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Occupational Health and Safety, Regulation of
Occupational Health and Safety, Regulation of Richard Johnstone, Griffith University, Nathan, QLD, Australia Ó 2015 Elsevier Ltd. All rights reserved. This article is a replacement of the previous edition article by R. Johnstone, W. G. Carson, volume 16, pp. 10835–10839, Ó 2001, Elsevier Ltd.
Abstract This article traces the legal regulation of the health and safety of workers and others at work, from the early nineteenth century to the widespread reforms in occupational health and safety (OHS) regulation since the 1970s. The emphasis is on Europe, North America, and Australia. The article examines four themes of particular importance in the development of OHS regulatory regimes, wherever found. These are the different styles of OHS standard setting, the variable models of enforcement by state-sponsored inspectorates, and the legal institutions that promote worker participation in OHS. The article concludes with a discussion on the OHS regulation in developing countries.
This article outlines developments in the legal regulation of the health and safety of workers and others at work. It does not purport to offer a comprehensive survey of international occupational health and safety (OHS) practice and theoretical perspectives. Instead, it traces historically the main developments in the field of OHS regulation, with an emphasis on Europe, North America, and Australia. Within this framework, and with a special focus on the movement from command and control to self-regulatory models (or, more accurately, models of enforced self-regulation), the article examines four themes of particular importance in the development of OHS regulatory regimes, wherever found. These are the distinguishable features of OHS standard setting, requirements that duty holders seek expert assistance to improve compliance with OHS standards, the variable models of enforcement, and the relationship between OHS and industrial relations. The article concludes with a discussion on the difficulties of regulating OHS in developing countries.
The Emergence of the Traditional Approach to OHS Regulation OHS regulation is generally traced back to the early nineteenthcentury Factory Acts in the United Kingdom. The earliest enactment was the Health and Morals of Apprentices Act of 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, magistrates’ lack of interest 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. While the enactment of this law was partly a response to working-class pressure, and partly a response to agitation by
International Encyclopedia of the Social & Behavioral Sciences, 2nd edition, Volume 17
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). The 1833 Act 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 of inspectors were reduced to inspecting and taking enforcement action – a more ‘legalist’ regulatory form. This development was initiated by the inspectors themselves, to overcome 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). After initially making frequent use of prosecution to enforce the Act, the inspectors soon relied mainly on advice and persuasion to induce compliance, with prosecution a ‘last resort.’ Bartrip and Fenn (1983) suggest that, in doing so, inspectors were taking a cost-effective approach to enforcement. Prosecutions were time-consuming and costly; over time the ratio of inspectors to factory premises worsened significantly so that each inspector had an increasing number of factories to inspect; inspectors were ambivalent about the degree to which regulatory offenses committed by businesses creating wealth and employment were morally reprehensible; and inspectors were deterred by hostile attitudes of magistrates toward the provisions of the Act. Taking a broader political economy approach, Carson (1979, 1980) has posed an alternative explanation of the origins of this approach to enforcement. He argues that by 1833 a number of large, urban manufacturers, for various reasons, supported the provisions of the 1833 Act, including strong enforcement by the inspectorate. The inspectors, however, found that their assumption that offenses against the Act were being committed by only a few employers was illfounded, and that contraventions were widespread, and intrinsic to the prevailing production system (Carson, 1979). The heavy use of prosecution would have entailed “collective
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criminalization” of employers “of considerable status, social respectability and . growing political influence” (Carson, 1979; p. 48). As a consequence, the early inspectors developed an approach to enforcement that relied principally on advice and persuasion, and resorted to formal prosecution only in the worst cases and where there was evidence of willful employer disobedience or obstinacy. Although officially criminal offenses, contraventions of the Factory Act were accepted as customary and those responsible were rarely subjected to criminal prosecution (the ‘conventionalization’ of factory crime; Carson, 1979). 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 of 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 willfulness in many of the employers’ offenses (Carson, 1979; pp. 53–54). 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 that relied principally on informal enforcement responses. This regulatory model was reproduced in other industries in Britain and was transported to the British colonies, including Australia, Canada, India, and New Zealand. While these developments in the United Kingdom strongly influenced the OHS regulatory provisions of the rest of Europe (see Baldwin and Daintith, 1992), the regulatory approach in each European state was also shaped by national political considerations and the regulatory practices in the more powerful industrializing continental European countries, particularly Germany and France (Walters et al., 2011; p. 23). The German ‘dual system’ developed in the late nineteenth century. It comprised legislative standards enforced by a state inspectorate and complementary regulation by statutory mutual insurance companies (Schaapman, 2002). The legislative standards were not to be found in a specific OHS statute or code, but rather in paragraph 120(a) of the general Industrial Code (Reichsgewerbeordnung) for industry and paragraph 62 of the Business Code for commerce (Walters et al., 2011; p. 24). The first German Labor Inspectorate (established in 1853) was an optional service, and only in 1878 was an obligatory government inspectorate established to monitor and enforce the provisions of the Codes. In tandem with this state regulation was a second track of regulation and enforcement, initially enacted by the Industrial Accident Insurance Act of 1884, which created accident insurance funds (Unfallversicherungsträger) of which industrial employers’ liability insurance funds (the Berufsgenossenschaften) were and are the most important. These bodies were responsible not only for compensation functions, but also for the prevention of illness and injury at work by making regulations to prevent injury and disease and enforcing those regulations through technical inspection services (Schaapman, 2002). Subsequent development of the OHS regulatory provisions in Europe (and in the British colonies) in the first half of the twentieth century was piecemeal, in that detailed and technical
standards (‘prescriptive’ or ‘specification’ standards) were introduced from time to time to address particular hazards, processes, or premises. One significant development during this period happened in Sweden, where in 1938 the employers and trade unions negotiated the Saltsjobaden Agreement to resolve a long period of industrial conflict. This agreement was a foundation stone in the development of Swedish corporatism, and in the development of participatory approaches to OHS at national, sectoral, and workplace levels (Walters et al., 2011; pp. 26, 122–123). Another important development was the introduction of occupational health services in some European countries, beginning with Norway in the late nineteenth century, and legislation to require firms to make use of occupational health services in addressing OHS issues. For example, France in 1946 passed legislation introducing occupational health services. In the United States, similar models of OHS regulation were established at the state level from the late 1860s until the end of the nineteenth century. The state level statutes contained detailed, technical standards that focused on certain kinds of premises (such as factories), processes, or activities. The federal government relied on state regulation until 1970, when the Occupational Safety and Health Act (OSH Act) was enacted (Ashford, 1976; Noble, 1986).
