Luxembourg: EWCO comparative analytical report on Information, consultation and participation of workers concerning health and safety

  • Observatory: EurWORK
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  • Published on: 21 Deireadh Fómhair 2010



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Disclaimer: This information is made available as a service to the public but has not been edited or approved by the European Foundation for the Improvement of Living and Working Conditions. The content is the responsibility of the authors.

Every company that employs at least 15 people must have an elected Staff Delegation. Each delegation has to appoint, from among its members or from among the establishment’s other workers, a Staff Safety Delegate. Every company must also appoint an expert on matters concerning health and safety at work. For companies with 49 paid staff or less, the employer him/herself can assume the function of appointed employee if he or she meets the provisions of the grand-ducal regulations concerning the time that the appointed employee has to have available, the appropriate training, the professional experience and the qualification pre-requisites.

Background information

The general issue

According to several studies (Walters, 2002, HSE, 2005), Health and Safety management shows significant differences between large companies and SMEs. In these latter, especially among micro-enterprises (less than 10 employees) and small ones (10-49 employees), H&S regulation is a lot of times perceived more as a burden to comply rather than a competitive opportunity because of stronger pressure over costs, company struggle for survival, lack of both financial and human resources. Further, in micro and small firms employers do not always own adequate OSH managerial skills and knowledge and they often see with suspicious the support offered by public agencies.

The extent of workers’ involvement is ambiguous: on the one hand could be easier because of direct relationship with ownership, while lower skills and shorter average tenure and the lack of OSH workplace representatives, due to legal threshold and/or non-unionization, make workers less involved in taking care of H&S on the other.

Regulatory Framework

The Health and Safety at work FrameWorks Council Directive 89/391 introduces general prevention principles applicable to all occupational risks, aimed to ensure a higher degree of protection of workers at work through the implementation of preventive measures to guard against accidents at work and occupational diseases. The directive establishes the obligation on employers to adequately inform (art. 10) and to consult his/her employees and their representatives (art.11) by allowing them “to take part in discussions on all questions relating to safety and health at work”, thus including their right to make proposals and to a balanced participation. Finally, the directive sets an obligation on the employer to adequately train at his expenses his/her employees (art. 12) and their representatives, with regular repeals in order to take into account of technological and organizational changes and to the insurgence or changes of new risks.

The H&S at work strategy 2007-2013 stresses the importance of SMEs, high-risk sectors and subcontracting in achieving the target of a 25% cut of work accidents within 2013: in particular, SMEs are seen as more vulnerable since they have “fewer resources to put complex systems of protection in place, while some of them tend to be more affected by the negative impact of health and safety problems”.

The strategy envisages a simplification and adaptation of the existing legislation to SMEs and various forms of support in its implementation, such as dissemination of good practices, training of employees, development of simple risk assessment tools and guidelines, access to affordable and good quality prevention services, and economic incentives. Labour inspectors should play a twofold role both “as intermediaries to promote better compliance with the legislation in SMEs, primarily through education, persuasion and encouragement” and “when necessary, through coercive means”,

Member States are invited to “take steps to facilitate access to good quality prevention services” particularly in favour of SMEs, to improve health surveillance of workers while avoiding inflating the formal requirements, to incorporate into their national strategies specific measures (financial assistance, training tailored to individual needs, etc.). Further, Member States and the social partners are encouraged to promote “the practical, rapid implementation of the results of basic research by making simple preventive instruments available to enterprises and in particular to SMEs”.

The second programme of Community action in the field of health (2008–2013) and the 2008 "European Pact for Mental Health and Well-being" , together with framework agreements on work-related stress (2004) and violence, bullying and harassment at the workplace (2007) show both an important shift from the original notion of H&S, as stated by the 1989 directive, towards a more general “well-being” approach, and the prominent role played by social dialogue in its advance.

Figures and trends

Eurostat figures over work accidents (2002-2006) show the highest incidence rates in medium companies (50-249 employees), while micro-entreprises (1-9 employees) show the highest rates over fatal accidents. These trends seem to depend on the impact of manufacturing, construction and transports, while in the other services industries trends are not so clear-cut. However, Eurostat figures by industry and company size are not complete in order to provide an adequate assessment over time. Further, new risks emerge and work-related diseases (WRDs) evolve from the so-called “hygienic” risk factors towards “psychosocial” ones reflecting changes in working conditions.

