Excerpted from Vogel 1994

Danish industrial relations provide an example of a country with a number of institutions that play a role in relation to health and safety. The main features are:

COLLECTIVE BARGAINING: Negotiation of agreements by which trade unions and employers fix wages, conditions of work, etc. Pertinent highlights are:

Shop stewards who are elected by workers under collective bargaining agreements; enjoy statutory protection against dismissal; serve as channel between workers and management on working conditions.

Collective Agreement on Cooperation and Cooperation Committees provides for information to be given to individuals and groups of workers in advance so they can make their views known before a decision is taken and for the establishment of cooperation committees.

Cooperation committees must be set up in all firms employing more than 35 workers (25 in the public service). Joint committees to promote cooperation in day-to-day operations; they must be consulted on the introduction of new technologies and the organization of production; some co-determination rights on working conditions, training and personal data.

National collective agreement on industrial disputes (of 1910) gives workers a right (rarely exercised) to stop work if considerations of “life, welfare or honour” make this absolutely necessary. Other collective agreements contain provisions on training and trade unions also provide it.

FRAMEWORK LAW: The Working Environment Act creates “the basis on which the undertakings themselves will be able to solve questions relating to safety and health under the guidance of the employers’ and workers’ organizations and under the guidance and supervision of the Labour Inspection Service” (Sec. 1(b)). The Act establishes a complete system from the plant to the national level to permit worker participation:

Safety representatives are elected representatives required in firms employing at least ten workers; they enjoy the same protection against dismissal and retaliation as shop stewards and are entitled to reimbursement of official expenses.

Safety groups: The safety representative and the department supervisor form the safety group. Its functions are to:

  • monitor working conditions
  • inspect equipment, tools, materials
  • report any risk which cannot be avoided immediately
  • halt production where necessary to avert an imminent serious danger
  • ensure that work is performed safely and proper instructions are given
  • investigate industrial accidents and occupational diseases
  • participate in prevention activities
  • cooperate with the occupational health service
  • act as link between workers and the safety committee.

 

Members of the safety group are entitled to training and to necessary information.

Safety Committees are required in firms employing at least 20 workers. In firms with more than two safety groups, the safety committees consist of workers elected from among safety representatives, two supervisor members and an employer’s representative.

The functions are:

  • planning, directing and coordinating health and safety activities
  • being consulted on these matters
  • cooperating with other companies engaged in work at the same workplace
  • cooperating with the company’s occupational health service
  • supervising the activity of safety groups
  • making recommendations on prevention of accidents and diseases.

 

WORKING ENVIRONMENT COUNCIL involves employers’ and workers’ organizations in the definition and application of preventive policy at the national level. Composition: 11 representatives of employee organizations representing manual and non-manual workers, one for supervisors, ten of employers’ organizations, plus an occupational medical practitioner, a technical expert and non-voting governmental representatives. Functions:

  • is consulted on drafting legislation and regulations
  • may on its own initiative take up a health and safety matter
  • submits annual recommendations on working environment policy
  • coordinates the activities of Trade Safety Councils
  • supervises the activity of the Working Environment Fund.

 

WORKING ENVIRONMENT FUND is managed by a tripartite board. The Fund has mainly information and training duties, but also finances research programmes.

TRADE SAFETY COUNCILS: Twelve Trade Safety Councils examine the problems of their trade or industry and advise undertakings. They are also consulted on draft legislation. Equal representation of employers’ and supervisors’ organizations on the one hand and workers’ organizations on the other hand.

GOVERNMENTAL AUTHORITIES: In addition, the Ministry of Labour, the Labour Inspection Service and within it, the Danish Institute of the Working Environment, provide various types of services and advice in the field of occupational safety and health. Collective industrial disputes are heard by the Labour Courts.


The agreement between Bethlehem Steel and the United Steelworkers of America is typical of company-wide agreements in large unionized manufacturing enterprises in the United States. Steel industry labour agreements have contained safety and health articles for more than 50 years. Many provisions negotiated in the past gave workers and the union rights that were later guaranteed by law. Despite this redundancy, the provisions still appear in the contract as a hedge against changes in the law, and to allow the union the option of taking violations to impartial arbitration rather than the courts.

The Bethlehem agreement runs from 1 August 1993 to 1 August 1999. It covers 17,000 workers in six plants. The full agreement is 275 pages long; 17 pages are devoted to safety and health.

Section 1 of the safety and health article pledges the company and the union to cooperate in the objective of eliminating accidents and health hazards. It obligates the company to provide safe and healthful workplaces, obey federal and state law, provide employees with the necessary protective equipment free of charge, provide chemical safety information to the union and inform workers of the hazards and controls for toxic substances. It grants the union’s central safety and health department the right to any information in the company’s possession that is “relevant and material” to an understanding of potential hazards. It requires the company to make air sampling tests and environmental investigations at the request of the union co-chairperson of the plant’s safety and health committee.

Section 2 sets up joint union-management safety and health committees at the plant and national levels, prescribes the rules under which they operate, mandates training for committee members, gives members of the committee access to all parts of the plant to facilitate the committee’s work and specifies the applicable rates of pay for committee members on committee business. The section also specifies how disputes over protective equipment are to be resolved, requires the company to notify the union of all potentially disabling accidents, sets up a system of joint accident investigation, requires the company to gather and supply to the union certain safety and health statistics, and establishes an extensive safety and health training programme for all employees.

Section 3 gives workers the right to remove themselves from work involving hazards beyond those “inherent in the operation” and provides an arbitration mechanism through which disputes over such work refusals can be resolved. Under this provision, a worker cannot be disciplined for acting in good faith and on the basis of objective evidence, even if a subsequent investigation shows that the hazard did not in fact exist.

Section 4 specifies that the committee’s role is advisory, and that committee members and officers of the union acting in their official capacity are not to be held liable for injuries or illnesses.

Section 5 states that alcoholism and drug abuse are treatable conditions, and sets up a programme of rehabilitation.

Section 6 establishes an extensive programme for controlling carbon monoxide, a serious hazard in primary steel production.

Section 7 provides workers with vouchers for the purchase of safety shoes.

Section 8 requires the company to keep individual medical records confidential except in certain limited circumstances. However, workers have access to their own medical records, and may release them to the union or to a personal physician. In addition, physicians for the company are required to notify workers of adverse medical findings.

Section 9 establishes a medical surveillance programme.

Section 10 establishes a programme for investigating and controlling the hazards of video display terminals.

Section 11 establishes full-time safety representatives in each plant, chosen by the union but paid by the company.

In addition, an appendix to the agreement commits the company and the union to review each plant’s safety programme for mobile equipment operating on rails. (Fixed rail equipment is the leading cause of death by traumatic injury in the American steel industry.)

 

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Types of Disputes

An individual dispute arises from a disagreement between an individual worker and his or her employer over an aspect of their employment relationship. An individual dispute exemplifies a “rights dispute”, that is a dispute over the application of the terms of legislation or an existing agreement, whether a collective bargaining agreement or an individual written or oral contract of employment. Thus there could be a dispute over the amount of wages paid or their manner of payment, work schedules, working conditions, entitlement to leave and so forth. In the field of health and safety an individual dispute may arise in relation to the use of personal protective equipment, extra payments for carrying out dangerous work (hazard pay – a practice now frowned upon in favour of eliminating hazards), refusal to perform work that poses an imminent danger and observance of health and safety rules.

An individual dispute may be initiated by a worker complaining to vindicate what he or she believes to be a right, or reacting to employer-imposed disciplinary action or dismissal. If a dispute involves similar claims on behalf of individual workers, or if an individual dispute raises a point of important principle for a trade union, an individual dispute can also lead to collective action and, where new rights are then sought, to an interests dispute. For instance, a single worker who refuses to perform work that he or she thinks is too hazardous may be disciplined or even dismissed by the employer; if the trade union sees that this work poses a continuing danger for other workers, it may take up the issue with collective action, including a work stoppage (i.e., a lawful strike or a wildcat strike). In this way, an individual dispute may lead to and become a collective dispute. Similarly, the union may see a point of principle which, if not recognized, will lead it to make new demands, thus giving rise to an interests dispute in future negotiations.

The resolution of an individual dispute will depend largely upon three factors: (1) the extent of legal protection afforded to workers in a particular country; (2) whether or not a worker falls under the umbrella of a collective agreement; and (3) the ease with which a worker can have enforcement of his or her rights, whether they are afforded by law or collective agreement.

Disputes over Victimization and Dismissal

In most countries, however, certain rights enjoyed by an individual will be the same no matter what the length of his or her engagement or the size of the enterprise. These normally include protection against victimization for trade union activity or for reporting to the authorities an employer’s alleged infringement of the law, called “whistle-blower” protection. In most countries, the law affords protection to all workers against discrimination on the basis of race or sex (including pregnancy) and, in many cases, religion, political opinion, national extraction or social origin, marital status and family responsibilities. Those grounds are all listed as improper bases for dismissal by the ILO Termination of Employment Convention, 1982 (No. 158), which also adds to them: union membership and participation in union activities; seeking office as, or acting or having acted as, a workers’ representative; and filing a complaint, or participating in proceedings against an employer involving alleged violation of laws or regulations, or having recourse to administrative authorities. These last three are clearly of particular relevance to the protection of workers’ rights in the field of safety and health. The ILO Committee of Experts on the Application of Conventions and Recommendations recently highlighted the seriousness of retaliatory measures, in particular in the form of termination of employment, taken against a worker who reports the employer’s failure to apply occupational safety and health rules while the workers’ physical integrity, health and even lives may be at risk. When fundamental rights or the physical integrity of lives of workers are at stake, it would be desirable for conditions as to proof (reversal of the burden of proof) and measures of redress (reinstatement) to be such as to allow the worker to report illegal practices without fearing reprisals (ILO 1995c).

However, when it comes to retention of employment in practice, two major determinants of an individual’s employment rights are the enforcement mechanism available to vindicate these rights and the type of contract of employment under which he or she has been engaged. The longer the term of the engagement, generally the stronger the protection. Thus a worker still in the probationary period (in most countries a matter of a few months) will have little or no protection from dismissal. The same is true for a casual worker (i.e., a person engaged on a day-to-day basis) or a seasonal worker (i.e., one employed for a limited, recurring period). A worker with a contract of employment for a fixed term will have protection during the period covered by the contract, but will normally not have a right to its renewal. Workers engaged on contracts that are without limit of time are in the most secure position, but they may still be dismissed for specified reasons or more generally for what is often termed “gross misconduct”. Their jobs may also be eliminated in the course of company restructuring. With increasing pressures for greater flexibility in the labour market, the recent trend in legislation governing contracts of employment has been to make it easier for employers to “shed labour” in the restructuring process. In addition, a number of new forms of work relationships have arisen outside the traditional one of employer/employee. Without employee status, the individual concerned may have little legal protection.

Disputes over a Worker’s Refusal to Perform Hazardous Work

An individual dispute may often arise around the question of an employee’s refusal to perform work that he or she believes to pose an imminent hazard; the belief must be that of a reasonable person and/or be held in good faith. In the United States the reasonable belief must be that performance of the work constitutes an imminent danger of death or serious physical injury. In some countries, this right is negotiated in collective bargaining; in others, it exists by virtue of legislation or court interpretations. Unfortunately, this important right is not yet universally recognized, despite its inclusion as a basic principle in Article 13 of the ILO Occupational Health and Safety Convention, 1981 (No. 155). And even where the right exists in law, employees may fear retaliation or job loss for exercising it, particularly where they do not enjoy the backing of a trade union or an effective labour inspectorate.

The right to refuse such work is normally accompanied by a duty to inform the employer immediately of the situation; sometimes the joint safety committee must be informed as well. Neither the worker who refused nor another in his or her place should be (re)assigned to the work until the problem has been resolved. If this happens nonetheless and a worker is injured, the law may (as in France and Venezuela) subject the employer to severe civil and criminal penalties. In Canada, both the worker who refused the work and the health and safety representative have rights to be present while the employer undertakes an on-the-spot investigation. If the employee still refuses to do the work after the employer has taken remedial measures, an expedited government inspection can be triggered; until that has led to a decision, the employer cannot require the worker to do that work and is supposed to provide him or her with an alternative assignment to avoid earnings loss. A worker designated to replace the one who refused must be advised of the other’s refusal.

Recognition of a right to refuse hazardous work is an important exception to the general rule that the employer is the one who assigns work and that an employee is not to abandon his or her post or refuse to carry out instructions. Its conceptual justification lies in the urgency of the situation and the presence of interests of public order to save life (Bousiges 1991; Renaud and St. Jacques 1986).

Participation in a Strike

Another way in which an individual dispute can arise in connection with a health and safety issue is the participation of an individual in strike action to protest unsafe working conditions. His or her fate will depend on whether the work stoppage was lawful or unlawful and the extent to which the right to strike is guaranteed in the particular circumstances. This will involve not only its status as a collective right, but how the legal system views the employee’s withdrawal of labour. In many countries, going on strike constitutes a breach of the employment contract on the part of the employee and whether this will be forgiven or not may well be influenced by the overall power of his or her trade union vis-à-vis the employer and possibly the government. A worker who has a strong theoretical right to strike but who can be temporarily or permanently replaced will be reluctant to exercise that right for fear of job loss. In other countries, engaging in a lawful strike is explicitly made one of the grounds on which a worker’s employment may not be brought to an end (Finland, France).

Means of Dispute Resolution

The ways in which an individual dispute can be resolved are in general the same as those available for the resolution of collective disputes. However, different labour relations systems offer varying approaches. Some countries (e.g., Germany, Israel, Lesotho and Namibia) provide labour courts for the resolution of both collective and individual disputes. The labour courts in Denmark and Norway hear only collective disputes; individual workers’ claims must go through the regular civil courts. In other countries, such as France and the United Kingdom, special machinery is reserved for disputes between individual workers and their employers. In the United States, individuals have rights to bring actions claiming unlawfùl employment discrimination before bodies that are distinct from those before which unfair labour practice claims are pressed. However, in non-union situations, employer mandated arbitration for individual disputes is enjoying popularity despite criticism from labour practitioners. Where an individual is covered by a collective bargaining agreement, his or her grievance can be pursued by the trade union under that agreement, which usually refers disputes to voluntary arbitration. An individual’s ability to win a claim may ofien depend on his or her access to procedures that are fair, affordable and rapid and whether he or she has the support of a trade union or an able labour inspectorate.

 

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In recent years, legislation, international instruments and general literature on occupational health and safety have highlighted the importance of information, consultation and cooperation between workers and employers. The focus has been on averting disputes rather than their settlement. Some contend that in the area of occupational safety and health, the interests of workers and employers converge and thus disputes can be more easily avoided. Yet disputes still arise.

