Hazards magazine, number 97, January-March 2007

Safety repressed

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Cartoon: Andy Vine

While DTI looks at time and facilities for union reps in general, the Health and Safety Executive is analysing the results of its own 2006 consultation on worker involvement (Hazards 94). Unions dominated the responses – out of 440 written responses, 279 were from safety reps. The TUC and the major unions also made submissions.

HSE signalled early on, however, it did not believe there was a compelling case for any substantial changes. The consultation itself only proposed two limited measures – a new legal requirement to consult safety reps on risk assessments and a requirement on employers to respond to safety reps. Roving reps and provisional improvement notices, substantial changes sought in some union submissions, were not on offer.

HSE’s “partial” Regulatory Impact Assessment (RIA) – the cost-benefit analysis required by government that determines if a legal change can be justified and which said “it seems clear that the costs of introducing the regulatory amendments we are considering are very much more than the benefits we can identify” - was a particular concern to unions and campaigners.

A submission by GMB was particularly scathing: “The GMB has repeatedly expressed our concerns about the limitations of these types of regulatory impact assessments (RIAs), and the almost nonsensical assumptions that they are based upon.” It added “the real ‘value’ of some of the benefits of improving health and safety - the prevention of deaths for instance - can never be truly evaluated exclusively in monetary terms. Neither can the human costs of industrial accidents, injuries and diseases - costs which are borne by the victims and their loved ones - ever be adequately expressed by mere figures on a balance sheet.”

GMB national safety officer John McClean told Hazards: “We think the figures were plucked out of the air by civil servants to justify offering nothing much new. They don’t bear any relation to reality or the facts." He added: “An HSE RIA a decade ago prior to the introduction of representatives of employee safety – the breed of safety rep-lite introduced in workplaces without a recognised union – claimed the cost would be £14 million costs in the first year and £1 million a year after that. Despite repeated requests, HSE had failed to produce a single estimate of the real costs since their introduction.”

He said his union would be looking for positive changes as a result of the consultation. “We will not stand for another wasted consultation – two have already gone into a black hole”.

Doug Russell, national safety officer with the retail union Usdaw told Hazards: “The RIA is a joke. It seems to say there are extra costs in what reps are doing and want to do, and grossly under-estimates the benefits.” He added: “Under the present system, a failed RIA is pretty well a veto on the thing to go ahead.”

UNISON safety officer Vincent Borg concurs: “HSE seems to have made its mind up already,” he told Hazards. “UNISON is concerned that the RIA is incomplete – for example the work of safety reps is undervalued. This may lead to a poor decision, or worse still may indicate that decisions have already been made. Safety reps work – we all know this, and there is much research which proves this. We also all know that more needs to be done to improve health and safety. So let’s make better and more effective use of what works.”

A submission by Hilda Palmer of the Hazards Campaign was equally dismissive. “The RIA assumes there will 100 per cent compliance with the new regulations and that this will place a cost on employers. Clearly the first part is nonsense. The existing regulations have certainly not got universal compliance and there is not reason to believe that, even with a stronger enforcement regime, the proposed changes will lead to any significant cost for employers. In fact, the proposals are simply what any good employer should be doing already.”

The enforcers?

Where HSE’s consultation document argued there were three pillars to a worker involvement strategy – legislation, guidance and enforcement – unions added a fourth: Enforcement.

There are two obstacles evident here. The first is an apparent reluctance on the part of the Health and Safety Executive (HSE) to use its enforcement powers to support union safety reps. HSE’s enforcement database records not a single prosecution of an employer for breaches of the Safety Representatives and Safety Committees Regulations. There are no prohibition notices, and just two improvement notices, the most recent in April 2004.

Unions say if safety reps received support from HSE in obtaining their existing rights under the safety reps regulations, most of their concerns would be answered. CWU national health and safety officer Dave Joyce said “while the proposed new safety reps rights will be welcome, they are only part of the package” which must include proper enforcement of the existing safety reps’ regulations.

According to GMB’s John McClean: “Our top priority is greater clarification of the rights to time off for training, to carry out safety rep functions and to undertake and follow-up inspections and investigations. It’s a grey area at the moment.

“HSE never enforces any of this. We need a mechanism that enables inspectors to enforce time off rights. We need to have HSE with the power and inclination to insist on reps having the time and facilities to carry out their functions.”

Phil Madelin of civil service union PCS said their safety reps had a problem “getting HSE or local authority enforcement officers involved in a meaningful way with employers – it is very difficult to get their interest and, even when one does, they seem to have very low level expectations of employers.”

