The potential of PINS
It is four years since the idea of employers being given formal notice by their workforce to improve health and safety started being widely discussed in UK health and safety circles. In 1998, the labour movement was frustrated at what it saw as a lack of worker involvement in health and safety matters and inadequate enforcement. The unions' answer was to propose the introduction of an Australian system, in use since 1985, that allows worker-elected health and safety representatives to serve a formal notice on an employer when it breaches health and safety legislation. A "provisional improvement notice" (PIN) that is not complied with is referred to the enforcing authority for arbitration ( Underpinning safety reps: benefits or bureaucracy? ).
In the interim, the HSC has confirmed it will replace the two main sets of Regulations that govern consultation with employees and their representatives in the UK. The move is part of a strategy to improve employers' consultation with workers on health and safety issues. The HSE has also commissioned research into the links between consultation and effective health and safety performance.1 A second, medium-term, part of the strategy will look at ways of persuading management to respond to genuine concerns that are raised by safety representatives. The TUC has taken its own initiative and has introduced a non-statutory "union improvement notice" to be served by safety representatives on managers who fail to heed warnings of safety failures.
Australian correlation
The HSE has now published a report by one of its inspectors,2 Sarah Page, who spent a month in Australia examining provisions designed to involve workers in protecting their safety and the sanctions available to occupational health and safety (OHS) representatives to overcome perceived non-compliance.
The health and safety regimes in Australia are based on the "self-regulation" principle set out in the Robens report, the foundation for the UK's 1974 HSW Act. But Page suggests that there has been a significant divergence in the way the Robens philosophy has been developed in the two countries.
In the UK, a unitarist outlook is prevalent, which assumes that employers and workers share the same interests. Employers are required to consult their workforce: a 1999 HSE discussion document states: "Consultation means both providing the workforce with information and also taking account of their views before making decisions affecting health and safety." In Page's view, this means it is hoped that an employer's decision-making may be influenced by taking account of workers' views, although worker involvement is not guaranteed.
In Australia, she found a "co-regulatory", pluralist approach. This acknowledges that differences of opinion exist, that conflict is likely and that provisions are needed to control this. The approach is founded in negotiation rather than consultation. Employers and employees share involvement in risk control decision-making within a statutory framework for negotiation and issue resolution, so that neither is free to act as it may wish.
Page says that, typically, employees in a designated working group (DWG) are entitled to elect OHS representatives, who have rights to bring to the employer's attention matters of OHS concern and can force a deficient employer to address the issue by serving a PIN. The employer then has a choice: either comply with the PIN or request the enforcing authority's adjudication. This gives the employer the chance to resolve the matter internally and discreetly - an attractive option to many businesses, particularly those that are hostile to state interference or fearful of criminal culpability.
Page believes the pluralist framework encourages greater worker involvement because the views of the OHS representative, and the workers represented, cannot readily be ignored.
The Victorian model
Much of Page's research was carried out in the state of Victoria (see box 1), where she interviewed trade union officials and representatives of the enforcing authority and employers' organisations. She says that in Victoria there can be no doubt that OHS representative enforcement has made a positive contribution to health and safety, although in the absence of empirical evidence of the success of the Victorian model, Page has had to rely on anecdotal evidence. There is also only anecdotal evidence of the success that the threat of issuing a PIN has had on resolving issues.
Employer and industry association representatives provided no evidence of widespread or frequent PIN use. The Victorian enforcing authority (WorkSafe), trade union representatives and some employer representatives said that PINs were used as a last resort, resulting from worker and OHS representative frustration. Only one in 10 Australian OHS representatives has ever issued a PIN or equivalent notice (see box 2).
Page found that there were disincentives to Victorian representatives using their powers. The political climate has had a profound effect. A deregulatory drive by the state government in the 1990s led to the creation of a new inspectorate and a dramatic shift away from enforcement to providing advice and consultancy services. In recent years, following a change in government, enforcement has moved back to a policy akin to the HSE's. During the deregulatory period, WorkSafe, the enforcing authority, was subsumed within WorkCover, the state compensation scheme administering workers' claims for sickness benefit. Combining the authorities has resulted in tensions between WorkSafe's proactive role in enforcing regulation and WorkCover's reactive role in providing compensation.
