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The machinery of
occupational safety
and health policy
in the European Union
History, institutions, actors
—
Laurent Vogel
Research officer, European Trade Union Institute
© European Trade Union Institute, 2015
ISBN 978-2-87452-370-0
Contents
05 Preface
07 Chapter 1
A long and winding road (1958-2004)
09 Developments in the European Treaties
13 Community regulation of safety and health at work
19 Chapter 2
The two Barroso Commissions: a lost decade
20 Bureaucratisation of decision-making
23 An ersatz strategy for 2014-2020
27 Chapter 3
Institutions and agencies
28 Institutions involved in the EU legislative process
32 Specific EU occupational safety and health bodies
41 Chapter 4
Fundamental principles of European OSH legislation
43 1989 Framework Directive: the benchmark law
44 Other directives
44 Many omissions to be made good
49 Chapter 5
The different levels of a prevention system
50 Worker participation
54 Preventive services
56 Employers’ OSH obligations
57 Labour Inspection Services
61 Chapter 6
Links with other Community policies
61 Market rules
66 The environment
68 Gender equality
71 Chapter 7
European social dialogue and health and safety at work
72 Social dialogue in Communit y law
74 The contribution of intersectoral social dialogue to OSH
76 Sectoral social dialogue
79 Conclusion
05
Preface
One of the aims of the European Trade
Union Institute (ETUI) is to provide tools for
analysis and information that enable a better
understanding of how the European Union
functions, particularly in terms of its social
policy developments.
Improved occupational safety and health (OSH) is a major challenge for the trade
union movement. When surveyed about what they expect from their unions, most
workers list occupational health as a top priority. Action in this regard is complex,
however. First, there is the essential day-to-day work undertaken by the unions in
the workplace. This is reinforced by networking the experiences of particular sec-
tors with regard to specic or regional issues. There are numerous links between
occupational health issues and other union objectives (democracy in the work-
place, gender equality, environmental protection, etc.). In addition, the need to act
across borders is increasing in line with international trade, globalisation and EU
enlargement. All these developments demonstrate the importance of cross-border
trade union cooperation and the production of joint strategies.
This guide is aimed primarily at worker representatives responsible for
health and safety at work and union ocials involved in this area. It will also be
useful to anyone with an interest in EU policy developments or involved in prevent-
ing occupational risks.
It gives an overview of the background to, principle actors in, and essential
tools of, EU occupational health and safety policy with the aim of contributing to
a better understanding of this policy and of facilitating eective intervention at
European level.
The information is up-to-date as of the end of March 2015. Our Institute’s
information tools, such as Hesa Mag magazine, the Hesamail e-newsletter and our
website, will provide regular updates of any changes.
07
Chapter 1
A long and winding road
(1958-2004)
The European Union is the product of the links forged between dierent European
countries in the aftermath of World War II. The Treaty of Paris established the
European Coal and Steel Community (ECSC) on 18 April 1951 for a 50-year period
that ended in July 2002. The six countries that created this Community were the
Federal Republic of Germany, Belgium, France, Italy, Luxembourg and the Nether-
lands. The coal mining and steel industries had a central role to play in rebuilding
the post-war economy.
In 1957 two new ‘Communities’ were established by the same six Member
States. The two ‘Rome Treaties’1 became eective on 1 January 1958. One estab-
lished the European Atomic Energy Community (EAEC) referred to in shorthand
as Euratom. The other laid the foundations of the European Economic Community
(EEC) usually referred to at the time as the ‘Common Market’.
The EAEC is an industry community whose main objective is rapid growth
for the nuclear industries cast as a contributor to raising the standard of living
in the Member States. The European Atomic Energy Community has not merged
with the European Union, but has kept a distinct legal personality while sharing
the same institutions.
The EEC has powers across all sectors of the economy. Dierent treaty rev i-
sions accompanying the further development of the Community have expanded
the spheres of responsibility of what has become the European Union.
1. The term ‘Treaty of Rome’ used without further qualication below means the Treaty establishing the
European Economic Community. The other Treaty of Rome is referred to as the ‘Euratom Treaty’.
08
The executives of the three Communities were merged in 1965, but the term ‘Euro-
pean Union’ was not used until the Maastricht Treaty which came into force on 1 November
1993. The European Union took over all the competences of the ECSC when it ceased to
exist in July 2002.
The European Union has been repeatedly enlarged from its original six founding
Member States, starting in 1973 with the accession of Denmark, Ireland and the United
Kingdom. The biggest enlargement came in 2004, when the European Union increased
from 15 to 25 Member States, mostly by new additions from the former Soviet bloc. At the
present time, the European Union has 28 Member States.
Negotiations are underway with other countries also wanting to join. Those lined
up in 2015 are Albania, Macedonia, Montenegro, Serbia and Turkey. Two further countries
regarded as potential candidates are Kosovo and Bosnia-Herzegovina. As part of the nego-
tiations for joining the European Union, the States concerned are gradually incorporating
the Community workplace health and safety rules into their national law.
An agreement on the European Economic Area was also concluded in 1992 with the
European Free Trade Association (EFTA) countries. This was rejected by the Swiss people
in a referendum and currently covers Iceland, Liechtenstein and Norway. The EU health
and safety at work directives have to be implemented in these countries and the rules on
the markets in work equipment and chemicals also apply. While there is no obligation for
these directives to be implemented in Switzerland, in practice a part of the Community
rules on health and safety at work have been voluntarily incorporated into Swiss law.
Health and safety under the ECSC and Euratom
Article 3 of the ECSC Treaty provided for ‘improved
working conditions and an improved standard of living
for the worker s in each of the industries for which it
is responsible so as to make possible their harmonisa-
tion while the improvement is being maintained’. This
general provision did not vest law-making powers in
the ECSC apart from in one very specific area: it could
put a stop to reductions in wages if these resulted in a
drop in workers’ living standards and were used by busi-
nesses as a means of permanent economic adjustment
or inter-firm competition. The ECSC’s assigned task, by
contrast, was to promote technical and economic re-
search (Article 55 of the ECSC Treaty), a responsibil-
ity that also covered occupational safety. In the wake
of the Marcinelle disaster in Belgium (8 August 1956)
that cost the lives of 262 miners, the ECSC Council of
Ministers created a permanent body for safety in coal
mines, its jurisdiction being later extended to all the
extractive industries. In 1964, the ECSC also set up a
general committee for health and safety in the steel in-
dustry. Health and safety have been affected by count-
less research programmes into hygiene, ergonomics,
occupational safety and occupational medicine. The
present-day European Union has a tripartite working
group reviewing issues of health and safety in the ex-
tractive industries – the Advisory Committee for Safety
and Health, frequently referred to as the ‘Luxembourg
Committee’.
The Euratom Treaty has a separate chapter on protect-
ing the health of workers and the general public against
the dangers arising from ionising radiations by setting
basic standards, the first of which were laid down in
Directives of 2 February 1959. These have been repeat-
edly amended and the current benchmark provisions
are those of Directive 2013/59/Euratom. Legal rule-
making under Euratom is subject to different legisla-
tive procedures than those used for the EU’s binding
instrument s, a factor that reduces the input that trade
unions can have. Euratom worker protection rules
pay scant at tention to the workplace labour relations
system. No mention is made of participation and con-
sultation of workers who are treated as the objects of
protection measures requiring mere information and
training, thereby reflecting a technocratic, authoritar-
ian approach to prevention. Collective representation
09
Developments in the European Treaties
The Treaty of Rome
The basic premise of the Treaty of Rome was that competition, economic growth and social
progress were linked for the good. Its optimistic outlook was reected in Article 117, cur-
rently reworked into Article 151 of the Treaty on the Functioning of the European Union
(TFEU): ‘The Member States have as their objective the promotion of improved living and
working conditions so as to make possible their harmonisation while the improvement is
being maintained.
They believe that such a development will ensue not only from the functioning of
the internal market, which will favour the harmonisation of social systems, but also from
the procedures provided for in the Treaties and from the approximation of provisions laid
down by law, regulation or administrative action’.
There is a twofold political and legal ambiguity here. Politically, the Treaty takes it as
read that creating a Europe -wide marke t will have a knock-on eect of har monising so cial/
employment conditions within it (what economists call a ‘spillover eect’). This belief is
partly explained by the very specic historical context of the post-war boom decades – that
period in the history of Western Europe beginning with the post- World War II years of re-
construction and ending in the mid-1970s’ economic downturn, rising tide of labour unrest
and disintegration of the Soviet bloc. In this relatively brief lull, enterprise capitalism in
the founding states of the European Union was mitigated by major concessions to workers
while economic growth was put centre stage in the global division of labour. This resulted
in an accumulation of material wealth and, under the constant pressure of organised la-
bour struggle, a less unequal distribution of wealth than before or since2. The context was
conducive to a culture of compromise, enabling a signicant expansion in social security
systems and the institutionalisation of collective labour relations in workplaces, industries
and politics. Having a job was more important than having a good job.
2. This more egalitarian interlude in the history of capitalism is extensively documented in Piketty (2013) Capital in the
Twenty-First Century, Harvard University Press.
for workers is mentioned in the Euratom founding
documents in one eventualit y only – where the com-
petent authorities of each Member St ate are allowed
to specifically authorise firms to exceed the maximum
exposure levels set for workers for a limited time and in
certain work areas (Article 52 of Directive 2013/59/
Euratom). The structure of employment in the nuclear
power industr y creates working conditions that place
subcontracted workers at heightened risk of the most
hazardous exposures. The Communit y legal rules un-
necessarily link health protection to individual exposure
levels, this being an approach that faces subcontracted
workers with an unaccept able choice – to try to keep
their jobs by fiddling the dosimeters that record expo-
sure levels, thereby putting their health at risk, or to
follow the rules and be treated as ‘Kleenex workers’, i.e.
discarded once the maximum annual exposure levels
have been reached.
Read more
Mengeot M.-A. (2012) The daily dice with death. The perils
workers f ace from nuclear technology, Brussels, ETUI.
Thébaud-Mony A. (2011) Nuclear servitude: subcontracting
and health in the French civil nuclear industr y, Baywood.
10
Against this backcloth, the creation of the European Economic Community can be
viewed from two angles – as a western European process bringing states together around a
common venture, but also as an armation of a specic kind of western European identity,
i.e. not only opposed to the Soviet bloc Stalinist regimes but characterised also by a form
of alliance-building dierent from that of the United States. The European project was
beset by no major political dierences between traditional mainstream political forces.
There are dierences in the scale and speed of the process to be implemented (depending
on whether the primary impetus is that of a federal Europe or that of national sovereignty),
but considerable like-mindedness as to the content of European policies. The one area con-
cerning which the founding states were substantially at loggerheads during this rst stage
was agricultural policy.
Subsequent developments showed that market unication was compatible with wid-
ening inequality gaps both between and within EU member countries. Far from bringing
about a spontaneous ‘harmonisation of living and working conditions while the improve-
ment is being maintained’ (the objective set by Article 117 of the Treaty of Rome), unbridled
compet ition was able to use employment conditions as cyclical buers, and paring them away
delivered a competitive edge. This is apparent from the wide variations today visible in the
European Union between wages and the share of welfare benets in gross domestic product.
The legal ambiguity is not conned to the social chapter of the Treaty of Rome. The
very principles of the Treaty enshrine the overriding importance of the purely economic
functions of law. What it describes as four fundamental freedoms is the translation into
law of enforced competition between workers, goods, business and capital. The only im-
portant areas of employment jurisdiction overtly specied in the earliest days of European
integration are functional in relation to and an adjunct of the free movement of workers.
They relate to the creation of a common labour market and its necessary consequence of
coordinated social security systems. These powers are exercised proactively through a co-
pious body of secondary legislation3. The adoption of the principle of equal pay for men and
women was itself driven by considerations of economic competition. France already had
provisions on equal pay and believed that writing it into the Treaty of Rome would oset
the dismantling of trade barriers4. It felt that the very low salaries of women in the Italian
textiles industry would undercut its own businesses. Article 119 of the Treaty of Rome was
negotiated less because it represented a fundamental social right than because it would
avoid distortions of competition. This hard-nosed concern kept this Treaty provision to no
more than a simple statement of intent for the rst fteen years of European integration.
The same tendency to reduce the law to economic considerations can be seen in
much of the case law of the Court of Justice of the European Union. Be it free movement
of workers or equal pay for men and women, the Court’s decisions tend to characterise
the employment relationship predominantly in economic terms of competition between
individuals in a market, the denition of which can be extended to the wider labour market
where freedom of movement is concerned or conned to a particular business where equal
pay is the issue. Where collective rights are concerned, it subordinates fundamental rights
like the right to strike to economic considerations as to the impact of collective action on
freedom of movement of businesses.
3. The term ‘secondary legislation’ or ‘secondary law’ refers to the entire corpus of legal rules produced by the European
institutions as opposed to ‘primary law’ which consists of the Treaties establishing the European Union and governing
its operation, which are negotiated and ratied by the Member States.
4. Jacquot S. (2014) L’égalité au nom du marché ? Émergence et démantèlement de la politique européenne d’égalité
entre les hommes et les femmes, Bruxelles, P.I.E. Peter Lang.
11
The Treaty of Rome does not expressly address any other aspects of labour law ex-
cept in provisions of limited scope (like the standstill5 rule on holiday pay) or in some spe-
cic sectoral policies (transport, agriculture). It is true that Article 117 specied that pow-
ers in respect of employment would be exercised ‘under the procedures provided for in this
Treaty’, but the fact is that no specic procedure was provided for other than provisions
on the free movement of workers and coordination of social security systems. In practice,
the failure to provide a specic legal basis for social/employment matters resulted for over
fteen years in a fairly meagre output of comparative studies, seminars and declarations.
The very most the institutions did was to produce recommendations of no binding legal
eect on the Member States.
From the first social action programme to the Single European Act
Not until 1974 was the rst social action programme adopted with proposals for a substan-
tial body of new laws. The Treaty would not be amended but reinterpreted to enable social
directives to be adopted with an economic justication, namely, achievement of the com-
mon market. These were matters of subsidiary social jurisdiction, whose legal bases were
Articles 100 and 235 of the Treaty of Rome.
Things changed with the entry into force of the Single European Act (SEA) on 1 July
1987. The revision of the Treaty gave a more solid foundation to the development of a proper
corpus of Community social law. It set out to enshrine a better balance between the Treaty’s
social and economic provisions, to which end it made protecting workers’ health a ‘consti-
tutional’ element, as it were, of the single market process through the introduction of a new
Article 118a. This was promoted by Denmark in the negotiations for the Single European
Act in an eort to ensure that competition in the single market could not undermine the
rules protecting health and safety of workers. It was a position backed by the European
trade union movement.
The wording of Article 118a is not unambiguous, however6. In the traditional man-
ner of Community compromises, the quality of legal drafting is secondary to political de-
mands in negotiations. Each Member State is keen to leave its mark in the nal text so that
it can later challenge the actual import of decisions if need be.
What is clear in Article 118a is its provision for a legislative harmonisation of work-
ing conditions through Directives adopted by qualied majority. Improvements to working
conditions are an area of responsibility shared by the European Community and the Mem-
ber States. Harmonisation is an aim that can only be legislated into existence. Directives
aim to bring about a minimum harmonisation, leaving Member States free to maintain or
introduce measures providing a higher level of protection for workers. This harmonisation
has to be achieved ‘while the improvement is being maintained’, which means both that it
must contribute to raising the level of existing national laws and that this competence is
exercised through steady positive improvements to the common rules.
5. A ‘standstill’ clause imposes a principle of non-retrogression: the Member States cannot reduce the current length of
statutory paid leave.
6. The European Court of Justice (ECJ) judgment of 12 November 1996 – United Kingdom v. Council (C-84/94) – is key
to interpreting Article 118a. In it, the Court refused to annul the 1993 Working Time Directive, dismissing the British
government’s arguments that Article 118a was not an appropriate legal basis for regulating working time.
12
7. With exceptions, however, for the United Kingdom and Poland.
Health and safety as a fundamental social right
Health and safety has been recognised as a fundamental
social right by various international and European legal
instruments.
In 1989, the EU countries – the United Kingdom ex-
cepted – a dopted a Community Char ter of Fundamental
Social Rights, Article 19 of which provides that: ‘Every
worker must enjoy satisfactory health and safety con-
ditions in his working environment. Appropriate meas-
ures must be taken in order to achieve further harmoni-
sation of conditions in this area while maintaining the
improvements made.
These measures shall take account, in particular, of the
need for the training, information, consultation and
balanced participation of workers as regards the risks
incurred and the steps t aken to eliminate or reduce
them. The provisions regarding implementation of the
internal market shall help to ensure such protection’.
It is a political declaration, but nonetheless taken into
account in EU cour t rulings interpreting national and
Community legal rules.
On 7 December 2000, the Nice European Council
proclaimed the Charter of Fundamental Rights of the
European Union. Article 31 refers to health and safet y
at work in the following terms:
‘1. Every worker has the right to working conditions
which respect his or her health, safet y and dignity.
2. Every worker has the right to limitation of maximum
working hours, to daily and weekly rest periods and to
an annual period of paid leave.’
This is less precise and expansive than the previous provi-
sion. The Treaty on European Union, adopted in Lisbon,
gives the Char ter the ‘same legal value as the Treaties7‘.
The European Social Charter was adopted by the
Council of Europe which has 47 European member
countries. Various of its provisions relate to health
and safety. All Council of Europe countries have also
joined the European Convention on Human Rights and
Fundamental Freedoms which, while it does not explic-
itly mention occupational health and safety as being
a fundamental human right, has many provisions that
can be relied on where health is damaged by working
conditions. The Convention enables legal proceedings
to be brought in the Strasbourg-based European Court
of Human Rights which has latterly dealt with several
cases concerning health and safety at work. The Lisbon
Treaty provided for the EU to sign up to the European
Convention on Human Rights and Fundamental
Freedoms. The process of doing so is ongoing.
The key legal instruments at international level are the
International Labour Organisation Conventions, many
of which concern health and safety at work. They are
adopted on a tripartite basis at the international labour
conferences held ever y June in Geneva. To be imple-
mented at national level, they must be ratified by the
Member States. Trade union organisations argue that
any international trade agreement should refer to the
main ILO Conventions and include practical means of
enforcement as being essential to avoid competition
that undermines workers’ fundamental rights.
The subject-matter of this competence is less clear. Article 118a refers to the ‘working en-
vironment’ – a concept unknown to eleven of the then-twelve Member States. It was bor-
rowed from the Danish law concept of arbejdsmiljø, referring to a broader approach to
health and safety matters to cover not just the physical risk factors but also the intangible
factors relating to work organisation. The ‘wiggle room’ was further increased by the use
of the qualier ‘in particular’, opening the door to a broad and evolving denition of that
jurisdiction. While establishing competence in social/employment matters in order to pur-
sue a discrete objective of protecting workers’ health, Article 118a also made reference to an
13
economic clause couched in cryptic terms: Directives adopted under it must avoid impos-
ing constraints ‘in a way which would hold back the creation and development of small and
medium undertakings’. Literally taken, this provision opens any employment regulations
to challenge. Prohibiting child labour could be claimed to prevent the creation of an SME
that employed children. The wording chosen creates an uncertainty that can call second-
ary legislation into question as being dislocated from the central objective enshrined in the
primary law of the Treaty: improving working conditions.
The entire subsequent history of Community regulation of health and safety at work
bears the imprint of this contradiction. Some laws have had ambitions beyond the require-
ments of existing national laws. Carcinogens Directive 90/394 is a case in point. At the
time, no Member State had introduced comprehensive legislation on workers’ exposure
to carcinogens, so the directive undeniably contributed to improving existing situations.
But there are also big omissions from the legal rules. Psychosocial risks, for example, fea-
tured only in two fairly unassuming framework agreements adopted by the European so-
cial partners. Community legislation in this area is lagging behind that of various Member
States and certainly not contributing to harmonisation while the improvement is being
maintained. Community law has failed to develop rules on preventing musculoskeletal dis-
orders, because eective prevention of them means challenging the employer’s power to
determine work organisation. Instead of tackling the matter head on, Community law has
sought to dodge the issue by regulating a handful of risk factors – handling of heavy loads,
work on VDUs and vibrations – on a standalone basis.
Community regulation of safety and health at work
Safety and health at work Directives make up the bulk of Community social/employment
law. Between 1977 and 2013 more than thirty Directives were adopted, fundamentally cov-
ering employers’ duties to their workers. This is a classic pattern in labour law, especially
where health and safety are concerned.
The early Directives were mainly about laying down substantive rules, the scope
of which alone pointed to what was expected of those concerned. This was particularly
so with those Directives setting limit values or prohibiting spray-on applications with as-
bestos. Over time, Community law has evolved more and more towards what is known as
reexive law8 where the Directives still specify a limited number of substantive rules (for
example, banning asbestos or setting maximum noise exposure levels) but increasingly
lay down a general duty to provide safe working conditions with best-endeavours obliga-
tions that put specic procedures in place (risk assessment document, planned prevention,
health surveillance, etc.).
These procedures have multiple functions that interact to form a system:
1. They require all relevant information to be taken into account and result in appropriate
decisions. This gives the process a prevention-driven aspect.
2. They structure the employer’s safety activity by prescribing a strict order of priority of
preventive measures.
3. They restrict the employers’ power over work organisation by requiring mechanisms for
consulting workers or their representatives to be put in place.
8. Teubner G. (1996) Droit et réexivité : l’auto-référence en droit et dans l’organisation, Paris, LGDJ.
14
4. They lay down the basics of traceability, like the written risk assessment document,
keeping records on work accidents or workers exposed to carcinogens, etc.
Five stages can be distinguished in Community rule-making on workplace health and
safety, but this breakdown into phases does not match up to a strictly chronological time-
line. Community rules are built up layer by layer, with each stratum bearing traces of a
previous era.
