Health and safety
The World Health Organisation defines health as ‘a state of complete psychic, mental and social well-being…[which] does not merely consist of an absence of disease or infirmity’. The scope of health and safety includes protection of the worker’s well-being, social and psychological as well as physical. Social well-being may be affected by the organisation of work, such as space, working time patterns, isolation; psychological well-being (psychosocial hazards) may be affected by factors such as workload and speed, stress at work, monotony, lack of social contacts, absence of collective representation and unfair remuneration.
In reaction to the European Council of Nice (2000), the Commission’s Communication Adapting to change in work and society: a new Community strategy on health and safety at work 2002–2006 proposed to extend the concept of health and safety. In this view, health and safety should encompass a global approach to well-being at work, addressing new risks and taking into account the changing labour market: atypical workers, female employment, elderly workers, active ageing, etc.
Improvement of working conditions was an EC objective from the beginning. Article 140 of the EC Treaty provides for the European Commission to encourage cooperation between Member States and facilitate the coordination of their action in matters relating to prevention of occupational accidents and diseases and to occupational hygiene.
However, Community policy on health and safety – and in particular EC health and safety law – only developed substantially after the Single European Act (SEA) 1986. Until then, there was no explicit Treaty basis granting the Community competence to protect workers’ health and safety. Despite the absence of an explicit Treaty basis, Community regulation to build the common market allowed for the adoption of European standards for protecting occupational health and safety using two rationales.
First, European health and safety standards could be related to specifications and standards for work equipment and machinery. Work equipment and machinery are not only tools for workers. As goods to be produced and sold, they are subject to the Treaty provisions on the free movement of goods. In order to prevent the free movement of goods in the single market leading to a race to the bottom – the lowest common denominator of standards for safe machinery – adoption at EU level of health and safety requirements for machinery was desirable.
Second, European health and safety standards could be justified to avoid unfair competition (social dumping). Increased competition within the single market could result in ‘social dumping’, as the race to lower costs would lead to standards dropping, including standards regarding health and safety in the working environment.
As a consequence, even before the SEA, the Community adopted regulations protecting occupational health and safety, both via product and process regulation, based on the general provisions of the Treaty allowing Directives ‘for the approximation of such laws, regulations or administrative provisions of the Member States as directly affect the establishment or functioning of the common market’ (Article 100 EEC Treaty, now Article 115 TFEU).
The SEA improved on this method of protecting workers from accidents and diseases by introducing Article 100a (now Article 114 TFEU). This allowed the adoption by qualified majority vote of harmonisation measures ‘which have as their object the establishment and functioning of the internal market’ (thus reducing the obstacle of the unanimity requirement of Article 100 EC now Article 115 TFEU). The consequent harmonisation of health and safety standards for products, aiming to reduce barriers to trade, has functioned as an instrument of health and safety policy. The third paragraph of Article 100a (now Article 114(3) TFEU) provides that Commission proposals ‘concerning health, safety, environmental protection and consumer protection, will take as a base a high level of protection’. The Machinery Directive of 1989 (Council Directive 89/392/EEC of 14 June 1989 on the approximation of the laws of the Member States relating to machinery) provided an important framework for health and safety standards for machinery. In addition, the SEA introduced an explicit legal basis to adopt legislation aimed at protecting health and safety in the working environment (process regulation).
A new Article 118A was introduced into the EEC Treaty (now part of Article 153(1)(a) TFEU) (working environment: legal basis). The new article provided that:
Member States shall pay particular attention to encouraging improvements, especially in the working environment, as regards the health and safety of workers, and shall set as their objective the harmonisation of conditions in this area, while maintaining the improvements made.
Crucially, legislative proposals based on the new Article 118A EEC (now part of Article 153(1)(a) TFEU) could be adopted by qualified majority voting (QMV) in the Council of Ministers. The European Court of Justice (ECJ) declared that the provision in Article 137(1)(a) EC (now Article 153(1)(a) TFEU) regarding the ‘improvement in particular of the working environment to protect workers’ health and safety’:
…does not limit Community action to the lowest common denominator, or even to the lowest level of protection established by the virtuous Member States.
In other words, the minimum requirement is a Union minimum standard, which is to bind all the Member States and is not determined by the lowest standard established in Member States.
The scope of Union competence to legislate in the field of the working environment was expanded due to a very wide health and safety definition given by the ECJ which refers to the abovementioned World Health Organisation’s definition of health and safety.
