In our work at Checkfin, we often come across questions regarding the application of the Liability Act. Exceptions to the application of the law often raise questions.
Section 5 of the Liability Act has information on when the buyer does not need to request certificates and clarifications from their contractual partner. In short, this definition goes:
The buyer does not need to request certificates and clarifications in accordance with the Liability Act if the buyer has a justified reason to trust that the contract partner fulfills all legal obligations and if the contract partner is a public entity (e.g., the state, municipality, or parish), a public limited company, or if the partner’s operations are well-established.”
This sounds good, doesn’t it? However, the legal text continues. The above exemption from the reporting obligation based on the established nature of the operation does not apply to construction activities. In construction activities, the buyer’s obligation to collect liability documents exists and remains, regardless of the established nature of the operation.
“In construction activities, the buyer’s obligation to collect liability documents remains in place, regardless of the established nature of the operation.”
What about when it’s not a construction activity? That’s a good question.
The responsibility for obtaining documents and clarifications in accordance with the Liability Act always lies with the buyer. The Occupational Safety and Health Administration’s website clarifies this aptly: “The buyer must always consider whether the operations of the contracting partner are well-established before the contract is concluded, and the buyer must present documents to show that such consideration has been done. Even if the company has been in existence for a long time, the buyer is required to obtain the documents and clarifications if any changes have occurred in the company’s operations or if there is reason to believe that the company may not be fulfilling its statutory obligations.” (The Occupational Safety and Health Administration, 21.9.2020.)
At this point, it’s good to consider what kind of document could be used to demonstrate that the consideration assessment has been made? Or how could it be verified that there have been no changes in the contract partner’s operations, if you are not collecting the liability documents? It can be concluded that this exception clause is very open to interpretation.
Checkfin’s stance on this is clear. The safest and easiest approach is always to request the liability documents, regardless of who the contract partner is. This way, any kind of ambiguity is avoided, and nothing is left open to interpretation.
“The safest and easiest approach is always to request the liability documents, regardless of who the contract partner is. This way, any kind of ambiguity is avoided, and nothing is left open to interpretation.”
We also asked guidance on this topic from the regional administrative authority last year to confirm our stance. The opinion of the senior inspector at the regional administrative authority was also clear. According to him, the established nature of the contract partner’s operations is always assessed on a case-by-case basis during occupational health and safety supervision and inspections. Therefore, the best way to ensure compliance with legal obligations is to request the required documents from the contract partner.
If you want to explore this topic further, here are some useful links:
Act on the Contractor’s Obligations and Liability when Work is Contracted Out – https://www.finlex.fi/en/legislation/2006/1233
Contractor’s obligations and liability – https://tyosuojelu.fi/en/grey-economy/contractor-s-obligations-and-liability
Application of the act on the contractor’s obligations and liability when work is contracted out – https://tyosuojelu.fi/en/grey-economy/contractor-s-obligations-and-liability/application-of-the-act
