21.

Labour Relations and Human Resources Management

iloencyclopaedia.org/contents/part-iii-48230/labor-relations-and-human-resource-management

Written by ILO Content Manager

Labour or Industrial Relations

The term labour relations, also known as industrial relations, refers to the system in which
employers, workers and their representatives and, directly or indirectly, the government
interact to set the ground rules for the governance of work relationships. It also
describes a field of study dedicated to examining such relationships. The field is an
outgrowth of the industrial revolution, whose excesses led to the emergence of trade
unions to represent workers and to the development of collective labour relations. A
labour or industrial relations system reflects the interaction between the main actors in
it: the state, the employer (or employers or an employers’ association), trade unions and
employees (who may participate or not in unions and other bodies affording workers’
representation). The phrases “labour relations” and “industrial relations” are also used in
connection with various forms of workers’ participation; they can also encompass
individual employment relationships between an employer and a worker under a written
or implied contract of employment, although these are usually referred to as
“employment relations”. There is considerable variation in the use of the terms, partly
reflecting the evolving nature of the field over time and place. There is general
agreement, however, that the field embraces collective bargaining, various forms of
workers’ participation (such as works councils and joint health and safety committees)
and mechanisms for resolving collective and individual disputes. The wide variety of
labour relations systems throughout the world has meant that comparative studies and
identification of types are accompanied by caveats about the limitations of over-
generalization and false analogies. Traditionally, four distinct types of workplace
governance have been described: dictatorial, paternalistic, institutional and worker-
participative; this chapter examines primarily the latter two types.

Both private and public interests are at stake in any labour relations system. The state is
an actor in the system as well, although its role varies from active to passive in different
countries. The nature of the relationships among organized labour, employers and the
government with respect to health and safety are indicative of the overall status of
industrial relations in a country or an industry and the obverse is equally the case. An
underdeveloped labour relations system tends to be authoritarian, with rules dictated by
an employer without direct or indirect employee involvement except at the point of
accepting employment on the terms offered.

A labour relations system incorporates both societal values (e.g., freedom of association,
a sense of group solidarity, search for maximized profits) and techniques (e.g., methods
of negotiation, work organization, consultation and dispute resolution). Traditionally,

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labour relations systems have been categorized along national lines, but the validity of
this is waning in the face of increasingly varied practices within countries and the rise of a
more global economy driven by international competition. Some countries have been
characterized as having cooperative labour relations models (e.g., Belgium, Germany),
whereas others are known as being conflictual (e.g., Bangladesh, Canada, United States).
Different systems have also been distinguished on the basis of having centralized
collective bargaining (e.g., those in Nordic countries, although there is a move away from
this, as illustrated by Sweden), bargaining at the sectoral or industrial level (e.g.,
Germany), or bargaining at the enterprise or plant level (e.g., Japan, the United States). In
countries having moved from planned to free-market economies, labour relations
systems are in transition. There is also increasing analytical work being done on the
typologies of individual employment relationships as indic- ators of types of labour
relations systems.

Even the more classic portrayals of labour relations systems are not by any means static
characterizations, since any such system changes to meet new circumstances, whether
economic or political. The globalization of the market economy, the weakening of the
state as an effective force and the ebbing of trade union power in many industrialized
countries pose serious challenges to traditional labour relations systems. Technological
development has brought changes in the content and organization of work that also
have a crucial impact on the extent to which collective labour relations can develop and
the direction they take. Employees’ traditionally shared work schedule and common
workplace have increasingly given way to more varied working hours and to the
performance of work at varied locations, including home, with less direct employer
supervision. What have been termed “atypical” employment relationships are becoming
less so, as the contingent workforce continues to expand. This in turn places pressure on
established labour relations systems.

Newer forms of employee representation and participation are adding an additional

dimension to the labour relations picture in a number of countries. A labour relations
system sets the formal or informal ground rules for determining the nature of collective
industrial relations as well as the framework for individual employment relationships
between a worker and his or her employer. Complicating the scene at the management
end are additional players such as temporary employment agencies, labour contractors
and job contractors who may have responsibilities towards workers without having
control over the physical environment in which the work is carried out or the opportunity
to provide safety training. In addition, public sector and private sector employers are
governed by separate legislation in most countries, with the rights and protections of
employees in these two sectors often differing significantly. Moreover, the private sector
is influenced by forces of international competition that do not directly touch public-
sector labour relations.

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Finally, neoliberal ideology favouring the conclusion of indi-vidualized employment
contracts to the detriment of collectively bargained arrangements poses another threat
to traditional labour relations systems. Those systems have developed as a result of the
emergence of collective representation for workers, based on past experience that an
individual worker’s power is weak when compared to that of the employer. Abandoning
all collective representation would risk returning to a nineteenth century concept in
which acceptance of hazardous work was largely regarded as a matter of individual free
choice. The increasingly globalized economy, the accelerated pace of technological
change and the resultant call for greater flexibility on the part of industrial relations
institutions, however, pose new challenges for their survival and prosperity. Depending
upon their existing traditions and institutions, the parties involved in a labour relations
system may react quite differently to the same pressures, just as management may
choose a cost-based or a value-added strategy for confronting increased competition
(Locke, Kochan and Piore, 1995). The extent to which workers’ participation and/or
collective bargaining are regular features of a labour relations system will most certainly
have an impact on how management confronts health and safety problems.

Moreover, there is another constant: the economic dependence of an individual worker

on an employer remains the underlying fact of their relationship–one that has serious
potential consequences when it comes to safety and health. The employer is seen as
having a general duty to provide a safe and healthful workplace and to train and equip
workers to do their jobs safely. The worker has a reciprocal duty to follow safety and
health instructions and to refrain from harming himself/herself or others while at work.
Failure to live up to these or other duties can lead to disputes, which depend on the
labour relations system for their resolution. Dispute resolution mechanisms include
rules governing not only work stoppages (strikes, slowdowns or go-slows, work to rule,
etc.) and lockouts, but the discipline and dismissal of employees as well. Additionally, in
many countries employers are required to participate in various institutions dealing with
safety and health, perform safety and health monitoring, report on-the-job accidents
and diseases and, indirectly, to compensate workers who are found to be suffering from
an occupational injury or disease.

Human Resources Management

Human resources management has been defined as “the science and the practice that
deals with the nature of the employment relationship and all of the decisions, actions
and issues that relate to that relationship” (Ferris, Rosen and Barnum 1995; see figure 1).
It encapsulates employer-formulated policies and practices that see the utilization and
management of employees as a business resource in the context of a firm’s overall
strategy to enhance productivity and competitiveness. It is a term most often used to
describe an employer’s approach to personnel administration that emphasizes employee
involvement, normally but not always in a union-free setting, with the goal of motivating
workers to enhance their productivity. The field was formed from a merger of scientific
management theories, welfare work and industrial psychology around the time of the
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First World War and has undergone considerable evolution since. Today, it stresses work
organization techniques, recruitment and selection, performance appraisal, training,
upgrading of skills and career development, along with direct employee participation and
communication. Human resources management has been put forth as an alternative to
“Fordism”, the traditional assembly-line type of production in which engineers are
responsible for work organization and workers’ assigned tasks are divided up and
narrowly circumscribed. Common forms of employee involvement include suggestion
schemes, attitude surveys, job enrichment schemes, teamworking and similar forms of
empowerment schemes, quality of working-life programmes, quality circles and task
forces. Another feature of human resources management may be linking pay,
individually or collectively, to performance. It is noteworthy that one of the three
objectives of occupational health has been identified by the Joint ILO/WHO Committee
on Occupational Health as “development of work organizations and working cultures in a
direction which supports health and safety at work and in doing so also promotes a
positive social climate and smooth operation and may enhance productivity of the
undertakings...” (ILO 1995b). This is known as developing a “safety culture.”

Figure 1. The role of human resources management in adding value to people and to
organizations

The example of a safety performance

management programme illustrates
some human resource management
theories in the context of
occupational safety and health. As
described by Reber, Wallin and
Duhon (1993), this approach has had
considerable success in reducing lost
time on account of accidents. It relies
on specifying safe and unsafe
behaviours, teaching employees how
to recognize safe behaviour and
motivating them to follow the safety
rules with goal setting and feedback. The programme relies heavily on a training
technique whereby employees are shown safe, correct methods via videotapes or live
models. They then have a chance to practice new behaviours and are provided with
frequent performance feedback. In addition, some companies offer tangible prizes and
rewards for engaging in safe behaviour (rather than simply for having fewer accidents).
Employee consultation is an important feature of the programme as well.

The implications of human resources management for industrial relations practices

remain a source of some controversy. This is particularly the case for types of workers’
participation schemes that are perceived by trade unions as a threat. In some instances
human resources management strategies are pursued alongside collective bargaining; in
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other cases the human resources management approach seeks to supplant or prevent
the activities of independent organizations of workers in defence of their interests.
Proponents of human resources management maintain that since the 1970s, the
personnel management side of human resources management has evolved from being a
maintenance function, secondary to the industrial relations function, to being one of
critical importance to the effectiveness of an organization (Ferris, Rosen and Barnum
1995). Since human resources management is a tool for management to employ as part
of its personnel policy rather than a relationship between an employer and workers’
chosen representatives, it is not the focus of this chapter.

The articles which follow describe the main parties in a labour relations system and the
basic principles underpinning their interaction: rights to freedom of association and
representation. A natural corollary to freedom of association is the right to engage in
collective bargaining, a phenomenon which must be distinguished from consultative and
non-union worker participation arrangements. Collective bargaining takes place as
negotiations between representatives chosen by the workers and those acting on behalf
of the employer; it leads to a mutually accepted, binding agreement that can cover a
wide range of subjects. Other forms of workers’ participation, national-level consultative
bodies, works councils and enterprise-level health and safety representatives are also
important features of some labour relations systems and are thus examined in this
chapter. Consultation can take various forms and occur at different levels, with national-,
regional- and/or industrial- and enterprise-level arrangements. Worker representatives
in consultative bodies may or may not have been selected by the workers and there is no
obligation for the state or the employer to follow the wishes of those representatives or
to abide by the results of the consultative process. In some countries, collective
bargaining and consultative arrangements exist side by side and, to work properly, must
be carefully intermeshed. For both, rights to information about health and safety and
training are crucial. Finally, this chapter takes into account that in any labour relations
system, disputes may arise, whether they are individual or collective. Safety and health
issues can lead to labour relations strife, producing work stoppages. The chapter thus
concludes with descriptions of how labour relations disputes are resolved, including by
arbitration, mediation or resort to the regular or labour courts, preceded by a discussion
of the role of the labour inspectorate in the context of labour relations.

The Actors in the Labour Relations System

Classically, three actors have been identified as parties to the labour relations system:
the state, employers and workers’ representatives. To this picture must now be added
the forces that transcend these categories: regional and other multilateral economic
integration arrangements among states and multinational corporations as employers
which do not have a national identity but which also can be seen as labour market
institutions. Since the impact of these phenomena on labour relations remains unclear in
many respects, however, discussion will focus on the more classic actors despite this
caveat of the limitation of such an analysis in an increasingly global community. In
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addition, greater emphasis is needed on analysing the role of the individual employment
relationship in labour relations systems and on the impact of the emerging alternative
forms of work.

The State

The state always has at least an indirect effect on all labour relations. As the source of
legislation, the state exerts an inevitable influence on the emergence and development
of a labour relations system. Laws can hinder or foster, directly or indirectly, the
establishment of organizations representing workers and employers. Legislation also
sets a minimum level of worker protection and lays down “the rules of the game”. To
take an example, it can provide lesser or greater protection for a worker who refuses to
perform work he or she reasonably considers to be too hazardous, or for one who acts
as a health and safety representative.

Through the development of its labour administration, the state also has an impact on
how a labour relations system may function. If effective enforcement of the law is
afforded through a labour inspectorate, collective bargaining can pick up where the law
leaves off. If, however, the state infrastructure for having rights vindicated or for assisting
in the resolution of disputes that emerge between employers and workers is weak, they
will be left more to their own devices to develop alternative institutions or arrangements.

The extent to which the state has built up a well-functioning court or other dispute
resolution system may also have an influence on the course of labour relations. The ease
with which workers, employers and their respective organizations may enforce their legal
rights can be as important as the rights themselves. Thus the decision by a government
to set up special tribunals or administrative bodies to deal with labour disputes and/or
disagreements over individual employment problems can be an expression of the
priority given to such issues in that society.

In many countries, the state has a direct role to play in labour relations. In countries that
do not respect freedom of association principles, this may involve outright control of
employers’ and workers’ organizations or interference with their activities. The state may
attempt to invalidate collective bargaining agreements that it perceives as interfering
with its economic policy goals. Generally speaking, however, the role of the state in
industrialized countries has tended to promote orderly industrial relations by providing
the necessary legislative framework, including minimum levels of worker protection and
offering parties information, advice and dispute settlement services. This could take the
form of mere toleration of labour relations institutions and the actors in them; it could
move beyond to actively encourage such institutions. In a few countries, the state is a
more active participant in the industrial relations system, which includes national level
tripartite negotiations. For decades in Belgium and more recently in Ireland, for instance,
government representatives have been sitting down alongside those from employer and
trade union circles to hammer out a national level agreement or pact on a wide range of
labour and social issues. Tripartite machinery to fix minimum wages has long been a
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feature of labour relations in Argentina and Mexico, for example. The interest of the
state in doing so derives from its desires to move the national economy in a certain
direction and to maintain social peace for the duration of the pact; such bipartite or
tripartite arrangements create what has been called a “social dialogue”, as it has
developed in Australia (until 1994), Austria, Belgium, Ireland and the Netherlands, for
instance. The pros and cons of what have been termed “corporatist” or “neocorporatist”
approaches to labour relations have been extensively debated over the years. With its
tripartite structure, the International Labour Organization has long been a proponent of
strong tripartite cooperation in which the “social partners” play a significant role in
shaping government policy on a wide range of issues.

In some countries, the very idea of the state becoming involved as a negotiator in private
sector bargaining is unthinkable, as in Germany or the United States. In such systems,
the role of the state is, aside from its legislative function, generally restricted to providing
assistance to the parties in reaching an agreement, such as in offering voluntary
mediation services. Whether active or passive, however, the state is a constant partner in
any labour relations system. In addition, where the state is itself the employer, or an
enterprise is publicly owned, it is of course directly involved in labour relations with the
employees and their representatives. In this context, the state is motivated by its role as
provider of public services and/or as an economic actor.

Finally, the impact of regional economic integration arrangements on state policy is also
felt in the labour relations field. Within the European Union, practice in member
countries has changed to reflect directives dealing with consultation of workers and their
representatives, including those on health and safety matters in particular. Multilateral
trade agreements, such as the labour side agreement to the North American Free Trade
Agreement (Canada, Mexico, United States) or the agreements implementing the
Mercosur Common Market (Argentina, Brazil, Chile, Paraguay, thought soon to be joined
by Bolivia and Chile) also sometimes contain workers’ rights provisions or mechanisms
that over time may have an indirect impact on labour relations systems of the
participating states.

Employers

Employers–that is, providers of work–are usually differentiated in industrial relations

systems depending upon whether they are in the private or the public sector.
Historically, trade unionism and collective bargaining developed first in the private sector,
but in recent years these phenomena have spread to many public sector settings as well.
The position of state-owned enterprises—which in any event are dwindling in number
around the world—as employers, varies depending upon the country. (They still play a
key role in China, India, Viet Nam and in many African countries.) In Eastern and Central
Europe, one of the major challenges of the post-Communist era has been the
establishment of independent organizations of employers.

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International Employers’ Organizations

Based in Geneva, Switzerland, the International Organization of Employers (IOE) in 1996

grouped 118 central national organizations of employers in 116 countries. The exact form of
each member organization may differ from country to country, but in order to qualify for
membership in the IOE an employers’ organization must meet certain conditions: it must be
the most representative organization of employers - exclusively of employers - in the country;
it must be voluntary and independent, free from outside interference; and it must stand for
and defend the principles of free enterprise. Members include employer federations and
confederations, chambers of commerce and industry, councils and associations. Regional or
sectoral organizations cannot become members; nor can enterprises, regardless of their size
or importance, affiliate themselves directly with the IOE - a factor that has served to ensure
that its voice is representative of the employer community at large, and not of the particular
interests of individual enterprises or sectors.

The IOE’s main activity, however, is to organize employers whenever they have to deal with
social and labour matters at the global level. In practice, most of this takes place in the ILO,
which has responsibility for these questions in the United Nations system. The IOE also has
Category I consultative status with the Economic and Social Council of the United Nations,
where it intervenes whenever matters of interest or consequence to employers arise.

The IOE is one of only two organizations that the employer community has set up to represent
the interests of enterprise globally. The other is the International Chamber of Commerce, with
its headquarters in Paris, which concerns itself principally with economic matters. While
structurally quite different, the two organizations complement each other. They cooperate on
the basis of an agreement which defines their areas of responsibility as well as through good
personal relations between their representatives and, to a degree, on a common membership
base. Many subjects cut across their mandates, of course, but are dealt with pragmatically
without friction. On certain issues, such as multinational enterprises, the two organizations
even act in unison.

by Chapter Editor (excerpted from: ILO 1994)

In the private sector, the situation has been summed up as follows:

Employers have common interests to defend and precise causes to advance. In

organizing themselves, they pursue several aims which in turn determine the character
of their organizations. These can be chambers of commerce, economic federations and
employers’ organizations (for social and labour matters) ... Where issues centre
essentially on social matters and industrial relations, including collective bargaining,
occupational health and safety, human resource development, labour law and wages,
the desire for co-ordinated action has led to the creation of employers’ organizations,
which are always voluntary in nature ... (ILO 1994a).

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Some employers’ organizations were initially established in response to pressure from
the trade unions to negotiate, but others may be traced to medieval guilds or other
groups founded to defend particular market interests. Employers’ organizations have
been described as formal groups of employers set up to defend, represent and advise
affiliated employers and to strengthen their position in society at large with respect to
labour matters as distinct from economic matters ... Unlike trade unions, which are
composed of individual persons, employers’ organizations are composed of enterprises
(Oechslin 1995).

As identified by Oechslin, there tend to be three main functions (to some extent
overlapping) common to all employers’ organizations: defence and promotion of their
members’ interests, representation in the political structure and provision of services to
their members. The first function is reflected largely in lobbying government to adopt
policies that are friendly to employers’ interests and in influencing public opinion, chiefly
through media campaigns. The representative function may occur in the political
structure or in industrial relations institutions. Political representation is found in
systems where consultation of interested economic groups is foreseen by law (e.g.,
Switzerland), where economic and social councils provide for employer representation
(e.g., France, French-speaking African countries and the Netherlands) and where there is
participation in tripartite forums such as the International Labour Conference and other
aspects of ILO activity. In addition, employers’ organizations can exercise considerable
influence at the regional level (especially within the European Union).

The way in which the representative function in the industrial relations system occurs
depends very much on the level at which collective bargaining takes place in a particular
country. This factor also largely determines the structure of an employers’ organization.
If bargaining is centralized at the national level, the employers’ organization will reflect
that in its internal structure and operations (central economic and statistical data bank,
creation of a mutual strike insurance system, strong sense of member discipline, etc.).
Even in countries where bargaining takes place at the enterprise level (such as Japan or
the United States), the employers’ organization can offer its members information,
guidelines and advice. Bargaining that takes place at the industrial level (as in Germany,
where, however, some employers have recently broken ranks with their associations) or
at multiple levels (as in France or Italy) of course also influences the structure of
employers’ organizations.

As for the third function, Oechslin notes, “it is not always easy to draw a line between
activities supporting the functions described above and those undertaken for the
members in their interest” (p. 42). Research is the prime example, since it can be used for
multiple purposes. Safety and health is an area in which data and information can be
usefully shared by employers across sectors. Often, new concepts or reactions to novel
developments in the world of work have been the product of broad reflection within
employers’ organizations. These groups also provide training to members on a wide

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range of management issues and have undertaken social affairs action, such as in the
development of workers’ housing or support for community activities. In some countries,
employers’ organizations provide assistance to their members in labour court cases.

The structure of employers’ organizations will depend not only on the level at which
bargaining is done, but also on the country’s size, political system and sometimes
religious traditions. In developing countries, the main challenge has been the integration
of a very heterogeneous membership that may include small and medium-sized
businesses, state enterprises and subsidiaries of multinational corporations. The
strength of an employers’ organi-zation is reflected in the resources its members are
willing to devote to it, whether in the form of dues and contributions or in terms of their
expertise and time.

The size of an enterprise is a major determinant in its approach to labour relations, with
the employer of a small workforce being more likely to rely on informal means for
dealing with its workers. Small and medium-sized enterprises, which are variously
defined, sometimes fall under the threshold for legally mandated workers’ participation
schemes. Where collective bargaining occurs at the enterprise level, it is much more likely
to exist in large firms; where it takes place at the industry or national level, it is more
likely to have an effect in areas where large firms have historically dominated the private
sector market.

As interest organizations, employers’ organizations—like trade unions—have their own

problems in the areas of leadership, internal decision-making and member participation.
Since employers tend to be individualists, however, the challenge of marshalling
discipline among the membership is even greater for employers’ organizations. As van
Waarden notes (1995), “employers’ associations generally have high density ratios ...
However, employers find it a much greater sacrifice to comply with the decisions and
regulations of their associations, as these reduce their much cherished freedom of
enterprise.” Trends in the structure of employers’ organizations very much reflect those
of the labour market– towards or against centralization, in favour of or opposed to
regulation of competition. Van Waarden continues: “even if the pressure to become more
flexible in the ‘post-Fordist’ era continues, it does not necessarily make employers’
associations redundant or less influential ... [They] would still play an important role,
namely as a forum for the coordination of labour market policies behind the scenes and
as an advisor for firms or branch associations engaged in collective bargaining” (ibid., p.
104). They can also perform a solidarity function; through employers’ associations, small
employers may have access to legal or advisory services they otherwise could not afford.

