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.

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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