OHS regulation formation

How OHS regulations are formed, including what logic and conditions underpin law and policy design, is the focus of this first theme.

Influence of Robens’ assumptions. The Robens’ Report, published in the United Kingdom (and building on Nordic approaches developed in the 1960s), altered the landscape of OHS policy design because it criticized a prescriptive approach to OHS regulation and emphasized that the primary role of law should be to encourage workplace self-regulation (20). It recommended that OHS inspectors adopt an advice-giving role and that rigorous enforcement of legal sanctions be saved for those who persistently refuse to comply with regulations. It assumed a shared, natural identity of interest between employers and workers, which made workplace self-regulation possible and suggested that a general raising of the consciousness of management and workers should be sufficient to improve health and safety standards. The philosophy and design of OHS policy across jurisdictions, as shaped by principles laid out in the Robens’ Report (21), underpinned the focus of articles forming this concept.

Genn (22) addressed the question of whether employers and workers form an OHS identity of interest, examining responses to health and safety regulation among employers in the UK. She found that although a concurrence of interest sometimes occurred, it tended to be where OHS risks were serious and well known and an incident would cause severe economic damage to the company (eg, oil refineries, chemical works, lead smelting). Overall, the study found that an identity of interest could not be assumed between management and workers. Many employers were motivated to achieve good standards because of regulatory requirements or cost-benefit calculations, rather than safety interests. An employer and worker identity of interest was also absent in Grabe’s (23) study of consultation processes regarding OHS regulatory formation in the UK and Germany. She found that employers emphasized cost, competition and job loss, while unions prioritized work accident statistics and avoidance of harm to workers. Hart’s (24) study of Norwegian oil rigs found similar competing OHS safety values between employers and workers.

A Robens’ principle is that workplace parties can be spurred to create and maintain safe workplaces through general awareness of OHS laws and specific workplace sanctions. Several studies challenged these notions of general and specific deterrence, finding that these fail to adequately incorporate larger social factors in OHS behavior. A study by McCallum et al (25) of the views of Australian judicial officers about whether OHS prosecutions prevent those convicted of OHS offences from reoffending (specific deterrence) or whether convictions have a broader effect of deterring non-prosecuted companies from breaching OHS legislation in the future (general deterrence) found that judges were skeptical about each. Both general and specific deterrence required conditions that were not always present. In practice, long delays in process disassociated the crime from the punishment, thereby reducing impact on avoidance behavior. Also, although general deterrence relies on community awareness of the possibility of sanctions and their severity, information about OHS punishments was not necessarily communicated to communities.

General and specific deterrence principles were raised in two other articles. Quinlan (26) found little general deterrence activity in relation to organizational downsizing in Australia. The OHS agencies did not inform employers about detrimental physical and mental effects on workers of downsizing or related prevention responsibilities. Quinlan argues that this lack of information perpetuated a view among employers that downsizing posed no legal OHS obligations. In their study of an occupational disease outbreak in the US, Egilman et al (27) observed similar lack of public information about hazards, which might encourage workplace parties to address OHS problems. They found that, despite litigation being one of the most importance means for determining how and why occupational health disasters occur, there were few processes for making this information publicly available to protect public and occupational health.

Workplace self-regulation is a third aspect of a Robens’ approach to OHS. It involves the assumption of employer awareness of obligations, consciousness of dangers, knowledge about means of improving standards, and a clear definition of OHS responsibilities within companies (22, 28). The suitability of self-regulation for workplace health and safety was discussed in four articles. Gunningham (28) found these knowledge conditions lacking in the Australian mining sector, as did Genn (22) in her study of UK businesses. Egilman et al (27) proposed that an American food sector actively sought self-regulation, not because of common employer and worker interests, but in order to evade regulatory oversight, which in this case allowed employers to continue using toxic material and avoid liability for the consequences. In contrast, Sorensen et al (19) described a move toward increased workplace self-regulation in Denmark as enhancing worker health. However, an important contextual difference was that the self-regulation was combined with cooperative labor and employer local agreements on OHS.