The employment relationship is subject to diverging interests and priorities as well as changing concerns, including with respect to health and safety considerations. The potential thus exists for disagreement or conflicts which may harden into labour disputes. Although there may be a consensus regarding the importance of health and safety issues in general, disagreement may arise regarding the need for specific measures or their implementation, particularly where extra time or money is involved or production will be decreased. When dealing with health and safety, there are few absolutes: what is an “acceptable” risk, for instance, is relative. Where to draw the line on a number of issues is open to debate, particularly since complicated situations may have to be addressed with limited technical assistance and a lack of conclusive scientific evidence. Also, perceptions in this area are continually shifting as a result of the use of new technology, medical and scientific research, changing societal attitudes and so on. The potential for diverging views and dispute in this area is, therefore, considerable.

In all areas of labour relations, but perhaps particularly with respect to health and safety concerns, the equitable and efficient resolution of disputes is essential. Disputes may be resolved at an early stage as a result of one side to the dispute making the other aware of relevant facts. This may be done formally or informally. Disputes may also be dealt with through internal complaints procedures, usually involving progressively higher levels of management. Conciliation or mediation may be needed to facilitate the resolution of the dispute, or a solution may be imposed by a court or an arbitrator. In the health and safety area, the labour inspector may also play an important role in dispute settlement. Some disputes may lead to work stoppages, which in the case of health and safety issues may or may not be considered a strike under the law.

Categories of Disputes

Within the purview of health and safety considerations, a variety of types of dispute may arise. Although the categories may not always be obvious, giving the dispute a particular definition is often important for determining the mechanisms for settlement that will be applied. Disputes in general can be classified as individual or collective, depending on who initiates, or has the authority to initiate, the dispute. Generally, an individual dispute is one involving an individual worker and a collective dispute involves a group of workers, usually represented by a trade union. A further distinction is often made between rights disputes and interest disputes. A rights dispute (also called a legal dispute) involves the application or interpretation of rights under law or an existing provision set out in a contract of employment or a collective agreement. An interest dispute, on the other hand, is a dispute regarding the creation of rights or obligations or the modification of those already in existence. Interest disputes primarily arise in relation to collective bargaining.

Sometimes defining a dispute as collective or individual will determine the resolution procedures; however, it is usually the interaction between the categories that is relevant – collective rights disputes, collective interest disputes and individual rights disputes are usually given distinct treatment. This article deals only with the first two categories, but it should be kept in mind that some stages in the process of collective disputes will coincide with those for individual claims.

Whether a dispute is considered to be collective or individual may depend on whether the law allows the trade union to raise a dispute on the issue in question. To obtain authority to negotiate over health and safety and other issues, in a number of countries a trade union needs to be registered with the public authorities or to be recognized as being representative of a given percentage of the employees concerned. In some countries, these prerequisites also apply with respect to the authority to raise rights disputes. In others, the employer must voluntarily agree to deal with the trade union before the trade union can act on behalf of the employees.

A trade union may be able to initiate procedures to settle a collective rights dispute where health and safety obligations affecting the workplace as a whole are at issue: for example, if there is a provision in the collective agreement or in legislation providing that noise levels are not to exceed a certain limit, particular precautions are to be taken with respect to machinery, or personal protective equipment is to be provided and the employer does not comply with these provisions. Collective rights disputes may also arise, for example, where the employer fails to consult with or provide information to the health and safety committee or representative as required by law or the collective agreement. Due to its inherently collective nature, an alleged breach of the collective agreement may in some countries be considered a collective dispute, particularly if it concerns the implementation of provisions of general applicability such as those on safety and health, even if in reality only one worker is immediately and directly affected by the employer’s breach. Breach of legal provisions may be considered collective where the trade union acts on behalf of all affected workers, where it is entitled to do so as a result of the breach.

Collective interest disputes over health and safety matters may also take many forms. Such disputes could arise out of negotiations between a trade union and an employer over the formation or responsibilities of a health and safety committee, the introduction of new technology, specific measures for dealing with hazardous materials, environmental control and so on. The negotiations may involve general statements of principle regarding health and safety or specific improvements or limits. Where the parties reach an impasse in the negotiations, dealing with the dispute is considered an extension of the freedom to bargain collectively. In the Collective Bargaining Convention, 1981 (No. 154), the ILO has noted the importance of setting up bodies and procedures for the settlement of labour disputes as part of the process of promoting collective bargaining (Article 5(2) (e)).

Grievance Procedures

The term grievance procedure is generally used to mean internal procedures set out in the collective agreement to resolve disputes regarding the application or interpretation of the collective agreement (rights disputes). Similar procedures are, however, often set up even in the absence of a union or collective agreement to address problems and complaints of workers, as they are seen to be a fairer and less costly means of dispute resolution than litigation (McCabe 1994). The collective agreement normally provides that the complaint is to be dealt with through a multi-stage procedure involving increasingly higher levels within the organization. For example, a dispute on a health and safety matter may go first to the immediate supervisor. If not resolved at the first stage, the supervisor and the health and safety representative may then undertake an investigation, the findings of which are submitted to a manager or perhaps the health and safety committee. If the dispute remains unresolved, a senior level of management may then intervene. There may be several stages which need to be exhausted before outside procedures are set in motion. The agreement may go on to provide for third party intervention in the form of inspection, conciliation and arbitration, which will be discussed in more detail below.

The Examination of Grievances Recommendation (No. 130), adopted by the ILO in 1967, underlines the importance of grievance procedures for rights disputes, whether individual or collective. It states that workers’ organizations or the representatives of workers in the undertaking should be associated with the employers in the establishment and implementation of the grievance procedures within the undertaking. Rapid, uncomplicated and informal procedures are urged. Where procedures within the undertaking are exhausted without a mutually acceptable resolution being reached, the Recommendation goes on to set out procedures for final settlement, including joint examination of the case by the employers’ and workers’ organizations, conciliation or arbitration and recourse to a labour court or other judicial authority.

Conciliation and Mediation

The collective agreement or law may require collective disputes to be submitted to conciliation or mediation before further dispute settlement procedures can be invoked. Even without being required to submit a dispute to conciliation, the parties may voluntarily ask a conciliator or mediator, an impartial third party, to assist them in reducing their differences and ultimately reaching an agreement. In some industrial relations systems, a distinction is made, at least in theory, between conciliation and mediation, though in practice the line is difficult to draw. The role of conciliators is to re-open the lines of communication, if they have been broken, to help the parties to find common ground so that an agreement can be reached and perhaps make findings of fact. The conciliator does not, however, present formal proposals to resolve the dispute (although in practice such a passive role is seldom adopted). A mediator, on the other hand, is expected to propose terms of settlement, though the parties remain free to accept or reject the proposals. In many countries there is no real distinction between conciliation and mediation, with both mediators and conciliators seeking to assist the parties to a dispute to find a solution, using the most appropriate tactics of the moment, sometimes remaining passive, sometimes putting forth proposals for settlement.

Conciliation is one of the most widely used and is considered to be one of the most effective procedures for the settlement of disputes over interests. In the process of collective bargaining, conciliation can be seen as the continuation of negotiations with the assistance of a neutral party. In a growing number of countries, conciliation is also used at the initial stages of settling rights disputes. The government may make conciliation services available or may set up an independent body to provide such services. In some countries, labour inspectors are involved in conciliation.

The ILO, through the adoption of the Voluntary Conciliation and Arbitration Recommendation, 1951 (No. 92), has advocated that free and expeditious voluntary conciliation machinery be “made available to assist in the prevention and settlement of industrial disputes between employers and workers” (Paras. 1 and 3). The role of conciliation in ensuring the effective exercise of the right to bargain collectively is reflected in the European Social Charter (10 October 1961, Article 6(3)).

Arbitration

Arbitration involves the intervention of a neutral third party who, though not a member of the established judiciary, is authorized to impose a decision. In several countries, virtually all rights disputes arising out of the application or interpretation of the collective agreement are dealt with through binding arbitration, sometimes following an obligatory and unsuccessful conciliation stage. Arbitration is available in many countries as a voluntary procedure, while in others it is compulsory. Where arbitration is imposed as a method of resolving disputes over interests it is usually limited to the public service or essential services. In some countries, however, particularly developing countries, arbitration of interest disputes is more generally applicable.

Arbitration is dealt with in the Voluntary Conciliation and Arbitration Recommendation, 1951 (No. 92). As with conciliation, the Recommendation concerns itself with disputes that are voluntarily submitted to arbitration and provides that in such cases the parties should abstain during the proceedings from striking or locking out and should accept the arbitration award. The voluntary nature of submission to arbitration is also stressed in the European Social Charter (ibid.). If one of the parties or public authorities can initiate arbitration proceedings, arbitration is considered to be compulsory. The ILO’s Committee of Experts on the Application of Conventions and Recommendations has stated that, in the case of interest disputes, compulsory arbitration is generally contrary to the principles of the Right to Organize and Collective Bargaining Convention, 1949 (No. 98), as it vitiates the autonomy of the bargaining parties (ILO 1994b). A final award binding on the parties concerned, if they have not voluntarily submitted a dispute to arbitration, may also be viewed as unreasonably limiting the right to strike. The Committee of Experts has stated that “such a prohibition seriously limits the means available to trade unions to further and defend the interests of their members, as well as their right to organize their activities and to formulate their programmes, and is not compatible with Article 3 of Convention No. 87 [the Freedom of Association and Protection of the Right to Organize Convention, 1948].” (ibid., para. 153.)

Labour Administration Authorities

The labour administration in most countries has a variety of responsibilities, of which one of the most important is inspecting work premises to ensure compliance with the laws on employment, in particular those on health and safety. Inspectors do not require a labour dispute in order to intervene. However, where a dispute alleges a violation of the law or agreement, they may play an important role in achieving its settlement.

In dispute settlement, labour administration authorities generally play a more active role in health and safety matters than in other areas. The role of the inspector in disputes may be defined in collective agreements or legislation involving health and safety, general labour law, workers’ compensation or a specific industry. In some countries, the health and safety representative or committee is entitled to lodge complaints with the labour inspector, or other public labour or health and safety officer, against the employer. The inspector may be requested to intervene where there is an allegation that health and safety regulations are not being observed. The labour administration authorities may also be required to intervene due to their competence under state workers’ compensation schemes.

The inspectors may have authority to issue improvement, prohibition or stop-work orders, levy fines or penalties or even initiate prosecutions. Civil or criminal proceedings may be available depending on the nature of the violation, the seriousness of the consequences, prior knowledge of the likely consequences and whether the violation has been repeated. An inspector’s decision can normally be reviewed on appeal to a higher public officer, a specialized labour or health and safety body or the court. Separate administrative and appeal mechanisms may exist for different industries (e.g., mining).

The Labour Inspection Recommendation (No. 81), adopted by the ILO in 1947, encourages collaboration between officials of the labour inspectorate and workers’ and employers’ representatives. European Union Framework Directive No. 89/391/EEC on Health and Safety adopted in 1989 provides that workers and their representatives are entitled to appeal to the authority responsible for health and safety protection at work if they are not satisfied that the measures taken by the employer will ensure safety and health at work. According to the Directive, workers’ representatives are to have the opportunity to submit their observations during inspection visits by the competent authority (Article 11(6)).

Regular and Labour Courts

Since rights disputes involve rights or obligations that are already in existence, the general principle underlying their settlement is that they are to be resolved ultimately by courts or arbitrators and not through industrial action, such as a strike. Some countries leave ordinary courts to deal with all disputes over rights, irrespective of their labour relations character. However, in many countries, labour courts (called in some countries “industrial courts”) or specialized tribunals will deal with rights disputes. They may deal with rights disputes generally or only certain types of disputes, such as claims of unjustified discipline or dismissal. The principal reason for having such specialized judicial bodies is the need for speedy, inexpensive and informal procedures and specialized capacity in labour matters. The delays and expenses involved in the ordinary court system are not considered acceptable when dealing with employment, which is an area of crucial importance to a person’s life and often involves a relationship that must continue even after the dispute is settled. Jurisdiction over collective rights disputes may be divided between the ordinary and the labour courts: for instance in some countries the only collective disputes that a labour court is competent to adjudicate are those arising out of an alleged breach of a collective agreement, leaving breaches of legal provisions to the regular courts.

Often representatives of workers and employers as well as an independent judge sit on labour courts or tribunals. Labour courts consisting of only workers’ and employers’ representatives also exist. This bipartite or tripartite composition is aimed at ensuring that the members have expertise in industrial relations matters and, therefore, that relevant issues will be canvassed and dealt with in light of practical realities. Such composition also assists in giving credibility and persuasiveness to the decision. The workers’ and employers’ representatives may have an equal voice in determining the outcome of the dispute or they may be entitled to act only in an advisory capacity. In other countries, judges unaffiliated to either side of industry resolve collective rights disputes.

In a few countries, labour courts deal both with collective rights disputes and interest disputes. As discussed above with respect to arbitration, where adjudication is compulsory for interest disputes, the voluntary nature of collective bargaining is undermined.

Work Stoppages

A concerted work stoppage may take place for a variety of reasons. Most commonly it is understood as a form of pressure on the employer to agree to terms and conditions once an impasse has been reached in the collective bargaining process. This is considered to be a strike in most countries and is normally viewed as a legitimate means of workers and their organizations to promote and protect their interests.

The right to strike is expressly recognized as a general right under the International Covenant on Economic, Social and Cultural Rights (16 December 1966, Article 8(1) (d)). The European Social Charter (supra, Article 6(4)) links the right to strike to the right to bargain collectively and states that workers and employers are to have the right to collective action in cases of conflicts of interest, subject to obligations arising out of the collective agreement. The Charter of the Organization of American States (30 April 1948, Article 43(c)) defines the right to strike as an integral element of freedom of association, along with the right to collective bargaining. The ILO’s Committee of Experts on the Application of Conventions and Recommendations and Governing Body Committee on Freedom of Association have recognized the right to strike as arising out of the general principles of freedom of association set out in the Freedom of Association and Right to Organize Convention, 1948 (No. 87), though the right to strike is not mentioned specifically in the text of the Convention. The Committee of Experts has stated that “a general prohibition of strikes constitutes a considerable restriction of the opportunities opened to trade unions for furthering and defending the interests of their members... and of the right of trade unions to organize their activities” (ILO 1994b, para. 147).

In some countries the right to strike is a right of a trade union and thus strikes not organized or authorized by the trade union are considered “unofficial” and unlawful. In other countries, however, the right to strike is a right of the individual, even though it is normally exercised by a group, in which case the distinction between “official” and “unofficial” strikes is of little significance.