The first three stages (1962-1988)
The rst stage begins very early in the Community’s history. The Commission adopted a
Recommendation on company medical services on 20 July 1962, followed on 23 July 1962,
by a Recommendation to harmonise the systems for the recognition and reporting of occu-
pational diseases in the countries of the Economic European Community. While the former
is no longer of anything more than historical interest, the latter has since been expanded
through new Recommendations adopted on 20 July 1966, 22 May 1990 and 19 September
2003. This rst stage was not an unqualied success – the open system of recognition of
occupational diseases called for by the Recommendation of 20 July 1962 was, for instance
not incorporated into Belgian law until the Act of 29 December 1990.
Thereafter, occupational health virtually drops o the Community radar between
1966 and 1977 – a hiatus that coincides with the period of most widespread labour ferment
over working conditions. Improvements in this period came as a slow drip both through
developments in many Member States’ national laws and the discussions that took place in
the International Labour Organisation. During this phase of inaction, however, one indus-
try stood apart in terms of levelling-up the conditions of competition. The transport indus-
try received the rst two binding pieces of legislation impacting on occupational health:
Regulation 543/69/EEC of 25 March 1969 on the harmonisation of certain social legisla-
tion relating to road transport and Council Regulation (EEC) No 1463/70 on the introduc-
tion of recording equipment (tachographs) in road haulage.
The late 1970s ushered in a third stage focused on occupational hygiene. The start-
ing point can be pinpointed as the scandal that erupted around the exposure of workers
to a chemical widely used in the plastics industry – vinyl chloride monomer. The main
industrial groups concerned had concealed from European and United States public au-
thorities alike the data they had collected establishing beyond doubt that exposure to the
chemical was causing cancer in workers9. The Commission prioritised the development of
binding Community instruments on two grounds: the protection of workers’ health and a
level playing eld between rms.
After the adoption of a Safety Signs at the Workplace Directive of 25 July 1977, the
EU turned its sights on setting mandatory exposure limits. This it did in Vinyl Chloride
Monomer Directive 78/610/EEC of 29 June 1978. This Directive contained an unusual pro-
vision for legislation adopted under Article 100 of the Treaty of Rome – it provided for
minimum requirements, leaving it to Member States to adopt higher levels of prevention at
the workplace if they so wished. Traditionally, Article 100 of the Treaty of Rome was used
9. Livock R. (1997) Science, law and safety standards: a case study of industrial disease, British Journal of Law and
Society, 6 (2), 172-199; Soritti M. et al. (2013) Vinyl chloride: a saga of secrecy, in EEA (ed.) Late lessons from early
warnings: science, precaution, innovation, Copenhagen, European Environment Agency, 179-202.
15
to achieve full harmonisation. The way in which the specic objective of intervening on an
aspect of labour law required a dierent approach from that which prevailed for the rules
on movement of goods is clear to see. The weakest element of this Directive concerned oc-
cupational health services. It laid down an obligation for workers to undergo regular medi-
cal examinations, but there was no obligation for Member States to centralise and analyse
the data. Medical checks were not a new thing for plastics rms, but the data collected had
never been disclosed to the public authorities. The Directive established no mechanism for
workers’ collective control of risk assessments and preventive measures.
The cornerstone of EU provision to harmonise occupational hygiene was Directive
80/1107/EEC of 27 November 1980 on chemical, physical and biological risks. This Di-
rective species that the obligations it lays down need be complied with only ‘so far as is
reasonably practicable’. This form of words was alien to the legal systems of most Member
States. It existed only in the United Kingdom and Ireland, where it was interpreted as sub-
jecting prevention obligations to a ‘cost-benet’ calculation. It would be dropped in the
subsequent stage of Community regulation. Similar provisions were to be found in the law
of countries that joined the EU after 1992: Finland, Malta and Cyprus. The only country to
have continued interpreting the ‘SFAIRP’ clause in the traditional way is the UK, the others
having either repealed or redened it in terms consistent with the 1989 Framework Direc-
tive which have eectively scaled it down to a variant of ‘force majeure’.
The 1980 Framework Directive set the Community a programme for the systematic
development of mandatory limit values. Nine chemicals or families of chemicals were con-
sidered priority, but only two were legislated on: lead in Directive 82/605/EEC and asbes-
tos in Directive 83/477/EEC (see table on p. 39). One physical agent was also regulated in
the Noise Directive 86/88/EEC. The negotiations for each of these directives were dicult
and embroiled in ongoing controversy about the alleged cost of employers’ obligations.
Directive 80/1107/EEC was also the basis for adopting Council Directive 88/364/
EEC outlawing four aromatic amines. This Directive had a more general scope in that it
prohibited certain agents or activities. The four banned carcinogens were included in a list
which it was planned would be gradually expanded. In reality, it was the swan song of this
period of new legislation. After negotiations for a Benzene Directive foundered, the setting
of mandatory limit values was abandoned with the revision of the 1980 Directive on 16
December 1988. Limit values would henceforth not be binding but indicative10 . The para-
dox is stark: whereas in 1986, the Treaty stated for the rst time that binding texts (direc-
tives) were needed to harmonise the working environment, the lawmakers of 1988 changed
the linchpin directive of this provision to give these values nothing more than indicative
import. The requirement to set a very small number of mandatory limit values would sub-
sequently be taken up again under other Directives (see p. 39). The last mandatory oc-
cupational exposure limit value was adopted by Directive 2003/18/EC of 27 April 2003,
setting a limit value for occupational exposure to asbestos which leaves a relatively high
risk of contracting cancer. Since 2003, no further binding limit values have been adopted
or updated by the European Union, notwithstanding the fact that chemical hazards are the
leading cause of worker mortality in Europe.
10. Two lists of indicative limit values were adopted by the Commission under Directive 80/1107: 27 chemicals were
included in Directive 91/322/EEC of 29 May 1991; 23 were taken up by Directive 96/94/EC. Both directives were later
repealed and the indicative limit values they set were included in the Directives adopted under Chemicals Directive
98/24/EC.
16
The fourth stage: a decisive impetus to national reforms (1989-2003)
The fourth stage runs from approximately 1989 to 2004. It is the most dynamic period
which produced a signicant body of regulation both in terms of the number of Directives
adopted and what they added to the Member States’ national laws. The programme’s failure
to adopt limit values had a paradoxical result. It enabled Community health and safety at
work policy to bounce back on the basis of more ambitious goals: a global transformation
of the working environment.
Across Europe, these Directives delivered a momentum of reform that improved
the various national laws. The extent of each reform was also dictated by the social and
political context of each country. Some countries took care to carr y out a ‘light touch’ imple-
mentation of simply carrying over the wording (the United Kingdom and, to a large extent
also, Germany). Other countries, by contrast, embarked on far-reaching, comprehensive
reforms (Italy, Spain). Legislative reform in France was limited, but case law developed to
a remarkable extent in the years following the asbestos scandal. In the countries of central
and eastern Europe, legislation and regulations underwent a substantial shake-up.
The Framework Directive of 12 June 1989 is still today the centrepiece of Commu-
nity occupational safety and health legislation. It incorporates some of the gains made by
labour organisations in the previous decade in setting working conditions in the forefront
of labour demands. Across Europe, demands converged to shatter the Fordist compromise
and demonstrate that the economic growth of three decades of prosperity had been based
on inhumane working conditions for the least skilled workers11. The high level of require-
ments laid down by the Framework Directive can partly be put down to the fact that it was
negotiated in parallel with the Machinery Directive which was intended to allow free move-
ment of work equipment around the European market, so the employers’ organisations
were willing to make major concessions. Also, the Framework Directive was not modelled
on the national law of any particular Member State, but was a design unto itself. It is true
that each component was based on similar rules in certain countries or in the international
labour Conventions, but the eort to make everything hang together made for a high-qual-
ity piece of legislation. Some forms of wording, however, leave the Member States too free a
hand when it comes to implementation (e.g. the Directive is not explicit enough on the role
of health surveillance).
In the wake of the Framework Directive, 19 individual directives were adopted to
address dierent risk factors and categories of workers12. The general criterion by which
a directive was framed was the level of risk, either in terms of severity (e.g. carcinogens,
biological hazards, explosive atmospheres) or the number of workers exposed (e.g., noise,
work on VDUs, manual handling of loads, pregnant workers, etc.). Some of these Direc-
tives have subsequently been amended. Other Directives relate to the health and safety of
agency, xed-term and young workers. The scope of these is more restricted and they have
contributed very little to national reforms. In general, the principles they enshrine were
already found in the national law of most Member States or dealt with procedural matters
of seemingly limited eectiveness (particularly with respect to agency workers).
11. See Pessis C., Topçu S. and Bonneuil C. (2013) Une autre histoire des Trente Glorieuses: modernisation, contestations
et pollutions dans la France d’après-guerre, Paris, La Découverte.
12. The role of individual directives is to clarify (and, if necessary, develop) the organisation of prevention established
in the Framework Directive for specic risks or situations. They therefore strengthen the legal security and oer a
concrete methodology for implementing eective prevention.
17
A number of other directives aim to regulate cross-cutting issues for occupation-
al health. The main one of these is without doubt the Working Time Directive 93/104 of
23 November 199313. A consideration of its provisions, the copious Community case law
and its impact on Member States’ law are beyond the scope of this publication. Its revision
announced more than a decade ago has set the Member States, Council and Parliament,
and the trade unions and employers’ organisations, at loggerheads. There have been mis-
haps aplenty between the ordinary legislative procedure for adopting a directive and the
failed attempt to delegate its framing to the social dialogue process.
Between 1989 and the mid-1990s, Community legislative activity moved forward
with some eectiveness, only to lose momentum thereafter. The Directive to protect work-
ers against chemical hazards, for example, underwent eight long years of dicult negotia-
tions before being adopted in April 1998.
13. The text currently in force is Directive 2003/88 of 4 November 2003.
Read more
Vogel L. (1994) Prevention at the workplace, An initial review of how the 1989 Community framework
Directive is being implemented, Brussels, Trade Union Technical Bureau for Health and Safety.
19
Chapter 2
The two Barroso Commissions:
a lost decade
From 2004 to 2014, during the two terms of the European Commission headed by
José Manuel Barroso, new health and safety law-making was at a virtual standstill.
The very few Directives still adopted were either tinkering with the scope of
previous Directives, or the delayed culmination of earlier proposals. So it was with
the two directives on physical agents adopted during this period: Ar ticial Optical
Radiation Directive 2006/25/EC and Electromagnetic Fields Directive 2013/35/
EU14. The process of adopting directives on physical agents had begun in 1992.
Added to these is Directive 2010/32/EU transposing an agreement reached in the
European sectoral social dialogue on prevention from sharp injuries in the hospi-
tal and healthcare sector. Other changes were simply codications of, rather than
amendments to, substantive provisions of Directives or adaptations to changes in
other regulations (e.g. changes to the classication rules for hazardous chemicals,
changes to the ways Member States must report on the Directives).
Where working time is concerned, the Barroso Commission departed from
the Treaty objective (harmonisation while the improvement is being maintained)
to propose changes to the Directive which rolled back the gains made. Fortunately,
these proposals met with opposition from the European Parliament and did not go
through.
The legislative standstill has particularly serious practical consequences. The
two most important proposals that should have been put forward are for types of
health damage that wreak havoc among workers. In both cases, the Commission
already had a detailed preliminary draft that required little further development.
14. An initial Directive on which had been adopted in 2004, but was never brought into force.
20
Both were shelved! One concerns musculoskeletal disorders, which aect one in four workers
in Europe mainly as a result of work intensication and the inadequate ergonomic measures
taken by companies; the other relates to cancers and reproductive risks (see box p. 23).
The decline of Community occupational health rule-making is not down to legal
changes to the Treaty. The provisions introduced by the SEA have remained in force. The
terminology changes have not aected their content. While the Commission’s policy steer
has been decisive, it would be mistaken to disregard the legal aspect of this debate. The
eect of increasingly formalised criteria has been to make all new law-making conditional
on cost-benet-based impact studies and to propound a thorough review of the legislative
acquis in terms of the purported administrative burden it places on businesses. So the
unchanged wording of the Treaty stands in marked contrast to the practical exercise of
legislative power which is hobbled by an agenda that makes economic eciency the central
criterion of the legitimacy of law15.
This crisis in Community regulation comes in a wider setting of political challenge
to the very basis of the harmonising of working conditions by law. The main argument is
economic: setting standards at a high level would disadvantage European industry rela-
tive to its global competitors16. Arguably, the real reason lies elsewhere. It is less about the
EU’s relationship with the world at large than how the European Union sees itself. The
harmonisation of working conditions is seen as an obstacle to rolling out free competi-
tion in the internal market. The rise in social inequalities within Member States stems
from the increasingly sharp dividing lines within the world of work. The levels of workers’
health protection are crumbling from the action of such things as the casualisation of work,
outsourcing of high-risk activities, increasing gender segregation in terms of employment
norms: part-time work has become the norm of female employment in some EU countries.
Bureaucratisation of decision-making
The eect of increasingly formalised criteria has been to make all new law-making con-
ditional on cost-benet-based impact studies and to press for a comprehensive review of
the legislative acquis relative to the purported administrative burden it places on busi-
nesses. The Commission does not bear sole responsibility for this development – all insti-
tutions involved in the legislative process (Council, Parliament and Commission) have been
broadly on the same page, even if the Commission has often been more zealous than the
other European institutions in this instrumental view which claims that a legal rule must
be judged primarily on the basis of what ‘dividends’ it might generate for business. On the
international stage, this idea rst took root in the United States, and particularly rmly so
from President Ronald Reagan’s incumbency (1981-1989).
This approach to legal rules through the prism of a cost-benet calculation alone
has had a profound impact on the way decisions are made in the European Union. Pro-
cedurally, tripartite consultations continue to be held on a regular basis under the Treaty
provisions. However, the real eect of these consultations has become marginal. Only the
15. Article 118a introduced by the Single European Act was incorporated substantially unchanged into current Article 153
of the Treaty on the Functioning of the European Union (TFEU).
16. An argument already to be found in Wim Kok’s 2004 report on reorienting the ‘Lisbon strategy’. This shows that
the better regulation ideology is not the sole preserve of conservative or liberal political parties. Wim Kok was a
prominent trade union leader before becoming the Social Democrat Prime Minister of the Netherlands between 1994
and 2002.
21
employers’ voice is listened to. The Commission uses its monopoly power to initiate legisla-
tion as a sovereign prerogative. Its refusal to put forward proposals for a directive prevents
the Council and European Parliament from discussing them.
In practice, other mechanisms and bodies have come to assume decisive importance
over the procedures laid down in the Treaties. The Barroso Commission’s two terms were
characterised by a twofold process: a politically hands-o Commission increasingly reluc-
tant to come up with ambitious proposals, and the rising inuence within the Commis-
sion of a ‘kitchen cabinet’ bureaucracy around its President given oversight over the other
departments as part of what was called ‘Better Regulation’. Possessing no real expertise in
the various matters on which it meant to intervene, this new bureaucracy has developed a
lucrative market for private consultants the quality of whose analysis seems inversely pro-
portional to the quantity of reports produced.
The two prime examples of this bureaucratisation of decision-making are the Im-
pact Assessment Board and the Stoiber Group.
The Impact Assessment Board (IAB) was established in late 2006 to assess the impact
of all proposals for directives even before they were ocially framed by the Commission.
The assessment criteria are couched in extremely vague terms that allow for an arbitrary
management of the procedure. The entire impact assessment process is typied by a lack of
transparency that allows lobbyists to play a very active role and minimise the eectiveness of
the forms of consultation set up by the EU treaties. Thus, the Impact Assessment Board was
able to block the proposed Directive on the prevention of musculoskeletal disorders. There
is no legal reason why the Commission should not override a negative IAB opinion, but in
practice, it tends to confer on it blocking powers that act downstream and prevent a decision
being taken by the only directly elected EU body – the European Parliament. The revision
of the Carcinogens Directive (see box p. 23) is at a complete standstill, one reason being that
the Commission has commissioned private consultants to do costly studies on the ‘costs and
benets’ of its contemplated proposals. It became clear from the completed studies that the
impact assessment requirements had been tightened up to such an extent that the Commis-
sion no longer had a sucient basis on which to put forward its evaluation.
The creation of the Stoiber Group in August 2007 oers a textbook example of the
political manipulation of regulation. Originally, the Stoiber group was meant to be just a
group of high-level experts tasked with examining the ‘administrative costs’ of existing
laws. It has always been top-heavy with business interests. Of the Group’s 15 members at
the end of its term in 2014, six were employer representatives, and four others had been
involved in the consultative bodies set up by right-wing governments to promote deregula-
tion in the UK, Germany, Sweden and the Netherlands. Various labour interests were never
taken into account by the Stoiber Group – it never considered the impact of its recommen-
dations on gender inequalities, for instance.
The Stoiber Group’s term had been due to run out in 2010 and the group should
have stuck to examining the ‘administrative burden’ of existing legislation. In practice, the
Group set its own agenda that far exceeded its remit. Through his political links, Edmund
Stoiber won the Group two extensions running up to 31 October 2014. In June 2014, it pro-
duced rmly deregulatory recommendations, which it claimed would achieve more than
40 billion euros in savings17. These fanciful economic estimates were based on a simplistic
method whereby private consultants quizzed a handful of company executives about the
17. Those of the Stoiber Group’s members who represented workers, environmental and consumer protection interests
adopted a dissenting opinion pointing out the weakness of the Group’s proposed gures.
22
putative costs of dierent regulations, then extrapolated the claimed costs to all EU busi-
nesses. No checks were made to see whether the interview gures matched up to the reality.
The only ‘proof’ consisted in the endless repetition of the same gures from one document
to the next with no accompanying reference to their origin or the questionable methodol-
ogy on which they were based.
The symbiotic relationship between bureaucrats and consultants is symbolised by
Edmund Stoiber’s November 2009 appointment as Chairman of the Advisory Board of the
Deloitte Group which has been paid millions of euros for studies of debatable quality on
the ‘administrative costs’ of legislation. He subsequently stepped down from the post with
never a word about the potential conicts of interest it might have created. One method
used was to mount a show in the worst traditions of political grandstanding. A conference
held in Brussels in 2010 saw Mr Stoiber photographed using an oversize pair of scissors to
cut a red ribbon meant to represent the supposed red tape of EU laws, all of which was paid
for from the Community budget! The vocabulary is deliberately warlike and Christian – a
crusade against bureaucracy. The German right-wing conservative press tends to describe
Mr Stoiber as ‘Europe’s anti-bureaucracy tsar’.
Mr Stoiber was not long o the European deregulation stage. Within two months of
the end of the third term granted by José Manuel Barroso, he was back under the auspices
of the new Commission. On 18 December 2014, the European Commission’s new President,
Jean-Paul Juncker, made Edmund Stoiber special adviser for ‘Better Regulation’, sending
a worrying signal of policy continuity between the new Commission and the two previous
terms under Mr Barroso. The press release proudly announced savings of 31 billion euros
from the Commission’s ‘better regulation’ initiatives. These gures are based on no serious
statistical evaluation but derive from the same uncheckable private consulting rm ex-
trapolations on the cost of the Directives. The Commission has nothing to say on the huge
public health costs created by blocking new health and safety at work legislation.
The deep crisis in EU regulation worsened with the REFIT18 programme launched
in December 2012 to assess all existing legislation (the ‘Community acquis’) and make it
harder to bring in new social/employment, environmental or consumer protection laws.
Using the ongoing assessment of existing health and safety Directives as an excuse, the
Commission called a rest from legislative initiatives which was initially intended to run up
to the end of the second Barroso Commission (1 November 2014)19, but which the Juncker
Commission has now extended until the end of 2015.
The blind alley of ‘soft law’ and voluntary approaches sums up the entire perfor-
mance record of occupational health over a century and a half, and the employers know it.
The Bilbao Agency’s ESENER survey conducted on a sample of 36,000 companies reveals
that the main driver for rms to develop a prevention policy is the existence of legislation20.
90% of rms cite compliance with the law as the reason for acting, and this tops the list of
answers in 22 of 27 countries. The second most-often cited driver of preventive action is
demand from workers and their representatives (three out of four rms). It bears pointing
out in this connection that half of all workers in Europe have no form of representation.
This is especially critical in small and medium-sized rms. But there are practical ways of
tackling this problem. Encouraging schemes for workers’ district safety representatives are
to be found in both Sweden and Italy.
18. REFIT is an acronym for ‘Regulatory Fitness and Performance’.
19. Communication COM 2013 (685) nal of 2 October 2013.
20. Rial González E., Cockburn W. and Irastorza X. (2010) European survey of enterprises on new and emerging risks:
managing safety and health at work, Bilbao, European Agency for Safety and Health at Work.
23
100,000 deaths a year is not a legislative
priority for the Commission
The seriousness of the Community’s legislative stand-
still is exemplified by the problem of occupational
cancers from which the Commission it self admits some
100,000 people die each year in the European Union.
It has long been clear that the current legislative frame-
work was inappropriate, inadequate and based on sci-
entific knowledge dating from the 1970s when the role
of endocrine disruptors and epigenetic processes in
cancer development was largely unknown. The current
Directive is not even in line with the REACH definition
of substances of very high concern because it excludes
reprotoxins which have far-reaching consequences for
exposed workers and their children: damaged fertility,
birth defects and development disorders, childhood
cancers.
