Underpinning safety reps: benefits or bureaucracy?
In Australia, safety reps have the legal power to force their employers to improve health and safety. Chris Dyer asks if provisional improvement notices (PINs) could help workers, employers and the HSE here.
"Control", according to Successful health and safety management, "is the foundation of a positive health and safety culture", and is achieved "by getting the commitment of employees to clear health and safety objectives".
The guide1 stresses the need for cooperation and advocates an active role for safety representatives and employees at all levels, although it warns this may lead to conflict over what constitutes safe and healthy working. "Managers," it says, should "take full responsibility for controlling factors that could lead to ill health, injury or loss". As such, organisations "need to anticipate such conflict by supporting the activities of supervisors and managers with procedures that establish when and how specialist advice can be obtained to resolve problems and disputes". But within the UK labour movement, the feeling is growing that control of the process for resolving health and safety issues should be shared more equally between management and the workforce.
At present, there is not much that a trade-union appointed safety representative can do to resolve a perceived health and safety issue, other than to continue to pressurise or consult with management. A complaint to the enforcing authority must compete for an inspector's time, against a background of failure to meet targets for investigating complaints and with no guarantee of an outcome. One alternative is the use of a collective disputes procedure, but this is likely to be time-consuming and cumbersome. "Representatives of employee safety", who are not union-appointed, have even fewer rights and, in the event of a dispute with their employer, do not have the support that is, potentially, offered by a union.
AUSTRALIAN PINS
As a result, unions in the UK are starting to call on the Government to introduce a notice system like the one used by Australian safety representatives.
The policy approach to occupational health and safety in Australia has been adapted from the UK model. Each of the nine jurisdictions - the federal (Commonwealth), state and territory governments - has independent primary health and safety legislation based largely on the concepts set out in the Robens Report and similar to that in the UK, with their own enforcing authorities and compulsory workplace health insurance schemes. All jurisdictions afford employees "consultation" rights - including the right to inspect the workplace - similar to those in the Safety Representatives and Safety Committees Regulations 1977. But some - Victoria, South Australia, the Australian Capital Territory and the Commonwealth government, which has health and safety legislation covering federal government employees - have introduced legislation that goes further. It allows a health and safety representative (HSR) to serve a legal notice - a provisional improvement notice (PIN) - on a person (usually an employer) who they believe is breaching health and safety legislation. The notice requires the breach to be remedied within a specified period of time; failing this, the enforcement agency adjudicates in disputes by confirming, varying or cancelling the notice.
The legislation gives equal rights to union and non-union HSRs, elected from the group of employees they represent, who must undergo training to an accredited standard, and who can be disqualified from office if they abuse their powers.
PINS in practice
It is difficult to judge how well this notice system works; any objective discussion is hampered by the lack of sufficient statistical information; and the available information is based on anecdotal evidence of PINs in use. There are few records available on the PINs served; some unions ask HSRs to send them copies of the notice, but these are not necessarily collated, nor is there a requirement to inform the enforcing authority that a PIN has been issued. It is unlikely that authorities would welcome an additional administrative burden for the sake of compiling statistics on notices with which, on the basis of unverified evidence, people usually comply.
In 1985, Victoria was the first Australian state to introduce PINs. In its guide to using PINs2, The Victorian Trades Hall Council (VTHC), the Victorian Branch of the Australian Council of Trade Unions, says that:
The assertion that four in five PINs are affirmed by the enforcement agency - the Victorian WorkCover Authority - is not borne out by the authority's figures. These show that in the period July 1990 to June 1993, 47% of appealed PINs were cancelled.3 The latest figures, July 1996 to June 1997,4 show that 50% of appealed PINs were cancelled.
The VTHC suggests that a substantial proportion of those PINs that are cancelled have technical errors - ie the notice is not completed correctly. But the council points out that inspectors can serve their own improvement notices for a breach of the legislation even if the HSR's PIN is cancelled, and it says that where a notice is cancelled on a technicality the HSR should ask the inspector to do this. It also notes that in most cases where a PIN is neither complied with nor appealed, there is no follow-up by the HSR. The VTHC offers no explanation, but it may indicate a lack of support from the HSR's union and highlight the need for good training. Where notices are ignored, the VTHC says the HSR should require an inspector to attend the workplace and ask that the inspector initiate a prosecution for failure to comply with the PIN and take action to rectify the health and safety problem.