The interaction between OHS representatives and the enforcing authority is further complicated by differences of opinion as to the role of OHS representatives. The unions and some WorkSafe officials view OHS representatives as serving solely to protect workers and answerable to the DWG alone. Other WorkSafe officials see representatives as their helpers, likening their role to that of volunteer firefighters, and their expectations of the representatives' conduct reflects this view.
Opinions are also divided about what constitutes a health and safety, as distinct from an industrial relations, issue. Just as in the UK, this is a source of considerable argument reflecting ideological positions. The unions claim that inspectors avoid OHS disputes by classifying them as "industrial relations issues", for which they can decline to be involved.
Union and employer complaints
Trade unions told Page that their experience of WorkSafe adjudication was negative, alleging inspector ignorance, bias and lack of objectivity. The unions claim that PINs are unreasonably cancelled, usually for "technical errors" such as the wrong regulation being quoted. They argue that inspectors do not take account of the circumstances giving rise to the issuing of the PIN and can easily modify the notice to uphold its intent. Cancelling the notice without investigating why it was served leaves the OHS situation unaltered and the workforce without any remedy. The unions report that OHS representatives whose notices have been quashed in such circumstances have been left undermined, humiliated, vulnerable to employer retribution and less likely to use a PIN again.
The unions see the Victorian system as inequitable. Victorian representatives and unions who disagree with the regulator's adjudication have no statutory remedy. In other co-regulatory states, a right of review does exist, giving OHS representatives the same rights as employers to appeal against an inspector's decisions. Some WorkSafe representatives told Page that they would support the introduction of this right in Victoria. There is also a perception that the arbitration system is employer-biased, particularly the industrial division of the Magistrates' Court, where appeals are heard.
The legislation originally provided for trade unions to conduct OHS representative elections but, since 1993, it has been for members of each DWG to organise an election. This group of workers has no formal structure or procedures for organisation, and although trade unions can offer support they cannot directly initiate the establishment of a DWG. Vulnerability of health and safety representatives is seen by the unions and WorkSafe as a serious concern. WorkSafe says that the number of OHS representatives has dropped noticeably, and it was suggested to Page that the removal of trade unions from the election process has undermined health and safety representation and left representatives adrift. Harassment and blacklisting of representatives is well known and is particularly rife in rural areas.
Page found that the employers' main criticism of PINs is that, on occasions, OHS representatives serve a notice without having the experience to do so competently or without the foresight to appreciate the consequences of their actions. WorkSafe similarly expressed concern about OHS representatives' understanding of the period necessary for improvement, and confirms that its inspectors have sometimes cancelled PINs because the representative set an unrealistic timescale. WorkSafe suspects that the training representatives receive is too focused on legislation (rights of representatives etc) and not enough on the practicalities.
Page found all-party agreement that a lack of competence, be it knowledge and experience of OHS itself, or skill and ability to negotiate, is a highly significant barrier to effective OHS management. Training is considered to be critical. Victoria's legislation entitles OHS representatives to paid time off "necessary" to perform their functions or duties or undergo WorkCover-approved OHS training. But there is no legislative provision for funding and, as in the UK's SRSC Regulations, the time considered "necessary" is open to interpretation, which can lead to conflict. Government grants available when the legislation was launched have been axed, and trade union resources have been hit by a decline in membership and stretched by competing demands. A 2001 Australian Council of Trade Unions' survey found that 25% of OHS representatives had not received any training. Page concludes that the Victorian co-regulatory model has been undermined by political interference in the 1990s, which has had a damaging impact upon the original statutory intent and upon the regulator. WorkSafe Victoria is now trying to redress the balance by improving support for OHS representatives and dedicating considerable funding solely to an OHS representatives strategy, indicating its support for regulated worker empowerment.
