Social partners in favour of health and safety bargaining

In late 2001, Denmark's new Liberal-Conservative government proposed a number of amendments to working environment legislation, which seek to simplify regulations and cut 'red tape' for smaller businesses. The proposals roll back a number of changes made by the former government. The DA employers' confederation welcomed the move while the LO trade union confederation opposed it and responded in January 2002 with an ambitious strategy paper on improving the working environment. However, there was a high degree of consensus between the social partners on the idea of greater regulation of health and safety through collective bargaining.

Towards the end of December 2001 - one month after coming into office – the new coalition government of the Liberal Party (Venstre) and Conservative People's Party (Konservative Folkeparti) (DK0112147F) presented a package of amendments to Denmark's present working environment legislation. Some of these changes will more or less strike out the proposals contained in the so-called 'incentive package' (incitamentpakke) tabled by the former governing coalition of the Social Democratic Party (Socialdemokratiet) and the Social Liberal Party (Det Radikale Venstre). 'Incentive package' was the label used for a series of measures aimed at motivating employers to ensure a safe and sound working environment through a system of rewards and punishments (or incentives/disincentives) (DK0107128F).

The new government's most important proposed amendments to the previous government's measures and the existing legislation are as follows:

• the planned extension of the activities of the Occupational Health Services (Bedriftssundhedsstyrelsen, BST) to include matters such as guidance concerning health and safety matters throughout the entire labour market has been shelved;
• the competence of the National Working Environment Authority (Arbejdstilsynet) to impose fines for violations of the working environment legislation will be suspended;
• the current working environment levy on employers will be abolished, because it is considered by the Minister for Employment as nothing but a special tax imposed upon enterprises;
• the special fee paid by companies in connection with health and safety inspections will be abolished;
• the rules concerning the setting up of internal safety organisations in enterprises and the drawing up of workplaces assessments (Arbejdspladsvurdering, APVs) will be modified. The lower company-size limit for the establishment of safety organisations will be increased from five to 10 employees; and
• the National Working Environment Authority will be responsible for supervising the 'psycho-social' aspects of health and safety at work only in those sectors where this matter is not covered by a collective agreement. (DK0111101N)

The government has stated that the aim of its initiative is to simplify the current complicated administrative rules and to ease the bureaucratic burdens for small enterprises. At the same time, the government has declared that it is up to the social partners to enter into a dialogue and conclude agreements concerning health and safety at work. This has contributed to the positive reactions to the government's proposals from the Danish Employers' Confederation (Dansk Arbejdsgiverforening, DA) and to a new initiative from the trade unions concerning measures to ensure a safe and sound working environment.

DA content

DA has fought a bitter battle against the previous government's 'incentive package'. The new administration's decision to shelve the package means that working environment legislation has been set back by about one year and this is a development welcomed by DA, which also fully supports the present government's invitation to the social partners to conclude agreements concerning health and safety at work. Indeed, in a comment on the government's proposals made early in January 2002, DA stated that it might be a good idea to make the regulation of health and safety at work an issue for a 'sort of collective bargaining'. 'We should be able to develop a sort of bargaining model in this field so that the legislative framework in the field of safety and health can be filled in by the conclusion of collective agreements which will have the same binding force as existing collective agreements and which can be enforced by through the Industrial Court (Arbejdsretten),' said the vice-director of DA, Thomas Philbert.

LO initiative

There were strong reactions from the trade unions against what they considered to be a major setback. They were in particular alarmed about the abolition of the duty to set up internal safety organisations in small enterprises and the removal of the competence of the National Working Environment Authority to impose fines.

