The World Trade Organization (WTO), established in 1995 as the result of the Uruguay Round of multilateral trade negotiations, is the successor to the General Agreement on Tariffs and Trade (GATT), the international trade agreement dating from the late 1940s. The WTO is the legal and institutional foundation of the world’s multilateral trading system. It aims to promote open international trade, not only in goods (as in GATT), but also in services and intellectual property. The WTO also has an explicit goal of advancing development, especially of the least developed countries.
The WTO is designed to promote trade, and related issues such as occupational safety and health are addressed only insofar as they may interfere with free trade. Two Agreements are relevant. The Agreement on the Application of Sanitary and Phytosanitary Measures addresses food safety and animal and plant health regulations. It permits countries to promulgate such regulations, but requires that they be based on science, applied only to the extent necessary to protect human, animal, or plant life or health, and should not arbitrarily discriminate between member countries. While member countries are encouraged to base their regulations on international standards, they are permitted to set more stringent standards if there is scientific justification or if they have based their standards on an appropriate risk assessment. The Agreement on Technical Barriers to Trade reinforces these precepts. Its goal is to prevent technical regulations and standards from posing unnecessary obstacles to trade. To this end, there is a code of good practice for promulgating standards and a requirement that standards be applied equitably to domestic and imported products.
While the foregoing two Agreements pertain principally to environmental, food quality, and pharmaceutical regulations, they could conceivably be applied to occupational health and safety. The summary statement from the 1995 Marrakesh meeting of the WTO provided for the formation of a working party on International Labour Standards. However, the WTO has thus far avoided addressing occupational health and safety, and several member governments, especially those of developing countries, have held that worker health should remain a national prerogative, uncoupled from international trade considerations. Therefore, the WTO has to date played no role in advancing occupational health and safety.
Economic integration in Europe is distinguished by its early origins, dating to the Treaty of Rome in 1957, and by the prominence that social and political issues have assumed alongside economic considerations. In fact, integration in Europe extends well beyond lowering trade barriers; it also includes the free movement of workers (and soon of people in general), the promulgation of binding transnational laws and regulations, and the creation of a transnational bureaucracy with substantial financial backing. As a result, occupational health has received considerable attention.
The European Economic Community (EEC), or Common Market, was established by the Treaty of Rome in 1957. This Treaty began to lift trade barriers among member nations, and established the EEC’s organizational structure. The Commission of the European Communities became the EEC’s civil service and bureaucracy, with its work carried out by 23 Directorates General (including one, DG V, responsible for employment, industrial relations and social affairs). The Council of Ministers handles major policy-making, while the European Parliament has a co-decision-making role.
The Court of Justice adjudicates disputes that arise under treaties. The Advisory Committee on Safety, Hygiene and Health Protection at Work (ACSH), established by the Council in 1974 to advise the Commission, includes representatives of labour, management, and the governments from each member country, and is supported by staff from the Health and Safety Directorate of the DG V. The ACSH reviews legislative proposals relevant to occupational health, initiates activities on specific hazards, and coordinates joint efforts. The Economic and Social Committee has a consultative role.
In 1978 the Commission introduced the first Action Programme on Health and Safety, with considerable support from the ACSH. It focused on hazardous substances, prevention of machinery hazards, monitoring and inspections and the improvement of attitudes towards health and safety. Since then, successive action programmes have been directed at other occupational health concerns such as ergonomics, occupational health statistics, assistance for small enterprises and training. These have promoted occupational health solutions throughout the member nations, providing training, technical advice and written materials. For example, in 1982 the Commission convened an informal group of senior labour inspectors to encourage personnel and information exchanges among the 12 nations, comparison of member countries’ practices and improved practice. Such initiatives exemplify how the integration of national economies can have positive effects on the practice of occupational health and safety.
The Single European Act (SEA) of 1987 signalled a major step forward in European integration and in the development of the European Free Trade Area. A firm date was set for the establishment of a Single Market, 1992, and activity in a range of social issues, including occupational health, was stimulated. Unanimity among member nations was no longer needed to set policy; instead, a “qualified majority” could do so. Two of the Act’s articles are especially relevant to occupational health. Article 100(a) aims to harmonize product standards in the member countries, a process that has important safety implications. This Article specifies that standards should achieve a “high level of health protection”. Article 118(a) directly addresses occupational health and safety, holding that member countries “shall pay particular attention to encouraging improvements, especially in the working environments, as regards the health and safety of workers, and shall set as their objective the harmonization of conditions in this area while maintaining the improvements made”.
