An Industrial Relations Approach
By David Lewis* Roberts and participation through consultation According to the Robens Committee on Safety and Health at Work * " the primary responsibility for doing something about the present levels of occupational accidents and disease lies with those who create the risks and those who work with them." Their report stressed the need for greater acceptance of shared responsibility and called for " a greater degree of real participation in the process of decision-making at all levels." It was therefore recommended that there should be a statutory duty on employers to consult with employees and to provide arrangements for participation in the development of measures for promoting safety at work.1 Although it is the fundamental legal obligation of the employer to provide safety it is too, superficial to say that safety is the responsibility of management Since management has the ultimate responsibility for running the enterprise it carries an overall responsibility for safety which cannot be shared1; yet the exercise of this responsibility requires the co-operation of workers and the influence of trade unions in securing iL It is at this stage that safety becomes the responsibility of management and workers.4 In the interests of achievingflexibilitythe Robens report did not specify any particular form of participation. One result may be that managers are reinforced in their decision to adopt more consultative styles of management which give workers the illusion of involvement without the reality of power. Of course management may retain its role as unilateral decision-maker as a consequence of the relevant unions preferring not to participate in joint decision-making. Such unions avoid direct involvement in management decisions for fear that they would be less able to protect and advance their members' interests subsequently. Acceptance of the principle that workers should be allowed to participate collectively in the settlement of problems directly affecting them may lead in practice to very different arrangements. There are fundamental differences between systems which give workers powers of decision in managerial or supervisory boards and systems under which workers
* Lecturer in Law, Middlesex Polytechnic i 1972, Onnd- 5034. * In 1973 the Department of Employment proposed that employers should have a basic obligation " to agree with employees or their representatives at the workplace adequate arrangements JOT joint consultation on measures for promoting safety and health" (my italics): Para. 4C Proposals for a Safely and Health at Work Bill (Department of Employment, 1973). 3 Thus even a safety committee "cannot relieve higher management of its overriding responsibility for accident prevention": Works Safety Committees in Practice (Ministry of Labour, 1968). * Clause 6 (fc) of the Health and Safety at Work etc Bui 1974 made it the duty of every employee while at work " as regards any duty or requirement imposed on his employer . . . to co-operate with him so far as is necessary to enable that duly or requirement to be performed or complied with " (my italics).

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However. 3623.oxfordjournals. they are solely concerned with promoting their own interests by extracting the maximum concessions. 2010 .* so why have employers been reluctant to establish such committees? One possible explanation is that where safety committees were established they often failed to attract much attention—people thought more readily of-the factory inspector as the person responsible for accident prevention. Cmnd. » " Within the Post Office there can be no doubt that safety committees generally have made a particularly valuable contribution to the effort which has led to a progressive reduction in accident rates.—8 Downloaded from ilj." The Robens Report stated that in manufacturing industry the typical method of involving workpeople is through the voluntary establishment of joint safety committees." Extract from a Post Office CirculaT. It is often claimed that safety committees have made a direct contribution to reducing the number of accidents and have had the indirect effect of increasing safety consciousness. while conceding that a statutory provision requiring the appointment of safety representatives and safety committees might be advantageous. the Committee refused to recommend such a provision on the grounds that it might prove " too rigid " or " too narrow in concept" * In their view the best way to meet the real need would be to impose on employers a general duty to consult about arrangements. Para. 999: " W e believe that our proposals for the reform of collective bargaining on the basis of comprehensive agreements at factory and company level will do more than could any other change to allow workers and their representatives to exerdse a positive influence in the running of the undertakings in which they work. The Robens Committee expressed the belief that " real progress is impossible without the full co-operation and commitment of ah1 employees." i The Employed Persons (Health and Safety) Bill 1970 obliged employers of more than 100 workers to form joint safety committees if so requested by the safety representatives appointed by recognised unions. IXJ. « See the Report of the Royal Commission on Trade Unions and Employers' Associations 1968.Worker Participation in Safety—II 97 bargain with management over specified issues.org by guest on September 7. Thus instead of sharing managerial power trade unions may use their power as a counterweight to it through collective bargaining machinery."5 But is a duty to consult going to be enough to raise standards or is it true that co-operation can only flourish on the basis of negotiated agreement? From the point of view of the organised worker collective bargaining may represent the most acceptable form of participation and may be the only satisfactory way in which co-operation can be achieved. 1973. Because many committees lacked real responsibility and authority they were not as successful s Clause 2 (3) (a) of the Health and Safety at Work Bill 1974 made it the duty of every employer " to consult with his employees or their representatives with a view to the making and maintenance of arrangements which will enable the employer and his employees to co-operate effectively in promoting and developing measures to ensure the health and safety at work of the employees and in checking the effectiveness of soch measures " (my italics). In the latter case workers do not share the responsibilities of management.

