Occupational Health And Safety Regulation Research Paper

1. The Emergence Of The Traditional Approach To Occupational Health And Safety Regulation

OHS regulation is generally traced back to the early nineteenth-century Factory Acts in Great Britain. The earliest enactment was the Health and Morals of Apprentices Act 1802, essentially an extension of Elizabethan Poor Law. It regulated the working hours and conditions of apprentice pauper children in the water-based rural cotton factories of Northern England. The enforcement provisions relied on informers and visitors appointed by the magistracy from the clergy and justices of the peace, but were generally regarded as completely ineffective (Thomas 1948, pp. 11–12), largely because of the limited powers given to visitors, the lack of interest of magistrates in the factory legislation, and the fact that magistrates were too closely linked to mill owners to enforce the law (Gunningham 1984, p. 38).

The ineffectiveness of this early factory legislation led to the enactment of the Factory Regulation Act of 1833, which regulated the employment of children in a wide range of textile trades. The major historical significance of the 1833 Act was that it was the first to be enforced by an independent salaried factory inspectorate vested with broad powers, including the right of entry to factories and mills; the right to make rules, regulations, and orders; and the power to initiate and hear court proceedings to enforce the Act. Over time, however, these broad powers were reduced, at the initiative of inspectors themselves, until they conformed to a more ‘legalist’ regulatory form (where inspectors’ powers were confined to inspecting and bringing enforcement action), which overcame allegations of class bias by presenting decision-making as a passive, neutral, nondiscretionary and technical process of implementation of the rules set out in the Act (Field 1990).

While the enactment of the 1833 Act was partly a response to working-class pressure, and agitation by middle and upper-class philanthropists for shorter working hours for children and young people, it was undoubtedly also a result of calls for effective uniform regulation by larger urban manufacturers who had voluntarily introduced shorter working hours and who feared unscrupulous competition from smaller and rural-based manufacturers (Carson 1974, Marvel 1977). For various reasons (see Bartrip and Fenn 1983), the early factory inspectors found the 1833 Act difficult to enforce. Prosecutions were time-consuming and costly; over time the ratio of inspectors to factory premises fell significantly; inspectors were ambivalent about the degree to which regulatory offences committed by businesses creating wealth and employment were morally reprehensible, and were deterred by hostile attitudes of magistrates towards the provisions of the Act. The inspectors also found that their assumption that offences against the Act were only being committed by a few employers had been illfounded, and that contraventions were widespread, and intrinsic to the prevailing production system (Carson 1979). As a consequence, they developed an approach to enforcement which relied principally on advice and persuasion, and resorted to formal prosecution only in the worst cases and where there was evidence of wilful employer disobedience or obstinacy. Although officially criminal offences, contraventions of the Factory Act were accepted as customary and those responsible were rarely subjected to criminal prosecution. This ‘ambiguity’ of factory crime (Carson 1980), although historically contingent, has proved to be deeply entrenched ideologically in most of the world’s OHS regulatory systems.

The Factories Amendment Act 1844 extended the coverage of the legislation to the working hours of women, and included the first machinery safety provisions. In compliance with inspectors’ wishes, it also deleted all references to wilfulness in many of the employers’ offences (Carson 1979, pp. 53–4). The 1833 and 1844 Acts marked the beginning of the traditional approach to the regulation of health and safety at work, in which the government set down highly detailed and technical requirements in strict liability ‘specification’ standards, and provided for the enforcement of these standards by a state inspectorate which relied principally upon informal enforcement responses. This regulatory model was reproduced in other industries in Britain, transported to the British colonies, and strongly influenced the OHS regulatory provisions of the rest of Europe (see Baldwin and Daintith 1992). In the USA, similar models of OHS regulation were established at state level from the late 1860s until the end of the nineteenth century. The Federal government relied upon state regulation until 1970, when the Occupational Safety and Health Act was enacted (Noble 1975, Ashford 1976).

