Recent developments in occupational illnesses and work-related accidents

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Debate about health and safety at work in France has been intensified over 2001-2 by the publication of several highly critical reports on the prevention of work-related accidents and occupational illnesses, various legislative developments and a landmark court ruling on employers' responsibility for asbestos protection. These developments have combined to mount a challenge to the existing system of prevention and raised the prospect of a reform of the entire raft of compensatory measures for work-related accidents and occupational illnesses.

The publication of several critical reports since the beginning of 2001 has heralded a new development in the field of health and safety at work. In November 2001, the Economic and Social Council (Conseil économique et social) issued a study, carried out by Gérard Filoche, on the way that the role and activities of hygiene, safety and working conditions committees (comités d'hygiène, de sécurité et des conditions de travail, CHSCTs) - generally translated as workplace health and safety committee s - have changed over the past 20 years (FR0201101F). Enshrined in legislation in 1982 as the most important actors with responsibility for the management of work-related risk in companies, these institutions have, the report states, reached the limits of the means of action they possess.

A report by Roland Masse, a member of the Higher Council for the Prevention of Occupational Risks (Conseil supérieur de la prévention des risques professionnels), published in June 2001, states that the compensation system for work-related accidents and occupational illness es inherited from the founding legislation passed in 1898 should be completely overhauled, and deems the adoption of the principle of full compensation inevitable. The principle of flat-rate compensation, operational for more than a century, is seen as inappropriate to recent changes in the law on compensation and as no longer meeting society's expectations. A February 2002 report produced by the Cour des comptes (an independent watchdog agency on public spending) on the management of occupational risks, makes a similar critique of the legal provisions on work-related accidents, labelling them'discriminatory' and 'unjust'. As victims of work-related injuries receive only a limited flat-rate compensation payment, they find themselves worse off than a victim of a traffic accident, for example.

Legislative changes

Already implemented or planned changes in the law have been based on the same ideas. The 'social modernisaion' law passed on 17 January 2002 (FR0201102F), includes provisions on occupational health services, in particular the establishment of multi-disciplinary health services and the acknowledgement of the principle of independence for workplace doctors and other health workers, consultants and members of occupational health and safety agencies.

Moreover, the cabinet agreed a bill on 13 February 2002 which is aimed at bolstering the control of technological risks. This bill, in the wake of the explosion at the AZF plant at Grand Paroisse in Toulouse in September 2001 (FR0202105F), is centred on controlling urban development around the most dangerous workplaces (known as Seveso 2 'high thresholds').

The industrial relations plank of the new law aims to improve risk management and preventative measures by affording greater participation in these processes to staff representatives and outside bodies. In the 'at risk' workplaces, the role of CHSCTs is to be extended and the use of subcontracting restricted. To strengthen the role of CHSCTs in 'at risk' workplaces, the employer will have to set up a CHSCT including two different structures: a workplace structure, which already exists, and a broader-based structure including representatives of outside companies working in the workplace and their staff representatives. These committees are to be consulted before any decision to subcontract is taken.

To reduce the consequences of outsourcing for workers' safety, the bill aims to confer overall control of on-site industrial risks on the head of the employing company, so when an employee of a subcontracting company has to come to an 'at risk' site, the employer will have to carry out a joint risk assessment exercise with each subcontracting firm. Subcontractors will also have to provide training before their staff work on site. The existence of presumed 'employer's inexcusable error' will be established in cases of such employees not receiving this type of training who become victims of a work-related accident or occupational illness. Yet the bill does not prohibit 'cascade' subcontracting (the use of subcontracting by a company which is already itself subcontracting) in 'at risk' workplaces, despite the relevant parliamentary committee having advocated such a ban.

The bill will be debated after the parliamentary and presidential elections of April-May 2002 when parliament reconvenes after the summer break, but a far-reaching Cour de cassation court ruling has speeded up the process.

Landmark ruling on asbestos

On 28 February 2002, the social affairs chamber of the Cour de cassation (France's highest civil and criminal court) delivered a ruling which overturned not only the approach to the compensation for asbestos exposure, but the whole system of compensation for work-related accidents and occupational illnesses. Ruling for the first time on the issue of asbestos (whose toxicity was discovered in 1906 and which was classified as carcinogenic by the social security system in 1946, even before it had been extensively used during the 1945-75 period), the court endorsed previous rulings according to which companies had committed 'inexcusable errors' by exposing their employees to asbestos, and stated that employers could not have been unaware of the danger. Previously, an 'employer's inexcusable error' had been recognised, using a definition dating back to 1941, only if the victim succeeded in demonstrating the existence of an 'error of exceptional seriousness' on the employer's part. For the first time, the Cour de cassation has made the employer liable for guaranteeing results in terms of safety from accidents and illnesses rather than simply implementing preventative measures.

This new case law establishing employer liability for guaranteeing results in terms of safety means that French employees should be better protected than those in other European Union countries, as no other court has yet concluded that there should be an obligation to ensure results in terms of safety in relation to asbestos. After asbestos, other hazardous products (solvents, colouring agents, tar and radioactive materials) could generate compensatory damages to be paid by both private companies and the state, which manages arsenals, rail networks, dockyards and nuclear power stations (FR0009189N).

The ruling thus opens the way to an obligation being imposed on employers to implement genuine programmes for the prevention of work-related accidents. This was welcomed by the National Federation of Work-Related Accident Victims and People with Disabilities (Fédération nationale des accidentés du travail et des handicapés, FNATH), which called on the candidates in the presidential elections to revise the law in favour of full compensation for work-related accidents. A senior representative of the General Confederation of Labour (Confédération générale du travail, CGT), Serge Dufour, expressed the hope that, due to the high costs that it may entail, such full compensation 'will spur company heads on to improve their preventative policies'. The French Democratic Confederation of Labour (Confédération française démocratique du travail, CFDT) welcomed the court's decision and is arguing for the implementation of a system of full compensation provided through the social security system, whose work-related accidents/occupational illnesses budget is funded entirely by employers' contributions. The General Confederation of Labour-Force ouvrière (Confédération générale du travail-Force ouvrière, CGT-FO) wants to see 'the forthcoming reform of compensation for work-related accidents and occupational illnesses announced at Higher Council for the Prevention of Occupational Risks given its basic shape by this ruling'.

Faced with this new context, the Movement of French Enterprises (Mouvement des entreprises de France, MEDEF) employers' organisation is seeking a reform of employers' responsibility. The Ministry for Employment and Solidarity has announced that a Fund for the Compensation of Asbestos Victims (Fonds d'indemnisation des victimes de l'amiante, FIVA) will be up and running very soon. MEDEF describes it as 'a fund overwhelmingly paid for by private sector employers' work-related accident contributions enabling the state as an employer to shirk all responsibility'.

Commentary

The various reports published on this topic since 2001, like the Cour de cassation's ruling, have pushed the authorities to introduce sweeping reforms in the system of compensation for work-related accidents and occupational illnesses, in order to offer their victims total, rather than flat-rate, compensation. The intensification of debates on health and safety at work, coupled with recent legal developments, have thus provided an opportunity to think hard about reformulating all the related measures. By making employers liable for guaranteeing results in terms of workplace safety, the Cour de cassation has created, inter alia, a contradiction between social security and labour legislation, under which which employers are obliged only to provide resources for prevention. This contradiction is a loophole which has given parliament the chance to rethink the entire set of measures in this field.

This advance in the debates, in case law and in certain legislative provisions already decided or planned, should not however allow us to forget the major day-to-day problems involved in the application of the existing occupational health-related provisions, and the lack of resources granted to the Labour Inspectorate. (Odile Join-Lambert, IRES)