Criticisms of the Traditional Command and Control Approach The weaknesses of this traditional approach are well known (see Robens, 1972) and are widely regarded as having international relevance, because most OHS regulatory systems relied on detailed, technical prescriptive or specification standards enforced by state inspectorates. This traditional approach 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 wellaccepted 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 separation impedes the involvement of workers and their representatives in developing standards and measures for improving health and safety at the workplace. As noted previously, 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 toward a more ‘selfregulatory’ system in which duty holders are given more
Occupational Health and Safety, Regulation of flexibility and choice of methods to achieve OHS standards. Under this approach there is greater opportunity for worker involvement in OHS, and approaches to state inspection focus as much on systems of work as on workplace hardware. In many countries, inspectors have been given a wider range of enforcement powers, including administrative sanctions intended to remedy hazards rather than punish offending duty holders.
The Modern Approach to OHS Regulation Standard Setting Since the mid-1970s, the trend in Europe, North America, and Australasia, and many countries in Asia, Africa, and South 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, where the general duties increasingly have become process standards, and the subordinate legislation underpinning the general duties – regulations and guidance material – has increasingly adopted process, performance, and documentation standards. The ‘general duty’ provisions require the duty holder (usually the employer, but in some countries including the selfemployed, occupiers of workplaces, and manufacturers, suppliers, and designers of plant, substances and structures) 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 U.S. OSH Act of 1970 section 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.” As this example shows, the post-1970s trend has been to base the general duties on the ‘employment paradigm’ – that is, the relationship between employers and employees. The dominance of this paradigm has been challenged since the 1980s by changes in work arrangements and, consequently, work relationships around the world, with employers increasingly outsourcing work to contractors and subcontractors, contracting with agencies in order to lease labor, or establishing franchise arrangements (see Walters et al., 2011; pp. 40–42). Research has documented the negative effect of these various work arrangements on the health, safety, and well-being of workers engaged in those arrangements, as measured by injury rates, disease, hazardous substance exposures, mental health, and work health and safety knowledge and compliance (see, for example, Quinlan et al., 2001a; b). This has caused some countries to move away from placing duties on ‘employers’ in relation to ‘employees.’ For example, in 2009, the Australian Commonwealth, state, and territory governments endorsed a Model Work Health and Safety Bill in which the primary duty holder is not the employer, but rather “a person conducting a business or undertaking,” and this duty is owed to all types of workers ‘engaged,’ ‘caused to be engaged,’ ‘influenced,’ or ‘directed’ by the person conducting a business or undertaking.
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Further, a ‘worker’ is defined very broadly to include any person who carries out “work in any capacity for a person conducting a business or undertaking,” and includes, for example, work as a contractor or subcontractor, work under a labor leasing agreement, or work as a volunteer. The general duty provisions tend to be supplemented by a range of standards set out in subordinate legislation, which, increasingly in many countries, has moved away from specification standards to general duty approaches, and performance, process, and documentation standards. 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 (sometimes known as ‘management standards’) 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. Typically, these standards require employers “to take an active, comprehensive, programmatic and enduring responsibility for OHS quality, through a systematic managerial process to detect, abate and prevent workplace hazards” (Frick et al., 2000; p. 1). 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. Consequently, the general duty provisions in most EC countries are couched as risk management standards (see Walters et al., 2011; pp. 32–40). 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 that involve continuous improvement and a systems-approach to OHS management (see Frick et al., 2000; Gunningham and Johnstone, 1999). The debate is most advanced in provisions for the management of major hazardous facilities, which have largely been enacted in reaction to major disasters, and in the mining industry. 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 (Cullen, 1990; Gunningham, 2007; Kaasen, 1991; see the International Labour Organization’s 1993 Convention on the Prevention of Major Industrial Accidents, and EU Directives 82/501/EEC and 96/82/EEC on the control of major hazard facilities).