The current directive sets binding limit values for only
three subst ances to which must be added asbestos and
lead dealt with in other directives. These limit values
fall well below what today’s prevention techniques
would allow. They cover fewer than 20% of the actual
situations of workers’ exposure to carcinogens, when
the evidence is that the most hazardous situations are
linked to multiple exposures and exposures caused
by production processes, as with crystalline silica and
diesel fumes. The health surveillance provided for by
the Directive is inadequate. It is known that very long
latency periods may elapse between exposure and the
development of a cancer, making it essential to pro-
vide for lifelong health monitoring of exposed worker s
which is neither currently a feature of the Community
Directive nor operative so far in the majority of Member
States. The trade unions and many Member States have
been calling the Commission’s at tention to the impor-
tance of this for upwards of ten years. The 2002-2007
strategy already recognised the need to revise the
Directive, but there has been little progress in the situ-
ation in the twelve years since. A joint letter sent by the
government, trade unions and employers’ organisations
of the Netherlands to the Social Affairs Commissioner
on 28 August 2013 stressed the need to revise the
Carcinogens Directive and reduce asbestos exposure
limit values. On 4 March 2014, the Labour Ministries
of Austria, Germany, the Netherlands and Belgium sent
a joint letter to the Commission calling for an early
revision of the Directive on preventing work cancers.
Other governments back the call for a revision of the
Directive.
The European Trade Union Confederation also
adopted a resolution in December 2014 calling for
the Carcinogens Directive to be revised and arguing
the vital need for the very early determination of
binding limit values for fift y particularly hazardous
chemicals to which many workers are exposed. This
is an area where European policy makes a big net im-
provement. Effective prevention of work cancers re-
quires a comprehensive strategy that simultaneously
embraces the internal market, environmental protec-
tion, worker protection and public health. This is a
core Communit y competence. In such a key area, the
European Commission’s avowed preference for ‘soft
law’ is untenable. The huge costs of occupational
cancers are borne not by the businesses that produce
the risks but by society and the victims, so voluntar y
instrument s or purely indicative limit values will not
improve matters.
An ersatz strategy for 2014-2020
From 1978 onwards the Commission has adopted multiannual strategies for Community
health and safety at work policy under various names: dierent ‘action programmes’ be-
tween 1978 and 2001 were followed by ‘strategies’ for 2002-2006 and 2007-2012. At the
end of 2012, a new strategy was announced for the period 2013-2020. Detailed proposals
had been made by both the European Parliament and the Advisory Committee consist-
ing of the Member States, trade unions and employers of EU countries. The Commis-
sion dragged its feet and nally published a particularly feeble Communication in June
24
201421. It is me ant to dene a ‘strategic framework on health and sa fety at work’ but takes
up virtually none of the European Parliament and tripartite Advisory Committee’s con-
crete proposals.
This Communication is supposed to give direction to the work of the EU institutions
up to 2020 as regards three key challenges. The rst challenge chosen by the Commission is
to give priority to small and medium-sized enterprises through a markedly deregulatory ap-
proach that views health and safety at work as an administrative burden. The idea is not to
improve working conditions in such rms but to lavish benets on employers, to give them
a competitive advantage by reducing their obligations. Bearing in mind the existence of sub-
contracting chains, such a policy will drive all working conditions steadily downwards.
The Commission admits the importance of preventing work-related diseases which
kill some 160,000 people each year in the EU, but has nothing to say on the blocking of the
two proposals for Directives that have been in the works for over a decade: the revision of
the Directive to improve the prevention of work-related cancers and the Directive on mus-
culoskeletal disorders that aect one in four workers in Europe.
Finally, the Commission mentions the ‘demographic challenge’ posed by an ageing
population. It does not make the link between ageing and working conditions. Yet the Euro-
pean Working Conditions Survey shows the growing divides between occupational groups
in this respect. For many categories of workers, their working conditions are not such as
to enable them to continue working up to retirement age. The percentage of workers who
think they will still be able to do their current job when they reach the age of 60 went up
very slightly between 2000 and 2010, rising from 57.1% to 58.7%. This is modest progress.
But it applies only to non-manual workers. For manual workers, by contrast, the situation
has gone downhill. Fewer than half of manual workers think their working conditions will
allow them to keep doing the same job at the age of 60. Among skilled workers, the share
fell from 52% in 2000 to no more than 49.3% in 2010, and among low-skilled workers, from
46.2% in 2000 to just 44.1% in 2010. Faced with these facts, the Commission is simply pro-
posing to set up a network of experts to promote exchanges of good practice and support
the dissemination of information. No major policy initiative is on the radar.
The Communication feels like a cut-and-paste collation of snippets from other docu-
ments cobbled together with no logical connections. The gender dimension of occupational
health gets a mention only in relation to maternity protection! The information sources
are a jumble of sound, validated data like the European Working Conditions Survey and
anecdotal opinion polls.
At the time of writing (March 2015), the outlook for Community health and safety at
work policy is uncertain. Should the new Commission headed by Mr Juncker endorse the
preceding Commission’s direction of travel, the goal of harmonising working conditions will
drop o the European policy radar. The litmus test will be the legislation on preventing oc-
cupational cancers. The Commission cannot claim that the Member States are against it.
Most of them want better Community legislation, as was clearly indicated by the conclusions
of the Council of Employment and Social Aairs Ministers of 9 March 2015. If the Commis-
sion does not come forward with a legislative proposal before the end of 2015, there is little
likelihood of a directive being adopted during this Commission’s lifetime. It will result in a
‘transfer back’ of occupational cancer prevention policies with probably massive dierences
between the actual levels of protection of workers’ lives between Member States.
21. Communication COM 2014 (332) nal of 6 June 2014 on an EU Strategic Framework on Health and Safety at Work
(2014-2020).
25
Read more
Vogel L. and Van den Abeele E. (2010) Better Regulation: a critical assessment, Report 113, Brussels, E TUI.
Van den Abeele E. (2014) The EU’s REFIT strategy: a new bureaucracy in the service of competitiveness,
Working Paper 2014-05, Brussels, ETUI.
27
Chapter 3
Institutions and agencies
The European Union has a wide range of means for acting on OSH. The policy
objective and priority means of delivering it have been clearly stated in the Treaty
since the Single European Act of 1986.
The objective is the harmonisation of working conditions while the im-
provement is being maintained. As the European Union’s budget is tiny com-
pared to the combined national budgets of its Member States, the main policy
instrument for harmonising labour conditions is legislation. This has a ripple
effect, stirring Member State action to embrace the Community objectives as
their own. It can be supplemented by other means (social dialogue, cohesion
funds, defining statistical indicators, etc.) but there is no economic mechanism
for the wholesale redistribution of resources among states, nor yet any robust
‘economic governance’ delivering industrial policies, planned investment or the
creation of public services at the European level. This requires new legal rules
to be brought into existence if the aim is to have anything more than a simple
free trade area.
The EU works with the Member States to implement this policy. It is what
is known as a shared competence. Member States are responsible for framing a
national health and safety at work strategy, and ensuring that Community direc-
tives on the matter are properly implemented and enforced. Community law has
little to say as regards public provision to support eective prevention. Health
and safety inspection, specialised research bodies and the integration of health
and safety at work and public health vary widely from one country to the next.
Also, Community directives set only minimum requirements, thereby giving
Member States the responsibility for maintaining or introducing laws that en-
sure a higher level of protection for workers. Better legislation implemented in
28
one country often serves to reignite Community discussions that help to deliver the aim
of harmonisation while the improvement is being maintained.
Institutions involved in the EU legislative process
The European Commission is meant to act in the EU’s general interest. It is the execu-
tive body with sole power to initiate legislation. Strictly speaking, Article 17 of the Treaty
on European Union requires that it should be composed of a number of members cor-
responding to two thirds of the members of the EU but the European Council may waive
this rule. The Commissioners are appointed by the European Council for a period of ve
years. The current Commission, which took oce on 1 November 2014, comprises 27
members plus the High Representative for Foreign Aairs and Security Policy. The mis-
sion letters drawn up by its President, Jean-Claude Juncker, for the six vice-presidents
gave them added powers. Their job is to coordinate the Commissioners’ groups on related
policy areas. Any legislation initiated by a Commissioner can be blocked by the dual l-
ter system in place. Firstly, it requires approval from the vice-president responsible for
coordinating a specic set of competences. Then, secondly, it has to gain the approval of
the rst vice-president in charge of ‘Better Regulation’ who, in the Juncker Commission,
is the Dutch Social Democrat Frans Timmermans. The Social Aairs Commissioner is
the Belgian Christian Democrat Marianne Thyssen. The vice-president with responsi-
bility for the eurozone and social dialogue – Valdis Dombrovskis – belongs to a Latvian
Liberal-Conservative party.
Generally speaking, the Commission has no power to pass legislation as such. It
adopts proposals for legislation which are then laid before the European Parliament and
Council following the rules of the legislative process. In special cases, however, the Com-
mission may adopt delegated legislation enacted under the authority of a primary legisla-
tive act. In the terminology of the Lisbon Treaty, these kinds of legislation adopted by the
Commission are called ‘delegated acts’ and ‘implementing acts’. Such delegated author-
ity is not commonly found in health and safety at work matters. It is found in Article 17
of the 1989 Framework Directive providing for the directive to be adapted to technical
progress. Given that the Framework Directive lays down essential principles of preven-
tion, it is unlikely that changes can be made to them by a ‘delegated act’ adapting them
to technical progress. This procedure is applied, on the other hand, to certain individual
Directives under the Framework Directive, such as Chemical Agents Directive 98/24/EC
for adopting indicative limit values, Biological Agents Directive 2000/54/EC and Elec-
tromagnetic Fields Directive 2013/35/EU. To date, the Commission has adopted three
directives on indicative occupational exposure limit values and three directives amend-
ing the Annexes to the Biological Agents Directive.
The Commission exercises its delegated legislative power through what used to be
known as the ‘comitology procedure’ (now ‘committee procedure’). For delegated acts,
the Commission submits its draft to the European Parliament and Council, who have a
set time within which to object to it or revoke the delegation on any grounds. For imple-
menting acts, the Commission has to continue submitting drafts to the committees on
which the Member States are represented. In principle, all basic acts vesting the Com-
mission with power to adopt legislation adapting to technical progress will be gradually
revised and brought into line with the new procedures.
29
The European Parliament has been directly elected since 1974. In the current legislature,
the European Parliament is composed of 751 MEPs who were elected in the 28 member coun-
tries for a ve-year term. The number of MEPs elected for each country varies from 96 (the
biggest – Germany) to 6 (the smallest – Cyprus, Luxembourg and Malta). The Members of
the European Parliament belong to dierent political groups that have facilities to coordinate
their activities. At least 25 MEPs elected in at least one quarter of the Member States of the
European Union are required to form a political group. There are currently eight political
groups. A few MEPs are non-attached members, having no aliation to any of the groups.
Parliament is part of the EU legislative process but has no power to initiate legisla-
tion. This is an unusual limitation in representative democracies. In January 2013, for
example, the European Parliament passed by an overwhelming majority (503 votes for,
107 votes against and 72 abstentions) a resolution calling on the Commission to submit
a proposal for a directive on restructuring at the earliest opportunity. Such a directive
would have created a common legislative framework in the European Union on infor-
mation and consultation of workers, forward planning and management of restructur-
ing. It would have been meant to address the substantial impact of restructuring on the
quality of working conditions and health of redundant and retained workers (‘survivors’)
alike. In June 2013, the Commission rejected Parliament’s proposal, recommending only
a Communication of no binding eect whatever.
The European Citizens’ Initiative right
The Treaty of Lisbon introduced a European Citizens’
Initiative (ECI) right which allows a minimum of one mil-
lion citizens from at least one quarter of EU Member
States to request the European Commission to put up
proposals for legal acts in areas of its competence. The
organisers of a citizens’ initiative have to form a citi-
zens’ committee composed of at least seven EU citizens
living in at least seven different Member States. They
have one year within which to collec t the necessar y
statements of support. The number of statements of
support must be cer tified by the competent authorities
in the Member States. The Commission then has three
months to examine the initiative and decide on what
action to take on it.
This right has more a symbolic than a substantive im-
portance in that the Commission’s monopoly right to
initiate legislation remains entire. What it does do, how-
ever, is to enable European political campaigns to be
mounted around the objectives.
The procedures for exercising the right are laid down
in Regulation (EU) No 211/2011 of the European
Parliament and of the Council of 16 Februar y 2011 on
the citizens’ initiative.
Launched by the European Federation of Public Ser vice
Unions (EPSU), the first initiative, which collected over
1.9 million signatures, was on the ‘Right to Water’. The
aim was to get the right to water recognised as a hu-
man right and to oppose it being turned into a com-
modity. On 19 March 2014 the Commission adopted
a Communication in response to the initiative which
does not satisfactorily address the main impor tant is-
sues it raised. Jan Willem Goudriaan, vice-president
of the ECI Right2Water, said that, ‘The reaction of
the European Commission lacks any real ambition to
respond appropriately to the expectations of 1.9 mil-
lion people. I regret that there is no proposal for legis-
lation recognising the human right to water’. The ECI
had also asked for a legal commitment that there would
be no EU initiatives to liberalise water and sanit ation
services. But there is nothing in the Communication
on this. The exclusion of water and sanitation services
from the Concessions Directive was a positive point.
However, the Commission’s Communication made no
commitment to explicitly exclude these ser vices from
trade negotiations such as the Transatlantic Trade and
Investment Par tner ship (TTIP).
Read more
‘Right to Water’ initiative website:
http://www. right2water.eu
30
Parliamentary work is organised into specialised committees that discuss proposed
legislation put forward by the European Commission and can adopt own-initiative reports.
The Employment and Social Aairs Committee deals with health and safety at work mat-
ters. Legislative proposals are voted on at plenary sessions of Parliament. Amendments are
generally negotiated between the various political groups and discussed in detail at meet-
ings of the committees with lead responsibility.
The Council of the European Union (sometimes called the Council of Ministers) is
the institution that represents the Member States. It is the other essential body involved
in adopting EU laws. In the ordinary legislative procedure (which applies to OSH legisla-
tion) it stands on an equal footing with the European Parliament. Unlike Parliamentary
procedure, its deliberations are secret, which prevents the positions of the various govern-
ments in the negotiations preceding the adoption of Community legislation from being
known. Some Member States have national rules requiring government ocials to account
to their national parliament for the positions taken at the EU Council. The Presidency of
the Council is held on a six-monthly rotating basis between the Member States. In 2014,
a so-called ‘double majority voting’ system was introduced. For a proposal to be adopted,
it must secure the backing of at least 55% of Member States (at least fteen in the Europe
of 28) who must in total represent at least 65% of the EU’s population. The Council’s work
is prepared by the Permanent Representations established by each Member State. They
meet in COREPER, the Permanent Representatives Committee. All items on the Council’s
agenda must be discussed by COREPER beforehand. If COREPER reaches a consensus, the
texts submitted to the Council are considered to be adopted without discussion or vote. In
practice, this is the case with 75% to 80% of its business.
The European Council or European Summit is the main policy body of the EU; it is com-
posed of the Heads of State and Government of the Member States. The European Council
was created in 1974 as an informal discussion group between the European leaders. Given
ocial status in 1992, it became one of the seven ocial institutions of the EU in 2009.
European Council meetings are summits at which general political priorities and impor-
tant initiatives are decided. The European Council generally meets four times a year under
a permanent Presidency. Donald Tusk is currently President of the European Council. His
term runs from 1 December 2014 to 31 May 2017.
The Economic and Social Committee is an advisory body composed of a large number
of interest groups, including those of employers and workers. It issues opinions on draft
legislation concerned with EU social policies. It may also adopt own-initiative opinions. It
has adopted a number of own-initiative opinions on health and safety at work matters, no-
tably on asbestos. Its opinion on the EU Strategy for 2013-2020 reects the body’s concern
about Community inaction22.
The Committee of the Regions is an advisory body that links with local and regional
representatives and involves them in the development and implementation of EU policies.
Its role in health and safety at work is fairly marginal.
22. EESC opinion SOC-512, adopted on 11 December 2014, based on a report by Carlos Trindade.
31
The European Ombudsman is elected by the European Parliament. He investigates
complaints lodged by individuals or companies about activities of EU institutions and bod-
ies. He can conduct mediation and if it fails, make a recommendation. In 2007, the Eu-
ropean Ombudsman acted at the request of a German citizen to ask the Commission to
intervene with regard to infringements of the Working Time Directive. The Commission
refused at the time to enforce Community law on the grounds that it planned to amend the
Directive’s provisions. The Ombudsman considered this not to be in conformity with prin-
ciples of good administration23. Recourse to the Ombudsman can also be of clear interest
where an EU institution denies access to documents enabling decision-making processes
to be looked back at.
The Court of Justice of the European Union (ECJ) ensures compliance with the law
in the interpretation and application of the European Treaties and the provisions laid down
by the competent Community institutions. It has one judge per Member State. The Court is
currently divided into the Court of Justice of the European Union, the General Court and
the EU Civil Service Tribunal. The judges are helped by nine ‘advocates-general’ whose job
is to submit legal opinions on the cases brought before the Court.
The case law of the ECJ has contributed to the development of Community health
and safety at work law. While most cases have dealt with the 1989 Framework Directive
and the 1993 Working Time Directive and subsequent developments, it has also considered
the contradictions between the rules for full harmonisation of the internal market and
national health and safety at work provisions in various cases concerning both chemicals24
and work equipment25.
Most rulings on the Framework Directive are in infringement proceedings brought
by the Commission against Member States which it considers have not properly imple-
mented EU Directives. Where other health and safety at work directives – and indeed most
of the other judgments on social/employment rules – are concerned, what has most pro-
moted the development of the corpus of ECJ case law is requests for a preliminary ruling
– where national courts ask the Court of Justice to interpret a point of EU law in a case
brought before them. This helps ascertain whether national law is compliant with Commu-
nity law. Trade unions would be well-advised to develop more ambitious litigation strate-
gies to consolidate the legal advances made under Community law.
The Lisbon Treaty also provides a role for Member States’ national parliaments (see in
particular Article 12 TEU). The Community institutions must forward draft EU legislative
acts to them. They then have eight weeks to give their opinion. If compliance of a draft leg-
islative act with the subsidiarity principle is challenged by a third of the votes allocated to
national parliaments (‘yellow card’), the Commission must review its proposal and decide
whether to maintain, amend or withdraw its proposal, giving its reasons. This threshold
is a quarter for a draft law submitted under Article 76 of the Treaty on the Functioning of
the European Union relating to the area of freedom, security and justice. Where compli-
ance with the subsidiarity principle of a draft legislative act submitted under the ordinary
23. Special Report from the European Ombudsman to the European Parliament following the draft recommendation to
the European Commission on complaint 3453/2005/GG, 10 September 2007.
24. ECJ, judgment of 17 December 1998, IP v. Borsana, C-2/97, Judgment of 11 July 2000 Kemikalieinspektionen v.
Toolex Alpha AB, C-473-98.
25. ECJ, judgment of 28 January 1986, Commission v. France, C-188/84, judgment of 8 September 2005, Yonemoto,
C-40/04; judgment of 17 April 2007, AGM-Cosmet SRL, C-470/03.
32
legislative procedure is challenged by a simple majority of the votes allocated to nation-
al parliaments (‘orange card’), the Commission must review its proposal. If it chooses to
maintain the draft act, the Commission must justify its position by a reasoned opinion.
The rst ‘yellow card’ was issued in May 2012 in relation to a Commission proposal
for a regulation limiting the right to strike in connection with freedom of establishment
and freedom to provide services (‘Monti II’). The European Trade Union Confederation
criticised the fact that the proposal for a regulation did not question the primacy accord-
ed to economic freedoms, nor the role of the proportionality test in resolving conicts
between these freedoms and the right to take collective action. Twelve national parlia-
ments or chambers of parliaments26 considered that the proposal did not comply with
the subsidiarity principle as regards its content. The Commission eventually withdrew
its proposal.
Specific EU occupational safety and health bodies
The Advisory Committee on Safety and Health at Work – Luxembourg
The Advisory Committee was established by a 1974 decision of the Council27. Its remit is to
assist the Commission in the preparation, implementation and evaluation of all activities
related to safety and health at work.
The Committee’s main activities are:
— giving opinions on draft Community health and safety at work legislation and EU strate-
gies in the matter;
— encouraging exchanges of experience between Member States on prevention strategies
and highlighting issues where Community action would be helpful;
— alongside the Bilbao Agency28, helping to inform national administrations, trade unions
and employers’ organisations on Community measures in order to facilitate cooperation
between them and encourage exchanges of experience and the establishment of codes of
good practice;
— giving an opinion on the Bilbao Agency’s annual and four-year rolling programme.
The Committee works in cooperation with other committees that have OSH remits, in-
cluding the Senior Labour Inspectors’ Committee (SLIC) and the Scientic Committee on
Occupational Exposure Limit Values (SCOEL). It also looks into the interactions between
OSH and the Chemicals Regulation (REACH) and the role and limits of technical stand-
ardisation in OSH.
The Committee is composed of three full members per Member State: one govern-
ment representative, one representative of the trade unions and one representative of em-
ployers’ organisations. Two alternate members are appointed for each full member. Alter-
nate members attend Committee meetings only if the full member they are substituting
for cannot. Full and alternate members are appointed by the Council. In practice, they are
26. The Parliament opposed to the proposal were from: Belgium, Denmark, Finland, France, Latvia, Luxembourg, Malta,
Netherlands, Poland, Portugal, Sweden and the United Kingdom.
27. Decision of 22 July 2003 (2003/C 218/01). This decision cancels the previous decisions on the Committee, in
particular decisions 74/325/EEC and 74/326/EEC.
28. The ocial title of the Bilbao agency is European Agency for Safety and Health at Work or EU-OSHA.
33
appointed by the Member State and the appointment is always conrmed by the Council.
Their term of oce is three years and they can be re-appointed.