In the EU health and safety policy there is considerable overlap between health and safety, working conditions and labour standards. The Commission’s Social Action Programme of 1974 proposed a programme aimed at the ‘humanisation’ of living and working conditions with particular reference to improvement in safety and health conditions at work. The overlap is made explicit in Article 31(1) of the Charter of Fundamental Rights of the European Union which became integral part of Union law with the coming into force of the Treaty of Lisbon on 1 December 2009: ‘Every worker has the right to working conditions which respect his or her health, safety and dignity’. Although the Commission was earlier the main actor, the Community has now established specialised agencies in the field: the European Foundation for the Improvement of Living and Working Conditions and the European Agency for Safety and Health at Work.
The turning point in EU health and safety policy following the SEA was the framework Directive on health and safety of 1989 (Directive 89/391). This established a number of general principles aimed at prevention and elimination of risks and protection of health and safety through the imposition of obligations on employers and the engagement of workers and their representatives through information and consultation and participation. The scope of application of the directive is very wide (Article 2(1)). The general principles governing the employer’s obligations are set out in Article 6(2). They also include risk assessment, i.e. risk evaluation, avoidance, substitution and prevention. The framework directive specifically prioritises collective protective measures (health and safety representatives). Workers are obliged to take care and cooperate with the employer and fellow workers (Article 13) and are to be provided with necessary training.
In accordance with the priority assigned to collective protective measures, the framework directive provides for a variety of persons with different functions connected with health and safety at the workplace. Workers and worker representatives (health and safety personnel) have the right of consultation and to take part in discussions on all questions relating to safety and health at work, and specifically, in connection with planning and introduction of new technologies.
Workers with specific responsibilities for health and safety or specialist health and safety representatives are entitled to information, and to balanced participation or to have consultation in advance and in good time on a variety of matters concerned with safety and health. These specialist worker representatives also have the right to ask the employer to take appropriate safety measures and the right to submit proposals in connection with hazards.
Workers designated by the employer are to carry out activities related to protection and prevention of risks – specifically, for example, for first aid, fire fighting and so on. They are to be allowed adequate time to enable them to fulfil their obligations. Outside competent persons are to be appointed where designated workers are not available. Workers are entitled to adequate safety and health training. Workers’ representatives are entitled to adequate time off work, and the necessary means to enable them to exercise their rights and functions. The various categories of workers involved in health and safety are not to be placed at any disadvantage.
Role of EC directives and of the social partners
EU action prior to 1989 with respect to accidents and occupational diseases included directives related to dangerous workplaces, (for example, Directive 77/576 providing for safety signs at the workplace), and the dangers of exposure to dangerous substances. The latter include vinyl chloride monomer (VCM) (Directive 78/610), carcinogens, chemical, physical and biological agents (Directive 80/1107), specifically lead (Directive 82/605) (Directives 80/1107 and 82/605 are now replaced by Directive 98/24) and asbestos (Directive 2003/18/EC, amending Directive 83/477). On 7 November 2006, the Commission presented a proposal for a directive on the protection of workers from the risks related to exposure to asbestos at work. This proposal brings together all the amendments introduced since the 1983 directive in line with the better regulation principle, as outlined by the European Economic and Social Committee.
The 1989 framework directive gave rise to further so-called ‘daughter directives’ applying its general principles to specific areas and aspects of health and safety. These include minimum safety and health requirements (Directive 89/654), work equipment (Directive 89/655), personal protective equipment (Directive 89/656), manual handling of heavy loads (Directive 90/269), display screen equipment (VDUs) (Directive 90/270), carcinogens (Directive 90/394), biological agents (Directive 90/679), temporary and mobile construction sites (Directive 92/57), mineral-extracting: drilling (Directive 92/91) and mineral-extracting: surface and underground (Directive 92/104), fishing vessels (Directive 93/103), explosive atmospheres (Directive 99/92) and chemical agents (Directive 98/24). Directives adopted under the Euratom Treaty (e.g. Directive 96/29/Euratom) provide separate protection against ionising radiation.
Four directives designed to protect workers from the risks from exposure to physical agents concern vibrations (Directive 2002/44/EC), noise (Directive 2003/10/EC), electromagnetic fields (Directive 2004/40/EC); and optical radiation (Directive 2006/25/EC).