It is understandable, the VTHC says, that HSRs may be reluctant to issue a PIN, both because it is a legal document and because it may be cancelled by the enforcing authority. Nevertheless, it encourages HSRs to issue PINs in appropriate circumstances.
Unions back system
Individual trade unions also support and encourage the use of PINs, although their experience is that they are not served frequently.
A spokeswoman for the 250,000-strong Community and Public Sector Union (CPSU), which represents federal government employees, told HSB: "We have found the PIN system very good, if the HSR is appropriately trained. The legislation ensures that unions have the power to force matters to be fixed, and this means management knows it cannot be sloppy about occupational health and safety. The PIN system means that management and staff meet on equal ground for once."
She added: "We don't use a lot of PINs in the Commonwealth [the jurisdiction covering employees of the federal government]. They are mainly used when refurbishment is occurring, in relation to fire safety and in relation to air conditioners. We have had a lot of problems with Legionnaires' Disease, and employers not paying to have air conditioning systems cleaned properly." The CPSU has no overall register of the details of PINs issued by its HSRs.
Deborah Vallance, occupational health and safety officer of the 60,000-member Australian Manufacturing Workers' Union (AMWU), told HSB that she was notified of the use of a PIN about 10 times a year. "Most PINs are settled between the parties, the level of notification to us is indicative of the lack of need for outside help."
The AMWU recently asked HSRs who had completed training three months previously if they had used a PIN: 5% said they had and 3% had threatened to do so. None of these cases were notified to the AMWU and all were resolved without involving the enforcement agency. Ms Vallance said: "A PIN is in-between talking and involving an outside agency; the threat of the outside agency is there, but it does not have to be involved and that suits the employers as well as the employees.
"It's a way the HSR can signal to the employer that they're not just looking for an easy life, or trying to pick a fight, but are serious about the health and safety issues involved and want to resolve it within the organisation. It gives people the feeling there is something they can do when they've asked 10 times and they're not getting anywhere - it's used to indicate a level of frustration.
"I know of one HSR who had the top part of the PIN - the name and address of the employer - written out for two years, but never actually used it. She would say, 'Look, if we don't sort this out I'm going to fill in the rest.'" Ms Vallance added that it is very difficult to say what percentage of PINs are appealed, but that it is a small minority.
Notice is last resort
Employers believe the system has improved as it has developed. The Australian Industry Group (AIG), formerly the Australian Chamber of Manufacturers, is the largest direct-membership employers' association in the country. Sandra Cowell, the AIG's national occupational health and safety manager, told HSB that decreasing numbers of PINs have been served as time has gone by: "When the [Victorian] legislation came out in 1985 there was an absolute rush on PIN notices. Since then the legislation has been altered so that before serving a PIN you have to speak to someone on site about the problem, and that has changed things."
In 1990, Victoria introduced Regulations establishing a procedure to encourage employers and employees to jointly tackle health and safety issues as they arise, although this does not preclude HSRs serving a PIN where there is a breach of the legislation.
Ms Cowell said: "We would prefer that people followed an agreed procedure for resolving health and safety issues. At the end of the procedure there's a PIN, but all the mechanisms within the workplace should be used first, including consultation between the HSR, the supervisor, the manager of the site, the employer and the safety committee."
She added: "From an employer's perspective, a PIN notice indicates a breakdown in communications; if you have good workplace consultative mechanisms, there is no need for a PIN notice. And while the legislation is there and an HSR can issue a notice, if an inspector comes in, they will ask: 'Why have you issued this PIN when you have an agreed procedure to resolve this issue?' At the end of the day we try to discourage confrontation."
An overall view comes from the Commonwealth Government's National Occupational Health and Safety Commission (NOHSC), which was set up by the Commonwealth Government to coordinate and support efforts in the jurisdictions to improve prevention and develop national standards and codes of practice. In 1994, the NOHSC submitted a report to the Government on occupational health and safety arrangements in Australia.5 This concludes that "the minimum requirements if workplace consultation is to be in any way effective" are that HSRs have:
The NOHSC notes that some research has made a distinction between "consultation" and "control" and argues that, for participation to be effective, participative arrangements must afford workers or their representatives some measure of control over health and safety decisions. But the NOHSC report makes no recommendations as to what further rights, if any, an HSR should have.
Where HSRs' rights do extend beyond consultation, the report notes that fears that HSRs would abuse the PINs system appeared, on the basis of the Victorian experience, to be unfounded. Research cited suggests that, if the appropriate dispute resolution procedures are followed by all parties, the potential for the misuse of the HSRs' powers is minimal.