Similarly Eurofound 4th EWCS does not show a clear-cut relationship between work accidents, risks for health and work-related diseases with company size. When asked “Do you think your health or safety is at risk because of your work?” (Question 32) and “Does your work affect your health, or not?” (Question 33), respondents working in small companies (10-49 employees) report the lowest scores. However, the share of respondents not well informed on H&S (question 12) declines from 15.3% in companies with 2 to 9 employees to 11.2% in companies over 250 employees: on average, such a share tend to increase since 1995 (see the full descriptive report). Similarly, both training and involvement over organizational issues are positively correlated with company size and could display indirectly a positive effect on H&S. Composition effects with respect to age (small companies show younger population), and industry (wider proportion of SMEs in services) should be taken into account.

Questionnaire

1. National settings and regulatory framework

- How is the 1989 Framework directive on H / S and in particular information / consultation practically implemented in SMEs? Any data available? Do administrative reports exist in particular from the Labour Inspectorate?

For companies with 49 paid staff or less, the employer him/herself can assume the function of appointed employee if he or she meets the provisions of the grand-ducal regulations (Règlement grand-ducal du 9 juin 2006 http://www.legilux.public.lu/leg/a/archives/2006/0102/a102.pdf#page=2) concerning the time that he or she has to have available, the appropriate training, the professional experience and the qualification pre-requisites.

The « appointed employee » assists the employer in the implementation of the protection and prevention measures in the company. He is the safety and health at work expert. He must be able:

  • to assume and organize the general surveillance of the respect of the legal requirements in terms of safety and health of the workers;

  • to define a company strategy to develop the safety and the health of its workers;

  • to supervise the work methods and the means implemented, the risks evaluations and the risks assessments and the measures to prevent occupational accidents;

  • to achieve regular safety visits;

  • to manage the safety registers and to hold the books of maintenance;

  • to work out, to update and to communicate the Safety and health plans, alarm procedures, intervention and évacuation procedures;

  • to prepare, organize and direct the fire evacuation exercises;

  • to ensure the relationships with the Labour and Mines Inspectorate, the occupational external service to which the company is affiliated and with other controlling authorities or with the first-aid and emergency services in the event of accident or fire.

With regard to the social dialogue bodies, every private sector employer is required to have staff delegates appointed within establishments that regularly employ at least 15 people. Each delegation has to appoint a Staff Safety Delegate, either from among its members or from among the establishment’s other members of staff.

The Staff safety delegate consigns the result of his observations, contresigned by the department head, in a special register. Each week, accompanied by the plant manager or its representative, he can carry out an visit of inspection. In administrative services however, there can be only two visits a year. The plant manager must consult and inform the safety delegate about safety and health measures taken by the company. It also has the right to ask the employer he takes appropriate measures or he can submit some proposals to him.

There is no specific SME-related data.

- Does its implementation in micro and small companies follow similar patterns than in medium ones?

The average number of hours that the appointed employee has to devote to health and safety management is determined, inter alia, not only by the size of the company but also by the number of posts legally defined as being at risk. Thus, in companies with 16 paid staff or less and in those with between 16 and 49, the appointed employee must have at least 70 seconds of time on average available per person per day for the assignments that encumber him or her in relation to people’s health and safety at work, plus at least a further 70 seconds of time per person per day on average for each post at risk. This means that an appointed employee within a company of 15 people without any post at risk must on average devote two hours per week of his or her working time to safety matters.

For companies employing 50 people or more, the number of seconds per person per day is reduced. Thus for companies employing between 50 and 99 people, the number of seconds per person per day is 50, and for companies with between 100 and 249 people, it is 45 seconds per person per day. Each time, a further 70 seconds are added for each of the company’s posts at risk. Thus, for a company of 200 people (without any posts at risk), the “appointed employee” must devote at least 14 hours per week to his or her prevention assignments.

The appointed employee’s legally defined assignments are the same whatever the size of the company. On the other hand, the obligations in terms of training (number of hours and programme) differ according to the various company groups.

- Is H&S the current focus of legislation or did it evolve by incorporating “well-being at work” as the basic concept?

The legislation is focused on health and safety aspects.

- The Community strategy health and safety at work for 2007-2012 calls upon the member states to work out and implement strategies to reduce the number of industrial accidents and occupational diseases; are the SMEs specially singled out in the national strategies and cooperation between social partners underlined / foreseen / called for?

There is no national strategy.

2. The micro-level settings: the role of H&S representatives

- From what level onwards / number of employees onwards, is it legally binding to establish an H&S Committee in companies? What is its role and function?