Public employers have come to see themselves as such only relatively recently. Initially,
the government took the position that a worker’s involvement in trade union activity was
incompatible with service to the sovereign state. They later resisted calls to engage in
collective bargaining with the argument that the legislature, not the public
administration, was the paymaster and that it was thus impossible for the administration
to enter into an agreement. These arguments, however, did not prevent (often unlawful)
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public sector strikes in many countries and they have fallen by the wayside. In 1978, the
International Labour Conference adopted the Labour Relations (Public Service)
Convention (No. 151) and Recommendation (No. 159) on public employees’ right to
organize and on procedures for determining their terms and conditions of employment.
Collective bargaining in the public sector is now a way of life in many developed
countries (e.g., Australia, France, United Kingdom) as well as in some developing
countries (e.g., many francophone African countries and many countries in Latin
America).

The level of employer representation in the public sector depends largely upon the
political system of the country. In some this is a centralized function (as in France)
whereas in others it reflects the various divisions of government (as in the United States,
where bargaining can take place at the federal, state and municipal levels). Germany
presents an interesting case in which the thousands of local communities have banded
together to have a single bargaining agent deal with the unions in the public sector
throughout the country.

Because public sector employers are already part of the state, they do not fall under laws
requiring registration of employers’ organizations. The designation of the bargaining
agent in the public sector varies considerably by country; it may be the Public Service
Commission, the Ministry of Labour, the Ministry of Finance or another entity altogether.
The positions taken by a public employer in dealing with employees in this sector tend to
follow the political orientation of the ruling political party. This may range from taking a
particular stance in bargaining to a flat-out denial of the right of public employees to
organize into trade unions. However, while as an employer the public service is shrinking
in many countries, there is an increasing readiness on its part to engage in bargaining
and consultations with employee representatives.

International Labour Federations

The international labour movement on a global, as opposed to a regional or national level,

consists of international associations of national federations of labour unions. There are
currently three such internationals, reflecting different ideological tendencies: the
International Confederation of Free Trade Unions (ICFTU), the World Federation of Trade
Unions (WFTU) and the relatively small, originally Christian, World Congress of Labour (WCL).
The ICFTU is the largest, with 174 affiliated unions from 124 countries in 1995, representing
116 million trade union members. These groups lobby intergovernmental organizations on
overall economic and social policy and press for worldwide protection of basic trade union
rights. They can be thought of as the political force behind the international labour movement.

The industrial force of the international labour movement lies in the international
associations of specific labour unions, usually drawn from one trade, industry or economic
sector. Known as International Trade Secretariats (ITSs) or Trade Union Internationals (TUIs),
they may be independent, affiliated to, or controlled by the internationals. Coverage has
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traditionally been by sector, but also in some cases is by employee category (such as white-
collar workers), or by employer (public or private). For example, in 1995 there were 13
operative ITSs aligned with the ICFTU, distributed as follows: building and woodworking;
chemical and mining, energy; commercial, clerical, professional and technical; education;
entertainment; food, agriculture, restaurant and catering; graphic arts; journalism;
metalworking; postal and telecommunications; public service; textile, garment and leather
work; transport. The ITSs concentrate mainly on industry-specific issues, such as industrial
disputes and pay rates, but also the application of health and safety provisions in a specific
sector. They provide information, education, training and other services to affiliated unions.
They also help coordinate international solidarity between unions in different countries, and
represent the interests of workers in various international and regional forums.

Such action is illustrated by the international trade union response to the incident at Bhopal,
India, involving the leak of methyl isocyanate, which claimed thousands of victims on 3
December 1984. At the request of their Indian national trade union affiliates, the ICFTU and
the International Federation of Chemical, Energy, Mine and General Workers’ Unions (ICEM)
sent a mission to Bhopal to study the causes and effects of the gas leak. The report contained
recommendations for preventing similar disasters and endorsed a list of safety principles; this
report has been used by trade unionists in both industrialized and developing countries as a
basis of programmes for improving health and safety at work.

Source: Rice 1995.

Trade Unions

The classic definition of a trade union is “a continuous association of wage earners for
the purpose of maintaining or improving the conditions of their employment” (Webb and
Webb 1920). The origins of trade unions go back as far as the first attempts to organize
collective action at the beginning of the industrial revolution. In the modern sense,
however, trade unions arose in the later part of the nineteenth century, when
governments first began to concede the unions’ legal right to exist (previously, they had
been seen as illegal combinations interfering with freedom of commerce, or as outlawed
political groups). Trade unions reflect the conviction that only by banding together can
workers improve their situation. Trade union rights were born out of economic and
political struggle which saw short-term individual sacrifice in the cause of longer-term
collective gain. They have often played an important role in national politics and have
influenced developments in the world of work at the regional and international levels.
Having suffered membership losses, however, in recent years in a number of countries
(in North America and some parts of Europe), their role is under challenge in many
quarters (see figure 2). The pattern is mixed with areas of membership growth in the
public service in many countries around the world and with a new lease on life in places
where trade unions were previously non-existent or active only under severe restrictions
(e.g., Korea, the Philippines, some countries of Central and Eastern Europe). The
flourishing of democratic institutions goes hand in hand with the exercise of trade union
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freedoms, as the cases of Chile and Poland in the 1980s and 1990s best illustrate. A
process of internal reform and reorientation to attract greater and more diverse
membership, particularly more women, can also be seen within trade union circles in a
number of countries. Only time will tell if these and other factors will be sufficient to
deflect the counterweighing tendencies towards the “de-collectivization”, also referred to
as “atomization”, of labour relations that has accompanied increased economic
globalization and ideological individualism.

Figure 2. Membership rates in trade unions, 1980-1990

In contemporary industrial relations

systems, the functions fulfilled by
trade unions are, like employers’
organizations, basically the following:
defence and promotion of the
members’ interests; political
representation; and provision of
services to members. The flip side of
trade unions’ representative function
is their control function: their
legitimacy depends in part upon the
ability to exert discipline over the
membership, as for example in
calling or ending a strike. The trade
unions’ constant challenge is to
increase their density, that is, the
number of members as a percentage of the formal sector workforce. The members of
trade unions are individuals; their dues, called contributions in some systems, support
the union’s activities. (Trade unions financed by employers, called “company unions”, or
by governments as in formerly Communist countries, are not considered here, since only
independent organizations of workers are true trade unions.) Affiliation is generally a
matter of an individual’s voluntary decision, although some unions that have been able to
win closed shop or union security arrangements are considered to be the
representatives of all workers covered by a particular collective bargaining agreement
(i.e., in countries where trade unions are recognized as representatives of workers in a
circumscribed bargaining unit). Trade unions may be affiliated to umbrella organizations
at the industrial, national, regional and international levels.

Trade unions are structured along various lines: by craft or occupation, by branch of
industry, by whether they group white- or blue-collar workers and sometimes even by
enterprise. There are also general unions, which include workers from various
occupations and industries. Even in countries where mergers of industrial unions and
general unions are the trend, the situation of agricultural or rural workers has often
favoured the development of special structures for that sector. On top of this breakdown
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there is often a territorial division, with regional and sometimes local subunits, within a
union. In some countries there have been splits in the labour movement around
ideological (party politics) and even religious lines which then come to be reflected in
trade union structure and membership. Public sector employees tend to be represented
by unions separate from those representing employees in the private sector, although
there are exceptions to this as well.

The legal status of a trade union may be that of any other association, or it may be
subject to special rules. A great number of countries require trade unions to register and
to divulge certain basic information to the authorities (name, address, identity of officials,
etc.). In some countries this goes beyond mere record-keeping to interference; in
extreme cases of disregard for freedom of association principles, trade unions will need
government authorization to operate. As representatives of workers, trade unions are
empowered to enter into engagements on their behalf. Some countries (such as the
United States) require employer recognition of trade unions as an initial prerequisite to
engaging in collective bargaining.

Trade union density varies widely between and within countries. In some countries in
Western Europe, for instance, it is very high in the public sector but tends to be low in the
private sector and especially in its white-collar employment. The figures for blue-collar
employment in that region are mixed, from a high in Austria and Sweden to a low in
France, where, however, trade union political power far exceeds what membership
figures would suggest. There is some positive correlation between centralization of
bargaining and trade union density, but exceptions to this also exist.

As voluntary associations, trade unions draw up their own rules, usually in the form of a
constitution and by-laws. In democratic trade union structures, members select trade
union officers either by direct vote or through delegates to a general conference. Internal
union government in a small, highly decentralized union of workers in a particular
occupational group is likely to differ significantly from that found in a large, centralized
general or industrial union. There are tasks to allocate among union officers, between
paid and unpaid union representatives and coordination work to be done. The financial
resources available to a union will also vary depending upon its size and the ease with
which it can collect dues. Institution of a dues check-off system (whereby dues are
deducted from a worker’s wages and paid directly to the union) alleviates this task
greatly. In most of Central and Eastern Europe, trade unions that were dominated and
funded by the state are being transformed and/or joined by new independent
organizations; all are struggling to find a place and operate successfully in the new
economic structure. Extremely low wages (and thus dues) there and in developing
countries with government-supported unions make it difficult to build a strong
independent union movement.

In addition to the important function of collective bargaining, one of the main activities of
trade unions in many countries is their political work. This may take the form of direct
representation, with trade unions being given reserved seats in some parliaments (e.g.,
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Senegal) and on tripartite bodies that have a role in determining national economic and
social policy (e.g., Austria, France, the Netherlands), or on tripartite advisory bodies in the
fields of labour and social affairs (e.g., in many Latin American and some African and
Asian countries). In the European Union, trade union federations have had an important
impact on the development of social policy. More typically, trade unions have an
influence through the exercise of power (backed up by a threat of industrial action) and
lobbying political decision makers at the national level. It is certainly true that trade
unions have successfully fought for greater legislative protection for all workers around
the world; some believe that this has been a bittersweet victory, in the long run
undermining their own justification to exist. The objectives and issues of union political
action have often extended well beyond narrower interests; a prime example of this was
the struggle against apartheid within South Africa and the international solidarity
expressed by unions around the world in words and in deeds (e.g., organizing
dockworker boycotts of imported South African coal). Whether trade union political
activity is on the offence or the defence will of course depend largely on whether the
government in power tends to be pro- or anti-labour. It will also depend upon the union’s
relationship to political parties; some unions, particularly in Africa, were part of their
countries’ struggles for independence and maintain very close ties with ruling political
parties. In other countries there is a traditional interdependence between the labour
movement and a political party (e.g., Australia, United Kingdom), whereas in others
alliances may shift over time. In any event, the power of trade unions often exceeds what
would be expected from their numerical strength, particularly where they represent
workers in a key economic or public service sector, such as transport or mining.

Aside from trade unions, many other types of workers’ participation have sprung up to
provide indirect or direct representation of employees. In some instances they exist
alongside trade unions; in others they are the only type of participation available to
workers. The functions and powers of workers’ representatives that exist under such
arrangements are described in the article “Forms of workers’ participation’’.

The third type of function of trade unions, providing services to members, focuses first
and foremost on the workplace. A shop steward at the enterprise level is there to ensure
that workers’ rights under the collective bargaining agreement and the law are being
respected–and, if not, to take action. The union officer’s job is to defend the interests of
workers vis-à-vis management, thereby legitimizing his or her own representative role.
This may involve taking up an individual grievance over discipline or dismissal, or
cooperating with management on a joint health and safety committee. Outside the
workplace, many unions provide other types of benefit, such as preferential access to
credit and participation in welfare schemes. The union hall can also serve as a centre for
cultural events or even large family ceremonies. The range of services a union can offer
to its members is vast and reflects the creativity and resources of the union itself as well
as the cultural milieu in which it operates.

As Visser observes:
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The power of trade unions depends on various internal and external factors. We can
distinguish between organizational power (how many internal sources of power can
unions mobilize?), institutional power (which external sources of support can unions
depend on?) and economic power (which market forces play into the hands of unions?)
(Visser in van Ruysseveldt et al. 1995).

Among the factors he identifies for a strong trade union structure are the mobilization of
a large, stable, dues-paying and well-trained membership (to this could be added a
membership that reflects the composition of the labour market), avoidance of
organizational fragmentation and political or ideological rifts and development of an
organizational structure that provides a presence at the company level while having
central control of funds and decision making. Whether such a model for success, which
to date has been national in character, can evolve in the face of an increasingly
internationalized economy, is the great challenge facing trade unions at this juncture.

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Published in 21. Labour Relations and Human Resources Management

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Relationship between Rights of Association and Representation and Occupational
Safety and Health

Joint consultation and participation can be effective only in an environment where there
is adequate recognition of and respect for the right of employers and workers to
associate freely and for their organizations to be able to represent their interests
effectively. In a very real sense, therefore, respect for the right to organize can be seen to
be an essential precondition of an effective occupational safety and health strategy at
both the national and international level and at the workplace. That being the case, it is
necessary and appropriate to look more closely at ILO standards relating to freedom of
association, bearing in mind their application in the context of the prevention of work-
related injury and disease and the compensation and rehabilitation of those who have
incurred such injury or disease. Freedom of association standards require that there be
proper recognition in law and practice of the right of workers and employers to form and
to join the organizations of their choice and of the right of those organizations, once
established, to formulate and to implement freely their programmes.

Rights of association and representation also underpin tripartite (governments,

employers and workers) cooperation in the field of occupational health and safety. Such
cooperation is promoted in the context of ILO standard-setting, for example, by:

enjoining governments to consult with representative organizations of employers

and workers in relation to the formulation and implementation of policy on
occupational health and safety at the national or regional level (e.g., Asbestos
Convention, 1986 (No. 162), Article 4 and Occupational Safety and Health
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 Convention, 1981 (No. 155), Articles 1 and 8)
encouraging joint consultation and cooperation on occupational safety and health
matters at the level of the workplace (e.g., Prevention of Major Industrial Accidents
Convention, 1993 (No. 174), Article 9(f) and (g))
requiring the joint participation of employers and workers in the formulation and
implementation of occupational safety and health policy in the workplace (see
especially Occupational Safety and Health Convention, 1981 (No. 155), Articles 19
and 20 and Occupational Safety and Health Recommendation, 1981 (No. 164), para
12).

ILO and Rights of Association and Representation

The “right of association for all lawful purposes by the employed as well as by the
employers” was one of the methods and principles set out in Article 41 of the original
Constitution of the ILO. This principle now finds express recognition in the Preamble to
the Constitution as one of the essential preconditions of the establishment of social
justice, which is itself seen as the essential precondition of universal and lasting peace.
Together with the principle of tripartism, it is also accorded express recognition in Article
I of the Declaration of Philadelphia, which was appended to the Constitution in 1946. This
Constitutional endorsement of the importance of respect for the principles of freedom of
association helps provide one of the juridical bases for the capacity of the Fact-Finding
and Conciliation Commission on Freedom of Association and the Governing Body’s
Committee on Freedom of Association to inquire into alleged breaches of the principles
of freedom of association.

As early as 1921 the International Labour Conference adopted the Right of Association
(Agriculture) Convention (No. 11), which requires ratifying States to “secure to all those
engaged in agriculture the same rights of association and combination as to industrial
workers”. It does not, however, say anything about the rights which are to be accorded to
the industrial workers with whom those engaged in agriculture are to enjoy parity!
Attempts to adopt a more general instrument dealing with freedom of association in the
1920s foundered upon the rocks of employer and government insistence that the right to
form and join trade unions must be accompanied by a correlative right not to join. The
matter was re-opened in the period immediately after the Second World War. This duly
resulted in the adoption of the Right of Association (Non-Metropolitan Territories)
Convention, 1947 (No. 84), the Freedom of Association and Protection of the Right to
Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining
Convention, 1949 (No. 98).

Conventions Nos. 87 and 98 are among the most important and the most widely ratified
of all ILO Conventions: as of 31 December 1996, Convention No. 87 had attracted 119
ratifications, while No. 98 had attracted 133. Between them they embody what can
properly be regarded as the four key elements in the notion of freedom of association.
They are regarded as the benchmark for the international protection of freedom of
association for trade union purposes, as reflected, for example, in Article 8 of the
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International Covenant on Economic, Social and Cultural Rights and Article 22 of the
International Covenant on Civil and Political Rights. Within the ILO structure, they form
the basis for the principles of freedom of association as developed and applied by the
Governing Body’s Committee on Freedom of Association and the Fact-Finding and
Conciliation Commission on Freedom of Association, even though in technical terms
those bodies derive their jurisdiction from the Constitution of the Organization rather
than the Conventions. They also constitute a major focus for the deliberations of the
Committee of Experts on the Application of Conventions and Recommendations and of
the Conference Committee on the Application of Conventions and Recommendations.

Despite the pivotal role of Conventions Nos. 87 and 98, it should be appreciated that they
are by no means the only formal standard-setting instruments which have been adopted
under the auspices of the ILO in the field of freedom of association. On the contrary,
since 1970 the Conference has adopted further four Conventions and four
Recommendations dealing in greater detail with various aspects of the principles of
freedom of association, or with their application in certain specific contexts:

the Workers’ Representatives Convention (No. 135) and Recommendation (No.

143), 1971
the Rural Workers’ Organizations Convention (No. 141) and Recommendation (No.
149), 1975
the Labour Relations (Public Service) Convention (No. 151) and Recommendation
(No. 158), 1978
the Collective Bargaining Convention (No. 154) and Recommendation (No. 163),
1981

Principles of Freedom of Association

The core elements

The core elements of the principles of freedom of association as embodied in

Conventions Nos. 87 and 98 are:

that “workers and employers, without distinction whatsoever, shall have the right to
establish and, subject only to the rules of the organization concerned, to join
organizations of their own choosing without previous authorization” (Article 2 of
Convention No. 87)
that organizations of employers and workers, once established, should have the
right “to draw up their constitutions and rules, to elect their representatives in full
freedom, to organize their administration and activities and to formulate their
programmes” (Article 3(1) of Convention No. 87). Furthermore, the public
authorities must “refrain from any interference which would restrict this right or
impede the lawful exercise thereof” (Article 3(2))
that workers are to enjoy “adequate protection against acts of anti-union
discrimination in respect of their employment” (Article 1(1) of Convention No. 98)
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 that “measures appropriate to national conditions shall be taken, where necessary,
to encourage and to promote the full development and utilization of machinery for
voluntary negotiation between employers and employers’ organizations and
workers’ organizations, with a view to the regulation of terms and conditions of
employment by means of collective agreements” (Article 4 of Convention No. 98)

All of the guarantees provided by Convention No. 87 are subject to the proviso set out in
Article 8(1): “in exercising the rights provided for in this Convention workers and
employers and their respective organizations... shall respect the law of the land”. This in
turn is subject to the further proviso that the “law of the land shall not be such as to
impair, nor shall it be applied so as to impair, the guarantees provided for in this
Convention.”

It should also be noted that by virtue of Article 9(1) of Convention No. 87 it is permissible,
but not necessary, to qualify the application of the guarantees set out in that Convention
to members of the police and of the armed forces. Article 5(1) of Convention No. 98 is to
the same effect, while Article 6 of that instrument stipulates that the Convention “does
not deal with the position of public servants engaged in the administration of the State,
nor shall it be construed as prejudicing their rights or status in any way.”

The right to join

The right of workers and employers to form and to join the organizations of their choice
is the pivot of all of the other guarantees provided by Conventions Nos. 87 and 98 and
by the principles of freedom of association. It is subject only to the qualification set out in
Article 9(1) of the Convention. This means that it is not permissible to deny any group of
workers other than members of the police or the armed forces the right to form or join
the trade unions of their choice. It follows that denial or restriction of the right of public
servants, agricultural workers, school teachers and so on to form or join the
organizations of their choice would not be consistent with the requirements of Article 2.

It is, however, permissible for the rules of a trade union or an employer organization to
restrict the categories of workers or employers who may join the organization. The point
is that any such restriction must be the result of the free choice of the members of the
organization – it must not be imposed from outside.

The right to associate set out in Article 2 is not accompanied by any correlative right not
to associate. It will be recalled that earlier attempts to adopt a general freedom of
association convention failed because of the insistence by employer and some
government delegates that the positive right to associate must carry with it a negative
right not to associate. This issue was again raised in the context of the debates on
Conventions Nos. 87 and 98. However on this occasion a compromise was effected
whereby the Conference adopted a resolution to the effect that the extent to which trade
union security devices (such as the “closed” or “agency” shop and check-off arrangements
for trade union dues) were permissible or otherwise was a matter to be determined by
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national law and practice. In other words, the Conventions are considered neither to
condone nor to condemn the closed shop and other forms of union security device,
although such measures are not regarded as acceptable if they are imposed by law
rather than adopted by agreement of the parties (ILO 1994b; ILO 1995a).

Perhaps the most difficult issue which has arisen in the context of Article 2 relates to the
extent to which it can be said to endorse the notion of trade union pluralism. In other
words, is it consistent with Article 2 for the law to limit, directly or indirectly, the right of
workers (or employers) to form or join the organization of their choice through the
application of administrative or legislative criteria?

There are two sets of competing interests in this context. On the one hand, Article 2 is
clearly meant to protect the right of workers and employers to choose the organization
to which they wish to belong and to choose not to belong to organizations with which
they are out of sympathy on political, denominational or other grounds. On the other
hand, governments (and indeed trade unions) may argue that the excessive proliferation
of trade unions and employer organizations which may be an incident of unrestricted
freedom of choice is not conducive to the development of free and effective
organizations or the establishment and maintenance of orderly industrial relations
processes. This was an issue of particular difficulty in the Cold War era, when
governments often sought to restrict the range of unions to which workers could belong
on ideological grounds. It remains a highly sensitive issue in many developing countries
where governments, for good reason or ill, wish to prevent what they see as the
excessive proliferation of trade unions by placing restrictions on the number and/or size
of unions which can operate in a given workplace or sector of the economy. The ILO’s
supervisory bodies have tended to adopt a fairly restrictive approach to this issue,
permitting trade union monopolies where they are the result of the free choice of the
workers in the country concerned and permitting the adoption of “reasonable”
registration criteria, but taking exception to legally imposed monopolies and
“unreasonable” registration criteria. In doing so, they have attracted considerable
criticism, especially from governments in developing countries which accuse them of
adopting a Eurocentric approach to the application of the Convention – the point being
that the characteristically European concern with the rights of the individual is said to be
inconsistent with the collectivist traditions of many non-European cultures.