In the most vigorous period of new law-making from 1988 to 2000, the Committee
played a particularly key role in the discussion of draft directives, which ultimately incor-
porated many of its proposals. The Committee can be said to some extent to have been
co-draftsman of some of the legislative output, despite its purely advisory role. Over the
past decade, by contrast, most of the ACSH’s proposals have not been taken up by the Com-
mission. The Communication setting a strategic framework for 2014-2020, for example,
includes none of the Committee’s substantive proposals.
The European Agency for Safety and Health at Work – Bilbao
The Bilbao Agency is a tripartite EU body established in 1994 by a Council Regulation29.
Its main remit is to collect and disseminate information on OSH matters. Since 2000, the
Agency has also run two-year campaigns to raise OSH stakeholders’ awareness of a par-
ticular theme. The annual European Week for Safety and Health at Work (held in October
each year) is the high point of these events, which may include training sessions, confer-
ences, lectures and workshops, poster, lm and photo competitions, questionnaires, sug-
gestion schemes, advertising campaigns and press conferences. The 2014-2015 Campaign
is focused on psychosocial risks.
The Agency has established a European Risk Observatory to collect and analyse in-
formation on new or emerging risks from changes in technology and work. As part of this,
the Agency conducted an extensive survey in 201030 entitled ‘ESENER’ focused on new and
emerging risks. One of the main focuses of this investigation run in dierent countries is to
analyse prevention policies as actually implemented in companies. The survey was carried
out again in 2015 to ascertain what if any changes had occurred.
A signicant amount of the Agency’s information is supplied by national focal points.
Sound, tripartite operation of these focal points is crucial to ensure that information is
complete and does not underrate the problems. The focal points need to have a more active
hand in putting out information to workers in cooperation with the trade unions. Govern-
ment agencies are often loath to provide information on the unsolved problems and failings
in prevention systems.
In recent years the Agency has developed research programmes and exchanges of
information and experience on policy issues that are going unaddressed by the Europe-
an Commission. These include contributions to studying the gender dimension in OSH,
comparative analyses of exposure limits for carcinogens, mutagens and reprotoxins and a
wide-ranging programme on ageing at work.
29. Council Regulation (EC) No 2062/94 of 18 July 1994 establishing a European Agency for Safety and Health at Work
and Council Regulations (EC) No 1643/95 and (EC) No 1654/2003 amending Council Regulation (EC) No 2062/94 of
18 July 1994.
30. European Survey of Enterprises on New and Emerging Risks (ESENER).
34
The European Foundation for the Improvement of Living and Working Conditions
– Dublin
The Dublin Foundation (Eurofound) was set up in 197531 to contribute to the betterment of
living and working conditions. It is among the rst European agencies to have been set up
to research into specic areas of EU social policy. It conducts research and provides data
and analysis that inform and support EU policy-making in OSH in particular.
31. Council Regulation (EEC) No 1365/75 of 26 May 1975.
ESENER 2010: what drives prevention?
The 2010 ESENER survey is based on nearly 36,000
telephone interviews with private and public sector
undertakings employing at least ten workers in the 27
EU Member States plus Croatia, Turkey, Norway and
Switzerland. The primary interviewee is the business
owner or a management officer. If he advises that the
firm has a workers’ health and safety rep, that rep is
also interviewed separately so as to get two independ-
ent views of the situation in the undertaking. The ques-
tions deal with the management of health and safety
in general, the management of psychosocial risks and
worker participation.
One question asked was about the drivers of preventive
action. The answers are clear and fairly consistent for
all countries and sizes of under taking. The main fac-
tor that drives undertakings to develop a prevention
policy is the law – 90% of enterprises claim that what
prompts them to act is compliance with the law. This
is the foremost reason cited in 22 of the 27 countries.
For psychosocial risks – where the legislative framework
is often under-developed compared to more traditional
hazards – legal obligations remain the main driver for
action (cited in 63% of responses) far ahead of all other
factors which range from 36% (demand from workers
and their representatives) to 11% (concern about high
rates of absenteeism).
The second most frequently given reason for t aking
preventive measures is demand from worker s and their
representatives – cited by three out of four enterprises.
However, the bet ween- countr y gaps are wider here,
ranging from a low of 23% in Hungary to a high of
91% in Finland. Economic arguments – be it customer
demands and concern for corporate reputation (67%),
management policies to limit absenteeism and retain
staff (59%) or other financial or performance-related
reasons (52%) – play only a more limited role. Pressure
from the health and safet y inspectorate also appear s to
have a lesser influence (57%) – understandable given
the understaffing of inspection ser vices and low likeli-
hood of inspection that entails. The gaps are also wide
where health and safety inspections are concerned –
16% in Hungary versus 80% in Germany. Pressure of
health and safety inspections is a lesser concern where
psychosocial risks are concerned, cited by just 15% of
enterprises.
The barriers to preventive action mentioned in the sur-
vey confirm that it is under-resourced in a significant
share of enterprises. The most commonly identified
obstacles are a lack of internal resources in time, per-
sonnel or financial resources. Again, the gaps are wide,
concerning three in four Romanian compared to one
fifth of Austrian undertakings.
Read more
Rial González E., Cockburn W. and Irastor za X. (2010)
European sur vey of ent erpris es on new and emerging risks:
managing safety and health at work, Bilbao, European
Agency for Safet y and Healt h at Work.
Walters D., Wadsworth E. and Marsh K. (2012) Worker
representation and consult ation on health and safety :
an analysis of the findings of the European Survey of
Enterprises on New and Emerging Risk s (ESENER), Bilbao,
European Agency for Safety and Health at Work.
35
The Foundation is managed by a tripartite Governing Board composed of repre-
sentatives of the national governments, trade unions and employers’ organisations from
each EU Member State plus three Commission representatives. The Governing Board
meets once a year to lay down the research strategy, adopt the work programme and pro-
pose the estimated budget. The work programmes are the outcome of detailed delibera-
tions of the groups making up the Governing Board as well as with the representatives
of the EU institutions. The programmes divide the Foundation’s work into three sectors:
industrial relations, working conditions, and living conditions. It has set up a Europe-
an Monitoring Centre on Change (EMCC) and a European Observatory of Working Life
(EurWORK).
Since its inception, Eurofound has done a unique job of monitoring and analysing
working conditions. The European Working Conditions Survey (often cited by its acronym,
EWCS) is an essential reference source for Community policy on occupational health.
The survey was launched in 1990 and is repeated every ve years. It will be conducted for
the sixth time in 2015. This will give a picture of changes over the past twenty-ve years
th rough compar ative data acr oss di erent EU Memb er St ates. The surve y was init ially con-
ducted in 12 countries and has gradually been extended until the sixth survey will cover 35
countries – the 28 EU Member States plus ve candidate countries (Albania, Macedonia,
Montenegro, Serbia and Turkey) as well as Switzerland and Norway – making it the most
comprehensive survey to date in terms of the number of countries covered. Upwards of
43,000 workers will be quizzed. The initial ndings of the Sixth European Working Condi-
tions Survey will be available by the end of 2015. The questionnaire covers all aspects of
working conditions, including the physical environment, job design, working hours, work
organisation and social relationships in the workplace.
The data collected from this survey will inform a number of analytical reports
providing insight into specic issues like working time, gender inequalities, ageing-related
issues and casualisation. Sectoral analyses are also published.
European Survey on working conditions in 2010:
an alarming rise in inequalities
The findings of the 2010 Working Conditions Survey
provide much evidence that the aim of harmonisation
of working conditions is nowhere near being delivered.
Inequalities are on the rise in many spheres both be-
tween states and between socioeconomic groups within
each state.
These trends are summarised by Thomas Amossé as fol-
lows: ‘The overall trend has not affected the different
occupational groups in anything like the same way: em-
ployment risk s have got visibly worse in the jobs most
exposed to them; meanwhile, manual workers, and es-
pecially skilled workers, have seen their situations de-
teriorate in terms of physical strain and work intensity.
Despite, or aside from, changes in the economy that
tend to limit physical work risks (through changes in the
structure of employment), the relative stability reported
by the European Working Conditions Surveys actually
conceals rising inequalities which are now also affect-
ing the conditions of employees who were already in
the most casualised or second-class jobs. Such plans
and advances as are found are clearly shaky and not
equally applicable to all’ (Amossé 2015: 76).
Many workers endure working conditions that will not
allow them to keep working up to retirement age. The
build-up of effects from health-injuring events through-
out working life is the reason why fewer than 50% of
manual workers think they will be able to still be doing
the same job when they reach 60 years of age. It is a
belief borne out by a large body of data on social ine-
qualities in health that show a high early death rate and
lowered healthy life expectancy for manual workers.
36
The survey also gives evidence of wide gender equal-
ity gaps. Women are concentrated in a relatively small
number of sectors and lines of work, and generally oc-
cupy lower rungs on the job ladder. They do the bulk
of unpaid work. Where employment conditions are
concerned, the main factor in segregation is par t-time
work which in a number of European countries has be-
come the ‘norm’ for women’s employment, especially
for women with dependent children.
The survey shows a strong read-across between work-
ing conditions and a r ange of injuries to health like
musculoskeletal disorders, headaches, sleep disorders
and mental health problems.
The survey shows that nearly half of workers in
Europe have no form of collective representation. The
percentages var y widely from one country to the next.
In the Nordic countries, over 80% of worker s have col-
lective representation compared to between 20% and
30% in Turkey and Portugal.
Read more
Amossé T. (2015) Les conditions de travail en Europe dans
les années 2000: de for tes inégalités sociales, in Thébaud-
Mony A., Davezies P., Vogel L. and Volkoff S. (eds .) Les
risques du travail: pour ne pas perdre sa vie à la gagner,
Paris, La Découverte, 66-79.
Eurofound (2012) Fifth European Wor king Conditions
Survey, Luxembourg, Publications Office of the European
Union.
Eurofound (2012) Sustainable work and the ageing
workforce, Luxembourg, Publications Office of the
European Union.
Eurofound (2013) Quality of employment conditions and
employment relations in Europe, Dublin, Eurofound.
The Senior Labour Inspectors Committee
The Senior Labour Inspectors Committee (better known by its acronym, SLIC) brings to-
gether senior ocials from the labour inspection services of each EU Member State. It
started to meet in an informal way in 1982 and a Commission Decision gave it formal status
in 1995. Its role is important in that equal application of Community directives to all EU
workers largely depends on the proper functioning of labour inspectorates. SLIC organises
regular joint campaigns in which these services coordinate their activities on a priority
theme for a set period. The 2012 campaign, for example, focused on labour inspectors’
assessments of psychosocial risks. SLIC has also drawn up common principles for labour
inspection. Through SLIC, the operation of each labour inspection service in a particular
country can be evaluated by a team of labour inspectors from another country with a view
to making proposals for improvements. One big challenge for SLIC is to improve coopera-
tion between labour inspection services in situations where an undertaking operates in a
country other than its country of origin. SLIC has rightly expressed deep concern about the
dangers posed by the Directive to liberalise the market in services (‘Bolkestein Directive’
adopted on 12 December 2006).
SLIC’s eorts notwithstanding, there is a clear lack of strong inspection systems in
a majority of EU countries. Many European countries are failing to meet the International
Labour Organisation requirement of at least one front-line health and safety inspector for
every 10,000 workers.
The Scientific Committee on Occupational Exposure Limits
The Scientic Committee on Occupational Exposure Limits (SCOEL) was set up in 1995
to assist the Commission by drawing up scientic recommendations to underpin reg-
ulatory proposals on occupational exposure limit values (OELVs) for chemicals in the
37
workplace32. These limit values are needed to implement the Chemicals and Carcinogens
Directives. They enable exposures to be minimised. Their compliance requirements help
to give impetus to technological improvements by promoting replacement by less harm-
ful substances or production processes. But keeping to these limit values cannot ever
be considered the primary objective of eective prevention, which must be based on a
set of measures in which replacement of hazardous chemicals comes rst and levels of
exposure to chemicals that have not been replaced must be reduced to the lowest level
technically possible.
SCOEL examines available information on the properties of chemicals, including
their toxicological properties, assesses the link between the health eects of chemicals and
occupational exposure levels and, where appropriate, recommends occupational exposure
limits (OELs) which it considers will protect workers against chemical hazards. The mem-
bers of SCOEL are selected from among candidates nominated by the Member States. All
members of SCOEL act as independent scientic experts and not as representatives of their
national government. They include experts in chemistry, toxicology, epidemiology, occupa-
tional medicine and industrial hygiene.
Having evaluated the available scientic data, SCOEL proposes where possible an
OEL which is specic to the chemical concerned. SCOEL recommendations are in the form
of a brief summary detailing and justifying the OEL calculated. Once adopted, the Com-
mission publishes the recommendation to allow all stakeholders to submit scientic com-
ments on the ‘healthy’ limit of the value and any other data. In some cases airborne ex-
posure limits are supplemented by biological limit values that calculate the concentration
of a substance or its metabolites in the blood or urine of exposed workers. Where dermal
exposure to the chemical is also possible, this is indicated in the SCOEL recommendation
by a ‘skin notation’.
After a period of about six months set for the submission of scientic comments,
the Committee reviews the document in the light of comments received and adopts the
nal version which is then published by the Commission. Once the Commission services
receive the Committee’s nal recommendation, they can formulate legal proposals for an
OEL. SCOEL makes health-based recommendations on OELs to the Commission. An OEL
of this kind can be formulated in cases where a review of all the scientic data leads to the
conclusion that a threshold can be identied below which exposure to the chemical in ques-
tion should not result in adverse eects. The calculation is based on an exposure time of not
more than 8 hours/day for 5 days/week over a 40-year working life.
The European Commission uses SCOEL’s scientic opinions to draw up proposed
occupational exposure limits.
Two kinds of Community limit values can be distinguished. They may be indicative
or binding.
Indicative limits are based on scientic considerations alone. They are considered
adaptations to technical progress and are incorporated into Commission directives under
the Chemicals Directive. Because they are indicative, Member States are free to implement
a national OEL which may (but need not be) the same as the European OEL. A national
OEL may thus be higher or lower than the European OEL.
Binding limits also take into account socioeconomic and technical feasibility factors.
They are included in directives adopted by Council and Parliament under either the Chemi-
cals Directive or the Carcinogens Directive. Because they are binding, Member States must
32. The organisation of SCOEL is currently governed by Commission Decision 2014/113/EU of 3 March 2014.
38
implement an OEL at national level which is at least the same as that dened in the Direc-
tive. They may also retain or introduce a more protective OEL.
At the start of 2015, SCOEL had dened limit values for nearly 200 substances or
groups of substances and in some cases had revised previously dened values in light of
new scientic data. This sterling work notwithstanding, the setting of indicative and man-
datory limits is lagging far behind.
As regards indicative limit values, the Commission has adopted three lists under the
1998 Directive on the protection of workers from chemical risks. Some of these limit values
do no more than re-enact earlier Community provisions adopted in 1991 and 1996 under
Directive 80/1107/EEC. Others modify the previous limit values. Yet others concern sub-
stances for which there were no Community limit values. The rst Directive, dating from 16
June 2000, dealt with 62 substances; the second, adopted on 7 February 2006, concerned
33 substances; the third, adopted on 17 December 2009, covered only 17 substances. The
gap between the SCOEL recommendations and Community rule-making has widened over
the past decade. In the second list, the Commission dropped chemicals included in the
original version. In December 2003, the Member States represented in the Committee for
Adaptation to Scientic and Technical Progress (Technical Adaptation Committee-TAC)
had approved a list of 34 substances. And even on this latter list, the indicative limit value
proposed for nitrogen monoxide (NO) – a substance that causes respiratory disorders –
was opposed by chemicals and mining industry employer organisations. Finally, the Com-
mission bowed to pressure from industry and left both nitrogen monoxide and nitrogen
dioxide (NO2) o the third list. In so doing, it has created a situation where the chemical
industry can veto values set by the competent independent experts who sit on SCOEL.
SCOEL reviewed these substances and adopted updated recommendations in June
2014 so that they can be included in the fourth list set to be adopted in 2015. This will be
a litmus test of the new Commission’s ability to shake o the paralysing grip of industrial
lobbies.
The situation as regards mandatory limit values does not bear thinking about. In
over twenty years, there have been only ve binding limit values adopted by the EU, the
most recent of which was in 2003 with the revision of the Asbestos Directive. Fewer than
20% of workers exposed to a carcinogen in Europe are covered by these exposure limit
values.
The roles of the European Committee for Standardisation (CEN) and the European
Chemicals Agency (ECHA) are examined in Chapter 5.
39
Table 1 Binding exposure limits
Substances Date first
limit value
adopted
Date
subsequently
revised
Values
currently in
force
Comments
Lead 1982 Never revised 150µg/m3Described as a temporary compromise
in 1982, but the limit value has never
been revised.
In 2002, SCOEL recommended a value
of 100µg/m3, which is in force in a
number of Member States (Sweden,
France, Slovenia).
Lower values: 75µg/m3 (Finland);
50µg/m3 (Denmark, Norway, Portugal,
Poland, Czech Republic).
Asbestos 198 3 1991 and
2003
0.1fibres
per cm3
This limit value does not ensure
adequate protection of workers’ health.
France and the Netherlands: 0.01 fibres
per cm3.
Benzene 199 0 1997 1ppm Several States have adopted values
giving better protection to workers.
0.5 ppm (Denmark, Estonia, Poland,
Sweden). In Germany, the recommended
value for protecting health is 0.06 ppm
and the limit value above which any
exposure must be prohibited is 0.5 ppm.
Vinyl Chloride
Monomer
1978 Never revised 3ppm Limit values are set at 2 or 1 ppm in
Estonia, France, Sweden, Norway.
Hardwood dust 1999 Never revised 5mg/m3In 1999, the Commission pledged to
put up proposals on other wood dusts.
To date, it has not done so. There is
no justification for restricting the limit
value to hardwood dust alone.
The limit value is 2 mg/m3 in Sweden,
1 mg /m3 in France.
The Member States mentioned as having adopted binding limit values that give bet ter protection to workers are not
exhaustively listed. The system operating in Germany and the Netherlands dif fers from that of other Member States and
usually result s in exposure limits that provide better protection than Communit y ones.
The above t able gives only the limit values for 8-hour exposures. It does not show the limit values set for shor t-ter m
exposures.
41
Chapter 4
Fundamental principles
of European OSH legislation
Everywhere in Europe health and safety were the rst issues to be addressed by
what was then called factory law but which gave rise to what are now two sepa-
rate branches of law, namely, labour/employment law and environmental law. The
rst industrial revolution showed the fallacy of believing that employers’ voluntary
initiatives or economic interest would produce working conditions that would be
protective of workers’ lives and health. In that respect, nothing has changed today
and the purpose of prevention in workplaces is to make an outside rationale tip
the balance away from prot-making: occupational health does not t readily with
business management but, rather, calls into question work organisation, the chain
of command and many production choices. While it also addresses some system
breakdowns (work accidents interfere with production), its main area of concern
is the normal course of work as planned and organised by management. This why
organised labour action and public rules are two driving forces of the organisation
of prevention.
The creation of the European Union abolished national borders between
its 28 members with respect to the movement of workers, goods, businesses and
capital. Competition takes place in an extended area compared to States with their
own OSH laws. If that competition is not to spark a race to the bottom, a common
framework of laws at European level is essential.
That framework is currently based on thirty Directives, the main one being
the 1989 Framework Directive.
42
Figure 1 EU health and safety Directives currently in force
Exposure to chemical, physical and biological
agents
2 0 0 4/ 3 7/ EC
(codifying Directive 90/394/EC
and its subsequent amendments)
Carcinogens and mutagens (*6)
2000/54/EC
(codifying Directive 90/679/EC
and its subsequent amendments)
Biological agents (*7)
98/24/EC
Chemicals
20 09/148/E C
(codifying Directive 1983/477/EC
and its amendments)
Asbestos (*14)
20 0 2/4 4/E C
Vibrations (*16)
2003/10/EC
No ise (*17)
200 6/25/EC
Artificial optical radiation (*19)
2013/59/Euratom
(amending previous direc tives)
Ionising radiation
2013/35/EU
(amending a 2004 directive)
Electromagnetic fields (*18)
Workplace
89/65 4/E EC
Workplace (*1)
92/57/EEC
Temporary or mobile construction sites (*8)
92/58/EEC
Safety and/or health signs (*9)
1999/92/EC
Explosive atmospheres (*15)
Use of work equipment
2009/ 104/E C
(codifying Directive 89/655/EEC
and its subsequent amendments) (*2)
Personal protection
89/656/CEE
Use of personal protective
equipment (*3)
Framework Directive 89/391/EEC
on the introduction of measures to encourage improvements
in the safet y and health of workers at work
Specific activities
92/29/EC
Medical treatment on board vessels
92/91/EEC
Mineral extraction through drilling (*11)
92/104/EEC
Surface and underground mineral-extracting
industries (*12)
93/103/EC
Fi shi ng v esse ls (*13)
2010/32/EU
Prevention from sharp injuries in the
hospital and healthcare sector
Specific categories of workers
92/85/EEC
Pregnant workers and worker s
who have recently given bir th
or are breast feeding (*10)
94/33/EC
Young people at work
2000/39/EC
20 0 6/15/E C
2009/161/EU
Indicative
occupational
exposure limit
values
Precarious employment conditions
91/3 83/EE C
Temporary agency workers
and fixed-term contracts
43
Note: the individual Directives under the Fr amework Directive are indicated by an asterisk followed by a f igure,
so ‘*10’ signifies ‘tenth individual Directive under the Framework Directive’, for example.
1989 Framework Directive: the benchmark law
The 1989 Framework Directive lays down the principles that underpin Community occupa-
tional health and safety legislation. The Framework Directive enshrines some of the gains
made by labour organisations which during the 1970s had put working conditions at the
front and centre of labour demands. From Italy to the Scandinavian countries, a number
of common issues are identiable: rejection of repetitive work, intense work paces, a divi-
sion of labour that denied unskilled workers any autonomy in how to organise their work,
demands for wellbeing and dignity that are about much more than just preventing work
accidents, workers’ desires to have command of the production system and exercise control
over technological changes and the accompanying job-related choices, etc.