Every company that employs at least 15 people must have an elected Staff Delegation. Each delegation has to appoint, from among its members or from among the establishment’s other members of staff, a Staff Safety Delegate. The Safety Delegate records the result of his or her observations, countersigned by the Departmental Head, in a special register that is kept available in the establishment’s head office, where the members of the delegation, as well as the inspection and control personnel of the Labour and Mines Inspectorate, are able to take note of it. Each week, the Safety Delegate, accompanied by the head of the establishment or his/her representative, can proceed with a tour of inspection in the establishment’s head office and on its building sites or in other workplaces of a temporary nature. In administrative departments, the number of tours may not exceed two per annum. Also, for temporary building sites where the number of paid staff does not exceed 150, the tour of inspection can only take place with the prior consent of the head of the establishment or his/her representative.

The head of the establishment is required to consult and inform the Safety Delegate about risk assessment matters, and especially about the protective measures that are to be taken. Safety Delegates are entitled to ask the employer to take appropriate measures and to submit proposals for this purpose to him or her, in order to mitigate any risk for the staff or to eliminate any sources of danger.

- From what level onwards / number of employees onwards are risk prevention representatives elected? Are they representatives distinct from H&S Committee and Works Councils?

A Safety Delegate is appointed in companies that employ at least 15 people on a regular basis. In companies of at least 150 people, a joint committee has to be set up. The latter has a power of decision in the event of the introduction or amendment of any measures concerning staff health and safety and the prevention of occupational illness, as well as at the time of the installation of data processing of a personal nature for workplace monitoring purposes, especially when this is justified by health and safety requirements. When there is a joint committee, the safety and health matters are the competence of the committee. When there is no joint committee, certain competences go to the staff delegation. As regards to occupational health in particular it is so that:

  • - internal or external departments of occupation health internal or external must cooperate closely with the joint committee or, if there is no joint committee, with the personnel delegation;

  • - that the company doctor must draw up at the beginning of each year an annual report relating to activities past year; this report must be submitted to the joint committee or to the staff delegation if there is no joint committee before being transmitted to the direction of health (ministry for the public health)

  • - that the joint committee or, the staff delegation in case there is no committee, can ask for medical examinations.

In the companies of 150 companies at least, joint committee and staff delegation coexist. The Safety delegate keeps however his specific competences (see here above). The joint committee has the obligation to inform the delegation. However, it is rare in practice, that the members of the delegation and the joint committee are different people.

- Does the H&S Committee deal with individual health related complaints? Does it have the right to initiate action?

Generally, the Staff Delegation is called upon to help to protect the work and its environment, to prevent accidents at work and occupational illnesses, and to present any complaint, be it individual or collective, to the employer.

- Do regional/territorial risk prevention representatives exist, covering several small SME’s?

No.

- Is there special H&S training foreseen for OSH representatives/committees? Is it adequate in order to cope with both emerging risks and legislative and technological changes in SMEs?

Unlike for the appointed employee, no particular qualification nor any minimum professional experience are required for appointment to the post of Safety Delegate. The employer must on the other hand make sure that each person receives sufficient and appropriate health and safety training.

In accordance with the Act of 18 May 1979, apart from the training-leave envisaged for staff delegates, the Safety Delegate is entitled to appropriate training. The training-leave period varies according to the number of members of staff represented and may be defrayed by the State for somewhere between 50 and 100% of its cost.

Standard one-day basic training courses are organised by the Chamber of Employees’ on-going training centre.

- In order to carry out prevention policies, does a right exist for the H&S Committee to carry out surveys, call in outside independent experts? Who finances the costs of the operations / expertise? Does this right exist also in SMEs?

No, it is the employer who takes the initiative. The employer is nevertheless required to consult the Safety Delegate and to inform him or her about any recourse to outside skills for the purpose of organising any protection or prevention activities.

- Does the H&S Committee have the right to consult the Labour Inspectorate?

Yes, in emergencies, where the observations that have been made call for the immediate intervention of the Labour Inspectorate, the delegate is entitled to address this administration directly, on condition that he or she informs the head of the company or his or her representative and the Delegation of the fact at the same time.

- Does regular reporting, annual reports exist which describe enterprises occupational diseases, assess the occupational risks at the workplace and present prevention policies? Are they submitted to the H&S Committee for discussion before publication?

There are no specific legal provisions in this sense. Certain companies indeed inform the Joint Committee, or failing this, the staff delegation, of the preventive measures that have been taken. Furthermore, the occupational health doctor makes a verbal report to the Joint Committee each year.

- Is the H&S Committee, when providing a high standard of working conditions and of occupational health and safety seen as a positive competition factor? Can the image of the companies be regarded as important in the context for winning major contracts? Do companies refer to the activities of the H&S Committee in their Annual report of activities, to the existence of day-to-day bargaining and the management of working conditions by the H&S Committee? Do and how differ the approaches between micro/small, medium and large companies?