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The duties discussed thus far are duties imposed on the enterprise – usually a corporate entity, but occasionally a sole proprietor, partnership, voluntary association, or similar arrangement. A corporation is a fictional legal entity, and can operate only through its human directors, managers, and workers. Most contemporary OHS statutes impose duties of care on employees (and occasionally on other kinds of workers, who may not technically be ‘employees’) to ensure their own health and safety and the health and safety of others. Senior management leadership in OHS is critical to positive health and safety outcomes. Accordingly, some countries have also imposed duties on high-level corporate officers (who may also be employees and thus subject to the employee’s duty as well). For example, section 37 of the Health and Safety at Work etc Act of 1974 (UK) provides that where a body corporate’s offense under the Act is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary, or other officer of the body corporate, that officer is also guilty of the offense. This form of accessorial liability can also be found in Hong Kong, New Zealand, and the Australian state of Western Australia. Other statutes, such as those in Singapore or Malaysia, the Canadian province of British Columbia, and the Australian states of Victoria and South Australia, impute liability to an officer for a corporate OHS offense, and might give the officer a defense of due diligence, or only impose liability if the officer fails to exercise reasonable care. Some countries – for example, Germany, the Canadian province of Ontario, and the Australian jurisdictions adopting the Model Work Health and Safety Bill – are now imposing ‘positive’ duties on corporate officers to take reasonable care or to exercise due diligence. Because these latter duties are positive duties to ensure that the corporation complies with its OHS duties, inspectorates can take measures such as administrative sanctions if the officer fails to exercise due diligence or take reasonable care to ensure corporate compliance. In some countries, duties are imposed on individuals within the corporation rather than on the corporation itself. For example, in France duties are imposed on the Head of the Establishment (a director or a senior manager) and in Sweden, even though the duties are placed on the employer, the responsibility is borne primarily by the most senior manager. (For further discussion of these approaches, see Bergman et al., (2007)). In other countries – for example, the United States and the Netherlands – no provision is made for officer liability.
Provisions Requiring Duty Holders to Seek Expert Assistance in OHS The modern OHS standards, with their reliance on performance and process (OHS management) standards, are demanding and often complex. While there is plenty of evidence to show that the promotion of systematic OHS management in OHS regulation is a positive development, improving management awareness of and involvement in OHS management (for a summary, see Quinlan et al., 2010; p. 358), it is also clear that duty holders often find it difficult to introduce effective measures to identify, assess, and eliminate or minimize OHS risks (see Walters et al., 2011; pp. 8–9). This is especially the case with small businesses (Hasle et al., 2009).
Occupational health services can play an important role in supporting employers and improving their understanding of OHS matters. In the 1970s, Denmark, Sweden, and Norway, and in 1996 the Netherlands, legislated to require firms to engage occupational health services. Germany in 1974 required all firms to appoint occupational physicians and occupational safety specialists. 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’ (and until 2012 Queensland required the appointment of workplace health and safety officers in large firms) to assist employers in implementing their OHS obligations.
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. From an ethical perspective, 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. Further, research from many countries demonstrates the positive benefits of worker participation in work health and safety, including a relationship between workplace structures enabling worker representation (union presence, joint safety committees, or worker/union safety representatives) and both objective indicators of OHS performance (such as reduced injury rates or hazard exposures) and better OHS management arrangements (see Walters and Nichols, 2007; Chapter 2). 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 inspect workplaces, 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 U.S. 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.
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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 of 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 (see further Frick, 2009).
State Enforcement of OHS Obligations The modern OHS inspectorates can call on a range of enforcement powers, usually culminating in prosecution. In most countries, inspectorates 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 (usually imposing small fixed fines). In some countries inspectorates have the power to impose significant variable administrative penalties. For example, German Insurance Association inspectors can impose fines determined by reference to the amount of money that the firm has saved through noncompliance (Fooks et al., 2007; p. 43). In British Columbia, the basic penalty is assessed using multipliers relating to the size of the employer’s assessable payroll, and can be adjusted up to 30 percent by reference to a range of aggravating and mitigating factors, and up to 24-fold if it is a repeat of a contravention committed within the previous three years; it can be even higher if willful or reckless contraventions result in death (see Fooks et al., 2007; pp. 43–44). In Australia since 2003 some OHS regulators have had the power to accept ‘enforceable undertakings’ in lieu of launching a prosecution for a contravention of the OHS statute. Enforceable undertakings are promises enforceable in court, and are usually offered by an individual or firm who has allegedly breached the law, and accepted by a regulator. If contravened, the undertaking is enforceable in court, often with additional penalties for the contravention of the undertaking (see Johnstone and King, 2008). In the United States, enforcement is less discretionary, and principally involves administrative sanctions (citations imposing financial penalties and requiring the abatement of hazards) (see Kalestsky, 1997; Shapiro and Rabinowitz, 1997), with prosecution for a limited number of intention-based offenses. 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 using the self-regulatory principles of the enforcement pyramid (a hierarchy of escalating sanctions) promoted by many regulatory theorists (see
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Ayres and Braithwaite, 1992; Chapter 2; Rees, 1988; see also Wright et al., 2004; p. vi). The challenge is to develop enforcement strategies that deter the worst offenders, while at the same time encourage and help most employers 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; Chapter 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 United States, 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 (see Walters et al., 2011). In Sweden, the Swedish Work Environment Authority inspectors routinely inspect ‘Systematic Work Environment Management’ (SWEM) when they visit workplaces – both by asking management about SWEM and by physical examination of OHS risks at the workplace (see Walters et al., 2011; Chapters 6 and 7). Recent research suggests, however, that despite the regulatory shift in many countries to OHS management standards, and the increased focus of inspectors on inspecting systematic OHS management, “in most cases these changes have not resulted in clearly defined inspection strategies to achieve improved” OHS management, nor “have they given rise to sustained changes in regulatory inspection practice” (Walters et al., 2011; p. 308).