Among the main developments at least partially enshrined in the 1989 Framework Direc-
tive are:
— a move away from an emphasis on monetary compensation for the damage done by work
to a prevention focus (‘health is not for sale’);
— a shift from a focus on the individual to the collective conditions that determine health
(‘it is not the worker that is sick but the business’);
— a shift from a technical approach where rules devised by specialists ordain what is
healthy and safe to a socio-technical approach where workers move from being the ob-
ject to the main subject of prevention (‘workers themselves are the primary specialists
in their working conditions’);
— a requirement for all workers to be equally covered by health and safety laws regardless
of their status. This was a big step forward in many countries where prevailing rules
created a wide gap between civil servants and private sector workers. Previously, en-
tire categories of workers (agriculture, shing, family businesses, cooperatives, religious
foundations, etc.) were covered by no or only lowest-common-denominator rules. The
only exemption allowed by the Framework Directive concerns domestic workers;
Working time
2003/88/EC
(codifying Directive 93/104/EC and its subsequent
amendments)
Working time
+ sector-specific directives
1999/63/EC
Working time of seafarers
(amended by directive 2009/13/EU)
20 02/ 15/ EC
Working time in road transpor t (also applies to self
employed drivers)
2005/47/EC
Mobile workers engaged in interoperable cross-border
services in the railway sector
2014/112/EU
Inland water way transport
Ergonomic factors
90/269/EEC
Manual handling of loads (*4)
90/270/EEC
Display screen equipment (*5)
44
— a very broad denition of the scope of prevention as involving all the factors likely to af-
fect health, including repetitive and monotonous work and labour relations within the
company;
— a dened general safety obligation requiring a result to be achieved combined with fairly
specic criteria on the means to be used (prevention planning, risk assessment, estab-
lishment of preventive services, employee representation).
Other directives
A total of 19 individual directives issued under the Framework Directive cover dierent
risk factors and dierent categories of workers. None of these Directives can be properly
enforced if the Framework Directive’s fundamental principles have not been correctly im-
plemented because only on the basis of these principles will the workplace prevention sys-
tem hang properly together.
There are also a number of ‘free-standing’ Directives not directly connected with the
Framework Directive; these cover the following areas: working time; workers in a xed-
duration or a temporary employment relationship; young people at work; and medical
treatment on board vessels. Even here, however, linkage with the Framework Directive is
no less important to achieve the integrated prevention that will take into account the inter-
action of dierent risks at work.
The Figure 1, p. 42 shows the areas currently covered.
Many omissions to be made good
The main body of Community OSH legislation was adopted between 1989 and 2000. While
its basic principles are still fundamental to properly organised prevention, major gaps re-
main in this corpus of regulation.
The Community directives mainly laid down a framework governing employers’ ob-
ligations towards their own workers. While this is essential, it is not a sucient response
for all prevention activities.
The reality of work does not match up particularly well with the constraints of the
legal denition of a business venture. Product ion chai ns (in a broad sense, whether for pro-
duction of material goods or services) have become more complex. Situations like the use
of agency work, subcontracting, worksite sharing and the use of independent contractors
all require regulation that does more than specify the obligations of the dierent employ-
ers concerned. Likewise, technological developments combined with management policies
compound the problem of dening what might heretofore have seemed more straightfor-
ward concepts, like workplace and working time33.
As regards the matters dealt with, directives are non-existent or fall short in the
areas where most of the key risks for workers in the European Union are to be found.
Cancers caused by exposure at work cause around 100,000 deaths per year in the
European Union but there have been no improvements to the existing legislation for ten
years (see p. 23). The Directive – which applies only to carcinogens and mutagens – should
33. See in particular Popma J. (2013) The Janus face of the ‘New Ways of Work’: Rise, risks and regulation of nomadic
work, Working Paper 2013.07, Brussels, ETUI.
45
also be revised to include reprotoxins in its scope. The ultimate aim should be to have one
directive covering all substances of very high concern to enable uniform prevention of the
risks they induce (including endocrine disruptors, in particular).
About a quarter of workers suer from musculoskeletal disorders (MSDs) which
have a build-up of eects throughout and beyond working life. They cause many workers to
lose their jobs, aect for the worse the quality of life enjoyed by older people, and can lead
to a rise in mortality due to the long-term consequences of inammations. Most EU states
have no specic laws to guide preventive action against MSDs. In practice, the performance
records of preventive actions in most companies remain poor. Employers see MSDs as in-
evitable bodily sacrices by workers in the interest of productivity. There is also a gender
aspect in that MSDs mostly aect women whose working conditions are typied by less job
discretion than men’s. Women are also more exposed to MSDs by the unequal division of
unpaid domestic work. Employers often use this fact to downplay the role of working condi-
tions in MSDs and explain them away as groundless complaints, or lifestyle or biological
factors that, so they claim, are unconnected with working conditions.
The only way of preventing MSDs is through a comprehensive approach that makes
allowance for the ergonomic conditions of work, the pace and pressure of work, work or-
ganisation, whether work equipment is right for the worker’s job, and the interaction be-
tween all these and psychosocial risk factors. Such an approach challenges the employer’s
power to determine the organisation of work. Rather than tackle the issue head on, Com-
munity law has sought to sidestep the problem by regulating just a handful of risk factors
like the handling of heavy loads, work on display screens and vibrations – on a standalone
basis. A comprehensive directive on the prevention of musculoskeletal disorders has been
on the agenda since 2000. The preparatory work on these directives was brought to a com-
plete standstill by the Barroso Commission in 2012. This U-turn was not unconnected with
employers’ lobbying for, on 26 March 2012, the European employers’ organisation Business
Europe and most of the employers’ organisations in sectors where poor working condi-
tions mean that MSDs are rife (building, cleaning, shopwork, etc.) called on Commission-
ers Tajani (enterprises) and Andor (social aairs) to give up on the idea of a directive. The
lobbying paid o. In May 2012, the Impact Assessment Board (see p. 21) came out against
the draft directive, since when its proposals have been gathering dust on the Commission
shelves and have not been submitted to the European Parliament.
Psychosocial risks are another area where current EU directives clearly fall short of
requirements. While there is no question that the Framework Directive’s prevention prin-
ciples also apply to psychosocial risk factors, the lack of specic, detailed rules is severely
hampering prevention. The only existing Community instruments are the agreements con-
cluded in the context of the European social dialogue (see Chapter 7). These agreements
either have no binding eect or do not cover all workers in most Member States.
Scientic knowledge and technology are also adding to the development of emerging
risks. This is very much the case with nanomaterials, which have proliferated rapidly in the
last ten years with no adequate assessments of their health risks being carried out34 . Even
though the available knowledge on endocrine disruptors now enables a better assessment
of the hazards these chemicals pose to exposed workers, at present there are no EU laws to
protect workers against the risks of nanomaterials and endocrine disruptors. Not only that,
but the Barroso Commission has outed its own legal obligations on endocrine disruptors.
34. See: Ponce Del Castillo A. (2013) Nanomaterials and workplace health & safety. What are the issues for workers?,
Brussels, ETUI.
46
It was due to work out criteria for identifying endocrine disruptors found in pesticides in
2013, but bowed to powerful lobbying by chemical companies (notably, Bayer and BASF)
and did not do so. This violation of legal rules prompted the Council of Ministers’ decision
in December 2014 to back the legal action brought by Sweden against the Commission in
the European Court of Justice.
Compulsory national report
The Member States have to submit a single report to the Commission every ve years on the
practical implementation of the health and safety Directives. The report has to be drawn
up on a tripartite basis and to reect the views of government authorities, trade unions and
employers’ organisations. The rst report covers the period 2007-2012. Directive 2007/30/
EC of 20 June 2007, which requires these reports to be drawn up, does not apply to the
Working Time Directive or the Euratom Directive on ionising radiation. On the basis of
these reports, the Commission is supposed to issue a summary status report to assess im-
plementation of the directives and identify any required improvements to Community law.
As of March 2015, the Commission’s report for the period 2007-2012 had not yet been
drawn up.
Work accidents and occupational diseases
EU law has very little to say on the recognition of workplace accidents and occupational
diseases. Recognition and compensation procedures are set by the individual Member
State on substantially dierent bases. The dierences are much greater with regard to dis-
eases than to accidents.
RISCTox: a union tool
There is a big gap in knowledge about the risks from
chemicals in the workplace. The vast majority of deaths
due to working conditions in Europe are caused by ex-
posure to hazardous chemicals. Workers generally lack
quick and easy access to accurate and detailed informa-
tion on the chemicals they use. To help remedy that, the
European Trade Union Institute (ETUI) and the Spanish
Trade Union Institute Istas co-developed the RISCTOX
chemicals database. Workers can now access informa-
tion sheets on some 100,000 chemicals via the ETUI
website, including thousands of chemicals that can
cause cancer, allergies, hormonal system disruption or
reproductive system damage.
Each datasheet gives the regulation classification and
labelling, the main work-related uses of the chemical
(solvent, cleaner, paint stripper, etc.), health effects and
occupational diseases caused.
The information can be called up simply by typing the
chemical’s name or identification number in the main
international inventories of chemicals into a search box.
Of the approximately 100,000 chemicals listed, almost
570 have been identified by trade unions as substances
of very high concern (SVHC) and put on the trade union
list of priorit y substances. These are chemicals widely
used in workplaces requiring priorit y treatment by
REACH, the Regulation governing the marketing and
use of chemicals in the EU.
Read more
The RISC TOX database can be accessed in English on
the ETUI website: http: //w ww. etui. org/ Topics/Health-
Safety/Chemicals-and-REACH/RISCTOX-dat abase
47
Member States have obligations concerning national statistics to be submitted to
Eurostat, the requirements for which are currently found in Regulation 1338/2008/EU.
On 11 April 2011, the Commission adopted an implementing regulation on statistics on
accidents at work (Regulation No 349/2011).
These are used as the basis for European statistics on work accidents, published at
regular intervals.
The situation regarding occupational diseases is much more critical. European
Recommendations have been in place since 1962, the most recent dating back to 19 Sep-
tember 2003. The original idea was for the European Schedules of Occupational Diseases
to be revised every two or three years but that is nowhere near happening. The Recom-
mendations contain two lists: one is of occupational diseases that should be recognised and
compensated by the Member States; the other is of diseases that are notiable by reason of
their suspected work-related origin. The Member States also have to set up a mixed scheme
to enable recognition of any non-listed disease for which a worker can prove a causal link
between the disease and his/her working conditions.
The fact that these are non-binding rules has perpetuated huge gaps between coun-
tries and limits the ability to make meaningful comparisons, a situation made worse by the
decision to discontinue publishing European statistics on occupational diseases.
49
Chapter 5
The different levels
of a prevention system
Prevention is organised at dierent levels. A number of activities take place at
the company level. Others make sense only within a wider public and national
context. In fact, the extent of prevention actions implemented within the work-
place may dier widely from company to company, for a number of reasons: a
lack of employer willingness, a lack of resources or knowledge, a lack of union
organisation, and so on. Only the existence of a level external to the company
is therefore able to guarantee consistent protection for all workers. This level is
responsible for a range of tasks that involve setting the rules, monitoring and
sanctioning breaches, research, information, training and so on. Carcinogen
substitution, for example, can take place only if companies’ experiences of pre-
vention are disseminated to others. There are also numerous intermediate (sec-
toral and regional) levels.
In addition, the organisation of production now generally exceeds the
bounds of a company as a legal entity. Over the last few decades, subcontracting
networks have grown considerably more complex and this factor stretches the
bounds of prevention, which can no longer be based solely on each employer’s safe-
ty obligations with regard to directly employed workers. Subcontractors generally
have only limited control over the activities in which their workers are involved.
The eectiveness of prevention depends on the cooperation established be-
tween these dierent levels as well as on the links between prevention properly
speaking and the regulation of various global drivers via a range of other policies:
public health, labour market, gender equality, environment, technological choices,
vocational training, social security, etc. These considerations of eectiveness are
closely tied to a political issue: if working conditions are to be changed for the bet-
ter, then workplaces need to be viewed as public spaces, with steps being taken to
50
curb the determination displayed by employers to run them as private assets. In environ-
mental terms, for example, there is a high degree of interaction between companies and
the surrounding area. For some risks, such as persistent organic pollutants that are not
naturally biodegradable and accumulate along the whole length of the food chain, this no-
tion of ‘surrounding environment’ is very wide indeed, with eects being seen across the
whole planet.
We will here consider four factors that are important when organising a prevention
system.
Worker participation
Throughout the 1970s, one of the trade unions’ main demands was for greater worker con-
trol over factors crucial to their working conditions.
This demand was based on a number of dierent observations:
— over and above prevention strictly speaking, any change in technology or work organi-
sation is likely to have signicant consequences for occupational health. In the 1970s,
workers’ struggles emphasised the strong links between the humanisation of work, de-
mocracy in the workplace and worker control over technological changes as regards both
technical choices and the accompanying social choices;
— the lack of workplace democracy is a risk for workers. It is based on a damaging division
of labour that separates the ‘designers’ from the ‘implementers’, thus denying workers’
accumulated collective knowledge and understanding of their workplace;
— the traditional prevention policies established within companies are ineective because
their vision is often restricted to the technical and medical elements of occupational
health and safety, based on recognised and insured pathologies (workplace accidents,
industrial diseases), thus ignoring other important dimensions of occupational health;
— health cannot be achieved solely on the basis of rules imposed by specialists. It requires
mobilisation of the workers concerned who need to be guaranteed the opportunity to
express their problems and needs. Failing this, prevention is often little more than a
smokescreen;
— only active worker involvement will result in a favourable balance of power when it comes
to decision-making.
Worker participation is both a need and a right. It forms part of a triangle of essential
elements: the multidisciplinary contribution of preventive services; the legislative and
regulatory pressure that results in a basic framework of working conditions; and worker
participation as a collective contribution to improving health and acting as a counterbal-
ance to other company actors. Participation does not mean the search for a consensus at
any price, for there is a constant stand-o between clearly dierent and often opposing
perceptions and interests and it would be absurd to believe that participation denotes the
end of conict. Participation means the right to collective organisation and the freedom to
act collectively via any of the methods characteristic of labour movement action (the right
to hold meetings, to strike, etc.).
Historically, worker representation with regard to health and safety emerged as
the rst form of countervailing power in the face of employer management. From 1872
on, worker delegates with inspection powers began to appear in the mines in England,
setting an example that was to became a union demand in other European countries.
51
Union-appointed ‘social inspectors’ still exist in Poland, responsible for checking work-
place health and safety conditions.
Worker health and safety representation takes place in dierent ways across the
European countries. Most countries have joint bodies that are in addition to the general
representation bodies (generally works councils). This is the case in the Nordic countries,
in France, Belgium, Greece, and in most of the countries of eastern and central Europe.
Other countries have health and safety representatives (Spain, Italy, UK, in particular)
while some countries have a combination of the two. In this latter case, the required sta
thresholds for appointing representatives are lower than those required for the formation
of a joint committee. The most usual threshold for such representatives is ten workers while
the number giving rise to the need for a joint body is generally 50.
In some countries (Germany, Netherlands, Austria), the focus is on a single channel
of representation and works councils are intended to represent workers in all issues relat-
ing to company life. There may exist, even so, specialist health and safety committees play-
ing a limited role of technical support. In Germany and Austria, the worker members of
these specialist committees are appointed by the employer although the Works Council has
a right of veto. In the Netherlands, the Works Council appoints these committee members.
The British case is an exception: health and safety representation is legally required
only in those companies where the employer recognises a union. Other forms of repre-
sentation (union representatives, workers’ committees, etc.) are dependent on a voluntary
agreement, i.e., ultimately, on the balance of power between organised workers and the
company. Legislation has been in place since 1999 enabling unions that represent a major-
ity of workers in companies with more than 20 sta to obtain recognition by applying to
the Central Arbitration Committee. This recognition is subject to very strict conditions
and does not automatically involve establishing collective representation in the workplace
beyond health and safety representatives.
The introduction of worker representatives revolves around the idea of consultation.
The employer rst informs the representatives of plans in the pipeline and must give them
the opportunity to react and propose alternatives. The employer must then justif y his nal
decision to them. In practice, there is a wide spectrum of levels of consultation. It may be
established on a purely formal footing, without resulting in any real social debate; at the
other extreme, worker representatives may employ a strategy that skilfully coordinates all
legal possibilities and joint mobilisations in order to control the changing aspects of work;
the usual situation lies somewhere between these two extremes. In some countries, legis-
lative provisions give worker representatives more extensive rights. Worker representa-
tives in Belgium are able to dismiss an external prevention adviser who no longer enjoys
the workers’ trust. Originally, in 1977, this provision related solely to occupational medical
ocers but, in 1996, it was extended to all prevention specialists from external organisa-
tions. In Scandinavia, health and safety representatives have the right to call a work stop-
page in the case of serious and imminent danger.
There is a very strong link between the existence of worker representation and the
establishment of a health and safety prevention system within a company. This link has
been highlighted by numerous national surveys and the European ESENER survey (see
p. 34).
A team of British researchers emphasised this point in an analysis of the ndings of
this survey: ‘The published report of the ESENER survey goes on to examine the ‘impact
of formal participation of employees in the management of health and safety risks’ and re-
ports that all measures to manage general OSH risks investigated in the survey were found
to be ‘more commonly applied where there is general formal representation in place’. It
52
nds the existence of OSH policies, management systems and action plans to be positively
correlated with the presence of employee consultation, even after taking account of estab-
lishment size. Indeed, it suggests that where there is representation in smaller rms, these
eects are even more pronounced than when it is present in larger rms.
It also nds that the presence of formal representation is associated with better percep-
tions of the success of measures (such as the impact of OSH policy) to manage OSH risks,
and argues that ‘the presence (and involvement) of employee representation is clearly a fac-
tor in ensuring that such OSH policies and action plans are put into practice’ 35.
Participation is itself an acquired skill for union teams, who must learn to listen
to the point of view of the dierent worker collectives, take account of their needs, and
base themselves on their experience. A purely institutional vision of participation, limited
for example to meetings of health and safety committees, runs the risk of being devoid of
content.
35. Walters D., Wadsworth E. and Marsh K. (2012) Worker representation and consultation on health and safety:
an analysis of the ndings of the European Survey of Enterprises on New and Emerging Risks (ESENER), Bilbao,
European Agency for Safety and Health at Work.
Covering excluded workers: the experience
of regional representatives
A large number of workers have no representation
whatsoever. There are thresholds in the vast majority
of European countries that prevent employees of small
companies from being represented. These thresholds
vary from five workers (Scandinavia, Germany) to 50
(France, Greece, Belgium, Bulgaria, Hungar y). Other
people find themselves without this right due to their
employment status. Temporary workers are of ten ex-
posed to greater risks, and have no access to health
and safety representatives. Moreover, this right is not
enforced equally. Even when legislation provides for
representation, it may not exist in some companies.
The European sur vey on working conditions indicated
that 52% of workers enjoy some form of representa-
tion (whether specific ally for health and safet y, union
representatives or works councils). The percentage
varies enormously from one country to another. In
Finland, Sweden and Norway, more than 85% of work-
ers have such representation, but this falls to less than
25% in Portugal (2010 data). France is more or less on
the European average. The survey on working condi-
tions does not provide specific data on the existence
of health and safety representation. According to
the ESENER2 (2015) survey conducted by the Bilbao
Agency, such representation is likely to exist in ap-
proximately 60% of European companies with at least
five workers although there are significant differences
depending on the sector of activity, countr y and size
of company.
Establishing regional representation is one way of ena-
bling small and medium-sized enterprises to obtain bet-
ter coverage. In Sweden, around 2,000 regional health
and safety representatives have been established on a
sectoral basis covering more than 350,000 companies.
This system, implemented through collective agree-
ments since 1949, was extended by law to all sectors in
1974. A similar system exists in Italy for some sectors.
In Spain, collective agreements provide for union health
and safety representatives in ‘business parks’ (industrial
areas where dif ferent companies, usually from the same
sector, are located), covering dif ferent companies and
their subcontractors.
Read more
Wiklund H.O. (2011) Sweden: regional safety representatives,
a model that is unique in Europe, HesaMag, 3, 32-35.
53
There are at least four essential conditions to mastering the rules of this art:
— adequate training and information;
— autonomy of intervention, enabling the needs and priorities of the workers to be taken as
a basis and compared with the knowledge of prevention specialists and the employer’s
policy;
— the capacity to create links between the struggle for occupational health and other as-
pects of company life;
Different methods of worker participation
Information
Without equal access to information, any participa-
tion becomes impossible. A true right to information
involves the right to consult experts, chosen by the
unions, in order to validate or deepen the information
provided.
Consultation
Consultation means that the point of view of workers
and their representatives is taken into account prior to
any decision being t aken. It does not affect the princi-
ple of employer decision-making but, to be authentic,
in the case of a disagreement , the employer’s position
needs to be explained and the reasons for rejecting the
workers’ point of view explicitly stated. It is useful to
retain documents relating to this consultation and to
consider the possibility of an appeal (for example, to
the labour inspec torate).
Negotiation
This relates to all procedures that result in the conclu-
sion of specific agreements between the parties.
Codecision
This refers to the creation of joint decision-making
structures. The employer cannot take unilateral deci-
sions. Channels for appealing to other bodies (for exam-
ple, labour inspectorate, joint branch committees, etc.)
in cases of deadlock should be defined. The power of
codecision is widely recognised in German legislation.