2. Criticisms Of The Traditional Command And Control Approach

The weaknesses of this traditional approach are well known (see Robens 1972). It frequently resulted in a mass of detailed and technical rules, often difficult to understand, and difficult to keep up to date. Standards were developed ad hoc to resolve problems as they arose, and concentrated mainly on factory-based physical hazards, resulting in uneven coverage across workplaces. Specification standards did not encourage or even enable employers to be innovative and to look for cheaper or more cost-efficient solutions. They also ignored the now well-accepted view that many hazards do not arise from the static features of the workplace, but from the way work is organized.

Critics have also pointed to the inadequacy of state approaches to enforcement, and to the ideological role of traditional factory legislation in encouraging dependency on state measures and in separating OHS from the conflictual terrain of industrial relations. This results in a lack of involvement of workers and their representatives in developing standards and measures for improving health and safety at the workplace. One exception to this trend has been some of the Scandinavian countries, most notably Sweden, which, from early in the twentieth century, has provided for trade union involvement in OHS (Navarro 1983).

Since 1970, there have been major developments in the regulation of OHS. The general trend has been away from traditional ‘command and control’ models, towards a more ‘self-regulatory’ system in which duty holders are given more flexibility and choice of methods to achieve OHS standards, there is greater scope for worker involvement in OHS, and approaches to state inspection focus as much on systems of work as on workplace hardware.

3. The Modern Approach To Occupational Health And Safety Regulation

3.1 Standard Setting

Since the mid-1970s, the trend in Europe and North America has been to replace or supplement specification standards with a combination of general duties, performance standards, process requirements, and documentation requirements. The trend has been most marked in Europe, Canada, and Australia.

The ‘general duty’ provisions require the duty holder (usually the employer, but in some countries including the self-employed, occupiers of workplaces, and manufacturers, suppliers, and designers of plant and substances) to exercise reasonable care in the provision and maintenance of systems of work so as to ensure that workers are not exposed to health and safety risks. For example, the US Occupational Safety and Health Act 1970 (OSHA) Sect. 5 specifies that in all cases not covered by specific standards promulgated under the Act, the employer has a general duty to ‘furnish to each of his employees, employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.’

The general duty provisions tend to be supplemented by a range of standards set out in subordinate legislation. Instead of telling duty holders exactly how they are to achieve compliance, performance standards define the duty holder’s duty in terms of goals they must achieve, or problems they must solve, and leave it to the initiative of the duty holder to work out the best and most efficient method for achieving the specified standard.

Process requirements prescribe a process, or series of steps, that must be followed by a duty holder in managing specific hazards, or OHS generally. They are often used when the regulator has difficulty specifying a goal or outcome, but has confidence that the risk of illness or injury will be significantly reduced if the specified process is followed. For example, as a result of the EC ‘Framework Directive’ of 1989, ‘On the Introduction of Measures to Encourage Improvements in the Safety and Health of Workers at Work,’ all EC member states are required to introduce risk assessment processes into their OHS statutes. Process-based standards have spawned greater reliance on documentation requirements. Increasingly OHS statutes are requiring duty holders to document measures they have taken to comply with process-based standards, performance standards, and general duty standards. An example is the requirement for health and safety plans and files in the 1992 EC Directive to Implement Minimum Health and Safety Requirements at Temporary or Mobile Construction Sites.

A current debate in OHS standard setting is whether OHS regulators can take measures to require employers and other duty holders to go beyond compliance with minimum standards, and to implement comprehensive OHS management systems which involve continuous improvement and a systemsapproach to OHS management (see Gunningham and Johnstone 1999, and Frick et al. 2000). The debate is most advanced in provisions for the management of major hazardous facilities, which have largely been enacted in reaction to major disasters. Many jurisdictions now require facility operators to submit a ‘safety case’ for each of its installations demonstrating that they have evaluated risks and set up a system of management and control to deal with the identified risks (Kaasen 1991, and Cullen 1990, and see the International Labour Organization’s 1993 Convention on the Prevention of Major Industrial Accidents, and the EU Directives 82 501 EEC and 96 82 EEC on the control of major hazard facilities).