Organizational autonomy and the right to strike

If Article 2 of Convention No. 87 protects the fundamental right of employers and

workers to form and to join the organization of their choice, then Article 3 can be seen to
provide its logical corollary by protecting the organizational autonomy of organizations
once established.

As the wording of Article 3(1) clearly indicates, this would include the drafting, adoption
and implementation of the constitutions and rules of organizations and the conduct of
elections. However, the supervisory bodies have accepted that it is permissible for the
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public authorities to impose minimum conditions upon the content or administration of
rules for the purpose of “ensuring a sound administration and preventing legal
complications arising as a result of constitutions and rules being drawn up in insufficient
detail” (ILO 1994b). However, if such conditions are excessively detailed or onerous in
application then they are likely to be adjudged to be inconsistent with the requirements
of Article 3.

Over the years the supervisory bodies have consistently taken the view that “the right to
strike is an intrinsic corollary of the right to organize protected by Convention No. 87”
(ILO 1994b):

The Committee [of Experts] considers that the right to strike is one of the essential
means available to workers and their organizations for the protection of their economic
and social interests. These interests not only have to do with obtaining better working
conditions and pursuing collective demands of an occupational nature, but also with
seeking solutions to economic and social policy questions and to labour problems of any
kind which are of direct concern to the workers.

This is one of the most controversial aspects of the entire jurisprudence relating to
freedom of association and in recent years in particular it has come in for vigorous
criticism from employer and government members of the Conference Committee on the
Application of Conventions and Recommendations. (See, for example, International
Labour Conference, 80th Session (1993), Record of Proceedings, 25/10-12 and 25/58-64
and International Labour Conference, 81st Session (1994), Record of Proceedings, 25/92-
94 and 25/179-180.) It is, however, a firmly entrenched feature of the jurisprudence on
freedom of association. It finds clear recognition in Article 8(1) (d) of the International
Covenant on Economic, Social and Cultural Rights and was endorsed by the Committee
of Experts in its 1994 General Survey on Freedom of Association and Collective
Bargaining (ILO 1994b).

It is important to appreciate, however, that the right to strike as recognized by the

supervisory bodies is not an unqualified one. In the first place, it does not extend to
those groups of workers in relation to whom it is permissible to attenuate the
guarantees set out in Convention No. 87, namely members of the police and armed
forces. Furthermore, it has also been determined that the right to strike may legitimately
be denied to “public servants acting as agents of the public authority” and to workers
engaged in essential services in the sense of “services whose interruption would
endanger the life, personal safety or health of the whole or part of the population.”
However, any restrictions upon the right to strike of workers in these latter categories
must be offset by compensatory guarantees, such as “conciliation and mediation
procedures leading, in the event of a deadlock, to arbitration machinery seen to be
reliable by the parties concerned. It is essential that the latter be able to participate in
determining and implementing the procedure, which should furthermore provide
sufficient guarantees of impartiality and rapidity: arbitration awards should be binding
on both parties and once issued should be implemented rapidly and completely” (ILO
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1994b).

It is also permissible to impose temporary restrictions upon the right to strike in times of
“acute national emergency”. More generally, it is permissible to impose preconditions
such as balloting requirements, exhaustion of conciliation procedures and so on, upon
the exercise of the right to strike. However, all such restrictions must “be reasonable
and... not such as to place a substantial limitation on the means of action open to trade
union organizations”.

The right to strike is often described as the weapon of last resort in collective bargaining.
If Article 3 is interpreted so as to protect the weapon of last resort, it seems reasonable
to suppose that it must also protect the process of collective bargaining itself. The
supervisory bodies have indeed taken this view on a number of occasions, but in general
they have preferred to base their jurisprudence on collective bargaining upon Article 4 of
Convention No. 98. (For more detailed discussion of the ILO jurisprudence on the right to
strike, see Hodges-Aeberhard and Odero de Dios 1987; Ben-Israel 1988).

The autonomy of organizations of employers and workers is also addressed in Articles 4

to 7 of Convention No. 87 and in Article 2 of Convention No. 98. Article 4 provides that
such organizations must not be “liable to be dissolved or suspended by administrative
authority”. This does not mean that trade unions or employers’ organizations cannot be
deregistered or dissolved where they have, for example, engaged in gross industrial
misconduct or have not been run in accordance with their rules. But it does mean that
any such sanction must be imposed through a duly constituted court or other
appropriate body, rather than by administrative diktat.

Article 5 protects the rights of organizations to form and join federations and
confederations and also the right of organizations, federations and confederations to
affiliate with international organizations of employers and workers. Furthermore,
according to Article 6, the guarantees set out in Articles 2, 3 and 4 apply to federations
and confederations in the same way as to first level organizations, while Article 7
stipulates that the acquisition of legal personality by organizations of employers or
workers must not be made subject to “conditions of such a character as to restrict the
application of the provisions of Articles 2, 3 and 4.”

Finally, Article 2(1) of Convention No. 98 requires that organizations of employers and
workers are to enjoy “adequate protection against acts of interference by each other or
each other’s agents or members in their establishment, functioning or administration”. In
practical terms, it seems somewhat unlikely that trade unions would or could effectively
interfere with the internal functioning of employer organizations. It is quite conceivable,
however, that in certain circumstances employers or their organizations would seek to
interfere with the internal affairs of workers’ organizations – for example, by providing
some or all of their funds. This possibility finds express recognition in Article 2(2):

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In particular, acts which are designed to promote the establishment of workers’
organizations under the domination of employers or employers’ organizations by
financial or other means, with the object of placing such organizations under the control
of employers or employers’ organizations, shall be deemed to constitute acts of
interference within the meaning of this Article.

Protection against victimization

For the guarantees set out in Conventions Nos. 87 and 98 to be meaningful in practice, it
is clearly necessary that individuals who exercise their right to form or join organizations
of workers be protected against victimization on account of having done so. This logic
finds recognition in Article 1(1) of Convention No. 98, which, as indicated, requires that
“workers shall enjoy adequate protection against acts of anti-union discrimination in
respect of their employment.” Article 1(2) takes the matter further:

Such protection shall apply more particularly in respect of acts calculated to:

(a) make the employment of a worker subject to the condition that he shall not join a
union or shall relinquish trade union membership;

(b) cause the dismissal of or otherwise prejudice a worker by reason of union

membership or because of participation in union activities outside working hours or,
with the consent of the employer, within working hours.

Anti-union discrimination for these purposes would include refusal to employ, dismissal
and other measures such as “transfer, relocation, demotion, deprivation or restrictions of
all kinds (remuneration, social benefits, vocational training)” which may cause serious
prejudice to the worker concerned (see also Termination of Employment Convention,
1982 (No. 158), Article 5(a), (b) and (c), as well as ILO 1994b, para.212).

Not only must there be comprehensive protection against anti-union discrimination as

defined, but by virtue of Article 3 of Convention No. 98, there must also be effective
means of enforcing those protections:

Legal standards are inadequate if they are not coupled with effective and expeditious
procedures and with sufficiently dissuasive penal sanctions to ensure their application ...
The onus placed on the employer to prove the alleged anti-union discriminatory
measures are connected with questions other than trade union matters, or
presumptions established in the worker’s favour are additional means of ensuring
effective protection of the right to organize guaranteed by the Convention. Legislation
which allows the employer in practice to terminate the employment of a worker on
condition that he pay the compensation provided for by law in any case of unjustified
dismissal... is inadequate under the terms of Article 1 of the Convention. Legislation
should also provide effective means for implementing means of compensation, with the
reinstatement of the dismissed worker, including retroactive compensation, being the
most appropriate remedy in such cases of anti-union discrimination (ILO 1994b).
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Collective bargaining

The guarantee set out in Article 4 of Convention No. 98 has been interpreted so as to
protect both the right to engage in collective bargaining and the autonomy of the bargaining
process. In other words it is not consistent with Article 4 for employers and workers to be
denied the right to engage in collective bargaining if they wish to do so—bearing in mind
that it is not inconsistent with the Convention to deny these rights to members of the
police or the armed forces and that “the Convention does not deal with the position of
public servants engaged in the administration of the State”. Not only must the parties be
free to engage in collective bargaining if they so choose, but they must be permitted to
reach their own agreement on their own terms without interference by the public
authorities – subject to certain qualifications for “compelling reasons of national
economic interest” (ILO 1994) and to reasonable requirements as to form, registration
and so on.

Article 4 has not, however, been interpreted as protecting the right to recognition for
purposes of collective bargaining. The supervisory bodies have repeatedly emphasized
the desirability of such recognition, but have not been prepared to take the further step
of determining that refusal to recognize and/or the absence of a mechanism whereby
employers can be obliged to recognize the unions to which their employees belong
constitutes a breach of Article 4 (ILO 1994b; ILO 1995a). They have justified this
interpretation on the basis that compulsory recognition would deprive collective
bargaining of its voluntary character as envisaged by Article 4 (ILO 1995a). As against that,
it might be argued that the ostensible right to engage in collective bargaining must
inevitably be compromised if employers are to be free to refuse to engage in such
bargaining notwithstanding that they have the right so to bargain if they wish.
Furthermore, permitting employers to refuse to recognize the unions to which their
employees belong seems to sit somewhat uneasily with the duty to “promote” collective
bargaining, which appears to be the principal purpose of Article 4 (Creighton 1994).

Application of Freedom of Association Principles in the Context of Occupational

Safety and Health

It was suggested earlier that ILO standards relating to occupational safety and health
endorse the concept of bipartite or tripartite involvement in three principal contexts: (1)
the formulation and implementation of policy at national and regional level; (2)
consultation between employers and workers at the level of the workplace; and (3) joint
participation between employers and workers in the formulation and implementation of
policy at the level of the workplace. It should be clear from the foregoing that the
effective involvement of employers and (especially) workers in all three contexts is
crucially dependent upon adequate recognition of their rights of association and
representation.

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Respect for the right to form and to join organizations is clearly an essential precondition
of all three forms of joint involvement. Consultation and participation at the
governmental level is feasible only where there are strong and effective organizations
which can be seen to be representative of the interests of their constituencies. This is
necessary both for ease of communication and so that government will feel constrained
to take seriously the views expressed by the representatives of employers and workers. A
fortiori, consultation and participation at the level of the workplace is a realistic
proposition only if workers have the capacity to form and to join organizations which can
represent their interests in discussions with employers and their organizations, provide
back-up resources for worker representatives, assist in dealings with public inspectorates
and so on. Theoretically, worker representatives could operate at the level of the
workplace without having any necessary connection with a more broadly based
organization, but the reality of power relations in most workplaces is such that they are
unlikely to be able to do so in an effective manner without the support of an industrial
organization. At the very least, workers must have the right to have their interests
represented in this manner if they so choose.

The organizational autonomy of employer and worker organizations is also an essential

precondition of meaningful participation at all levels. It is necessary, for example, that
worker organizations should have the right to formulate and to implement their policies
on occupational safety and health issues without outside interference, for purposes of
consultation with government in relation to: (1) issues such as the legal regulation of
hazardous processes or substances; or (2) the formulation of legislative policy relating to
compensation for work-related injury or the rehabilitation of injured workers. Such
autonomy is even more important at the level of the workplace, where worker
organizations need to develop and maintain a capacity to represent the interests of their
members in discussion with employers on occupational safety and health issues. This
might include having rights of access to workplaces for union officials and/or health and
safety specialists; invoking the assistance of the public authorities in relation to
hazardous situations; and in certain circumstances organizing industrial action in order
to protect the health and safety of their members.

To be effective, organizational autonomy also requires that trade union members and
officials be accorded adequate protection against victimization on grounds of their trade
union membership or activities, or on account of their having initiated or participated in
legal proceedings relating to occupational safety and health matters. In other words, the
guarantees against discrimination set out in Article 1 of Convention No. 98 are as
relevant to trade union activity relating to occupational safety and health as to other
forms of union activity such as collective bargaining, membership recruitment and so on.

The right to engage in autonomous collective bargaining is also a crucial element in

effective worker participation in relation to occupational safety and health. The
guarantees set out in Article 4 of Convention No. 98 are important in this context.
However, as indicated, those guarantees do not extend to the right to be recognized for
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purposes of such bargaining. On the other hand provisions such as Article 19 of the
Occupational Safety and Health Convention, 1981 (No. 155) may be seen as coming very
close to requiring trade union recognition in the context of occupational safety and
health:

There shall be arrangements at the level of the undertaking under which:

representatives of workers in an undertaking are given adequate information on

measures taken by the employer to secure occupational safety and health and may
consult their representative organizations about such information provided they do
not disclose commercial secrets;
workers and their representatives in the undertaking are given appropriate
training in occupational safety and health;
workers or their representatives and, as the case may be, their representative
organizations in an undertaking, in accordance with national law and practice, are
enabled to inquire into, and are consulted by the employer on, all aspects of
occupational safety and health associated with their work...

In practical terms it would be very difficult to give effect to these provisions without
according some kind of formal recognition to the role of workers’ organizations. This in
turn serves to emphasize yet again the importance of adequate recognition of rights of
association and representation as a precondition of the development and
implementation of effective occupational safety and health strategies at both the
national and enterprise level.

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Collective bargaining is the process through which workers negotiate, as a group, with
their employer; this can occur at various levels (enterprise, industry/sector, national).
Traditionally, the subjects of the negotiation are wages, benefits, working conditions and
fair treatment. However, collective bargaining can also address issues that do not directly
affect the workers employed in the enterprise, such as increased old-age pensions for
workers already retired. Less often, collective bargaining addresses issues that reach well
beyond the workplace, such as protection of the external environment.

In a very small enterprise, it is possible for all the workers to negotiate as a body with
their employer. This kind of informal collective bargaining has existed for centuries.
Today, however, most collective bargaining is carried out by workers’ organizations, or
unions.

The definition used in the ILO Convention concerning the promotion of collective
bargaining, 1981 (No.154), Article 2, is broad:

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...the term... extends to all negotiations which take place between an employer, a group
of employers or one or more employers’ organizations, on the one hand, and one or
more workers’ organizations, on the other, for –

(a) determining working conditions and terms of employment; and/or

(b) regulating relations between employers and workers; and/or

(c) regulating relations between employers or their organizations and a workers’

organization or workers’ organizations.

Collective bargaining is an important tool for raising living standards and improving
working conditions. Even though safety and health is addressed in the national law of
almost all countries, collective bargaining often provides the mechanism through which
the law is implemented in the workplace. For example, the law may mandate joint safety
and health committees or works councils, but leave the details to be negotiated between
the employer and the workers’ organization.

Unfortunately, collective bargaining is under attack by authoritarian employers and

repressive governments, both in developed and developing countries. It rarely exists in
the informal sector or in small, traditional enterprises. As a result, the majority of the
world’s workers do not yet enjoy the benefits of effective collective bargaining under a
framework of worker rights guaranteed by law.

History of Union Action for Safety and Health

There is a long history of workers’ organizations taking collective action for safety and
health. In 1775, Percival Pott, an English surgeon, made the first known report of
occupational cancer – skin cancer in London chimney sweeps (Lehman 1977). Two years
later the Danish Chimney Sweepers Guild, in what was the first known response by a
workers’ organization to the threat of occupational cancer, ordered that apprentices be
given the means for a daily bath.

The Labour Agreement between the Bethlehem Steel Corporation and the United
Steelworkers of America

The agreement between Bethlehem Steel and the United Steelworkers of America is
typical of company-wide agreements in large unionized manufacturing enterprises in the
United States. Steel industry labour agreements have contained safety and health
articles for more than 50 years. Many provisions negotiated in the past gave workers and
the union rights that were later guaranteed by law. Despite this redundancy, the
provisions still appear in the contract as a hedge against changes in the law, and to allow
the union the option of taking violations to impartial arbitration rather than the courts.

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The Bethlehem agreement runs from 1 August 1993 to 1 August 1999. It covers 17,000
workers in six plants. The full agreement is 275 pages long; 17 pages are devoted to
safety and health.

Section 1 of the safety and health article pledges the company and the union to
cooperate in the objective of eliminating accidents and health hazards. It obligates the
company to provide safe and healthful workplaces, obey federal and state law, provide
employees with the necessary protective equipment free of charge, provide chemical
safety information to the union and inform workers of the hazards and controls for toxic
substances. It grants the union’s central safety and health department the right to any
information in the company’s possession that is “relevant and material” to an
understanding of potential hazards. It requires the company to make air sampling tests
and environmental investigations at the request of the union co-chairperson of the
plant’s safety and health committee.

Section 2 sets up joint union-management safety and health committees at the plant and
national levels, prescribes the rules under which they operate, mandates training for
committee members, gives members of the committee access to all parts of the plant to
facilitate the committee’s work and specifies the applicable rates of pay for committee
members on committee business. The section also specifies how disputes over
protective equipment are to be resolved, requires the company to notify the union of all
potentially disabling accidents, sets up a system of joint accident investigation, requires
the company to gather and supply to the union certain safety and health statistics, and
establishes an extensive safety and health training programme for all employees.

Section 3 gives workers the right to remove themselves from work involving hazards
beyond those “inherent in the operation” and provides an arbitration mechanism
through which disputes over such work refusals can be resolved. Under this provision, a
worker cannot be disciplined for acting in good faith and on the basis of objective
evidence, even if a subsequent investigation shows that the hazard did not in fact exist.

Section 4 specifies that the committee’s role is advisory, and that committee members
and officers of the union acting in their official capacity are not to be held liable for
injuries or illnesses.

Section 5 states that alcoholism and drug abuse are treatable conditions, and sets up a
programme of rehabilitation.

Section 6 establishes an extensive programme for controlling carbon monoxide, a

serious hazard in primary steel production.

Section 7 provides workers with vouchers for the purchase of safety shoes.

Section 8 requires the company to keep individual medical records confidential except in
certain limited circumstances. However, workers have access to their own medical
records, and may release them to the union or to a personal physician. In addition,
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physicians for the company are required to notify workers of adverse medical findings.

Section 9 establishes a medical surveillance programme.

Section 10 establishes a programme for investigating and controlling the hazards of

video display terminals.

Section 11 establishes full-time safety representatives in each plant, chosen by the union
but paid by the company.

In addition, an appendix to the agreement commits the company and the union to review
each plant’s safety programme for mobile equipment operating on rails. (Fixed rail
equipment is the leading cause of death by traumatic injury in the American steel
industry.)

However, safety and health seldom was an explicit issue in early labour struggles.
Workers in dangerous jobs were overwhelmed by more pressing problems, such as low
wages, crushing hours of work and the arbitrary power of factory and mine owners.
Safety hazards were obvious in the daily toll of injury and death, but occupational health
was not well understood. Workers’ organizations were weak and under constant attack
by owners and governments. Simple survival was the primary goal of workers’
organizations. As a result, the grievances of nineteenth-century workers rarely
manifested themselves in campaigns for safer conditions (Corn 1978).

However, safety and health sometimes joined other issues in early labour struggles. In
the late 1820s, workers in the textile industry in the United States began to agitate for
shorter working hours. Many of the workers were women, as were the leaders of such
rudimentary unions as the female labour reform associations of New England. The
proposed 10-hour day was seen mostly as an issue of general welfare. But in testimony
before the Massachusetts legislature, workers also decried the effects of 12- and 14-hour
days in badly ventilated mills, describing a “wasting sickness” they attributed to cotton
dust and bad ventilation, in what are now recognized as some of the first reports of
byssinosis. They had little success in winning recognition from the mill owners, or action
from the legislature (Foner 1977).

Other union actions dealt more with the effects of occupational hazards than with their
prevention. Many nineteenth-century unions adopted welfare programmes for their
members, including disability payments to the injured and benefits for survivors. US and
Canadian mining unions went one step further, establishing hospitals, clinics and even
cemeteries for their members (Derickson 1988). While unions attempted to negotiate
better conditions with employers, most agitation for safety and health in North America
was in mines aimed at state and provincial legislatures (Fox 1990).

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In Europe, the situation began to change around the turn of the century with the rise of
stronger workers’ organizations. In 1903, the German and French painters’ unions began
a campaign against the hazards of lead paint. The Factory Workers Union of Germany
had an active industrial hygiene programme by 1911, published education materials on
chemical hazards and began a campaign for safeguards against chromate-induced lung
cancer, ultimately leading to a change in the production method. Trade unions in the
United Kingdom represented their members in workers’ compensation cases and fought
for better laws and regulations. Their work showed the interplay between collective
bargaining for safety and health and the factory inspection system. In 1905, for example,
trade unions filed 268 complaints with the British factory inspectorate (Teleky 1948). As
early as 1942, the Swedish Employers’ Confederation and the Swedish Confederation of
Trade Unions reached a nationwide Working Environment Agreement regarding local
safety and health services. The agreement has been revised and extended several times;
in 1976 the original parties were joined by the Federation of Salaried Employees (Joint
Industrial Safety Council of Sweden 1988).

North America lagged behind. Formal corporate safety programmes were instituted by
some large employers around the turn of the century (for a description of such
programmes in the steel industry see Brody (1960), or the self-congratulatory Year Book
of the American Iron and Steel Institute for 1914 (AISI 1915)). The programmes were highly
paternalistic, relied more on discipline than education and often were based on the
premise that workers themselves were largely to blame for industrial accidents. Major
disasters such as New York’s 1911 Triangle Shirtwaist Fire, which killed 146 workers, led
to union campaigns for improvement and ultimately to improved fire safety laws.
However, safety and health as a widespread labour issue came only with the rise of
strong unions in the 1930s and 1940s. In 1942, for example, the founding Constitution of
the United Steelworkers of America required every local union to establish a safety and
health committee. By the mid-1950s, joint labour-management safety and health
committees had been established in most unionized mines and manufacturing plants
and in many other workplaces in the construction and service sector; most union
contracts included a section on safety and health.

Process of Collective Bargaining

It is common to think of collective bargaining as a formal process that occurs at regular

intervals and which results in a written agreement between the workers’ organization
and the employer or employers. This kind of bargaining presupposes a succession of
demands or proposals, counterproposals and extended deliberations. The process can
produce a variety of results: a collective bargaining contract, letters of understanding,
joint declarations or mutually agreed codes of practice.

However, collective bargaining can also be understood as a continuous process for

solving problems as they arise. This kind of collective bargaining occurs every time a shop
steward meets with an area supervisor to settle a dispute or grievance, every time a joint
safety and health committee meets to discuss problems in the plant, every time a joint
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union-management team considers a new company programme.