Worker control
This notion remains exceptional outside periods of
strong mobilisation as it attacks the ver y basis of the
social division between labour and the employers’ pow-
er. It enables workers and their representatives to have
control over an employer’s decisions by obtaining all
relevant documentation and exercising a right of veto
over these decisions. If there is worker control over all
of a company’s decisions then a kind of ‘dual power’
is created. In some EU Member States, there are ver y
specific forms of control over limited areas. In Belgium,
for example, worker representatives can dismiss an
external prevention adviser who no longer enjoys the
workers’ trust.
Self-management
Two kinds of self-management are encountered: first,
in cooperative businesses that adopt a fully democratic
way of working, management powers are exercised
by the workers themselves; secondly, in situations of
industrial unrest, the workers may ensure continuit y
of production while carr ying out management tasks
themselves and preventing the employer from appropri-
ating the goods produced. This second situation rarely
lasts long because it challenges legal provisions that
allow owners of the means of produc tion to appropriate
goods produced by worker s.
Direct and informal participation
Employers of ten fight the introduction of any specific
regulations concerning worker participation and in-
stead advocate direct and informal participation. This
is understood as being forms of participation that in-
volve individuals, groups (for example, ‘quality circles’)
or, sometimes, a sort of referendum (for example, ask-
ing workers to voluntarily give up benefits, on threat of
relocation). Direct par ticipation without a consultative
structure, without the trade unions, and without specif-
ic rights to information or consultation, is generally an
attempt to create a consensus around the employer’s
objectives and to prevent recognition of the specific
interests of the workers. In contrast, when there are col-
lective institutions representing the workers, these can
base their action on different forms of direct par ticipa-
tion in order to f ight for democracy in the workplace.
54
— the unions’ capacity to establish a functional network that will enable a sharing of expe-
riences between companies and sectors.
Methods of participation vary enormously from country to country. Important dierences
can be noted in terms of industrial relations systems, union traditions, legislation, etc.
Preventive services
The Framework Directive focuses on preventive services in Article 7, the wording of which
is rather complex. Member States are given an important role in dening a number of obli-
gations, and the article sets out also a certain number of basic principles that are intended
to guide the action of Member States. The notion of prevention and the tasks required of
the various services can be coherently dened only with reference to Article 6 which clearly
states that prevention comprises a range of multidisciplinary activities that form a coher-
ent whole and must address all factors that may have an inuence on health and safety.
The current situation of preventive services in the European Union is far from satisfactory.
In accordance with the Framework Directive, four criteria may be used to evaluate the or-
ganisation of preventive services:
— universal coverage: preventive services must be accessible to all workers whatever the
size of the company or sector of activity;
— multidisciplinary approach: the services must include dierent expert skills and the pre-
ventive action must, generally, enable cooperation between these dierent skills such
that a global vision of work can be guaranteed. The Framework Directive species that it
is up to the public authorities of each Member State to dene the requisite skills and that
this decision must not be left to the employer’s discretion. The notion of ‘service’ implies
internal cooperation and an integration of dierent disciplines. It is not compatible with
completely separate interventions conducted by individual prevention specialists who,
more often than not, have the status of ‘consultants’;
— an approach to prevention that accords with the hierarchy of prevention tasks and meas-
ures. The main aim of the prevention services’ activity is to improve collective working
conditions by eliminating risks. This means, in particular, protecting the professional
independence of prevention specialists from pressure by employers;
— eective participation of workers and their organisations in the activity of the services.
The multidisciplinary nature of the prevention services can be seen from the diversity and
complexity of prevention tasks set out in Article 6 of the Framework Directive. Based on
the experience of countries that have multidisciplinary services, in order to ensure a ful-
ly competent prevention service, Member States should bring in and ensure cooperation
among experts from the following disciplines:
— occupational medicine (doctor plus possibly nurse);
— safety;
— industrial hygiene and toxicology;
— ergonomics;
— work organisation and all associated psychosocial factors.
Cooperation between dierent experts does not mean that all experts have to be involved
in every prevention activity. There is a dierence between prevention services, as a stable
55
organisational set-up working for prevention, and the concrete content of the prevention
activity, the multidisciplinary nature of which will depend on the practical circumstances.
Measures need to be dened that will guarantee the sucient quality of the preven-
tive services. To this end, accreditation by the competent authorities can be very useful.
Participation by trade unions in producing quality criteria and evaluation procedures is
essential. Regular evaluation of existing experiences and research aimed at identifying un-
met needs should form part of the national preventive service policy.
The activity of preventive services must focus on primary and collective prevention,
i.e. on changes in working conditions designed to eliminate the risks. While the services
also carry out corrective activities in some countries (depending on their practice or na-
tional regulations), these must be performed in such a way as to enable the adoption of
preventive measures by tracing observed pathologies back to their causes.
Preventive activity must be guaranteed professional independence that enables the
sta of the services to act as advisers to both employers and workers. Respect for interna-
tionally recognised codes of conduct, as reected particularly in the International Code of
Ethics for Occupational Health Professionals, must be guaranteed. This means, in particu-
lar, that the preventive services should not be required to monitor absenteeism and that
their activity should have no consequences for sta selection on the basis of health. In par-
ticular, any use of genetic tests to select sta exposed to certain risks should be prohibited.
Under the rules guaranteeing protection of private life, an employer must be prohibited ac-
cess to any information of a medical nature. On the basis of health surveillance, collective
and anonymous data must be produced to improve the risk assessment and result in more
eective prevention plans.
The Framework Directive stipulates that priority must be given to the formation of
internal prevention services capable of implementing a specic OSH policy that is in keep-
ing with the company’s activities. This work must be supplemented by the use of external
services when the required expertise is not available internally. This most often relates to
occupational doctors who, generally speaking, are available internally only in a small num-
ber of large companies.
The work carried out by external services will be eective only if it is then fed back
into the company by an internal department. There are cases where this work is conned
within a purely administrative role36 whereby the external service produces documents for
the employer designed to ‘prove’ that legal obligations are being met, an approach that can-
not promote real prevention activities within the company.
All too often, the work of the external prevention services takes place in a fragment-
ed manner and on a commercial basis. Depending on what their client companies want, the
external services intervene sometimes more and sometimes less eectively, while it is rare
for the experience gained in one particular company to be used to improve prevention in
others, resulting in a piecemeal approach that is proving a serious obstacle to prevention.
Whereas prevention services are supposed to full a public health mission, this is
largely incompatible with the existing competitive private service market on which activi-
ties are subject to the demands of client companies. The link between public prevention
policy and these services needs to be strengthened, requiring support for these preventive
services from government authorities. Such support could come in many forms depending
on the situation of each country.
36. National reports on application of the Framework Directive indicate that, in many countries, risk assessment
documents that are produced by external services do not result in concrete prevention plans within the company.
56
National OSH strategies have an important role to play in improving the quality of preven-
tion services. The following factors in particular should be taken into account:
— pooling of experiences and solutions and the establishment of an easily accessible da-
tabase and information systems that help to resolve problems on the basis of tried-and-
tested practice in other companies;
— research into experience gained and with the aim of identifying unmet needs;
— continuing training of dierent prevention specialists in order to maintain their skills at
an appropriate level;
— quality control of services in order to avoid creating a market for services that are below
the required level of quality;
— protection of the independence of prevention operators from employer pressure;
— better integration of preventive services within public health mechanisms (epidemiolog-
ical research, consideration of health surveillance data provided by preventive services
in order to intervene promptly, particularly with regard to banning or limiting the use of
hazardous chemical products, etc.).
Employers’ OSH obligations
Practice shows that health and safety are not, as such, priority objectives for employers.
In some areas, and under some conditions, however, it is of real benet to employers to
improve working conditions and avoid damage to health. This is certainly the case when it
comes to avoiding major accidents or damage to health that represents a direct and visible
cost to the company (insurance premiums, nes, costs of absenteeism, etc.). However, this
situation is not the norm. The search for prot often results in serious neglect of health and
safety issues.
Employers’ safety obligations derive from one realisation: damage to health caused
by work is not the result of misfortune, fate or individual behaviour. It is the result of the
power an employer has to determine the organisation of work and thus impose particular
working conditions on company sta.
Employers’ safety obligations are associated with the notion of planned preven-
tion and a prioritisation of prevention measures. It is a question of eliminating the risks at
source wherever possible, anticipating potential risks, providing preventive solutions and
regularly reviewing, in the light of experience, the prevention measures in place.
French research37 suggests that a number of factors are at play in companies’ will-
ingness to assess the risks and establish health and safety committees. One such factor is
the perceived likelihood of industrial unrest, and another the presence of factors that serve
to reduce a company’s isolation, such as belonging to a group, being listed on the stock ex-
change and being involved in employers’ networks.
37. Coutrot T. (2007) Plus de trois établissements sur quatre déclarent évaluer les risques professionnels, Premières
Synthèses, 09-3, Paris, DARES.
57
Obstacles to avoid
Practice shows that two significant obstacles must be
overcome in employers’ risk-management policies.
1. The ‘side-car effect’, which is when prevention meas-
ures are treated simply as ‘sticking plaster’ solutions
intended to limit the adverse effects of the organisa-
tion of work and which are generally left to technical
specialists. This means that prevention requirements
are not an integral part of business policy choices. The
organisation of work, the choice of equipment and sub-
stances, and business planning are all decided with no
real evaluation of their impact on the present or future
health of worker s. Technical measures are taken only af-
ter the event in order to compensate for the harm done
by a company’s policy decisions. In most cases, these
technical prevention measures are unable to eliminate
the risks at source, and are variably successful attempts
at damage limitation. The twisted logic of this approach
can, in some cases, result in workers being blamed for
bringing the damage upon themselves through their
own behaviour.
2. One alternative sometimes proposed is that of es-
tablishing a management system in which occupational
health forms part of a broader range of objectives such
as quality or the environment. While there can be no
doubting the need for systematic occupational health
management, we do however need to avoid some areas
of confusion.
Management systems tend to be designed as top-down
command-and-control systems. Management frames its
own objectives, organises the business so as to achieve
them, evaluates and checks results, etc. Management
systems tend to bring in all players in the firm in or-
der to get ever yone behind the roll-out of a prevention
programme devised by company management. This is a
dangerous form of integrationism. It aims to cut trade
unions and the mechanisms of the industrial relations
system, where they have a big presence, completely
out of the loop; or it may aim to reduce trade union
autonomy under the guise of a consensus around a
‘safety culture’. It is vital to preser ve workers’ collec-
tive autonomy at all stages of preventive action, for
this is what will bring to light and give visibility to new
or previously disregarded problems. This is also what
will enable health-promoting actions to be taken that ,
on the surface, run counter to company production re-
quirements or the management chain. Finally, it is what
can lift problems out of the workplace setting and drive
the policy debate on the changes that need making.
This approach to health and safety as a command sys-
tem is charac teristic of the 45001 draft standard on
occupational health and safety that is currently be-
ing produced by the International Organization for
Standardization (ISO). This draf t standard rarely refers
to workers or their representatives. The very frame-
work of its production, ISO, in which employers exer t
hegemonic influence, has aroused the opposition of
the trade unions. These organisations do not feel that
a technical standard is an adequate tool with which
to address issues relating to industrial relations. It is
likely that the ISO standard will be adopted during the
course of 2017 despite numerous criticisms made both
by the International Labour Organisation (ILO) and
most prevention actors with regard to weaknesses in
the document, which gives employers’ unilateral choice
a decisive impor tance in organising prevention. Like all
standards, it will be a private and commercial document
of a non-binding nature. While it is likely to be adopted
and implemented by some companies, it will be impor-
tant to oppose any challenge to the prevention require-
ments set out in national and Community legislation, or
ILO conventions.
Labour Inspection Services
There are two inspectorate models in Europe, and numerous dierent variations within
these. General inspectorates intervene to ensure respect for current rules across the whole
range of working relations. This is the case in Spain, France, Greece, Hungary, Poland, the
Baltic States, and so on.
58
In the United Kingdom, Ireland and the ve Nordic countries (Denmark, Iceland,
Finland, Norway and Sweden), there is a specialist inspectorate for occupational health
issues although the area of intervention diers slightly in scope from one case to the next.
Belgium has an intermediary situation. It follows the generalist model by making the State
responsible for monitoring all labour regulations but has a body of specialist inspectors for
‘monitoring wellbeing at work’.
The task of inspection is often shared between the main institution and other bod-
ies. Thus, in Germany, there is a generalist State inspectorate and a specialist inspectorate
made up of joint social security bodies responsible for compensating occupational risks
(Berufsgenossenschaften). In France, the labour inspectorate is general in nature. With
regard to occupational health and safety, social security also intervenes with CR AM (re-
gional health insurance funds) inspectors. In Sweden, the State’s specialist labour inspec-
torate for health and safety is supplemented by the intervention of another inspectorate fo-
cused on the chemical risks for occupational health and for environmental protection and
public health. Poland has a general State inspectorate and a specialist occupational health
inspectorate organised by union representatives known as ‘social inspectors’. A compa-
rable system exists in the Czech Republic’s mining sector. The work of the central British
inspectorate is supplemented by inspectors reporting to the local authorities who intervene
primarily in the service sector.
Two sensitive issues are addressed very dierently depending on the country: one
focuses on the relationship between the specic inspection bodies responsible for environ-
mental protection and those monitoring the application of rules in occupational health; the
other on the cooperation between the inspection systems that are monitoring companies
with a major risk of chemical accident (Seveso companies) and the labour inspectorates.
While institutional solutions vary enormously from country to country, close cooperation
between these dierent organisations is essential. The workers’ health and safety repre-
sentatives should be systematically included in all these activities.
At the end of the 1970s, Italy established an original system in the wake of demon-
strations and widespread industrial unrest over more than a decade (from the ‘hot autumn’
of 1969 through to the failure of the FIAT strike in 1980). The tasks of the health and safety
labour inspectorate were transferred to public prevention services organised by the local
authorities. In their capacity as preventive services responding to a social demand, these
multidisciplinary services coordinate the monitoring and sanction tasks of the labour in-
spectorate together with company interventions. The ‘Workers Statute’ adopted, with force
of law, in 1978 gave workers a right of control over their working conditions. This reform,
linked to a revision of the public health system, has yielded remarkable results in regions
where political and social mobilisation served to encourage the creation of new institu-
tions. Although challenged by the current government38 , such a model could be reactivated
and extended to other countries, provided the environmental movements led by people
living close to industrial activities can be included. Its strength lies in the recognition that
collective health and safety practices are intrinsically political.
Apart from the institutional dierences, there are some common problems that
emerge. The most worrying is the huge lack of resources for inspection work. For a number
of reasons, prevention has become ever more complex: proliferation of small enterprises,
development of subcontracting chains, existence of a single European market. This means
38. The Jobs Act adopted at the initiative of the Renzi government at the end of 2014 anticipates creating a single
inspection agency. At the time of writing (March 2015), the content of this measure has yet to be dened.
59
that there is a tendency for unfettered competition to develop without adequate control
mechanisms being established for work equipment and chemical products. Company mo-
bility hinders eective inspection in sectors such as construction and transport. Faced
with these developments, most national inspectorates suer from a lack of stang and do
not always have the requisite professional skills and technical infrastructure. The ILO’s ob-
jective is to have at least one health and safety inspector for every 10,000 workers. Numer-
ous European countries are very far from achieving this and the situation is deteriorating.
In Belgium, for example, there is one health and safety inspector for approximately every
26,000 workers. Each inspector has to cover more than 1,800 companies. There was a 42%
reduct ion in the number of inspections in the UK over the 2002 – 2007 period and the sit u-
ation continues to worsen. In Germany, public authority inspections were reduced by half
between 1996 and 2009. Over the same period, the monitoring bodies of the occupational
risk insurance companies reduced their number of inspections by more than 40%.
These quantitative diculties are compounded by qualitative problems. Over the
years, inspection missions have multiplied and this can result in inconsistency. The pres-
sure of xenophobic policies sometimes therefore results in a mobilisation of inspections
around the hunt for illegal immigrant workers. The priority given to monitoring compliance
with the law rather than oering advice sometimes leads to a blurring of priorities. Links
with the judiciary are problematic and result in a frustrating situation in which numerous
infringements that are agged up by the inspectors do not result in any prosecutions. The
British government has gone furthest in challenging the basic principles of labour inspec-
tions. Since 2012, part of the ‘service’ of the labour inspectorate has been marketised. This
means that employers who have received a visit from a labour inspector must pay a contri-
bution. Such a development raises the spectre of some labour inspectorate activities being
privatised in the future.
Read more
HesaMag No.10 (2014) Special report - Occupational health services in need of emergency care.
Nichols T. and Walters D. (eds.) (2009) Workplace health and safet y: international perspectives on worker
representation, Basingstoke, Palgrave Macmillan.
Thébaud-Mony A., Davezies P., Vogel L. and Volkoff S. (eds.) (2015) Les risques du travail: pour ne pas perdre
sa vie à la gagner, Paris, La Découverte.
Vogel L. (1994) Prevention at the workplace. An initial review of how the 1989 Community framework
Directive is being implemented, Brussels, TUTB.
Vogel L. (1998) Prevention at the workplace. The impact of Community Directives on preventive systems in
Sweden, Finland, Norway, Austria and Swit zerland, Brussels, TUTB.
Walters D. et al. (2011) Regulating workplace risks: a comparative study of inspec tion regimes in times of
change, Cheltenham, Edward Elgar.
61
Chapter 6
Links with other
Community policies
Issues of health and safety at work cannot be addressed in an isolated manner giv-
en the existence of important links with other policies. This applies, for example, to
labour market, social security, environmental protection, gender equality, educa-
tion or vocational training. Though areas of common or closely related concern are
readily apparent, the need to establish and exploit eective links in these dierent
policy directions is not always adequately heeded.
While this is not the place to provide an exhaustive analysis of this prob-
lematic, a number of particularly important links should be noted with regard to
three issues.
Market rules
Community legislation on market rules began to be established very early in the
history of the European Union. It was initially based on Article 100 of the Treaty
(with the Lisbon Treaty, this became Art. 114 of the TFEU). Its main purpose is
to ensure the free circulation of goods while simultaneously guaranteeing a set
of non-economic objectives such as the protection of human health, occupational
health and safety, and the environment.
This legislation primarily covers the rules governing the placing of chemical
products on the market and those concerning work equipment and personal pro-
tection equipment: ‘the new approach’.
62
Rules with regard to placing chemical products on the market
The rst directive in this regard dates from 1967. Though some 40 directives and regu-
lations were subsequently adopted, this complex legislative corpus proved ineective for
the protection of health and the environment, in addition to being poorly implemented.
Asbestos provides a good example of how badly the system functioned prior to REACH. By
1976, the European Union had the legislative power to ban asbestos and there was ample
scientic data to justify this. However, not until 1 January 2005, with the entry into force
of a directive adopted in 1999, was a total ban on asbestos established in the EU. An in-
depth reform of the legislation was therefore badly needed and was, moreover, demanded
by the Member States that joined the EU during the 1995 enlargement (Sweden, Austria
and Finland). These countries already had national regulations providing for a higher level
of health and environmental protection and did not wish to be forced to reduce these lev-
els. The REACH Regulation adopted in 2006 was crucial for ensuring better prevention of
risks from chemicals in the workplace. The text provides for registration of some 30,000
chemical substances that are produced or placed on the market in the European Union
in amounts of at least one tonne per company per year. The information to be provided
by companies depends on the volume produced. For amounts of more than 10 tonnes per
company per year, a chemical safety report must be produced. The registration of existing
substances has been staggered over an 11-year period that comes to an end in 2018. All new
substances must now be registered prior to being placed on the market. REACH provides
also for regular evaluation by the public authorities of a limited number of substances ac-
cording to certain criteria. This mechanism is essential to prevent the information pro-
vided by manufacturers from being incomplete or manipulated. There exists a list of the
most hazardous substances and these are subject to authorisation procedures, a provision
that is supplemented by the possibility of restricting or banning the production and use of
certain substances. In addition, on the basis of a global agreement, the rules for classifying,
packaging and labelling hazardous substances have been reviewed. In specic areas, other
Community regulations apply. Such is the case of pesticides and biocides.
In 2008, REACH was supplemented with a new regulation on classication, label-
ling and packaging of substances and mixtures (Regulation (EC) No 1272/2008) which
applies globally dened rules at EU level. This regulation harmonised the classication of
some 4,000 substances. For other products, it is the producers who propose a classication
according to their own analysis. The safety data sheets have been amended on the basis of
this new regulation.
Other pieces of European legislation cover more specic areas such as pesticides,
biocides, cosmetics, waste, etc. As a general rule, this legislation underestimates the health
and safety issues and links up poorly with the rules protecting workers’ health.
63
The rules concerning work equipment and personal protection equipment:
‘the new approach’
Directives concerning work equipment and personal protection equipment establish only
basic and fairly general safety requirements. They are supplemented by technical stand-
ards produced by the European technical standardisation bodies (CEN and CENELEC39).
The most important directive in this regard is the Machinery Directive. The rst
Machinery Directive was adopted on 14 June 1989. It has been revised a number of times
but its basic principles have not changed. The current text is Directive 2006/42/EC.
The Machinery Directive reects what is called the ‘new approach’ that was formalised by
Council resolution of 7 May 1985. The ‘new approach’ can be summarised in three points:
— recognition of the role of standardisation as an auxiliary instrument to the regulation
(reference to standards, primarily European but, if necessary, national, as a transitional
measure, with the task of dening the products’ technical characteristics);
— denition of a new kind of directive focused on the basic requirements that products
must meet to be able to circulate freely on the Community market;
39. CEN: European Committee for Standardisation; CENELEC: European Committee for Electrotechnical
Standardisation.
The role of the Helsinki Agency
In budget and staffing terms, the European Chemicals
Agency (ECHA) is the most significant specialist
European agenc y. It is based in Helsinki and is a regu-
latory body in the sense that it plays a direct role in
the Community decision-making process regarding the
regulation of chemicals.