3.2 Provisions Requiring Duty Holders To Seek Expert Assistance In OHS

Occupational health services can play an important role in supporting employers and improving their understanding of OHS matters. The EC Framework Directive (1989) requires employers to enlist ‘competent services or persons’ to assist in the implementation of the OHS duties in the Directive and ‘to organize protective and preventive measures.’ For example, consistent with provisions in other continental European nations, the Swedish Work Environment Act requires employers to provide an occupational health service. Most large companies have their own occupational health services, while joint occupational health service centers provide services to small-and medium-sized organizations. This continental tradition is not followed elsewhere, although UK regulations and some Australian and Canadian statutes require the appointment of ‘competent persons’ or workplace health and safety officers to assist employers to implement their OHS obligations.

3.3 Worker Participation

The nineteenth-century model of OHS regulation typically did not require worker involvement in OHS. There are, however, good reasons for involving workers in OHS. Workers have a direct interest in OHS because they run the major risks of injury if the law fails to protect them. Moreover, workers often know more about the hazards associated with their workplace than anyone else, because they regularly work with them. Where process standards require hazards at work to be identified and evaluated, workers’ experience and knowledge is crucially important in successfully completing both of these tasks.

European, Canadian, and Australian OHS statutes have made some statutory provision for OHS committees, and for worker health and safety representatives. Representatives generally have the right to be consulted over OHS issues and to be provided with OHS information. Some European, Australian, and Canadian statutes go further, and give elected health and safety representatives the right to require compliance with OHS regulatory provisions and to direct that dangerous work ceases. The EC Framework Directive requires employers to involve workers and their representatives in the implementation of the various duties set out in the directive. The US OSH Act to date has made no provision for worker participation in OHS, although the Occupational Safety and Health Administration’s (OSHA’s) recent proposed safety and health program rule requires worker involvement in the development of a safety and health program.

In contrast, in Scandinavia the worker participation elements of the OHS regulatory system derive from the general industrial relations system, and do not depend on the OHS statutory framework. For example, the Swedish Work Environment Act 1977 enshrines the concept that worker control is a critical aspect of a healthy working environment, and provides health and safety representatives with extensive powers, including the right to halt dangerous processes, and to participate in the planning of new work premises and processes. Industrial and local agreements regulate much of the administration of OHS. In Sweden, Spain, Italy, and Norway, the construction industry makes provision for coverage of small workplaces by enabling unions to nominate regional safety representatives for small workplaces (normally under 50 workers) to support the OHS initiatives by employers.

3.4 Inspection Approaches Aimed At Promoting OHS Management Systems

In some countries, OHS inspectorates have developed enforcement strategies that focus as much on OHS management as on workplace hardware. For example, in the USA, some OSHA inspection programs abbreviate inspections if employers can show that they have effective safety and health programs. Under the ‘focused inspection’ program, piloted in the construction industry, if an OSHA inspector conducts an inspection and finds an effective safety program operating on-site, then the remainder of the inspection will be limited to the top four hazards that kill workers in the construction industry. If these hazards are well controlled, the inspector concludes the inspection. If not, the inspector conducts a complete site inspection. Such approaches to inspection are also increasingly being used in Europe and Scandinavia.

3.5 State Enforcement Of OHS Obligations

The modern OHS inspectorates can call upon a range of enforcement powers and, in most countries, have a broad discretion to determine enforcement action, including negotiating compliance using informal processes such as education, advice, and persuasion. Since the 1970s, inspectorates in most countries have been given administrative sanctions, such as improvement and prohibition notices and on-the-spot fines.

In the USA, enforcement is less discretionary, and principally involves administrative sanctions (citations imposing financial penalties and requiring the abatement of hazards) (see Kaletsky 1997, Shapiro and Rabinowitz 1997), with prosecution for a limited number of intention-based offences. In other countries, the OHS inspectorates have been criticized for not adopting a sufficiently strong approach to enforcement, and for relying too heavily on advisory and persuasive approaches. Some commentators argue for a more vigorous approach to enforcement utilizing the ‘self-regulatory’ principles of the enforcement pyramid promoted by many regulatory theorists (see Rees 1988, Ayres and Braithwaite 1992, Chap. 2).

The challenge is to develop enforcement strategies that deter the worst offenders, while at the same time encourage and help most employers to comply voluntarily. Such an approach to enforcement would require the availability of larger financial penalties, and an array of new corporate sanctions (Gunningham and Johnstone 1999, Chap. 4).

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