Even where the right to strike is recognized in principle, certain categories of workers may be excluded from enjoying the right, such as members of the police or armed forces, or senior public servants. The right may also be subject to certain procedural limitations, such as requiring prior notice to be given or a ballot to be taken in support of the strike. In a number of countries, the parties are obliged to refrain from striking or locking out, either absolutely or on issues regulated in the agreement, while the collective agreement is in force. This “peace obligation” is often set out specifically in legislation or collective agreements, or may be implied through judicial interpretation. The right to strike in many countries is severely restricted, or even prohibited, in essential services. This restriction is permitted under ILO principles if the services to which it applies are limited to those the interruption of which would endanger the life, personal safety or health of the whole or part of the population. (ILO 1994b, para. 159.)

In the field of disputes over health and safety issues, a distinction must be made between those relating to negotiating for certain rights (for instance, determining the precise functions of a safety representative in the implementation of a general health and safety policy) and those relating to situations of imminent danger. Where a dangerous situation exists, or is believed to exist, legislation or collective agreements generally give workers the right to stop work. This is often expressed as an individual right of the worker or workers who are directly at risk. A variety of formulas exist for justifying a work stoppage. An honest belief that a danger exists may suffice, or an objective danger may need to be shown. Regarding who is in danger, workers may cease working if they are immediately threatened, or the right may be broader and include causing danger to others. Collective work stoppages in solidarity (sympathy strikes) are not generally envisaged by the provisions (and therefore may be considered unlawful), but in fact they do take place. Authority to stop work may also be vested in the workplace health and safety representatives. Work may then be suspended pending a final decision by labour administration authorities.

The Occupational Safety and Health Convention, 1981 (No. 155), provides that workers shall not suffer undue consequences from having removed themselves from a work situation which they believe presents an imminent and serious danger to their life or health (Article 13). A similar provision can be found in Article 8(4) of the European Union’s 1989 Framework Directive, which refers to “serious, imminent and unavoidable danger”. Often the right to stop work due to imminent danger is contained in health and safety legislation. In some countries, the right is embodied in labour legislation and conceived as a work stoppage that does not constitute a strike; therefore, the procedural prerequisites for a strike do not need to be met and the peace obligation is not breached. Similarly, where an employer closes the workplace in compliance with a stop-work order or because of a reasonable belief that a dangerous situation exists, it is generally not considered to give rise to a lockout.

 

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Tuesday, 15 February 2011 18:01

Labour Relations Aspects of Labour Inspection

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The key role played by labour inspection in the development of labour relations is indisputable; in fact, the history of labour law is the history of the labour inspection system. Before the establishment of the first labour inspectorates, labour laws were mere declarations of goals whose infringement resulted in no sanctions. True labour law arose when a specific body was charged with ensuring compliance with the rules, thereby giving effect to the law by means of legal sanctions.

The first national attempts to establish a system of labour inspection centred on the creation of voluntary bodies which acted without remuneration to protect women and children employed in industry and which were a response to the peculiar nature of economic liberalism. Experience soon imposed the necessity to create a body of a coercive nature that would really be able to protect the working population as a whole. The first law introducing an official factory inspectorate was passed in Great Britain in 1878 on the grounds that the requirements relating to the appointment of honorary enforcers had not been faithfully carried out and therefore the protection measures had not been applied. The law conferred on factory inspectors the following basic powers: unrestricted entry into factories, free questioning of workers and employers, requiring the production of documents and the capacity to settle disputes and ascertain infringements of the laws.

The evolution of the various regulations had the result in subsequent years of reaffirming the authority of factory inspectors as administrative officials, separating out and gradually eliminating their function as judges. The idea emerged of the inspector as a paid civil servant but also a participant in the labour relations system, an official of the state who ensures that the government shows its human side through his or her direct presence in the workplace. With this goal in mind, the inspectorate was converted into a basic organ for the development and application of legislation; it became, in fact, a fundamental pillar of social reform.

This dual concept of its activities (strict control and active observation of the facts) reveals the origins of inspectoral activity within legal institutions. On the one hand, the labour inspectorate works with clear, specific legal texts which have to be applied; and, on the other hand, the correct articulation and exercise of its functions lead it to interpret the letter of the law by means of direct action. The inspector has to know not only the letter of the law, but also the spirit behind it and he or she must therefore be sensitive to the world of work and have a profound knowledge not only of the rules but also of the technical and production procedures. Thus the inspectorate is an organ of labour policy, but also a creative institution of progress, progress that is fundamental to the very evolution of labour law and labour relations.

The evolution of the world of work has continued to deepen and reinforce the role of the inspectorate as an independent organ of control at the centre of the labour relations sphere. In a parallel way, modification and change in the world of work generate new aims and forms of internal relationships in the complex microcosm that is the workplace. The original concept of a paternalistic type of relationship between the inspector and those subject to inspection gave way early on to more participatory action by the representatives of employers and workers, with the inspector involving the interested parties in his or her activities. Hence the role of conciliator in collective disputes was assigned to labour inspectors right from the beginning in the legislation of many countries.

Together with the consolidation of the role of the state inspector, advances in the trade union movement and professional organizations aroused a greater interest on the part of the workers themselves in active participation in inspection. After various attempts by the workers to incorporate themselves in direct inspectorial action (e.g., attempts to establish worker-inspectors as existed in Communist countries), the independent and objective status of the inspectorate came to be favoured, with its definitive transformation into a state organ consisting of civil servants. However, the participatory attitude of the workers’ and employers’ representatives was not lost in their contacts with the new institution: the inspectorate, in addition to being an independent entity, was also converted into a participant holding a special place in the dialogue between those representatives.

From this perspective the inspectorate developed progressively and in parallel with social and economic evolution. For example, the protectionist tendency of the state during the first third of the twentieth century resulted in substantial modifications in labour law, adding a considerable number of graduates to those already enrolled as inspectors. One immediate consequence of these developments was the creation of a true labour administration. Similarly, the emergence of new forms of work organization and the pressure of market forces on the public service at the end of the twentieth century have of course also affected the labour inspectorate in many countries.

The inspectorate, originally conceived as a body of legal controllers, has modified its own activity over time and converted itself into a useful and integrated mechanism responsive to the technological needs of new forms of work. In this way labour law has also grown, adapting itself to the new needs of production/services and incorporating regulations of a technical nature. Hence the appearance of related sciences: the sociology of labour, ergonomics, occupational safety and health, labour economics and so on. With new emphases and perspectives going beyond the purely legal sphere, the inspector became an active element of the true application of rules in workplaces, not only by virtue of applying sanctions but also by advising employers’ and workers’ representatives.

Generalist versus Specialist

The national regulations themselves have adopted two different organizational approaches to inspection: the generalist inspectorate (which arose in continental Europe) and the specialist inspectorate (which originated in the United Kingdom). Without entering into the arguments concerning the advantages of one or the other system, the terminology of the titles reveals two quite different perspectives. On the one hand, the generalist (also called unitary) approach involves inspectorial action performed by a single person, assisted by various technical institutions, on the assumption that the general appreciation of a single inspector can provide a more logical and coherent basis for the solution of various labour problems. The generalist inspector is an arbiter (in the sense of the word used in ancient Rome) who, having consulted with the relevant specialized bodies, tries to respond to the difficulties and problems posed by the particular workplace. The generalist inspector handles labour relations disputes directly. The specialist inspectorate, on the other hand, takes direct action through the use of a pre-eminently technical inspector, who has to resolve specific problems within a more narrow scope. In a parallel manner, purely labour relations questions are dealt with by bipartite or sometimes tripartite mechanisms (employers, trade unions, other government agencies), which try to resolve conflicts through a dialogue among them.

Despite the differences between the two trends, the point of convergence lies in the fact that the inspector continues to be a living expression of the law. In the generalist inspection system, the inspector’s central position allows him or her to recognize immediate needs and make modifications accordingly. The Italian situation is particularly illustrative of this: the law empowers the inspector to issue executory rules to complement the general regulations, or to substitute more specific regulations. In the case of the specialist inspectorate, the inspector’s in-depth knowledge of the problem and of the technical standards allows him or her to assess possible non-compliance with reference to the legal requirements and prevention of hazards and also to propose alternative solutions for immediate application.

The Present Role of Inspection

The central role of the inspector means that, in addition to his or her supervisory function, the inspector frequently becomes a pillar of support for existing social institutions in the labour field. Apart from the function of general control as regards legal requirements concerning working conditions and workers’ protection, the inspectorate in many countries supervises the fulfilment of other requirements relating to social services, the employment of foreign workers, vocational training, social security and so on. To be effective, a labour inspectorate should have the characteristics embodied in the ILO’s Labour Inspection Convention, 1947 (No. 81): sufficient staffing levels, independence, adequate training and resources and the powers necessary to carry out inspections and to achieve solutions to the problems found.

In many countries the inspection services are also given responsibilities in the resolution of labour disputes, participation in the negotiation of collective agreements at the request of the parties, activities relating to the gathering and evaluation of socio-economic data, drafting memoranda and expert technical advice in their fields for the labour authorities and other functions of a purely administrative nature. This extension and multiplicity of tasks arises from the concept of the inspector as an expert in labour relations with specific technical knowledge. It also reflects a special vision of a framework for the operation of enterprises which sees the inspectorate as the ideal institution for evaluating and solving the difficulties of the world of work. However, this multidisciplinary character in some cases gives rise to a basic problem: dispersion. It may be asked whether labour inspectors, being obliged to assume multiple responsibilities, do not run the risk of having to favour activities of an economic or other nature to the detriment of those which should be the essence of their mission.

The major controversy over the determination of the typical and priority functions of the inspectorate relates to the function of conciliation of labour disputes. Although surveillance and supervision surely make up the daily activity of the inspector, it is no less certain that the workplace is the centre of labour conflict, whether individual or collective. The question thus arises as to whether all the control and evaluation activity of the inspectorate does not imply, in some measure, “palliative” action as regards conflict itself. Let us examine an example: the inspector who suggests the application of legal requirements concerning noise is in many cases responding to a complaint from the workers’ representatives, who consider that the high decibel level affects work performance. When advising the employer, the inspector is proposing a measure for resolving an individual conflict generated within day-to-day working relationships. The solution may or may not be adopted by the employer, without prejudice to the subsequent initiation of legal action in case of non-compliance. In a similar manner, an inspector’s visit to a workplace to examine whether an act of anti-union discrimination has occurred is aimed at diagnosing and if possible eliminating, internal differences that have arisen in that respect.

To what extent are the prevention and solution of conflicts different in the daily activity of the inspector? The answer is not clear. The close intermeshing of all the spheres that form part of the labour field means that the inspectorate is not only a living expression of the law but also a central institution in the labour relations system. An inspectorial body that examines the world of work as a whole will be able to assist in securing better conditions of work, a safe working environment and, as a result, improved labour relations.

 

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Tuesday, 15 February 2011 18:00

Labour Relations Aspects of Training

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A training system should be a constituent of an overall human resource development policy and programme. This may be at the enterprise, industry or national level. Its practical implementation will be greatly assisted if paid educational leave is available (see box). Where such arrangements are not incorporated into national legislation (as they are in the Labour Codes of France and Spain, for example), then leave entitlement to attend appropriate occupational safety and health training should be negotiated by representatives of employers and workers as part of the collective bargaining process.


Highlights of the ILO Paid Educational Leave Convention, 1974 (No. 140)

Aim of the standard

To promote education and training during working hours, with financial entitlements.

Obligations

A ratifying State is to formulate and apply a policy designed to promote the granting of paid educational leave for training at any level; general, social and civic education; trade union education.

This policy is to take account of the stage of development and the particular needs of the country and shall be coordinated with general policies concerning employment, education and training, and hours of work.

Paid educational leave shall not be denied to workers on the grounds of race, colour, sex, religion, political opinion, national extraction or social origin.

Financing shall be on a regular and adequate basis.

The period of paid educational leave shall be treated as a period of effective service for the purpose of establishing claims to social benefits and other rights deriving from the employment relationship.

by Chapter Editor (excerpted from ILO Convention No. 140, 1974).


Any negotiated arrangements for training would identify appropriate subject matter as well as administrative, financial and organizational arrangements. Training on occupational safety and health should embrace the following:

  • health and safety laws and means of enforcement
  • employers’ attitudes to health and safety
  • workers’ attitudes to health and safety
  • health and safety issues and the means of improving health and safety practices.

 

The two key components of any training approach are content and process. These will be determined by the objectives of the training activity and the aspirations of the participants and trainers. The overall objective here would be to contribute to the improvement of health and safety at the workplace and so content should be based on identifying practical means of achieving improvement. Such an approach would require an assessment of the health and safety problems faced by workers. In general terms these should include:

  • safety hazards, such as lifting, carrying, machinery, falls, ladders
  • health hazards and problems, such as eyestrain, chemicals, noise, dust, aches, pains
  • welfare issues, such as washing facilities, first aid, housing.

 

This methodological approach would allow for the systematic treatment of issues by means of describing the problem and reviewing how it came to be known, who was involved, what action was taken and the result of the action.

An important outcome of this approach is the identification of “good” and “bad” occupational safety and health practices, which, theoretically at least, can provide the basis for common action by employers and workers. To sustain this methodology, important information requirements need to be addressed. These include securing documentation on health and safety laws, standards and technical information and identifying the further information required to resolve the hazard/problem, such as policies or agreements produced by other trade unions and employers and alternative solutions and strategies.

Successful training activity will require the use of active learning methods, which are developed by drawing on the experience, skills, knowledge, attitudes and objectives of participants. Experience and knowledge are reviewed, attitudes are analysed and skills are developed and improved through working collectively. As part of this process, participants are encouraged to apply the results of their training activity to their work environment. This focuses training activity on practical outcomes and relevant content.

Questions that the trainer and trainees need to ask of process and content are: What are we gaining that can be applied to our work environment? Is the training improving our skills and knowledge? Is it helping us to operate more effectively in our work environment?

The trainer should address these questions at the planning, implementation and evaluation stages of any training programme and the methodological process encourages participants to make the same demands during the process of training activity.

Such a method, often referred to as “learning through doing”, draws widely upon the participants’ experiences, attitudes, skills and knowledge. The objectives of training activity should always refer back to practical outcomes; therefore, training activities should integrate this method. In occupational safety and health programmes this could include the activities outlined in table 1.

Table 1. Practical activities-health and safety training

Activity

Related skills

Identifying hazards

Critical analysis

Sharing information

Reviewing information

Problem solving

Critical analysis

Sharing information

Working collectively

Developing strategies

Finding information

Using resources

Researching skills

Re-using information

Forming attitudes

Critical analysis

Re-evaluation of attitudes

Effective argument and debate

 

Occupational safety and health training has the potential to develop workers’ and employers’ awareness of issues and to provide a basis for common action and agreement on how problems can be overcome. In practical terms, good health and safety practice not only provides for improvement in the working environment and potential productivity gains, but also encourages a more positive attitude to labour relations on the part of the social partners.