It is this flexibility of collective bargaining which helps ensure its continued viability. There
is, however, one precondition for formal or informal bargaining: for negotiations to be a
success, the representatives of both sides must have the authority to bargain and to
strike a deal that is meant to be honoured.

Collective bargaining is sometimes seen as a test of strength, in which a gain for one side
is a loss for the other. A wage increase, for example, is seen as a threat to profits. A no-
layoff agreement is seen as limiting management’s flexibility. If bargaining is seen as a
contest, it follows that the most important determinant of the final outcome is the
relative power of the parties. For the workers’ organization, this means the ability to halt
production through a strike, organize a boycott of the employer’s product or service or
bring some other form of pressure to bear, while maintaining the loyalty of the
organization’s members. For an employer, power means the ability to resist such
pressures, replace the striking workers in countries where this is permitted or hold out
until hardship forces workers back to the job under management’s conditions.

Of course, the vast majority of labour negotiations end successfully, without a work
stoppage. Nevertheless, it is the threat of one that leads both sides to seek a settlement.
This kind of negotiation is sometimes called positional bargaining, because it begins with
each side taking a position, after which both sides move by increments until a
compromise is reached, based on their relative strengths.

A second model of collective bargaining describes it as a mutual search for an optimum

solution (Fisher and Ury 1981). This kind of bargaining assumes that a proper agreement
can lead to gains for both parties. A wage increase, for example, can be offset by greater
productivity. A no-layoff agreement can encourage workers to improve efficiency, since
their jobs will not be threatened as a result. Such bargaining is sometimes called “mutual
gains” or “win-win” bargaining. What is most important is the ability of each side to
understand the interests of the other and to find solutions that maximize both.
Occupational safety and health is frequently seen as an ideal subject for mutual gains
bargaining, since both sides are interested in avoiding occupational accidents and
disease.

In practice, these models of bargaining are not mutually exclusive and both are
important. Skilled bargainers will always seek to understand their counterparts and
search for areas where both sides can benefit from a wise agreement. However, it is
unlikely that a party without power will accomplish its objectives. There will always
remain areas where the parties perceive their interests to be different. Good faith
negotiation works best when both sides fear the alternative.

Power is important even in negotiations over safety and health. An enterprise may be
less interested in reducing the accident rate if it can externalize the cost of the accidents.
If injured workers can be replaced easily and cheaply, without substantial compensation,
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management may be tempted to avoid expensive safety improvements. This is especially
true in the case of occupational diseases with long latency periods, where cost of
controls is paid when the controls are installed, while the benefits may not accrue for
many years. As a result, a workers’ organization is more likely to succeed if workers have
the power to stop production or to call a government inspector if the parties fail to
negotiate a solution.

Legal Framework

ILO Conventions on freedom of association, on protection of the rights to organize and

to engage in collective bargaining and the ILO Conventions and Recommendations on
occupational safety and health recognize the role of workers’ organizations. While these
instruments provide an international framework, workers’ rights can be assured only
through national law and regulation.

Of course, the legal basis for collective bargaining, the level at which bargaining occurs
and even the process of bargaining all vary by country. The legislation of most
industrialized countries includes a system for regulating collective bargaining. Even within
Europe, the degree of regulation can differ widely, from a minimal approach in Germany
to a much more developed one in France. The legal effect of a collective agreement also
varies. In most countries an agreement is legally enforceable; in the United Kingdom,
however, agreements are seen as informal, to be applied by virtue of the parties’ good
faith backed up by the threat of a work stoppage. It is expected that this variability within
Europe will diminish as a result of greater European unification.

The level of bargaining also varies. The United States, Japan and most Latin American
countries feature bargaining at the level of the individual enterprise, although unions
often attempt to negotiate “pattern” agreements with all the major employers in a given
sector. At the other extreme, Austria, Belgium and the Nordic countries tend to have
highly centralized bargaining in which most workplaces are subject to a framework
agreement negotiated between national federations representing unions and employers.
Sectoral agreements covering particular industries or occupations are common in some
countries such as Germany and France.

French-speaking African countries tend to follow the example of France and bargain by
industry. Some English-speaking developing countries also bargain by industry. In others,
multiple trade unions bargain on behalf of different groups of workers in a single
enterprise.

The level of bargaining partially determines the coverage of collective agreements. In

France and Germany, for example, collective agreements are usually extended to cover
everyone coming within the scope of the occupation or industry to which the agreement
applies. On the other hand, in the United States and other countries with enterprise-level
bargaining, collective agreements cover only those workplaces where the union has been
recognized as the bargaining agent.

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An even more important factor in determining the coverage of collective bargaining is
whether national law facilitates or impedes unionization and collective bargaining. For
example, public sector employees are not permitted to bargain collectively in some
countries. In others, public sector unions are growing rapidly. As a result of such factors,
the percentage of workers covered by collective agreements varies from a high of almost
90 per cent in Germany and the Nordic countries to under 10 per cent in many
developing countries.

The legal framework also affects how collective bargaining applies to occupational safety
and health. For example, the United States Occupational Safety and Health Act gives
workers’ organizations the right to information on dangerous chemicals and other
hazards in the plant, the right to accompany a workplace inspector and a limited right to
participate in legal cases brought by the Government against an employer for a violation
of standards.

Many countries go further. Most industrialized countries require most enterprises to

establish joint safety and health committees. The Canadian Province of Ontario requires
that certified safety and health representatives be chosen by the workers in most
workplaces and given a standard course of training at employer expense. The Swedish
Work Environment Act requires the appointment of safety delegates by the local trade
union organization. Swedish safety delegates have broad rights to information and
consultation. Most important, they have the power to suspend dangerous work pending
a review by the Swedish Labour Inspectorate.

These laws strengthen the collective bargaining process on issues of safety and health.
Mandatory joint safety committees provide a routine mechanism for negotiation.
Training gives union representatives the knowledge they need to participate effectively.
The right to suspend dangerous work helps keep both parties focused on eliminating the
source of danger.

Contract and Labour Law Enforcement

Of course, labour agreements are of limited value without an enforcement mechanism. A

strike is one method by which a workers’ organization can respond to an alleged
violation by the employer; conversely, the employer can engage in a lockout, denying
employment to members of the workers’ organization until the dispute is resolved.
However, most labour agreements in developed countries rely on less disruptive
methods of enforcement. In fact, many labour agreements bar strikes or lockouts during
the life of the agreement (no-strike clauses or peace obligations). Some restrict them to a
limited set of circumstances; for example, the contracts negotiated in the United States
between the United Automobile Workers and the major auto companies allow strikes
over unsafe working conditions, but not over wages or benefits during the term of the
agreement.

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A common enforcement mechanism in developed countries is a system of arbitration, in
which disputes are referred to an impartial referee chosen jointly by the employer and
the workers’ organization. In some cases, disputes may be resolved by the judicial
system, either in the regular courts or in special labour courts or boards. In the United
States, for example, a dispute over contract interpretation usually will go to arbitration.
However, if the losing side refuses to abide by the arbitrator’s decision, the winning side
can seek to have the decision enforced by the courts. A quasi-judicial body in the United
States, the National Labor Relations Board, hears complaints concerning unfair labour
practices, such as the failure of one side to bargain in good faith. In many other
countries, labour courts fulfil this role.

Collective Bargaining Today

Collective bargaining is a dynamic process in all industrial relations systems where it is

practised. The situation in Europe is changing rapidly. The Nordic countries are
characterized by comprehensive working environment agreements negotiated on a
national basis, integrated with highly developed national laws. Unionization is very high;
labour agreements and the law establish joint committees and worker safety
representatives in most workplaces. Collective bargaining mechanisms for safety and
health and unionization rates, are less extensive in other European countries. Member
States of the European Union face the task of harmonizing national laws under the
Single European Act and the Framework Directive on safety and health (Hecker 1993).
European trade unions are seeking to coordinate their efforts, primarily through the
European Trade Union Confederation. There are some signs that national bargaining
ultimately will be replaced or, more likely, supplemented by agreements at the European
level, although employer resistance to this is high. The first example of such Europe-wide
bargaining was over parental leave. In the area of safety and health, the GMB union in
the United Kingdom has proposed an ambitious Europe-wide Work Environment Fund,
based on similar funds in the Nordic Countries.

Central and Eastern Europe and the countries of the former Soviet Union, are changing
even more rapidly. Safety and health regulations were extensive under Communism, but
rarely enforced. Trade unions existed, but only under the control of the Communist
Party. At the enterprise level, unions functioned as workplace labour relations
departments, under the control of management, without any sort of bipartite
negotiation. Newly formed independent unions helped precipitate the fall of
Communism; sometimes their issues concerned working conditions or such basic
sanitary measures as the provision of soap in coal mine wash houses. Today, the old
unions are gone or are struggling to reconstitute themselves. The new independent
unions are attempting to change from political organizations confronting the
government, to collective bargaining organizations representing their members in the
workplace. Bad and often deteriorating working conditions will continue to be an
important issue.

The Japanese system of worker participation, continuous improvement and extensive

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training effectively promotes safety and health, but only where safety and health are
explicit goals of the enterprise. Most Japanese unions exist only at the enterprise level;
negotiations take place through a system of continuous joint consultation (Inohara 1990).
Joint safety and health committees are established by the Labour Safety and Sanitation
Law of 1972, as amended.

Labour agreements in the United States contain relatively extensive safety and health
articles for two reasons. First, safety and health is an important issue for North American
unions, as it is for workers’ organizations in all industrialized countries. However, safety
and health laws in the United States lack many of the provisions found in the laws of
other countries, forcing unions to bargain for rights and protections guaranteed
elsewhere by law. For example, joint union-management safety and health committees
are generally recognized as an important mechanism for day-to-day cooperation and
negotiation between workers and employers. However, there is no requirement in the
US Occupational Safety and Health Act for such committees. As a result, unions must
bargain for them. And since the rate of unionization is low in the United States, most
workers do not have access to joint committees. Many unions in the United States also
have negotiated contract clauses barring retaliation against workers who refuse to work
under abnormally hazardous conditions, since legal protections are weak and uncertain.

Canadian law varies from province to province, although it is generally stronger than in
the United States. For example, unions in Canada do not need to negotiate for the
existence of safety and health committees, although they may negotiate for larger ones,
with more powers. Safety and health committees are also required under Mexican law.

The situation in developing countries is mixed. Workers’ organizations in developing

countries like India, Brazil and Zimbabwe place a growing emphasis on safety and health
through agitation for improved laws and through collective bargaining. For example, the
Zimbabwe Congress of Trade Unions has fought to extend the national labour code,
including its safety and health provisions, to the country’s export processing zones (see
box). But trade unions are severely restricted or suppressed in many parts of the world
and the vast majority of workers in developing countries do not belong to any workers’
organization or benefit from collective bargaining.

Trade Union Action in Zimbabwe

The Zimbabwe Congress of Trade Unions (ZCTU), has launched a National Campaign for the
Rights of Injured Workers, which combines national level and shop floor action to seek
amended laws and improved collective agreements.

Zimbabwean law has since 1990 provided for safety committees, health and safety
representatives and health and safety supervisors at all workplaces. The Zimbabwe Congress
of Trade Unions has insisted that worker health and safety representatives must be elected by
workers. Its National Campaign covers these demands:

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 1. Safe work. This involves identification of workplace hazards through surveys and
accident investigation, as well as negotiating to improve conditions.
2. Worker and union participation in workers’ health issues. This includes the rights of
workers to elect their own health and safety representatives, to obtain information such
as safety data sheets and factory inspector’s reports, and jointly to investigate and
report accidents and injuries (as in Sweden).
3. Adequate compensation and care for injured workers. This extends to a review of
compensation levels.
4. Job security for injured workers. Trade union representatives have negotiated a right to
return to work and be assisted in placement.

For the ZCTU, a key step in accident prevention has been its training programme to increase
effective worker participation in health and safety at the shop floor level. The training for
worker representatives has been in carrying out walk-through surveys at workplaces and in
reporting on any hazards identified - first to workers and then to management for discussion.
Once in operation, union health and safety representatives have been involved in inspections
and in ensuring that injuries are reported. This is particularly important in sectors that would
otherwise be inaccessible, such as agriculture.

The ZCTU has also demanded an increase in penalties that may be imposed on employers
found to have infringed health and safety laws.

by Chapter Editor (excerpted from Loewenson 1992).

The Future of Collective Bargaining

Workers’ organizations and collective bargaining face difficult challenges in the years
ahead. Virtually all collective bargaining takes place at the enterprise, industry or national
level. In contrast, the economy is increasingly global. Apart from Europe, however,
workers’ organizations have yet to develop effective mechanisms for bargaining across
national boundaries. Such bargaining is a top priority for international labour
federations. It can best be promoted through stronger and more effective international
union structures, strong social clauses in world trade agreements and appropriate
international instruments, such as those of the International Labour Organization. For
example, the ILO Tripartite Declaration on Multinational Enterprises refers specifically to
both collective bargaining and occupational safety and health. Many unions are
developing direct links with their counterparts in other countries in order to coordinate
their bargaining and provide mutual assistance. One example is the relationship
between mining unions in the United States and Colombia (Zinn 1995).

Rapid changes in technology and work organization can overwhelm existing labour
agreements. Workers’ organizations are attempting to develop a form of continuous
bargaining to respond to workplace change. Workers’ organizations have long recognized
the links between the working environment and the external environment. Some unions
have begun to address issues of the external environment in their collective bargaining
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agreements and in their membership education programmes. An example is the Model
Environment Agreement proposed by the Manufacturing-Science-Finance (MSF) Union in
the United Kingdom.

A fundamental purpose of trade unions is to take human rights and human welfare out
of economic competition – to prevent an enterprise or a nation from seeking a
competitive advantage by impoverishing its workers and forcing them to work under
dangerous conditions. Collective bargaining is vital to safety and health. However,
workers’ organizations are essential to collective bargaining and workers’ organizations
are under attack in many developed and developing countries. The survival and growth
of workers’ organizations will largely determine whether most workers enjoy rising living
standards and improved working conditions, or face a deteriorating cycle of poverty,
injury and disease.

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Cooperation between workers, employers and government in the elaboration and
implementation of occupational health and safety measures at the national or regional
level is common in a significant number of countries. It is not unusual for interest groups
and technical experts also to be involved in this process. Such cooperation is highly
developed and has been institutionalized in a number of countries by the establishment
of consultative and collaborative organizations. These organizations have normally been
widely accepted by all labour market participants as there appears to be a general
consensus that health and safety at work is a subject of common concern where
dialogue between the social partners, the government and other interested parties is
extremely important.

The institutions which have been established to facilitate this cooperation vary
significantly in form. One approach is to establish consultative organizations either on an
ad hoc or a permanent basis to give advice to the government on questions of
occupational safety and health policy. The government is normally not obligated to follow
the recommendations offered, but in practice they are difficult to ignore and are
frequently taken into consideration in the elaboration of government policy.

The other approach is to have the social partners and other interested parties actively
cooperate with the government in public institutions which have been established to
implement occupational safety and health policy. Participation by non-governmental
actors in public institutions with responsibility for health and safety questions at work is
normally undertaken through the representation of employers’ and workers’
organizations and, in some cases, other parties, on the board of directors of the public
institution concerned, although sometimes participation extends to the management
and even the project level. In most cases these persons are nominated by the
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government on recommendation of the parties to be represented, although in some
cases workers’ and employers’ organizations have the right to directly nominate their
representatives to these collaborative institutions. Bodies at the national level (or
regional, state or provincial level) are normally complemented by structures or
arrangements at the industry, enterprise and plant level.

Advice on Policy and Standard Setting

Probably the most common form of cooperation involves the establishment of

consultative organizations to give advice on policy and standard setting. Examples of this
can vary between a modest approach, which involves the expenditure of relatively few
resources, to more institutionalized approaches, which involve more significant amounts
of resources. The United States is an example of a country where a more limited
approach has been adopted. At the federal level, the National Advisory Committee on
Occupational Safety and Health, established pursuant to the Occupational Safety and
Health Act of 1970, is the principal permanent advisory committee. This committee,
according to the Act, is to be composed of representatives of management, labor,
occupational safety and health professionals and the public, with a member of the public
acting as the chairperson. The committee makes recommendations to the Secretary of
Labor and the Secretary of Health and Human Services. In practice, however, this
committee has not met frequently. The members of the committee are not compensated
and the Secretary of Labor has provided from its budget an executive secretary and
other support services as needed. The costs of maintaining this committee in existence
are therefore very low, although budgetary constraints now call even this support into
question. A permanent committee of a similar character, the Federal Advisory Council on
Occupational Safety and Health, was established in July 1971 pursuant to Executive
Order 11612 to advise the Secretary of Labour on matters relating to the safety and
health of federal workers.

The Occupational Safety and Health Act of 1970 also provides for the establishment of ad
hoc advisory committees to assist in standard-setting functions. These advisory
committees are appointed by the Secretary of Labor and are to consist of no more than
15 members, including one or more persons who are designated by the Secretary of
Health and Human Services. Each standard-setting committee is to include an equal
number of representatives of workers’ and employers’ organizations. The Secretary of
Labor may also appoint one or more representatives of state health and safety agencies,
as well as technical experts who could be, for example, representatives of professional
organizations of technicians or professionals specializing in occupational health or safety,
or of nationally recognized standards-producing organizations. Extensive use has been
made of such standard-setting committees, which are sometimes in existence several
years to accomplish the work that has been assigned to them. Meetings can be frequent,
depending on the nature of the tasks to be performed. Although committee members
are normally not paid, they are normally reimbursed for reasonable travel expenses and
support services for the activity of these committees have been paid for by the
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Department of Labor as well in the past. Committees have been constituted to
recommend standards with respect to agriculture, asbestos dust, carcinogens, coke oven
emissions, cutaneous hazards, hazardous materials labelling, heat stress, marine
terminal facilities, noise, longshoring safety and health, shipyard employment standards
and steel erection rules, among other things.

Other ad hoc advisory committees of a similar character have been established pursuant
to similar legislation which falls under the authority of the Secretary of Labor. For
example, a number of standard-setting committees have been established pursuant to
the Federal Mine Safety and Health Act of 1977. The costs involved in the establishment
of such standard-setting committees, however, are relatively modest and are
characterized by relatively low administrative costs, little infrastructure, voluntary
participation by outside parties without compensation and dissolution of the committees
upon completion of their tasks.

More elaborate institutionalized forms of consultation are, however, found in other

countries. In the Netherlands, for example, the pre-eminent organization is the Working
Environment Council, which was established pursuant to the Working Environmental
Council Act 1990. The Council gives its views to the Ministry of Social Affairs and
Employment, either when asked or on its own initiative, comments on proposed new acts
and decrees and can bring forward its own proposals for new policy or legislation. The
Council also gives its views about the advisability of making grants-in-aid for research on
working environment issues, about the issuance of exemptions, the formulation of
government guidance and the policy of the Labour Inspectorate. The Council is
comprised of eight representatives from central employers’ organizations, eight from
central workers’ organizations and seven from governmental bodies. Only the
representatives of workers’ and employers’ organizations have the right to vote,
however, and the chairperson of the Council is independent. The Council meets every
month. In addition, the Council has approximately 15 different working committees for
specific issues and, in addition, ad hoc working groups are established for detailed
subjects when the subject matter justifies it. Within the working committees and working
groups, external experts play an important role and these working organizations prepare
reports and papers which are discussed at Council meetings and often form the basis for
positions which are subsequently taken. The recommendations of the Council are
comprehensive and are published. Although normally the parties try to achieve a
consensus position, separate views can be expressed to the Minister of Social Affairs and
Employment when employers’ and workers’ representatives cannot find common
ground. More than 100 persons are involved in the work of the Council and its subsidiary
organizations and thus it is supported by significant financial and administrative
resources.

Other less prominent consultative organizations exist in the Netherlands for more
specific occupational safety and health issues. These include the Foundation for the
Working Environment in Building Construction, the Foundation for Health Care in
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Agriculture, the Commission for the Prevention of Disasters by Dangerous Substances
and the Commission for the Labour Inspectorate and Enforcement Policy.

Examples of other countries which have consultative organizations of a bipartite,

tripartite or multipartite character to give recommendations on occupational safety and
health policy and standards include: Canada (ad hoc committees on legislative reform
and standard setting – federal level; Forum for Action on Workplace Health and Safety –
Alberta; Joint Steering Committee on Hazardous Substances in the Workplace – Ontario;
Back Injury Prevention Advisory Committee – Newfoundland; Occupational Health and
Safety Council – Prince Edward Island; Advisory Council on Workplace Safety and Health
– Manitoba; Occupational Health and Safety Council – Saskatchewan; Logging Safety
Forum – British Columbia); Denmark (Working Environment Council); France (the Central
Council for the Prevention of Occupational Risks and the National Commission of
Occupational Health and Safety in Agriculture); Italy (Permanent Consultative
Commission for the Prevention of Work Accidents and Occupational Health); Germany
(Advisory Board to the Federal Institute for Occupational Safety and Health); and Spain
(General Council of the National Institute for Occupational Safety and Health).

Policy Implementation

A number of countries have bipartite, tripartite or multipartite organizations which are

also active in policy implementation. These collaborative organizations normally are
public establishments which incorporate representatives of employers’ and workers’
organizations and in some cases other persons or interest groups, in both policy making
and policy implementation. Normally far larger than advisory committees, councils or
commissions, these collaborative organizations have responsibility for implementing
government policy, frequently manage large budgetary resources and often have
significant numbers of personnel.

An example of such an organization is the Health and Safety Commission in Great

Britain. The Commission was established pursuant to the provisions of the Health and
Safety Act 1974. It has as its mandate to ensure that adequate measures are taken to
secure the health, safety and welfare of persons at work; to protect the public against
risks to health and safety arising out of work; to control storage and use of explosives,
highly flammable materials and other dangerous substances; and to control the
emission of noxious or offensive substances from the workplace. It is responsible to the
Secretary of State for Education and Employment, but also to other Secretaries of State,
including those of Trade and Industry, Transport, Environment and Agriculture. The
Commission has nine persons, all of whom are appointed by the Secretary of State for
Education and Employment. It consists of a chairperson, three members appointed after
consultation with the principal central employers’ organization, three members
appointed after consultation with the principal central workers’ organization and two
members appointed after consultation with local authority associations.

