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       Hazards, number 142, 2018
Shake it up: IER agenda for health and safety reform
Something has gone dangerously wrong at work. Safety law expert Phil James tells Hazards there needs to be a fundamental shake up of the system to provide better rights covering all workers, justice for those harmed by their jobs and more stringent, enforceable duties on employers.

 

Too many workers and their families continue to suffer from the failure of their employing organisations to provide safe and healthy working conditions. Injuries, acute and chronic ill-health and death occur all too frequently, along with the emotional and financial costs they cause. Yet employing organisations are rarely held accountable. According to the Health and Safety Executive (HSE), the majority of the associated costs are borne by those harmed, their families, and the taxpayer in benefits and health care.

In its Manifesto for labour law, the Institute of Employment Rights (IER) focuses on reforms in key areas – the central statutory duties of employers, worker representation, the better enforcing of statutory duties and penalising of non-compliance, and access to sick pay and compensation for those harmed.

Modern world

SUPPLY CHAINS 
The TUC is calling on the government to give UK supply chain workers the right to challenge their parent employer over minimum wage, holiday pay and other employment abuses. It estimates that 5 million UK workers cannot enforce their basic rights with their ‘parent company’, with 3.3m employed through outsourced companies, 615,000 by franchise businesses and at least 1 million by recruitment agencies, umbrella companies and personal service companies. more

There is a clear need for a framework of law that better addresses two important features of labour market change – the growth of contingent employment and the extent to which vulnerable workers are concentrated in industries where lead firms determine the conditions in which their suppliers set wages and conditions.

The IER argues that this could be done by using the Australian model Workplace Health and Safety Act and:

• Imposing the primary duty of care on those ‘in control of a business or undertaking’, rather than an employer;
• defining a worker to whom this duty is owed as anyone who ‘carries out work in any capacity for a person conducting a business or undertaking’; and
• stating that a workplace for these purposes is any place ‘where a worker goes, or is likely to be, while at work.’ 

These changes would impose statutory health and safety obligations on those running businesses in respect of all premises where work for them is carried out and all workers engaged on this work. It would considerably extend the coverage of statutory health and safety duties.

Worker representation     

A BIGGER ROLE FOR SAFETY REPS

   Ways to further enhance the role of union safety reps have been spelled out in an April 2018 TUC guide. ‘Getting more than the minimum’ says ‘roving’ safety reps “can, with agreement from bosses, represent workers in a number of different workplaces across a range of employers. This type of scheme has been successful in schools, the health service, construction and the voluntary sector.” 
   The TUC adds Union inspection notices (UINs) are another effective tool. It describes UINs as “a formal notice a rep can issue to an employer to officially register that they are not complying with health and safety law. It explains clearly what steps the employer should take to address the problem, usually within 28 days.”
Safety rep Getting more than the minimum – A TUC guide to Roving Safety Reps and Union Improvement Notices, TUC, April 2018.

International evidence indicates clearly that systems of worker representation and consultation can improve both health and safety management and outcomes.

It is also clear that as workplace union recognition has fallen, so has the coverage of safety representatives appointed under the Safety Representatives and Safety Committees Regulations 1997. There is an obvious need to remedy this, while enhancing the powers of representatives.

The IER calls for:

Loosening the current linkage in the 1977 regulations between union recognition and safety representative appointment to enable unions to represent members in workplaces where they are not recognised, effectively generalising the rights currently possessed by Equity and the Musicians’ Union;
Extension of the duty to consult over health and safety matters to those in control of businesses and undertakings in relation to all categories of workers (not just employees); and
Empowering representatives to issue ‘provisional improvement notices’ and to ‘stop the job’ in situations of serious and imminent risk.

In addition, IER argues health and safety should be encompassed within a new system of sectoral collective bargaining (see: Wage war).

Enforcing standards

Despite evidence of widespread non-compliance with health and safety laws, successive governments have cut the resources that HSE (and local authorities) have to monitor and enforce compliance with statutory health and safety requirements. As a result, inspector numbers have fallen dramatically. It is no surprise that inspections have also declined in a context where government has (inappropriately) defined whole sectors of economic activity as ‘low risk’ and exempt from proactive inspections (Hazards 120).



SOLD OUT By 2019/20, the Health and Safety Executive (HSE) will be just half the watchdog it used to be. As swingeing funding cuts bite, the once dedicated regulator is now devoting scant resources to pimping itself out to those with the means to pay (Hazards 134).

The IER argues that these reductions are unacceptable and mean that the UK government is failing to honour its International Labour Organisation (ILO) commitment, under the ILO convention 81 on labour inspection, to ensure that workplaces are “inspected as often and as thoroughly as is necessary to ensure the effective application of the relevant legal provisions.”