 

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Worker Participation in Health and Safety Matters

Worker participation in safety organization in plants can be planned in many ways, depending on national law and practice. This article refers only to consultation and information arrangements, not related forms of employee involvement. Additional coverage of specific aspects somewhat linked with consultation and information (e.g., participation in or initiation of inspections, participation in training activities) is offered elsewhere in this chapter.

The idea of employers and employees working jointly to improve health and safety at work is based on several principles:

  1. Workers can contribute to prevention of industrial accidents by spotting and warning about potential hazards and giving notice of imminent dangers.
  2. Involving employees educates and motivates them to cooperate in the promotion of safety.
  3. Ideas and experiences of workers are regarded as a useful contribution to safety improvement.
  4. People have a right to be involved in decisions that affect their working life, particularly their health and well-being.
  5. Cooperation between the two sides of industry, essential to improve working conditions, should be based on an equal partnership.

 

These principles have been laid down in the ILO Occupational Safety and Health Convention, 1981 (No. 155). Article 20 provides that “co-operation between management and workers and/or their representatives within the undertaking shall be an essential element of organizational and other measures” in the area of occupational health and safety. Also the ILO Communications within the Undertaking Recommendation, 1967 (No. 129), Paragraph 2(1), underlines that:

...employers and their organizations as well as workers and their organizations should, in their common interest, recognise the importance of a climate of mutual understanding and confidence within undertakings that is favourable both to the efficiency of the undertaking and to the aspirations of the workers.

The underlying philosophy is that employers and employees have a common interest in a self-regulating system in industrial accident prevention; actually they are more interested in occupational safety than in occupational health, since the occupational origin of accidents is more simple to establish and they are thus compensated more easily. Also for this reason safety representatives in many countries were historically the first employee representatives at the workplace to have their rights and duties determined by law or collective agreements. Today there is probably no subject in labour relations and human resources management on which the social partners are so ready to collaborate as in health and safety matters. But in some national contexts trade unions have not put sufficient resources into the safety and health effort to make it a major issue in either negotiations or contract administration.

Information and Consultation Rights in Legislation in ILO and European Union.

The general obligation for employers to disclose information in health and safety matters to workers and/or their representatives and seek their opinion via consultative arrangements is provided by Article 20 of the ILO Prevention of Major Industrial Accidents Convention, 1993 (No. 174). This norm prescribes that “the workers and their representatives at a major hazard installation shall be consulted through appropriate cooperative mechanisms in order to ensure a safe system of work”. More specifically workers and their representatives have the right to:

(a) be adequately and suitably informed of the hazards associated with the major hazard installation and their likely consequences; (b) be informed of any orders, instructions or recommendations made by the competent authority; (c) be consulted in the preparation of and have access to, the following documents: (i) safety reports, (ii) emergency plans and procedures, (iii) accident reports.

As a consequence of these information and consultation rights, workers are entitled “to discuss with the employer any potential hazards they consider capable of generating a major accident” (Article 20(f)).

More generally ILO Convention No. 155 lays down rules concerning occupational safety and health and the working environment, providing for effective arrangements at the level of the undertaking (be they regulated by law or collective bargaining or even left to local/domestic practices) under which “(c) representatives of workers... are given adequate information on measures taken by the employer to secure occupational safety and health and may consult their representative organizations about such information provided they do not disclose commercial secrets” (Article 19). The same norm adds that under these arrangements workers or their representatives must be “enabled to enquire into and are consulted by the employer, on all aspects of occupational safety and health associated with their work”. And for this purpose “technical advisers may, by mutual agreement, be brought in from outside the undertaking”.

ILO Recommendation No. 164 supplementing Convention No. 155 (Paragraph 12) clarifies that information and consultation rights on safety and health matters should be granted to a variety of participatory institutions: workers’ safety delegates, workers’ safety and health committees, joint safety and health committees and other workers’ representatives. This text also states important principles affecting the nature and the content of information/consultation. These practices should first of all enable the above-mentioned specialized forms of workers’ representation “to contribute in the decision-making process at the level of the undertaking regarding matters of safety and health” (Article 12(e)).

These are not simply rights to know and to be heard: workers and their representatives should “(a) be given adequate information on safety and health matters, enabled to examine factors affecting safety and health and encouraged to propose measures on the subject”. They should also “(b) be consulted when major new safety and health measures are envisaged and before they are carried out and seek to obtain the support of the workers for such measures” and “(c)... in planning alterations to work processes, work content or organization of work, which may have safety or health implications for the workers”.

The principle under which “representatives of the workers... should be informed and consulted in advance by the employer on projects, measures and decisions which are liable to have harmful consequences on the health of workers” (ILO Working Environment (Air Pollution, Noise and Vibration) Recommendation, 1977 (No. 156), Paragraph 21) reflects the idea of an “effective policy of communication” stated in general terms by Paragraph 3 of ILO Recommendation No. 129, which prescribes that “information is given and that consultation takes place between the parties concerned before decisions on matters of major interest are taken by management”. And in order to make these practices effective, “steps should be taken to train those concerned in the use of communications methods” (Para. 6).

The participative approach in labour relations in the area of health and safety is confirmed by other international legal texts. A meaningful example in this respect is offered by the Framework Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of people working in countries of the European Union. Article 10 provides for the employer an obligation to take appropriate measures so that workers and/or their representatives receive, in accordance with national law and/or practices, all necessary information” concerning safety and health risks, protective and preventive measures (also for first aid, fire-fighting and evacuation of workers and in case of serious and imminent danger). This information has to be “provided in a suitable form to temporary workers and hired workers present in the establishment or enterprise”. Additionally “workers with specific functions in protecting the safety and health of workers, or workers’ representatives with specific responsibility for the safety and health of workers” must have access to risk assessment and protective measures, reports on occupational accidents and illnesses suffered by workers and all information yielded by protective and preventive measures, inspection agencies and bodies responsible for safety and health.

Article 11 of the EC Directive links consultation and participation. In fact employers are under the obligation to “consult workers and/or their representatives and allow them to take part in discussions on all questions relating to safety and health at work”. That presupposes “the consultation of workers, the right of workers and/or their representatives to make proposals [and] balanced participation in accordance with national laws and/or practices”. The document continues, prescribing that:

workers with specific functions in protecting the safety and health of workers or workers’ representatives with specific responsibility for the safety and health of workers shall participate in a balanced way, in accordance with national laws and/or practices, or be consulted in advance and in due time by the employer...

The objective of these rights is to cover all measures which may substantially affect health and safety, including the designation of employees required to implement certain measures (first-aid, fire-fighting and evacuation of workers) and the planning and organization of adequate health and safety training throughout the employment relationship (upon hiring, job transfer, introduction of new working equipment, introduction of any new technology).

The choice is clear: no to conflict, yes to participation in health and safety labour relations. This is the meaning of the EC Framework Directive, which goes beyond the simple logic of the right to information. The system is based on a genuine form of consultation, since it must take place “in advance and in good time” – in other words, not only prior to decisions being adopted by the employer but also soon enough for proposals and comments to be made about them.

The Directive also uses the ambiguous expression “balanced participation”, a formula open to various interpretations. The notion is broader than (or, at least, different from) that of consultation, but not to the extent of constituting a form of joint decision making, which would prevent employers from taking measures which had not been approved by the workers or their representatives. It seems quite clearly to be a form of participation going beyond mere consultation (otherwise the article heading “consultation and participation” would be nonsense) but not necessarily as far as joint decision making. The concept is left somewhat vague: it embraces a range of multiple forms of worker participation which vary considerably between Member States of the European Union. And in any case the Directive does not place any obligation to provide a specific form of balanced participation.

In both the ILO and EC texts, information seems to be a concept whereby management informs the employees’ representatives body in writing or in a meeting. Consultation means that normally joint committees are set up in which employees’ representatives are not merely informed by management, but can also comment and expect justification from management in the event of differing opinions. Certainly these concepts differ from negotiation (when a contractually binding outcome is worked out in joint negotiating committees at company or inter-company level) and co-determination (where the employee has a right of veto and decisions require the agreement of both parties).

For Community-scale undertakings and groups thereof, EU Council Directive No. 94/45/EC of 22 September 1994 requires setting up European Works Council or an information and consultation procedure. The information relates “in particular to transnational questions which significantly affect workers’ interests” (Article 6(3)). Time will tell if this is used for safety and health purposes.

Role of Workers’ Representatives in Risk Assessment and Improvement of Work Environment: Record-keeping

The active nature of consultation is also stressed in Article 11(3) of the EC Framework Directive, which states that either workers with specific functions in this area or workers’ representatives in general “may call on the employer to take appropriate measures and submit to him relevant proposals by means of which all risks to workers may be reduced and/or sources of danger eliminated”.

The Framework Directive, with its provisions on risk management, while placing clear responsibilities on employers, also favours the greater involvement of workers and their representatives in consultations on management strategies in health and safety. Employers must assess risks and present their risk-control management systems in a plan or statement. In all cases they are expected to consult with and involve workers and/or their representatives in all the design, implementation and monitoring of these systems. But it is undeniable that this Directive, by conferring relevant participative rights to workers, has at the same time adopted an approach of “self-assessment”. Other EC Directives require, among other things, the recording of the results of measurements and examinations and lay down the employees’ rights of access to these records.

Also ILO Recommendation No. 164 (Para. 15(2)) provides that:

...employers should be required to keep such records relevant to occupational safety and health and the working environment as are considered necessary by the competent authority or authorities; these might include records of all notifiable occupational accidents and injuries to health which arise in the course of or in connection with work, records of authorisation and exemptions under laws or regulations in the field and any conditions to which they may be subject, certificates relating to supervision of the health of workers in the undertaking and data concerning exposure to specified substances and agents.

It is a general principle worldwide that employers are required to keep records, for instance of accidents and occupational diseases, or on the use or presence of biological and environmental monitoring.

National Laws and Practices

By comparison, labour relations systems exist (e.g., Italy) where statutory law provides no specific right to information and consultation in occupational safety and health for workers’ representatives, although such a right is often included in collective agreements. Italian legislation gives the workers themselves the right to control the implementation of standards relating to the prevention of accidents and occupational diseases, as well as the right to develop studies and adopt adequate measures in order to safeguard health and safety at work. In other systems (e.g., in the United Kingdom) in order to obtain disclosure of information on matters of health and safety as provided by law, it is necessary first to have safety representatives appointed; but this is possible only if there is a recognized trade union in existence at the undertaking. In situations where the employer refuses or withdraws the necessary status of a recognized trade union, information and consultation rights cannot be exercised.

These national experiences raise the question: To what extent is effective workers’ participation in health and safety conditional on the adoption of statutory arrangements? Certainly some legal backing seems to be helpful, the optimum amount of legislation being probably at a point where it provides for the election of workers’ representatives with sufficiently strong rights to allow them to function independently of management, while at the same time leaving room for a certain variety in the organizational arrangements for participation in different sectors and corporations.

In general labour relations systems provide by law that workers’ representatives are to be informed and consulted in health and safety matters. When joint committees composed of management and employee representatives are established, they enjoy considerable powers. For instance in France the committee for health, safety and working conditions may propose preventive measures: an employer declining to accept them must give detailed reasons. But empirical evidence demonstrates that sometimes safety representatives seem more efficient than joint committees since they are less dependent on the existence of a cooperative relationship.

Through various forms of representational participation, employees in general enjoy rights recognized by ILO Conventions and Recommendations (plus EC directives, when applicable) mentioned earlier with special reference to industrialized free-market economies. Safety representatives and/or works councillors have a right to be informed and consulted by the employer on all issues relating to the company’s operations and the improvement of working conditions, including health and safety matters. They have the right to see all relevant documents that the employer is statutorily obliged to keep and also to see any statements on the subject and the results of any research. They may also have copies of any of these documents if required.

Effectiveness of Information and Consultation Rights

Apart from specific aspects (such as use of experts, participation in or initiation of inspections, protection from victimization) which strongly affect the effectiveness of information and consultation rights in health and safety, there are general factors which have to be taken into account in this respect. First, the size of the undertaking: the effectiveness of controls is on the wane in small units, where trade unions and other forms of workers’ representation are almost absent. Small-sized establishments are also least likely to implement statutory requirements.

Secondly, where safety representatives are integrated into the formal trade union organization at the workplace, they are more likely to achieve the expected improvements in the working environment. Thirdly, consultation and information arrangements in health and safety reflect the more conflictual (e.g., UK, Italy) or cooperative (e.g., Germany, Scandinavian countries, Japan) nature of the surrounding labour relations system. And in general, collaboration between management and labour favours the disclosing of information and consultation.

Fourthly, the role of managerial initiative should not be underestimated. More than the existence of statutory rights, consultation and information are effective when there is the presence of a managerial culture which supports them. Employers—by their attitude towards training, their commitment to disclosing information and their speed in answering queries—are able to create an adversarial or cooperative climate. Legal backing is essential to guarantee full independence to worker representatives to act in this field, but then the success of information/consultation arrangements depends largely on the voluntary choice of both sides of industry.

Lastly it must be said that a precondition for successful worker representation in health and safety at the workplace is public awareness. It is fundamental for this specialized form of employee involvement that such a need is perceived and valued by people at work. There is empirical evidence that workers identify health and safety as one of the most significant concerns in their working life.

 


 

Highlights of the ILO Paid Educational Leave Convention,
1974 (No. 140)

Aim of the standard

To promote education and training during working hours, with financial entitlements.

Obligations

A ratifying State is to formulate and apply a policy designed to promote the granting of paid educational leave for training at any level; general, social and civic education; trade union education.

This policy is to take account of the stage of development and the particular needs of the country and shall be coordinated with general policies concerning employment, education and training, and hours of work.

Paid educational leave shall not be denied to workers on the grounds of race, colour, sex, religion, political opinion, national extraction or social origin.

Financing shall be on a regular and adequate basis.

The period of paid educational leave shall be treated as a period of effective service for the purpose of establishing claims to social benefits and other rights deriving from the employment relationship.

by Chapter Editor
(excerpted from ILO Convention No. 140, 1974).


 


Safeguards on Use of Information

Comparative experience demonstrates that in general safety representatives are considered to be in breach of confidence if they reveal any information relating to an employer’s production processes and other professional secrets. Furthermore, they are obliged to use discretion with regard to any information provided to them which the employer indicates is confidential. ILO Convention No. 155 recognizes this by providing that enterprise-level representatives may consult their representative organizations about occupational health and safety information “provided they do not disclose commercial secrets” (Article 19(c)).