Usdaw’s Doug Russell said: “We are extremely disappointed HSE are not doing anything substantial to improve the safety rep role. They should alter the regulations, with improved powers for union and non-union reps.” He added: “They could at least enforce the existing regulations. The bottom line, is get them to enforce what we have already got. The big issue for safety reps is getting the time for training and to do the job they’ve already got. I would like HSE to bring out guidance on time off for safety reps’ functions and training, and to raise time off on inspections.” He said Usdaw had “recent examples of both HSE and local authority inspectors refusing to talk to reps.”

It’s about time

Getting the time to undertake safety reps’ functions and training was, alongside getting management to act, the most commonly cited safety rep problem identified by national union safety specialists responding to the Hazards survey. But despite being a clear right laid down in the safety reps’ regulations, brought in under the Health and Safety at Work Act, HSE says it is not its concern.

“HSE inspectors cannot take any action on time off issues,” Stuart Bristow, head of HSE’s worker involvement and inclusion team, told Hazards. “Regulation 11 of the Safety Representatives and Safety Committees Regulations confers jurisdiction on employment tribunal. This means HSE cannot take enforcement action; reps can take civil action via an employment tribunal.

“I don’t see there is anything wrong with this. I think it’s consistent with other employment law; HSE is happy with that.”

This means an employer can be in clear breach of an explicit duty under criminal law – a breach of a safety regulation – and there is absolutely no chance they will be prosecuted. The biggest single problem facing safety reps is the one HSE is entirely – intentionally – incapable of addressing. Employment tribunals can make recommendations on working hours and can impose compensation awards, but cannot take enforcement action. And the process is involved and laborious, which will deter many reps from proceeding.

In fact, even when reps are granted time off, lack of cover means they are stuck with a backlog of work on their return. UNISON responded that “the key issue is usually either the time given is not sufficient, or they get the ‘time off’ but still have to do the same workload.” Probation union Napo said as casework is allocated to particular workers, “no-one does the work if you are not there, so work waits until you get back.”

Nationwide Group union NGWU said although an agreement gave time off for training “the problem is pressure of work – targets. Safety Reps are reluctant to take time off if targets are not being met, the workplace understaffed.” TGWU said areas like shiftwork presented special problems, with reps on different shifts struggling to get time off to attend safety committee meetings or undertake other functions.

Looking forward

According to Doug Russell, HSE should start viewing safety reps as key part of a properly functioning safety management approach. “The safety rep function is a valuable contribution to the whole workplace safety management function,” he said.

CWU says the cash-strapped enforcement agency, which has just embarked on a massive job loss and budget cutting programme (Hazards 96), should be making the most of the support unions can provide. It is also calling on “the government to look again at the Australian system of safety reps having the power to issue legally binding 'provisional improvement notices', especially in light of the HSE limited resources.”

According to GMB’s John McClean: “Britain’s workplaces have changed beyond recognition in the 30 years since the Safety Representatives and Safety Committees Regulations were introduced. HSE doesn’t seem to realise workplaces have changed, so a new generation safety reps in smaller workplaces, managed differently, with a different ethnic and gender mix, have to be allowed to change the way they work to recognise this.”

UNISON’s Vincent Borg has his own wish list, including more effective rights and roving safety reps. He said the current package of safety reps’ rights “came about at a time before privatisation and contracting out. Its provisions no longer reflect the diverse nature of the employment market.

“We need provisional improvement notices (PINS) and a right to a response from employers – let’s use the skill and experience of the safety reps by giving them the right to a response once they’ve raised a health and safety problem, and PINS to use when an employer fails to take adequate steps. We also need real and effective consultation – too many employers still interpret this to mean notification, and any breach must be enforced by the enforcing authorities.”

He added: “If the outcome of the consultation exercise is unsatisfactory, then UNISON will continue to campaign alongside the TUC at governmental level and also issue appropriate guidance to UNISON safety reps to assist them in negotiating local agreements with their employers in the interim.”

The only substantial, funded, HSE worker involvement programme, the three-year, £3m, Worker Safety Adviser Challenge Fund, comes to an end in March and its funding will not be renewed. With the coffers bare, HSE should be enlisting any help on offer, and the government evidence shows it doesn’t come much cheaper or more effective than union safety reps.

References and resources

'Workplace representatives: A review of their facilities and facility time', DTI, January 2007. www.dti.gov.uk/consultations

Improving worker involvement - Improving health and safety, HSC.

HSE publication alert and full inspection topic pack [pdf]

GMB response to HSC Consultation Document: Improving Worker Involvement - Improving Health and Safety.

Hazards Notices webpage

Hazards Safety reps webpage