IER calls for significant expansions in inspector and inspection numbers, as well as the removal of the current prohibition on unannounced inspections to ‘low risk’ workplaces. It also argues the ‘primary authority scheme,’ which allows large companies to avoid legal obligations, should be abolished.

Penalising non-compliance

It cannot be credibly argued that the government is compliant with the requirement of Article 17(1) of ILO Convention 81 that ‘persons who violate or neglect to observe legal provisions enforceable by labour inspectors shall be liable to prompt legal proceedings without previous warning…’. 

For example, in 2016/17, there were only 554 prosecution cases instituted by HSE. Even when prosecutions are successfully brought, the penalties imposed are low; the average penalty for all workplace safety offences prosecuted in 2015/16 was just under £58,000, while that for those relating to fatal injury was £62,148.  

To address this situation the IER recommends:

A scale under which courts are advised to impose fines falling within specified percentages of turnover;
A new tripartite standing body to review sentencing in health and safety offences and make regular and binding recommendations;
An enforcement policy that places more emphasis on inspectors using their powers to issue enforcement notices and initiate prosecutions, including on indictment;
A new, discrete unit within the Crown Prosecution Service solely responsible for considering cases of corporate manslaughter; and
Removal of the current requirement under the Health and Safety at Work Act for unions to secure permission to initiate private prosecutions where employers are failing to comply with their legal duties.


Helping those harmed

Under the Enterprise and Regulatory Reform Act 2013, the ability of workers to bring civil actions for breaches of health and safety regulations was removed.

Ill and injured workers all too often receive insufficient support to enable them to retain their jobs and less than half of employers – and a much smaller proportion of private sector ones – operate sick pay schemes, with the result that most private sector workers absent from work through injury and ill-health receive, at best, Statutory Sick Pay.

The IER argues that these arrangements effectively penalise those harmed through their work activities. It wants:

Re-establishment of the right for workers to seek compensation through civil actions for breaches of statutory duty;
Universal entitlements to sick pay at a substantial proportion of normal pay; and
New duties on employing organisations on the rehabilitation and return to work of ill and injured workers.

Most of the changes in this IER reform agenda could be implemented relatively speedily.

Given the Health and Safety at Work Act was established over four decades ago in a very different world of work, there would seem to be a strong case for undertaking in the longer term a comprehensive review akin to that undertaken over the period 1970-72 by the Robens Committee.  

As with this Committee, such a review should be undertaken by a combination of academic specialists and representatives from both industry and the trade union movement.  It should also have an independent chair – rather than, as with most recent health and safety reviews, a former or current politician or a business person.

Phil James is professor of employment relations at Middlesex University and an executive committee member of the Institute of Employment Rights (IER).

 


 

TUC says firms must be liable for supply chains

The TUC is calling on the government to give UK supply chain workers the right to challenge their parent employer over minimum wage, holiday pay and other employment abuses.

An April 2018 TUC report estimates that 5 million UK workers cannot enforce their basic rights with their ‘parent company’, with 3.3m employed through outsourced companies, 615,000 by franchise businesses and at least 1 million by recruitment agencies, umbrella companies and personal service companies.

‘Shifting the risk’ says that unless joint liability is extended to parent employers, many supply chain workers will remain at risk of being cheated out of holiday pay, the national minimum wage and other rights.

The report notes: “Compared with other countries in Europe, the UK enforcement agencies are inadequately resourced. For every 100,000 workers, the UK has 0.9 labour market inspectors (excluding health and safety inspectors). In France, there are 18.9 inspectors for every 100,000 workers.”

The report notes that a procurement law that bars firms guilty of modern slavery offences from receiving public sector contracts “should be extended to breaches of all employment, equality and health and safety standards in supply chains.”

TUC general secretary Frances O’Grady said: “Joint liability must be extended to parent employers. Without it they can shrug their shoulders over minimum wage and holiday pay abuses. Our labour enforcement laws urgently need beefing up.”

Shifting the risk: Countering business strategies that reduce their responsibility to workers – improving enforcement of employment rights, TUC, April 2018.

 

 

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Shake it up

Something has gone dangerously wrong at work. Safety law expert Phil James tells Hazards there needs to be a fundamental shake up of the system to provide better rights covering all workers, justice for those harmed by their jobs and more stringent, enforceable duties on employers.

Contents
Introduction
Modern world
Worker representation     
Enforcing standards
Penalising non-compliance
Helping those harmed

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TUC says firms must be liable for supply chains

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