" B In an attempt to justify their recommendation of an admittedly unenforceable duty to consult. the Robens Committee suggested that this " would not inhibit the development of various forms of joint endeavour going beyond what is usually comprised in the expression joint consultation. of course.98 David Lewis as was hoped. It was asserted by Robens that " there is no legitimate scope for ' bargaining' on safety and health issues ". which depends on the concept of the industrial enterprise as a team unified by common purpose. 10 Hugh Clegs in A n*w Approach to Industrial Democracy (Oxford I960) p. in the abstract. as costs and earnings may be affected. The Industrial Relations Code of Practice 1972 regarded consultation » Allan Flanderi in The Fawiey Productivity Agreements (London.oxfordjournals. except by written consent of the trade union concerned. Downloaded from ilj. If safety is to be promoted successfully then such committees must have real responsibility and authority. the Committee believed in the " greater natural identity of interest between ' the two sides' in relation to safety." One of the aims of supporters of joint consultation is the achievement of industrial harmony." 10 Thus it became generally accepted that joint consultation should be kept separate from the collective bargaining machinery and consultative committee constitutions frequently contained the following clause: " the committee shall not discuss any question which is covered by an operative agreement between the company and any trade union. 1964) p. Safety may. be uncontroversial but when managers or workers contest the adequacy or fairness of the rules or who is at fault when they are broken the argument cannot be disinterested: " Neither side can be impartial for management is biased in favour of production and the workers in favour of protection. Moreover.org by guest on September 7. Unfortunately the unitary frame of reference ignores the conflicts of interest which must always exist between the various groups within an enterprise. as purely consultative bodies they have tended to degenerate quickly into talking shops. but the Committee should have acknowledged the fact that genuine disagreements do arise. 36. 242. Theoretically. 2010 . economic conflict appears in another guise to influence judgment on seemingly non-economic issues. accident prevention is common ground—nobody wants workers to be injureo"—but in practice safety may be just as bedevilled by opposing viewpoints." What exactly did the Committee envisage as being " usually comprised " in this term? The old view was that the purposes of negotiation and consultation were different: "Collective bargaining was appropriate in the narrow area in which the interests of management and workers conflict Joint consultation was to be used in the wide area in which these interests coincided." This approach is consistent with the view that consultation is the means of promoting action where there are no obvious conflicts.

" In Royal Commission on Trade Unions and Employers' Associations. 1 ( H . 1966). < Fatchett and Roberts suggest that management has a unitary view not merely because of an ideological commitment " but because unions have frequently failed to Increase their organisational strength to a level where they can insist on management accepting a wider field of joint regulation. like collective bargaining.17 making attempts to distinguish matters of conflict from matters of common interest irrelevant. « Cmnd." 10 See Royal Commission on Trade Unions and Employers' Associations. Research Paper No.I. 4598. Dr. « Effective Joint Consultation (Industrial Society. industrial relations have become more constructive.1* Consultation can be used to support and supplement collective bargaining but. M A O . If we reject management's right to decide unilaterally " there can only be one way forward " "— " See particularly W.O. strength and recognition of trade unions. 1965). < s In Workers' Participation in Management in Britain (London." " Certainly there is no particular logic in the distinction between subjects which are suitable for negotiation and those that are not It is based on what unions have managed to establish as negotiable.10 Increasingly companies are finding that the most effective method of operation is for shop stewards to represent employees in both consultation and negotiation and for all matters affecting their day-to-day relations to be opened for discussion. 1968). Downloaded from ilj. note 11).LR. recognised that the distinction between joint consultation and negotiation was largely meaningless in principle and self-defeating in practice. 1966). It is curious that while the Robens Committee indicated that safety is not a managerial prerogative their Report accentuates the very common interests which legitimise management's power. consulting and negotiating have become part of a continuous whole. it will depend on the existence. 10 (H.S.L have also found it impossible to lay down general principles for the demarcation of these two " channels of communication" and inclined towards the view that " joint consultation " includes elements of communication.M. Daniel and N. " Sec " Communications and Consultation " (CB. Where managers have extended the area of joint regulation and increased the range of issues and topics discussed with stewards to include the less contentious ones.1971. Mclntosh: The Right to Manage (London.11 According to Joan Henderson " the pace of technological and organisational change has been such that informing. i« W. Daniel and N. Research Paper No." In its fourteenth report the C. McCarthy thought that joint consultative committees would be unable to survive the development of effective shop-floor organisation: " Either they must change their character and become essentially negotiating committees carrying out functions which are indistinguishable from the processes of shop-floor bargaining or they are boycotted by shop stewards and.Worker Participation in Safety—// 99 and negotiation as " closely related but distinct processes " although some are now of the opinion that many of the distinctions are inadequate for normal operations. 33. as the influence of the latter grows.org by guest on September 7." The CB. With shop stewards in a position to negotiate as the need arises there is no reason why a single channel of communication should not function at plant level. 2010 . consultation and negotiation.. 1972). Mclntosh (above. 98 Clarke." p.oxfordjournals. fall into disuse. 1972) p.