The powers granted to HSRs by PIN-type legislation are balanced by a mechanism allowing an employer to apply to have an HSR disqualified from holding the office if these powers are abused (see box opposite). Applications for disqualification are rare: Deborah Vallance, of the AMWU, says she knows of three occasions when the procedure had been initiated, but that the actions had been prompted by wider industrial relations issues and had all been resolved before a formal hearing.
Pushing PINs in the UK
Demands for the introduction of a PINs system in the UK are a measure of frustration at a perceived lack of enforcement and failure of employers to listen to safety representatives (see box on p.22). Calls for the introduction of PINs have been led by the London Hazards Centre, which provides independent health and safety advice to workplace and community groups and health and safety representatives. A spokesperson told HSB: "We know of many cases where safety reps have legitimately raised issues and employers have disregarded them, or where they have failed to consult on issues, and it's a long process for safety reps to bring pressure to bear or to negotiate to get their concerns dealt with. PINs provide a better balance of power between employers and employees."
Interest in the Australian system has spread to individual trade unions in the UK. In June, the annual general meeting of the National Union of Rail, Maritime and Transport Workers (RMT) called on the Government "to tackle the serious lack of health and safety enforcement in the workplace" and instructed its leadership to campaign for the introduction of PINs. The TUC now supports the idea, having adopted a motion on PINs at this year's congress. The TUC's stated position is that the law should be changed "to allow unions or their representatives to serve PINs where employers have refused to comply with their legal responsibilities."6
UK employers' organisations contacted by HSB are aware of the interest in PINs and, while not condemning the idea out of hand, are reserving judgment.
A CBI spokesperson said: "We are aware of the rumours that a proposal of this sort may come forward, but we are not able to comment until there is a proposal and we have the opportunity to formally consult with our members." Paul Reeve, head of health, safety and environment at the Engineering Employers' Federation told HSB: "Giving people power just for its own sake is not something we would welcome. But if this appears likely to be a genuine contribution to improved health and safety performance in the workplace, then we would need to consider the implications. We are happy to enter into an informed debate about PINs and any associated proposals."
HSE reviews the situation
The use of PINs will be part of a wider debate on workplace representation that is about to take place. Ministers have written to the HSC asking for its views on the role and function of safety representatives. An HSE spokesperson told HSB that the HSE was in the process of drawing up options for carrying out a review and that the HSC would consider these options in the near future. The review will include a public consultation exercise on the issues and HSC-commissioned research into the impact of the statutory provisions for consultation and representation. The HSE is aware of the interest in PINs and is seeking information on how the system operates in Australia but, in advance of the review, officials are not prepared to discuss if or how PINs might work in the UK.
It is possible that PINs could provide a way for the enforcing authorities to satisfy the demands of health and safety activists and the Government at the same time. In an interview with HSB at the beginning of this year, Jenny Bacon, the HSE's Director General, said that as a result of the change in Government the HSE would be putting more emphasis on encouraging workers to "bring forward things that are concerning them", promoting the value of safety representatives and "giving unrepresented workers the opportunity to raise their concerns and get them looked at". Her message to employees was "Look: you have got a role in the workplace and a role in safeguarding your own safety. If you're worried, get onto us and we will come and investigate."
In practice, Jenny Bacon's invitation may add to the HSE's difficulties. Between 1994/95 and 1995/96, the percentage of complaints about hazards investigated by the HSE's Field Operations Division fell from 87% to 83%. The target for 1996/97 was 87%, but only 61% was achieved because the HSE received 50% more complaints than were forecast. The target for 1997/98 was 86%, but only 74% was achieved, again because, while the "volume of investigations continued to be well on target", the number of complaints was greater than that anticipated.7 If the level of reactive visits is to increase, it is likely resources would have to be moved from other areas, such as planned inspections, although the HSE is conducting experiments to try to make complaint-handling more effective. Detailed analysis of local authority-enforced sectors is not available, but if there has been a similar increase in the volume of complaints, then it is probable that the proportion being responded to has also fallen as the number of reactive visits decreased over the same period.8
An attraction of the PINs system for safety representatives is that it gives a formal structure to the process of registering a complaint with an employer, and ultimately the enforcing authority, and on the surface this might seem to compound the enforcing authorities' problems further. But, in practice, on the basis of Australian experience, PINs may not involve the enforcing authorities in significantly more work because the majority of complaints are resolved within the workplace. In 1996/97, Victorian WorkCover Authority inspectors:
This would suggest that, basically, one visit in 700 might involve dealing with a PIN.
