responsibility for implementing preventive activities rests with the company itself, without prejudice to the direct responsibility that corresponds to said entities in the development and execution of activities such as risk assessment, health surveillance, or other contracted activities.

Regarding the contract or agreement established between the company and a SPA, it must include at least what is established in Article 20 of Royal Decree 39/1997, of January 17.

Among these, the following will be recorded:

• 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.
• The company's commitment to inform the external prevention service of the activities or functions performed with other preventive resources and/or other entities to facilitate collaboration and coordination among all of them, as well as any specific preventive activities that are legally required and are not covered by the agreement.
• The company's commitment to report work-related health hazards to the external prevention service.
• The obligation of the prevention service to carry out, with the frequency required by existing risks, the monitoring and assessment of the implementation of preventive activities derived from the evaluation.
• concert duration.
• Economic conditions of the concert.

The constitution of an own prevention service (SPP) is regulated in article 31 of Law 31/1995, of November 8, on the Prevention of Occupational Risks (LPRL) and in article 14 of Royal Decree 39/1997, of January 17, which approves the Prevention Services Regulation (RSP). In particular, it is established that:

• An SPP will be established so volunteer, by decision of the company, when the designation of one or more workers is insufficient to carry out prevention activities, depending on the size of the company, the risks to which the workers are exposed or the dangerousness of the activities carried out.
• An SPP will be established so mandatory when the company is in any of the cases included in article 14 RSP.

When, in the case of companies not included in the previous sections, so decided by the labor authority, following a report from the Labor and Social Security Inspectorate and, where appropriate, from the technical preventive bodies of the Autonomous Communities, depending on the dangerous nature of the activity carried out or the frequency or severity of accidents in the company.

Articles 14 and 15 of the Prevention Services Regulation (RSP) establish the assumptions in which a SPP must be established, as well as the organization and means they must have. Consequently, we must ensure compliance with these aspects for the sake of its effective constitution:

• It must have the facilities, human and material resources to directly assume preventive activities in two specialties, arranging with one or more SPA the activities not assumed.
• The mandatory prior consultation must be carried out with the workers' legal representatives regarding the company's preventive organizational model.
• The preventive organization modality must be reflected at least in the company's prevention plan. It is recommended that it be formalized in a charter.
• The SPP must annually prepare an annual program for the prevention service and a report on its activities, which it must make available to the competent labor and health authorities and the Health and Safety Committee.

Detailed information can be found in the publication of the Regional Institute for Occupational Safety and Health:

“Frequently Asked Questions (FAQ's) about Own Prevention Services (SPP)”

1st Edition. February 2024.

The creation and communication of a deed of incorporation for an in-house repair service to the labor authority is not mandatory, and therefore nothing has been established regarding its possible contents.

In the event that it is decided to draw up an act of constitution, the provisions established for the constitution of joint prevention services can be taken as a reference, in accordance with the provisions of article 21 of the RSP.

You can find more detailed information in the publication of the Regional Institute for Occupational Safety and Health:

“Frequently Asked Questions (FAQ's) about Own Prevention Services (SPP)”

1st Edition. February 2024.

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.
• Between 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 through collective bargaining or through agreements on specific matters referred to in Article 83.3 of the Workers' Statute, or, failing that, which so 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 to establish a joint prevention service must be communicated in advance to the labor authority in the territory where its main facilities are located, unless such establishment has 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.

Companies that organize resources for the development of preventive activities using their own resources are required to periodically verify the effectiveness of their prevention management system through a regulatory audit.   

Companies that have not contracted prevention services with a specialized entity must submit their prevention system to an external audit or evaluation.

Companies that carry out part of their preventive activities with their own resources and the rest by using one or more external prevention services are required to audit their company's prevention management system for the activities carried out with their own resources.

The audit of the prevention system of companies that carry out preventive activities with their own and third-party resources will focus on the preventive activities carried out by the employer with their own resources and their integration into the company's general management system, taking into account the impact on said system of its mixed form of organization, as well as the way in which its own and third-party resources are coordinated within the framework of the occupational risk prevention plan.

Regarding the frequency of the audit, it must be carried out:

• The first audit The company's prevention system must be carried out within twelve months from the moment in which the preventive activity planning is available.
• The audit must be repeated every four years, except when carrying out activities included in Annex I of Royal Decree 39/1997, of January 17, in which case the period will be two years. These review periods will be extended by two years in cases where the company's preventive organization modality has been agreed upon with the company's specialized employee representatives.

The audit must be conducted in accordance with established or future technical standards and taking into account the information received from employees. Regardless of the procedure used, the methodology or minimum reference procedure must include, at least:

a) An analysis of the documentation relating to the occupational risk prevention plan, the risk assessment, the planning of preventive activities and any other information on the company's organization and activities that is necessary for the performance of the auditing activity.

b) A field analysis aimed at verifying that the documentation referred to in the previous paragraph accurately and precisely reflects the company's preventive reality. This analysis, which may be carried out using sampling techniques when necessary, will include visits to work stations.

c) An assessment of the adequacy of the company's prevention system to occupational risk prevention regulations.

d) Conclusions on the effectiveness of the company's occupational risk prevention system.

The auditors must carry out a audit report which at least reflects:

1. Identification of the auditing person or entity and the audit team.
2. Identification of the audited company.
3. Purpose and scope of the audit.
4. Date of issue of the audit report.
5. Documentation used as the basis for the audit, including information received from employee representatives, which will be incorporated into the report.
6. Summary description of the methodology used to perform the audit and, where applicable, identification of the technical standards used.
7. Description of the different elements audited and the results of the audit in relation to each of them.
8. Conclusions on the effectiveness of the prevention system and on the employer's compliance with the obligations established in the occupational risk prevention regulations.
9. Signature of the person or entity responsible for the audit.

Mandatory regulatory audits for companies that carry out preventive activities with their own resources may only be carried out by individuals or entities authorized by the labor authority to carry out regulatory audits of prevention systems.