At the end of January 2002, the Danish Confederation of Trade Unions (Landsorganisationen i Danmark, LO) published a 20-page strategy paper entitled A spotless working environment. LO's strategy for a safe and sound working environment, 2002-5. The basic idea underlying this initiative is in full accordance with the thoughts expressed by DA. Like the employers, LO believes that the social partners should assume a much greater share of the responsibility in matters concerning health and safety at work. LO proposes a two-pronged strategy:

• the unions will continue to seek improvements in the working environment legislation. In LO's view, legislation continues to be the most important instrument to guarantee the majority of the rights of employees in the working environment field and the state still has the main responsibility for health and safety in enterprises. For example, setting threshold values for chemical substances is not an issue which is suited for regulation through collective bargaining. The matters which can be made the subject of special working environment agreements are those which can be controlled by employee representatives at workplace level; and
• the unions will in future work for the inclusion of rules on health and safety at work in binding agreements between employers and employees. In this way, cases of failure to observe the rules on the part of enterprises could be brought before industrial arbitration tribunal s. It should be possible for the social partners to conclude special working environment agreements which are covered by the special machinery set up to settle industrial disputes, but which are not necessarily part of the ordinary collective agreements.

In the strategy paper, LO proposes seven fields for preventive action by the social partners, as well as seven fields of action for the public authorities to ensure a safe and sound working environment. LO thereby wishes to commit employers to take the working environment seriously and to conclude agreements with employees. The proposed role of the authorities is mainly to ensure the continued development of the regulatory basis for working environment initiatives, to supervise compliance with the legislation and to provide a guidance and counselling system to assist enterprises in their preventive measures.

One of LO's proposals is that the social partners represented on the National Working Environment Council (which is made up of representatives of the main social partner organisations in the private and public sectors) should, together with the National Labour Market Authority and the Institute for Safety and Health at Work (Arbejdsmiljøinstituttet, AMI), produce an annual list of the 10 most hazardous job categories and the five most serious working environment problems in each occupational sector. Furthermore, if an employer fails in a serious way to comply with agreements/rules on health and safety at work, it should be lawful for the employees to call a strike. The authorities should also set up a database of enterprises which neglect the working environment in order to put pressure on them; on the other hand, responsible enterprises should be financially rewarded.

The LO strategy paper also attacks the traditional view which has been dominant for decades that action on the working environment action is only a matter of dealing with the 'traditional' physical aspects of the working environment (noise, smoke, dust etc). For LO, the main priorities in the field of health and safety at work in the coming decades are:

• industrial accidents;
• problems with the psycho-social working environment;
• physical attrition due to monotonous or onerous physical work;
• the 'indoor climate';
• noise; and
• exposure to chemical substances.

DA considers LO's proposal concerning a right for employees to strike in the event of an employer's failure to comply with the rules on health and safety at work as 'quite unacceptable'. It is also very concerned about the proposal to set up a database on the status of enterprises in relation to a safe working environment, as this would mean, DA believes, one-sided exposure of companies.

Commentary

Recent events mark a breakthrough in the field of health and safety at work. LO and DA now both take the view that not all matters concerning safety and health at work are suited for regulation in the form of legislation. The most important thing is to involve the enterprises and the employees. It is not a matter of replacing the working environment legislation, but of supplementing it. The purpose of the proposed agreements will mainly be to extend and implement the minimum requirements laid down in the working environment legislation, and it should be possible to bring disputes concerning these working environment agreements before the bodies set up for the settlement of industrial disputes. The health and safety agreements should not necessarily form part of the ordinary collective agreements, but rather constitute a parallel system which works in the same manner. Both sides recommend the bargaining model as suitable for obtaining results in this field, and both have a clear interest in ensuring a better working environment. DA expressed this view as 'a bad working environment is bad business'.

It will, of course, be important to see the content and scope of the legislation which the Minister for Employment intends to introduce, but when presenting the proposed amendments to the existing legislation he called upon the social partners to conclude agreements concerning the regulation of health and safety matters. This is quite in line with the new government's ideas about 'de-bureaucratisation'. However, on a single point, the government went too far. According to a ruling by the European Court of Justice in a similar case brought in Germany, small enterprises cannot be relieved of the obligation to draw up workplace health and safety assessments. The Minister for Employment thus had to withdraw his proposal to raise the minimum workforce-size threshold for the obligation to draw up such assessments from five to 10 employees. However, he has promised that the Ministry for Employment will draw up guidelines which will resolve some problems and help enterprises in drawing up assessments. (Carsten Jørgensen, FAOS)