Its responsibilities lie primarily in implementing the
REACH Regulation. It also focuses on other significant
legislative texts related to the regulation of chemi-
cals: Regulation (EC) No1272/2008 of the European
Parliament and of the Council on classification, label-
ling and packaging of substances and mixtures (CLP
text); Regulation (EU) No528/2012 of the European
Parliament and of the Council of 22 May 2012 con-
cerning the making available on the market and
use of biocidal products (BPR); and Regulation (EU)
No 649/2012 concerning the export and import of
hazardous chemicals (also referred to as the PIC – pri-
or informed consent – regulation).
The Agency comprises different specialist committees as
well as a Board of Appeal, which is a jurisdictional body
responsible for hearing disputes regarding some of the
Agency’s decisions on the application of REACH or the
BPR Regulation. If a party is not satisfied with the deci-
sion of the Board of Appeal, it can submit the dispute to
the General Court of the European Union in Luxembourg.
The Agency’s Board of Directors is not a tripartite body.
It comprises 28 members representing the Member
States of the European Union, six members represent-
ing the Commission and three members representing
‘interested par ties’. These latter have only a consultative
voice. Given the importance of REACH for occupational
health and the very active role played by the European
Trade Union Confederation (ETUC) in negotiating it,
one of the three ‘interested party’ members represents
the unions. Based on an agreement between ETUC
and the IndustriAll European Trade Union (to which
the chemicals sector unions belong), this mandate is
rotated between ETUC and IndustriAll. Observers from
Norway, Iceland and Liechtenstein are invited to t ake
part in the meetings of the Board of Directors because
REACH also applies to these countries.
64
— openness to a policy of evaluating compliance (this last point, the weakest of all, was
added subsequently).
Legislative harmonisation is thus limited to adopting the basic health and safety require-
ments that products placed on the market must meet in order to benet from free circula-
tion within the European Union. The detailed technical specications have to be specied in
harmonised standards produced by European standardisation bodies and mandated by the
Commission. These harmonised standards are not binding; however, products that are de-
signed in line with the harmonised standards (references for which are published in the O-
cial Journal of the European Union and transposed into national legislation) are presumed to
comply with the basic requirements of the directives. If a product is not – or is only partially
– designed in line with the harmonised standards, or if there is no standard, its compliance
with the basic requirements will need to be assessed and, if appropriate, attested by a ‘noti-
ed body’ according to procedures that are variably restrictive depending on the level of risk
inherent in the product. The certication procedures to be followed by the manufacturer are
specied in each of the directives. For the Machinery Directive, certication forms an excep-
tion required only for the most hazardous equipment (Annex IV to the Directive). The certi-
cation procedures may focus on the equipment itself (known as a ‘type examination’) or on
the procedures established by the manufacturer when organising his production. The bodies
responsible for certication are private companies registered with the State. They are called
‘notied bodies’. The manufacturer is free to use the notied body of his choice.
For most machinery, the CE marking does not therefore denote a form of external
control. It is a simple self-declaration on the part of the manufacturer stating that the legal
obligations have been met. This is why, in many cases, the CE marking on a product does
not guarantee compliance with basic safety requirements.
The inadequate implementation of Community rules stems in some cases from their
incomplete nature, lack of precision and grey areas. It is sometimes the result of a lack of
cooperation between the dierent actors and of insucient coordination between practi-
cal experience in the workplace and market regulation and surveillance mechanisms. It is
often attributable to weaknesses in the control and sanction mechanisms put in place by
Member States.
Market surveillance for work equipment and personal protection equipment takes
place in very dierent ways in each Member State. The fact that there are dierent institu-
tional actors involved would not be a problem in itself if their interventions were compara-
bly eective. Unfortunately, this is often not the case. While some Member States do devote
signicant resources to market surveillance, others seriously neglect it, and there is still
little cooperation between the authorities of dierent countries working in this area. Even
within the Community institutions, the level of cooperation between the Commission’s dif-
ferent Directorates-General is rarely sucient.
The jurisprudence of the European Court of Justice favours a very liberal inter-
pretation of the Machinery Directive that eectively reduces Member States’ capacity to
establish a dynamic policy of market control40 . For the Court, the presumption of compli-
ance deriving from the CE marking and certication by a notied body has the eect of
preventing Member States from adopting any measures that might appear to restrict the
free circulation of goods other than the prohibitions regulated by the Machinery Directive.
40. Order of 8 September 2005, Yonemoto, case C-40/04; order of 17 April 2007, AGM-Cos.Met SRL v Suomen valtio and
Tarmo Lehtinen, Case C-470/03.
65
The current form of regulation is partly reliant on the work of private actors operat-
ing in a competitive market. A competitive market of private control bodies (in the broadest
sense) is only as strong as its weakest link. Once there are dierent levels of control, there is
a risk that private actors who have reason to believe that their activities may not be compli-
ant with requirements will turn to the body stipulating the most lax requirements.
Although the objective of Community regulation is to ensure the health and safety
of equipment users, current practice remains dominated by a restrictive vision of safety. In
particular, the inclusion of ergonomic criteria in standards remains insucient.
In contrast with the provisions of the regulation on chemicals, producers of work
equipment and the European standardisation bodies are not required to take systematic
feedback either from workplace incidents/accidents or from health problems into account
in order to ensure constant improvement in the design of work equipment and the content
of technical standards.
Eective cooperation between the dierent actors is inseparable from the need
to establish information systems on the links between equipment and health and safety.
This involves the systematic gathering of data in the workplace on accidents, incidents,
ergonomic issues and other health-related aspects (e.g., noise and vibration), for only in
this way can the problems caused by specic equipment be identied. There is currently
no European-level provision for such data gathering although positive initiatives in some
Member States could well serve as a basis for a Community policy in this regard. Even data
on work-related accidents is insuciently used in market surveillance in most countries.
We generally have a clear idea of how many accidents take place by day of the week, time
or sector of activity but the data is far more vague with regard to the equipment concerned
and the specic circumstances of its use. Accident notications which, in varying forms,
are compulsory in all Member States, could contribute to a far more eective organisation
of prevention work.
Union participation in the activities of the
European Committee for Standardisation (CEN)
One feature of the European standardisation bodies
is the poor involvement of the trade unions. Because
they represent the end users of the equipment, the un-
ions, both national and European, are striving to par-
ticipate in the work to perfect these standards. Since
1989, European Union involvement (limited to issues of
workplace health and safety) has been promoted by the
European Trade Union Institute (ETUI). In particular,
this enables support to be provided to union networks
active in dif ferent countries so that they can feed back
experiences gathered in the workplace.
On 25 October 2012, a new regulation on European
standardisation was adopted. It recognises the impor-
tance of trade union participation in order to defend
the interests of workers in standardisation activities.
On this basis, the European Trade Union Confederation
(ETUC) has set up a new structure aimed at enabling
union participation in areas not directly related to
health and safety at work, such as industrial policy,
environmental protection, the link between standards
and the organisation of work, etc. This structure should
come into operation during 2015.
66
The environment
In Europe virtually no political grouping continues to deny the importance of the environ-
mental crisis41, unlike in the United States where industrial lobbies have persuaded a large
proportion of Republicans to deny climate change.
There are many links between OSH and the environment. The impact of hazard-
ous chemicals is one immediately visible connection. Most environmentally harmful sub-
stances and procedures aect health and safety at work also. This is why, in the debates
that accompanied the adoption of REACH and which are continuing throughout its im-
plementation, numerous possibilities are arising for alliances between trade unions and
environmental organisations. Likewise, a radical reduction in the use of pesticides in farm-
ing would have positive eects on both the health of workers and on public health and
environmental protection. The issue is, however, a highly divisive one. It involves clashing
with a triple alliance of seed producers, the chemicals industry and the intensive farming
sector, which has been the big winner in the EU’s Common Agricultural Policy42. In the
background loom attempts to commoditise living beings which, in agriculture, means ap-
plying industrial production processes to crops and livestock rearing.
Most of the major disasters that have occurred in the energy and chemicals sectors
demonstrate the existence of close links between environmental threats and the organisa-
tion of work. The systematic use of subcontracting in order to reduce wage costs results in
a loss of worker control over the whole production process. This applies both to employees
in stable jobs within the contracting company and to subcontracted workers. This phenom-
enon could be observed both in the explosion at the AZF chemicals factory in Toulouse in
2001 and during the environmental disaster caused by the explosion of BP’s ‘Deepwater
Horizon’ oil platform in the Gulf of Mexico in April 2010. The control methods devised
by the companies are based largely on rigorous respect for procedures and traceability
of all the activities of the dierent companies involved. They are based on a technocratic
conception that denies the inevitable gap between what should be done and what actually
happens and on strategies that disregard the knowledge held by the workers as a group. It
is precisely this casualisation of work that hinders collective cooperation and reduces the
margins for essential manoeuvre that would enable unexpected situations to be dealt with.
This does not mean that a virtuous synergy automatically occurs between envi-
ronmental protection measures and OSH. For a start, certain environmental protection
measures may result in dangerous exposure for workers or a transfer of risks. In addi-
tion, in recent decades, ‘green capitalism’ strategies have increasingly become established.
These involve measures that are partial and of limited eectiveness, while rejecting any
more global questioning of social inequalities. Companies involved in green capitalism of-
ten contribute to the casualisation of working conditions and to the privatisation of public
services. This trend is particularly visible in sectors such as waste treatment and recy-
cling. It is consistent with the continuity of a concept according to which all human activity
should fall within the sphere of the market. There is in this sense a strong link between the
41. The only notable exception is UKIP in the United Kingdom, which wants to ban teaching on climate warming in
schools and is demanding that the British energy strategy be based on coal, nuclear and gas, abandoning all support
for renewable energies. Within the European Parliament, UKIP has formed the EEFD group (Europe of Freedom
and Democracy) with the Italian Five Star Movement and various MEPs from the extreme right in dierent countries
(Sweden, France, Lithuania, Poland, Czech Republic).
42. This explains why, in European legislation, the authorisation of pesticides involves procedures other than REACH and
which enable products to remain on the market even though they contain particularly hazardous active substances,
especially endocrine disruptors.
67
nancial mechanisms that create rights to pollute and the activity of ‘reparation’ (waste
treatment and recycling, cleaning up polluted sites) entrusted to private companies.
More globally, to eectively combat attacks on the environment, we need to link im-
proved working conditions with a global reorientation of production in line with the needs
of the majority of the population. This means challenging social inequalities, and planning
resources and their use in production (raw materials, energy, water, etc.). These goals are
incompatible with the property and power relationships that are characteristic of capital-
ism. Reducing energy consumption, creating relatively short production and consumption
circuits, combating the obsolescence that is programmed into numerous consumer goods,
establishing eective public transport systems, curbing our dependency on the car, all are
dierent facets of a global policy. This can be based only on a balance of power built around
a coordination of environmental and social equality objectives.
In an ecological transition, the organisation of work is not neutral. The intensica-
tion of work and the primacy of competition result in a lack of satisfaction on the part of
workers, insofar as they give rise to a feeling of not being able to do a good quality job. They
also serve to curtail sociability in the working environment and cause the pressure of work
to spill over into private life. This dissatisfaction with work manifests itself in compulsive
forms of consumption. The real utility of a product becomes immaterial when its purchase
is presented as the symbol of a particular social status. Advertisers shamelessly exploit
this sense of compensation and a vicious circle is set in motion: working more to consume,
consuming more because work is frustrating and takes up all your living time. Instead of
tackling this situation full on, many ‘green’ policies uctuate between sterile guilt (‘we’re
all responsible’) and a commoditisation of environmental awareness through the burgeon-
ing of green labels.
The association between demands for quality of life and an extension of democracy
in the workplace would help to foster and consolidate collective choices that break with
economic productivity. Previous failed experiences of bureaucratic planning suggest that
it is only on the basis of workplace democracy that economic planning as a whole would
enable both social needs and the imperatives of environmental conservation for future gen-
erations to be met43.
Finally, a critical evaluation of technological choices represents another potential
area of convergence between OSH and defence of the environment. Capitalism results in a
constant acceleration of the move from scientic knowledge to practical implementation.
Whether it is a matter of genetically modied organisms or of nanomaterials, the mass use
of new materials or new production techniques becomes a fait accompli long before their
social impact and health and environmental risks have been evaluated.
43. Löwy M. (2008) Ecosocialism and democratic planning, Socialist Register 2007, 43, 294-309.
68
Gender equality
The sexual division of labour is an essential determinant of the organisation of work. Work
is generally not mixed. Men and women are not found working equally in dierent sec-
tors of activity, jobs, levels of responsibility or kinds of work. Moreover, if people’s whole
working lives and careers are taken into account, signicant dierences can be seen in the
respective situations of men and women.
There is a close association between issues of equality and issues of health and safety
at work. The unequal distribution of work results in dierent risks; unequal access to pow-
er implies increased invisibility of the risks run by female workers. In addition, the ability
to deny the risks and damage to health relies strongly on the sexual division of labour.
For male jobs, the exaltation of virility and the stereotypes associated with it (strength,
courage, etc.) means that some risks are not taken seriously and, in some professions, this
results in a real selection among the workers.
For traditional women’s jobs, the use of stereotypes enables not only real qualica-
tions to be denied (and wage inequalities and poor participation in decision-making to be
justied) but also the health risks of tasks described as ‘naturally female’ to be ignored.
The massive inux of women into salaried work in recent decades has not fundamen-
tally changed the unequal structure of the labour market. The gender segregation of work has
Extending the concept of ‘decent work’
‘A democratic socialisation of economic decisions is nec-
essary in order to master finance, and preserve the envi-
ronment and resources. However, it is also necessar y to
enable access to ‘decent work’ for all, understood here
in a sense broader than that of the International Labour
Office: a properly remunerated job, with social rights,
clearly, but also one with the political right to be involved
in defining the conditions and ver y purpose of that work.
This means deciding jointly, with the workers, the unions
and other interested stakeholders, what the company
should produce and how it should produce it; par ticipat-
ing in the organisation of work and the election of lead-
ers; jointly considering how the fruits of labour should
be distributed and what investment choices should be
made: these rights are part and parcel of truly decent
work. Self-fulfilling work is work in which the worker
is able to asser t his own understanding of quality and
discuss it in relation to the understanding of others. In
this aspect of work we again reach the finding previously
established on the basis of economic regulation: that the
democratisation of social relations, here production rela-
tions, is the key to a social and environmental reorien-
tation of society. Decent work should be considered a
common good, essential both for wider democrac y and
for preserving the health of people and the environment.
The economic institutions should therefore guarantee
everyone the right to decent work, in accordance with the
same principles that must prevail for other common goods
already mentioned, supportive financial stability and nat-
ural resources: democratic governance, controlled by local
actors by means of common rules decided by the public
authorities. Once this occurs, wage subordination will un-
doubtedly seem as uncivilised to us as slaver y does today.
How do we progress towards building decent work as
a common good? In the current context of the break-
up of work collectives, the deeply-rooted aspirations of
workers to be masters of their own labour do not neces-
sarily result in collective action, and yet such action is
alone capable of fostering a move in this direction. It is
also this diff iculty in raising these problems as explicitly
political and collective that in fact precisely explains
their harmful ef fects on people’s health. The trade un-
ions are now becoming aware of this, although they are
not yet able to influence the situation.’
Extract from Coutrot T. (2010) Jalons vers un monde
possible: redonner des racines à la démocr atie, Lormont,
Le Bord de l’eau, 95-97.
69
been little aected. This segregation is most marked in the Scandinavian countries where,
moreover, rates of women’s participation in the labour market are at their highest.
The change in the division of labour between men and women with regard to unpaid
domestic work is very slow. This may well be attributable more to the crisis of the tradition-
al family – which is manifestly no longer regarded as the only life model for adults – than
to a redistribution of work and roles within it. The eects of domestic work on health are
rarely addressed. A more precarious physical and mental state is generally observed among
women who devote themselves to housework alone.
The interaction between unpaid domestic work and salaried work is an important
factor in understanding the dierent impact of working conditions on the health of men
and women. Flexible working policies thus generally contribute to the increased casuali-
sation of women’s work and, in some cases, can lead to the removal of large numbers of
women from the workplace. Another element of interaction can be seen in the actual con-
tent of the salaried work that is performed predominantly by women and which often forms
an extension of their domestic activities: repetitive tasks, personal care and other personal
services, attitudes of submission, availability to the needs of others, exibility.
A gender balance in work (sectors, tasks and levels of responsibility) is an essential
prerequisite for any real equality between men and women, as is a more eective sharing of
unpaid domestic work and equal representation in political decision-making.
Community policy has not developed a gender-sensitive approach to health and
safety at work. The relevant data needs to be gathered and research undertaken to verify
the links between the dierent OSH problems and the sexual division of labour; preven-
tion rules need to be produced for areas with insucient coverage, meaning women’s
work in particular. The criterion for judging that work is compatible with health would
be that it is organised subject to conditions whereby both genders enjoy access to jobs
throughout their working life without their occupational activity being a source of dam-
age to their health.
France: incorporating equality into risk assessment
Since the law of 4 August 2014, risk assessments in
French companies must take into account ‘the different
impact of exposure to risk due to gender’.
This is an important provision in that it enables better
coordination of prevention for health and safety in the
workplace with the objec tive of gender equality. Several
factors are wor thy of note. On the one hand, the gender
division of labour often denotes significant differences
in the respective activities of men and women. The risk
assessment must take these into account and preven-
tion plans must contribute to making access possible
– for women and men – to all jobs under conditions that
are not likely to damage their health throughout their
working life. On the other hand, a cert ain number of
risks may have dif ferent effects on men and women due
to biological differences. This is certainly the case in the
area of chemical risk prevention, for example, in rela-
tion to endocrine disrupters. In terms of ergonomics,
there are differences in the average biomechanical and
physiological data to be considered. There are also spe-
cific constraints that weigh – ver y much more – heavily
on women in terms of the compatibility between gain-
ful employment and unpaid work at home.
A form of risk assessment taking into account the re-
spective situations of men and women would be de-
cisive in enabling the stereot ype according to which
women’s work is less dangerous for their health than
men’s to be overcome. It would encourage the preven-
tion specialists to pay closer attention to activities that
are considered secondary (cleaning, reception, mainte-
nance, administrative support tasks), all of which are
tasks carried out by large numbers of women.
70
Read more
European Agenc y for Safety and Health at Work (2003) Gender issues in safety and health at work: a review,
Luxembourg, Office for Of ficial Publications of the European Communities.
HesaMag No.7 (2013)Special report - St andardization: what roles for the unions?
HesaMag No.8 (2013)Special report - Chemical hazards: state of play 6 years into REACH.
HesaMag No.9 (2014) Special report - Waste and rec ycling: workers at risk.
HesaMag No.12 (2015)Special repor t– Women’s health and work.
Messing K. (2015) Ce genre qui cache les risques qu’on ne saurait voir, in Thébaud-Mony A ., Davezies P., Vogel
L. and Volkoff S. (eds.) Les risques du travail: pour ne pas perdre sa vie à la gagner, Paris, La Découverte, 106-
115 .
Musu T. (2010) REACH: an opportunity for trade unions. Putting knowledge to work in the workplace, Brussels,
ETUI.
Rey F. and de Gastines F. (2009) 1989-2009. Twenty years of the Machinery Directive. Twenty years of union
action to raise standards, Brussels, ETUI.
Schneider E. and Kosk-Bienko J. (eds.) (2009) Exploratory Sur vey of OELs for CMR subst ances, Bilbao, European
Agency for Safety and Health at Work.
Vogel L. (2003) The gender workplace health gap in Europe, Brussels, TUTB.
71
Chapter 7
European social dialogue
and health and safety
at work
Since the Single European Act (1986), Community treaties have recognised the im-
portance of social dialogue between employer organisations and trade unions. It
should be noted, however, that social dialogue is just one particular moment in the
dynamic of industrial relations. Historically, labour unrest has always preceded
social dialogue of which it is an essential prerequisite; it contributes to changing
the balance of power in society. In the industrial relations eld, the purpose of
discussion and argument is not to separate truth from falsehood but to guide the
development of society in the direction of one set of aims or another. These sets of
aims are opposed to one another, given that what is at stake is an underlying and
objective conict of interests. The best arguments in favour of a fairer and more
equal society will remain ineectual if not backed up by protest.
Community law has developed a denite ambivalence with regard to conict
between the two sides of industry. In the social chapter on the Treaty of the Func-
tioning of the European Union, such issues are considered as not falling within
the Community’s eld of competence; and yet, the jurisprudence of the Court of
Justice has challenged the right to strike and the right to take collective action, in
the name of the pre-eminence of market rules44.
44. See, particularly, the Laval and Viking rulings of December 2007. Numerous documents on this issue can
be found on ETUI’s website: www.etui.org.
72
Social dialogue in Community law
Social dialogue has become institutionalised in the Community treaties through a number
of stages. The Treaty of Rome gave it a fairly discreet role by establishing the Economic and
Social Committee, which is a purely consultative body involving representatives with equal
weight from three groups: the employers’ organisations, the trade unions, and organisa-
tions representing dierent activities such as the professions, artisans, consumer rights
associations, non-governmental organisations, women’s organisations, and so on.
On 14 December 1970, a Standing Committee on Employment was created to enable
dialogue on employment issues between the trade unions, employers’ organisations, Coun-
cil and Commission. In the context of implementing the common market, meetings were
held between the European unions and employers’ organisations, at an intersectoral level,
systematically from 1985 on. The Commission also took part in these meetings which were
institutionalised in 2003 under the name of the ‘European Social Summit’.
The Single European Act introduced the notion of social dialogue into the Commu-
nity treaties for the rst time in its Article 118B. Without explicitly mentioning the role of
European collective agreements, the Treaty’s wording did not rule out such a development.