Agreements between managements and unions can help to ensure that statutory requirements are adhered to." At Hoover Ltd. It can make a requirement of those precautions which can be specified in legal form but it cannot provide a complete guide to what should be done..oxfordjournals. generally speaking legislation can only prescribe a minimum standard if it is to apply to most of the establishments it covers.org by guest on September 7. Although an employer cannot be ordered to bargain on safety matters in this country10 negotiations do take place both in conjunction with and separate from consultation. i» In Sweden the provisions of the Workers Protection Act have been extended and amplified by comprehensive national agreements between management and unions. The role of employers and trade unions at national level should be one of watchfulness and encouragement. though occasionally there may be major hazards which can and should be dealt with at that level. Agreements must be made at the point at which they are going to work.g. the joint safety committee combines the functions of both consultation and negotiation to a greater or lesser degree depending on the nature of the item and the Post Office has made arrangements for decisions on local safety matters to be arrived at by agreement in selfcontained sub-committees of the local joint negotiating and consultative committees. 2010 . " discussed and settled " safety questions as standard practice. In many companies disputes on safety issues can be processed through the grievance procedure. 33. The role and scope of collective agreements It is axiomatic that no piece of legislation can cover every contingency. the Fire Brigades Union. which often provides for the " prompt and amicable settlement of all grievances and disputes as expeditiously as possible by negotiation. 11 A few unions daim to negotiate on safety matters. An investigation into the range of bargaining of shop stewards revealed that 54 per cent. can provide facilities above the legal minimum1* and be of great value in dealing with matters which are not easy to enforce under criminal law. p. Downloaded from ilj. Royal Commission Research Paper No. so It is the longstanding policy of the United States National Labor Relations Board that the safety and health demands of unions are mandatory subjects of collective bargaining. e. While strict compliance with safety legislation might ensure a reasonable level of safety. Perivale. 10. Not only do collective agreements at plant level enable legislation to be applied to the conditions existing at a particular workplace. Employers must bargain on safety issues even though working conditions are also subject to the many safety regulations imposed by federal and state statutes. but people are usually more committed to goals that they themselves have played a part in setting than to those imposed from above. ** See particularly the agreements of United Kingdom subsidiaries of American companies.100 David Lewis authority should be shared with workers through an extension of joint regulation.21 Sometimes safety rules are included in formal agreements " and all too often unions negotiate hazard payments where there are unsafe conditions.

