OHS Regulation for a Changing
World of Work
Review by Mark Westcott, University of Sydney
Liz Bluff, Neil Gunningham and Richard Johnstone (eds ) OHS Regulation for a changing world of work. The Federation Press, 2004; pb, 245 pp.
As the editors of this book explain in their introduction it is thirty years since the Robens Commission delivered its report on the regulation of OHS in the UK. This report subsequently shaped the nature of OHS regulation in a number of countries, including Britain, Australian and New Zealand. This legislation has slowly evolved since the 1980s but with the tenet of self regulation remaining central. However, how workers are engaged and the ways in which they work have changed dramatically since Robens report.
In Australia we have witnessed a shrinking in the size of the workplace and concomitant growth in small business; a growing proportion of the workforce now being employed as casuals; a significant change in the number and nature of self employed workers; as well as the liberalisation of vocational training. All these changes impact upon the effectiveness of OHS legislation, particularly the elements of employee participation.
In addition the way in which businesses are organised has undergone change with the development of often complex commercial arrangements between companies, individual contractors, and subcontractors which can blur the legal responsibility for the control of work and consequently health and safety responsibilities. The changes to industrial relations institutions such as declining trade union members, the destruction of multiemployer awards and growth in single employer and individual agreements create potential problems for not only employee input into health and safety but the enforcement of safe standards and practices. The contributions in this book specifically address whether the current regulation of OHS is appropriate and effective in the light of these labour market and company changes. It not only exposes the shortcomings of existing legislation but also provides suggestions and examples for how to address these shortcomings.
The book consists of eight chapters devoted to specific issues and trends that impact upon the effectiveness of OHS regulation. There are chapters on worker participation, small business, organisational changes and enforcement. The opening chapter by Bluff and Gunningham provides an overview and discussion of the changes in the regulatory approaches taken by Australian governments since the early 1980s. While it seems the current view of governments is to encourage the development of systematic OHS management the authors make clear that legislation retains elements of the specification standard, general duties and performance standard approaches. This ‘hybrid' style of regulation recognises that different approaches are more appropriate for particular workplace situations and particular hazards.
Perhaps the most difficult areas for OHS regulation to address are those elements of work organisation that contribute to injury and poor health. For example, staffing levels, task performance and rewards, job boundaries and work intensity all contribute to the level of health and safety at work. It is not coincidental that how work is organised has become more ‘flexibly' regulated under the current federal industrial relations law. Not surprisingly governments and OHS agencies have been reluctant to establish particular standards in these areas. Instead legislators have sought to encourage organisations to consider the OHS implications of these ‘work organisation' issues through the promotion of systematic OHS management within firms.
An example of this approach is the development of European Union directive 89/391 which requires companies in EU member states to systematically manage OHS. Companies should “define OHS risks broadly as ‘the work environment' which includes, for example, the organisation of work.” (45) Frick, in chapter two, discusses some of the issues surrounding this directive and its implementation and also draws out some of the constraints to effective implementation of systematic OHS management. Among these constraints are the structural obstacles that emerge as a consequence of corporate restructuring, outsourcing and the like. However, even in those companies where management retains control over the product and workforce OHS problems may prove to be expensive and require a great commitment of time and resources. Perhaps most problematic for this approach is to ensure effective employee or worker participation, particularly if this participation has union backing, and to make sure that organisation accept that issues of work organisation are relevant to OHS.
While the remaining chapters of the book all provide insightful commentaries on problems in achieving effective regulation of OHS given the changes of the last thirty years several of the chapters provide some insight into how some of these problems may be addressed. For instance in chapter three David Walters discusses why the central plank of worker involvement in OHS standard setting and enforcement has become more difficult to attain. He argues that OHS management and structured OHS management systems are far more effective when they allow for direct employee involvement. The presence of a trade union in the workplace has been important for supporting worker participation but in a context of declining union density and smaller workplaces employee involvement is not always assured. This situation is often less problematic for management (who may continue to see OHS as their responsibility and this view may be encouraged by some OHS management systems) than for workers.
Walters and Lamm, in chapter four, supply examples of how several EU countries have attempted to address the problem of worker participation in small business, particularly where unions are absent. One such example is the position of regional safety representatives which is a feature of Swedish regulation. These representatives are independent of the business or organisation and have mandated rights of access to and inspection of workplaces. They play a role in encouraging and supporting worker involvement in health and safety within smaller workplaces. Their independence and expertise relieve some of the burden on workers in smaller companies to gather their own information or organise fellow workers to become involved, something that is more difficult for precarious workers.
Employee participation is not the only tenet of Robens style reform that has been diluted by workplace changes. Changes in organisational structures and relationships have made it increasingly difficult to assign responsibility for OHS management and to enforce these responsibilities. Michael Quinlan examines these issues in chapter five. As well as describing the shortcomings of the existing frameworks, Quinlan discusses recent responses by agencies to these problems. Some responses involve a closer examination of where work is performed and in some cases the development of innovative approaches to tracking and identifying obligations and enforcing minimum standards. Quinlan argues that “there are promising options, such as the regulation of supply chains using contract-tracking mechanisms, licensing and registration, guaranteed union and community vetting, and integrated multi-agency enforcement regimes.” (142) These options are a mix of innovative approaches, such as supply chain tracking which can be aided by new information technologies, as well as older approaches, such as licensing and registration, which had been viewed by some industrial reformers as restrictive and anachronistic. The effectiveness of these methods depends in part on the resources available to agencies but perhaps more importantly the political milieu to support them. Quinlan notes that OHS agencies are left facing the consequence of government policies designed at ‘liberalizing' the labour market. These policies have been introduced with little or no consideration of their social or health effects. Consequently, the responses of these regulatory agencies need to be viewed as constrained by the prevailing political climate.
Enforcement is perhaps the most politicized element of OHS regulation. In chapter six Richard Johnstone reviews the approaches that have been taken by agencies to enforcing OHS regulation. A problem for enforcement agencies is to use their limited resources to try and minimise not only acute but chronic workplace injuries that stem from the way in which work is organised and performed. As Johnstone draws out, these chronic injuries have historically not been well captured or addressed through enforcement mechanisms. For some years now enforcement agencies have been balancing educative and informational enforcement approaches with deterrence and punishment approaches. As is the case in a number of other chapters Johnstone not only reviews past and existing approaches but discusses ways forward. In line with the move toward encouraging more structured OHS management, enforcement agencies should develop greater expertise in ensuring that OHS management systems are being implemented and are operating effectively.
Evidence that an organisation has a set of procedures for managing OHS collaboratively with workers is not enough; agencies should ensure that these procedures have been implemented. Enforceable undertakings, a remedy developed in corporate law, have been mooted or included in some OHS legislation. This remedy sees organisations make a formal undertaking to carry out certain actions with failure to do so exposing the organisation to court sanction. Clearly the armoury of enforcement agencies needs to be (and to some extent is) widened to address new OHS issues in an increasingly diverse work environment.
This book makes an important contribution to understanding the operation of OHS regulation. One of its real strengths comes from the constructive stance that the authors adopt. Not only do they highlight the shortcomings in the way the current regulatory regime operates, they provide ideas, suggestions and experience from other industrialised countries as to how these shortcomings may be addressed. It is a valuable resource, hopefully one that will be consulted by the more pragmatic and progressive of out political leaders.
Posted 28 September 2005