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The Commission is assisted by a number of subsidiary organizations (figure 1). The most
important of these is the Health and Safety Executive, a distinct statutory body which
consists of a governing body of three persons appointed by the Commission with the
approval of the Secretary of State for Education and Employment. The Health and Safety
Executive is responsible for carrying out the substantive work of the Commission,
including the enforcement of health and safety standards under the Health and Safety
Act 1974 and other functions delegated to it by the Commission. Local authorities also
perform enforcement functions with respect to certain health and safety legislation as
well. In addition, the Commission is assisted in its work by a number of advisory
committees which are, depending on the committee, bipartite, tripartite or multipartite in
character. These advisory committees are organized both by subject matter and
industry. There are advisory committees for each of the following subjects: toxic
substances, dangerous pathogens, dangerous substances, genetic modifications,
occupational health, releases to the environment, nuclear installations and ionizing
radiation. There are also advisory committees for the following industries: agriculture,
ceramics, construction, education, foundries, health, petroleum, paper and board,
printing, railways, rubber, cotton and textiles. Subject matter committees tend to have
between 12 and 18 members plus a chairperson and are multipartite in character,
frequently including technical experts as well as representatives of central workers’ and
employers’ organizations, government and other interest groups. Industry committees,
however, tend to be bipartite, with approximately 12 members drawn in equal numbers
from central workers’ and employers’ organizations and with the chairperson being from
the government. The resources at the disposition of the Commission and the Health and
Safety Executive are substantial. For example, in 1993 these organizations together had
approximately 4,538 staff members and a budget of £ 211.8 million.

Figure 1. Health & safety in Great Britain: the main institutions

Other examples of collaborative organizations in this field can be found in Canada. At the
federal level, the Canadian Centre for Occupational Health and Safety is Canada’s main
resource for information on this topic. The Centre also promotes health and safety in the
workplace, facilitates the establishment of high standards of occupational health and
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safety and assists in the development of programmes and policies to reduce or eliminate
occupational hazards. The Centre, created by an act of parliament in 1978, was given a
tripartite governing body to ensure its impartiality in occupational health and safety
matters, including being an unbiased source of information. Its governing council
consists of a chairperson and 12 governors – four representing the federal, provincial
and territorial governments; four representing labour; and four representing employers.
The Centre manages significant human and financial resources and its total
expenditures in 1993 were approximately C$8.3 million.

In some provinces there are also collaborative organizations. In Quebec, two prominent
organizations are the Commission for Occupational Health and Safety and the Institute
of Occupational Health and Safety Research. The Commission has two functions. The
first is to develop and implement occupational health and safety policy, including the
establishment of standards and their enforcement; the provision of support for the
implementation of prevention programmes, participation mechanisms and health
services; and the provision of training, information and research services. The second is
to provide payment to workers injured on the job and to manage an insurance fund for
this purpose to which employers must contribute. The Commission, which was
established by law in 1981 and which succeeded the Commission of Occupational
Accidents founded in 1931, has a bipartite board of directors which is composed of
seven workers’ representatives, seven representatives of employers and a chairperson.
The representatives of workers’ and employers’ organizations are chosen from lists
supplied by the most representative labour and employer organizations. The
Commission manages large human and financial resources and at the end of 1992 had
expenditures of C$2,151.7 million and employed 3,013 persons as permanent staff and
652 as casual employees.

Quebec’s Institute of Occupational Health and Safety Research, founded in 1980, has as
its mandate to contribute, through scientific research, to the identification and the
elimination of sources of workplace hazards, as well as to the readaptation of workers
who have suffered workplace injuries. The board of directors of the Institute is the same
as that of the Commission for Occupational Health and Safety, notwithstanding that it is
an independent institution. The Institute also has a scientific council which has advisory
functions and is composed of four representatives of workers’ organizations, four from
employers’ organizations, six representatives of the scientific and technical community
and the Institute’s Director General. In 1992, the Institute had expenditures of C$17.9
million and approximately 126 employees.

The Ontario Workplace Health and Safety Agency, established in 1990 by amendment of
the Occupational Health and Safety Act, also has responsibility for developing and
implementing policy and for managing occupational health and safety programmes in
Ontario. The governing body of the organization consists of a bipartite board of 18
persons with nine representatives each from workers’ and employers’ organizations. Of

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these representatives, one representative of labour and one of management serve as
joint chief executive officers. The resources of this organization are substantial – total
expenditures amounted to C$64.9 million in 1992.

One country with a long tradition of collaborative organizations in the field of

occupational safety and health, Sweden, decided to reject this form of organization in
1992 and has subsequently used advisory organizations instead. It should be added that
this decision was not confined to occupational safety and health, but included all
collaborative organizations of any kind in which representatives of workers’ and
employers’ organizations played a decision-making role at the national level. The impetus
for this change came from the principal employers’ organization, which decided
unilaterally to withdraw from participation in collaborative public institutions. The central
employers’ organization argued that interest groups should not have political
responsibility in terms of managing public institutions, but that the government and
parliament should have this political role and responsibility; that the role of the
employers’ organization was to represent its members’ interests, and that this role could
be in conflict with a duty to serve the interests of the public institutions if the employers’
organization was represented on the governing boards of such institutions; and that
participation weakened democracy and the development of public institutions. Although
workers’ organizations were not in agreement with the employers’ organizations on these
points, the government concluded that collaborative bodies with no representation from
the principal employers’ organization were impractical and decided to have
representation by workers’ and employers’ organizations as well as other interest groups
only on advisory bodies. Hence, organizations in the field of occupational safety and
health such as the National Board of Occupational Safety and Health, the National
Institute of Occupational Health and the Working Life Fund, which had formerly been
collaborative in character in terms of a tripartite or multipartite governing board, were
restructured.

Although collaborative organizations in most countries are more rare than advisory
organizations, which are quite widespread, the case of Sweden’s rejection of
collaborative institutions, at least in the field of occupational safety and health, appears
to be an isolated one. Although some collaborative institutions, dealing notably with
questions of economic policy, training and employment, were dismantled in Great Britain
during the 1980s and 1990s by successive conservative governments, the Health and
Safety Commission was not affected. Some have advanced that this is because
occupational safety and health is a subject of common concern to employers’ and
workers’ organizations as well as the government and other interested parties and
therefore there is a strong interest by all parties in finding a consensus in both policy
formulation and implementation. Also, in Canada such collaborative institutions have
been created at both the federal level and in some provinces precisely because a
collaborative approach was deemed more useful in finding a consensus between the
labour market parties and because administration of the occupational safety and health
laws would appear more impartial and fair to those affected by them.
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On a broader level, however, there are two national consultative bodies which are also
concerned with occupational safety and health issues as part of their more general
mandate to address all important social and economic questions of national importance.
In the Netherlands, the Labour Foundation, established in May 1945, is a bipartite
organization jointly managed by equal numbers of representatives from central
employers’ and workers’ organizations (including farmers) and has a significant role as an
advisory body to the Government. Although historically its main function has concerned
questions of wage policy, it also expresses its views on other conditions of work. The
other national consultative body of importance is the Social and Economic Council, which
was founded in 1950 pursuant to the Act on Statutory Trade Associations. The tripartite
Council consists of 15 representatives of central employers’ organizations, 15
representatives of central workers’ organizations and 15 independent experts. The
employers’ and workers’ representatives are appointed by their organizations and the
independent experts are appointed by the Crown. In making its appointments, the
Crown also tries to have a balance between the major political parties. The Council is
independent of the government and is financed by a mandatory tax on employers. The
Council has a multimillion dollar budget and its own Secretariat. The Council normally
meets once a month and is assisted by a number of permanent and ad hoc committees,
which are frequently also constituted on a tripartite basis. The government is required by
law to submit all proposals for social and economic legislation to the Council for its
advice and any labour legislation – which would include proposals concerning
occupational safety and health – comes before the Council.

It should be added that a number of countries require that workplace health and safety
committees should or may be established for enterprises which have more than a certain
number of employees. These committees are bipartite in nature and include
representatives of the employers and the workers. These committees normally have as
their function to investigate and propose all ways and means of actively contributing to
measures undertaken to ensure the best possible health and safety conditions in the
establishment, a role which can include the promotion and monitoring of health and
safety conditions in the enterprise to ensure, among other things, adherence to
applicable law and regulations. These joint committees are normally advisory in
character. Workplace health and safety committees, for example, are legally required in
Belgium, Canada, France, Germany, the Netherlands and Spain.

Back

Published in 21. Labour Relations and Human Resources Management

Read more...
The phrase workers’ participation is used loosely to encompass various forms of workers’
participation in decision making, usually at the enterprise level. They complement other
forms that may exist at the industrial or sectoral level and the national level, such as
bodies for tripartite cooperation. The types of workers’ participation arrangement differ
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widely with regard to their functions and powers, ranging from informal individual
employee suggestion schemes to co-determination of certain matters by workers’
representatives together with management. The mechanisms used for encouraging
employee participation vary so widely that it is impossible to review them fully here. The
main forms that have attracted recent interest, particularly in the field of work
organization, are reviewed below; to these could be added the historical example of self-
management by workers in former Yugoslavia. As particularly relevant today, joint safety
and health committees are examined as a special form of workers’ participation within
the larger labour relations context.

The idea of workers’ participation arose in Europe, where collective bargaining has
usually been at the branch or industry level; this often left a gap of employee
representation at the enterprise or plant level, which became filled by bodies such as
works councils, works committees, enterprise committees and so forth. Many developing
countries have also adopted legislative initiatives with a view to having works councils or
similar structures set up (e.g., Pakistan, Thailand, Zimbabwe) as a means of promoting
labour-management cooperation. The relationship of these bodies to trade unions and
collective bargaining has been the subject of considerable legislation and negotiation.
This is reflected in a provision of the ILO Workers’ Representatives Convention, 1971 (No.
135), which states that where both trade union representatives and elected
representatives exist in the same undertaking, measures shall be taken to ensure that
the existence of those representatives is not used to undermine the position of the trade
union (Article 5).

Direct Participation

Workers may participate in decision making either directly themselves or indirectly

through their representatives – trade unions or elected employee representatives. Since
the 1980s, there has been a spread of direct participation by workers, if the term
participation is understood as the exercise of any influence on their work or how it is to
be carried out. Thus workers may “participate” in work-related decisions not only when
there is an institution, such as a quality circle, at the workplace. Accordingly, a simple
exercise of work enrichment may be a form of promoting direct participation of workers.

Direct participation may be on an individual basis – for example, through suggestion

schemes or “enriched” work. It may also be on a group basis – for example, in quality
circles or similar small-group activities. Teamwork in itself constitutes a form of group-
based direct participation. Direct participation may be integrated into decisions about
daily work, or it may take place outside daily work, such as in a voluntary quality circle
that cuts across the group structure habitually used. Direct participation may also be
“consultative” or “deliberative”; research by the European Foundation for the
Improvement of Living and Working Conditions has explored this particular aspect in
some detail (Regalia and Gill 1996). With consultative participation, employees are
encouraged and enabled, either as individuals or members of a group, to make their
views known, but it is up to management to accept or reject their proposals. Deliberative
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participation, on the other hand, places some of traditional management responsibility in
the employees’ hands, as in the case of teamworking or semi-autonomous work groups
wherein some authority has been delegated to the workers.

Works Councils and Similar Structures; Co-determination

The term works councils describes arrangements for the represen-tation of employees,
usually at the plant level although they also exist at higher levels (company, group of
companies, industry, European Union). The relationship to trade unions is often
delineated by legislation or clarified by collective agreement, but tensions between these
institutions sometimes remain all the same. Extensive use of works councils, sometimes
called workers’ committees, cooperation committees or otherwise, is well established in
a number of European countries, such as Belgium, Denmark, France, Germany and the
Netherlands and, under the impetus of Directive No. 94/45/EC of 1994 on European
works councils, can be anticipated to spread in that region for large enterprises. Several
Central and Eastern European countries, such as Hungary and Poland, have enacted
legislation to encourage the emergence of works councils. They are found as well in
some countries in Africa, Asia and Latin America; part of the post-apartheid labour law
reform in South Africa, for instance, included establishing a form of works councils
alongside trade union structures.

The possible powers of works councils are best illustrated by the example of Germany,
although in some ways it is a unique case. Weiss (1992) describes the works council in
that country as the form of institutionalized representation of interests for employees
within an establishment. A works council enjoys certain rights to information,
consultation (as in all countries) and co-determination (much more rare). As the most far-
reaching form of participation, co-determination covers participation in arrangements on
health and safety at work and the formal adoption of a reconciliation of interests and a
“social plan” in the event of a substantial alteration in the establishment, such as a plant
closure. Co-determination rights also extend to guidelines for staff selection and
appraisal, in-service training and measures affecting individual workers such as grading,
transfer and dismissal. The German works council is empowered to conclude works
agreements at the enterprise level and can initiate complaints where it believes the
agreement is not being honoured. Included in the areas of obligatory collective co-
determination are accident prevention and health protection, works rules, working time,
the fixing of performance-related pay rates, the manner of payment, general principles
governing holidays and others. On these matters, the employer cannot take action
without the works council’s agreement. The works council also has the right to take the
initiative and can refer a matter to the establishment-level arbitration committee for
enforcement. As Weiss (1992) characterizes it, the works council’s role is “participating in
the ‘how’ after the employer has made a decision on the ‘whether’”. The right to
consultation affords the works council a chance to play a part in the decisions made by

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the employer, but failure to consult will not invalidate the decision. The subjects on
which consultation is required include protection against dismissal, protection against
technical hazards, training and preparation of a social plan.

The works council must observe the principles of cooperation with the employer and the
peace obligation (no work stoppages); it also must cooperate with trade unions present
and with the appropriate employers’ organization. Works councils are bound to conduct
their business impartially, without regard to race, religion or creed, nationality, origin,
political or union activity, sex or age of the employees. The employer provides the
facilities for the works council, funds it and is liable for its actions.

Works councils are elected separately for manual and non-manual workers in Germany.
Special works council elections are held; while there is no legal connection between these
representatives and trade union officers in fact, they often coincide. In Austria and
Germany, special representation is ensured for disabled workers and young workers and
trainees. Works council members receive no remuneration for this, but necessarily
incurred expenses are reimbursed. Members are guaranteed retention of their pay level
and job grading after the term of office has expired and enjoy special protection against
dismissal. They are entitled to release from work to conduct works council business and
attend training. Such protections are in line with the Workers’ Representatives
Convention (No. 135), which calls for workers’ representatives in an undertaking to enjoy
effective protection against any act prejudicial to them, including dismissal, based on
their status or activities as a workers’ representative (Article 1).

Many countries feature less ambitious works council schemes that provide for
information and consultation rights. Especially where trade unions have little presence
on the shop floor level, there is considerable interest in introducing works councils or
workers’ committees as a means for workers to have a voice at the workplace level.

Quality Circles and Total Quality Management

Quality circles and other similar group activities were rapidly introduced in a large
number of enterprises in some Western European countries (e.g., the United Kingdom
and France) at the start of the 1980s and in the United States a little earlier. They built
upon “Quality of Working Life” (QWL) or “Humanization of Work” programmes that began
in the early 1970s. Their spread was considerably later in some other Western countries
(e.g., Germany) and still seems to be very limited in countries where joint project groups
are the predominant means of dealing with work organization, such as Sweden. They
were stimulated by a belief that Japan’s ability to produce innovative and high-quality
products at low cost had something to do with the way human resources were managed
in that country; quality circles were the most visible and easily transplantable feature of
Japanese human resource management. Quality circles are generally expected to
produce two types of effect: one is the enhancement of quality and productivity and the
other is the fostering of a sense of participation in work-related decisions among
workers, leading to increased job satisfaction and better industrial relations. In Japan the
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emphasis has been placed more on the first aspect and in Europe and North America on
the second. There are also structural differences: while circle leaders are normally
appointed by management in Japan, they are often elected in Germany. Today, the
emphasis of QWL programmes is more on enhancing productivity and competitiveness
(Ozaki 1996).

In some of the countries where quality circles were experimented with widely in the
1980s, such as France and the United Kingdom, there has been a certain disenchantment
with their relative ineffectiveness in producing the expected results. Many circles
disappeared a few years after their creation; many others exist on paper, but are in fact
moribund. The failure has been attributed to many factors – their tendency to create
confusion in the normal lines of command, non-management control over membership,
circles’ determining their own agenda without heed for management priorities, lack of
enthusiasm or hostility on the part of middle management, absence of durable
commitment on the part of top management and restriction of scope to minor work-
related issues.

Realization of these shortcomings led to the formation of a theory of “Total Quality

Management” (TQM). Certain principles of TQM have implications for employee
participation: all employees are to participate in the process of improving the business,
and responsibility for quality is to be assigned to people who in fact control the quality of
what they do. Thus TQM encourages job enlargement and enrichment leading to semi-
autonomous work groups. It also promotes horizontal coordination in a firm through, for
example, the use of ad hoc, multi functional or interdepartmental project teams.

Joint Project Groups

The practice of establishing joint project groups to study the best ways of introducing
technological or organizational changes through the joint efforts of managers and
workers is a traditional feature of labour relations in some countries, such as Sweden. A
joint project group is normally composed of managers, workplace union representatives
and shop-floor workers and often assisted by outside experts. The management and the
union concerned often establish joint project groups separately on four issues: new
technology, work organization, training and work environment. The Swedish model of
joint project groups presents a notable example of direct participation of shop-floor
workers within a framework of established collective labour relations. The system is also
found in other countries, such as Germany and Japan.

Semi-autonomous Group Work and Teamwork

Semi-autonomous group work and teamwork are both forms of on-line direct
participation of shop-floor workers in work-related decisions, unlike the above-
mentioned joint project group work, which is a form of off-line participation. The main
difference between the two forms of participation lies in the degree of autonomy which
the members of the team or group enjoy in organizing their work. Semi-autonomous

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group work was used extensively in Scandinavia, although recently there has been a
move back to a more traditional approach; there have been experiments with it
elsewhere in Europe as well.

While experiments with semi-autonomous group work are generally declining, teamwork
is spreading fast throughout Western countries. The degree of autonomy which a team
enjoys varies widely from one company to another. Team structure also differs. In many
countries, team leaders are usually appointed by management, but in a few countries
(e.g., Germany) they are often elected by co-workers. Frequently, the creation of teams is
accompanied by significant changes in the role of first-line supervisors; they tend to take
on greater responsibility for advising team members and for both vertical and horizontal
communication, but lose their supervisory role. Employers have shown increasing
interest in teamwork because it tends to facilitate the upgrading of workers’ skills and
widens the range of workers’ tasks, thus allowing greater flexibility in production
processes. However, it is sometimes criticized by workers as a means of inducing them
to work harder “voluntarily” by substituting co-workers’ pressure for management
control.

Employee Representation on Supervisory Boards; Employee Shareholding

Some commentators include forms of employee ownership or representation on

company boards as expressions of workers’ participation. In Germany and the
Scandinavian countries, among others, workers have indirect participation above the
enterprise level by the inclusion of workers’ representatives on supervisory boards. This
involves incorporating workers’ representatives in the traditional company board
structure, where they are in a minority (although sometimes, as in Germany, a numerous
one). It does not necessarily imply participation in the active management of the
company and the workers’ representatives have the same status as other board
members. This means they are to put the interests of the company first and foremost
and are bound by the same duty of secrecy as other board members. Holding positions
on the board may provide access to additional information, however, and a number of
trade unions have sought the right to have workers’ representatives on boards. It is a
phenomenon now seen in Eastern and Western Europe and North America, but remains
rather rare elsewhere.

Another expression of workers’ participation is as owners of shares in limited liability

companies or corporations. Sometimes workers are able to scrape enough capital
together to purchase a firm that would otherwise be going out of business. The rationale
behind these situations is that a worker who identifies financially with a company will
work harder for its success. Important variables are the form of participation (return on
investment rights or control rights), its degree (amount and timing of returns) and the
reasons behind financial participation. In any event, these practices are largely reserved
to Europe and North America. If cooperative ventures are considered part of this
phenomenon, however, the notion of workers being stakeholders in their work is much
more widespread throughout the world. It would be interesting to study whether and to
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what extent employee ownership of a firm or of shares in it has an effect on the
workplace safety and health record.

Health and Safety Committees and Representatives

A specialized form of workers’ participation is seen in the development of health and

safety committees and health and safety representatives (for worker participation in
Denmark, see also "Case Study: Denmark"). The legislation of a number of countries
provides for the establishment of such committees and for such representatives (e.g.,
Belgium, several provinces of Canada, Denmark, France, the Netherlands, Sweden).
Smaller companies, variously defined, are usually excluded from such mandatory
measures, but they, like larger units, often set up health and safety committees on their
own initiative. In addition, many collective bargaining agreements have led to the
creation of such committees and to the designation of health and safety representatives
(e.g., in Canada and the United States).

Often, collective bargaining agreements will strengthen the legislatively guaranteed

powers afforded to workers’ safety and health representatives. The committees and
representatives vary in regard to their relationship to trade unions and works councils,
their election or appointment, their duties and functions and their impact. As a form of
workers’ involvement in the specialized sphere of health and safety, such committees
and representatives can be a contributing factor to improving both working conditions
and the labour relations climate. They have been most successful when they form an
integral part of management’s safety and health programme, have access to adequate
information, involve rank-and-file workers in their activities to help ensure continuity and
are backed up by effective government labour inspection. Where employers maintain
occupational health services or have safety experts, a fruitful relationship with them can
also promote the success of joint health and safety committees. A recent workplace
survey in the United Kingdom, for instance, found that “joint consultative committees,
with all employee representatives appointed by unions, significantly reduced workplace
injuries relative to those establishments where the management alone determines
health and safety arrangements” (Reilly, Paci and Holl 1995). They also reported an
important role for joint consultative committees where employee representatives were
appointed in other ways. However, some research also indicates that joint health and
safety committees fall short of the expectations held out for them. The reasons
suggested for this differ: insufficient support from management, participants who are
not adequately informed or trained, workers not represented forcefully enough and so
on.

