EUCOSH Project on OS&H in High-Risk Sectors OS&H Inspectors’ rights, powers, duties and responsibilities: An international (ILO, EU, IALI) perspective

EUCOSH ProjectEUCOSH Projecton OS&H in High-Risk Sectorson OS&H in High-Risk Sectors

OS&H Inspectors’ rights, powers, duties and responsibilities: An

international (ILO, EU, IALI) perspective

A presentation byA presentation byWolfgang F. von RichthofenWolfgang F. von Richthofen

International consultant and EUCOSH NKEInternational consultant and EUCOSH NKEWORKSHOP ON WORK SAFETY RESPONSIBILITY SYSTEMS WORKSHOP ON WORK SAFETY RESPONSIBILITY SYSTEMS

WITHIN OSH INSPECTION SYSTEMSWITHIN OSH INSPECTION SYSTEMS15 – 16 APRIL, 2014, BEIJING15 – 16 APRIL, 2014, BEIJING

Introduction Labour Inspection (LI) is the internationally most commonly

used term, also for OS&H or Work Safety Inspection Modern Labour Inspection is over 200 years old (UK) ILO Convention on Labour Inspection, Industry and Commerce,

1947, (No. 81) is the recognized UNIVERSAL LI Standard Ratified by over 140 ILO Members, including all 28 EU Member

States – under consideration by China (responsible: MOHRSS) Also applies to all Mining (Opencast/Underground) and

Transport Activities (Art. 2) unless specifically excluded at ratification

Covers Occupational Safety and Health, as well as general Conditions of Work, Hours, Wages, etc.

Contains detailed provisions on Labour (i.e. also Work Safety) Inspectors’ rights, powers, duties and responsibilities

Other Conventions cover Agriculture, Public Sector, OS&H inspection

Many EU MS have specific LI Laws; in others OS&H Laws also cover LI 2W. F. von Richthofen Beijing April 2014

Introduction (ctd.)Further International Standards relevant for OS&H Inspection:ILO Conventions No. 155 (ratified by China) plus different sectoral Standards, e.g. Construction (No. 167) and Chemicals Sector (170), (both already ratified by China)Mining (No. 176), Agriculture (No. 184), OS&H Promotion (No.187), not yet ratified; andProtection against specific risks: Radiation (No. 115), Cancer (No.139). Air Pollution, Noise, Vibration (No. 148), Asbestos (No. 174) The EU Framework OS&H Directive No. 391/89/EEC, transposed and applied by all 28 EU Member States as well as candidatesMore than 20 “Daughter” OS&H Directives focusing on specific (sectoral, technical) aspects of safety and health at workThe EU Senior Labour Inspectors’ Committee (SLIC) 2004 “Common Principles for OS&H Inspection”; andThe 2014 IALI Common Principles for Labour Inspection 3W. F. von Richthofen Beijing April 2014

ILO C. No. 81, Arts. 1 and 2: Member States must set up LI

Systems – Systems have developed historically with other national public

services, therefore very many different systems exist in the EU– Fully integrated State LI systems: Many 28 EU MS, (e.g. Bulgaria,

Hungary, Netherlands, Portugal, Sweden, some transition countries

– OS&H Inspection only by Social Insurance: Some Australian States – “Dual” systems: State and Social Insurance Services: (Austria,

Germany, France, Luxemburg, Switzerland) – Separate OS&H (“semi”-integrated) and Employment Standards

Inspectorates: Central and Latin America, English and French Africa, South and much of South-East Asia, USA

– Separate Occupational Safety (MoL/SAWS, etc.) and Occupational Health (MoH): China (until 2008), some CEEs, majority of CIS

– Trade Union (“social”) Inspectorates: Some CEEs,(Poland? Cz) some CIS, Australia (NSW), China?

– Specialized inspectorates: Many countries: Mining, Radiation, Energetics, Transport, Maritime, Agriculture, Off-shore, others 4W. F. von Richthofen Beijing April 2014

ILO Convention No. 155 and EU Framework Directive

391/89/EEC Both Standards hold the Employer directly and primarily

responsible (as a natural, as well as, and not merely legal person) for OS&H in the enterprise/organisation (ILO C. 155 is conditioned by the term: ”…as far as is reasonably practicable” – also in some EU MS, e.g. UK)

Art. 16 ILO C. 155:1. Employers shall be required to ensure that, so far as is

reasonably practicable, the workplaces, machinery, equipment and processes under their control are safe and without risk to health.

2. Employers shall be required to ensure that, so far as is reasonably practicable, the chemical, physical and biological substances and agents under their control are without risk to health when the appropriate measures of protection are taken.

3. Employers shall be required to provide, where necessary, adequate protective clothing and equipment to prevent, so far as is reasonably practicable, risk of accidents or of adverse effects on health.

Similar, more detailed Employer duties in the Framework Directive. W. F. von Richthofen Beijing April 2014 5

Arts. 5 and 6, EU OS&H Framework Directive 391/89

Art 5, 1. The employer shall have a duty to ensure the safety and health of workers in every aspect related to the work.

