Controversial rulings issued in industrial accident cases

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In November 2003, Spanish courts issued three rulings that proved controversial because they were seen as finding workers responsible for the industrial accidents they had suffered. Trade unions criticised the judgments on the grounds that they failed to take into account the working conditions and the unstable nature of temporary employment contracts, and interpreted the Occupational Risk Prevention Law incorrectly.

Three court rulings in occupational accident cases issued during November 2003 gave rise to considerable criticism, with claims that they essentially found the victims of the accidents to be 'guilty'. Two of the judgments related to construction workers, one in Barcelona and one in Pontevedra, and the third to a crane operator in Córdoba.

Worker found responsible for fall

The Barcelona Court of Appeal (Audiencia de Barcelona) found that a construction worker, Enrique Pociños, was responsible for an industrial accident that left him tetraplegic. In 1999, he fell 3.5 metres from an opening in a facade in which there were no safety measures. In the first instance, the magistrate in Penal Court Number One at Mataró (Barcelona) had found that the worker had been criminally placed in a situation of objective danger, and sentenced the employer and the architect of the building to a year in prison each and awarded compensation of EUR 380,000. However, the company's appeal to the Barcelona Court of Appeal led to the lower court's ruling being reversed. The higher court argued that the worker had accepted, and did not report, the lack of safety measures at work. It considered that the worker was 'exceptionally careless ... he climbed onto a trestle, voluntarily accepting the risk of a serious fall' and was therefore guilty of accepting working conditions that placed his life at risk. This ruling implies that a company is not responsible for a lack of safety measures if the worker fails to report them. However, Mr Pociños claims that if he had refused to climb onto the trestle he would have run the risk of being dismissed. His lawyers now have a year to take the case to the Constitutional Court (Tribunal Constitucional).

The controversy caused by the ruling led even the Minister of Labour, Eduardo Zaplana, to state that he disagreed with the Court of Appeal's decision. The Minister not only expressed concern about the judgment, but also took steps to make sure that Mr Pociños will at least obtain a pension for the highest level of permanent disability. The Trade Union Confederation of Workers’ Commissions (Comisiones Obreras, CC.OO) and the General Workers’ Confederation (Unión General de Trabajadores, UGT) consider that the ruling is unacceptable because it is in conflict with the Occupational Risk Prevention Law (Ley de Prevención de Riesgos Laborales) (ES0301208F), and have asked the General Council of the Judiciary (Consejo General del Poder Judicial, CGPJ) to review the case. Furthermore, on 12 November over 200 trade union delegates from CC.OO's Catalonia organisation held a demonstration in front of the Barcelona Court of Justice of to protest against the Court of Appeal's judgment. After a meeting with the magistrate, Pedro Martín, the unions stated that he was unaware of working conditions in the construction sector. The United Left (Izquierda Unida) party has started proceedings formally requesting that the CGPJ undertake an investigation into the case.

Two further rulings

The second controversial judgment had similarities with the first. On 20 November, the Supreme Court (Tribunal Supremo) absolved a company from liability in a cases in which a worker died when the tractor he was driving overturned, because it considered that the worker had chosen the wrong vehicle. The Supreme Court thus ratified the ruling of a court in Córdoba that had absolved the employer and supervisor from civil liability for this fatal accident, which took place in 1999. The Supreme Court considered that the death was accidental. According to the Court, 'the risk of overturning was difficult to foresee and therefore the behaviour of the supervisor cannot be considered irresponsible or negligent ... even if there may have been an infringement of the safety measures or of the Occupational Risk Prevention Law, in this case there is no negligent or careless behaviour in the action of the company that justifies a declaration of civil liability.'

The third ruling was issued by the Pontevedra Court of Appeal (Audiencia de Pontevedra), which considered that an accident suffered in 1999 by Armando Cacabellos, a construction worker who has been disabled since, was due to his careless action when he lifted an iron plate together with fellow workers. The ruling absolved the company and its insurers from civil liability. Mr Cacabellos considers the judgment unfair on the grounds that in the construction sector there is great pressure for workers to obey orders in order to keep their jobs.

Due to the controversy that has arisen over these rulings and the high industrial accident rate, UGT has asked the attorney general to clarify immediately what constitutes an infringement of the Occupational Risk Prevention Law. CC.OO alleges that the actions of the speaker and magistrates of the Barcelona Court of Appeal may be a case of perversion of the course of justice under the terms of Article 447 of the Penal Code, whereby 'whether due to carelessness or inexcusable ignorance, a clearly unfair ruling has been issued.' The penalty is disqualification for a period of two to six years.

Criticism

The three rulings, according to critics, ignore 'social reality', although the Civil Code states that regulations must be interpreted in accordance 'with the social reality of the time in which they are applied'. Commentators point to considerable empirical evidence that current social reality in Spain is one of temporary employment and precarious working conditions. Temporary contracts represent 32% of all employment, and many studies link this situation with the high level of industrial accidents (ES0209201N). Furthermore, in the construction sector, chain subcontracting practices among companies makes it very difficult to enforce the health and safety regulations (ES0212205F).

A recent study (Evolución de la siniestralidad en España, 1999-2002) by the health and environment department at UGT (Departamento de Salud y Medio Ambiente de UGT) finds that eight years after the approval of the Occupational Risk Prevention Law (ES9708216F), which introduced the concept of prevention into the treatment of occupational risks, the expectations generated by the adaptation of Spanish regulations to EU principles have not been satisfied. The study claims that the authorities responsible for legislation - the central and regional governments - have not done enough to change a situation that has highly negative effects for workers and for society in general.

Temporary employment, the 'flexibilisation' of working conditions and outsourcing are seen as being closely related to the industrial accident rate (ES0306105F). In 1995, the average number of temporary employment contracts was 2.2 per worker per year. In 2002 the average rose to 4.3 contracts per worker per year. Furthermore, temporary contracts are increasingly short, with 80% of them lasting less than six months and almost 60% less than a month. Another indicator is that companies with fewer than 49 workers have 42% of their workforces outside the parent company, and companies with over 250 workers have more than 50% of their workforce outside the parent company. This means that many workers have no relationship with the owner of the workplace, but are subcontracted, false self-employed workers, or workers provided by temporary work agencies.

This situation of unstable employment is particularly significant in temporary work agencies. The process of increasing precariousness of contracts, temporary employment and subcontracting has, it is claimed, led to an increasing 'externalisation' of occupational risks. The result of unstable employment is that the number of accidents continues to rise, and there are no clear signs of a change in tendency. From the coming into force of the Occupational Risk Prevention Law in 1996 to the end of 2002, the annual number of industrial accidents involving time off increased by 54.4% - see table 1 below.