In some systems (e.g., Greece) employee representatives on works councils are obliged not to communicate to third parties information acquired which is of fundamental importance to the enterprise and which, if disclosed, would harm the enterprise’s competitiveness. The employee representatives and the employer are supposed to decide jointly what information can be disclosed. Under other systems (e.g., Luxembourg), where if employee representatives disagree with an employer’s classification of information as confidential, they may refer the matter to the inspectorate for a decision.

In some countries the duty of confidentiality is only implicit (e.g., Italy). Also when there is no specific requirement in this respect (e.g., United Kingdom), employee representatives cannot receive from the employer information relating to the health of individuals (unless their consent is given), information that would damage national security or information that would damage the employer’s undertaking. Finally (e.g., Sweden) the duty to observe confidentiality may not prevent safety representatives from passing on the information received to the executive board of their trade union, which will also be bound to observe confidentiality.

 

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Tuesday, 15 February 2011 17:51

Forms of Workers' Participation

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The phrase workers’ participation is used loosely to encompass various forms of workers’ participation in decision making, usually at the enterprise level. They complement other forms that may exist at the industrial or sectoral level and the national level, such as bodies for tripartite cooperation. The types of workers’ participation arrangement differ widely with regard to their functions and powers, ranging from informal individual employee suggestion schemes to co-determination of certain matters by workers’ representatives together with management. The mechanisms used for encouraging employee participation vary so widely that it is impossible to review them fully here. The main forms that have attracted recent interest, particularly in the field of work organization, are reviewed below; to these could be added the historical example of self-management by workers in former Yugoslavia. As particularly relevant today, joint safety and health committees are examined as a special form of workers’ participation within the larger labour relations context.

The idea of workers’ participation arose in Europe, where collective bargaining has usually been at the branch or industry level; this often left a gap of employee representation at the enterprise or plant level, which became filled by bodies such as works councils, works committees, enterprise committees and so forth. Many developing countries have also adopted legislative initiatives with a view to having works councils or similar structures set up (e.g., Pakistan, Thailand, Zimbabwe) as a means of promoting labour-management cooperation. The relationship of these bodies to trade unions and collective bargaining has been the subject of considerable legislation and negotiation. This is reflected in a provision of the ILO Workers’ Representatives Convention, 1971 (No. 135), which states that where both trade union representatives and elected representatives exist in the same undertaking, measures shall be taken to ensure that the existence of those representatives is not used to undermine the position of the trade union (Article 5).

Direct Participation

Workers may participate in decision making either directly themselves or indirectly through their representatives – trade unions or elected employee representatives. Since the 1980s, there has been a spread of direct participation by workers, if the term participation is understood as the exercise of any influence on their work or how it is to be carried out. Thus workers may “participate” in work-related decisions not only when there is an institution, such as a quality circle, at the workplace. Accordingly, a simple exercise of work enrichment may be a form of promoting direct participation of workers.

Direct participation may be on an individual basis – for example, through suggestion schemes or “enriched” work. It may also be on a group basis – for example, in quality circles or similar small-group activities. Teamwork in itself constitutes a form of group-based direct participation. Direct participation may be integrated into decisions about daily work, or it may take place outside daily work, such as in a voluntary quality circle that cuts across the group structure habitually used. Direct participation may also be “consultative” or “deliberative”; research by the European Foundation for the Improvement of Living and Working Conditions has explored this particular aspect in some detail (Regalia and Gill 1996). With consultative participation, employees are encouraged and enabled, either as individuals or members of a group, to make their views known, but it is up to management to accept or reject their proposals. Deliberative participation, on the other hand, places some of traditional management responsibility in the employees’ hands, as in the case of teamworking or semi-autonomous work groups wherein some authority has been delegated to the workers.

Works Councils and Similar Structures; Co-determination

The term works councils describes arrangements for the represen-tation of employees, usually at the plant level although they also exist at higher levels (company, group of companies, industry, European Union). The relationship to trade unions is often delineated by legislation or clarified by collective agreement, but tensions between these institutions sometimes remain all the same. Extensive use of works councils, sometimes called workers’ committees, cooperation committees or otherwise, is well established in a number of European countries, such as Belgium, Denmark, France, Germany and the Netherlands and, under the impetus of Directive No. 94/45/EC of 1994 on European works councils, can be anticipated to spread in that region for large enterprises. Several Central and Eastern European countries, such as Hungary and Poland, have enacted legislation to encourage the emergence of works councils. They are found as well in some countries in Africa, Asia and Latin America; part of the post-apartheid labour law reform in South Africa, for instance, included establishing a form of works councils alongside trade union structures.

The possible powers of works councils are best illustrated by the example of Germany, although in some ways it is a unique case. Weiss (1992) describes the works council in that country as the form of institutionalized representation of interests for employees within an establishment. A works council enjoys certain rights to information, consultation (as in all countries) and co-determination (much more rare). As the most far-reaching form of participation, co-determination covers participation in arrangements on health and safety at work and the formal adoption of a reconciliation of interests and a “social plan” in the event of a substantial alteration in the establishment, such as a plant closure. Co-determination rights also extend to guidelines for staff selection and appraisal, in-service training and measures affecting individual workers such as grading, transfer and dismissal. The German works council is empowered to conclude works agreements at the enterprise level and can initiate complaints where it believes the agreement is not being honoured. Included in the areas of obligatory collective co-determination are accident prevention and health protection, works rules, working time, the fixing of performance-related pay rates, the manner of payment, general principles governing holidays and others. On these matters, the employer cannot take action without the works council’s agreement. The works council also has the right to take the initiative and can refer a matter to the establishment-level arbitration committee for enforcement. As Weiss (1992) characterizes it, the works council’s role is “participating in the ‘how’ after the employer has made a decision on the ‘whether’”. The right to consultation affords the works council a chance to play a part in the decisions made by the employer, but failure to consult will not invalidate the decision. The subjects on which consultation is required include protection against dismissal, protection against technical hazards, training and preparation of a social plan.

The works council must observe the principles of cooperation with the employer and the peace obligation (no work stoppages); it also must cooperate with trade unions present and with the appropriate employers’ organization. Works councils are bound to conduct their business impartially, without regard to race, religion or creed, nationality, origin, political or union activity, sex or age of the employees. The employer provides the facilities for the works council, funds it and is liable for its actions.

Works councils are elected separately for manual and non-manual workers in Germany. Special works council elections are held; while there is no legal connection between these representatives and trade union officers in fact, they often coincide. In Austria and Germany, special representation is ensured for disabled workers and young workers and trainees. Works council members receive no remuneration for this, but necessarily incurred expenses are reimbursed. Members are guaranteed retention of their pay level and job grading after the term of office has expired and enjoy special protection against dismissal. They are entitled to release from work to conduct works council business and attend training. Such protections are in line with the Workers’ Representatives Convention (No. 135), which calls for workers’ representatives in an undertaking to enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as a workers’ representative (Article 1).

Many countries feature less ambitious works council schemes that provide for information and consultation rights. Especially where trade unions have little presence on the shop floor level, there is considerable interest in introducing works councils or workers’ committees as a means for workers to have a voice at the workplace level.

Quality Circles and Total Quality Management

Quality circles and other similar group activities were rapidly introduced in a large number of enterprises in some Western European countries (e.g., the United Kingdom and France) at the start of the 1980s and in the United States a little earlier. They built upon “Quality of Working Life” (QWL) or “Humanization of Work” programmes that began in the early 1970s. Their spread was considerably later in some other Western countries (e.g., Germany) and still seems to be very limited in countries where joint project groups are the predominant means of dealing with work organization, such as Sweden. They were stimulated by a belief that Japan’s ability to produce innovative and high-quality products at low cost had something to do with the way human resources were managed in that country; quality circles were the most visible and easily transplantable feature of Japanese human resource management. Quality circles are generally expected to produce two types of effect: one is the enhancement of quality and productivity and the other is the fostering of a sense of participation in work-related decisions among workers, leading to increased job satisfaction and better industrial relations. In Japan the emphasis has been placed more on the first aspect and in Europe and North America on the second. There are also structural differences: while circle leaders are normally appointed by management in Japan, they are often elected in Germany. Today, the emphasis of QWL programmes is more on enhancing productivity and competitiveness (Ozaki 1996).

In some of the countries where quality circles were experimented with widely in the 1980s, such as France and the United Kingdom, there has been a certain disenchantment with their relative ineffectiveness in producing the expected results. Many circles disappeared a few years after their creation; many others exist on paper, but are in fact moribund. The failure has been attributed to many factors – their tendency to create confusion in the normal lines of command, non-management control over membership, circles’ determining their own agenda without heed for management priorities, lack of enthusiasm or hostility on the part of middle management, absence of durable commitment on the part of top management and restriction of scope to minor work-related issues.

Realization of these shortcomings led to the formation of a theory of “Total Quality Management” (TQM). Certain principles of TQM have implications for employee participation: all employees are to participate in the process of improving the business, and responsibility for quality is to be assigned to people who in fact control the quality of what they do. Thus TQM encourages job enlargement and enrichment leading to semi-autonomous work groups. It also promotes horizontal coordination in a firm through, for example, the use of ad hoc, multi functional or interdepartmental project teams.

Joint Project Groups

The practice of establishing joint project groups to study the best ways of introducing technological or organizational changes through the joint efforts of managers and workers is a traditional feature of labour relations in some countries, such as Sweden. A joint project group is normally composed of managers, workplace union representatives and shop-floor workers and often assisted by outside experts. The management and the union concerned often establish joint project groups separately on four issues: new technology, work organization, training and work environment. The Swedish model of joint project groups presents a notable example of direct participation of shop-floor workers within a framework of established collective labour relations. The system is also found in other countries, such as Germany and Japan.

Semi-autonomous Group Work and Teamwork

Semi-autonomous group work and teamwork are both forms of on-line direct participation of shop-floor workers in work-related decisions, unlike the above-mentioned joint project group work, which is a form of off-line participation. The main difference between the two forms of participation lies in the degree of autonomy which the members of the team or group enjoy in organizing their work. Semi-autonomous group work was used extensively in Scandinavia, although recently there has been a move back to a more traditional approach; there have been experiments with it elsewhere in Europe as well.

While experiments with semi-autonomous group work are generally declining, teamwork is spreading fast throughout Western countries. The degree of autonomy which a team enjoys varies widely from one company to another. Team structure also differs. In many countries, team leaders are usually appointed by management, but in a few countries (e.g., Germany) they are often elected by co-workers. Frequently, the creation of teams is accompanied by significant changes in the role of first-line supervisors; they tend to take on greater responsibility for advising team members and for both vertical and horizontal communication, but lose their supervisory role. Employers have shown increasing interest in teamwork because it tends to facilitate the upgrading of workers’ skills and widens the range of workers’ tasks, thus allowing greater flexibility in production processes. However, it is sometimes criticized by workers as a means of inducing them to work harder “voluntarily” by substituting co-workers’ pressure for management control.

Employee Representation on Supervisory Boards; Employee Shareholding

Some commentators include forms of employee ownership or representation on company boards as expressions of workers’ participation. In Germany and the Scandinavian countries, among others, workers have indirect participation above the enterprise level by the inclusion of workers’ representatives on supervisory boards. This involves incorporating workers’ representatives in the traditional company board structure, where they are in a minority (although sometimes, as in Germany, a numerous one). It does not necessarily imply participation in the active management of the company and the workers’ representatives have the same status as other board members. This means they are to put the interests of the company first and foremost and are bound by the same duty of secrecy as other board members. Holding positions on the board may provide access to additional information, however, and a number of trade unions have sought the right to have workers’ representatives on boards. It is a phenomenon now seen in Eastern and Western Europe and North America, but remains rather rare elsewhere.

Another expression of workers’ participation is as owners of shares in limited liability companies or corporations. Sometimes workers are able to scrape enough capital together to purchase a firm that would otherwise be going out of business. The rationale behind these situations is that a worker who identifies financially with a company will work harder for its success. Important variables are the form of participation (return on investment rights or control rights), its degree (amount and timing of returns) and the reasons behind financial participation. In any event, these practices are largely reserved to Europe and North America. If cooperative ventures are considered part of this phenomenon, however, the notion of workers being stakeholders in their work is much more widespread throughout the world. It would be interesting to study whether and to what extent employee ownership of a firm or of shares in it has an effect on the workplace safety and health record.

Health and Safety Committees and Representatives

A specialized form of workers’ participation is seen in the development of health and safety committees and health and safety representatives (for worker participation in Denmark, see also "Case Study: Denmark"). The legislation of a number of countries provides for the establishment of such committees and for such representatives (e.g., Belgium, several provinces of Canada, Denmark, France, the Netherlands, Sweden). Smaller companies, variously defined, are usually excluded from such mandatory measures, but they, like larger units, often set up health and safety committees on their own initiative. In addition, many collective bargaining agreements have led to the creation of such committees and to the designation of health and safety representatives (e.g., in Canada and the United States).

Often, collective bargaining agreements will strengthen the legislatively guaranteed powers afforded to workers’ safety and health representatives. The committees and representatives vary in regard to their relationship to trade unions and works councils, their election or appointment, their duties and functions and their impact. As a form of workers’ involvement in the specialized sphere of health and safety, such committees and representatives can be a contributing factor to improving both working conditions and the labour relations climate. They have been most successful when they form an integral part of management’s safety and health programme, have access to adequate information, involve rank-and-file workers in their activities to help ensure continuity and are backed up by effective government labour inspection. Where employers maintain occupational health services or have safety experts, a fruitful relationship with them can also promote the success of joint health and safety committees. A recent workplace survey in the United Kingdom, for instance, found that “joint consultative committees, with all employee representatives appointed by unions, significantly reduced workplace injuries relative to those establishments where the management alone determines health and safety arrangements” (Reilly, Paci and Holl 1995). They also reported an important role for joint consultative committees where employee representatives were appointed in other ways. However, some research also indicates that joint health and safety committees fall short of the expectations held out for them. The reasons suggested for this differ: insufficient support from management, participants who are not adequately informed or trained, workers not represented forcefully enough and so on.

Workers’ health and safety representatives may be appointed by management (as in many workplaces where no trade union is present), designated by the trade union (as in the United Kingdom) or elected directly by the workers at the enterprise or higher level (as in Denmark). A parallel system will be used for worker representatives on a joint labour-management health and safety committee which, while bipartite, will not always have equal representation from both sides. General institutions for workers’ representation are often complemented by special representative structures for health and safety (as in Spain). The mechanism chosen will often reflect the existence of other labour relations institutions in a country: in France, for instance, employee members of the joint health, safety and working conditions committees are appointed by a delegate elected from the works committee and staff representatives; in Germany, members designated by the works council will be among those serving on a joint health and safety committee. Works councils in the Netherlands may delegate their powers to a safety, health and welfare committee. A strong link, if not identity, between trade union representatives and health and safety representatives is usually seen as desirable (as in Quebec (Canada), Ireland, Norway and Sweden), but where trade union density is low this runs the risk of depriving large numbers of workers of representation rights in relation to health and safety. Speculation that joint health and safety committees might lead to extending greater workers’ participation to other fields has remained largely unfounded.

