The OHS Responsibility of the Employer's Representative

Who is an employer's representative?

The owner of an automotive supplier factory lives in Istanbul; the plant in Bursa has been run by a plant manager for ten years. He reads the specialist's findings and recommendations, he controls the budget, he sets the shift pattern. In an investigation after an accident, one of the first questions asked is: who made decisions on behalf of the employer at this plant? The answer to who is an employer's representative is given by looking at actual authority rather than job title.

Art. 2 of Labour Law No. 4857 defines as employer's representatives those who act on behalf of the employer and take part in managing the work, the workplace and the business. The same article states that the employer is directly responsible for the actions and obligations of the employer's representative towards workers in that capacity, and that every kind of responsibility provided for the employer in the Law also applies to employer's representatives. Being an employer's representative does not remove the person's own rights and obligations as an employee either.

Occupational Health and Safety Law No. 6331 carries this definition over to OHS: the Law applies to employers and employer's representatives of workplaces (Art. 2/1), and employer's representatives who act on behalf of the employer and take part in managing the work and the workplace are deemed to be the employer for the purposes of applying the Law (Art. 3/2).

In practice, the general manager, the plant or operations manager, the site manager and production or facility managers with decision-making authority over the management of their unit can be employer's representatives. What is decisive is whether the person actually makes decisions in managing the work and the workplace. Treating an employee whose title is "manager" but who cannot make any spending or work stoppage decision as an employer's representative is both unfair to them and a risk for the company.

The OHS responsibility of the employer's representative: three dimensions

The OHS responsibility of the employer's representative arises in three different areas, and each works on a different logic.

Two principles of criminal law are important for understanding the position of the employer's representative. Under Art. 20 of the Turkish Criminal Code, criminal liability is personal and criminal sanctions cannot be applied to legal entities. If the company is a joint-stock or limited company, those tried after a fatal or injury accident are not the company but natural persons. Under Art. 22/5 of the Code, in offences committed by more than one person through negligence, each person is responsible for their own fault. That is why, in an investigation, what the employer, the employer's representative, the site manager, the OHS specialist and the foreman knew and did is examined separately. We explained how this process works in our article on the process after a fatal workplace accident.

Plant manager and site manager: where does responsibility arise on site?

A plant manager's responsibility usually arises not from a written job description but from day-to-day decisions. OHS legislation gives the employer's representative a direct role in several places:

• OHS committee: In workplaces with a committee, the chair of the committee is the employer or the employer's representative. For how the committee works, see our article on how to set up an OHS committee.
• Risk assessment team: The employer or the employer's representative is on the team.
• Reports from the specialist and physician: Findings and recommendations reach the person with decision-making authority in the workplace; this person is usually the employer's representative. For the record-keeping arrangement, see our article on the approved logbook and findings-recommendations.
• Small workplaces: In less hazardous workplaces with fewer than 50 workers, the employer or employer's representative can, after completing the training announced by the Ministry, carry out OHS services themselves, except for pre-employment and periodic medical examinations.

In construction the picture is even clearer. Under Art. 8 of the Regulation on Site Managers, the site manager is responsible, on behalf of the building contractor, for taking, applying and having applied all measures provided for in the legislation; has the authority to have all measures necessary for occupational health and safety taken in the work they are assigned to; and must immediately report workplace accidents as provided for in Law No. 6331. The same article also strikes an important balance: if the building contractor does not allow this authority to be exercised, the site manager cannot be held responsible. In other words, responsibility is measured by the authority given and actually available.

How is OHS authority delegated in writing?

The legislation does not prescribe a special form for delegating OHS authority. However, after an accident the only thing that will show who had what authority is a document; verbal delegation is the hardest to prove. A letter appointing an employer's representative should contain at least the following:

1. Scope: Which workplace, building, department or site; if there is more than one facility, each one separately.
2. Duty: Taking, applying and monitoring OHS measures; assessing the findings of the specialist and physician; investigating accidents and near misses.
3. Authority: Authority to stop dangerous work, give instructions to workers, initiate disciplinary proceedings and decide on OHS spending; the upper limit of spending authority, and whom to apply to and within what time for needs exceeding that limit.
4. Resources: The annual OHS budget, or how budget requests will be decided.
5. Reporting: How often and on which subjects reports will be made to the employer.
6. Start and acceptance: The start date of the duty, and the signatures of the employer and the employer's representative.

After the delegation, the employer's representative should be given an orientation explaining the obligations in the legislation and the workplace's OHS documents (risk assessment, emergency plan, training programme, periodic inspection calendar). If a representative is appointed on paper but decision-making and spending authority stay with the employer, the delegation does not achieve its purpose.

Does delegation remove responsibility?

No, it distributes it. Three rules show this:

• Law No. 4857 Art. 2: The employer is directly responsible for the actions of the employer's representative.
• Law No. 6331 Art. 4/2: Obtaining services from specialists and organisations outside the workplace does not remove the employer's responsibilities. This principle also applies to working with an OSGB (joint health and safety unit); details are in our article on OSGBs and employer responsibility.
• Turkish Criminal Code Art. 22/5: Each offender's penalty is determined separately according to their fault.

That is why, even after appointing an employer's representative, the employer continues to have the monitoring and inspection obligation in Art. 4/1 of Law No. 6331: they read the reports they receive, consider the resources requested and ask about recommendations that have remained open for a long time. For the employer's general obligations, see our article on the employer's OHS obligations.

Annual checklist for the employer's representative

• Is my appointment letter up to date, and are my scope and authority in writing?
• Have the renewal dates of the risk assessment and emergency plan passed?
• Which of the specialist's and physician's findings and recommendations remain open, and why have they not been closed?
• Has the annual training programme been approved, and what is the completion rate?
• Is equipment that received a "not suitable" periodic inspection report still in use?
• Are OHS committee meetings being held regularly and are its decisions being implemented?
• Have the root causes of this year's accidents been eliminated?

Most of these questions are also asked in an inspection; to prepare, see our article on preparing for a labour inspection. You can see the administrative fines for breaches with our OHS administrative fines tool.

Under our OHS specialist service, we send our findings and recommendations in writing to the employer's representative with decision-making authority in your workplace and report regularly on their closure. For building sites, see also our construction page.

Frequently Asked Questions

Is every manager an employer's representative?

No. What is decisive is not the title, but whether the person actually makes decisions on behalf of the employer in managing the work and the workplace. A manager without decision-making and spending authority may not be considered an employer's representative, whatever their title.

Does the employer's responsibility end when an employer's representative is appointed?

It does not. Under Art. 2 of Law No. 4857, the employer is directly responsible for the actions of the employer's representative. The employer continues to have the monitoring and inspection obligation after appointing the representative.

Does the employer's representative also have to receive OHS training?

The employer's representative is usually also an employee working under an employment contract and, in that respect, falls within the scope of basic OHS training. In less hazardous workplaces with fewer than 50 workers, if they are to carry out the service themselves, they must complete the training announced by the Ministry.

Can responsibility be imposed without authority being given?

Responsibility is measured by the authority that can actually be exercised. The Regulation on Site Managers states this explicitly: if the contractor does not allow the site manager to exercise the authority to have OHS measures taken, the site manager cannot be held responsible. That is why it is important to list the powers clearly in the appointment letter.