A Robens’ approach would suggest that OHS inspectors should focus on playing an advice-giving role. This advisory role was addressed in several articles, where each questioned its applicability. Grabe (23) described an education and persuasion approach used by OHS inspectors in the UK and Germany that involved a process of first providing advice to employers, then following up with enforcement if the advice is not followed. She notes that this approach was not supported by labor, who in both jurisdictions, preferred to see inspectors make more use of their legal powers. Genn (22) suggested that the relatively soft approach of inspector advice-giving may not be well suited to small businesses or workplaces with no obvious major hazard. Her study found UK employers were mostly concerned with budgets and production concerns and unlikely to seek advice from inspectors who might request costly changes. Finally, when employers are aware that inspectors have discretion to either give advice or apply fines, this creates leeway for resistance to penalties. Gunningham’s (28) study of Australian OHS inspectors found that they required considerable self-confidence and negotiation skills in order to move from advice to an enforcement position in workplaces; attributes that inspectors did not always possess.

The politics of OHS regulation formation. A key challenge identified in articles was that of finding common ground about OHS regulatory needs among multiple parties with divergent interests. Articles in this concept considered coordination of regulation and the impact on legislation formation of different stakeholders, including the general public, employers, and unions.

Although OHS policy formation is usually driven by standard processes involving research, and expert knowledge, other non-systematic processes are also at play in legislative formation and change. Vierendeels et al (29) conducted an examination of major accident prevention legislation change process within the European Union between 1982 and 2003 and identified two major driving forces for legislative change. In addition to the “standard procedure” as described above, there was “shock-effect-induced procedure” where legislative change was irregular and followed major accidents. The type of victim influenced this shock effect, with civilian deaths following a major accident having a particularly strong impact on OHS legislation formation.

Studies highlighted how OHS regulations are influenced by interest groups that actively participate in the formation of what is considered as terrain for OHS regulation. Grabe’s (23) study of OHS regulation in the UK and Germany considered the quality of consultation between regulatory agencies and interest groups. Although trade unions and employers’ federations had forums to jointly consider ideas and proposed regulations, the different parties had systematically uneven access to the resources required to participate fully in this process. Employers had a structural advantage over labor through greater access to expertise and economic support. They were represented by specialists and academics, while trade unions valued working experience over technical scientific expertise and sent senior union officials to OHS working groups.

The nature of OHS evidence and regulation formation was also addressed in Egliman et al’s (27) study of flavor and extract manufacturers in the US popcorn butter industry. They describe how employer interest groups influenced what was considered as territory for OHS regulation. The relative prominence of employer interests in determining the scope of OHS regulation was also observed in a study of labor relations board decisions in Ontario, Canada, which found that decisions regarding work refusals due to unsafe work conditions systematically prioritized employer and production concerns (30).

Just as strong employers can shape OHS regulation, so can weakened unions contribute to under- and deregulation. Two articles linked weakened OHS legislation coverage to unions constrained by economic conditions. Grabe (23) noted that, where high unemployment exists, employers on health and safety committees can easily be critical of unions and make persuasive arguments about cost effectiveness. Dacanay & Walters (31) detailed how a deregulation of OHS legislation occurred in the context of Filipino state and regulator concerns about loss of maritime industry market share. The union members, facing high unemployment, withdrew from their protective OHS stance and accepted a commercially oriented focus.

Several articles addressed the challenge of coordinating regulatory systems for effective OHS practice. Coordination between OHS and other authorities across state and national borders was addressed in Bluff et al’s (32) Australian study of upstream duty holders and Grabe’s (23) study of OHS enforcement in the UK and Germany. Grabe found cooperation to be lacking in Germany because of different priorities between controlling authorities responsible for enforcement and inspectors. The Employers Liability Association inspectors concentrated on safety problems and equipment, while the Industrial Safety Standards inspectors examined environmental working conditions. In the American context, Egilman et al (27) documented how weaknesses in the coordination, organization, and mandate of regulatory bodies led four different occupational and environmental regulatory systems to each fail to detect and prevent an occupational disease outbreak. Poor regulatory coverage is also addressed in Dacanay and Walter’s (31) study of Filipino seafarers. The seafarer’s access to OHS protection was limited to the general state administrative regulations for Philippine exported labor. Seafarers fell through regulatory cracks because they fell outside the coverage of the Labour Code’s protective and preventive measures on OHS.

In sum, this theme provides insights into practical and political processes of OHS regulatory formation. Robens-type concepts of self-regulation, identity of interest, deterrence, and inspector advice-giving role are not always well suited to current workplace realities and can be poorly applied, yielding questionable results. As well, OHS regulations and processes can be shaped by public opinion and relative employer or labor influence or slip through the cracks between regulatory authorities.

Regulation challenges

Some health and sector issues have posed particular challenges for interpretation and enforcement of OHS law and policy. These regulation challenges are considered in this theme.