2010 .oxfordjournals. The Robens Committee contemplated election by employees " arranged through trade unions recognised at the workplace or through work groups as appropriate. For this purpose an appropriate clause might be: " each and every employee who may be at any time a safety representative is perfectly free to discharge the duties of his office with the absolute assurance that his personal standing with the company will in no way be prejudiced by any action he may take in good faith while acting in the capacity of safety representative. It was policy in the industry to consider safety as an appropriate subject for joint consultation and at local level the negotiating and consultative machinery was separated. This right should be given some force by the guarantee of unrestricted rights of access to both government and local authority inspectors. In this country workers are usually kept in the dark about an inspector's recommendations and instructions." what is really envisaged is the recognition of a positive right in this area. the Gas Council (which ceased to exist after 1972) had a statutory obligation. « See the provisions of the 1970 Bill." M Election by ballot is more likely to stimulate employee interest in safety than is nomination and. to consult with appropriate organisations with a view to concluding agreements on joint machinery for the promotion of measures affecting safety." Employee representatives should have the right to check safety arrangements and to inspect for danger as this can inspire confidence in employees and can lead to improved safety standards. Provisions should also be made for inspectors' findings. inspectors and management It is essential to arrange for the disclosure of all relevant information so that discussions are not rendered futile by lack of knowledge. as was proposed in the Employed Penons (Health and Safety) Bill 1970.Worker Participation in Safety—II 101 Under the Gas Act 1948. Turning to the potential safety content of collective agreements. However. Although dismissal for such activities alone might be deemed "unfair. once elected. recommendations and instructions to be conveyed to safety representatives " and for tripartite discussions between these representatives.org by guest on September 7. at higher levels safety was dealt with by bodies which negotiated terms and conditions of employment The fact that negotiations on safety are conducted within a procedure for joint consultation helps to sustain the myth that the issues are not settled by collective bargaining at all.14 Representatives should be entitled to perform their duties without loss of pay and should be protected against victimisation where safety activities are carried out in good faith. was not discussed. perhaps the most important item to be agreed is the method of appointing employees safety representatives. Adequate warning should u The question of whether the appointment of employee safety representatives should be a union prerogative. so As in Sweden. in common with other nationalised corporations. Downloaded from ilj. employee representatives should be given such facilities and assistance as they might reasonably require for carrying out inspections and acquainting themselves with circumstances in the workplace.

A.CM. Having defined the role of safety representatives. But sec clause 1 (?) of the Health and Safety at Work Bill 1974.16 Is it the union's job to police agreed safety rules or merely to see that any punishment is justified and fair? It is frequently argued that if both management and unions have the task of enforcing rules it becomes too easy for the buck to be passed. since a rule that is not enforced is quickly forgotten. Thomas [1972] I. " On this see " unfair dismissal " cases involving safety rules. An effective safety programme cannot be achieved unless both sides are prepared to play their full part. Young v.R. Thus trade unions in this country have not normally been required to share what is considered to be management's responsibility. When agreement is reached unions should co-operate in publicising the rules so that the shop floor can legitimise the norms which their representatives are committing them. a London tribunal hdd that an employee is justified in refusing to obey an order when to do so would put him in physical danger.102 David Lewis be given of impending changes and sufficient time should be allowed for employee representatives to make their views known. 40.RX. whether a cause of danger or not. *» In Turner v. and arrangements for monitoring safety performance and for utilising diagnostic and predictive techniques should be discussed.g." At the same time protection is urgently required for the worker who refuses to undertake hazardous work. Electronics [1972] unreported. grounds for disciplinary action. the causes established and appropriate remedial action taken. or may affect.oxfordjournals. collective agreements should provide for the establishment of joint safety committees.org by guest on September 7. Procedures must be set up to ensure that all accidents are investigated. So long as employees know when they are infringing the rules and what the consequences will be there can be few objections to making a wilful breach of safety regulations. eg. the safety of employees and to promote co-operation generally. The constitution of a safety committee should allow disputes to be processed through the normal grievance channels. By embodying safety rules in a collective agreement rather than a code of practice they are seen to carry the same weight as any other plant or company rules. 2010 .** so A delegate to the 1972 TUC Congress said that it was the experience of the National Union of Mincworkers that codes of practice were ineffective in dealing with safety matters. Agreement is necessary on the adoption of safe and efficient working methods and the supply of protective clothing. whose purpose would be to keep under review the circumstances which affect. which necessitates reaching agreement on all issues. As far as possible these committees should be geared to the existing negotiating and consultative machinery. as a sub-committee of a plant or works committee. Disciplinary powers should be agreed and exercised in appropriate circumstances. They should have the power to make decisions by agreement and should be either self-contained or directly responsible to the plant or works committee. e. Downloaded from ilj.