Workers’ health and safety representatives may be appointed by management (as in

many workplaces where no trade union is present), designated by the trade union (as in
the United Kingdom) or elected directly by the workers at the enterprise or higher level
(as in Denmark). A parallel system will be used for worker representatives on a joint
labour-management health and safety committee which, while bipartite, will not always
have equal representation from both sides. General institutions for workers’
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representation are often complemented by special representative structures for health
and safety (as in Spain). The mechanism chosen will often reflect the existence of other
labour relations institutions in a country: in France, for instance, employee members of
the joint health, safety and working conditions committees are appointed by a delegate
elected from the works committee and staff representatives; in Germany, members
designated by the works council will be among those serving on a joint health and safety
committee. Works councils in the Netherlands may delegate their powers to a safety,
health and welfare committee. A strong link, if not identity, between trade union
representatives and health and safety representatives is usually seen as desirable (as in
Quebec (Canada), Ireland, Norway and Sweden), but where trade union density is low
this runs the risk of depriving large numbers of workers of representation rights in
relation to health and safety. Speculation that joint health and safety committees might
lead to extending greater workers’ participation to other fields has remained largely
unfounded.

Workers’ health and safety representatives normally have the following rights: to have
access to information on health and safety and the introduction of new technology, to be
consulted on these matters, to be involved in monitoring workplace conditions, to
accompany inspectors (sometimes called the “walkaround right”), to be involved in
accident investigations and to make recommendations to management on the
improvement of working conditions. In some countries their powers go beyond this to
include the right to engage in co-decision making, to initiate inspections and accident
investigations and to review management’s reports to government. Most importantly,
some workers’ health and safety representatives are empowered to order the shut-down
of an imminently hazardous operation (also called “red-tagging”, for the marker placed
on the spot), as in Denmark, Finland, Norway and Sweden. They are in certain instances,
such as in France and some provinces of Canada, directly involved in the enforcement of
health and safety regulations. Prior consultation of the joint committee is sometimes
necessary before an employer can make any significant change in health, safety or
working conditions (as in France and the Netherlands). In Belgium intercompany health
services are under the control of a joint committee. In Italy the committees’ role includes
the promotion of prevention, and in Greece they can, with the employers’ agreement,
call for expert opinions on health and safety questions.

Workers’ health and safety representatives necessarily enjoy protection from

discrimination or retaliation in the exercise of their functions. They are entitled to at least
some time off with pay, as well as to have the necessary means (the definition of which is
often debated) to exercise their functions. In addition, while in office some are specially
shielded from economic layoffs (redundancies) or given extra protection from dismissal
(as in Belgium). Frequently, worker health and safety representatives have a right to
receive specialized training (as in Denmark).

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The effect that workers’ health and safety representatives and joint committees can have
will of course depend not only on rights and duties set out in legislation or in a collective
bargaining agreement, but on how they are exercised in practice. This is in turn
influenced by factors that affect workers’ participation generally. Such representatives
and joint committees are no substitute for the effective government enforcement of
health and safety standards or for what may be achieved by means of collective
bargaining. However, “most observers believe that [mandated joint health and safety]
committees provide a more efficient regulatory regime for safety and health than
inspectorate or civil liability schemes” (Kaufman and Kleiner 1993). In any event, the
trend is definitely towards greater workers’ participation in health and safety matters, at
least in terms of collective agreements covering larger enterprises and legislation. Where
they operate as effective institutions, joint health and safety committees can be a
valuable tool for identifying problems and raising awareness of hazards, thus potentially
reducing the incidence of injury, disease and death on the job. The extent to which they
are effective, however, depends on a large range of variables in the particular labour
relations system and in the strategic approach taken to health and safety at the
workplace.

Evaluation

Schregle (1994) has commented:

In practice, none of these workers’ participation schemes has produced the expected
results. There are many reasons for this. One is that, in a general way, trade unions and
employers do not have the same view of participation. While it is the workers’ desire to
exert a tangible and concrete influence on employers’ decisions in the sense of power-
sharing, employers insist on management rights or management prerogatives, derived
from private ownership, to run the business according to their own criteria and decision-
making power, affording to workers at most the right to express their views and
positions without binding effect on management. The result of all this is confusion over
such terms as consultation, workers’ participation, workers’ participation in
management, co-determination, co-management, etc.

The fact remains that in most workplaces around the world, there is little effective
employee participation at the enterprise level. The first level of participation and indeed
a prerequisite for it, is the provision of information, followed by consultation. Within
Europe, research has indicated a wide variation in the extent of implementation of the
1989 framework directive on health and safety, when it comes to workers’ participation; it
may get a new lease on life with the impetus of the 1995 directive on European works
councils. A high degree of non-participation also characterizes other regions.
Nevertheless, high hopes continue to be held out for strengthening mechanisms for
workers’ participation at the enterprise level.

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The traditional approach to workers’ participation as promotional of greater worker-
management cooperation falls short of being satisfactory in relation to health and safety
issues, where the categorization of labour relations as conflictual or cooperative does not
particularly advance the debate. As Vogel (1994) notes:

...the problem of worker participation is clearly not confined to the institutionalized

forms of participation in or outside the undertaking. The basis of participation lies in the
recognition that distinct interests are in play giving rise to specific rationales... The
essential legitimacy of participation is to be found outside the firm in a democratic
requirement which refuses to admit that the self-determination of individuals should be
confined within the rules of political representation and in a view of health conceived as
a purposeful, social process through which individuals and communities develop
strategies for self-fulfilment and defence.

In the end, the differing functions of various workers’ participation schemes make it
difficult to assess their comparative impact. As collective bargaining shrinks in coverage,
however, greater use of management-led workers’ participation arrangements may be
expected.

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Worker Participation in Health and Safety Matters

Worker participation in safety organization in plants can be planned in many ways,

depending on national law and practice. This article refers only to consultation and
information arrangements, not related forms of employee involvement. Additional
coverage of specific aspects somewhat linked with consultation and information (e.g.,
participation in or initiation of inspections, participation in training activities) is offered
elsewhere in this chapter.

The idea of employers and employees working jointly to improve health and safety at
work is based on several principles:

1. Workers can contribute to prevention of industrial accidents by spotting and

warning about potential hazards and giving notice of imminent dangers.
2. Involving employees educates and motivates them to cooperate in the promotion
of safety.
3. Ideas and experiences of workers are regarded as a useful contribution to safety
improvement.
4. People have a right to be involved in decisions that affect their working life,
particularly their health and well-being.
5. Cooperation between the two sides of industry, essential to improve working
conditions, should be based on an equal partnership.
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These principles have been laid down in the ILO Occupational Safety and Health
Convention, 1981 (No. 155). Article 20 provides that “co-operation between management
and workers and/or their representatives within the undertaking shall be an essential
element of organizational and other measures” in the area of occupational health and
safety. Also the ILO Communications within the Undertaking Recommendation, 1967
(No. 129), Paragraph 2(1), underlines that:

...employers and their organizations as well as workers and their organizations should, in
their common interest, recognise the importance of a climate of mutual understanding
and confidence within undertakings that is favourable both to the efficiency of the
undertaking and to the aspirations of the workers.

The underlying philosophy is that employers and employees have a common interest in
a self-regulating system in industrial accident prevention; actually they are more
interested in occupational safety than in occupational health, since the occupational
origin of accidents is more simple to establish and they are thus compensated more
easily. Also for this reason safety representatives in many countries were historically the
first employee representatives at the workplace to have their rights and duties
determined by law or collective agreements. Today there is probably no subject in labour
relations and human resources management on which the social partners are so ready
to collaborate as in health and safety matters. But in some national contexts trade unions
have not put sufficient resources into the safety and health effort to make it a major
issue in either negotiations or contract administration.

Information and Consultation Rights in Legislation in ILO and European Union.

The general obligation for employers to disclose information in health and safety matters
to workers and/or their representatives and seek their opinion via consultative
arrangements is provided by Article 20 of the ILO Prevention of Major Industrial
Accidents Convention, 1993 (No. 174). This norm prescribes that “the workers and their
representatives at a major hazard installation shall be consulted through appropriate
cooperative mechanisms in order to ensure a safe system of work”. More specifically
workers and their representatives have the right to:

(a) be adequately and suitably informed of the hazards associated with the major hazard
installation and their likely consequences; (b) be informed of any orders, instructions or
recommendations made by the competent authority; (c) be consulted in the preparation
of and have access to, the following documents: (i) safety reports, (ii) emergency plans
and procedures, (iii) accident reports.

As a consequence of these information and consultation rights, workers are entitled “to
discuss with the employer any potential hazards they consider capable of generating a
major accident” (Article 20(f)).

More generally ILO Convention No. 155 lays down rules concerning occupational safety
and health and the working environment, providing for effective arrangements at the
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level of the undertaking (be they regulated by law or collective bargaining or even left to
local/domestic practices) under which “(c) representatives of workers... are given
adequate information on measures taken by the employer to secure occupational safety
and health and may consult their representative organizations about such information
provided they do not disclose commercial secrets” (Article 19). The same norm adds that
under these arrangements workers or their representatives must be “enabled to enquire
into and are consulted by the employer, on all aspects of occupational safety and health
associated with their work”. And for this purpose “technical advisers may, by mutual
agreement, be brought in from outside the undertaking”.

ILO Recommendation No. 164 supplementing Convention No. 155 (Paragraph 12)
clarifies that information and consultation rights on safety and health matters should be
granted to a variety of participatory institutions: workers’ safety delegates, workers’
safety and health committees, joint safety and health committees and other workers’
representatives. This text also states important principles affecting the nature and the
content of information/consultation. These practices should first of all enable the above-
mentioned specialized forms of workers’ representation “to contribute in the decision-
making process at the level of the undertaking regarding matters of safety and health”
(Article 12(e)).

These are not simply rights to know and to be heard: workers and their representatives
should “(a) be given adequate information on safety and health matters, enabled to
examine factors affecting safety and health and encouraged to propose measures on the
subject”. They should also “(b) be consulted when major new safety and health measures
are envisaged and before they are carried out and seek to obtain the support of the
workers for such measures” and “(c)... in planning alterations to work processes, work
content or organization of work, which may have safety or health implications for the
workers”.

The principle under which “representatives of the workers... should be informed and
consulted in advance by the employer on projects, measures and decisions which are
liable to have harmful consequences on the health of workers” (ILO Working
Environment (Air Pollution, Noise and Vibration) Recommendation, 1977 (No. 156),
Paragraph 21) reflects the idea of an “effective policy of communication” stated in general
terms by Paragraph 3 of ILO Recommendation No. 129, which prescribes that
“information is given and that consultation takes place between the parties concerned
before decisions on matters of major interest are taken by management”. And in order
to make these practices effective, “steps should be taken to train those concerned in the
use of communications methods” (Para. 6).

The participative approach in labour relations in the area of health and safety is
confirmed by other international legal texts. A meaningful example in this respect is
offered by the Framework Directive 89/391/EEC on the introduction of measures to
encourage improvements in the safety and health of people working in countries of the
European Union. Article 10 provides for the employer an obligation to take appropriate
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measures so that workers and/or their representatives receive, in accordance with
national law and/or practices, all necessary information” concerning safety and health
risks, protective and preventive measures (also for first aid, fire-fighting and evacuation
of workers and in case of serious and imminent danger). This information has to be
“provided in a suitable form to temporary workers and hired workers present in the
establishment or enterprise”. Additionally “workers with specific functions in protecting
the safety and health of workers, or workers’ representatives with specific responsibility
for the safety and health of workers” must have access to risk assessment and protective
measures, reports on occupational accidents and illnesses suffered by workers and all
information yielded by protective and preventive measures, inspection agencies and
bodies responsible for safety and health.

Article 11 of the EC Directive links consultation and participation. In fact employers are
under the obligation to “consult workers and/or their representatives and allow them to
take part in discussions on all questions relating to safety and health at work”. That
presupposes “the consultation of workers, the right of workers and/or their
representatives to make proposals [and] balanced participation in accordance with
national laws and/or practices”. The document continues, prescribing that:

workers with specific functions in protecting the safety and health of workers or workers’
representatives with specific responsibility for the safety and health of workers shall
participate in a balanced way, in accordance with national laws and/or practices, or be
consulted in advance and in due time by the employer...

The objective of these rights is to cover all measures which may substantially affect
health and safety, including the designation of employees required to implement certain
measures (first-aid, fire-fighting and evacuation of workers) and the planning and
organization of adequate health and safety training throughout the employment
relationship (upon hiring, job transfer, introduction of new working equipment,
introduction of any new technology).

The choice is clear: no to conflict, yes to participation in health and safety labour
relations. This is the meaning of the EC Framework Directive, which goes beyond the
simple logic of the right to information. The system is based on a genuine form of
consultation, since it must take place “in advance and in good time” – in other words, not
only prior to decisions being adopted by the employer but also soon enough for
proposals and comments to be made about them.

The Directive also uses the ambiguous expression “balanced participation”, a formula
open to various interpretations. The notion is broader than (or, at least, different from)
that of consultation, but not to the extent of constituting a form of joint decision making,
which would prevent employers from taking measures which had not been approved by
the workers or their representatives. It seems quite clearly to be a form of participation
going beyond mere consultation (otherwise the article heading “consultation and
participation” would be nonsense) but not necessarily as far as joint decision making. The
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concept is left somewhat vague: it embraces a range of multiple forms of worker
participation which vary considerably between Member States of the European Union.
And in any case the Directive does not place any obligation to provide a specific form of
balanced participation.

In both the ILO and EC texts, information seems to be a concept whereby management
informs the employees’ representatives body in writing or in a meeting. Consultation
means that normally joint committees are set up in which employees’ representatives
are not merely informed by management, but can also comment and expect justification
from management in the event of differing opinions. Certainly these concepts differ from
negotiation (when a contractually binding outcome is worked out in joint negotiating
committees at company or inter-company level) and co-determination (where the
employee has a right of veto and decisions require the agreement of both parties).

For Community-scale undertakings and groups thereof, EU Council Directive No.

94/45/EC of 22 September 1994 requires setting up European Works Council or an
information and consultation procedure. The information relates “in particular to
transnational questions which significantly affect workers’ interests” (Article 6(3)). Time
will tell if this is used for safety and health purposes.

Role of Workers’ Representatives in Risk Assessment and Improvement of Work

Environment: Record-keeping

The active nature of consultation is also stressed in Article 11(3) of the EC Framework
Directive, which states that either workers with specific functions in this area or workers’
representatives in general “may call on the employer to take appropriate measures and
submit to him relevant proposals by means of which all risks to workers may be reduced
and/or sources of danger eliminated”.

The Framework Directive, with its provisions on risk management, while placing clear
responsibilities on employers, also favours the greater involvement of workers and their
representatives in consultations on management strategies in health and safety.
Employers must assess risks and present their risk-control management systems in a
plan or statement. In all cases they are expected to consult with and involve workers
and/or their representatives in all the design, implementation and monitoring of these
systems. But it is undeniable that this Directive, by conferring relevant participative rights
to workers, has at the same time adopted an approach of “self-assessment”. Other EC
Directives require, among other things, the recording of the results of measurements
and examinations and lay down the employees’ rights of access to these records.

Also ILO Recommendation No. 164 (Para. 15(2)) provides that:

...employers should be required to keep such records relevant to occupational safety and
health and the working environment as are considered necessary by the competent
authority or authorities; these might include records of all notifiable occupational
accidents and injuries to health which arise in the course of or in connection with work,
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records of authorisation and exemptions under laws or regulations in the field and any
conditions to which they may be subject, certificates relating to supervision of the health
of workers in the undertaking and data concerning exposure to specified substances and
agents.

It is a general principle worldwide that employers are required to keep records, for
instance of accidents and occupational diseases, or on the use or presence of biological
and environmental monitoring.

National Laws and Practices

By comparison, labour relations systems exist (e.g., Italy) where statutory law provides no
specific right to information and consultation in occupational safety and health for
workers’ representatives, although such a right is often included in collective agreements.
Italian legislation gives the workers themselves the right to control the implementation of
standards relating to the prevention of accidents and occupational diseases, as well as
the right to develop studies and adopt adequate measures in order to safeguard health
and safety at work. In other systems (e.g., in the United Kingdom) in order to obtain
disclosure of information on matters of health and safety as provided by law, it is
necessary first to have safety representatives appointed; but this is possible only if there
is a recognized trade union in existence at the undertaking. In situations where the
employer refuses or withdraws the necessary status of a recognized trade union,
information and consultation rights cannot be exercised.

These national experiences raise the question: To what extent is effective workers’
participation in health and safety conditional on the adoption of statutory arrangements?
Certainly some legal backing seems to be helpful, the optimum amount of legislation
being probably at a point where it provides for the election of workers’ representatives
with sufficiently strong rights to allow them to function independently of management,
while at the same time leaving room for a certain variety in the organizational
arrangements for participation in different sectors and corporations.

In general labour relations systems provide by law that workers’ representatives are to
be informed and consulted in health and safety matters. When joint committees
composed of management and employee representatives are established, they enjoy
considerable powers. For instance in France the committee for health, safety and
working conditions may propose preventive measures: an employer declining to accept
them must give detailed reasons. But empirical evidence demonstrates that sometimes
safety representatives seem more efficient than joint committees since they are less
dependent on the existence of a cooperative relationship.

Through various forms of representational participation, employees in general enjoy

rights recognized by ILO Conventions and Recommendations (plus EC directives, when
applicable) mentioned earlier with special reference to industrialized free-market
economies. Safety representatives and/or works councillors have a right to be informed

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and consulted by the employer on all issues relating to the company’s operations and
the improvement of working conditions, including health and safety matters. They have
the right to see all relevant documents that the employer is statutorily obliged to keep
and also to see any statements on the subject and the results of any research. They may
also have copies of any of these documents if required.

Effectiveness of Information and Consultation Rights

Apart from specific aspects (such as use of experts, participation in or initiation of

inspections, protection from victimization) which strongly affect the effectiveness of
information and consultation rights in health and safety, there are general factors which
have to be taken into account in this respect. First, the size of the undertaking: the
effectiveness of controls is on the wane in small units, where trade unions and other
forms of workers’ representation are almost absent. Small-sized establishments are also
least likely to implement statutory requirements.

Secondly, where safety representatives are integrated into the formal trade union
organization at the workplace, they are more likely to achieve the expected
improvements in the working environment. Thirdly, consultation and information
arrangements in health and safety reflect the more conflictual (e.g., UK, Italy) or
cooperative (e.g., Germany, Scandinavian countries, Japan) nature of the surrounding
labour relations system. And in general, collaboration between management and labour
favours the disclosing of information and consultation.

Fourthly, the role of managerial initiative should not be underestimated. More than the
existence of statutory rights, consultation and information are effective when there is the
presence of a managerial culture which supports them. Employers—by their attitude
towards training, their commitment to disclosing information and their speed in
answering queries—are able to create an adversarial or cooperative climate. Legal
backing is essential to guarantee full independence to worker representatives to act in
this field, but then the success of information/consultation arrangements depends
largely on the voluntary choice of both sides of industry.

Lastly it must be said that a precondition for successful worker representation in health
and safety at the workplace is public awareness. It is fundamental for this specialized
form of employee involvement that such a need is perceived and valued by people at
work. There is empirical evidence that workers identify health and safety as one of the
most significant concerns in their working life.

Highlights of the ILO Paid Educational Leave Convention,

1974 (No. 140)

Aim of the standard

To promote education and training during working hours, with financial entitlements.

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Obligations

A ratifying State is to formulate and apply a policy designed to promote the granting of paid
educational leave for training at any level; general, social and civic education; trade union
education.

This policy is to take account of the stage of development and the particular needs of the
country and shall be coordinated with general policies concerning employment, education
and training, and hours of work.

Paid educational leave shall not be denied to workers on the grounds of race, colour, sex,
religion, political opinion, national extraction or social origin.

Financing shall be on a regular and adequate basis.

The period of paid educational leave shall be treated as a period of effective service for the
purpose of establishing claims to social benefits and other rights deriving from the
employment relationship.

by Chapter Editor
(excerpted from ILO Convention No. 140, 1974).

Safeguards on Use of Information

Comparative experience demonstrates that in general safety representatives are

considered to be in breach of confidence if they reveal any information relating to an
employer’s production processes and other professional secrets. Furthermore, they are
obliged to use discretion with regard to any information provided to them which the
employer indicates is confidential. ILO Convention No. 155 recognizes this by providing
that enterprise-level representatives may consult their representative organizations
about occupational health and safety information “provided they do not disclose
commercial secrets” (Article 19(c)).

In some systems (e.g., Greece) employee representatives on works councils are obliged
not to communicate to third parties information acquired which is of fundamental
importance to the enterprise and which, if disclosed, would harm the enterprise’s
competitiveness. The employee representatives and the employer are supposed to
decide jointly what information can be disclosed. Under other systems (e.g.,
Luxembourg), where if employee representatives disagree with an employer’s
classification of information as confidential, they may refer the matter to the
inspectorate for a decision.

In some countries the duty of confidentiality is only implicit (e.g., Italy). Also when there is
no specific requirement in this respect (e.g., United Kingdom), employee representatives
cannot receive from the employer information relating to the health of individuals
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(unless their consent is given), information that would damage national security or
information that would damage the employer’s undertaking. Finally (e.g., Sweden) the
duty to observe confidentiality may not prevent safety representatives from passing on
the information received to the executive board of their trade union, which will also be
bound to observe confidentiality.

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A training system should be a constituent of an overall human resource development
policy and programme. This may be at the enterprise, industry or national level. Its
practical implementation will be greatly assisted if paid educational leave is available (see
box). Where such arrangements are not incorporated into national legislation (as they
are in the Labour Codes of France and Spain, for example), then leave entitlement to
attend appropriate occupational safety and health training should be negotiated by
representatives of employers and workers as part of the collective bargaining process.

Highlights of the ILO Paid Educational Leave Convention, 1974 (No. 140)

Aim of the standard

To promote education and training during working hours, with financial entitlements.

Obligations

A ratifying State is to formulate and apply a policy designed to promote the granting of
paid educational leave for training at any level; general, social and civic education; trade
union education.

This policy is to take account of the stage of development and the particular needs of the
country and shall be coordinated with general policies concerning employment,
education and training, and hours of work.

