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Legal Implications

LEGISLATION AND ENFORCEMENT


This provides the background information on legislation and enforcement in occupational health
and safety. Legislation can include state, provincial or national legislation, or the Conventions or
Recommendations of the International Labour Organization (ILO). Topics discussed include:
how health and safety law is structured, common limitations of legislation and enforcement in
health and safety, how unions can use health and safety legislation to make improvements in the
workplace, and the role of the health and safety representative.

I. Introduction
Government legislation is what provides workers with minimum standards of health and safety
in the workplace. Minimum standards, however, can always be made more protective with
stronger legislation. Historically, many trade unions have been successful in pressuring
governments to enact health and safety legislation, to make legislation more protective and to
enforce the laws.

While health and safety legislation provides the legal backbone to protect workers, it is only
effective when supported by government enforcement. Without adequate legal enforcement,
some employers do not feel motivated to take workplace regulations seriously, particularly since
many governments still do not prosecute employers who violate workplace regulations.

Since many governments do not have enough adequately trained inspectors to inspect every
workplace regularly, it is up to workers and unions to be the regular “workplace inspectors” and
make sure employers are complying with existing laws and standards. To do this effectively, you
must be familiar with the health and safety laws that protect you.
Workers,
industry
officials, health
professionals
and
government
officials all
have
responsibilities
for health and
safety.

Points to remember

1. Legislation provides workers with minimum standards of protection in the workplace.


2. Minimum standards can be made more protective by strengthening government legislation.
3. Legislation is only effective in protecting workers when it is supported by government
enforcement.
4. Since many governments do not have enough inspectors to inspect every workplace
regularly, it is up to workers and unions to be the regular “workplace inspectors”.

II. Legislation
Are you familiar with your health and safety rights in the workplace? To learn about your rights,
you need to understand the legislation in your country that provides you with these rights.

A. How legislation is structured

The terms used in health and safety legislation may vary in different countries. However, there
are some common international terms that you may see in your country's legislation. Four of
these terms are: act, regulation, code of practice, guide.

Act
Most countries have acts dealing with occupational health and safety; for example, the Factories
Act or the Health and Safety at Work Act. Acts are basically legal statements of the general
health and safety principles and responsibilities in a particular country and they are made or
approved by the governments or parliaments of individual countries. Acts are fully supported
by law, therefore potentially they have a great deal of power, but generally that power is only
effective with adequate enforcement. Try to become familiar with your country's health and
safety act (if it exists).

Regulations

Once a health and safety act is passed, then a minister (usually the Minister of Labour), the
Cabinet or the state, provincial or even national government will develop detailed regulations.
Regulations are fully supported by law so employers are required to comply with them, just
like the overall act which they accompany. Regulations tend to cover specific industries or
hazards and state the mandatory minimum standards and objectives for hazard control, “safe
levels”, training, etc. and they apply to specific workplaces. Regulations cannot be stronger than
the act which they accompany. You must become familiar with the health and safety regulations
in your country (if they exist) to know more about the specific rights that you are guaranteed.

Codes of practice

Codes of practice provide general guidance to employers (and workers) on how to comply with
the minimum standards and objectives that are detailed in the regulations. These codes are
adopted and amended by a relevant government body, usually within the Ministry of Labour.
The ILO develops Codes of Practice which many governments adopt for their guidelines.
Although codes of practice are not required by law, they can be used in legal proceedings as
evidence.

Guides

Guides or notes of guidance provide official detailed technical information and recommendations
to help employers comply with health and safety regulations. Guides provide practical “how-to”
information for getting into compliance. They are not required by law but they explain the type
of action that employers should take to comply with health and safety laws. Guides, like codes of
practice, are adopted and amended by relevant government bodies. Governments also can use
ILO guides if they have not developed their own.

The ILO produces Codes of Practice, guides and manuals to supplement occupational health and
safety Conventions and Recommendations that are developed through the tripartite system of the
ILO. These documents are not substitutes for existing national legislation or regulations; rather
they provide governments, employers and workers with guidance in health and safety. For a list
of relevant Codes of Practice, guides and manuals, see Appendix I at the back of this Module.
B. Where to find your health and safety legislation

You have the right to see the occupational health and safety legislation that applies to you
because it is a public document. Try to obtain a copy of your country's legislation and become
familiar with the terms used. The terms used in your legislation may be slightly different from
the terms discussed above.

