The New European Health and
Safety Action Programme
and
the origins of and lessons from
surrounding deregulatory pressures
Dave Feickert
TUC's rep in Brussels from 1993-2003 involved in the relevant OHS campaigns, lobbying and legislation,
along with Steve Hughes and the ETUC.
Mines safety adviser and former NUM official.
with reflections from Andrew Watterson. OEHRG Stirling University,
Scotland
The Background
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The UK has benefited from the adoption of a whole
package of EU health and safety law, based on Article
118A
Most health and safety law in the UK in the last two
decades has come from the EU
Article 118A, the health and safety legal base, was
inserted into the European Union’s Treaty of Rome by
the Single European Act (SEA)1986
EU OHS law
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The new European law followed a specific strategy
based on risk assessment and a preventive approach
The key measure was the ‘Framework Directive’ of
1989.
It prescribes that the employer is bound in Article 6.1
to “take the measures necessary for the safety and
health protection of workers, including the prevention
of occupational risks and provision of information and
training, as well as provision of the necessary
organisation and means
The new European directive introduced an approach
to all member states designed to anticipate risk
rather than protect against danger
the European Trade Union Confederation’s
health and safety department position 2006
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Central understanding of EU OHS approach is that it “spells out the
employers’ preventive obligations” – with the essential principles
summarised in the following way:
Prevention
An order of precedence of prevention measures
Employers’ responsibility
Social dialogue and participation of employees
Continuous improvement
Multidisciplinary preventive services with holistic approach to work
Inclusion of psychosocial risk factors accepting the Danish definition
of health and safety at work
Views on EU OHS law (1)
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If risk assessment transposition is done effectively,
some believe there would have been no need for the
daughter directives attached to the Framework
directive (Stephen Hughes MEP).
Some health and safety specialists consider that, as
enforcement practices vary so widely across the EU, it
is difficult to hold the risk assessment procedure up as
a model for other countries.
Ill-health is also ignored in the assessment (Pickvance
SOHP).
Worker involvement is the key to the success of
prevention, but it remains to be fully developed in all
the Member States ( Worker participation consultation
supported in UK but vetoed by CBI).
Views on EU OHS policies and directives (2)
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the EU OHS package is amongst the ‘best’ globally
though it is not uniform across EU
Countries, such as Australia (PINs and TU entry rights),
New Zealand ( TU reps can issue hazards notices) and
Sweden (roving reps) have explicit laws on particular
risks that may be better than those of the EU
In China, workers have legal rights to stop work in the
event of danger
Australia and New Zealand explicitly have worker
participation systems on OHS
The European Commission has sought further
improvement.
EU activity on OHSE from 2002 onwards
In 2002 a new Community strategy on health and safety at work for
2002-2006 was published
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This new strategy adopted a global approach to well-being at
work, taking account of the changes in the nature of work, the
emergence of new risks, especially of a psycho-social nature and
aims to improve the quality of work.
It sought to consolidate the culture of risk prevention and
proposed a combination of instruments including legislation,
social dialogue and various other measures and by building
partnerships between all the players on the health and safety
scene.
It has led to the publication of an assessment of the cost to
society of not having such a policy approach, reversing the more
usual approach of calculating the cost of compliance with health
and safety law, favoured by some governments, such as the UK.
In its background work for the strategy, the Commission noted
that injuries between 1994 - 98 had fallen by 10% and yet in
1998 the number of fatalities was still too high at 5,500, with 4.8
million accidents resulting in three or more days off work. These
figures were for the EU-15, pre-enlargement.