The strike ended in June when the company conceded most of their demands for better protection. Safety cannot be promoted in such circumstances since the work and risks remain the same and a special rate-for-the-job merely condones the acceptance of unsafe conditions. 315. p. 1974).11 In the United States workers' safety representatives can apply directly for court orders requiring inspectors to enforce regulations and can stop a process or machine they consider to be dangerous. Unions have a vital and positive role to play in encouraging " hazard consciousness " but in the past they have been too willing to confine the scope of their activities and workers have come to expect union action only in limited areas. holidays and benefits and to improve the living conditions of their members generally. In hazardous industries attempts must be made to replace payment-by-results systems. Safety was specifically included." In The Hazards of Work: Bow to Fight Them (London.org by guest on September 7. Collective agreements should provide for training in safety procedures to be treated as a fundamental part of all basic training and for follow-up sessions to be held at regular intervals." M A recent G.oxfordjournals. « See Occupational Safety and Health Act 1970. Klnnersley argues that " workers need union training if they are to cut through management safety jargon and get at the real facts. Trade union attitudes and pressure Although it is the function of trade unions to secure better wages. Instead of gearing themselves towards obtaining the best possible settlement of injury claims unions should focus more attention on prevention and the sources of injuries.M. 2010 . so far as is reasonably practicable.Worker Participation in Safety—II 103 Again.10 Workers should be encouraged to become less tolerant of the risks to which they are exposed and pressure should be brought to bear on negligent employers. training and supervision as is necessary to ensure.W. It is now time to press for agreements covering safety matters. it should be their first duty to do all they can to keep their members alive and intact One sort of activity which is definitely not conducive to safety is the willingness of unions to negotiate additional payments for particularly dangerous work.U. Chemical and Atomic Workers Union in Shell refineries commenced the first national strike on a health and safety issue. the health and safety at work of his employees.32 If no similar powers are introduced in this country should employee safety representatives be permitted to pressurise recalcitrant employers by drawing on a> Clause 2 (2) (c) of the Health and Safety at Work Bill 1974 made it the employer's duty to provide " such instruction.1" Managements must accept that their own learning is just as necessary as training workers on the shop floor and should be urged to employ specialist safety staff where possible. " In January 1973 the American Oil. Downloaded from ilj. Research Department Brief on Model Procedure Agreements favoured negotiating procedures which are capable of handling all issues. if safety is to become a part of a worker's approach to his job some reference must be made to industrial training. hours.

" Conclusion Industrial accidents affect both the lives of workers and the prosperity of the organisation and by stoppages of work cause such losses of output as to harm the country's economy. 2010 . One impediment is too great an emphasis on alleged common interests and reliance on managerial prerogative. a function which cannot be exercised by any number of government inspectors. The trade union movement should insist that safety." " « Clause 23 of the Health and Safety at Work Bill 1974 provided for appeals against improvement or prohibition notice* to be heard by industrial tribunal*. it may also constitute a " more effective form of participation than any of the schemes formally given that name. *• Where there is a genuine safety dispute workers should not be disqualified from receiving unemployment benefit: see R(U)3/71.104 David Lewis their experience of different forms of industrial action? So long as reasonable time is allowed for remedial action an ultimatum issued by such representatives need prove no more objectionable than a formal improvement notice emanating from an inspector.org by guest on September 7.38 so they should accelerate the merger of negotiating and consultative machinery. Provision could be made for an employer to appeal against strike notice to an industrial tribunal.oxfordjournals. which was theoretically based on the ultimate location of authority.38 is now obsolete. Joint safety committees can set an atmosphere of awareness and can continuously supervise at the workplace. like any other subject. Article 66 lists safety as one of the subjects on which decisions may be made by the board of management of a company only with the agreement of the European Works Council. Some of the apathy in industry derives from the feeling that safety is not really the responsibility of workers. accepted and implemented is more important than prerogative. is a fit one for the negotiating table. The distinction between negotiation and consultation. as Consultation leaving the final decision with management " See now the proposals for a European Works Council. Steps must be taken to foster greater co-operation between management and unions by the removal of impediments to such co-operation. although experience of worker-involvement has already shown us that they can " sell" safety where management has failed to do so." Of course it is regrettable that it is often necessary for something dramatic to happen in order to draw attention to what needs doing. Downloaded from ilj. « Strauss and Rosenstein in (1969-70) 9 Industrial Relations 205. The initiative must come from management but it is a union function to jog management. No time limit was specified. but industrial action can direct management's attention to safety problems in a manner that is positive and constructive and may stimulate the growth of joint regulation. Collective bargaining not only raises the status of safety. Managers must realise that to get the right decisions taken.

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