In 1989, two important events further solidified the role of occupational health in the process of European integration. The Social Charter was adopted by 11 of the then 12 Member States, including a clause that emphasized “the need for training, information, consultation and balanced participation of workers as regards the risks incurred and the steps taken to eliminate or reduce them”.
Also in 1989, the Framework Directive was adopted by the Council, the first major policy initiative under the SEA. It defined the EC (now the European Union (EU)) approach to worker health and safety, extending to public and private employees in all member countries. Employers were assigned a general “duty to ensure the safety and heath of workers in every aspect related to work”, and specific duties to:
- evaluate workplace risks
- integrate preventive measures into all aspects of production
- inform workers and their representatives of risks and preventive measures taken
- consult workers and their representatives in all health and safety matters
- provide worker health and safety training
- designate workers with specific health and safety responsibilities
- provide appropriate health surveillance
- protect sensitive risk groups
- maintain injury and illness records.
The Framework Directive adopted a broad view of what workplace factors were relevant to occupational health, including design issues, monotonous work and piece-work. It called for active worker participation in health and safety programmes, including rights to advance consultation with employers on health and safety initiatives, paid time off to perform health and safety functions, meetings with government inspectors and refusal to work in case of “serious, imminent and unavoidable danger” (subject to national laws). A series of so-called daughter directives issued in the wake of the Framework Directive address the use of personal protective equipment, manual handling of loads, work with video display terminals and other issues.
Will the Framework Directive translate into effective national policy? Underlying this issue is the EU’s explicit commitment to the principle of subsidiarity, which holds that all policy should be implemented by member countries rather than by the EU, unless “by reason of the scale of effects of the proposed action” it is better carried out centrally. This will result in tension between the mandates of the central directives and the sovereign actions of the member countries.
Each member country is required to transpose the Framework Directive (like all directives) into national law, to implement policies accordingly and to enforce them in practice. This process leaves countries room for discretion and may allow some non-compliance. By all accounts the EU is not well equipped to monitor member country compliance with its occupational health and safety directives. Closer monitoring of each country’s practices, and the political will to use available remedies in cases of non-compliance (including appeal to the Court of Justice) will be necessary if the EU’s full potential in promoting occupational health is to be realized.
A related question concerns the fate of national policies that are more protective than those of the EU. Since Article 118(a) requires only a minimum common level of workplace protection, there may be a tendency towards downward harmonization in response to economic pressures.
In 1994 the Council, acting on a three-year-old proposal from the Commission, established the European Agency for Safety and Health at Work, sited in Bilbao, Spain. The Agency’s aim is to “provide the Community bodies, the Member States and those involved in the field with the technical, scientific and economic information of use in the field of safety and health at work”. It will focus on technical and scientific consultation to the Commission, information exchange, training, consistent data collection and promoting research.
In 1995 the Commission published its action programme for the period 1996-2000. One important component was continued attention to legislative initiatives—ensuring that Community directives be accurately transported into national law, and promulgating new directives on physical agents, chemical agents, transport, and work equipment. A longstanding Committee of Senior Labour Inspectors was formalized to harmonize methods of workplace inspection and to monitor the implementation of national labour laws. However, there was also considerable emphasis on non-legislative measures, principally information and persuasion. A new initiative, SAFE (Safety Actions for Europe) was announced, to address health and safety problems in small and medium-sized firms. The approach planned was to identify successful initiatives in model firms and to use these as examples for other firms.
In summary, European economic integration and free trade have evolved as part of a broader programme of social and political integration. This process has included serious discussions of social issues, including occupational health and safety. A complicated bureaucracy has several components that bear on workplace health and safety. The reference point for the EU is community law rather than national law, in contrast to every other free-trade agreement. This arrangement is the world’s most advanced example of promoting occupational health and safety as a component of free trade. It will affect more than the EU countries; occupational health and safety considerations will be part of every association, partnership and cooperation agreement between the EU and the countries of Central and Eastern Europe, extending this progressive tradition. The problems that persist—reconciling national sovereignty with coordinated progress, monitoring compliance with Community directives, reconciling differences between more and less progressive countries and sharing scarce technical expertise and resources—will continue to pose challenges to European integration in coming years.
The three nations of North America have been major trading partners for many decades. The first step towards a regional trading agreement was the US-Canada Free Trade Agreement of 1987, which lowered tariffs and other trading restrictions between those two countries. In the early 1990s, in preparation for a continent-wide trade agreement, US and Mexican labour authorities began several cooperative efforts, such as the training of labour inspectors. In 1993 Mexico, Canada and the US ratified the North American Free Trade Agreement (NAFTA), which took effect in 1994 for full implementation over about a decade. NAFTA was designed to abolish most trade restrictions among the three countries.