Effective workplace representation
One of the questions for the HSC to consider in its review is whether or not PINs have the potential to increase the effectiveness of workplace representation. The NOHSC's 1994 report on occupational health and safety arrangements in Australia cites research into the effectiveness of HSRs by Professor Denis Else, now NOHSC chair, in which he says that the most beneficial aspect of the role of the HSR for Australian industry is as a "robust questioner" of the adequacy of arrangements for health and safety. This involves, the report suggests, seeing that health and safety measures are implemented, "not in the sense of doing management's job for it, but rather of ensuring that it actually does its job, and of helping it find the most effective way of doing so".
The report concludes: "It is the robust questioner role that offers workplaces the greatest potential to effect occupational health and safety changes in the workplace, thereby reducing compliance and enforcement costs as solutions to health and safety problems are negotiated on the shopfloor, avoiding unnecessary delay, expense and intervention by the inspectorate."
The PINs system enables this questioning by safety representatives to reach a conclusion when dialogue does not produce agreement. The service of the notice demands a response to the charge that health and safety measures are ineffective - either action to remedy a situation or a formal rebuttal that will need to be defended to a third party. The option of suggesting in the notice ways of correcting the situation enables safety representatives to use their own knowledge to put forward solutions to problems and increases the strength of their argument if called upon to justify the requirements of the notice.
But the idea that PINs could be a "big stick" that safety representatives can beat employers with may be illusory. Broad failings in health and safety issues will not be resolved by the service of a notice that has to define a specific breach of the legislation, although it would be satisfying for safety representatives to feel that they have a means of forcing management to pay attention. There may also be implications for the training of safety representatives and their knowledge of the legislation; the system would be devalued if PINs were frequently served that interpreted the legislation incorrectly and were subsequently cancelled.
PINS in context
It is difficult to assess what the overall impact of PINs might be on UK health and safety, particularly without knowing what proportion of requests from health and safety representatives for intervention by the enforcing authorities do not produce a resolution of specific issues. Experience from Australia may help an assessment, but it should be borne in mind that PINs in Australia are part of a system of workplace representation that is different from that in the UK in a number of ways - and, indeed, part of a different industrial relations culture - and it may be that other aspects of the Australian system would also need to be introduced to make the system useful here: for example, the powers to disqualify safety representatives and to stop the job. While the right of employees to stop work in this situation is implicitly expressed in reg. 7 of the Management of Health and Safety at Work Regulations 1992, it would be inconsistent to give those representing employees on health and safety the power to take action on risks that are not immediate, but not give them the right to act in situations of serious and immediate danger.
Research from Australia does show there is a strong association between union organisation in the workplace and a comprehensive approach to occupational health and safety management; and that where there is no union presence, health and safety activity is less. This mirrors findings in the UK. PINs may help to improve health and safety where there is a dialogue with a union, but these workplaces are already likely to have better health and safety performance. If PINs are to have a wider impact on UK health and safety, there will need to be more than the current 40% of employees with access to health and safety representatives who have training and support. In this respect, the outcome of the Department of Trade and Industry White Paper Fairness at Work, which sets out proposals that open the possibility of wider trade union representation, will have an important influence on the broader success of any PINs system in the UK. While it is right that the HSC's review should consider how to empower safety representatives, it will also need to look at the limitations of the dual system of representation that operates now.
UK safety representatives' rights
The need for workforce participation in the effective control of health and safety has been recognised in UK law for a quarter of a century, with employees' rights to be consulted by employers on health and safety issues formalised in the HSW Act 1974. One of the aims of the Robens Report was to make workers active in procedures for accident prevention in their workplace. Now, with the benefit of more than 20 years' experience, safety representatives are saying that they want more control.
The UK system of consultation and representation is set out in s.2 of the HSW Act, and in the Safety Representatives and Safety Committees Regulations (SRSCR) 1977 (as amended) and the Health and Safety (Consultation with Employees) Regulations (HSCER) 1996.
Where an employer recognises a trade union and that trade union has appointed, or is about to appoint, safety representatives under the SRSCR 1977, the employer must consult those representatives on matters affecting the employees they represent. Members of these groups of employees may include people who are not members of that trade union.
