Safety at work: the use of collective protection measures in the workplace takes priority over the use of PPE

Court of Cassation, Labour Section, judgment no. 18137 of 31 August 2020

The Supreme Court of Cassation, Labour Section, with judgment no. 18137 of 31 August 2020 affirmed the important principle that the use of collective protection measures in the workplace takes priority over the individual protection measures.
In the judgment in question, the Court of Cassation upheld the appeal – overturning the judgment of the Court of Appeal of Bologna – brought by the parents of a worker who was the victim of a fatal accident after falling to the ground from the roof of an industrial shed of the client company.
The Court of Appeal rejected the appeal filed by the parents of the victim, on the finding that the worker had been equipped with adequate and efficient personal protective equipment (belt and harness) with respect to the risk of falling from a height and that the event had occurred due to an unpredictable and risky conduct of the worker, likely to have been disconnected from the anchor lifeline.
According to the Court of Appeal, moreover, it was not configurable a profile of non-compliance by the employer related to the failure to adopt collective protection measures, since Article 15, paragraph 1, letter I) of Legislative Decree 81/2008 in establishing the priority of collective measures over individual ones leaves the person responsible a margin of appreciation related to a number of factors, including the opportunity to avoid the creation and spread of further risks related to the preparation of collective measures and the employer’s need to contain costs and time.

In a different opinion, the Court of Cassation with the ruling in question.
According to the Supreme Court, in fact, the conclusion reached by the Court of Appeal is in contrast with the regulatory framework offered by the T.U. on safety at work and in particular with the provisions of art. 15 which lists the general measures for the protection of health and safety of workers and establishes that priority is given to collective protection measures over those of individual protection (paragraph 1, letter i)), as well as with the subsequent art. 111 which confirms the priority of collective protection measures over individual ones with reference to the work to be carried out at height.
According to the Court of Cassation, therefore, the priority of collective protection measures over individual protection measures is widespread and also extends to specific work (such as work “at height” under Art. 111, para. 1, letter a)).
With regard to the mandatory nature of PPE, which must be used when risks cannot be avoided or sufficiently reduced “by measures of collective protection” (Art. 75), it provides that the latter are not only prevalent on the scale of importance but also binding in the first instance in the implementation of protective measures.
The obligatory nature of collective devices is then confirmed twice over in paragraph 6 of Art. 111 which, on the one hand, requires the adoption of “equivalent and effective safety measures” in the event that the performance of work of a particular nature requires the elimination of collective protection measures and, on the other hand, requires the restoration of collective protection devices once the work has been completed.

The Supreme Court highlights, finally, as in light of the provisions of Article 148 of the T.U. on safety at work there is a need to ensure, before carrying out work on skylights, roofs and the like and without prejudice to the obligation to provide collective protection measures, that these structures have sufficient strength to support the weight of workers and materials used.
In light of the above, the Supreme Court concludes that where work is to be carried out above “skylights, roofs, roofing and the like” it is mandatory to provide collective protection measures, with the sole and exclusive limitation that the implementation of such measures is incompatible with the state of the places or impossible for other technical reasons, the proof of which is the responsibility of the employer and, as far as it is concerned, of the persons holding guarantee positions.