The process that led to NAFTA differed from the European experience in several ways. NAFTA had a shorter history and was negotiated rapidly. There was no tradition of incorporating social issues into the process. Environmental and labour concerns were ultimately codified in a pair of side agreements that were adopted alongside the NAFTA proper. Environmental groups had been active in the debate leading to NAFTA and won a number of environmental safeguards in the environmental side agreement, but labour groups took a different approach. Unions and their allies, especially in the US and Canada, vigorously opposed NAFTA and campaigned more to block the treaty altogether than for specific labour-friendly provisions. Moreover, there was reluctance among the three governments to relinquish any sovereignty regarding their respective labour laws. As a result NAFTA’s labour side agreement is relatively narrow compared to the environmental side agreement or to the European experience.
The labour side agreement, in an Annex, defines “guiding principles that the Parties are committed to promote, subject to each Party’s domestic law, but do not establish common minimum standards”. These principles include prevention of occupational injuries and illnesses, compensation in cases of occupational injuries and illnesses, protection of migrant workers and children, more traditional labour rights such as freedom of association, the rights to organize, bargain collectively and strike, and prohibition of forced labour. The stated objectives of the side agreement are to improve working conditions, encourage information exchange, data collection and collaborative studies and promote compliance with each country’s labour laws.
The early Articles of the labour side agreement urge each country to publicize its own labour laws internally and to enforce them fairly, equitably and transparently. Next, a Commission for Labour Cooperation is formed. It consists of a Council of the three labour ministers or their designees, which is responsible for policy-making and promoting cooperative activities, and a Secretariat headed by an Executive Director that will prepare background reports and studies and otherwise support the Council. Moreover, each nation is directed to establish a National Administrative Office which will serve as its liaison to the Commission and assist the Commission in its work. Several general procedures are set forth, such as a direction to seek expertise through cooperation with the ILO. However, the agreement defines few specific procedures in support of its objectives.
Much of the concern that drove the side agreement was that a member nation, usually presumed to be Mexico, might, through lax labour practices, gain an unfair trade advantage; this would expose Mexican workers to low wages and unwholesome working conditions and would transfer jobs away from US and Canadian workers. Hence, a large part of the side agreement is dedicated to procedures for handling complaints and grievances. If such a concern arises, the first step is supposed to be consultation between the governments involved at the ministerial level. Next, the Commission may form an Expert Committee of Evaluation (ECE), usually three qualified people “chosen strictly on the basis of objectivity, reliability and sound judgement”, to consider the matter, provided that the matter is trade related and is “covered by mutually recognized labour laws”. The ECE may rely on information provided by the Commission, each member nation, organizations or individuals with relevant expertise, or the public. The ECE report is provided to each member nation.
If the ECE concludes that one country may have failed to enforce its labour standards then a formal dispute resolution process may be triggered. Significantly, this process is available only if the dispute pertains to occupational health and safety, child labour or minimum wages. First, the involved nations attempt to negotiate a settlement. If they cannot agree, an arbitral panel is convened from a roster of experts established and maintained by the Council. The panel presents its findings of fact, its conclusion regarding whether a nation has failed to enforce its standards, and its recommendations for corrective action. If the involved nation does not comply with its recommendations, the panel may be reconvened and may impose fines. If a nation refuses to pay its fine, the ultimate penalty is a suspension of NAFTA benefits, usually through tariff imposition in the sector where the violation occurred, in order to recover the amount of the fine.
Overall, the labour side agreement, as a framework for occupational health and safety under NAFTA, is less extensive than corresponding European arrangements. The focus in NAFTA is on dispute resolution rather than on joint research, information sharing, training, technology development and related initiatives. The dispute resolution process, in the view of labour advocates, is cumbersome, time-consuming and relatively toothless. More importantly, the side agreement expresses no shared commitment to fundamental labour rights. It is assiduous in respecting each nation’s labour laws, and has no provisions for upgrading or harmonizing those that are deficient. Its scope is narrow, and although there has been little experience to date, it is likely that the broad European approach to occupational health, extending to such concerns as shiftwork and stress, will not be replicated.
Asia and Latin America
Although Asia is the world’s fastest growing economic region, free-trade negotiations in the region have not advanced significantly. Neither the ASEAN nor the APEC has addressed occupational health and safety in its trade negotiations. Similarly, the growing trading pacts of Latin America, such as MERCOSUR and the Andean Pact, have included no occupational health and safety initiatives.