Hey, they were only workers – have an award

WHO PAYS? Businesses see safety as a cost item. But if you can't run a business without killing someone, you shouldn't run a business at all - and enforcers should see it that way too.

Companies scream blue murder about the burden of health and safety regulation and the heavy-hand of regulators. But recent events reveal official workplace safety inspectors in the US and the UK are a rarely seen and seriously threatened breed, who lack the resources and sometimes the will to police rogue employers. Instead, companies give enforcement a body-swerve by self-assessing themselves for enforcement holidays and glittering safety awards.

In May, US President Barack Obama vowed to end the “cosy relationship” between oil companies and US regulators in the light of the April 2010 Gulf of Mexico disaster.

But it’s not just the oil industry that’s benefiting from a regulatory blind eye and kid glove. Celeste Monforton, writing last week in The Pump Handle blog, gave her shapshot analysis of Occupational Safety and Health Administration (OSHA) news releases during the Bush and Obama presidencies.

Commenting on releases issued by Edwin Foulke during his tenure as the George W Bush pick for OSHA’s top seat, she noted: “Mr Foulke’s OSHA had a preference for issuing news releases announcing alliances and recognising the safety performance of particular firms. More than 45 per cent of the 284 news releases issued from January through July 2008 fell into this category.” Less than a third of the news releases concerned enforcement action.

Barack Obama’s choice as OSHA head, David Michaels, adopted a different tone, Monforton found. “During Dr Michaels’ tenure, less than eight per cent of OSHA’s news releases concerned alliances, partnerships and recognition of particular employers,” she said. “Nearly 55 per cent of the news releases issued in the first seven months of this year reported on specific enforcement cases with the names of employers cited, the types and severity of violations found and proposed monetary penalties. Another five per cent of the agency’s news releases announce the successful disposition of whistleblower complaint.”

But health and safety enforcement takes enforcers and takes resources. Without a lot more of both, most dangerous employers will remain dangerously out of sight. As the US national union federation AFL-CIO noted in its 28 April 2010 Workers’ Memorial Day briefings: “In the United States, there is one OSHA inspector for every 60,723 workers compared to the International Labor Organisation benchmark of one labor inspector for every 10,000 workers.”

In the UK, a dramatic decline in Health and Safety Executive (HSE) inspection frequency has become a major concern for unions and campaigners, but workers can still expect to see an inspector at least once in a working lifetime, with an inspection frequency of once every 38.4 years.

That’s not the expectation of US workers, with AFL-CIO warning resource-starved federal OSHA can inspect workplaces, on average, once every 137 years. The state OSHA plans average once every 63 years. Either way, most US workers will not live to see an OSHA inspection and some will certainly die because of this.

It’s a record that leaves the US languishing in the bottom half of a global health and safety ranking published in January 2010.

The Health and Safety Risk Index (HSRI) prepared by Maplecroft, a firm that assesses global risks to business, considered the occupational health and safety performance of 176 countries. Using data sources including the International Labour Office (ILO), World Health Organisation (WHO) and World Bank, HSRI scored performance on work related fatalities and injuries, number of accidents causing work absences, number of deaths from work related diseases, expenditure on health, life expectancy, government effectiveness, regulatory quality and the total number of ILO conventions ratified.

The UK was ranked at 30 in the safety league of nations, placing it at the mid-point of the “low risk” group, a performance described by Hazards magazine as “humiliating”.

The US, though, didn’t even make the “low risk” cut. It came in at 120 out of the 176 nations ranked, sandwiched between Uzbekistan and Togo. Of the 30 OECD nations included in the report, only Turkey ranked lower than the US.

So while OSHA is talking a better enforcement regime and President Obama’s arrival has heralded better rhetoric and resources, the US still stands out as a first world nation with second class safety.

Statutory health and safety enforcement agencies, wherever they are, acknowledge enforcement alone is not enough – they can’t police every workplace all the time, and nor should they. Instead, they utilise a mix of voluntary approaches to supplement enforcement. It is the balance that is at issue.

However, enforcement is increasingly the poor cousin in the health and safety world, as hands-off safety agencies slip into the background and companies exploit enforcement-lite approaches.

And there are plenty of respectable safety agencies out there putting a gloss on safety performance by handing out “prestigious” safety awards. A safety bauble presented at a swanky dinner is a more realistic prospect for some egregious safety offenders than any negative attention from an enforcement agency. It’s unquestionably a much more common occurrence than a deadly employer being invited to spend time in jail.

Occasionally companies do get caught out. Multinational mining group Vedanta Resources was last week stripped of a British Safety Council (BSC) international safety award after it was revealed it had not declared at least 40 workers died in a chimney collapse on 23 September 2009 at one of its sites in India. BSC immediately withdrew the award in response to findings thrown up by The Observer newspaper in its broader analysis of deaths of workers at all FTSE 100 mining groups.

BSC said it had stripped Vedanta of its honours because this was necessary to protect the integrity of the awards, which are actively “supported” by the Health and Safety Executive (HSE), the UK’s official health and safety watchdog.

Critics say the case casts light on a system that allows firms to put a respectable, and sometimes enforcement-agency endorsed, gloss on a suspect workplace safety performance.

The publicity is likely to be a source of embarrassment to both HSE and BSC. It would be remarkable if both organisations were unaware of the disaster in Korba, India, which was widely reported at the time, and any fatality in the award year automatically invalidates an application. And both should have known better. It is not the first time BSC international awards have attracted controversy.

A sequence of BSC ‘Sword of Honour’ awards to RTZ’s Rossing Uranium mine in Namibia in the late 1980s and early 1990s came at a time the country’s mineworkers’ union and mining campaign group Partizans were raising concerns about the impact of radiation, silica and other exposures on workers at the mine.

Among this year’s BSC awardees is National Semiconductor’s Greenock plant, which received an International Safety Award for the twelfth straight year. For much of this time, the plant has been at the centre of an occupational cancer controversy in which local campaigners say HSE is implicated.

The BSC international safety awards are supported and actively promoted by HSE whose logo appears on the front cover of the application form. A 17 March news release from BSC noted HSE “continually showed its support for the British Safety Council’s International Safety Awards (ISAs) Scheme.”

BSC is one of a select group of external agencies that can rely on HSE’s promotion of its commercial safety activities. This includes a 26 February HSE plug that noted “HSE is delighted to continue its support of the British Safety Council’s International Safety Awards,” which attract a £180 application charge in addition to requiring BSC membership, costing an additional £100 for the year.

Buying in to the alliance and awards world presents two clear conflicts for enforcement agencies. Companies see a way to establish, for relatively low effort, a positive relationship with the enforcement agencies – something which is used in mitigation when their real life lacklustre performance eventually results in a catastrophe or tragedy that can’t be hidden. And the health and safety enforcement agency distances itself from what should be seen as its primary role – as the advocate for and defender of workers, their health and their safety.

When dangerous firms are more like to be seen forming voluntary alliances or receiving awards than facing the courts, something is seriously amiss with the enforcement regime.

The solution is as simple as it is elusive. Increase the rights of workers to influence health and safety standards in their workplaces and provide them legal protection when they speak out. Provide sufficient official enforcement cover, backed up by penalties including jail terms for the worst safety offenders, to make rogue employers think twice before they put profits before safety. And reframe safety as a human rights issue, rather than a burden on business.

Because if you can’t run a business without killing people, you shouldn’t run a business at all.

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