OHS Regulation in Developing Countries The discussion so far has addressed the development of OHS regulation in developed countries. OHS and the regulation of OHS in African, South and Central American, and Asian and Pacific island countries face many obstacles not found in developed countries. In many developing countries these challenges include the rapid expansion of the informal economy, where economic activity is not recognized or protected by state authorities; the growth of new industries, some of which are difficult to regulate; and the outsourcing of production by the use of transnational supply chains enabling firms based in developed countries to exploit labor in developing countries from a distance (see Johnstone, 2012). At a broad level, OHS in developing countries is often competing with other priorities, for example, poverty alleviation, HIV/ AIDS, and water and sanitation issues (Gutierrez, 2000). OHS regulatory measures can be undermined by inadequate levels
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of education and deeply entrenched social and gender inequality, persistent poverty, threats to peace and security, and deregulation and reduced state intervention in the economy (World Health Organization, 2005; p. 20). Further, the contemporary approach to OHS regulation in developed countries demands significant resources from firms, unions, and regulators, resources that generally are not available to regulators, unions, and local small and medium-sized businesses in developing countries. Many of these issues are a result of intensified globalization, and in particular the ability of capital to shift production to developing countries by direct investment in plant in developing countries, through supply chains or through purchasing contracts. The protection of workers’ health is consequently a global issue, and needs global solutions built on cooperation between developed and developing countries (Johnstone, 2012). This requires consideration of matters such as the political, social, and economic dynamics leading to poor OHS in developing countries; how informal sectors might be effectively ‘formalized’ and properly regulated; how legally enforceable supply chain regulation in developed countries might be extended globally and greater cross jurisdictional cooperation be encouraged; and how the major international institutions, and international collaboration between developing and developed countries, can address the underlying factors leading to poor OHS in developing countries, and improve resources for OHS, and OHS regulation, in those countries (Johnstone, 2012).
See also: Employment and Labor Regulation; Job Design and Evaluation: Organizational Aspects; Occupational Health; Workplace Safety and Health.
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Frick, K., Jensen, P.L., Quinlan, M., Wilthagen, T. (Eds.), 2000. Systematic Occupational Health and Safety Management: Perspectives on an International Development. Elsevier, Amsterdam. Frick, K., 2009. Health and safety representation in small firms: a Swedish success that is threatened by political and labour market changes. In: Walters, D., Nichols, T. (Eds.), Workplace Health and Safety: International Perspectives on Worker Representation. Palgrave MacMillan, Basingstoke, UK. Gunningham, N., 1984. Safeguarding the Worker: Job Hazards and the Role of the Law. Law Book Company, Sydney, Australia. Gunningham, N., 2007. Environmental regulation and non-state law: the future public policy agenda. In: Van Schooten, N., Vanschuren, J. (Eds.), International Governance and Law: State Regulation and Non-State Law. Edward Elgar, Cheltenham, UK. Gunningham, N., Johnstone, R., 1999. Regulating Workplace Safety. Systems and Sanctions. Oxford University Press, Oxford, UK. Gutierrez, E., 2000. Workers’ health in Latin America and the Caribbean: looking to the future. Perspectives in Health 5 Available at: http://www.paho.org/English/DPI/ Number10_article1.htm (accessed 27.05.10.). Hasle, P., Kines, P., Anderson, L.P., 2009. Small enterprise owners’ accident causation attribution and prevention. Safety Science 47 (1), 9–19. Johnstone, R., 2012. Informal sectors and new industries: the complexities of regulating occupational health and safety in developing countries. In: Fudge, J., McCrystal, S., Sankaran, K. (Eds.), Challenging the Legal Boundaries of Work Regulation. Hart Publishing, Oxford, Oxford. Johnstone, R., King, M., 2008. A responsive sanction to promote systematic compliance?: enforceable undertakings in occupational health and safety regulation. Australian Journal of Labour Law 21, 