Art 5, 2. Where an employer enlists competent external services or persons, this shall not discharge him from his responsibilities in this area.

Art 5, 3. The workers' obligations in the field of safety and health at work shall not affect the principle of the responsibility of the employer.

Art 6, 1. Within the context of his responsibilities, the employer shall take the measures necessary for the safety and health protection of workers, including prevention of occupational risks and provision of information and training, as well as provision of the necessary organization and means.

6W. F. von Richthofen Beijing April 2014

EU Framework Directive (ctd.):

The employer shall… evaluate all the risks to the safety and health of workers, in the choice

of equipment, the chemical substances used, and fitting-out the work places

implement measures which assure an improvement in the level of protection afforded to workers and are integrated into all the activities of the undertaking and/or establishment at all hierarchical levels

take into consideration the worker's capabilities as regards health and safety when he entrusts tasks to workers; consult workers on introduction of new technologies;

designate worker(s) to carry out activities related to the protection and prevention of occupational risks.

take the necessary measures for first aid, fire-fighting, evacuation of workers and action required in the event of serious and imminent danger

keep a list of occupational accidents and draw up, for the responsible authorities, reports on occupational accidents suffered by his workers

inform and consult workers and allow them to take part in discussions on all questions relating to safety and health at work;

ensure that each worker receives adequate safety and health training


ILO Convention No. 81: Responsibilities of LI (Art. 3)

Secure the enforcement of the legal provisions relating to conditions of work and the protection of workers while engaged in their work, such as provisions relating to hours, wages, safety, health and welfare, …and other connected matters, in so far as such provisions are enforceable by labour inspectors (principle of INTEGRATED LI);

Supply technical information and advice to employers and workers concerning the most effective means of complying with….provisions;

Bring to the notice of the competent authority defects or abuses not specifically covered by existing legal provisions.

Any further duties which entrusted to labour inspectors shall not… interfere with the effective discharge of their primary duties or prejudice in any way the authority and impartiality necessary for inspectors in their relations with employers and workers.


ILO Convention No. 81: Duties of Inspectors (Arts. 6,

15.)→ Art. 6: The inspection staff shall be composed of public officials

who are …independent of …improper external influences.→ Art 15: Labour inspectors shall:→ be prohibited from having any direct or indirect interest in the

undertakings under their supervision;→ be bound on pain of appropriate penalties or disciplinary

measures not to reveal, even after leaving the service, any manufacturing or commercial secrets or working processes which may come to their knowledge in the course of their duties;

→ treat as absolutely confidential the source of any complaint bringing to their notice a defect or breach of legal provisions and shall give no intimation to the employer or any representative that an inspection was made in consequence of the receipt of such a complaint.


ILO C. No. 81, Arts. 12 and 13:

Powers of InspectorsArt 12, 1:. Labour inspectors provided with proper credentials shall be empowered:to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection;to enter by day any premises which they may have reasonable cause to believe to be liable to inspection; to carry out any examination, test or enquiry which they may consider necessary in order to satisfy themselves that the legal provisions are being strictly observed; in particular (i) to interrogate, alone or in the presence of witnesses, the employer or the staff of the undertaking on any matters concerning the application of the legal provisions (ii) to require the production of any books, registers or other documents the keeping of which is prescribed by national laws or regulations relating to conditions of work, in order to see that they are in conformity with the legal provisions, and to copy such documents or make extracts from them; (iii) to enforce the posting of notices required by the legal provisions;to take or remove for purposes of analysis samples of materials and substances used or handled. 10W. F. von Richthofen Beijing April 2014

ILO C. No. 81, Arts. 12 and 13:

Powers of Inspectors (ctd.)@ Art 12, 2: On the occasion of an inspection visit, inspectors shall

notify the employer or his representative of their presence, unless such a notification may be prejudicial to the performance of their duties.

@ Art. 13, 1: Labour inspectors shall be empowered to take steps with a view to remedying defects observed in plant, layout or working methods which they may have reasonable cause to believe constitute a threat to workers’ health or safety.

@ Art. 13, 2: Inspectors shall be empowered, subject to any right of appeal to a judicial or administrative authority, to make or to have made orders requiring (a) such alterations to the installation or plant, to be carried out within a specified time limit, as may be necessary to secure compliance with the legal provisions relating to the health or safety of the workers; (b) measures with immediate executory force in the event of imminent danger to the health or safety of the workers.


EU/SLIC Common Principles

for OS&H Inspection (2004) Inspectors must be given the powers necessary to carry out

the duties assigned to them. These should include in particular powers:

of entry to workplaces without notice;

to carry out inspections and investigations at the workplace;

to require employers and employees to supply information relevant to an inspection or investigation;

to examine OS&H-relevant records and reports at the workplace;

to apply, or to arrange the application of, sanctions when these are deemed to be necessary by the inspector;

to require the immediate stoppage of work in case of serious risk. In some MS this serious risk must also be immediate; in others, the serious risk may be delayed, as in the case of latent health effects.