European Community OHS strategy
2007-12
The Communication defines a set of priority
areas for action focused on six main elements:
 strengthening implementation of Community
legislation
 encouraging the development and
implementation of national strategies
 promoting changes in behaviour
 confronting new risks
 assessing progress made
 promoting health and safety at international
level
Illustrations of key Labour de-regulation
steps and how they fit and shape the
proposed 2007-12 strategy (1)
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The convening of meetings of Member States to discuss
‘simplification of EU law’ and ‘reduce the burden on
business was driven, in Whitehall by the former
Deregulation Unit in the Cabinet Office, renamed by the
Blair government as the ‘Better Regulation Unit’. 7
Member States agree UK line but with some support
among some others
At the annual Spring European Council held in March
2007, the UK won a political commitment, embodied in
the Conclusions, to reduce the burden on business by
removing 25% of EU law. Health and safety law has
always been identified as a key area for action
UK pretends EU had OHS as a major concern at this
meeting but it does not
Illustrations of key Labour de-regulation
steps (2)
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At the Social Questions Working Group meeting in the
middle of 2007, charged with preparing the Employment
and Social Affairs Ministerial Council, the UK Minister tried
to have the 25% reduction target embodied in the new
health and safety legislative programme. This proposal
was not adopted on that occasion, and the German
chairman contacted the ETUC.
HSE policy staff papers, openly disclosed to the HSC,
identified the amendment of the Framework Directive’s
provision on collection of information as opening the door
to reducing the burden on business. In a formal sense this
is a rationalisation, but it does represent the first
significant amendment of a central piece of law in health
and safety.
Chancellor Alistair Darling launched a major review
of business health and safety laws November 2007.
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The review, announced in a speech at the CBI, will ask employers,
workers and experts for their views on how the health and safety
system can be revamped, focussing on small and low risk
businesses.
Many small employers have limited resources, find it difficult to work out
what broad health and safety duties mean for their workplace and are
unsure of when to take advice and from whom.
Better Regulation Minister Pat McFadden said, "I am fully aware of some
of the considerable challenges that small firms face in protecting their
workers from injuries and ill-health.
"Government must work smarter to make it easier for employers to follow
the rules, as this will benefit everyone and contribute to making our
society safer."
The review by the Department for Business and Enterprise will look at
how government can make it easier for these businesses to follow health
and safety laws and prevent their workers getting ill or injured.
It will examine how to improve public confidence in the OHSE system.
HSE is also publishing its 2007 simplification plan today and has already
reduced the number of forms by 50 per cent.
Three brief case studies on deregulation
and cultural, political and economic
drivers
- sometimes crude
- sometimes subtle
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Coal Mining
The Petro-chemical industry
Work and Health
UK coal mining and comparisons
. with the global industry
Debates on Regulation and Deregulation
A case study: coal mining in UK
UK mine safety law was the first substantial body of law to be
deregulated in the UK and in Europe in 1994
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The significance of this should not be underestimated, as it
became a model for those in the HSE and in government (both
Tory and Labour) for how to do it for all law
The pit deputy’s dual safety and production role (wherein safety
took precedence) was attacked, with the aim, and eventual
success in law of removing pit deputies from the pivotal
protective control of underground safety. A ‘command
supervisor’, with a primary responsibility for production was
introduced above the deputy and the deputy was, in many
cases,relegated to inspection duties
The UK Conservative Government totally opposed the EU
Working Time Directive (and would fight the Commission in the
ECJ) but used its forthcoming introduction as an excuse to
repeal the 1908 Coal Mines Regulation Act which limited miners
hours underground by subsequent amendment to 7.5 hours plus
one winding time. The collective agreement had reduced this to
7.25 hours and one winding time
Lax enforcement of OHS law or a process
of deregulation which weakens law or
both? Coal mining incidents
Steps to ‘simplification’ or ‘reducing the burden
on business’ (sic).
 In the UK coal industry there are indications
now that the deregulation process has
changed the safety culture of the deep mine
industry.
 This is evidenced in the case of Daw Mill
Colliery, where there were three separate
fatalities during 2006-07 and possibly in the
case of Welbeck Colliery, where there was a
fatality in the past year.
UK and global coal mining
The fatalities at Daw Mill Colliery put that highly productive, ‘bighitter’ mine into the same injury league table as Chinese state
owned mines.
Full reports on these fatalities have not yet been issued but early
indications suggest that the previous safety culture and
organisation has been eroded.