Under the SRSCR 1977, the roles of trade union safety representatives are:
Any employees not in groups covered by trade union safety representatives must be consulted by their employers under the HSCER 1996. The employer can choose to consult them either directly or through elected representatives.
The functions of "representatives of employee safety" under the HSCER 1996 are:
The Offshore Installations (Safety Representatives & Safety Committee) Regulations 1989, the Mines and Quarries Act 1954, and the Construction (Design and Management) Regulations 1994 also contain consultative provisions.
How PINS work
The PIN procedure is similar in all the jurisdictions that have adopted its use. The model that follows is based on the Occupational Health and Safety (Commonwealth Employment) Act 1991, which covers employees of the federal government.
Workplace health and safety representatives in Australia
In those Australian jurisdictions that operate a PIN system, the power to serve notices is one element of a legislative framework relating to health and safety representatives (HSRs) that is typically made up as follows:
Designated work groups
Health and safety representatives
Training of HSRs
Powers of HSRs
- inspect the whole or any part of the workplace if there has been, or is the threat of, an accident or dangerous occurrence;
- ask the enforcing authority to conduct an investigation;
- represent the work group in consultations with the employer concerning the development, implementation and review of measures to ensure the health and safety at work of the group;
- investigate health and safety complaints from the group;
- obtain relevant information; and
- issue provisional improvement notices.
Duties of employers in relation to HSRs
- consult with the representative on the health and safety implications of changes in the workplace;
- provide the HSR with access to information;
- permit the HSR to take such time off work, without loss of remuneration or other entitlements, necessary to perform their function; and
- provide the HSR with access to appropriate facilities.
Disqualification of HSRs
- the HSR's actions were taken with the intention of causing harm to the employer or to an undertaking of the employer, and/or were unreasonable, capricious or other than for the purpose for which the power was conferred; or
- the HSR has disclosed to a third party information obtained from the employer for a purpose unconnected with health and safety.
Emergency procedures
- tell the employees' supervisor of the threat; or
- if no supervisor can be contacted immediately, direct the employees to stop the work, in a safe manner, and as soon as is practicable inform a supervisor that the direction has been given.
Issue Resolution Regulations
The Occupational Health and Safety (Issue Resolution) Regulations 1989 set down a procedure for resolving health and safety issues. It covers all Victorian workplaces (except Commonwealth Government workplaces) where an agreed procedure for resolving health and safety issues has not been negotiated.
Under the Regulations:
TUC survey of safety representatives
A recent TUC survey of safety representatives (see p.5) found that:
It also found that:
The TUC concludes that, as risk assessment is at the forefront of most current health and safety legislation in the UK, these results point to widespread breaches of the law.
But the survey suggests that these failings are unlikely to be picked up during inspections by the enforcing authorities because, according to the safety representatives responding to the survey:
Source: TUC, see footnote 6.
1 "Successful health and safety management", HSG65, HSE Books, ISBN 0 71761276 7, £12.50.
2 "PIN them down: a VTHC guide to the use of provisional improvement notices in improving workplace health and safety", VTHC, Box 93 Trades Hall, 54 Victoria Street, Carlton South 3053, Australia, tel: 00 61 3 9662 3511, fax: 00 61 3 9663 2127.
3 "A statistical profile of occupational health and safety in Victoria Occupational Health and Safety Authority", 1993, Victorian WorkCover Authority, Level 3, 485 La Trobe Street, Melbourne 3000, Australia, tel: 00 61 3 9641 1555, fax: 00 61 3 9641 1222.
4 "1996/97 statistical report", Victorian WorkCover Authority, as above.
5 "WorkSafe Australia submission: Industry Commission inquiry into OHS arrangements in Australia", 1994, the Director, National Forum and Information, NOHSC, GPO Box 58, Sydney NSW 2001, Australia, tel: 00 61 2 9577 9511, fax: 00 61 2 9577 9202.
6 "1998 TUC survey of safety reps", P Kirby, TUC, Congress House, Great Russell Street, London WC1B 3LS, tel: 0171 636 4030, fax: 0171 636 0632, price £20.
7 "Annual report and accounts for 1996/97", HSC, ISBN 0 7176 1454 9, HSE Books, £16.50 and "Annual report and accounts for 1997/98", HSC, ISBN 0 7176 1638 X, HSE Books, £16.50.
8 "HELA 1998: health and safety in the service industries", MISC136, HSE Books, free.