For these two last years, the employers’ organisations, led by the Luxembourg Companies’ Union (Union des entreprises luxembourgeoises), have been taking the initiative of raising corporate awareness of the importance of prevention policies. Inter alia, an entrepreneurial culture that is based on the strategy of preventing risk at the workplace is seen by the organisations that represent the companies as a key component of economic competitiveness. The employer organisations are proclaiming their determination to improve risk management within companies. The fight against absenteeism is also one of the leitmotivs.

3. Social partners and the role of collective bargaining

Please summarize specific arrangements on H&S for SMEs and SME-dominated industries, and how territorial OSH representatives could intervene at workplace.What is the role of Social partners in drawing guidelines and implementing H&S and work organization intervention aimed to prevent work accidents and WRDs? What is the role of labour inspectorates, social security institutions, OSH services and national agencies in promoting local-level experiences in SMEs? Please summarize, if there exist, the extent of the cooperation between these latter and social partners.

It is mainly the Accident Insurance Association (compensation fund) that issues the requirements for companies (they are tantamount to regulations). The Labour and Mines Inspectorate also formulates standards. The Accident Insurance Association proposes certain tools intended to help companies to implement a more comprehensive prevention policy (risk assessment and analysis) : practical guides on how to execute a risk assessment, on the correct use of machines, prevention of vibrations,… and also newsletters with thematic practical guidance. There is no particular collaboration between social partners and these bodies.

4. Figures, quantitative and qualitative studies

Are there specific surveys which prove that standards of working conditions, health and safety within small enterprises as compared to larger ones are significant lagging behind?

No, furthermore there are no statistics of industrial accidents per company size, but only per class of risk. The class of risk is used to calculate the level of the insurance premium.

Do these surveys also investigate the impact of training, information and consultation over working conditions also in SMEs?

No information.

When surveys lack, are there qualitative studies investigating the impact of involvement and training on working conditions and health in SMEs?

No information.

5. Good practices for SMEs: company/territorial level

Are there well known examples for specific collective agreements in a given sector covering working conditions, H&S in particular in SME’s which go far beyond legislation? Are they exceptions or the rule? Please report at least one example at national level and at least two at territorial/company level.

Construction Sector:

The construction sector’s training institute has just initiated a new project (2009-2010): the SCIPRISC  (S ystème  de  C oaching  I nnovant  pour  la  P révention  des  Ri sques  professionnels  dans  le  S ecteur  de  la  C onstruction)  http://www.ifsb.lu/fr/rd.php?dossier=3

 

The project consists of recruiting, training and placing five to six Health and Safety Prevention Coaches who will coach the sector’s companies, more specifically those that have an abnormally high level of risk.  The project’s objective is therefore to identify, on building sites and within companies, with the latter’s management, concrete and practical means to be implemented, not only in managerial and technical fields, but also in those of training and awareness-raising.

 

The innovative element consists of a proactive and preventive approach that reinforces a company’s human capital while reducing the cost of a lack of safety by 20% at the national level. The classical scheme of industrial risk management based traditionally on the regulation/conformity/control triangle will thus be supplemented by an approach focusing on prevention, accountability and guidance in the control of industrial risks and their consequences in terms of health and safety at work.

At the time being 4 coaches have been trained. 25 SME will profit from the support of a personal coach. The coach has the task to establish a diagnosis, to help the company to define its objectives, to give some advise for the implementation of the mesures considered and to ensure a follow-up throughout the process of the project. In total, the coach will organize 20 visits in each company. The concrete results will only be known at the end of 2010.

References

  • HSE (2005), Obstacles preventing worker involvement in health and safety. Research Report 296. http://www.hse.gov.uk/research/rrpdf/rr296.pdf

  • Walters D. (2002), Regulating health and safety in small enterprises. PIE, Peter Lang, Brussels

Odette Wlodarski, Prevent

[1] Question 28a_1 “Have you undergone: Training paid for or provided by your employer, or by yourself if you are self-employed?”; Question 28a_2: “Training paid for or provided by your employer, or by yourself if you are self-employed - number of days”; question 28b_1. “Have you undergone: Training paid for by yourself?”; question 28b_2. “Training paid for by yourself - number of days”; question 28c: “Have you undergone: On-the-job training?”; question 28d. “Have you undergone: Other forms of on-site training and learning?”

[2] Question 30b: “Over the past 12 months have you been consulted about changes in the organisation of work and / or your working conditions?”; question 30d. “Over the past 12 months have you discussed work-related problems with your boss?”

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