280–315. Kaasen, K., 1991. Post Piper Alpha: some reflections on offshore safety regimes from a Norwegian perspective. Journal of Energy and Natural Resources Law 9, 281. Kalestsky, R., 1997. OSHA Inspections. Preparation and Response. McGraw-Hill, New York. Marvel, H.P., 1977. Factory regulation: a reinterpretation of the early English experience. Journal of Law and Economics 20, 379–402. Navarro, V., 1983. The determinants of social policy, a case study: regulating health and safety at the workplace in Sweden. International Journal of Health Services 13, 517–561. Noble, C., 1986. Liberalism at Work: The Rise and Fall of OSHA. Temple University Press, Philadelphia, PA. Quinlan, M., Bohle, P., Lamm, F., 2010. Managing Occupational Health and Safety: A Multidisciplinary Approach, third ed. Palgrave MacMillan, Sydney. Quinlan, M., Mayhew, C., Bohle, P., 2001a. The global expansion of precarious employment, work disorganisation, and consequences for occupational health: a review of recent research. International Journal of Health Services 31, 335. Quinlan, M., Mayhew, C., Bohle, P., 2001b. The global expansion of precarious employment, work disorganisation, and occupational health: placing the debate in a comparative historical perspective. International Journal of Health Services 31, 507. Rees, J.V., 1988. Reforming the Workplace: A Study of Self-Regulation in Occupational Safety. University of Pennsylvania Press, Philadelphia, PA. Robens, Lord, 1972. Safety and Health at Work, Report of the Committee, 1970–72. HMSO, London. Cmnd 5034 (Robens Report). Schaapman, M., 2002. Germany: occupational health and safety discourse and the implementation of the Framework Directive. In: Walters, D. (Ed.), Regulating Health and Safety Management in the European Union: A Study of the Dynamics of Change. P.I.E Peter Lang, Brussels. Shapiro, S., Rabinowitz, R.S., 1997. Punishment versus cooperation in regulatory enforcement: a case study of OSHA. Administrative Law Review 49, 713. Thomas, M.W., 1948. The Early Factory Legislation: A Study in Legislative and Administrative Evolution. Thames Bank Publishing, London. Walters, D., Johnstone, R., Frick, K., Quinlan, M., Baril-Gingras, G., ThébaudMony, A., 2011. Regulating Workplace Risks: A Comparative Study of Inspection Regimes in Times of Change. Edward Elgar, Cheltenham, UK. Walters, D., Nichols, T., 2007. Worker Representation and Workplace Health and Safety. Palgrave Macmillan, Basingstoke. World Health Organization, 2005. Implementation of the Resolution of Occupational Health and Safety in the African Region, Meeting Report. World Health Organization, Regional Office for Africa, Brazzaville. Wright, M., Marsden, S., Antonelli, A., 2004. Building an Evidence Base for the Health and Safety Commission Strategy to 2010 and Beyond: A Literature Review of Interventions to Improve Health and Safety Compliance. HSE Books, Norwich.
Abstract This article traces the legal regulation of the health and safety of workers and others at work, from the early nineteenth century to the widespread reforms in occupational health and safety (OHS) regulation since the 1970s. The emphasis is on Europe, North America, and Australia. The article examines four themes of particular importance in the development of OHS regulatory regimes, wherever found. These are the different styles of OHS standard setting, the variable models of enforcement by state-sponsored inspectorates, and the legal institutions that promote worker participation in OHS. The article concludes with a discussion on the OHS regulation in developing countries.
This article outlines developments in the legal regulation of the health and safety of workers and others at work. It does not purport to offer a comprehensive survey of international occupational health and safety (OHS) practice and theoretical perspectives. Instead, it traces historically the main developments in the field of OHS regulation, with an emphasis on Europe, North America, and Australia. Within this framework, and with a special focus on the movement from command and control to self-regulatory models (or, more accurately, models of enforced self-regulation), the article examines four themes of particular importance in the development of OHS regulatory regimes, wherever found. These are the distinguishable features of OHS standard setting, requirements that duty holders seek expert assistance to improve compliance with OHS standards, the variable models of enforcement, and the relationship between OHS and industrial relations. The article concludes with a discussion on the difficulties of regulating OHS in developing countries.