South Australia
Page contrasts the situation in Victoria with that in South Australia. The WorkCover Corporation SA deals with worker compensation and OHS advice and is separate from the South Australian enforcing authority. This frees it from the political struggle that regulators such as WorkSafe Victoria and the HSE face (but also decrease its relevance as a model to the UK).
The WorkCover Corporation SA requires notification of:
This information triggers an education and training programme, run by the Corporation. Inequalities in OHS competence and negotiating ability are recognised as upsetting the balance of power; providing a basis for informed debate is seen as facilitating mutual OHS understanding. Committee members, both management and workers, are given information on how to run the committee, examples of agendas and minutes and advice on establishing their terms of reference. They are also required to attend joint training so that competence is developed together. Employers who refuse to attend are challenged about their commitment and stronger sanctions are available.
Once OHS representatives are registered, they receive an introductory welcome pack and membership of a support network. They are entitled to five days' training every year. The training is accredited by WorkCover and covers such skills as information acquisition, presentation skills, using the internet, issuing "default" notices (the South Australian PIN), and considering the consequences of OHS representative enforcement action.
A secure website is being developed for registered OHS representatives and the WorkCover Corporation has appointed approved OHS consultants to provide free advice for industry and OHS representatives.
Page notes that the WorkCover Corporation SA has deliberately embarked on a strategy of education, information and training that is accessible to all and that seeks to avoid the imbalances in power that can otherwise arise.
Lessons for the UK
Page takes the view that OHS negotiation and issue resolution cannot be divorced from industrial relations. Asked about their experience of worker participation, some Australian inspectors were committed to a supportive regime; others were sceptical, believing representatives have a hidden agenda and attempt to use OHS to further political motives. She suggests that a similar range of views can be found among HSE inspectors.
In this context, she found the South Australian WorkCover Corporation's positive approach to worker participation particularly interesting. The Corporation does not assume that workers and their managers share the same interests; but it does seek agreement on the desirability of sustaining livelihoods without workplace injury or death. Page suspects that this task is made easier by the disassociation of the Corporation from the state's inspectorate.
Looking at the UK system, Page believes that the HSE's low level of enforcement of worker consultation legislation, such as the SRSC Regulations, has contributed to the trade union perception of an imbalance of power between employers and their workforce, strengthening the industry position and weakening that of the trade union OHS movement. Nevertheless, worker participation issues now feature highly on the UK OHS agenda, as they do in Australia.
A comparison of UK and Australian OHS representative provisions highlights the greater empowerment of Australian representatives and the more comprehensive arrangements for issue resolution. Australian representatives are better placed than their UK counterparts to overcome health and safety non-compliance in their workplaces. This has to be beneficial to the health, safety and wellbeing of Australian workforces. The issue resolution provisions provide a necessary adjunct to ensure fairness during employer/employee negotiations.
The Confederation of British Industry (CBI) has voiced its concern that PINs in the UK would be divisive and a bureaucratic burden on the HSE. It argues that PINs "would encourage misuse of health and safety concerns as a means of applying pressure on employers in relation to other industrial relations issues".
Page accepts the appeal to trade unions of this system of power-sharing and the hesitation among industrialists. The anecdotal evidence she found suggests that the experience of OHS representative enforcement, in practice, has been cautious. Australian trade union officials, academics in the area of industrial relations and enforcing authority officials unanimously reported, prior to the introduction of PINs, that PINs would bring industry to a standstill and burden the regulator. This has evidently not been the case. Page believes that PINs and other OHS representatives sanctions, supported by issue resolution legislation, have much to offer the UK system of worker participation, as well as potential benefits for the HSE itself.
Page concludes that the representatives' sanctions appear to provide genuine opportunities for workplaces to manage health and safety internally, without recourse to the HSE. The issue resolution arrangements mean that the HSE need only become involved when a health and safety dispute arises and internal issue resolution measures are exhausted. This would free up the HSE to concentrate on proactive initiatives and the enforcement of recalcitrant employers.
1The HSC does not, however, support the use of PINS in the UK.
2"Worker participation in health and safety: a review of Australian provisions for worker health and safety representation", S Page, www.hse.gov.uk/workers/content/pinreport.pdf, free.