Psychosocial and mental health. Lippel et al (33) identified how the Quebec workers’ compensation administrative tribunal discouraged mental health claims with arguments that violation of OHS regulations was insufficient and “evidence of danger” was needed, while concurrently, Quebec penal courts tended to accept such claims. Inspectors managed this regulatory ambiguity, which was accompanied by a lack of related training about workplace mental health, by avoiding such claims. Johnstone et al’s Australian study (34) similarly found that OHS inspectors evaded psychological harm cases. The Australian inspectors chose to focus on traditional prevention activity, such as machine guarding, despite an inspectorate prioritizing of bullying and harassment. Inspectors in the Johnstone at al (34) and Quinlan’s study (26) reported that psychological harm cases were problematic because they involved a heavy reliance on verbal evidence and were difficult to verify. They could be quite complex and difficult to clearly link to OHS. All of the studies in this concept found that workers fearing reprisals were reluctant to give evidence or talk to inspectors.

Organizational restructuring. A second area of enforcement challenge identified in the articles is in that of downsizing and workplace health, where organizational restructuring was under-recognized as a determinant of workplace OHS standards. Sorensen et al (19) found that workplace downsizing was a major motivation for Danish employers to merge safety and cooperation committees, which led to fewer employee representatives. Interestingly, workplace parties reported that OHS improved in the merged system because the fewer representatives had more contact with managers at the central level. Two other studies in this review describe detrimental OHS effects of workplace organizational restructuring. Hart (24) found that downsizing on Norwegian oil rigs reduced the number of internal safety supervisors, which limited coordinating OHS mechanisms at each rig. Quinlan’s (26) review of OHS prosecution cases found that although Australian regulators and inspectors were aware that downsizing and restructuring impacted OHS standards, prosecutions were not launched because of the complexity of establishing a clear connection between downsizing and a deterioration of OHS processes. These varied findings suggest that the coordination and clarity of OHS communication between workplace and regulatory parties may be a factor related to whether OHS conditions are improved or hampered by OHS restructuring.

Complex contractual arrangements. A challenging area for OHS regulation is temporary work agencies and workers. Lippel et al (35) noted the difficulty of identifying the true employer in the context of three-way employment relationships in temporary work agencies. This has led to litigation in Quebec about the identity of the “true employer” and, in Ontario, workers’ compensation regulators allocated extra investigative resources to identify the employers when an agency is small and intentionally avoids formal registration of workers. Studies of the Philippines (31) and Australia (36) noted challenges for OHS regulation in relation to subcontracting and temporary work because of deliberate risk-shifting and confusion amongst duty-holders. Increasingly complex and fragmented work arrangements put pressure on the logistical demands of administering OHS law. The ambiguity of legislation can create challenges for OHS inspectors as they try to apply enforcement.

With conditions of globalized supply chains, remote sourcing and outsourcing, there is a need for broadly applicable OHS legislation. Bluff et al (32) identified an absence of coordinated and strategic approaches to address responsibility of upstream parties. Their examination of Australian prosecutions for upstream duty holders considered acts or omissions of multiple parties as contributing to OHS risks. The study found that agencies rarely pursue upstream duty holders even though Australian OHS statutes generally impose obligations on designers, manufacturers, suppliers and importers of parts, and of importers of substances. Instead, inspectors tend to focus on non-compliance in relation to the local accident context (eg, unguarded stairwells), rather than on upstream responsibility for “duty to others” (eg, designs, suppliers).

In all, this theme describes three areas that have posed particular regulation implementation and prosecution challenges. Psychological harm cases can become enmeshed in industrial relations, both mental health and organizational restructuring problems can be difficult to clearly link to OHS, and complex contractual arrangements can create risk shifting and complex accountability.

OHS inspector organization and practice

How OHS inspectors are organized shapes how they address workplace health risk. This theme addresses the practical arrangements of inspector work.

Interpretive leeway. In a time of fast-changing technology and changing forms of work, specific laws in OHS regulation (eg, about a particular exposure hazard), can become quickly outdated. Several articles addressed the increasing use across jurisdictions of non-specific laws, or general duty provisions, which impose broad obligations on employers to maintain safe workplaces. A challenge identified in the articles is that nonspecific provisions can be difficult for OHS inspectors to enforce. Grabe (23) noted that a clause in the UK’s Health and Safety at Work Act offers the qualifier, “so far as is reasonably practicable”, which creates interpretive challenges for inspectors and enforcement. Employers tend to interpret this as relating to reasonable cost investments, while inspectors also consider OHS risk and benefit.

