[Q&A] Is the Legal Representative of a Company in Charge of Work Safety?
2023. 1. 13
[Q&A] Is the Legal Representative of a Company in Charge of Work Safety?
As a corporate law firm, we are used to answering many questions from our clients about their business in China. In this series of Q&A articles, we will discuss some of the topics that our clients have shown interest in.
Question: Work Safety Law stipulates that “the principal of a producer or business operator is the first person responsible for its work safety and shall take full responsibility for work safety in such entity”. Does this mean that the legal representative is viewed as the principal of a producer or business operator, and therefore deemed legally responsible?
Answer: The revised Work Safety Law does not explicitly state the specific scope of the person responsible for work safety, or who is the principal of a producer or business operator (hereinafter referred to as “the principal of work safety”), but clearly specifies their duties, including:
1.Establishing, improving and implementing the all-staff work safety responsibility system and strengthening the standardized development of work safety;
2.Making arrangements for establishing and implementing rules and operating procedures for work safety;
3.Making arrangements for establishing and implementing plans for education and training on work safety;
4.Ensuring the effective implementation of work safety;
5.Organizing the establishment and implementation of a dual prevention mechanism of graded control over safety risks, and identification and handling of hidden dangers, supervising and inspecting the work safety, and eliminating hidden dangers of work safety accidents in a timely manner;
6.Organizing the formulation and implementation of an emergency rescue plan for work safety accidents; and
7.Reporting work safety accidents in a timely and truthful manner.
Combined with the Work Safety Law and other legal provisions that stipulate the responsibilities and functions of the principal of work safety, it may be recognized that the principal of work safety shall be the person who has the decision-making power for the daily production and business activities of a producer and business operator, and could actually lead and be fully responsible for the work safety.
In addition, the Article 6 of Opinions of the CPC Central Committee and the State Council on Promoting the Reform and Development of Work Safety states that the legal representative of the producer and business operator, as well as the actual controller, are potentially responsible for work safety. The Provisions on Safety Training for Production and Operation Entities also point out that the main principal in charge of a production and operation entity shall refer to the chairman of the board of directors and the general manager of a limited liability company or a joint stock limited company, and factory directors and managers of other production and operation entities, directors (of Mining Bureau), and managers - of coal mines (including the actual controller).
Combined with the laws, regulations and policies for the work safety of the main person responsible for the functional description and scope of positioning, it is clear that the concept of the principal of work safety does not point to a specific position in the company, but is subject to relevant laws and policy. One or several specific personnel members in the company, who are fully responsible for the company's work safety related matters must be defined as the principal of work safety.
According to the relevant provisions of the Civil Code, the legal representative is the principal of a legal person, who acts on behalf of the legal person in performing civil activities, thus, it is logical to presume that the legal representative is the person in charge of the production and operation work (naturally including matters related to work safety) on behalf of the company, and to identify the legal representative as the principal of work safety. However, in practice, we still cannot completely rule out the occurrence of cases where the legal representative is not identified as the principal of work safety according to the actual operations and production safety management of the company.
To summarize, we think that the principal of work safety is a wide concept, and the legal representative of the company meets the conditions to be the principal of work safety. Consequently, it is also likely to be recognized by the administrative organs. Let us know if you would like to discuss this further and our lawyers will be happy to help with the assessment of your company.
Note: If there is a clear definition in some local regulations then they shall apply, which is not the scope of this article.
