Regulating Health and Safety Flashcards
Role, Function and Limitation of Legislation
Governments enact statutes and other legal instruments to force employers to adopt minimum acceptable HS standards for their employees. Because otherwise they might not do so on their own.
A crime is an offence against the state and will result in a criminal prosecution of the individual who breached their legal duties, this may lead to punishments such as fines or imprisonment. However, what constitutes a crime is largely dependent on the government and is therefore influenced by political concerns. A civil case in the other hand, concerns an individual who suffered some sort of loss when they were working, their aim is to seek financial compensation from the employer as a result of their wrongdoing.
The limitation of legislation is, firstly, there is no incentives for employers to go beyond just adhering to legal requirements, they go along with the law but not with its spirit. Secondly, companies who go the extra mile in adopting good and costly HS standards are left in a competitive disadvantage.
Governments need to enforce legislation by identifying who is not complying with them. This necessitates the recruitment and training of enforcement agents that have investigation and inspection powers.
Governments also need to have procedures for the prosecution and punishment of individuals or organizations who are in breach of their legal duties i.e., an effective court system. Some governments do not seem to enforce HS provisions, even some wealthy countries with extensive resources have this problem because HS issues have to compete with other government priorities.
The nature of Goal Setting legal model.
Goal Setting statutes set a goal and leave it to the dutyholder to decide how to identify, evaluate and decide on the best ways they can accomplish this goal.
A good example if the section 2 of HSWA, which is the act of parliamant governing HS in the UK : “It shall be the duty of every employer to ensure, so far as is reasonnably practicable, the health, safety and wellfare at work of all their employees”.
“So far as is reasonnably practicable” means that when the dutyholder is deciding how to control any HS risk in the workplace, they have to compare it against cost, time and effort it would need to control that risk, so some judgement is needed.
The nature of Prescriptive Legislation legal model.
Prescriptive legislation have the requirement described in far more explicit terms.
Example from the Provision and Use of Work Equipement Regulations (PUWER 1998), is regulation 26 which states the provision of information and instruction to users of equipements at work preventing mobile work equipements (forklifts) from falling over, the regulation is specific to such equipements and explicitly states how to comply with it.
The combination of both legal models.
More often than not, legilations has the charachteristics of both elements.
Example from PUWER 1998 is regulation 8 which states : “All employers should ensure that all persons who use work equipement have available to them adequate health and safety information and, when appropriate, written instructions pertaining to the use of the work equipement”
The recommandation explicitly states the provision of adequate health and safety info which is a prescriptive element, but what constitutes “adequate” or “appropriate” is left to the dutyholder to decide, which effectively sets a goal.
Define Federal Law and Government.
Federal law is the combination of laws enacted by Federal government.
Federal Government is the merger of different political units such as states, territories together to form a Federation, serendering their sovereignty and most powers to the central govenment, while retaining or reserving some limited powers.
Talk about Legal hierarchy of state and federal law.
One of the chalenges of federal law is ensuring consistent HS standards throughout the federation. If every state can make their own laws, then it would inevitably be inconsistencies.
In the case of the USA, there aren’t much problems regarding the harmonisation of standards because the Occupational Health and Safety Act 1970 was enacted at the federal level and not state level. However, its enforcement was delegated to the individual states, which would create inconsistencies to the enforcement standards.
There have been numorous attempts to makes standards uniform in Australia. In 1990, the Ministers of Labours Advisory Commitee, which comprises of state, territory and commonwealth ministers, agreed to : “…so far as practicable, any standards endorced by the NOHSC will be accepted as minimum standards and implemented in the state/territory juristiction immediately after endorcement”. This allowed the NOHSC to create a task force for the hamonisation of standards in 1991, and by 1996 numerous major areas have been identified and put to action (hazardeous substances). Recently there a been movement by states and territories to work with the commonwealth to harmonise standards in the form of an Occupational Health and Safety Act.
In Europe, the harmonisation efforts started with creation of the European Economic Market or the Common Market in 1957, it started with 5 member states : France, Luxembourg, West Germany, Belgium and Netherlands. Then it grew to form the European Union in 1990, there are currently 27 member states. the Framwork Directive 1989 (89/391/EEC) sets out procedures for the improvement of HS of workers at work. The EU issues directives that superscedes -where applicable- any existing contrary domestic laws. Those directives are binding to member states that are adderessed by it, but leaves the methods of achieving those directives (general goals) to the individual states.
Outline No Fault compensation schemes.
It is characterised by the no need to prove that the employer was at fault, but it is required to establish that the injury / ill health was the result of the persons employement. There are two categories:
- Employer Schemes : Where the employer pays premiums to insurance companies, which in turn provide benefits to employee. This is compulsury in many juristictions. Insurance companies operate under regulations which are operated by government agencies. It is usual for the scheme to cover all workers in that industry and in some places this covers the self-employed. When the injured individual or dependants claims the benefit, the initial responce is done by the insurance company or sometimes by the employer. The decision then is made by accepting or rejecting the claim, it isn’t unusual for it to be some negotiations between the two parties concerned. this type of scheme is present in Australia and USA.
- Social Insurance Schemes : This type is administered by the governement and requires the compulsury contribution from employees and employer, and sometimes with additions from tax funds. The contributions are usually at fixed rates or sometimes income related. It is unvariably required to undertake medical examinations to determine the nature of the injury/ill health and if there is any recovery. Following the decision of the administering government departement, the claimant can choose to accept or challenge the decision. In the case of a loss of faculty (hearing loss) a pension is payed instead of a lump sum.
Both compensary schemes require the claimant to report in injury/ill health to their respective employer. Many countries require the report to be done within a specific time, which may be extended in the case of occupational illness when the time between the exposure to the hazard and the onset of the illeness is considerable.
Outline Fault compensation schemes.
Legislation in many countries makes the employer liable for any injury or illness to workers as a result of their occupation. This requires the injured worker (or their dependants following a fatal outcome) to bring a civil action against the employer and to establish that the fault is on the employer or on one of their employees. This is usually done by proving that the injury is a result of the negligence of the employer or one of their workers, or there has been a breach of health and safety legislation.
In the UK, the employers duty towards their workers stems from the existence of a contract of employement. However, virtually all cases are brought under the law of torts (civil wrongs), specifically under the tort of negligence or the tort of breaching of statutory duty. The liability if the employer may come about under two ways : - The employer is responsible for their own acts of negligence (primary liability). Or, - The employers is resposible for the negligence of their employees (vicarious liability)
A civil case will often be done under both headings, but the successfull result will only have one compensation awarded. The extent of the compensation can amount to a considerable sum of money, because the intent of the compensation is to bring the claimant back to the position they were in before the injury.
What the claimant has to prove in the case of breach of statutory duty.
- The statute places the obligation on the defendant.
- The claimant is owed that statutory duty,
- The type of injury/ill health is contemplated by the statute.
- The defendant is in breach of that duty.
- The breach of that duty caused the injury/ill health
What the claimant has to prove in the case of negligence.
- The claimant is owed the duty of reasonable care.
- The defendant was in breach of that duty, meaning the standard required by the defendant is an objective one i.e. a standard of care that would have been adopted by a reasonable person in the circumstances.
- The breach caused the injury.
- The consequences were forseeable.