Workers’ health and safety representatives normally have the following rights: to have access to information on health and safety and the introduction of new technology, to be consulted on these matters, to be involved in monitoring workplace conditions, to accompany inspectors (sometimes called the “walkaround right”), to be involved in accident investigations and to make recommendations to management on the improvement of working conditions. In some countries their powers go beyond this to include the right to engage in co-decision making, to initiate inspections and accident investigations and to review management’s reports to government. Most importantly, some workers’ health and safety representatives are empowered to order the shut-down of an imminently hazardous operation (also called “red-tagging”, for the marker placed on the spot), as in Denmark, Finland, Norway and Sweden. They are in certain instances, such as in France and some provinces of Canada, directly involved in the enforcement of health and safety regulations. Prior consultation of the joint committee is sometimes necessary before an employer can make any significant change in health, safety or working conditions (as in France and the Netherlands). In Belgium intercompany health services are under the control of a joint committee. In Italy the committees’ role includes the promotion of prevention, and in Greece they can, with the employers’ agreement, call for expert opinions on health and safety questions.

Workers’ health and safety representatives necessarily enjoy protection from discrimination or retaliation in the exercise of their functions. They are entitled to at least some time off with pay, as well as to have the necessary means (the definition of which is often debated) to exercise their functions. In addition, while in office some are specially shielded from economic layoffs (redundancies) or given extra protection from dismissal (as in Belgium). Frequently, worker health and safety representatives have a right to receive specialized training (as in Denmark).

The effect that workers’ health and safety representatives and joint committees can have will of course depend not only on rights and duties set out in legislation or in a collective bargaining agreement, but on how they are exercised in practice. This is in turn influenced by factors that affect workers’ participation generally. Such representatives and joint committees are no substitute for the effective government enforcement of health and safety standards or for what may be achieved by means of collective bargaining. However, “most observers believe that [mandated joint health and safety] committees provide a more efficient regulatory regime for safety and health than inspectorate or civil liability schemes” (Kaufman and Kleiner 1993). In any event, the trend is definitely towards greater workers’ participation in health and safety matters, at least in terms of collective agreements covering larger enterprises and legislation. Where they operate as effective institutions, joint health and safety committees can be a valuable tool for identifying problems and raising awareness of hazards, thus potentially reducing the incidence of injury, disease and death on the job. The extent to which they are effective, however, depends on a large range of variables in the particular labour relations system and in the strategic approach taken to health and safety at the workplace.

Evaluation

Schregle (1994) has commented:

In practice, none of these workers’ participation schemes has produced the expected results. There are many reasons for this. One is that, in a general way, trade unions and employers do not have the same view of participation. While it is the workers’ desire to exert a tangible and concrete influence on employers’ decisions in the sense of power-sharing, employers insist on management rights or management prerogatives, derived from private ownership, to run the business according to their own criteria and decision-making power, affording to workers at most the right to express their views and positions without binding effect on management. The result of all this is confusion over such terms as consultation, workers’ participation, workers’ participation in management, co-determination, co-management, etc.

The fact remains that in most workplaces around the world, there is little effective employee participation at the enterprise level. The first level of participation and indeed a prerequisite for it, is the provision of information, followed by consultation. Within Europe, research has indicated a wide variation in the extent of implementation of the 1989 framework directive on health and safety, when it comes to workers’ participation; it may get a new lease on life with the impetus of the 1995 directive on European works councils. A high degree of non-participation also characterizes other regions. Nevertheless, high hopes continue to be held out for strengthening mechanisms for workers’ participation at the enterprise level.

The traditional approach to workers’ participation as promotional of greater worker-management cooperation falls short of being satisfactory in relation to health and safety issues, where the categorization of labour relations as conflictual or cooperative does not particularly advance the debate. As Vogel (1994) notes:

...the problem of worker participation is clearly not confined to the institutionalized forms of participation in or outside the undertaking. The basis of participation lies in the recognition that distinct interests are in play giving rise to specific rationales... The essential legitimacy of participation is to be found outside the firm in a democratic requirement which refuses to admit that the self-determination of individuals should be confined within the rules of political representation and in a view of health conceived as a purposeful, social process through which individuals and communities develop strategies for self-fulfilment and defence.

In the end, the differing functions of various workers’ participation schemes make it difficult to assess their comparative impact. As collective bargaining shrinks in coverage, however, greater use of management-led workers’ participation arrangements may be expected.

 

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Cooperation between workers, employers and government in the elaboration and implementation of occupational health and safety measures at the national or regional level is common in a significant number of countries. It is not unusual for interest groups and technical experts also to be involved in this process. Such cooperation is highly developed and has been institutionalized in a number of countries by the establishment of consultative and collaborative organizations. These organizations have normally been widely accepted by all labour market participants as there appears to be a general consensus that health and safety at work is a subject of common concern where dialogue between the social partners, the government and other interested parties is extremely important.

The institutions which have been established to facilitate this cooperation vary significantly in form. One approach is to establish consultative organizations either on an ad hoc or a permanent basis to give advice to the government on questions of occupational safety and health policy. The government is normally not obligated to follow the recommendations offered, but in practice they are difficult to ignore and are frequently taken into consideration in the elaboration of government policy.

The other approach is to have the social partners and other interested parties actively cooperate with the government in public institutions which have been established to implement occupational safety and health policy. Participation by non-governmental actors in public institutions with responsibility for health and safety questions at work is normally undertaken through the representation of employers’ and workers’ organizations and, in some cases, other parties, on the board of directors of the public institution concerned, although sometimes participation extends to the management and even the project level. In most cases these persons are nominated by the government on recommendation of the parties to be represented, although in some cases workers’ and employers’ organizations have the right to directly nominate their representatives to these collaborative institutions. Bodies at the national level (or regional, state or provincial level) are normally complemented by structures or arrangements at the industry, enterprise and plant level.

Advice on Policy and Standard Setting

Probably the most common form of cooperation involves the establishment of consultative organizations to give advice on policy and standard setting. Examples of this can vary between a modest approach, which involves the expenditure of relatively few resources, to more institutionalized approaches, which involve more significant amounts of resources. The United States is an example of a country where a more limited approach has been adopted. At the federal level, the National Advisory Committee on Occupational Safety and Health, established pursuant to the Occupational Safety and Health Act of 1970, is the principal permanent advisory committee. This committee, according to the Act, is to be composed of representatives of management, labor, occupational safety and health professionals and the public, with a member of the public acting as the chairperson. The committee makes recommendations to the Secretary of Labor and the Secretary of Health and Human Services. In practice, however, this committee has not met frequently. The members of the committee are not compensated and the Secretary of Labor has provided from its budget an executive secretary and other support services as needed. The costs of maintaining this committee in existence are therefore very low, although budgetary constraints now call even this support into question. A permanent committee of a similar character, the Federal Advisory Council on Occupational Safety and Health, was established in July 1971 pursuant to Executive Order 11612 to advise the Secretary of Labour on matters relating to the safety and health of federal workers.

The Occupational Safety and Health Act of 1970 also provides for the establishment of ad hoc advisory committees to assist in standard-setting functions. These advisory committees are appointed by the Secretary of Labor and are to consist of no more than 15 members, including one or more persons who are designated by the Secretary of Health and Human Services. Each standard-setting committee is to include an equal number of representatives of workers’ and employers’ organizations. The Secretary of Labor may also appoint one or more representatives of state health and safety agencies, as well as technical experts who could be, for example, representatives of professional organizations of technicians or professionals specializing in occupational health or safety, or of nationally recognized standards-producing organizations. Extensive use has been made of such standard-setting committees, which are sometimes in existence several years to accomplish the work that has been assigned to them. Meetings can be frequent, depending on the nature of the tasks to be performed. Although committee members are normally not paid, they are normally reimbursed for reasonable travel expenses and support services for the activity of these committees have been paid for by the Department of Labor as well in the past. Committees have been constituted to recommend standards with respect to agriculture, asbestos dust, carcinogens, coke oven emissions, cutaneous hazards, hazardous materials labelling, heat stress, marine terminal facilities, noise, longshoring safety and health, shipyard employment standards and steel erection rules, among other things.

Other ad hoc advisory committees of a similar character have been established pursuant to similar legislation which falls under the authority of the Secretary of Labor. For example, a number of standard-setting committees have been established pursuant to the Federal Mine Safety and Health Act of 1977. The costs involved in the establishment of such standard-setting committees, however, are relatively modest and are characterized by relatively low administrative costs, little infrastructure, voluntary participation by outside parties without compensation and dissolution of the committees upon completion of their tasks.

More elaborate institutionalized forms of consultation are, however, found in other countries. In the Netherlands, for example, the pre-eminent organization is the Working Environment Council, which was established pursuant to the Working Environmental Council Act 1990. The Council gives its views to the Ministry of Social Affairs and Employment, either when asked or on its own initiative, comments on proposed new acts and decrees and can bring forward its own proposals for new policy or legislation. The Council also gives its views about the advisability of making grants-in-aid for research on working environment issues, about the issuance of exemptions, the formulation of government guidance and the policy of the Labour Inspectorate. The Council is comprised of eight representatives from central employers’ organizations, eight from central workers’ organizations and seven from governmental bodies. Only the representatives of workers’ and employers’ organizations have the right to vote, however, and the chairperson of the Council is independent. The Council meets every month. In addition, the Council has approximately 15 different working committees for specific issues and, in addition, ad hoc working groups are established for detailed subjects when the subject matter justifies it. Within the working committees and working groups, external experts play an important role and these working organizations prepare reports and papers which are discussed at Council meetings and often form the basis for positions which are subsequently taken. The recommendations of the Council are comprehensive and are published. Although normally the parties try to achieve a consensus position, separate views can be expressed to the Minister of Social Affairs and Employment when employers’ and workers’ representatives cannot find common ground. More than 100 persons are involved in the work of the Council and its subsidiary organizations and thus it is supported by significant financial and administrative resources.

Other less prominent consultative organizations exist in the Netherlands for more specific occupational safety and health issues. These include the Foundation for the Working Environment in Building Construction, the Foundation for Health Care in Agriculture, the Commission for the Prevention of Disasters by Dangerous Substances and the Commission for the Labour Inspectorate and Enforcement Policy.

Examples of other countries which have consultative organizations of a bipartite, tripartite or multipartite character to give recommendations on occupational safety and health policy and standards include: Canada (ad hoc committees on legislative reform and standard setting – federal level; Forum for Action on Workplace Health and Safety – Alberta; Joint Steering Committee on Hazardous Substances in the Workplace – Ontario; Back Injury Prevention Advisory Committee – Newfoundland; Occupational Health and Safety Council – Prince Edward Island; Advisory Council on Workplace Safety and Health – Manitoba; Occupational Health and Safety Council – Saskatchewan; Logging Safety Forum – British Columbia); Denmark (Working Environment Council); France (the Central Council for the Prevention of Occupational Risks and the National Commission of Occupational Health and Safety in Agriculture); Italy (Permanent Consultative Commission for the Prevention of Work Accidents and Occupational Health); Germany (Advisory Board to the Federal Institute for Occupational Safety and Health); and Spain (General Council of the National Institute for Occupational Safety and Health).

Policy Implementation

A number of countries have bipartite, tripartite or multipartite organizations which are also active in policy implementation. These collaborative organizations normally are public establishments which incorporate representatives of employers’ and workers’ organizations and in some cases other persons or interest groups, in both policy making and policy implementation. Normally far larger than advisory committees, councils or commissions, these collaborative organizations have responsibility for implementing government policy, frequently manage large budgetary resources and often have significant numbers of personnel.

An example of such an organization is the Health and Safety Commission in Great Britain. The Commission was established pursuant to the provisions of the Health and Safety Act 1974. It has as its mandate to ensure that adequate measures are taken to secure the health, safety and welfare of persons at work; to protect the public against risks to health and safety arising out of work; to control storage and use of explosives, highly flammable materials and other dangerous substances; and to control the emission of noxious or offensive substances from the workplace. It is responsible to the Secretary of State for Education and Employment, but also to other Secretaries of State, including those of Trade and Industry, Transport, Environment and Agriculture. The Commission has nine persons, all of whom are appointed by the Secretary of State for Education and Employment. It consists of a chairperson, three members appointed after consultation with the principal central employers’ organization, three members appointed after consultation with the principal central workers’ organization and two members appointed after consultation with local authority associations.

The Commission is assisted by a number of subsidiary organizations (figure 1). The most important of these is the Health and Safety Executive, a distinct statutory body which consists of a governing body of three persons appointed by the Commission with the approval of the Secretary of State for Education and Employment. The Health and Safety Executive is responsible for carrying out the substantive work of the Commission, including the enforcement of health and safety standards under the Health and Safety Act 1974 and other functions delegated to it by the Commission. Local authorities also perform enforcement functions with respect to certain health and safety legislation as well. In addition, the Commission is assisted in its work by a number of advisory committees which are, depending on the committee, bipartite, tripartite or multipartite in character. These advisory committees are organized both by subject matter and industry. There are advisory committees for each of the following subjects: toxic substances, dangerous pathogens, dangerous substances, genetic modifications, occupational health, releases to the environment, nuclear installations and ionizing radiation. There are also advisory committees for the following industries: agriculture, ceramics, construction, education, foundries, health, petroleum, paper and board, printing, railways, rubber, cotton and textiles. Subject matter committees tend to have between 12 and 18 members plus a chairperson and are multipartite in character, frequently including technical experts as well as representatives of central workers’ and employers’ organizations, government and other interest groups. Industry committees, however, tend to be bipartite, with approximately 12 members drawn in equal numbers from central workers’ and employers’ organizations and with the chairperson being from the government. The resources at the disposition of the Commission and the Health and Safety Executive are substantial. For example, in 1993 these organizations together had approximately 4,538 staff members and a budget of £ 211.8 million.

Figure 1. Health & safety in Great Britain: the main institutions

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Other examples of collaborative organizations in this field can be found in Canada. At the federal level, the Canadian Centre for Occupational Health and Safety is Canada’s main resource for information on this topic. The Centre also promotes health and safety in the workplace, facilitates the establishment of high standards of occupational health and safety and assists in the development of programmes and policies to reduce or eliminate occupational hazards. The Centre, created by an act of parliament in 1978, was given a tripartite governing body to ensure its impartiality in occupational health and safety matters, including being an unbiased source of information. Its governing council consists of a chairperson and 12 governors – four representing the federal, provincial and territorial governments; four representing labour; and four representing employers. The Centre manages significant human and financial resources and its total expenditures in 1993 were approximately C$8.3 million.

