The role of sanctions in European Labour Inspection policy and practice

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Dr Victor Hrymak, TU Dublin

Introduction

Occupational Safety and Health (OSH) in the European Union (EU) is regulated by Member State Labour Inspectorates that manage the day-to-day activities of Labour Inspectors. The traditional role of Labour Inspectors is to monitor and enforce workplace standards in order to ensure the safety and health of EU employees. The ability to enforce OSH standards is facilitated by legally binding sanction powers that all Labour Inspectors in EU Member States possess. Although, in practice, persuasion through advice and education is preferred by Labour Inspectors to support compliance, these sanction powers are used as necessary.

This monitoring and enforcement by Labour Inspectors is carried out in two basic ways. The first is by Labour Inspectors visiting enterprises to assess the level of OSH. If they find that OSH standards are not sufficient to comply with relevant legislation, they can ask for the necessary remedies or they can resort to using sanctions and legally compel enterprises to improve safety. The second way is encouraging improvements in OSH by organising safety campaigns whereby Labour Inspectorates target specific categories of enterprises.

Assessing the most effective strategies for Labour Inspector activities to support compliance and ensure OSH is subject to much debate and centres on two key areas of research. The first involves how Inspectorates should best deploy their limited number of Labour Inspectors to monitor and enforce OSH. The second refers to how individual Labour Inspectors can best support compliance when they visit enterprises. This article will mainly discuss Labour Inspector sanction policy and practice, to support OSH compliance by enterprises.

Sanction Powers Available to Labour Inspectors

OSH legislation within the EU is largely similar due to the Framework Directive[1] that has been transposed into national legislation in Member States. European enterprises are therefore expected to implement a preventive approach to accidents and ill health by identifying hazards in their workplaces, assessing the risk from these hazards and putting in place measures to appropriately manage the resultant risks.

There are four main sanction options generally available to Labour Inspectors when they visit enterprises and find substandard safety and health conditions. These sanction options can be categorised under four headings: requiring improvements, stopping work activities, issuing fines, and the use of prosecution. A detailed account of sanctioning options and legal procedures for OSH contraventions is detailed by the International Labour Organisation[2], and a summary of these sanction options will now be presented.

Requiring Improvements

Labour Inspectors can serve improvement notices whereby detailed safety requirements are formally written down and presented to the enterprise visited. The expectation of Labour Inspectors is that these requirements will be fulfilled within a set time frame. Such notices are often accompanied by the consequences of any non-compliance. Common examples would be requiring technical engineering improvements such as providing machinery guarding, exhaust ventilation for hazardous substances, and adequate smoke detection and emergency lighting for fire safety. Notices can also include organisational issues such as requiring specific training such as manual handling, psychosocial hazard identification, or requiring that specific risk assessments are conducted and implemented.

Stopping Work Activities

Labour Inspectors can serve prohibition notices on part or all of the enterprise being visited to suspend work activities. One example is prohibiting all work on construction sites due to poor working conditions or a lack of adequate safety management. Individual work processes can also be stopped, for example, by not allowing the use of a wood working table saw until adequately guarded or prohibiting the use of toxic substances without the use of extract ventilation. Prohibition notices will generally be accompanied by duration clauses, stipulating the cessation period or the amount of time in days, weeks or months for remedial work to be carried out.

Issuing Fines

Labour Inspectors can issue fines to enterprises both as a punishment and deterrent for future activities. Some Member States such as Greece have formulas or fiscal caps for calculating fines that take into account enterprise size, sector and previous engagement. In most EU countries, labour inspectors have discretion as to the amount of fines levied on non-compliant enterprises. Fines vary greatly between countries and the literature does not currently present specific amounts of fines for safety violations that predict better compliance[3][4].

Prosecutions

Labour Inspectors can prosecute enterprises in courts of law for specific contraventions of OSH standards, for example, enterprises not having sufficient safety management procedures in place. Prosecutions can also be commenced as a result of specific incidences that have caused injuries, ill health or fatalities. Whilst varying between Member States, prosecutions and custodial sentences for contraventions of OSH standards are generally rare[3].

The Effects of Regulatory Labour Inspection Activities

It has long been known that reliance solely on enterprises to ensure OSH, was never realistic[3][5]. This situation largely remains to this day, hence the need for OSH enforcement. When Labour Inspector regulatory delivery has been specifically researched, it has generally been found to improve OSH[3]. But the individual effect of a particular sanction option, Labour Inspector style or approach, or how best to deliver OSH regulation on a national scale is not yet well evidenced[3].