The Emergence of the Traditional Approach to OHS Regulation OHS regulation is generally traced back to the early nineteenthcentury Factory Acts in the United Kingdom. The earliest enactment was the Health and Morals of Apprentices Act of 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, magistrates’ lack of interest 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. While the enactment of this law was partly a response to working-class pressure, and partly a response to agitation by
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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). The 1833 Act 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 of inspectors were reduced to inspecting and taking enforcement action – a more ‘legalist’ regulatory form. This development was initiated by the inspectors themselves, to overcome 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). After initially making frequent use of prosecution to enforce the Act, the inspectors soon relied mainly on advice and persuasion to induce compliance, with prosecution a ‘last resort.’ Bartrip and Fenn (1983) suggest that, in doing so, inspectors were taking a cost-effective approach to enforcement. Prosecutions were time-consuming and costly; over time the ratio of inspectors to factory premises worsened significantly so that each inspector had an increasing number of factories to inspect; inspectors were ambivalent about the degree to which regulatory offenses committed by businesses creating wealth and employment were morally reprehensible; and inspectors were deterred by hostile attitudes of magistrates toward the provisions of the Act. Taking a broader political economy approach, Carson (1979, 1980) has posed an alternative explanation of the origins of this approach to enforcement. He argues that by 1833 a number of large, urban manufacturers, for various reasons, supported the provisions of the 1833 Act, including strong enforcement by the inspectorate. The inspectors, however, found that their assumption that offenses against the Act were being committed by only a few employers was illfounded, and that contraventions were widespread, and intrinsic to the prevailing production system (Carson, 1979). The heavy use of prosecution would have entailed “collective
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criminalization” of employers “of considerable status, social respectability and . growing political influence” (Carson, 1979; p. 48). As a consequence, the early inspectors developed an approach to enforcement that relied principally on advice and persuasion, and resorted to formal prosecution only in the worst cases and where there was evidence of willful employer disobedience or obstinacy. Although officially criminal offenses, contraventions of the Factory Act were accepted as customary and those responsible were rarely subjected to criminal prosecution (the ‘conventionalization’ of factory crime; Carson, 1979). 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 of 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 willfulness in many of the employers’ offenses (Carson, 1979; pp. 53–54). 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 that relied principally on informal enforcement responses. This regulatory model was reproduced in other industries in Britain and was transported to the British colonies, including Australia, Canada, India, and New Zealand. While these developments in the United Kingdom strongly influenced the OHS regulatory provisions of the rest of Europe (see Baldwin and Daintith, 1992), the regulatory approach in each European state was also shaped by national political considerations and the regulatory practices in the more powerful industrializing continental European countries, particularly Germany and France (Walters et al., 2011; p. 23). The German ‘dual system’ developed in the late nineteenth century. It comprised legislative standards enforced by a state inspectorate and complementary regulation by statutory mutual insurance companies (Schaapman, 2002). The legislative standards were not to be found in a specific OHS statute or code, but rather in paragraph 120(a) of the general Industrial Code (Reichsgewerbeordnung) for industry and paragraph 62 of the Business Code for commerce (Walters et al., 2011; p. 24). The first German Labor Inspectorate (established in 1853) was an optional service, and only in 1878 was an obligatory government inspectorate established to monitor and enforce the provisions of the Codes. In tandem with this state regulation was a second track of regulation and enforcement, initially enacted by the Industrial Accident Insurance Act of 1884, which created accident insurance funds (Unfallversicherungsträger) of which industrial employers’ liability insurance funds (the Berufsgenossenschaften) were and are the most important. These bodies were responsible not only for compensation functions, but also for the prevention of illness and injury at work by making regulations to prevent injury and disease and enforcing those regulations through technical inspection services (Schaapman, 2002). Subsequent development of the OHS regulatory provisions in Europe (and in the British colonies) in the first half of the twentieth century was piecemeal, in that detailed and technical
standards (‘prescriptive’ or ‘specification’ standards) were introduced from time to time to address particular hazards, processes, or premises. One significant development during this period happened in Sweden, where in 1938 the employers and trade unions negotiated the Saltsjobaden Agreement to resolve a long period of industrial conflict. This agreement was a foundation stone in the development of Swedish corporatism, and in the development of participatory approaches to OHS at national, sectoral, and workplace levels (Walters et al., 2011; pp. 26, 122–123). Another important development was the introduction of occupational health services in some European countries, beginning with Norway in the late nineteenth century, and legislation to require firms to make use of occupational health services in addressing OHS issues. For example, France in 1946 passed legislation introducing occupational health services. In the United States, similar models of OHS regulation were established at the state level from the late 1860s until the end of the nineteenth century. The state level statutes contained detailed, technical standards that focused on certain kinds of premises (such as factories), processes, or activities. The federal government relied on state regulation until 1970, when the Occupational Safety and Health Act (OSH Act) was enacted (Ashford, 1976; Noble, 1986).
Criticisms of the Traditional Command and Control Approach The weaknesses of this traditional approach are well known (see Robens, 1972) and are widely regarded as having international relevance, because most OHS regulatory systems relied on detailed, technical prescriptive or specification standards enforced by state inspectorates. This traditional approach 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 wellaccepted 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 separation impedes the involvement of workers and their representatives in developing standards and measures for improving health and safety at the workplace. As noted previously, 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 toward a more ‘selfregulatory’ system in which duty holders are given more
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The Modern Approach to OHS Regulation Standard Setting Since the mid-1970s, the trend in Europe, North America, and Australasia, and many countries in Asia, Africa, and South 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, where the general duties increasingly have become process standards, and the subordinate legislation underpinning the general duties – regulations and guidance material – has increasingly adopted process, performance, and documentation standards. The ‘general duty’ provisions require the duty holder (usually the employer, but in some countries including the selfemployed, occupiers of workplaces, and manufacturers, suppliers, and designers of plant, substances and structures) 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 U.S. OSH Act of 1970 section 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.” As this example shows, the post-1970s trend has been to base the general duties on the ‘employment paradigm’ – that is, the relationship between employers and employees. The dominance of this paradigm has been challenged since the 1980s by changes in work arrangements and, consequently, work relationships around the world, with employers increasingly outsourcing work to contractors and subcontractors, contracting with agencies in order to lease labor, or establishing franchise arrangements (see Walters et al., 2011; pp. 40–42). Research has documented the negative effect of these various work arrangements on the health, safety, and well-being of workers engaged in those arrangements, as measured by injury rates, disease, hazardous substance exposures, mental health, and work health and safety knowledge and compliance (see, for example, Quinlan et al., 2001a; b). This has caused some countries to move away from placing duties on ‘employers’ in relation to ‘employees.’ For example, in 2009, the Australian Commonwealth, state, and territory governments endorsed a Model Work Health and Safety Bill in which the primary duty holder is not the employer, but rather “a person conducting a business or undertaking,” and this duty is owed to all types of workers ‘engaged,’ ‘caused to be engaged,’ ‘influenced,’ or ‘directed’ by the person conducting a business or undertaking.