In some provinces there are also collaborative organizations. In Quebec, two prominent organizations are the Commission for Occupational Health and Safety and the Institute of Occupational Health and Safety Research. The Commission has two functions. The first is to develop and implement occupational health and safety policy, including the establishment of standards and their enforcement; the provision of support for the implementation of prevention programmes, participation mechanisms and health services; and the provision of training, information and research services. The second is to provide payment to workers injured on the job and to manage an insurance fund for this purpose to which employers must contribute. The Commission, which was established by law in 1981 and which succeeded the Commission of Occupational Accidents founded in 1931, has a bipartite board of directors which is composed of seven workers’ representatives, seven representatives of employers and a chairperson. The representatives of workers’ and employers’ organizations are chosen from lists supplied by the most representative labour and employer organizations. The Commission manages large human and financial resources and at the end of 1992 had expenditures of C$2,151.7 million and employed 3,013 persons as permanent staff and 652 as casual employees.

Quebec’s Institute of Occupational Health and Safety Research, founded in 1980, has as its mandate to contribute, through scientific research, to the identification and the elimination of sources of workplace hazards, as well as to the readaptation of workers who have suffered workplace injuries. The board of directors of the Institute is the same as that of the Commission for Occupational Health and Safety, notwithstanding that it is an independent institution. The Institute also has a scientific council which has advisory functions and is composed of four representatives of workers’ organizations, four from employers’ organizations, six representatives of the scientific and technical community and the Institute’s Director General. In 1992, the Institute had expenditures of C$17.9 million and approximately 126 employees.

The Ontario Workplace Health and Safety Agency, established in 1990 by amendment of the Occupational Health and Safety Act, also has responsibility for developing and implementing policy and for managing occupational health and safety programmes in Ontario. The governing body of the organization consists of a bipartite board of 18 persons with nine representatives each from workers’ and employers’ organizations. Of these representatives, one representative of labour and one of management serve as joint chief executive officers. The resources of this organization are substantial – total expenditures amounted to C$64.9 million in 1992.

One country with a long tradition of collaborative organizations in the field of occupational safety and health, Sweden, decided to reject this form of organization in 1992 and has subsequently used advisory organizations instead. It should be added that this decision was not confined to occupational safety and health, but included all collaborative organizations of any kind in which representatives of workers’ and employers’ organizations played a decision-making role at the national level. The impetus for this change came from the principal employers’ organization, which decided unilaterally to withdraw from participation in collaborative public institutions. The central employers’ organization argued that interest groups should not have political responsibility in terms of managing public institutions, but that the government and parliament should have this political role and responsibility; that the role of the employers’ organization was to represent its members’ interests, and that this role could be in conflict with a duty to serve the interests of the public institutions if the employers’ organization was represented on the governing boards of such institutions; and that participation weakened democracy and the development of public institutions. Although workers’ organizations were not in agreement with the employers’ organizations on these points, the government concluded that collaborative bodies with no representation from the principal employers’ organization were impractical and decided to have representation by workers’ and employers’ organizations as well as other interest groups only on advisory bodies. Hence, organizations in the field of occupational safety and health such as the National Board of Occupational Safety and Health, the National Institute of Occupational Health and the Working Life Fund, which had formerly been collaborative in character in terms of a tripartite or multipartite governing board, were restructured.

Although collaborative organizations in most countries are more rare than advisory organizations, which are quite widespread, the case of Sweden’s rejection of collaborative institutions, at least in the field of occupational safety and health, appears to be an isolated one. Although some collaborative institutions, dealing notably with questions of economic policy, training and employment, were dismantled in Great Britain during the 1980s and 1990s by successive conservative governments, the Health and Safety Commission was not affected. Some have advanced that this is because occupational safety and health is a subject of common concern to employers’ and workers’ organizations as well as the government and other interested parties and therefore there is a strong interest by all parties in finding a consensus in both policy formulation and implementation. Also, in Canada such collaborative institutions have been created at both the federal level and in some provinces precisely because a collaborative approach was deemed more useful in finding a consensus between the labour market parties and because administration of the occupational safety and health laws would appear more impartial and fair to those affected by them.

On a broader level, however, there are two national consultative bodies which are also concerned with occupational safety and health issues as part of their more general mandate to address all important social and economic questions of national importance. In the Netherlands, the Labour Foundation, established in May 1945, is a bipartite organization jointly managed by equal numbers of representatives from central employers’ and workers’ organizations (including farmers) and has a significant role as an advisory body to the Government. Although historically its main function has concerned questions of wage policy, it also expresses its views on other conditions of work. The other national consultative body of importance is the Social and Economic Council, which was founded in 1950 pursuant to the Act on Statutory Trade Associations. The tripartite Council consists of 15 representatives of central employers’ organizations, 15 representatives of central workers’ organizations and 15 independent experts. The employers’ and workers’ representatives are appointed by their organizations and the independent experts are appointed by the Crown. In making its appointments, the Crown also tries to have a balance between the major political parties. The Council is independent of the government and is financed by a mandatory tax on employers. The Council has a multimillion dollar budget and its own Secretariat. The Council normally meets once a month and is assisted by a number of permanent and ad hoc committees, which are frequently also constituted on a tripartite basis. The government is required by law to submit all proposals for social and economic legislation to the Council for its advice and any labour legislation – which would include proposals concerning occupational safety and health – comes before the Council.

It should be added that a number of countries require that workplace health and safety committees should or may be established for enterprises which have more than a certain number of employees. These committees are bipartite in nature and include representatives of the employers and the workers. These committees normally have as their function to investigate and propose all ways and means of actively contributing to measures undertaken to ensure the best possible health and safety conditions in the establishment, a role which can include the promotion and monitoring of health and safety conditions in the enterprise to ensure, among other things, adherence to applicable law and regulations. These joint committees are normally advisory in character. Workplace health and safety committees, for example, are legally required in Belgium, Canada, France, Germany, the Netherlands and Spain.

 

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Tuesday, 15 February 2011 17:43

Collective Bargaining and Safety and Health

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Collective bargaining is the process through which workers negotiate, as a group, with their employer; this can occur at various levels (enterprise, industry/sector, national). Traditionally, the subjects of the negotiation are wages, benefits, working conditions and fair treatment. However, collective bargaining can also address issues that do not directly affect the workers employed in the enterprise, such as increased old-age pensions for workers already retired. Less often, collective bargaining addresses issues that reach well beyond the workplace, such as protection of the external environment.

In a very small enterprise, it is possible for all the workers to negotiate as a body with their employer. This kind of informal collective bargaining has existed for centuries. Today, however, most collective bargaining is carried out by workers’ organizations, or unions.

The definition used in the ILO Convention concerning the promotion of collective bargaining, 1981 (No.154), Article 2, is broad:

...the term... extends to all negotiations which take place between an employer, a group of employers or one or more employers’ organizations, on the one hand, and one or more workers’ organizations, on the other, for –

(a) determining working conditions and terms of employment; and/or

(b) regulating relations between employers and workers; and/or

(c) regulating relations between employers or their organizations and a workers’ organization or workers’ organizations.

Collective bargaining is an important tool for raising living standards and improving working conditions. Even though safety and health is addressed in the national law of almost all countries, collective bargaining often provides the mechanism through which the law is implemented in the workplace. For example, the law may mandate joint safety and health committees or works councils, but leave the details to be negotiated between the employer and the workers’ organization.

Unfortunately, collective bargaining is under attack by authoritarian employers and repressive governments, both in developed and developing countries. It rarely exists in the informal sector or in small, traditional enterprises. As a result, the majority of the world’s workers do not yet enjoy the benefits of effective collective bargaining under a framework of worker rights guaranteed by law.

History of Union Action for Safety and Health

There is a long history of workers’ organizations taking collective action for safety and health. In 1775, Percival Pott, an English surgeon, made the first known report of occupational cancer – skin cancer in London chimney sweeps (Lehman 1977). Two years later the Danish Chimney Sweepers Guild, in what was the first known response by a workers’ organization to the threat of occupational cancer, ordered that apprentices be given the means for a daily bath.

 


The Labour Agreement between the Bethlehem Steel Corporation and the United Steelworkers of America

The agreement between Bethlehem Steel and the United Steelworkers of America is typical of company-wide agreements in large unionized manufacturing enterprises in the United States. Steel industry labour agreements have contained safety and health articles for more than 50 years. Many provisions negotiated in the past gave workers and the union rights that were later guaranteed by law. Despite this redundancy, the provisions still appear in the contract as a hedge against changes in the law, and to allow the union the option of taking violations to impartial arbitration rather than the courts.

The Bethlehem agreement runs from 1 August 1993 to 1 August 1999. It covers 17,000 workers in six plants. The full agreement is 275 pages long; 17 pages are devoted to safety and health.

Section 1 of the safety and health article pledges the company and the union to cooperate in the objective of eliminating accidents and health hazards. It obligates the company to provide safe and healthful workplaces, obey federal and state law, provide employees with the necessary protective equipment free of charge, provide chemical safety information to the union and inform workers of the hazards and controls for toxic substances. It grants the union’s central safety and health department the right to any information in the company’s possession that is “relevant and material” to an understanding of potential hazards. It requires the company to make air sampling tests and environmental investigations at the request of the union co-chairperson of the plant’s safety and health committee.

Section 2 sets up joint union-management safety and health committees at the plant and national levels, prescribes the rules under which they operate, mandates training for committee members, gives members of the committee access to all parts of the plant to facilitate the committee’s work and specifies the applicable rates of pay for committee members on committee business. The section also specifies how disputes over protective equipment are to be resolved, requires the company to notify the union of all potentially disabling accidents, sets up a system of joint accident investigation, requires the company to gather and supply to the union certain safety and health statistics, and establishes an extensive safety and health training programme for all employees.

Section 3 gives workers the right to remove themselves from work involving hazards beyond those “inherent in the operation” and provides an arbitration mechanism through which disputes over such work refusals can be resolved. Under this provision, a worker cannot be disciplined for acting in good faith and on the basis of objective evidence, even if a subsequent investigation shows that the hazard did not in fact exist.

Section 4 specifies that the committee’s role is advisory, and that committee members and officers of the union acting in their official capacity are not to be held liable for injuries or illnesses.

Section 5 states that alcoholism and drug abuse are treatable conditions, and sets up a programme of rehabilitation.

Section 6 establishes an extensive programme for controlling carbon monoxide, a serious hazard in primary steel production.

Section 7 provides workers with vouchers for the purchase of safety shoes.

Section 8 requires the company to keep individual medical records confidential except in certain limited circumstances. However, workers have access to their own medical records, and may release them to the union or to a personal physician. In addition, physicians for the company are required to notify workers of adverse medical findings.

Section 9 establishes a medical surveillance programme.

Section 10 establishes a programme for investigating and controlling the hazards of video display terminals.

Section 11 establishes full-time safety representatives in each plant, chosen by the union but paid by the company.

In addition, an appendix to the agreement commits the company and the union to review each plant’s safety programme for mobile equipment operating on rails. (Fixed rail equipment is the leading cause of death by traumatic injury in the American steel industry.)

 


 

 

However, safety and health seldom was an explicit issue in early labour struggles. Workers in dangerous jobs were overwhelmed by more pressing problems, such as low wages, crushing hours of work and the arbitrary power of factory and mine owners. Safety hazards were obvious in the daily toll of injury and death, but occupational health was not well understood. Workers’ organizations were weak and under constant attack by owners and governments. Simple survival was the primary goal of workers’ organizations. As a result, the grievances of nineteenth-century workers rarely manifested themselves in campaigns for safer conditions (Corn 1978).

However, safety and health sometimes joined other issues in early labour struggles. In the late 1820s, workers in the textile industry in the United States began to agitate for shorter working hours. Many of the workers were women, as were the leaders of such rudimentary unions as the female labour reform associations of New England. The proposed 10-hour day was seen mostly as an issue of general welfare. But in testimony before the Massachusetts legislature, workers also decried the effects of 12- and 14-hour days in badly ventilated mills, describing a “wasting sickness” they attributed to cotton dust and bad ventilation, in what are now recognized as some of the first reports of byssinosis. They had little success in winning recognition from the mill owners, or action from the legislature (Foner 1977).

Other union actions dealt more with the effects of occupational hazards than with their prevention. Many nineteenth-century unions adopted welfare programmes for their members, including disability payments to the injured and benefits for survivors. US and Canadian mining unions went one step further, establishing hospitals, clinics and even cemeteries for their members (Derickson 1988). While unions attempted to negotiate better conditions with employers, most agitation for safety and health in North America was in mines aimed at state and provincial legislatures (Fox 1990).

In Europe, the situation began to change around the turn of the century with the rise of stronger workers’ organizations. In 1903, the German and French painters’ unions began a campaign against the hazards of lead paint. The Factory Workers Union of Germany had an active industrial hygiene programme by 1911, published education materials on chemical hazards and began a campaign for safeguards against chromate-induced lung cancer, ultimately leading to a change in the production method. Trade unions in the United Kingdom represented their members in workers’ compensation cases and fought for better laws and regulations. Their work showed the interplay between collective bargaining for safety and health and the factory inspection system. In 1905, for example, trade unions filed 268 complaints with the British factory inspectorate (Teleky 1948). As early as 1942, the Swedish Employers’ Confederation and the Swedish Confederation of Trade Unions reached a nationwide Working Environment Agreement regarding local safety and health services. The agreement has been revised and extended several times; in 1976 the original parties were joined by the Federation of Salaried Employees (Joint Industrial Safety Council of Sweden 1988).

North America lagged behind. Formal corporate safety programmes were instituted by some large employers around the turn of the century (for a description of such programmes in the steel industry see Brody (1960), or the self-congratulatory Year Book of the American Iron and Steel Institute for 1914 (AISI 1915)). The programmes were highly paternalistic, relied more on discipline than education and often were based on the premise that workers themselves were largely to blame for industrial accidents. Major disasters such as New York’s 1911 Triangle Shirtwaist Fire, which killed 146 workers, led to union campaigns for improvement and ultimately to improved fire safety laws. However, safety and health as a widespread labour issue came only with the rise of strong unions in the 1930s and 1940s. In 1942, for example, the founding Constitution of the United Steelworkers of America required every local union to establish a safety and health committee. By the mid-1950s, joint labour-management safety and health committees had been established in most unionized mines and manufacturing plants and in many other workplaces in the construction and service sector; most union contracts included a section on safety and health.