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The tragedy was devastating
- for the families of the men concerned
- for the workforce
- for a relatively small mining company, operating only four deep
mines, albeit technologically advanced ones, which have in recent
times enjoyed one of the best safety records in the world
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By comparison, other modern mines in developed countries have
been achieving zero fatalities and in some case zero lost time
injuries.
◊◊This is so with the East Side mine operated by Solid Energy, the
New Zealand state-owned coal corporation where all miners are
now trained in gas testing and first aid, previously functions of the
pit deputy.
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BP
Texas and
beyond?
International concerns about slipping UK OHSE standards
–where is the argument for deregulation?
Cost-cutting blamed for BP refinery explosion By Sheila McNulty Ed
Crooks March 21 2007 Financial Times
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“Cost-cutting at BP's Texas City refinery left it vulnerable to a
catastrophe before the explosion in March 2005 that killed 15 people, a
US government agency said yesterday.
The Chemical Safety and Hazard Investigation Board blamed "safety
deficiencies at all levels of the BP corporation'' for the event and called
on the board to appoint an extra member with expertise in safety.
The CSB said its two-year inquiry revealed an inadequate response to
several audits revealing safety lapses, failure thoroughly to investigate
and respond to previous accidents, the ignoring of federal regulations
and a focus on production rather than safety.
BP said it accepted responsibility for the explosion but disagreed with
some of the CSB report, particularly many of the findings and
conclusions”.
CSB evidence to USA House of Representatives Committee
May 16 2007 on BP in USA (1)
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Chair Merritt told the committee of comparisons of safety
culture similarities at Texas City and Prudhoe Bay. Both
investigations, she said, found deficiencies in how BP
managed the safety of process changes. In Prudhoe Bay,
Booz Allen Hamilton found "a normalization of deviance
where risk levels gradually crept up due to evolving
operating conditions."
At Texas City BP refinery "Abnormal startups were not
investigated and became routine, while critical equipment
was allowed to decay. By the day of the accident, the
distillation equipment had six key alarms, instruments and
controls that were malfunctioning. Trailers had been
moved into dangerous locations without appropriate safety
reviews."
CSB evidence to USA House of Representatives Committee
May 16 2007 on BP in USA (2)
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Merritt noted BP's own internal audit findings concerning
its Prudhoe Bay pipeline problems did not result in repairs
or improved maintenance. Merritt quoted the company's
audit as saying the findings faced "long delays in
implementation, administrative documentation of close-out
even though remedial actions were not actually taken, or
simple non-compliance."
Other common findings at both Texas City and Prudhoe
Bay included, the chairman said, "Flawed communication
of lessons learned, excessive decentralization of safety
functions, and high management turnover. BP focused on
personal safety statistics but allowed catastrophic process
safety risks to grow."
The Deregulation Campaign in the EU:
The UK position
Started by Thatcher in the 1970s - the deregulation campaign was first
carried across the channel by Neil Hamilton MP (the former Tory
‘Minister of Deregulation’) to a resounding lack of interest - and
continued by Blair in 1997.
UK Governments:
opposed directives and agreements put forward by the European
Commission or which have been negotiated by European employers
and unions (including the TUC).
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blocked the temporary agency workers’ directive, for example,
many of whom have the worst working conditions in the country
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maintained the demand for the radical ‘simplification’ of EU safety
law. This is now threatening to undermine the working conditions of
other EU workers.
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Contributed to preventing workers in East European member from
gaining the full benefit of EU health and safety law, as some new
Member States drag their feet over implementation of the EU
acquis.
The amazing world of Waddell and Burton copyright 2006
UK-based deregulatory
‘thinking’?