Specific directives have been adopted to deal with the health and safety risks of certain categories of workers: for example, young workers (Directive 94/33 on the prohibition of child labour), temporary and fixed-term workers (Directive 91/383) and pregnant workers and mothers who have recently given birth (Directive 92/85).
See chapter on European collective agreements.
Working time as a matter of health and safety
The potential scope of EU protection is illustrated by EU regulation of working time in general as a matter of health and safety (Directive 93/104). Requirements as regards daily and weekly rest periods, rest breaks, the principle of humanisation of work, including working time patterns, maximum weekly working hours, shift work, paid annual leave and night work are all considered matters of health and safety. The definition of working time has given rise to problems with respect to the health and safety implications of on-call work. Specific problems of working time of mobile workers in some sectors have been recognised (e.g. transport sectors), as have some special categories of workers (e.g. doctors in training), and categories of workers and activities for which specified derogations may be permitted (e.g. security and surveillance activities).
The Working Time Directive was notable in recognising both collective bargaining, as a derogation mechanism, and collective agreements, as setting standards for health and safety protection of workers (working time and collective agreements). This had been evident in some transport sectors initially excluded from the scope of the working time directive. Sectoral framework agreements at EU level have established working time standards in air, rail and sea transport.
This success of the sectoral social dialogue in the area of working time highlights the potential of the introduction of the new procedure of mandatory consultation of the social partners in the Maastricht Agreement on Social Policy (now Articles 154–155 TFEU), which indicates the engagement of the social partners in the formulation of EU policy on occupational health and safety through this mechanism.
In general, the issues being matters of health and safety have become more complex as the recognition of risks expands (e.g. harassment in the workplace), including those specific to certain sections of the labour force, at a time when the EU is attempting through its employment strategy to encourage greater participation in the labour market.
Role of European collective agreements
In order to combat the increasing exposure to psychological risks, the European social partners signed two autonomous agreements on work-related stress (2004) and harassment and violence at work (2007). The European Commission, through the European Strategy on Health and Safety (2007–2013), puts in evidence the importance of promoting mental health at work. With regard to mobbing (bullying) at work, however, in spite of the Resolution of the European Parliament (40Kb PDF) (2001), only a few of the EU Member States adopted specific national legislation.
In 2006, the members of the multi-sectoral Negotiation Platform on Silica (NePSi) signed an autonomous multi-sector agreement on workers’ health protection through the good handling and use of crystalline silica and products containing it’. The agreement covers workers in different sectors of the economy across Europe and aims to reduce workers’ exposure to crystalline silica dust by promoting good practice measures in the workplace. Moreover, it seeks to enhance compliance with current EU and Member States’ health and safety legislation for workers.
In May 2008, the social partners in the maritime shipping industry concluded a European collective agreement to improve working conditions for the maritime workers across Europe. The agreement incorporates certain provisions of the International Labour Organization 2006 Maritime Labour Convention. Following the signing of the agreement, on 2 July 2008 the European Commission proposed a Council Directive (COM (2008) 422 final) (120Kb PDF) to implement the terms of the agreement. The proposed directive will ensure that the agreement’s provisions are transposed into the laws of the Member States. The Council of Ministers approved, on 17 December, 2009 the proposal for a directive based on the agreement between ECSA and ETF aiming to transpose into Union law the provisions of the Maritime Labour Convention (2009/13/EC). This Directive will enter into force concomitantly with the ILO Maritime Labour Convention.
Enforcement of health and safety standards
Health and safety in the working environment in the EU recognises the trend, more marked in some countries than others, towards attributing to the social partners and collective industrial relations an active role in implementation and enforcement of EU law regarding health and safety standards at the workplace. The central role of collective industrial relations in the implementation and enforcement of health and safety standards is given a European dimension under the framework Directive 89/391/EEC. This highlights important general questions of enforcement of the right to ‘working conditions which respect… health, safety and dignity’ (EU Charter Article 31(1)) and the role of official authorities. These concern enforcement mechanisms in general (Senior Labour Inspectors’ Committee), including the role of the Commission, as well as including sanctions and employers’ liability. The framework Directive 89/391/EEC stipulates in the thirteenth Recital of the Preamble: ‘Whereas the improvement of workers’ safety, hygiene and health at work is an objective which should not be subordinated to purely economic considerations’. With regard to the employer’s obligations, in 2007 the ECJ has, however, accepted the ‘so far as is reasonably practicable’ restriction upon the employers’ duty to ensure health and safety at work, which is also included in the UK Health and Safety at work Act (1974).