Your union is the first place to ask for a copy of the legislation. If they do not have a copy, other
sources to ask are: your employer, the local factory inspectorate, the Ministry of Labour, the
local library, a lawyer, or a local college or university. When you request a copy of the
legislation, ask also for a written summary of the legislation, if one exists. Laws are generally
difficult to read and a summary will explain the legal language used in the legislation.

Note: Health and safety legislation is sometimes a section within a different piece of legislation.
For example, the health and safety legislation might be included as a section within a Pesticide
Act, Factory Act, or a Labour Code, so you may have to look through various pieces of
legislation to find the relevant health and safety information.

Points to remember
about legislation
1. The legislation in your country is what provides you with your basic rights for health and
safety in the workplace.

2. Four general terms commonly used in health and safety legislation are: act, regulation,
code of practice, guide. The terms used in your own country's legislation may be slightly
different. Try to become familiar with the terms used in your country's legislation.

3. Act:

 states general health and safety principles, duties, etc.;


 fully supported by law;
 made or approved by governments/parliaments.

4. Regulations:

 provide specific health and safety rules within the limits of the health and safety act;
 fully supported by law;
 adopted and amended by cabinet or the relevant minister.

5. Codes of practice:

 provide general guidance on ways to comply with regulations;


 not backed by law but can be used as evidence in legal proceedings;
 adopted and amended by the relevant government body, usually under the Ministry
of Labour. ILO Codes of Practice may be adopted by governments.

6. Guides:

 provide detailed technical information and recommendations to help employers


comply with health and safety regulations;
 not backed by law;
 adopted and amended by the relevant government body. ILO guides may be adopted
by governments.

7. It is your right to see your country's occupational health and safety legislation. Reading
the legislation will tell you what workplace protections are guaranteed to you by law.

8. To get a copy of the legislation, ask: yourunion, your employer, the local factory
inspectorate, the Ministry of Labour, the local library, a lawyer, or a local college or
university. Also request any written summary of the legislation that may exist. Health and
safety legislation sometimes appears as a section within a different piece of legislation, such
as a Pesticide Act or a Factory Act.

9. The ILO produces Codes of Practice, guides and manuals to supplement occupational
health and safety Conventions and Recommendations. For a list of relevant Codes of
Practice, guides and manuals, see Appendix Iat the back of this Module.
III. Limitations
A. Legislation

Some countries have strong occupational health and safety legislation. However, in many
countries the laws are outdated and weak, which means that workers cannot rely on legislation
for adequate protection.

Many trade unions have identified a number of limitations in the health and safety legislation in
their countries. Common limitations include the following:

 The current legislation is outdated and therefore does not address the social, economic
and technological changes that have taken place in the region. For example, the health
and safety legislation in many Commonwealth countries is taken from the British
Factories Act of 1961, which is generally not relevant to the needs of these different
countries today.
o When standards address only specific categories of workplaces, such as
“factories” or “workshops”, many workers are left unprotected if they do not fit
into those narrow categories. Also workers in the public sector and the self-
employed are often not covered by current legislation.
o The penalties are limited for employers who are caught breaking the law, even for
very serious offences.
o There are insufficient resources available for enforcing the laws and inspecting
worksites.
o Most of the legislation that does exist deals with industrial safety and not
occupational health.
o There is a lack of up-to-date, detailed regulations accompanying the act.
o Many employers and workers' organizations are not familiar with existing acts,
regulations, codes of practice, guides, etc.
o Unions, workers and employers are not involved in the standard-setting process in
any way.
o Many standards are written so unclearly from a worker's viewpoint that they
cannot be used to uphold the law. (If a standard is unclear, then it is particularly
important that contract language clarifies the issue and is not open to
interpretation.)

Ideally, legislation should:

 protect all workers;


 be oriented toward the prevention of occupational illnesses and injuries by requiring
employers to comply with regulations that are more protective than just existing
minimum standards;
 include provisions for adequate compensation and rehabilitation for workers when
needed;
 include provisions for sufficient workplace inspectors who are properly trained and
equipped;
 include strong enforcement;
 allow for strong penalties for employers who break the law;
 address any region-specific needs.

What are the limitations in your county's health and safety legislation? Improving health and
safety laws and making sure that they address technological, economic and social changes is a
continuous process for workers and unions in every country.

B. Enforcement

Health and safety legislation needs government enforcement in order for it to be effective. In
many countries, however, there are serious limitations in the way the laws are enforced.