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Further, a ‘worker’ is defined very broadly to include any person who carries out “work in any capacity for a person conducting a business or undertaking,” and includes, for example, work as a contractor or subcontractor, work under a labor leasing agreement, or work as a volunteer. The general duty provisions tend to be supplemented by a range of standards set out in subordinate legislation, which, increasingly in many countries, has moved away from specification standards to general duty approaches, and performance, process, and documentation standards. 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 (sometimes known as ‘management standards’) 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. Typically, these standards require employers “to take an active, comprehensive, programmatic and enduring responsibility for OHS quality, through a systematic managerial process to detect, abate and prevent workplace hazards” (Frick et al., 2000; p. 1). 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. Consequently, the general duty provisions in most EC countries are couched as risk management standards (see Walters et al., 2011; pp. 32–40). 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 that involve continuous improvement and a systems-approach to OHS management (see Frick et al., 2000; Gunningham and Johnstone, 1999). The debate is most advanced in provisions for the management of major hazardous facilities, which have largely been enacted in reaction to major disasters, and in the mining industry. 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 (Cullen, 1990; Gunningham, 2007; Kaasen, 1991; see the International Labour Organization’s 1993 Convention on the Prevention of Major Industrial Accidents, and EU Directives 82/501/EEC and 96/82/EEC on the control of major hazard facilities).
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The duties discussed thus far are duties imposed on the enterprise – usually a corporate entity, but occasionally a sole proprietor, partnership, voluntary association, or similar arrangement. A corporation is a fictional legal entity, and can operate only through its human directors, managers, and workers. Most contemporary OHS statutes impose duties of care on employees (and occasionally on other kinds of workers, who may not technically be ‘employees’) to ensure their own health and safety and the health and safety of others. Senior management leadership in OHS is critical to positive health and safety outcomes. Accordingly, some countries have also imposed duties on high-level corporate officers (who may also be employees and thus subject to the employee’s duty as well). For example, section 37 of the Health and Safety at Work etc Act of 1974 (UK) provides that where a body corporate’s offense under the Act is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary, or other officer of the body corporate, that officer is also guilty of the offense. This form of accessorial liability can also be found in Hong Kong, New Zealand, and the Australian state of Western Australia. Other statutes, such as those in Singapore or Malaysia, the Canadian province of British Columbia, and the Australian states of Victoria and South Australia, impute liability to an officer for a corporate OHS offense, and might give the officer a defense of due diligence, or only impose liability if the officer fails to exercise reasonable care. Some countries – for example, Germany, the Canadian province of Ontario, and the Australian jurisdictions adopting the Model Work Health and Safety Bill – are now imposing ‘positive’ duties on corporate officers to take reasonable care or to exercise due diligence. Because these latter duties are positive duties to ensure that the corporation complies with its OHS duties, inspectorates can take measures such as administrative sanctions if the officer fails to exercise due diligence or take reasonable care to ensure corporate compliance. In some countries, duties are imposed on individuals within the corporation rather than on the corporation itself. For example, in France duties are imposed on the Head of the Establishment (a director or a senior manager) and in Sweden, even though the duties are placed on the employer, the responsibility is borne primarily by the most senior manager. (For further discussion of these approaches, see Bergman et al., (2007)). In other countries – for example, the United States and the Netherlands – no provision is made for officer liability.
Provisions Requiring Duty Holders to Seek Expert Assistance in OHS The modern OHS standards, with their reliance on performance and process (OHS management) standards, are demanding and often complex. While there is plenty of evidence to show that the promotion of systematic OHS management in OHS regulation is a positive development, improving management awareness of and involvement in OHS management (for a summary, see Quinlan et al., 2010; p. 358), it is also clear that duty holders often find it difficult to introduce effective measures to identify, assess, and eliminate or minimize OHS risks (see Walters et al., 2011; pp. 8–9). This is especially the case with small businesses (Hasle et al., 2009).
Occupational health services can play an important role in supporting employers and improving their understanding of OHS matters. In the 1970s, Denmark, Sweden, and Norway, and in 1996 the Netherlands, legislated to require firms to engage occupational health services. Germany in 1974 required all firms to appoint occupational physicians and occupational safety specialists. 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’ (and until 2012 Queensland required the appointment of workplace health and safety officers in large firms) to assist employers in implementing their OHS obligations.