By way of example, the following illustrates the successful effects of Labour Inspectorate activity. A methodologically robust study was conducted in the US state of California[6] that covered a 10-year period. This study compared injury statistics between 409 randomly selected high-risk industrial enterprises visited by Californian Labour Inspectors, with 409 similar randomly selected enterprises that did not receive such visits. The results showed that there were 9.4% fewer accidents and a 26% decrease in injury costs in those organisations subject to Labour Inspections. In addition, there were no effects found on employment rates, sales, credit ratings or survival for inspected organisations. There are further illustrative studies detailing successful OSH effects of Labour Inspectorate activities[3][7][8][9][10][11][12].

How Labour Inspections Are Conducted

In summary, the normative Labour Inspector procedure is to gather available details prior to visiting a visit to the chosen enterprise. During the visit, the Inspector will walk around the enterprise and engage with and question staff and any safety personnel or worker representatives. The Inspector will also read relevant on-site documents such as risk assessments and technical engineering reports. The Inspector will then form an opinion as to the level of OSH at the enterprise, and ensure any required improvements are implemented. Some improvements can be rectified immediately on site with remaining issues needing revisits, a process that may take months or longer dependent on the requirements. A detailed listing of how Labour Inspectors conduct inspections together with expected roles, processes and procedures adopted is given by the International Labour Organisation[13].

How the Inspector actually ensures compliance with OSH standards in the most effective manner is a complex issue. It is subject to much debate on how best to conduct such inspections and support compliance by enterprises. The inspection process has been researched in a number of studies[14][15][16][17][18][19][20][21]. These studies generally found that when Labour Inspectors have assessed the level of OSH and what is further required, they will then decide on how best to achieve any improvements necessary. If improvements are required, they can use a persuasive approach based on advice, guidance and education. They can also threaten the use of sanctions, or resort to their actual use. In practice, persuasion is preferred, but they will generally use a combination of persuasion and sanction as necessary. But it remains that in terms of supporting compliance, the best balance between persuasion and sanction is still the subject of much debate.

The Balance Between Sanction and Persuasion

One study[[15] describes the Labour Inspector’s ‘dilemma’ that exemplifies the issues to be considered when applying the balance of tactics to achieve the required level of OSH and support compliance. A further publication[5] describes the tactics available to Labour Inspectors during visits as being on a continuum with persuasion at one end and sanction at the other. At one end, compliance with OSH standards is ensured using only persuasion. At the other end, there is zero tolerance of OSH violations, which are remedied using the sanction options described above.

Whilst the overall effect of published Labour Inspector activity[7][8][9][10][11][12] is clearly beneficial for OSH, there is still little empirical evidence for describing the most effective balance between sanction and persuasion on a national scale. This is because of current methodological difficulties in isolating persuasion from individual sanction options as distinct variables, with the required degree of reliability, validity and sample power that can be generalised to wider workplaces.

Furthermore, there is a confounding deterrence variable in operation during the interaction between Labour Inspectors and enterprises during visits. Even when sanction options are not used to ensure compliance, Labour Inspectors carry an intrinsic deterrence effect by their presence[5]. When Labour Inspectors visit enterprises, they can be perceived as potentially being able to impose sanctions. So if their advice is not followed, Labour Inspectors can advise, instruct, exhort, bargain or threaten[5]. There are commentators who argue for a predominantly sanctions-based approach to enforcing OSH[22]. However, the literature generally favours a far more persuasive, advisory and educative approach from Labour Inspectors[16][23][24].

Conclusions

OSH in terms of indexes such as fatalities, accidents and ill health has improved in the decades since the framework and daughter directives were implemented by the EU. However, the effects from preventable workplace accidents and ill health continue to be felt by victims, their families, enterprises and governments. Figures from 2018 for the EU’s workforce illustrated that over 3 million accidents occurred with over 3,000 fatalities[25][26]. Clearly, the current loss of life, injuries and ill health suffered by the EU workforce as exemplified by these statistics remains unacceptable and requires improvement.

EU Labour Inspectors remain centre stage in terms of reducing this preventable burden of accidents, ill health and fatalities. Using their professional skills and experience, they largely persuade but will sanction enterprises if necessary as they support compliance to a level they see as appropriate. However, the best national and EU-wide–based strategies for Labour Inspectorates to adopt given their available resources, and what is best practice by individual Labour Inspectors during visits to enterprises, remains in need of further research.

References


  1. European Commission. (1989). Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work. Official Journal of the European Communities, No L 183/1. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A31989L0391&qid=1649357566099
  2. International Labour Organisation. (20121. Key principles underlying sanctioning procedures applicable to occupational safety and health violations.
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Contributors

Palmer