Government inspectors are needed to inspect, monitor and enforce the law in workplaces. These
inspectors are known as health and safety inspectors or factory inspectors and are under the
authority of the Ministry of Labour or the equivalent. Inspectors should make sure that
employers comply with the minimum legal health and safety standards. However, their authority
is limited to the extent of the legislation; weak and ineffective legislation gives inspectors little
authority, and the result may be little or no action to improve working conditions.

The health and


safety inspector
can help
workers and
supervisors to
identify
unhealthy or
unsafe working
conditions.

Many trade unions have identified a number of problems with the enforcement of health and
safety legislation in their countries. Common problems include the following:
 There are not enough inspectors (try to find out how many inspectors there are in your
country and roughly how many workplaces. You will see that it is impossible for
inspectors to visit every workplace on a regular basis. Most inspectors will visit the
biggest factories or those with known health and safety problems).
 Many inspectors have only limited training in the field of occupational health and safety.
 Many inspectors have to do their job with virtually no equipment or sources of
information.
 Inspectors can enforce only existing legislation, but the legislation itself may not be
powerful or protective.

Ideally, adequate enforcement should:

 ensure that sufficient trained, equipped personnel with access to sources of


information are available to inspect workplaces and enforce laws;
 include regular, unannounced inspections of all workplaces;
 allow for penalties that are equal to the illegal action committed, including severe
penalties for very serious offences;
 be supported by strong, protective legislation.

Because of the serious problems in enforcing health and safety laws, it is better to use your union
and negotiations as your first line of defence against poor working conditions and to rely on
inspectors only as a back-up.

Points to remember
about limitations in legislation and enforcement
1. Occupational health and safety laws in many countries are often outdated and weak,
which means they do not provide workers with adequate protection.
2. Once you have identified the limitations in your country's legislation, your union can
pressure the government to make sure current legislation addresses existing
conditions. Ensuring that laws are updated and reflect the technological, economic
and social changes of any society is an ongoing process for workers and unions in
every country.
3. Many countries have serious problems enforcing health and safety laws.
4. Health and safety or factory inspectors are the health and safety enforcement
officers. Inspectors should make sure that employers comply with the minimum
health and safety standards, but their authority is limited to the extent of the
legislation.
5. A worker's best line of defence against poor working conditions is union
involvement and negotiations.
IV. How to use health and safety legislation
A. Developing check-lists

Once you are familiar with your health and safety legislation, you can make use of it by
developing a check-list from the act or the regulations. The check-list will consist of simple
questions to help you identify areas in the workplace that are not in compliance with existing
regulations. A check-list also can be used as a basic summary of the laws.

Study the law


and determine
what rights you
have. Make a
poster for the
workplace and
union hall.

It is not realistic to put together a check-list on all of the legislation that applies to your
workplace, so you should select the most important general hazard areas. For example, you could
develop a check-list from the regulations on “cranes and hoists”, “scaffolding”, “storage of
chemicals”, or any other area that you think is particularly important. You could also develop
check-lists to use before or during inspections to help you or an inspector focus on problem
areas.

Preparing check-lists

Here are some simple rules for preparing a check-list:

 First, read over the original document quickly to get a general idea of what it covers.
 Next, read the document again quickly and write down the main headings and the topics
covered.
 Read it again carefully and underline or write down the key words or phrases.
 Next, make questions out of the main ideas. The questions should apply to your
workplace.
 For each topic you cover in the check-list, write down the reference (the act or regulation
and subsection where you got the information) next to the question.
 Try to include specific regulations in the check-list so you can check for compliance.
 the establishment of health and safety committees - ideally these should be joint
labour/management committees, but if the employer resists participating, then workers
should set up their own committees;
 the right of workers or their bargaining agents to be consulted on health and safety issues
and any proposed operational changes in the workplace that could cause health and/or
safety problems;
 provision of safety equipment and proper/appropriate personal protective equipment
(PPE) (try to reach agreement with management that they will introduce engineering
controls and reduce the need for PPE);
 pre-employment medical check-ups;
 periodic medical check-ups;
 provision of adequate washing/shower facilities and work time provided for
washing/showering (the question of time should be clearly set out since it is a matter that
can lead to industrial disputes);
 information about chemicals that have to be handled;
 provision of proper first-aid kits;
 access to industrial/occupational physicians and nurses;
 training in first aid (an appropriate number of workers should be trained in relation to the
size of the workforce);
 evaluation of occupational stress;
 security (fire escapes and extinguishers, unblocked entrances/exits, etc.);
 education (paid educational leave for workers participating in courses on occupational
health and safety, irrespective of who organizes such courses).

The following is an example of health and safety contract language that was established through
the collective bargaining process.