Paid educational leave shall not be denied to workers on the grounds of race, colour, sex,
religion, political opinion, national extraction or social origin.

Financing shall be on a regular and adequate basis.

The period of paid educational leave shall be treated as a period of effective service for
the purpose of establishing claims to social benefits and other rights deriving from the
employment relationship.

by Chapter Editor (excerpted from ILO Convention No. 140, 1974).

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Any negotiated arrangements for training would identify appropriate subject matter as
well as administrative, financial and organizational arrangements. Training on
occupational safety and health should embrace the following:

health and safety laws and means of enforcement

employers’ attitudes to health and safety
workers’ attitudes to health and safety
health and safety issues and the means of improving health and safety practices.

The two key components of any training approach are content and process. These will be
determined by the objectives of the training activity and the aspirations of the
participants and trainers. The overall objective here would be to contribute to the
improvement of health and safety at the workplace and so content should be based on
identifying practical means of achieving improvement. Such an approach would require
an assessment of the health and safety problems faced by workers. In general terms
these should include:

safety hazards, such as lifting, carrying, machinery, falls, ladders

health hazards and problems, such as eyestrain, chemicals, noise, dust, aches,
pains
welfare issues, such as washing facilities, first aid, housing.

This methodological approach would allow for the systematic treatment of issues by
means of describing the problem and reviewing how it came to be known, who was
involved, what action was taken and the result of the action.

An important outcome of this approach is the identification of “good” and “bad”

occupational safety and health practices, which, theoretically at least, can provide the
basis for common action by employers and workers. To sustain this methodology,
important information requirements need to be addressed. These include securing
documentation on health and safety laws, standards and technical information and
identifying the further information required to resolve the hazard/problem, such as
policies or agreements produced by other trade unions and employers and alternative
solutions and strategies.

Successful training activity will require the use of active learning methods, which are
developed by drawing on the experience, skills, knowledge, attitudes and objectives of
participants. Experience and knowledge are reviewed, attitudes are analysed and skills
are developed and improved through working collectively. As part of this process,
participants are encouraged to apply the results of their training activity to their work
environment. This focuses training activity on practical outcomes and relevant content.

Questions that the trainer and trainees need to ask of process and content are: What are
we gaining that can be applied to our work environment? Is the training improving our
skills and knowledge? Is it helping us to operate more effectively in our work
environment?
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The trainer should address these questions at the planning, implementation and
evaluation stages of any training programme and the methodological process encourages
participants to make the same demands during the process of training activity.

Such a method, often referred to as “learning through doing”, draws widely upon the
participants’ experiences, attitudes, skills and knowledge. The objectives of training
activity should always refer back to practical outcomes; therefore, training activities
should integrate this method. In occupational safety and health programmes this could
include the activities outlined in table 1.

Table 1. Practical activities-health and safety training

Activity Related skills

Identifying hazards Critical analysis

Sharing information

Reviewing information

Problem solving Critical analysis

Sharing information

Working collectively

Developing strategies

Finding information Using resources

Researching skills

Re-using information

Forming attitudes Critical analysis

Re-evaluation of attitudes

Effective argument and

debate

Occupational safety and health training has the potential to develop workers’ and
employers’ awareness of issues and to provide a basis for common action and
agreement on how problems can be overcome. In practical terms, good health and safety
practice not only provides for improvement in the working environment and potential
productivity gains, but also encourages a more positive attitude to labour relations on
the part of the social partners.

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The key role played by labour inspection in the development of labour relations is
indisputable; in fact, the history of labour law is the history of the labour inspection
system. Before the establishment of the first labour inspectorates, labour laws were
mere declarations of goals whose infringement resulted in no sanctions. True labour law
arose when a specific body was charged with ensuring compliance with the rules,
thereby giving effect to the law by means of legal sanctions.

The first national attempts to establish a system of labour inspection centred on the
creation of voluntary bodies which acted without remuneration to protect women and
children employed in industry and which were a response to the peculiar nature of
economic liberalism. Experience soon imposed the necessity to create a body of a
coercive nature that would really be able to protect the working population as a whole.
The first law introducing an official factory inspectorate was passed in Great Britain in
1878 on the grounds that the requirements relating to the appointment of honorary
enforcers had not been faithfully carried out and therefore the protection measures had
not been applied. The law conferred on factory inspectors the following basic powers:
unrestricted entry into factories, free questioning of workers and employers, requiring
the production of documents and the capacity to settle disputes and ascertain
infringements of the laws.

The evolution of the various regulations had the result in subsequent years of
reaffirming the authority of factory inspectors as administrative officials, separating out
and gradually eliminating their function as judges. The idea emerged of the inspector as
a paid civil servant but also a participant in the labour relations system, an official of the
state who ensures that the government shows its human side through his or her direct
presence in the workplace. With this goal in mind, the inspectorate was converted into a
basic organ for the development and application of legislation; it became, in fact, a
fundamental pillar of social reform.

This dual concept of its activities (strict control and active observation of the facts) reveals
the origins of inspectoral activity within legal institutions. On the one hand, the labour
inspectorate works with clear, specific legal texts which have to be applied; and, on the
other hand, the correct articulation and exercise of its functions lead it to interpret the
letter of the law by means of direct action. The inspector has to know not only the letter
of the law, but also the spirit behind it and he or she must therefore be sensitive to the
world of work and have a profound knowledge not only of the rules but also of the
technical and production procedures. Thus the inspectorate is an organ of labour policy,
but also a creative institution of progress, progress that is fundamental to the very
evolution of labour law and labour relations.

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The evolution of the world of work has continued to deepen and reinforce the role of the
inspectorate as an independent organ of control at the centre of the labour relations
sphere. In a parallel way, modification and change in the world of work generate new
aims and forms of internal relationships in the complex microcosm that is the workplace.
The original concept of a paternalistic type of relationship between the inspector and
those subject to inspection gave way early on to more participatory action by the
representatives of employers and workers, with the inspector involving the interested
parties in his or her activities. Hence the role of conciliator in collective disputes was
assigned to labour inspectors right from the beginning in the legislation of many
countries.

Together with the consolidation of the role of the state inspector, advances in the trade
union movement and professional organizations aroused a greater interest on the part
of the workers themselves in active participation in inspection. After various attempts by
the workers to incorporate themselves in direct inspectorial action (e.g., attempts to
establish worker-inspectors as existed in Communist countries), the independent and
objective status of the inspectorate came to be favoured, with its definitive
transformation into a state organ consisting of civil servants. However, the participatory
attitude of the workers’ and employers’ representatives was not lost in their contacts
with the new institution: the inspectorate, in addition to being an independent entity,
was also converted into a participant holding a special place in the dialogue between
those representatives.

From this perspective the inspectorate developed progressively and in parallel with social
and economic evolution. For example, the protectionist tendency of the state during the
first third of the twentieth century resulted in substantial modifications in labour law,
adding a considerable number of graduates to those already enrolled as inspectors. One
immediate consequence of these developments was the creation of a true labour
administration. Similarly, the emergence of new forms of work organization and the
pressure of market forces on the public service at the end of the twentieth century have
of course also affected the labour inspectorate in many countries.

The inspectorate, originally conceived as a body of legal controllers, has modified its own
activity over time and converted itself into a useful and integrated mechanism
responsive to the technological needs of new forms of work. In this way labour law has
also grown, adapting itself to the new needs of production/services and incorporating
regulations of a technical nature. Hence the appearance of related sciences: the
sociology of labour, ergonomics, occupational safety and health, labour economics and
so on. With new emphases and perspectives going beyond the purely legal sphere, the
inspector became an active element of the true application of rules in workplaces, not
only by virtue of applying sanctions but also by advising employers’ and workers’
representatives.

Generalist versus Specialist

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The national regulations themselves have adopted two different organizational
approaches to inspection: the generalist inspectorate (which arose in continental Europe)
and the specialist inspectorate (which originated in the United Kingdom). Without
entering into the arguments concerning the advantages of one or the other system, the
terminology of the titles reveals two quite different perspectives. On the one hand, the
generalist (also called unitary) approach involves inspectorial action performed by a
single person, assisted by various technical institutions, on the assumption that the
general appreciation of a single inspector can provide a more logical and coherent basis
for the solution of various labour problems. The generalist inspector is an arbiter (in the
sense of the word used in ancient Rome) who, having consulted with the relevant
specialized bodies, tries to respond to the difficulties and problems posed by the
particular workplace. The generalist inspector handles labour relations disputes directly.
The specialist inspectorate, on the other hand, takes direct action through the use of a
pre-eminently technical inspector, who has to resolve specific problems within a more
narrow scope. In a parallel manner, purely labour relations questions are dealt with by
bipartite or sometimes tripartite mechanisms (employers, trade unions, other
government agencies), which try to resolve conflicts through a dialogue among them.

Despite the differences between the two trends, the point of convergence lies in the fact
that the inspector continues to be a living expression of the law. In the generalist
inspection system, the inspector’s central position allows him or her to recognize
immediate needs and make modifications accordingly. The Italian situation is particularly
illustrative of this: the law empowers the inspector to issue executory rules to
complement the general regulations, or to substitute more specific regulations. In the
case of the specialist inspectorate, the inspector’s in-depth knowledge of the problem
and of the technical standards allows him or her to assess possible non-compliance with
reference to the legal requirements and prevention of hazards and also to propose
alternative solutions for immediate application.

The Present Role of Inspection

The central role of the inspector means that, in addition to his or her supervisory
function, the inspector frequently becomes a pillar of support for existing social
institutions in the labour field. Apart from the function of general control as regards legal
requirements concerning working conditions and workers’ protection, the inspectorate in
many countries supervises the fulfilment of other requirements relating to social
services, the employment of foreign workers, vocational training, social security and so
on. To be effective, a labour inspectorate should have the characteristics embodied in the
ILO’s Labour Inspection Convention, 1947 (No. 81): sufficient staffing levels,
independence, adequate training and resources and the powers necessary to carry out
inspections and to achieve solutions to the problems found.

In many countries the inspection services are also given responsibilities in the resolution
of labour disputes, participation in the negotiation of collective agreements at the
request of the parties, activities relating to the gathering and evaluation of socio-
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economic data, drafting memoranda and expert technical advice in their fields for the
labour authorities and other functions of a purely administrative nature. This extension
and multiplicity of tasks arises from the concept of the inspector as an expert in labour
relations with specific technical knowledge. It also reflects a special vision of a framework
for the operation of enterprises which sees the inspectorate as the ideal institution for
evaluating and solving the difficulties of the world of work. However, this
multidisciplinary character in some cases gives rise to a basic problem: dispersion. It may
be asked whether labour inspectors, being obliged to assume multiple responsibilities,
do not run the risk of having to favour activities of an economic or other nature to the
detriment of those which should be the essence of their mission.

The major controversy over the determination of the typical and priority functions of the
inspectorate relates to the function of conciliation of labour disputes. Although
surveillance and supervision surely make up the daily activity of the inspector, it is no
less certain that the workplace is the centre of labour conflict, whether individual or
collective. The question thus arises as to whether all the control and evaluation activity of
the inspectorate does not imply, in some measure, “palliative” action as regards conflict
itself. Let us examine an example: the inspector who suggests the application of legal
requirements concerning noise is in many cases responding to a complaint from the
workers’ representatives, who consider that the high decibel level affects work
performance. When advising the employer, the inspector is proposing a measure for
resolving an individual conflict generated within day-to-day working relationships. The
solution may or may not be adopted by the employer, without prejudice to the
subsequent initiation of legal action in case of non-compliance. In a similar manner, an
inspector’s visit to a workplace to examine whether an act of anti-union discrimination
has occurred is aimed at diagnosing and if possible eliminating, internal differences that
have arisen in that respect.

To what extent are the prevention and solution of conflicts different in the daily activity
of the inspector? The answer is not clear. The close intermeshing of all the spheres that
form part of the labour field means that the inspectorate is not only a living expression of
the law but also a central institution in the labour relations system. An inspectorial body
that examines the world of work as a whole will be able to assist in securing better
conditions of work, a safe working environment and, as a result, improved labour
relations.

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In recent years, legislation, international instruments and general literature on
occupational health and safety have highlighted the importance of information,
consultation and cooperation between workers and employers. The focus has been on

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averting disputes rather than their settlement. Some contend that in the area of
occupational safety and health, the interests of workers and employers converge and
thus disputes can be more easily avoided. Yet disputes still arise.

The employment relationship is subject to diverging interests and priorities as well as

changing concerns, including with respect to health and safety considerations. The
potential thus exists for disagreement or conflicts which may harden into labour
disputes. Although there may be a consensus regarding the importance of health and
safety issues in general, disagreement may arise regarding the need for specific
measures or their implementation, particularly where extra time or money is involved or
production will be decreased. When dealing with health and safety, there are few
absolutes: what is an “acceptable” risk, for instance, is relative. Where to draw the line on
a number of issues is open to debate, particularly since complicated situations may have
to be addressed with limited technical assistance and a lack of conclusive scientific
evidence. Also, perceptions in this area are continually shifting as a result of the use of
new technology, medical and scientific research, changing societal attitudes and so on.
The potential for diverging views and dispute in this area is, therefore, considerable.

In all areas of labour relations, but perhaps particularly with respect to health and safety
concerns, the equitable and efficient resolution of disputes is essential. Disputes may be
resolved at an early stage as a result of one side to the dispute making the other aware
of relevant facts. This may be done formally or informally. Disputes may also be dealt
with through internal complaints procedures, usually involving progressively higher
levels of management. Conciliation or mediation may be needed to facilitate the
resolution of the dispute, or a solution may be imposed by a court or an arbitrator. In the
health and safety area, the labour inspector may also play an important role in dispute
settlement. Some disputes may lead to work stoppages, which in the case of health and
safety issues may or may not be considered a strike under the law.

Categories of Disputes

Within the purview of health and safety considerations, a variety of types of dispute may
arise. Although the categories may not always be obvious, giving the dispute a particular
definition is often important for determining the mechanisms for settlement that will be
applied. Disputes in general can be classified as individual or collective, depending on
who initiates, or has the authority to initiate, the dispute. Generally, an individual dispute
is one involving an individual worker and a collective dispute involves a group of workers,
usually represented by a trade union. A further distinction is often made between rights
disputes and interest disputes. A rights dispute (also called a legal dispute) involves the
application or interpretation of rights under law or an existing provision set out in a
contract of employment or a collective agreement. An interest dispute, on the other
hand, is a dispute regarding the creation of rights or obligations or the modification of
those already in existence. Interest disputes primarily arise in relation to collective
bargaining.

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Sometimes defining a dispute as collective or individual will determine the resolution
procedures; however, it is usually the interaction between the categories that is relevant
– collective rights disputes, collective interest disputes and individual rights disputes are
usually given distinct treatment. This article deals only with the first two categories, but it
should be kept in mind that some stages in the process of collective disputes will
coincide with those for individual claims.

Whether a dispute is considered to be collective or individual may depend on whether

the law allows the trade union to raise a dispute on the issue in question. To obtain
authority to negotiate over health and safety and other issues, in a number of countries
a trade union needs to be registered with the public authorities or to be recognized as
being representative of a given percentage of the employees concerned. In some
countries, these prerequisites also apply with respect to the authority to raise rights
disputes. In others, the employer must voluntarily agree to deal with the trade union
before the trade union can act on behalf of the employees.

A trade union may be able to initiate procedures to settle a collective rights dispute
where health and safety obligations affecting the workplace as a whole are at issue: for
example, if there is a provision in the collective agreement or in legislation providing that
noise levels are not to exceed a certain limit, particular precautions are to be taken with
respect to machinery, or personal protective equipment is to be provided and the
employer does not comply with these provisions. Collective rights disputes may also
arise, for example, where the employer fails to consult with or provide information to the
health and safety committee or representative as required by law or the collective
agreement. Due to its inherently collective nature, an alleged breach of the collective
agreement may in some countries be considered a collective dispute, particularly if it
concerns the implementation of provisions of general applicability such as those on
safety and health, even if in reality only one worker is immediately and directly affected
by the employer’s breach. Breach of legal provisions may be considered collective where
the trade union acts on behalf of all affected workers, where it is entitled to do so as a
result of the breach.

Collective interest disputes over health and safety matters may also take many forms.
Such disputes could arise out of negotiations between a trade union and an employer
over the formation or responsibilities of a health and safety committee, the introduction
of new technology, specific measures for dealing with hazardous materials,
environmental control and so on. The negotiations may involve general statements of
principle regarding health and safety or specific improvements or limits. Where the
parties reach an impasse in the negotiations, dealing with the dispute is considered an
extension of the freedom to bargain collectively. In the Collective Bargaining Convention,
1981 (No. 154), the ILO has noted the importance of setting up bodies and procedures
for the settlement of labour disputes as part of the process of promoting collective
bargaining (Article 5(2) (e)).

Grievance Procedures
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The term grievance procedure is generally used to mean internal procedures set out in
the collective agreement to resolve disputes regarding the application or interpretation
of the collective agreement (rights disputes). Similar procedures are, however, often set
up even in the absence of a union or collective agreement to address problems and
complaints of workers, as they are seen to be a fairer and less costly means of dispute
resolution than litigation (McCabe 1994). The collective agreement normally provides that
the complaint is to be dealt with through a multi-stage procedure involving increasingly
higher levels within the organization. For example, a dispute on a health and safety
matter may go first to the immediate supervisor. If not resolved at the first stage, the
supervisor and the health and safety representative may then undertake an
investigation, the findings of which are submitted to a manager or perhaps the health
and safety committee. If the dispute remains unresolved, a senior level of management
may then intervene. There may be several stages which need to be exhausted before
outside procedures are set in motion. The agreement may go on to provide for third
party intervention in the form of inspection, conciliation and arbitration, which will be
discussed in more detail below.

The Examination of Grievances Recommendation (No. 130), adopted by the ILO in 1967,
underlines the importance of grievance procedures for rights disputes, whether
individual or collective. It states that workers’ organizations or the representatives of
workers in the undertaking should be associated with the employers in the
establishment and implementation of the grievance procedures within the undertaking.
Rapid, uncomplicated and informal procedures are urged. Where procedures within the
undertaking are exhausted without a mutually acceptable resolution being reached, the
Recommendation goes on to set out procedures for final settlement, including joint
examination of the case by the employers’ and workers’ organizations, conciliation or
arbitration and recourse to a labour court or other judicial authority.

Conciliation and Mediation

The collective agreement or law may require collective disputes to be submitted to

conciliation or mediation before further dispute settlement procedures can be invoked.
Even without being required to submit a dispute to conciliation, the parties may
voluntarily ask a conciliator or mediator, an impartial third party, to assist them in
reducing their differences and ultimately reaching an agreement. In some industrial
relations systems, a distinction is made, at least in theory, between conciliation and
mediation, though in practice the line is difficult to draw. The role of conciliators is to re-
open the lines of communication, if they have been broken, to help the parties to find
common ground so that an agreement can be reached and perhaps make findings of
fact. The conciliator does not, however, present formal proposals to resolve the dispute
(although in practice such a passive role is seldom adopted). A mediator, on the other
hand, is expected to propose terms of settlement, though the parties remain free to
accept or reject the proposals. In many countries there is no real distinction between

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conciliation and mediation, with both mediators and conciliators seeking to assist the
parties to a dispute to find a solution, using the most appropriate tactics of the moment,
sometimes remaining passive, sometimes putting forth proposals for settlement.

Conciliation is one of the most widely used and is considered to be one of the most
effective procedures for the settlement of disputes over interests. In the process of
collective bargaining, conciliation can be seen as the continuation of negotiations with
the assistance of a neutral party. In a growing number of countries, conciliation is also
used at the initial stages of settling rights disputes. The government may make
conciliation services available or may set up an independent body to provide such
services. In some countries, labour inspectors are involved in conciliation.

The ILO, through the adoption of the Voluntary Conciliation and Arbitration
Recommendation, 1951 (No. 92), has advocated that free and expeditious voluntary
conciliation machinery be “made available to assist in the prevention and settlement of
industrial disputes between employers and workers” (Paras. 1 and 3). The role of
conciliation in ensuring the effective exercise of the right to bargain collectively is
reflected in the European Social Charter (10 October 1961, Article 6(3)).

Arbitration

Arbitration involves the intervention of a neutral third party who, though not a member
of the established judiciary, is authorized to impose a decision. In several countries,
virtually all rights disputes arising out of the application or interpretation of the collective
agreement are dealt with through binding arbitration, sometimes following an obligatory
and unsuccessful conciliation stage. Arbitration is available in many countries as a
voluntary procedure, while in others it is compulsory. Where arbitration is imposed as a
method of resolving disputes over interests it is usually limited to the public service or
essential services. In some countries, however, particularly developing countries,
arbitration of interest disputes is more generally applicable.

Arbitration is dealt with in the Voluntary Conciliation and Arbitration Recommendation,

1951 (No. 92). As with conciliation, the Recommendation concerns itself with disputes
that are voluntarily submitted to arbitration and provides that in such cases the parties
should abstain during the proceedings from striking or locking out and should accept the
arbitration award. The voluntary nature of submission to arbitration is also stressed in
the European Social Charter (ibid.). If one of the parties or public authorities can initiate
arbitration proceedings, arbitration is considered to be compulsory. The ILO’s Committee
of Experts on the Application of Conventions and Recommendations has stated that, in
the case of interest disputes, compulsory arbitration is generally contrary to the
principles of the Right to Organize and Collective Bargaining Convention, 1949 (No. 98),
as it vitiates the autonomy of the bargaining parties (ILO 1994b). A final award binding on
the parties concerned, if they have not voluntarily submitted a dispute to arbitration, may
also be viewed as unreasonably limiting the right to strike. The Committee of Experts has
stated that “such a prohibition seriously limits the means available to trade unions to
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further and defend the interests of their members, as well as their right to organize their
activities and to formulate their programmes, and is not compatible with Article 3 of
Convention No. 87 [the Freedom of Association and Protection of the Right to Organize
Convention, 1948].” (ibid., para. 153.)

Labour Administration Authorities

The labour administration in most countries has a variety of responsibilities, of which

one of the most important is inspecting work premises to ensure compliance with the
laws on employment, in particular those on health and safety. Inspectors do not require
a labour dispute in order to intervene. However, where a dispute alleges a violation of
the law or agreement, they may play an important role in achieving its settlement.