The agreement on social policy, adopted in 1992 in parallel to the Maastricht Treaty and
signed by only 11 Member States, distinguished between two forms of social dialogue. On
the one hand, the European employers’ organisations and unions could sign agreements
autonomously and these agreements could then possibly be implemented through Com-
munity directives. On the other hand, the unions and employers’ organisations had to be
consulted with regard to social legislation. In the context of this consultation, they had
the option of deciding to negotiate an agreement that would replace the envisaged draft
legislation.
These two procedures have been maintained in the various Treaty amendments
adopted since then. They are currently stipulated in Articles 154 and 155 of the Treaty on
the Functioning of the European Union (TFEU). They are described in Figure 2.
Three main levels can therefore be distinguished in the contribution of social dialogue to
the production of Community regulations:
— social dialogue as a consultation procedure for adopting European legislation and
policy;
— social dialogue as a source of legislation based on a prior initiative of the European
Commission;
— social dialogue as an autonomous source that may result in the production of either
legislation or texts of a non-binding nature. In this context, intersectoral social dialogue
needs to be distinguished from sectoral social dialogue.
To these three European levels must be added the possibility of transposing social direc-
tives (whether directly the result of European social dialogue or adopted in the context of
the usual procedures) through national collective agreements, insofar as these provide suf-
cient transposition of the scope of implementation and legal certainty.
73
Figure 2 Consultation and negotiation procedure under Articles 154 and 155
Source: European Commission (2012) Consulting European social partners: understanding how it works,
Luxembourg
Social partners Commission Council/Parliament
First consultation
on the possible direction
of Community action
Second consultation on the
content of the envisaged
proposal
Legislative proposal
Assessment
Legislative proposal
(with agreement in annex)
Adoption as EU law (or
rejection) (Council only)
Autonomous agreement:
Implementation by
national social partners in
all Member States
Agreement
Choice
Choice
max. 9 months
max. 9 months
success
success
failure
failure
request
Negotiations
Negotiations
Opinions
Opinions
Discussion, amendments
and adoption as EU law
2 possibilities
for
implementation
74
As a consultation procedure, social dialogue takes the form of separate opinions from
unions and employers’ organisations at European level on any legislative proposal concern-
ing social aairs. The consultation takes place in two stages. First, the Commission con-
sults the employers’ organisations and unions45 on the possible direction of European Un-
ion action. Then, if the Commission considers action is necessary, it consults them on the
content of the envisaged proposal. During both the rst and second phases of consultation,
the organisations can inform the Commission of their desire to commence negotiations in
order to reach an agreement. If this is the case, this negotiation suspends the legislative ini-
tiative. It is limited to a nine-month period, which can be extended with the Commission’s
agreement. If the negotiations do not lead to an agreement, the Commission can submit its
proposal through the normal legislative procedure. The specic consultation structures for
health and safety were examined in Chapter 3. These consultation procedures enabled the
trade unions to exert signicant inuence over the content of directives during the most
productive period of regulatory production between 1989 and 1993 (see Chapter 1).
In the case of a legislative proposal on health and safety, both consultation proce-
dures are followed. The unions and employers’ organisations are consulted in two stages,
as for any other proposal on social aairs, and the tripartite committee in Luxembourg,
which is specically for health and safety, is also consulted46. The Economic and Social
Committee is also consulted.
The contribution of intersectoral social dialogue to OSH
As a general rule, in the health and safety eld, the employer organisations and trade un-
ions are unwilling to embark on negotiations that would replace the legislative process.
There are several factors explaining this:
— health and safety issues largely involve the public authorities of Member States. As there
are no tripartite negotiation mechanisms within the European Union that could lead
to the production of legislation, the option of bipartite negotiations (between employer
organisations and the unions) is rarely considered desirable;
— since the 19th century, health and safety have been considered essential pillars of the
State’s regulation of labour in the dierent European countries. Without ruling out a
complementary role for collective negotiation on certain specic aspects (such as im-
plementing certain rules or procedures for worker participation), the unions are keen to
avoid the State’s disengagement from such matters;
— occupational health and safety regulation relies on scientic and technical data which
cannot be negotiated. The carcinogenic nature of crystalline silica or asbestos is not ne-
gotiable for the unions, as opposed to benets in terms of jobs or salaries;
— for the unions, healt h and safety at work must result in ru les that apply equally to all work-
ers. This remains possible if a European agreement is implemented through a directive.
For a number of years, however, the European employers’ organisation, BusinessEurope,
45. The Commission establishes a list of representative organisations at European level which are consulted in the context
of this procedure.
46. In some cases, health and safety proposals have not been submitted to the tripartite committee in Luxembourg
for consultation. This was the case for dierent directives focusing on working time and the proposal to revise the
directive on protection of pregnant or breastfeeding workers, which was submitted by the European Commission in
October 2008.
75
has been very reticent in demanding implementation of an agreement by means of a
directive. If an agreement is implemented through the national industrial relations sys-
tems, this will result in a dierent scope of application in each Member State.
The only proposed directive on health and safety on which negotiations were initiated be-
tween the ETUC and the European employers’ organisations47 was the proposal to revise
the Working Time Directive. Negotiations commenced at the end of 2011 and continued
until December 2012 but led to no agreement.
Regardless of the decision as to whether or not to negotiate the content of a directive
when the Commission consults the unions and employers’ organisations, these bodies may
independently decide to reach an intersectoral agreement. In this case, such agreements
can follow one of two dierent procedures.
At the request of the signatories, they may be implemented through a directive that
is legally the same as any other directive: it is a legally binding text which the Member
States must transpose within a given timeframe. The dierence is that the text emerging
from the social dialogue cannot be amended by the Council or Parliament.
The following are some of the directives implementing intersectoral agreements:
— on parental leave (Council Directive 96/34/EC), which replaced Directive 2010/18/EU
of 8 March 2010 following the revision of the European framework agreement in June
2009;
— on part-time work (Council Directive 97/81/EC);
— on xed-term work (Council Directive 1999/70/EC).
Unless implemented by a directive, agreements are non-legally binding and are implement-
ed through the national industrial relations systems. This means that, depending on the
country, they will be implemented via general collective agreements or other instruments
that may or may not be binding and which may not necessarily be applicable to all rms.
The following initiatives are noteworthy in the area of health and safety:
— framework agreement on teleworking48 (16 July 2002);
— agreement on work-related stress (8 October 2004);
— agreement on violence at work (15 December 2007).
There is nothing to prevent Member States from transposing the provisions of a European
framework agreement using legislative or regulatory means. According to a Commission
report on implementation of the 2004 agreement on stress, this resulted in the adoption of
national legislation in six European countries49.
Since 1992 a Committee on Social Dialogue has been in existence and meets several
times a year. It comprises 64 members (32 union representatives and 32 representatives of
the employers’ organisations).
47. The representative intersectoral employers’ organisations at EU level are Business Europe, CEEP (European Centre
of Employers and Enterprises providing Public Services) and UAPME (European Association of Craft, Small and
Medium-Sized Enterprises).
48. This agreement deals with the dierent aspects of teleworking. It is not primarily devoted to health and safety.
49. European Commission (2011) Commission Sta Working - Report on the implementation of the European social
partners’ Framework Agreement on Work-related Stress, SEC (2011) 241 nal, 21 February 2011, p. 25.
76
Sectoral social dialogue
Over the last few years, the intersectoral social dialogue has slowed down. The employ-
ers’ organisation, BusinessEurope, is unwilling to commit to European agreements and
does not conceal its hostility to implementation of such agreements via directives. The
agreements reached during the 1990s beneted from the fact that, in many cases, the
European Commission had undertaken to intervene via legislation should an agreement
not be reached. In the 2000s, the Commission’s political support for the conclusion of
agreements declined.
Sectoral social dialogue has been more dynamic. For the period 1978-2013, the
ETUI’s database records 734 texts adopted in the context of this dialogue50. The process
got o to a rather slow star t, with less than 10 tex ts per year up to 1990. This increased sub-
stantially from 2000 on with, generally, some 30 texts per year. This form of dialogue ben-
eted from the introduction as from 1998 of sectoral social dialogue committees (SSDC).
These committees currently exist in 43 sectors.
The output of sectoral social dialogue is highly variable. Agreements (comparable to
collective agreements in the national industrial relations systems) account for around 2%
of documents adopted. ‘Joint positions’ aimed at the EU’s institutions or Member States
are in a clear majority (56% of texts). Notable among the other instruments are ‘statements’
which reect a common position adopted by the signatories but which are not binding upon
them (16% of texts), ‘tools’ such as good practice guides on gender equality or health and
safety at work (11% of texts), ‘recommendations’ which, like statements, reect common
positions but are subject to monitoring procedures (8% of texts) and ‘internal regulations’
which structure the functioning of the SSDCs (7% of texts).
The implementation of sectoral agreements takes place in the same way as intersec-
toral agreements. There are two possibilities. If the signatory parties so request, implemen-
tation can take place via a directive. This procedure has the advantage of being identically
binding on all Member States. If the agreement is not implemented through a directive, its
application depends on each Member State’s industrial relations system, which means there
will be signicant disparities in terms of both its scope of application and its binding nature.
The rst sectoral agreement on health and safety was that of 30 September 1998 on
the working time of seafarers. This was implemented through Council Directive 1999/63/
EC. It is a particularly interesting text insofar as it links dierent legal instruments. On
the one hand, it adapts Community rules regarding the working time of seafarers. On the
other, it enables application of the provisions adopted in ILO conventions. Following the
adoption of a new convention by the ILO in 2006, a new European agreement was con-
cluded on 29 September 2006 and implemented by means of Council Directive 2009/13/
EC of 16 February 2009.
In the area of working time, another sectoral agreement was concluded and imple-
mented via a directive. This was the agreement of 27 January 2004 on cross-border rail
services. In the road transport sector, by contrast, negotiations failed and there is now a
‘classic’ directive regulating working time (Directive 2002/15/EC of 11 March 2002).
A multi-sectoral agreement on crystalline silica was adopted in 2006. This text was
the object of much controversy51. It was signed, for the unions, by the European chemicals
50. For a more detailed account, see Degryse C. (2015) The European sectoral social dialogue: an uneven record of
achievement? Working Paper 2015.2, Brussels, ETUI. The information in the following paragraph has been taken from
this study.
51. See Musu T. and Sapir M. (2006) Will the Silica Agreement foil EU legislation?, HESA newsletter, 30-31, 4-8.
77
and metal industries’ federations but the buildings federation and the European Trade
Union Confederation did not want to take part in the negotiations. The signatories felt the
agreement would enable improvements in prevention by promoting voluntary initiatives
in companies where workers were exposed to crystalline silica. Its opponents considered
the agreement inadequate because it risked delaying the adoption of a binding limit for
occupational exposure across Europe and because it did not consider crystalline silica to
be carcinogenic and did not draw the necessary conclusions from this scientic fact. At
the time of writing (March 2015), a European limit value has still not been adopted by the
European Union and the Commission has not even presented a proposal for a directive in
this regard. The agreement is applied on a voluntary basis by those companies that decide
to sign up to it. It is monitored by the signatory organisations.
A European agreement on prevention from sharp injuries was adopted for the hos-
pital and healthcare sector on 17 July 2009 by the European Federation of Public Service
Unions (EPSU) and HOSPEEM (European Hospital and Healthcare Employers’ Associa-
tion). This agreement was implemented by means of Directive 2010/32/EU. It aims to cre-
ate a working environment that is as safe as possible for hospital and healthcare workers
and to protect workers exposed to injuries from all kinds of sharp medical implements
(including needles). The directive proposes dening an integrated approach that covers
both risk assessment and prevention but also worker training and information. Clause 11
of the agreement, which addresses its implementation, species that, in interpreting the
framework agreement, the Commission will be able to refer to the signatory parties for
their opinion. EPSU and HOSPEEM have organised numerous initiatives to monitor the
application of this agreement and to provide guidance as to its practical implementation
under the best possible conditions.
A European agreement on health and safety in the hairdressing sector was adopted
on 26 April 2012. This was the result of an independent initiative of the representative
employers’ and workers’ organisations. The agreement draws on the prevention principles
of the 1989 Framework Agreement on Health and Safety at Work. It stipulates particularly
that employers must take personal protection measures to avoid prolonged contact with
water and products that are skin irritants or which might cause allergies. The text also
provides for the principle of substituting hazardous chemical products with less harmful
alternatives. This relates particularly to powdered colouring agents. The challenges fac-
ing this substitution policy are considerable. Dierent studies in fact show that there is a
heightened risk to hairdressing sta of contracting some cancers through the use of haz-
ardous substances in their sector. The agreement also anticipates measures to reduce mus-
culoskeletal problems among the sta of hair salons: employers must ensure a rotation of
tasks in order to avoid repetitive movements or intensive work over a long period and must
refer to the most recent good practice on ergonomics (light hairdryers, with low vibra-
tion, etc.). Psychosocial risks have not been overlooked: the employer must ensure detailed
preparation of work, and appropriate planning of time and work organisation in order to
prevent ‘emotional breakdown’.
The signatory parties to this agreement requested that it be implemented via a Com-
munity directive. This request came up against the opposition of several Member States
and requirements made by the Commission that seem dicult to reconcile with the prin-
ciple of the social partners’ autonomy, as recognised in the TFEU. In fact, the Commission
intends to submit the agreement to an ‘impact assessment’ prior to possible adoption of a
directive that would enable its implementation. From our point of view, the principle of
the social partners’ autonomy as recognised in the TFEU means that the Commission’s
control should be limited to two elements that have not been challenged in the case of this
78
Read more
Bandasz K. (2014) A framework agreement in the hairdressing sector: the European social dialogue at a cross-
roads, Transfer : European Review of Labour and Research, 20 (4), 505-520.
Degryse C. (2015) The European sectoral social dialogue: an uneven record of achievement? Working Paper
2015.2, Brussels, ETUI.
Dufresne A ., Degr yse C . and Pochet P. (eds.) (2006) The European sectoral social dialogue: actors, develop-
ment and challenges, Brussels, P.I.E. Peter Lang.
Voos E. et al. (2011) European social dialogue – Achievements and challenges ahead: result of a stock-taking
survey amongst national social partners in the EU Member States and candidate countries, Final synthesis
report, Brussels, European Social Partners.
agreement: the representativeness of the signatory parties and the agreement’s compatibil-
ity with existing rules of Community law. Considerations of political expediency, the hostil-
ity of some Member States to the principles of social dialogue or hypothetical calculations
of the costs and benets of such an agreement would not seem to be relevant.
Pour en savoir plus52
52. The text currently in force, following dierent amendments, is Directive 2009/38/EC.
Information and consultation in companies
The fundamental right to information and consultation
is guaranteed in the workplace by means of different
directives.
In particular:
— Council Directive 94/45/EC on the establishment of
a European Works Council52;
— Directive 2002/14/EC of the European Parliament
and of the Council establishing a general framework
for informing and consulting employees in companies
employing at least 20 or at least 50 workers;
— Council Directive 2001/86/EC on the Statute for a
European company;
— Directives dealing with specific issues include clauses
on information and consultation of workers and their
representatives: collective redundancies, company
relocations, health and safety.
79
Conclusion
The need for a Community occupational safety
and health policy emerged early in the history
of the European Union and formed one of
the essential pillars of the rst social action
programme adopted in 1974.
This need was based on a simple observation, namely, that the establishment of
a common area in which goods, capital, businesses and workers would circulate
freely called for the development of legal rules to ensure that a deterioration in
working conditions could not be used as a factor of competition.
In the context of the 1970s, two specic factors provided a strong impetus in
this direction. First of all, the International Labour Organisation (ILO) had placed
on its agenda – for tripartite negotiation – the adoption of a large number of oc-
cupational health and safety conventions. A link is observable between various
Community directives and these conventions, the negotiation of which resulted in
compromises that subsequently facilitated the drafting of the European directives.
The principles of the Framework Directive thus draw partly on Conventions 155
(1981) and 161 (1985). A similar parallel can be seen between the ILO conventions
and various specic directives (occupational cancers, temporary and mobile work
sites, asbestos, etc.). Secondly, this institutional factor was inseparable from the
social and labour history from which it drew its potential dynamic. The 1970s were
characterised by labour ferment that challenged the organisation of work, leading
to a profound renewal of union strategies in this regard.
At the end of the 1980s, European OSH policy went into reverse when
the programme to adopt limit values for occupational exposure foundered upon
insurmountable divergence between Member States. The failure was rapidly
overcome, however, by a combination of two factors. Those Member States
with more advanced national OSH legislation exerted pressure for Community
harmonisation; Article 118a (1986) was thus introduced into the treaty at Den-
mark’s request, with the support of a large majority of Member States. Further-
more, the single market that was to be completed in 1992 created conditions
conducive to compromise. In exchange for trade union support for completion
of the single market, the employers’ organisations agreed to ambitious goals
for Community legislation on health and safety in the workplace. Though the
negotiation of such gains would have been extremely dicult in any other con-
text, the pressing demand for completion of the internal market enabled them
to be passed without too much opposition. Even the British Conservatives were
pretty much resigned to this compromise. Though they did campaign vigorously
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against regulating working time, they launched no major attack on the other
Community occupational health and safety directives.
It is clearly apparent that EU-OSH regulation is today in a state of crisis.
The two terms-of-oce of the Commission presided over by José Manuel Barroso
(2004-2014) resulted in a severe paralysis of Community policy in this area. And
so we are faced with considering what might be the conditions for a revival of these
policies.
The obstacles are many. In a period of crisis, social protest is more dicult
to organise around oensive – as opposed to defensive – issues, such as the qual-
ity of working conditions. The pressures of mass unemployment, the increasingly
complex nature of subcontracting circuits, the unequal impact (often with a con-
siderable time lag) of poor working conditions on the health of workers, are some
of the negative factors to be taken into account. Moreover, the bureaucratisation
of the Community’s legislative process enables industrial lobbies to exert eective
pressure against any legislative initiative that might improve working conditions.
Yet these obstacles are not insurmountable. For one thing, the legitimacy of
employer power is strongly contested at dierent levels. Both the economic and the
environmental crisis are demonstrating the impasses into which neoliberal poli-
cies lead. The staggering rise in inequality makes nonsense of the idea that, sooner
or later, the whole population will benet, thereby categorically refuting the theory
of German social democrat Helmut Schmidt who believed that ‘the prots of today
are the investments of tomorrow and the jobs of the day after’. A simple return to
the compromises that characterised three decades of post-war social progress and
wellbeing for all seems illusory.
A similar loss of legitimacy can be seen in the daily lives of businesses. The
neoliberal reorganisation of work is harmful to health but it is also ineective from
the standpoint of the quality of work. The priority given to immediate prot maxi-
misation has overturned traditional management methods. It has, in particular,
signicantly reduced employees’ margin for manoeuvre even though it was claimed
that it would give them greater autonomy. Management is becoming increasingly
distanced from the actual activity of work and is advocating management methods
that seek to individualise – in the extreme – forms of activity requiring, in essence,
collective cooperation. This is the context in which the issue of psychosocial risks
is emerging as a increasingly major problem.
Demographic change is another factor that could contribute to a return to
mobilisation around working conditions. The management ideologists believe that,
as life expectancy increases, it will be normal to work to a more advanced age. This
reasoning overlooks the fact that the extended life expectancy does not go hand-
in-hand with good health for many of the less privileged sectors of society, a fact
that is attributable, in large measure, to their employment and working conditions.
Without an improvement in this regard, any extension of the retirement age will
result in dramatic situations of exclusion for those categories of workers who are
exposed to the greatest risks. Health and safety at work can form the hub of an
encounter between the diering expectations of workers across the generations.
While a desire to be able to ‘ease o ’ emerges in all su r vey s of older workers, young-
er people’s central concern is focused on the casualisation of labour, a phenomenon
that is producing contradictory eects among new generations of workers. Precar-
ity, most immediately, forms a hindrance to collective action; yet it may contain, at
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the same time, the seeds of disaection, disengagement, or revolt. The employers’
injunction that workers should take care of their personal health as their sole capi-
tal is having a boomerang eect. The precarisation of jobs can be seen to represent
both a major obstacle to the forging of autonomous life projects and the cause of a
deterioration in health. It is not by chance that the countries most aected by the
crisis are seeing young ‘precarised’ generations taking the initiative for signicant
social action, such as the 15-M movement – the indignados – in Spain.
The issue of democracy is intrinsic to any form of mobilisation stemming
from poor working conditions. Faced whether with the low turn-out of the working
classes, with the growth of parties that have swarmed around a leader who exudes
the ‘spirit of the times’, with the sense that ‘we’ in society are constantly at logger-
heads with ‘them’ in the institutions, it is essential to become aware that, if there
is a democratic decit in Europe, its fundamental locus is the lack of democracy in
the workplace. A growing percentage of workers are no longer covered by collec-
tive agreements; nearly half of all European workers have no access to organised
representation; the subcontracting chains exacerbate this situation by shifting a
signicant share of real power to the client companies. While there is no easy solu-
tion to these labour issues, there is one sure approach to tackling them, namely, the
ght for democracy in the workplace, the battle to make politics into an everyday
practical exercise.
These are some factors pointing to a revival of social action for the improve-
ment of working conditions as a real possibility. Such a revival will require new
approaches from the trade unions that eectively highlight the radical and collec-
tive nature of occupational health and safety demands, and the fact that, in this
eld of endeavour, immediate improvements on very specic issues can link up
with more ambitious projects aimed at changing society. Now more than ever, the
proponents of health and safety in the workplace must, if they are to achieve any-
thing substantial, come out into the open and demonstrate that their eorts within
the workplace are an intrinsic component of more all-embracing social challenges,
whether in relation to the environment, to equality or to democracy.