Gunningham (28) found that Australian inspectors were most comfortable enforcing specific regulations and encountered difficulties when laws left significant room for interpretation, such as with the assessment of an organization’s adherence to performance standards. He further noted that significant training is needed for successful management-based regulation and there were clear gaps in small or less well-resourced jurisdictions. A further challenge occurs when OHS inspectors have considerable discretion about how they approach their role because this can result in inspectors taking dissimilar approaches to the same set of circumstances.

Inspector training. General duty laws that require considerable inspector discretion call for well-trained inspectors with skills and judgement to assess a wide range of complex OHS situations. However, not all inspectors possess this training. Gunningham (28) described Australian OHS inspectors as lacking consistent skillsets to gather robust evidence, which in turn can contribute to a reluctance to bring prosecutions. In their analysis of enforcement of psychosocial hazard standards in Quebec workplaces, Lippel et al (33) also raised the reluctance or inability of inspectors, due to inadequate training, to prosecute breaches of OHS law. They proposed that lack of training about complex psychosocial hazards limited inspector enforcement activity. Both Quinlan (26) and Johnstone et al (34) described how Australian inspectors have traditionally had trade backgrounds but are now increasingly being recruited from a wider range of backgrounds in order to have the capacity to deal with complex hazards and investigations.

Inspectorate staffing. Many articles raised the issue of OHS inspectorate under-resourcing and how this can lead to a focus on simple and quickly resolvable issues (23, 26, 28, 31–34). Understaffing can prompt the creation of a priority system that leads inspectors to address the most noticeably risky firms and not engage in proactive inspection visits or consider firms that are lower risk. Further, complex situations, such as psychosocial complaints and risk audits, may be avoided because of the relatively extended time required to investigate and the limited outcomes achieved (23, 32, 34).

Altogether, this theme links the training and organization of OHS inspectorates with their ability to apply regulation advice and enforcement. Non-specific regulations require a highly trained and flexible inspectorate. They also provide interpretive leeway to inspectors, which can make their performance difficult to monitor. Under-resourcing can direct inspectors’ focus to areas that are most quickly and easily resolved, leaving complex challenges under-addressed.

Worker representation in OHS

Ultimately, OHS systems are established for workers. This theme considers how and whether workers are consulted about workplace health risks and their role in injury prevention.

Worker consultation. OHS inspectors do not always consult workers during workplace visits, which can lead to under-informed inspector assessments. Grabe (23) noted this problem, observing that worker OHS representatives in the UK rarely had the opportunity to talk to inspectors during workplace visits. Similarly, Gunningham (28) describes how Australian miners and their trade unions identified a problematic lack of contact with inspectors.

Temporary workers are a growing group of workers who are systematically excluded from OHS representation. Lippel at al (35) noted that despite the legal mandate in Ontario that all workplaces with ≥20 workers have a joint worker-management OHS committee, this mandate fits poorly with temporary work agencies because workers are transient and dispersed.

Nature of worker involvement. The nature of worker involvement in workplace OHS systems was the focus of several articles. Some posed the question of which workers best represent their peer’s OHS needs. Harris et al (37) found that workplace technical experts, who might match the traditional “inspector role”, did not necessarily have a stronger impact on workplace OHS than administrative workers. Their examination of implementation in New Zealand workplaces of a newly legislated worker OHS participation role found that workers welcomed having any type of worker within their workplace as a legitimate channel to voice OHS concerns and provide avenues to solve them.

Two studies raised the representativeness of workers when they are not situated within a worksite. In their study of hospital workers in Denmark, Jeppesen & Boggild (38) described a system where workers were formally represented on committees, but did not always provide adequate representation when negotiating representatives were working at a community level and not employed in that workplace. In another case, Hart (24) described a lack of worker consensus among Norwegian oil workers about the role of trade unions in OHS and disagreement about wherever the senior, non-worksite-based trade union officials should legitimately be considered as OHS representatives. In another study, workers were seen as adequately involved but disorganized amongst themselves, leaving gaps in OHS oversight (38).

Finally, Sorensen et al (19) noted that management inherently holds more power in workplaces than workers. They examined the introduction of voluntary local worker-employer agreements in Denmark and noted that this decentralized approach of worker-manager agreements, which relies more on local management activities than on state mandates and oversight, may create an uneven power balance at local level, favoring employers.

In all, this theme shows how workers can play a key role in OHS systems by identifying hazards. It raises questions about the mechanics of worker representation, including whether representation is best provided by more senior or more local workers.