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. From an ethical perspective, 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. Further, research from many countries demonstrates the positive benefits of worker participation in work health and safety, including a relationship between workplace structures enabling worker representation (union presence, joint safety committees, or worker/union safety representatives) and both objective indicators of OHS performance (such as reduced injury rates or hazard exposures) and better OHS management arrangements (see Walters and Nichols, 2007; Chapter 2). 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 inspect workplaces, 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 U.S. 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.
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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 of 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 (see further Frick, 2009).
State Enforcement of OHS Obligations The modern OHS inspectorates can call on a range of enforcement powers, usually culminating in prosecution. In most countries, inspectorates 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 (usually imposing small fixed fines). In some countries inspectorates have the power to impose significant variable administrative penalties. For example, German Insurance Association inspectors can impose fines determined by reference to the amount of money that the firm has saved through noncompliance (Fooks et al., 2007; p. 43). In British Columbia, the basic penalty is assessed using multipliers relating to the size of the employer’s assessable payroll, and can be adjusted up to 30 percent by reference to a range of aggravating and mitigating factors, and up to 24-fold if it is a repeat of a contravention committed within the previous three years; it can be even higher if willful or reckless contraventions result in death (see Fooks et al., 2007; pp. 43–44). In Australia since 2003 some OHS regulators have had the power to accept ‘enforceable undertakings’ in lieu of launching a prosecution for a contravention of the OHS statute. Enforceable undertakings are promises enforceable in court, and are usually offered by an individual or firm who has allegedly breached the law, and accepted by a regulator. If contravened, the undertaking is enforceable in court, often with additional penalties for the contravention of the undertaking (see Johnstone and King, 2008). In the United States, enforcement is less discretionary, and principally involves administrative sanctions (citations imposing financial penalties and requiring the abatement of hazards) (see Kalestsky, 1997; Shapiro and Rabinowitz, 1997), with prosecution for a limited number of intention-based offenses. 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 using the self-regulatory principles of the enforcement pyramid (a hierarchy of escalating sanctions) promoted by many regulatory theorists (see
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Ayres and Braithwaite, 1992; Chapter 2; Rees, 1988; see also Wright et al., 2004; p. vi). The challenge is to develop enforcement strategies that deter the worst offenders, while at the same time encourage and help most employers 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; Chapter 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 United States, 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 (see Walters et al., 2011). In Sweden, the Swedish Work Environment Authority inspectors routinely inspect ‘Systematic Work Environment Management’ (SWEM) when they visit workplaces – both by asking management about SWEM and by physical examination of OHS risks at the workplace (see Walters et al., 2011; Chapters 6 and 7). Recent research suggests, however, that despite the regulatory shift in many countries to OHS management standards, and the increased focus of inspectors on inspecting systematic OHS management, “in most cases these changes have not resulted in clearly defined inspection strategies to achieve improved” OHS management, nor “have they given rise to sustained changes in regulatory inspection practice” (Walters et al., 2011; p. 308).
OHS Regulation in Developing Countries The discussion so far has addressed the development of OHS regulation in developed countries. OHS and the regulation of OHS in African, South and Central American, and Asian and Pacific island countries face many obstacles not found in developed countries. In many developing countries these challenges include the rapid expansion of the informal economy, where economic activity is not recognized or protected by state authorities; the growth of new industries, some of which are difficult to regulate; and the outsourcing of production by the use of transnational supply chains enabling firms based in developed countries to exploit labor in developing countries from a distance (see Johnstone, 2012). At a broad level, OHS in developing countries is often competing with other priorities, for example, poverty alleviation, HIV/ AIDS, and water and sanitation issues (Gutierrez, 2000). OHS regulatory measures can be undermined by inadequate levels
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of education and deeply entrenched social and gender inequality, persistent poverty, threats to peace and security, and deregulation and reduced state intervention in the economy (World Health Organization, 2005; p. 20). Further, the contemporary approach to OHS regulation in developed countries demands significant resources from firms, unions, and regulators, resources that generally are not available to regulators, unions, and local small and medium-sized businesses in developing countries. Many of these issues are a result of intensified globalization, and in particular the ability of capital to shift production to developing countries by direct investment in plant in developing countries, through supply chains or through purchasing contracts. The protection of workers’ health is consequently a global issue, and needs global solutions built on cooperation between developed and developing countries (Johnstone, 2012). This requires consideration of matters such as the political, social, and economic dynamics leading to poor OHS in developing countries; how informal sectors might be effectively ‘formalized’ and properly regulated; how legally enforceable supply chain regulation in developed countries might be extended globally and greater cross jurisdictional cooperation be encouraged; and how the major international institutions, and international collaboration between developing and developed countries, can address the underlying factors leading to poor OHS in developing countries, and improve resources for OHS, and OHS regulation, in those countries (Johnstone, 2012).
See also: Employment and Labor Regulation; Job Design and Evaluation: Organizational Aspects; Occupational Health; Workplace Safety and Health.
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