Implementing OHS laws and regulations can be challenging in complex, non-standard world of work
It’s one thing to draft and pass laws and regulations to protect the health and safety of workers. It’s another to implement and enforce these laws and regulations on the ground.
With the growth of non-standard work, ever more complex contracts and the outsourcing of work through global supply chains, considerable challenges arise in the implementation and enforcement of occupational health and safety (OHS) laws and regulations. How do authorities assign OHS responsibilities when traditional employer-employee relationships are no longer the prevailing norm? How do they address workplace mental health issues when they are difficult to attribute to the workplace?
This is one of several themes to come out of a systematic review of qualitative studies on OHS legislation and regulatory enforcement, a first of its kind. Led by University of Waterloo Associate Professor Dr. Ellen MacEachen, who conducted this review while she was a senior scientist at the Institute for Work & Health (IWH), the review team scanned the qualitative research literature for studies around the world on the topic.
The team ended up with 14 studies that were of medium or high quality. The themes discussed in the review ran the gamut, from inspectors’ training and resources to workers’ participation in the enforcement process. The findings were reported in an article published online in October by the Scandinavian Journal of Work, Environment and Health (doi:10.5271/sjweh.3529).
Psychological hazards, non-standard contracts among emerging issues
One of the themes that emerged from the review relates to the challenges of drafting and implementing OHS laws for today’s complex work environments. It can be especially difficult to implement laws to address newly understood hazards such as psychological harassment, bullying or other workplace practices that can be harmful to mental health. Even in jurisdictions that explicitly require employers to prevent psychosocial hazards, there is still considerable leeway in interpreting exactly what those hazards are.
There’s a grey zone between labour relations and health and safety. It can be hard for inspectors to manage that, says MacEachen, who is also an adjunct scientist at IWH.
It may be that psychological hazards are more complex to prosecute or require evidence that is more challenging to gather. It may also be that authorities have not yet caught up with these newly understood hazards in terms of the training and resources they need to provide to inspectors.
Complex terms of employment, which have increasingly displaced traditional, full-time employer-employee relationships, also pose challenges for regulators. Whether on-call or casual work, temporary agency placements or subcontracts parceled out to self-employed or independent contractors, these non-standard contracts have resulted in complicated lines of responsibility for workplace health and safety.
For example, employment through temporary agencies often involves a three-way relationship between the worker, the temp agency and the client employer. The result can be confusion and misattribution of accountability when injuries occur.
In some jurisdictions, lawmakers recognize that OHS responsibility has to be broadened to include designers, manufacturers, suppliers and importers of equipment and material. However, one study has found that, despite laws specifying the duties of these “upstream” parties, holding them accountable can be a very complex legal undertaking. As a result, inspectors may often remain focused on the direct employer.
Inspectors’ resources among other themes
The review also explored a few other themes. One was the making of OHS laws—how the drafting of laws can sometimes be reactive to crises such as workplace tragedies or influenced by the interests of powerful stakeholders. Another theme was the limitations of, and assumptions behind, the idea prevailing in some jurisdictions that employers and workers have the same interests, and that punitive approaches such as fines should only be saved for egregious instances. Yet another theme related to the work of inspectors—the ambiguous frameworks within which they sometimes do their jobs, and the training and resources they need to carry out their work.
Overall, the systematic review shone a light on a range of issues faced by regulators across many jurisdictions. The review was undertaken in tandem with an IWH systematic review of the quantitative literature on the effectiveness of OHS regulation and enforcement (see the Summer 2015 issue of At Work).
This review shows how the design and implementation of OHS legislation are based on more than scientific evidence, says MacEachen.
They are based on assumptions about how employers and workers behave, as well as assumptions about how inspectors are trained and resourced. And they are shaped by broad political and economic conditions.
For more on the latest systematic review, listen to MacEachen’s September 2015 plenary at: www.iwh.on.ca/plenaries/2015-sep-08.
Source: At Work, Issue 82, Fall 2015: Institute for Work & Health, Toronto