The New European Health and Safety Action Programme and the origins of and lessons from surrounding deregulatory pressures D ave Feickert TUC's rep in.

The New European Health and Safety Action Programme

and the origins of and lessons from

surrounding deregulatory pressures

Dave FeickertTUC'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

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

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

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)

1. 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).

2. 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.

3. Ill-health is also ignored in the assessment (Pickvance SOHP).

4. 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)

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 onwardsIn 2002 a new Community strategy on health and safety at

work for 2002-2006 was published

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)

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)

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.

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

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

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 miningThe fatalities at Daw Mill Colliery put that highly productive,

‘big-hitter’ 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.

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

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.

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

“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)

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)

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).

blocked the temporary agency workers’ directive, for example, many of whom have the worst working conditions in the country

maintained the demand for the radical ‘simplification’ of EU safety law. This is now threatening to undermine the working conditions of other EU workers.

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 peopleEngland 2005

No reference to occupational diseases in the document

No reference to occupational cancer in the document

Regulatory update Financial Times July 24 2007 “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?

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

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 . 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

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

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.