Process of Collective Bargaining

It is common to think of collective bargaining as a formal process that occurs at regular intervals and which results in a written agreement between the workers’ organization and the employer or employers. This kind of bargaining presupposes a succession of demands or proposals, counterproposals and extended deliberations. The process can produce a variety of results: a collective bargaining contract, letters of understanding, joint declarations or mutually agreed codes of practice.

However, collective bargaining can also be understood as a continuous process for solving problems as they arise. This kind of collective bargaining occurs every time a shop steward meets with an area supervisor to settle a dispute or grievance, every time a joint safety and health committee meets to discuss problems in the plant, every time a joint union-management team considers a new company programme.

It is this flexibility of collective bargaining which helps ensure its continued viability. There is, however, one precondition for formal or informal bargaining: for negotiations to be a success, the representatives of both sides must have the authority to bargain and to strike a deal that is meant to be honoured.

Collective bargaining is sometimes seen as a test of strength, in which a gain for one side is a loss for the other. A wage increase, for example, is seen as a threat to profits. A no-layoff agreement is seen as limiting management’s flexibility. If bargaining is seen as a contest, it follows that the most important determinant of the final outcome is the relative power of the parties. For the workers’ organization, this means the ability to halt production through a strike, organize a boycott of the employer’s product or service or bring some other form of pressure to bear, while maintaining the loyalty of the organization’s members. For an employer, power means the ability to resist such pressures, replace the striking workers in countries where this is permitted or hold out until hardship forces workers back to the job under management’s conditions.

Of course, the vast majority of labour negotiations end successfully, without a work stoppage. Nevertheless, it is the threat of one that leads both sides to seek a settlement. This kind of negotiation is sometimes called positional bargaining, because it begins with each side taking a position, after which both sides move by increments until a compromise is reached, based on their relative strengths.

A second model of collective bargaining describes it as a mutual search for an optimum solution (Fisher and Ury 1981). This kind of bargaining assumes that a proper agreement can lead to gains for both parties. A wage increase, for example, can be offset by greater productivity. A no-layoff agreement can encourage workers to improve efficiency, since their jobs will not be threatened as a result. Such bargaining is sometimes called “mutual gains” or “win-win” bargaining. What is most important is the ability of each side to understand the interests of the other and to find solutions that maximize both. Occupational safety and health is frequently seen as an ideal subject for mutual gains bargaining, since both sides are interested in avoiding occupational accidents and disease.

In practice, these models of bargaining are not mutually exclusive and both are important. Skilled bargainers will always seek to understand their counterparts and search for areas where both sides can benefit from a wise agreement. However, it is unlikely that a party without power will accomplish its objectives. There will always remain areas where the parties perceive their interests to be different. Good faith negotiation works best when both sides fear the alternative.

Power is important even in negotiations over safety and health. An enterprise may be less interested in reducing the accident rate if it can externalize the cost of the accidents. If injured workers can be replaced easily and cheaply, without substantial compensation, management may be tempted to avoid expensive safety improvements. This is especially true in the case of occupational diseases with long latency periods, where cost of controls is paid when the controls are installed, while the benefits may not accrue for many years. As a result, a workers’ organization is more likely to succeed if workers have the power to stop production or to call a government inspector if the parties fail to negotiate a solution.

Legal Framework

ILO Conventions on freedom of association, on protection of the rights to organize and to engage in collective bargaining and the ILO Conventions and Recommendations on occupational safety and health recognize the role of workers’ organizations. While these instruments provide an international framework, workers’ rights can be assured only through national law and regulation.

Of course, the legal basis for collective bargaining, the level at which bargaining occurs and even the process of bargaining all vary by country. The legislation of most industrialized countries includes a system for regulating collective bargaining. Even within Europe, the degree of regulation can differ widely, from a minimal approach in Germany to a much more developed one in France. The legal effect of a collective agreement also varies. In most countries an agreement is legally enforceable; in the United Kingdom, however, agreements are seen as informal, to be applied by virtue of the parties’ good faith backed up by the threat of a work stoppage. It is expected that this variability within Europe will diminish as a result of greater European unification.

The level of bargaining also varies. The United States, Japan and most Latin American countries feature bargaining at the level of the individual enterprise, although unions often attempt to negotiate “pattern” agreements with all the major employers in a given sector. At the other extreme, Austria, Belgium and the Nordic countries tend to have highly centralized bargaining in which most workplaces are subject to a framework agreement negotiated between national federations representing unions and employers. Sectoral agreements covering particular industries or occupations are common in some countries such as Germany and France.

French-speaking African countries tend to follow the example of France and bargain by industry. Some English-speaking developing countries also bargain by industry. In others, multiple trade unions bargain on behalf of different groups of workers in a single enterprise.

The level of bargaining partially determines the coverage of collective agreements. In France and Germany, for example, collective agreements are usually extended to cover everyone coming within the scope of the occupation or industry to which the agreement applies. On the other hand, in the United States and other countries with enterprise-level bargaining, collective agreements cover only those workplaces where the union has been recognized as the bargaining agent.

An even more important factor in determining the coverage of collective bargaining is whether national law facilitates or impedes unionization and collective bargaining. For example, public sector employees are not permitted to bargain collectively in some countries. In others, public sector unions are growing rapidly. As a result of such factors, the percentage of workers covered by collective agreements varies from a high of almost 90 per cent in Germany and the Nordic countries to under 10 per cent in many developing countries.

The legal framework also affects how collective bargaining applies to occupational safety and health. For example, the United States Occupational Safety and Health Act gives workers’ organizations the right to information on dangerous chemicals and other hazards in the plant, the right to accompany a workplace inspector and a limited right to participate in legal cases brought by the Government against an employer for a violation of standards.

Many countries go further. Most industrialized countries require most enterprises to establish joint safety and health committees. The Canadian Province of Ontario requires that certified safety and health representatives be chosen by the workers in most workplaces and given a standard course of training at employer expense. The Swedish Work Environment Act requires the appointment of safety delegates by the local trade union organization. Swedish safety delegates have broad rights to information and consultation. Most important, they have the power to suspend dangerous work pending a review by the Swedish Labour Inspectorate.

These laws strengthen the collective bargaining process on issues of safety and health. Mandatory joint safety committees provide a routine mechanism for negotiation. Training gives union representatives the knowledge they need to participate effectively. The right to suspend dangerous work helps keep both parties focused on eliminating the source of danger.

Contract and Labour Law Enforcement

Of course, labour agreements are of limited value without an enforcement mechanism. A strike is one method by which a workers’ organization can respond to an alleged violation by the employer; conversely, the employer can engage in a lockout, denying employment to members of the workers’ organization until the dispute is resolved. However, most labour agreements in developed countries rely on less disruptive methods of enforcement. In fact, many labour agreements bar strikes or lockouts during the life of the agreement (no-strike clauses or peace obligations). Some restrict them to a limited set of circumstances; for example, the contracts negotiated in the United States between the United Automobile Workers and the major auto companies allow strikes over unsafe working conditions, but not over wages or benefits during the term of the agreement.

A common enforcement mechanism in developed countries is a system of arbitration, in which disputes are referred to an impartial referee chosen jointly by the employer and the workers’ organization. In some cases, disputes may be resolved by the judicial system, either in the regular courts or in special labour courts or boards. In the United States, for example, a dispute over contract interpretation usually will go to arbitration. However, if the losing side refuses to abide by the arbitrator’s decision, the winning side can seek to have the decision enforced by the courts. A quasi-judicial body in the United States, the National Labor Relations Board, hears complaints concerning unfair labour practices, such as the failure of one side to bargain in good faith. In many other countries, labour courts fulfil this role.

Collective Bargaining Today

Collective bargaining is a dynamic process in all industrial relations systems where it is practised. The situation in Europe is changing rapidly. The Nordic countries are characterized by comprehensive working environment agreements negotiated on a national basis, integrated with highly developed national laws. Unionization is very high; labour agreements and the law establish joint committees and worker safety representatives in most workplaces. Collective bargaining mechanisms for safety and health and unionization rates, are less extensive in other European countries. Member States of the European Union face the task of harmonizing national laws under the Single European Act and the Framework Directive on safety and health (Hecker 1993). European trade unions are seeking to coordinate their efforts, primarily through the European Trade Union Confederation. There are some signs that national bargaining ultimately will be replaced or, more likely, supplemented by agreements at the European level, although employer resistance to this is high. The first example of such Europe-wide bargaining was over parental leave. In the area of safety and health, the GMB union in the United Kingdom has proposed an ambitious Europe-wide Work Environment Fund, based on similar funds in the Nordic Countries.

Central and Eastern Europe and the countries of the former Soviet Union, are changing even more rapidly. Safety and health regulations were extensive under Communism, but rarely enforced. Trade unions existed, but only under the control of the Communist Party. At the enterprise level, unions functioned as workplace labour relations departments, under the control of management, without any sort of bipartite negotiation. Newly formed independent unions helped precipitate the fall of Communism; sometimes their issues concerned working conditions or such basic sanitary measures as the provision of soap in coal mine wash houses. Today, the old unions are gone or are struggling to reconstitute themselves. The new independent unions are attempting to change from political organizations confronting the government, to collective bargaining organizations representing their members in the workplace. Bad and often deteriorating working conditions will continue to be an important issue.

The Japanese system of worker participation, continuous improvement and extensive training effectively promotes safety and health, but only where safety and health are explicit goals of the enterprise. Most Japanese unions exist only at the enterprise level; negotiations take place through a system of continuous joint consultation (Inohara 1990). Joint safety and health committees are established by the Labour Safety and Sanitation Law of 1972, as amended.

Labour agreements in the United States contain relatively extensive safety and health articles for two reasons. First, safety and health is an important issue for North American unions, as it is for workers’ organizations in all industrialized countries. However, safety and health laws in the United States lack many of the provisions found in the laws of other countries, forcing unions to bargain for rights and protections guaranteed elsewhere by law. For example, joint union-management safety and health committees are generally recognized as an important mechanism for day-to-day cooperation and negotiation between workers and employers. However, there is no requirement in the US Occupational Safety and Health Act for such committees. As a result, unions must bargain for them. And since the rate of unionization is low in the United States, most workers do not have access to joint committees. Many unions in the United States also have negotiated contract clauses barring retaliation against workers who refuse to work under abnormally hazardous conditions, since legal protections are weak and uncertain.

Canadian law varies from province to province, although it is generally stronger than in the United States. For example, unions in Canada do not need to negotiate for the existence of safety and health committees, although they may negotiate for larger ones, with more powers. Safety and health committees are also required under Mexican law.

The situation in developing countries is mixed. Workers’ organizations in developing countries like India, Brazil and Zimbabwe place a growing emphasis on safety and health through agitation for improved laws and through collective bargaining. For example, the Zimbabwe Congress of Trade Unions has fought to extend the national labour code, including its safety and health provisions, to the country’s export processing zones (see box). But trade unions are severely restricted or suppressed in many parts of the world and the vast majority of workers in developing countries do not belong to any workers’ organization or benefit from collective bargaining.


Trade Union Action in Zimbabwe

The Zimbabwe Congress of Trade Unions (ZCTU), has launched a National Campaign for the Rights of Injured Workers, which combines national level and shop floor action to seek amended laws and improved collective agreements.

Zimbabwean law has since 1990 provided for safety committees, health and safety representatives and health and safety supervisors at all workplaces. The Zimbabwe Congress of Trade Unions has insisted that worker health and safety representatives must be elected by workers. Its National Campaign covers these demands:

  1. Safe work. This involves identification of workplace hazards through surveys and accident investigation, as well as negotiating to improve conditions.
  2. Worker and union participation in workers’ health issues. This includes the rights of workers to elect their own health and safety representatives, to obtain information such as safety data sheets and factory inspector’s reports, and jointly to investigate and report accidents and injuries (as in Sweden).
  3. Adequate compensation and care for injured workers. This extends to a review of compensation levels.
  4. Job security for injured workers. Trade union representatives have negotiated a right to return to work and be assisted in placement.

 

For the ZCTU, a key step in accident prevention has been its training programme to increase effective worker participation in health and safety at the shop floor level. The training for worker representatives has been in carrying out walk-through surveys at workplaces and in reporting on any hazards identified - first to workers and then to management for discussion. Once in operation, union health and safety representatives have been involved in inspections and in ensuring that injuries are reported. This is particularly important in sectors that would otherwise be inaccessible, such as agriculture.

The ZCTU has also demanded an increase in penalties that may be imposed on employers found to have infringed health and safety laws. 

by Chapter Editor (excerpted from Loewenson 1992).


 

The Future of Collective Bargaining

Workers’ organizations and collective bargaining face difficult challenges in the years ahead. Virtually all collective bargaining takes place at the enterprise, industry or national level. In contrast, the economy is increasingly global. Apart from Europe, however, workers’ organizations have yet to develop effective mechanisms for bargaining across national boundaries. Such bargaining is a top priority for international labour federations. It can best be promoted through stronger and more effective international union structures, strong social clauses in world trade agreements and appropriate international instruments, such as those of the International Labour Organization. For example, the ILO Tripartite Declaration on Multinational Enterprises refers specifically to both collective bargaining and occupational safety and health. Many unions are developing direct links with their counterparts in other countries in order to coordinate their bargaining and provide mutual assistance. One example is the relationship between mining unions in the United States and Colombia (Zinn 1995).

Rapid changes in technology and work organization can overwhelm existing labour agreements. Workers’ organizations are attempting to develop a form of continuous bargaining to respond to workplace change. Workers’ organizations have long recognized the links between the working environment and the external environment. Some unions have begun to address issues of the external environment in their collective bargaining agreements and in their membership education programmes. An example is the Model Environment Agreement proposed by the Manufacturing-Science-Finance (MSF) Union in the United Kingdom.

A fundamental purpose of trade unions is to take human rights and human welfare out of economic competition – to prevent an enterprise or a nation from seeking a competitive advantage by impoverishing its workers and forcing them to work under dangerous conditions. Collective bargaining is vital to safety and health. However, workers’ organizations are essential to collective bargaining and workers’ organizations are under attack in many developed and developing countries. The survival and growth of workers’ organizations will largely determine whether most workers enjoy rising living standards and improved working conditions, or face a deteriorating cycle of poverty, injury and disease.

 

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Contents

Preface
Part I. The Body
Part II. Health Care
Part III. Management & Policy
Part IV. Tools and Approaches
Part V. Psychosocial and Organizational Factors
Part VI. General Hazards
Part VII. The Environment
Part VIII. Accidents and Safety Management
Part IX. Chemicals
Part X. Industries Based on Biological Resources
Part XI. Industries Based on Natural Resources
Part XII. Chemical Industries
Part XIII. Manufacturing Industries
Part XIV. Textile and Apparel Industries
Part XV. Transport Industries
Part XVI. Construction
Part XVII. Services and Trade
Part XVIII. Guides