Points to remember
about how to use health and safety legislation
1. Developing check-lists from your health and safety legislation is a practical way to
summarize legislation and to see how well the laws have been applied in your
workplace.
2. Select important general hazard areas that are relevant to your workplace when
developing check-lists.
3. Collective bargaining around health and safety issues can result in significant
improvements in health and safety conditions in the workplace. The bargaining
process can bring about changes much more quickly than waiting for national
legislation to change.
IV. Role of the health and safety representative

Health and
safety
representative

As a health and safety representative, it is important for you to know the workers' rights given by
your country's health and safety legislation. Try to get a copy of the legislation and familiarize
yourself with it. Other steps to help you reach goals towards creating, strengthening and using
legislation are:

1. Work with your union to put pressure on the government to adopt or improve existing
health and safety legislation. This should include provisions for adequate and effective
enforcement.
2. Educate your co-workers about their rights under the law.
3. Work with your co-workers to identify limitations in your health and safety legislation.
Develop strategies (short-term or long-term) for overcoming the limitations.
4. Develop and use check-lists to identify areas in the workplace that are out of compliance
with existing regulations.
5. Use collective bargaining to work toward more immediate improvements in working
conditions.
6. Work with the union and the employer to correct health and safety problems. If your
employer is unwilling to comply with existing regulations, then contact the local factory
inspectorate and request assistance.
7. Try to find out if your country has ratified any of the International Labour Organization's
occupational health and safety Conventions or any ILO Conventions that contain
elements of health and safety. You can find out by contacting one of the international
trade secretariats or your national or regional ILO office, or by writing to ILO
headquarters in Geneva, Switzerland.
Occupational and Safety Hazard Assessment

Hazards, risks, outcomes

The terminology used in OSH varies between countries, but generally speaking:

 A hazard is something that can cause harm if not controlled.


 The outcome is the harm that results from an uncontrolled hazard.
 A risk is a combination of the probability that a particular outcome will occur and the severity of
the harm involved.[citation needed]

“Hazard”, “risk”, and “outcome” are used in other fields to describe e.g. environmental damage,
or damage to equipment. However, in the context of OSH, “harm” generally describes the direct
or indirect degradation, temporary or permanent, of the physical, mental, or social well-being of
workers. For example, repetitively carrying out manual handling of heavy objects is a hazard.
The outcome could be a musculoskeletal disorder (MSD) or an acute back or joint injury. The
risk can be expressed numerically (e.g. a 0.5 or 50/50 chance of the outcome occurring during a
year), in relative terms (e.g. "high/medium/low"), or with a multi-dimensional classification
scheme (e.g. situation-specific risks).[citation needed]

[edit]Hazard Assessment

Hazard analysis or hazard assessment is a process in which individual hazards of the workplace
are identified, assessed and controlled/eliminated as close to source (location of the hazard) as
reasonable and possible. As technology, resources, social expectation or regulatory requirements
change, hazard analysis focuses controls more closely toward the source of the hazard. Thus
hazard control is a dynamic program of prevention. Hazard-based programs also have the
advantage of not assigning or implying there are "acceptable risks" in the workplace. A hazard-
based program may not be able to eliminate all risks, but neither does it accept "satisfactory"—
but still risky—outcomes. And as those who calculate and manage the risk are usually managers
while those exposed to the risks are a different group, workers, a hazard-based approach can by-
pass conflict inherent in a risk-based approach.[citation needed]

[edit]Risk assessment

Further information: Risk assessment#Risk assessment in public health

Modern occupational safety and health legislation usually demands that a risk assessment be
carried out prior to making an intervention. It should be kept in mind that risk management
requires risk to be managed to a level which is as low as is reasonably practical.[citation needed]

This assessment should:

 Identify the hazards


 Identify all affected by the hazard and how
 Evaluate the risk
 Identify and prioritize appropriate control measures[citation needed]

The calculation of risk is based on the likelihood or probability of the harm being realized and
the severity of the consequences. This can be expressed mathematically as a quantitative
assessment (by assigning low, medium and high likelihood and severity with integers and
multiplying them to obtain a risk factor), or qualitatively as a description of the circumstances by
which the harm could arise.[citation needed]

The assessment should be recorded and reviewed periodically and whenever there is a significant
change to work practices. The assessment should include practical recommendations to control
the risk. Once recommended controls are implemented, the risk should be re-calculated to
determine of it has been lowered to an acceptable level. Generally speaking, newly introduced
controls should lower risk by one level, i.e., from high to medium or from medium to low