In dispute settlement, labour administration authorities generally play a more active role
in health and safety matters than in other areas. The role of the inspector in disputes
may be defined in collective agreements or legislation involving health and safety,
general labour law, workers’ compensation or a specific industry. In some countries, the
health and safety representative or committee is entitled to lodge complaints with the
labour inspector, or other public labour or health and safety officer, against the
employer. The inspector may be requested to intervene where there is an allegation that
health and safety regulations are not being observed. The labour administration
authorities may also be required to intervene due to their competence under state
workers’ compensation schemes.

The inspectors may have authority to issue improvement, prohibition or stop-work

orders, levy fines or penalties or even initiate prosecutions. Civil or criminal proceedings
may be available depending on the nature of the violation, the seriousness of the
consequences, prior knowledge of the likely consequences and whether the violation has
been repeated. An inspector’s decision can normally be reviewed on appeal to a higher
public officer, a specialized labour or health and safety body or the court. Separate
administrative and appeal mechanisms may exist for different industries (e.g., mining).

The Labour Inspection Recommendation (No. 81), adopted by the ILO in 1947,
encourages collaboration between officials of the labour inspectorate and workers’ and
employers’ representatives. European Union Framework Directive No. 89/391/EEC on
Health and Safety adopted in 1989 provides that workers and their representatives are
entitled to appeal to the authority responsible for health and safety protection at work if
they are not satisfied that the measures taken by the employer will ensure safety and
health at work. According to the Directive, workers’ representatives are to have the
opportunity to submit their observations during inspection visits by the competent
authority (Article 11(6)).

Regular and Labour Courts

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Since rights disputes involve rights or obligations that are already in existence, the
general principle underlying their settlement is that they are to be resolved ultimately by
courts or arbitrators and not through industrial action, such as a strike. Some countries
leave ordinary courts to deal with all disputes over rights, irrespective of their labour
relations character. However, in many countries, labour courts (called in some countries
“industrial courts”) or specialized tribunals will deal with rights disputes. They may deal
with rights disputes generally or only certain types of disputes, such as claims of
unjustified discipline or dismissal. The principal reason for having such specialized
judicial bodies is the need for speedy, inexpensive and informal procedures and
specialized capacity in labour matters. The delays and expenses involved in the ordinary
court system are not considered acceptable when dealing with employment, which is an
area of crucial importance to a person’s life and often involves a relationship that must
continue even after the dispute is settled. Jurisdiction over collective rights disputes may
be divided between the ordinary and the labour courts: for instance in some countries
the only collective disputes that a labour court is competent to adjudicate are those
arising out of an alleged breach of a collective agreement, leaving breaches of legal
provisions to the regular courts.

Often representatives of workers and employers as well as an independent judge sit on

labour courts or tribunals. Labour courts consisting of only workers’ and employers’
representatives also exist. This bipartite or tripartite composition is aimed at ensuring
that the members have expertise in industrial relations matters and, therefore, that
relevant issues will be canvassed and dealt with in light of practical realities. Such
composition also assists in giving credibility and persuasiveness to the decision. The
workers’ and employers’ representatives may have an equal voice in determining the
outcome of the dispute or they may be entitled to act only in an advisory capacity. In
other countries, judges unaffiliated to either side of industry resolve collective rights
disputes.

In a few countries, labour courts deal both with collective rights disputes and interest
disputes. As discussed above with respect to arbitration, where adjudication is
compulsory for interest disputes, the voluntary nature of collective bargaining is
undermined.

Work Stoppages

A concerted work stoppage may take place for a variety of reasons. Most commonly it is
understood as a form of pressure on the employer to agree to terms and conditions
once an impasse has been reached in the collective bargaining process. This is
considered to be a strike in most countries and is normally viewed as a legitimate means
of workers and their organizations to promote and protect their interests.

The right to strike is expressly recognized as a general right under the International
Covenant on Economic, Social and Cultural Rights (16 December 1966, Article 8(1) (d)).
The European Social Charter (supra, Article 6(4)) links the right to strike to the right to
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bargain collectively and states that workers and employers are to have the right to
collective action in cases of conflicts of interest, subject to obligations arising out of the
collective agreement. The Charter of the Organization of American States (30 April 1948,
Article 43(c)) defines the right to strike as an integral element of freedom of association,
along with the right to collective bargaining. The ILO’s Committee of Experts on the
Application of Conventions and Recommendations and Governing Body Committee on
Freedom of Association have recognized the right to strike as arising out of the general
principles of freedom of association set out in the Freedom of Association and Right to
Organize Convention, 1948 (No. 87), though the right to strike is not mentioned
specifically in the text of the Convention. The Committee of Experts has stated that “a
general prohibition of strikes constitutes a considerable restriction of the opportunities
opened to trade unions for furthering and defending the interests of their members...
and of the right of trade unions to organize their activities” (ILO 1994b, para. 147).

In some countries the right to strike is a right of a trade union and thus strikes not
organized or authorized by the trade union are considered “unofficial” and unlawful. In
other countries, however, the right to strike is a right of the individual, even though it is
normally exercised by a group, in which case the distinction between “official” and
“unofficial” strikes is of little significance.

Even where the right to strike is recognized in principle, certain categories of workers
may be excluded from enjoying the right, such as members of the police or armed forces,
or senior public servants. The right may also be subject to certain procedural limitations,
such as requiring prior notice to be given or a ballot to be taken in support of the strike.
In a number of countries, the parties are obliged to refrain from striking or locking out,
either absolutely or on issues regulated in the agreement, while the collective agreement
is in force. This “peace obligation” is often set out specifically in legislation or collective
agreements, or may be implied through judicial interpretation. The right to strike in many
countries is severely restricted, or even prohibited, in essential services. This restriction is
permitted under ILO principles if the services to which it applies are limited to those the
interruption of which would endanger the life, personal safety or health of the whole or
part of the population. (ILO 1994b, para. 159.)

In the field of disputes over health and safety issues, a distinction must be made between
those relating to negotiating for certain rights (for instance, determining the precise
functions of a safety representative in the implementation of a general health and safety
policy) and those relating to situations of imminent danger. Where a dangerous situation
exists, or is believed to exist, legislation or collective agreements generally give workers
the right to stop work. This is often expressed as an individual right of the worker or
workers who are directly at risk. A variety of formulas exist for justifying a work
stoppage. An honest belief that a danger exists may suffice, or an objective danger may
need to be shown. Regarding who is in danger, workers may cease working if they are
immediately threatened, or the right may be broader and include causing danger to
others. Collective work stoppages in solidarity (sympathy strikes) are not generally
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envisaged by the provisions (and therefore may be considered unlawful), but in fact they
do take place. Authority to stop work may also be vested in the workplace health and
safety representatives. Work may then be suspended pending a final decision by labour
administration authorities.

The Occupational Safety and Health Convention, 1981 (No. 155), provides that workers
shall not suffer undue consequences from having removed themselves from a work
situation which they believe presents an imminent and serious danger to their life or
health (Article 13). A similar provision can be found in Article 8(4) of the European Union’s
1989 Framework Directive, which refers to “serious, imminent and unavoidable danger”.
Often the right to stop work due to imminent danger is contained in health and safety
legislation. In some countries, the right is embodied in labour legislation and conceived
as a work stoppage that does not constitute a strike; therefore, the procedural
prerequisites for a strike do not need to be met and the peace obligation is not breached.
Similarly, where an employer closes the workplace in compliance with a stop-work order
or because of a reasonable belief that a dangerous situation exists, it is generally not
considered to give rise to a lockout.

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Types of Disputes

An individual dispute arises from a disagreement between an individual worker and his
or her employer over an aspect of their employment relationship. An individual dispute
exemplifies a “rights dispute”, that is a dispute over the application of the terms of
legislation or an existing agreement, whether a collective bargaining agreement or an
individual written or oral contract of employment. Thus there could be a dispute over the
amount of wages paid or their manner of payment, work schedules, working conditions,
entitlement to leave and so forth. In the field of health and safety an individual dispute
may arise in relation to the use of personal protective equipment, extra payments for
carrying out dangerous work (hazard pay – a practice now frowned upon in favour of
eliminating hazards), refusal to perform work that poses an imminent danger and
observance of health and safety rules.

An individual dispute may be initiated by a worker complaining to vindicate what he or

she believes to be a right, or reacting to employer-imposed disciplinary action or
dismissal. If a dispute involves similar claims on behalf of individual workers, or if an
individual dispute raises a point of important principle for a trade union, an individual
dispute can also lead to collective action and, where new rights are then sought, to an
interests dispute. For instance, a single worker who refuses to perform work that he or
she thinks is too hazardous may be disciplined or even dismissed by the employer; if the
trade union sees that this work poses a continuing danger for other workers, it may take
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up the issue with collective action, including a work stoppage (i.e., a lawful strike or a
wildcat strike). In this way, an individual dispute may lead to and become a collective
dispute. Similarly, the union may see a point of principle which, if not recognized, will
lead it to make new demands, thus giving rise to an interests dispute in future
negotiations.

The resolution of an individual dispute will depend largely upon three factors: (1) the
extent of legal protection afforded to workers in a particular country; (2) whether or not a
worker falls under the umbrella of a collective agreement; and (3) the ease with which a
worker can have enforcement of his or her rights, whether they are afforded by law or
collective agreement.

Disputes over Victimization and Dismissal

In most countries, however, certain rights enjoyed by an individual will be the same no
matter what the length of his or her engagement or the size of the enterprise. These
normally include protection against victimization for trade union activity or for reporting
to the authorities an employer’s alleged infringement of the law, called “whistle-blower”
protection. In most countries, the law affords protection to all workers against
discrimination on the basis of race or sex (including pregnancy) and, in many cases,
religion, political opinion, national extraction or social origin, marital status and family
responsibilities. Those grounds are all listed as improper bases for dismissal by the ILO
Termination of Employment Convention, 1982 (No. 158), which also adds to them: union
membership and participation in union activities; seeking office as, or acting or having
acted as, a workers’ representative; and filing a complaint, or participating in proceedings
against an employer involving alleged violation of laws or regulations, or having recourse
to administrative authorities. These last three are clearly of particular relevance to the
protection of workers’ rights in the field of safety and health. The ILO Committee of
Experts on the Application of Conventions and Recommendations recently highlighted
the seriousness of retaliatory measures, in particular in the form of termination of
employment, taken against a worker who reports the employer’s failure to apply
occupational safety and health rules while the workers’ physical integrity, health and
even lives may be at risk. When fundamental rights or the physical integrity of lives of
workers are at stake, it would be desirable for conditions as to proof (reversal of the
burden of proof) and measures of redress (reinstatement) to be such as to allow the
worker to report illegal practices without fearing reprisals (ILO 1995c).

However, when it comes to retention of employment in practice, two major determinants

of an individual’s employment rights are the enforcement mechanism available to
vindicate these rights and the type of contract of employment under which he or she has
been engaged. The longer the term of the engagement, generally the stronger the
protection. Thus a worker still in the probationary period (in most countries a matter of a
few months) will have little or no protection from dismissal. The same is true for a casual
worker (i.e., a person engaged on a day-to-day basis) or a seasonal worker (i.e., one
employed for a limited, recurring period). A worker with a contract of employment for a
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fixed term will have protection during the period covered by the contract, but will
normally not have a right to its renewal. Workers engaged on contracts that are without
limit of time are in the most secure position, but they may still be dismissed for specified
reasons or more generally for what is often termed “gross misconduct”. Their jobs may
also be eliminated in the course of company restructuring. With increasing pressures for
greater flexibility in the labour market, the recent trend in legislation governing contracts
of employment has been to make it easier for employers to “shed labour” in the
restructuring process. In addition, a number of new forms of work relationships have
arisen outside the traditional one of employer/employee. Without employee status, the
individual concerned may have little legal protection.

Disputes over a Worker’s Refusal to Perform Hazardous Work

An individual dispute may often arise around the question of an employee’s refusal to
perform work that he or she believes to pose an imminent hazard; the belief must be
that of a reasonable person and/or be held in good faith. In the United States the
reasonable belief must be that performance of the work constitutes an imminent danger
of death or serious physical injury. In some countries, this right is negotiated in collective
bargaining; in others, it exists by virtue of legislation or court interpretations.
Unfortunately, this important right is not yet universally recognized, despite its inclusion
as a basic principle in Article 13 of the ILO Occupational Health and Safety Convention,
1981 (No. 155). And even where the right exists in law, employees may fear retaliation or
job loss for exercising it, particularly where they do not enjoy the backing of a trade
union or an effective labour inspectorate.

The right to refuse such work is normally accompanied by a duty to inform the employer
immediately of the situation; sometimes the joint safety committee must be informed as
well. Neither the worker who refused nor another in his or her place should be
(re)assigned to the work until the problem has been resolved. If this happens
nonetheless and a worker is injured, the law may (as in France and Venezuela) subject
the employer to severe civil and criminal penalties. In Canada, both the worker who
refused the work and the health and safety representative have rights to be present
while the employer undertakes an on-the-spot investigation. If the employee still refuses
to do the work after the employer has taken remedial measures, an expedited
government inspection can be triggered; until that has led to a decision, the employer
cannot require the worker to do that work and is supposed to provide him or her with an
alternative assignment to avoid earnings loss. A worker designated to replace the one
who refused must be advised of the other’s refusal.

Recognition of a right to refuse hazardous work is an important exception to the general

rule that the employer is the one who assigns work and that an employee is not to
abandon his or her post or refuse to carry out instructions. Its conceptual justification lies
in the urgency of the situation and the presence of interests of public order to save life
(Bousiges 1991; Renaud and St. Jacques 1986).

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Participation in a Strike

Another way in which an individual dispute can arise in connection with a health and
safety issue is the participation of an individual in strike action to protest unsafe working
conditions. His or her fate will depend on whether the work stoppage was lawful or
unlawful and the extent to which the right to strike is guaranteed in the particular
circumstances. This will involve not only its status as a collective right, but how the legal
system views the employee’s withdrawal of labour. In many countries, going on strike
constitutes a breach of the employment contract on the part of the employee and
whether this will be forgiven or not may well be influenced by the overall power of his or
her trade union vis-à-vis the employer and possibly the government. A worker who has a
strong theoretical right to strike but who can be temporarily or permanently replaced will
be reluctant to exercise that right for fear of job loss. In other countries, engaging in a
lawful strike is explicitly made one of the grounds on which a worker’s employment may
not be brought to an end (Finland, France).

Means of Dispute Resolution

The ways in which an individual dispute can be resolved are in general the same as those
available for the resolution of collective disputes. However, different labour relations
systems offer varying approaches. Some countries (e.g., Germany, Israel, Lesotho and
Namibia) provide labour courts for the resolution of both collective and individual
disputes. The labour courts in Denmark and Norway hear only collective disputes;
individual workers’ claims must go through the regular civil courts. In other countries,
such as France and the United Kingdom, special machinery is reserved for disputes
between individual workers and their employers. In the United States, individuals have
rights to bring actions claiming unlawfùl employment discrimination before bodies that
are distinct from those before which unfair labour practice claims are pressed. However,
in non-union situations, employer mandated arbitration for individual disputes is
enjoying popularity despite criticism from labour practitioners. Where an individual is
covered by a collective bargaining agreement, his or her grievance can be pursued by the
trade union under that agreement, which usually refers disputes to voluntary arbitration.
An individual’s ability to win a claim may ofien depend on his or her access to procedures
that are fair, affordable and rapid and whether he or she has the support of a trade
union or an able labour inspectorate.

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The agreement between Bethlehem Steel and the United Steelworkers of America is
typical of company-wide agreements in large unionized manufacturing enterprises in the
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United States. Steel industry labour agreements have contained safety and health
articles for more than 50 years. Many provisions negotiated in the past gave workers and
the union rights that were later guaranteed by law. Despite this redundancy, the
provisions still appear in the contract as a hedge against changes in the law, and to allow
the union the option of taking violations to impartial arbitration rather than the courts.

The Bethlehem agreement runs from 1 August 1993 to 1 August 1999. It covers 17,000
workers in six plants. The full agreement is 275 pages long; 17 pages are devoted to
safety and health.

Section 1 of the safety and health article pledges the company and the union to
cooperate in the objective of eliminating accidents and health hazards. It obligates the
company to provide safe and healthful workplaces, obey federal and state law, provide
employees with the necessary protective equipment free of charge, provide chemical
safety information to the union and inform workers of the hazards and controls for toxic
substances. It grants the union’s central safety and health department the right to any
information in the company’s possession that is “relevant and material” to an
understanding of potential hazards. It requires the company to make air sampling tests
and environmental investigations at the request of the union co-chairperson of the
plant’s safety and health committee.

Section 2 sets up joint union-management safety and health committees at the plant and
national levels, prescribes the rules under which they operate, mandates training for
committee members, gives members of the committee access to all parts of the plant to
facilitate the committee’s work and specifies the applicable rates of pay for committee
members on committee business. The section also specifies how disputes over
protective equipment are to be resolved, requires the company to notify the union of all
potentially disabling accidents, sets up a system of joint accident investigation, requires
the company to gather and supply to the union certain safety and health statistics, and
establishes an extensive safety and health training programme for all employees.

Section 3 gives workers the right to remove themselves from work involving hazards
beyond those “inherent in the operation” and provides an arbitration mechanism
through which disputes over such work refusals can be resolved. Under this provision, a
worker cannot be disciplined for acting in good faith and on the basis of objective
evidence, even if a subsequent investigation shows that the hazard did not in fact exist.

Section 4 specifies that the committee’s role is advisory, and that committee members
and officers of the union acting in their official capacity are not to be held liable for
injuries or illnesses.

Section 5 states that alcoholism and drug abuse are treatable conditions, and sets up a
programme of rehabilitation.

Section 6 establishes an extensive programme for controlling carbon monoxide, a

serious hazard in primary steel production.
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Section 7 provides workers with vouchers for the purchase of safety shoes.

Section 8 requires the company to keep individual medical records confidential except in
certain limited circumstances. However, workers have access to their own medical
records, and may release them to the union or to a personal physician. In addition,
physicians for the company are required to notify workers of adverse medical findings.

Section 9 establishes a medical surveillance programme.

Section 10 establishes a programme for investigating and controlling the hazards of

video display terminals.

Section 11 establishes full-time safety representatives in each plant, chosen by the union
but paid by the company.

In addition, an appendix to the agreement commits the company and the union to review
each plant’s safety programme for mobile equipment operating on rails. (Fixed rail
equipment is the leading cause of death by traumatic injury in the American steel
industry.)

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Excerpted from Vogel 1994

Danish industrial relations provide an example of a country with a number of institutions

that play a role in relation to health and safety. The main features are:

COLLECTIVE BARGAINING: Negotiation of agreements by which trade unions and

employers fix wages, conditions of work, etc. Pertinent highlights are:

Shop stewards who are elected by workers under collective bargaining agreements; enjoy
statutory protection against dismissal; serve as channel between workers and
management on working conditions.

Collective Agreement on Cooperation and Cooperation Committees provides for information

to be given to individuals and groups of workers in advance so they can make their views
known before a decision is taken and for the establishment of cooperation committees.

Cooperation committees must be set up in all firms employing more than 35 workers (25
in the public service). Joint committees to promote cooperation in day-to-day operations;
they must be consulted on the introduction of new technologies and the organization of
production; some co-determination rights on working conditions, training and personal
data.

National collective agreement on industrial disputes (of 1910) gives workers a right (rarely
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exercised) to stop work if considerations of “life, welfare or honour” make this absolutely
necessary. Other collective agreements contain provisions on training and trade unions
also provide it.

FRAMEWORK LAW: The Working Environment Act creates “the basis on which the
undertakings themselves will be able to solve questions relating to safety and health
under the guidance of the employers’ and workers’ organizations and under the
guidance and supervision of the Labour Inspection Service” (Sec. 1(b)). The Act
establishes a complete system from the plant to the national level to permit worker
participation:

Safety representatives are elected representatives required in firms employing at least ten
workers; they enjoy the same protection against dismissal and retaliation as shop
stewards and are entitled to reimbursement of official expenses.

Safety groups: The safety representative and the department supervisor form the safety
group. Its functions are to:

monitor working conditions

inspect equipment, tools, materials
report any risk which cannot be avoided immediately
halt production where necessary to avert an imminent serious danger
ensure that work is performed safely and proper instructions are given
investigate industrial accidents and occupational diseases
participate in prevention activities
cooperate with the occupational health service
act as link between workers and the safety committee.

Members of the safety group are entitled to training and to necessary information.

Safety Committees are required in firms employing at least 20 workers. In firms with more
than two safety groups, the safety committees consist of workers elected from among
safety representatives, two supervisor members and an employer’s representative.

The functions are:

planning, directing and coordinating health and safety activities

being consulted on these matters
cooperating with other companies engaged in work at the same workplace
cooperating with the company’s occupational health service
supervising the activity of safety groups
making recommendations on prevention of accidents and diseases.

WORKING ENVIRONMENT COUNCIL involves employers’ and workers’ organizations in the

definition and application of preventive policy at the national level. Composition: 11
representatives of employee organizations representing manual and non-manual

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workers, one for supervisors, ten of employers’ organizations, plus an occupational
medical practitioner, a technical expert and non-voting governmental representatives.
Functions:

is consulted on drafting legislation and regulations

may on its own initiative take up a health and safety matter
submits annual recommendations on working environment policy
coordinates the activities of Trade Safety Councils
supervises the activity of the Working Environment Fund.

WORKING ENVIRONMENT FUND is managed by a tripartite board. The Fund has mainly
information and training duties, but also finances research programmes.

TRADE SAFETY COUNCILS: Twelve Trade Safety Councils examine the problems of their
trade or industry and advise undertakings. They are also consulted on draft legislation.
Equal representation of employers’ and supervisors’ organizations on the one hand and
workers’ organizations on the other hand.

GOVERNMENTAL AUTHORITIES: In addition, the Ministry of Labour, the Labour Inspection

Service and within it, the Danish Institute of the Working Environment, provide various
types of services and advice in the field of occupational safety and health. Collective
industrial disputes are heard by the Labour Courts.

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