EU/SLIC Common Principles (Priorities for OS&H

Inspection)

i. To judge whether the employer’s policy for health and safety is actually directed to ensuring the health and safety of his employees;

ii. To judge whether the organisation and arrangements the employer has introduced for securing health and safety are likely to lead to the identification, rectification and prevention of deficiencies. This will include the employer’s arrangements for identifying hazards and for assessing risk;


EU/SLIC Common Principles (Priorities for OS&H Inspection)

cont.iii. In particular, to make assessments of the employer’s

arrangements for: ₋ the effective planning, organisation, implementation,

control, monitoring and review of the protective and preventive measures at the workplace;

₋ securing expert advice and assistance on health and safety matters;

₋ dealing with emergencies; providing the employees and/or their representatives with comprehensible and relevant information;

₋ training the employees in health and safety; ₋ ensuring consultation with the employees and/or their

representatives on matters relevant to health and safety ₋ ensuring that all arrangements effectively protect

workers against identified risks.14W. F. von Richthofen Beijing April 2014

The International Association of Labour

Inspection - IALI

o International Common Principles for Labour Inspection (to be adopted in Geneva in 2014)

o A framework for professional and ethical Labour Inspection Services requiring:

1. Government / Parliament commitment 2. Implementation by the Inspection Organisation 3. Commitment and implementation across

regions, at national, provincial and sectoral levels


6 IALI Common Principles (ctd.)

1. Common Statement of purpose (belief) for Labour Inspection Services

2. Planning, strategy and monitoring 3. Commitment to professionalism 4. Character and complexity of Labour

Inspectorates 5. Method of operation and ensuring

compliance with the law 6. Inspectors’ authority, independence

and competencies


Good Practice Example from a small EU MS: Ireland

The role of the Irish OS&H Inspection (The Health and Safety Authority, HSA, which covers all sectors) is to:

• reduce the risk of ill health to workers by a preventative approach. This means ensuring that employers identify existing and future risks and potential risks to health;

• implement actions to control these risks and continuously improve their health management systems;

• undertake and support targeted promotion of health for employers and workers that focus on those issues which contribute to good workplace health;

• gather, analyse and apply the best available data, both national and international, and to conduct and access appropriate research.


HSA (Ireland, ctd.):Powers and Duties of

Inspectors• HSA Inspectors are granted a number of powers under Section

64 of the Safety, Health and Welfare at Work Act, 2005. Inspectors can use some or all of the following powers during the course of inspection. They include:

• The right of entry into any place that the Inspector believes is being used as a place of work or used for the keeping of articles or substances. However an inspector cannot enter a dwelling place without the consent of the owner or under the terms of a warrant issued by a District Court.

• In relation to any inspection an inspector may search and examine the place of work or any process or procedure carried out there and examine any records, articles or substances that are kept there and can require that the place or part of the place or anything in that place is left undisturbed until any examination, search and investigation is concluded.



Inspectors• An inspector can also require persons at the place of work to

produce any records the inspector may require and also provide information to the inspector relating to any entries made in those records. An inspector can also take copies of any records in paper or electronic format and require reasonable assistance to access any records held on a computer system or can take the original records for further examination, investigation, inspection or an inquiry for as long as is reasonably necessary.

• The inspector can also require persons at the workplace to provide information required relating to an inspection, investigation, inquiry or examination and can also require that assistance and facilities to enable the inspector to exercise his/her powers are provided. The information that may be required extends to any article, substance, work activity, installation or procedure and a person can be summoned by written notice at a specified time and place to give such information or produce records required by the Inspector.



Inspectors• An inspector can also require that any article is operated or

set in motion or any procedure is carried out in their presence.

• An inspector may question any person that they consider may be able to provide information relating to any search, inspection, investigation, examination, or inquiry and require that person to answer the questions and sign a declaration of the truth of the answers.

• Inspectors can take measurements, photographs, video recordings or any other recordings they consider necessary including the use of monitoring equipment and atmospheric sampling. They can also arrange for any testing, examination or analysis to be carried out at the place of work, or any other place they specify, of any substance or article at the place of work and they can also require that any articles or substances or samples of them are supplied without charge.



Inspectors• Inspectors can require any article or substance at the

place of work that they consider to be or have been a risk to safety or health to be dismantled or subjected to any process or test. They can also remove and retain any article or substance required for examination, or to ensure it is not tampered with or to ensure it is available for use as evidence in any proceedings.

• An inspector can require a person they consider may have committed an offence to provide their name and address to him/her.


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W. F. von Richthofen Beijing April 2014

Documents

EUCOSH Project on OS&H in High-Risk Sectors OS&H Inspectors’ rights, powers, duties and responsibilities: An international (ILO, EU, IALI) perspective