An Orwellian world of mind control to
influence civil servants, scientists,
politicians and workers to accept
deregulation because there are no major
problems of occupational disease in the
UK only those ‘abusing’ incapacity
benefit who are really fit for work
Work and Health Leaflet. The
Orwellian perspective (1)
Work and Health Leaflet. The
Orwellian perspective (2)
Work and Health Leaflet. The
Orwellian perspective (3)
Health, work and well-being - Caring for
our future: A strategy for the health and
well-being of working age people
England 2005
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No reference to occupational diseases in
the document
No reference to occupational cancer in the
document
Regulatory update Financial
Times July 24 2007
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“The prime minister has told the new Department for Business,
Enterprise and Regulatory Reform to cut regulation across
government, and inculcate a new approach to risk in public
policy”
“John Hutton, business secretary, will on Wednesday outline to
MPs a wide-ranging plan for implementing assorted ministerial
pledges, including a 25 per cent cut in the administrative burden
imposed by government departments”
“Mr Hutton is expected to promise measures to simplify
employment disputes and to lighten the regulatory burden of
health and safety legislation”
HSE: what it is or is not doing?
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Tippex, propaganda – paper tigers and
distortion
Death by a thousand cuts
Principles of sensible risk management .
HSE. Updated 21/05/07
Our approach is to seek a balance
between the unachievable aim of
absolute safety and the kind of poor
management of risk that damages
lives and the economy. Deals with
‘real harm’
The CBI argument
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CBI members are in compliance for the
most part, and the regulations should
be lifted on them ( reworking of 19th
regulation argument to put small capital
out of business – let capital rip)
On the other side, the rogue employers
and the ‘dirty end’ of industry require
more intensive policing.
ETUI REHS critique of the European Community
strategy on health and safety at work for
2007-2012
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Where do we go from here?
Productivity fixated, occupational
disease and worker ‘blind’
no reference to REACH
worker participation completely ignored
The labour/HSW inspectorate will be
turned into a business consultancy
The ‘thinking’ behind deregulation
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Successive UK Labour governments have argued ‘to reduce the
burden on business’ in EU health and safety law and in employment
law generally, by setting a target of cutting out 25% of existing law
UK coal mines an early example.
Such an approach was originally suggested by the extreme liberal Dutch
government on the simple premise that, if no targets were set, nothing
would happen
Both the Dutch and UK governments were aware that many other
Member States were opposed in practice and sometimes in principle to
deregulating health and safety law
It appears that the UK government is attempting to ‘normalise
deviance’ on OHSE just as BP did?
UK pretends big firms act on major hazards and that there are no
serious occupational health problems. This is not so as BP’s UK OHS
record shows and the HSE’s own report on MbOCA in 2007 has recently
revealed with large companies neither controlling carcinogens
effectively nor implementing COSHH.
The same picture emerges on SMEs where HSE reports that such
companies do not understand or act upon COSHH regulations
Resistance to the EU deregulatory policy
MEPs
On 15 January 2008 the European Parliament gave an overwhelming
endorsement to a report that brands the Community strategy on
health and safety at work for 2007-2012 as not doing enough to
tackle work-related diseases (TUC is pushing on this).
The report tabled by British MEP Glenis Willmott (PES) calls for a
- European directive on musculoskeletal disorders
- The EP report contends that tackling occupational cancers should
also be a Community priority (TUC is pushing on this). The MEPs
call for a timetable be set to speed up the revision of the Directive
protecting workers from carcinogens and mutagens.
- MEPs want the revised directive to include substances toxic to
reproduction and new binding exposure limits to be set for
carcinogens, mutagens and reprotoxins.
- The socialist group in the EP is disappointed that the MEPs
declined to include crystalline silica in the list of substances included
in the revision of the directive.
Resistance to the EU deregulatory policy
The Trade Unions
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The ETUC is building up its own campaign to secure the
gains made since the introduction of the Framework
directive,
The TUC priority may be to deal with the UK situation,
but if UK unions do not join this campaign more
effectively, they are in danger of losing the European
legislation on which current UK conditions are based and
the HASAWA itself could come under attack next.
The UK government remains in a minority in the EU,
albeit a growing minority. Complacency should be
dispelled when it is remembered that Neil Hamilton MP,
the Tory Deregulation Minister was initially alone.