Integrating Management Systems and Occupational Health and Safety Regulation

AuthorNeil Gunningham
Date01 June 1999
Published date01 June 1999
‘Best practice’ in occupational health and safety (OHS) performance
needs to recognize the declining emphasis that is being placed on the
capacity of the regulatory state. This article argues that there are more
appropriate forms of OHS regulation than direct command and control.
The development of a systems-based approach acknowledges the impor-
tance of continuous improvement, benchmarking, and internal self-regu-
lation. In order to encourage a systems-based approach, it is suggested
that some form of persuasion by coercion by means of law remains
a necessary condition for the establishment of an incentive-based
‘voluntary’ regime.
Occupational health and safety (OHS) has re-emerged as a major issue
on the social policy reform agenda internationally. In 1994, the British
Government completed a major Review of Health and Safety Regulation,
twenty years after the introduction of the Health and Safety at Work Act,
1974. In the United States of America in 1995, the Clinton Administration
released The New OHSA: Reinventing Worker Health and Safety, as part of
its broader ‘Reinventing Government’ initiative. In Australia, the Industry
Commission published its compendious reports: Workers Compensation in
Australia and Work, Health and Safety, in 1994 and 1995 respectively. In
Norway and Sweden, a new systems-based approach to regulation, known
as ‘internal control’ was introduced in the early and mid 1990s,1while within
© Blackwell Publishers Ltd 1999, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
* Professor of Law and Director, Australian Centre for Environmental Law,
Faculty of Law, Australian National University, Canberra ACT 0200, Australia
The author gratefully acknowledges the critical comments of Richard Johnstone (his co-author
in a forthcoming book, Regulating Workplace Safety: Systems and Sanctions) and three anony-
mous referees, and the research assistance of Patricia Burritt.
ISSN: 0263–323X, pp. 192–214
Integrating Management Systems and Occupational Health
and Safety Regulation
1 See, below, pp. 205–8.
the European Union (EU), a series of OHS directives2have also triggered
increasing regulatory action at national level within the countries forming
the Union.
While these various reports and legislative changes have quite diverse
origins, a number of factors, which transcend national boundaries, have
become increasingly influential. These factors now permeate the OHS
debate, though regrettably, they have so far had only a very limited impact
on policy making itself. In essence, at the same time as traditional health
and safety legislation is reaching the limits of its efficiency to address tradi-
tional problems (the low-hanging fruit has all been picked) the capacity of
the regulatory state itself to address increasingly complex social problems is
also in doubt.
First, the major OHS statutes, in most advanced industrialized nations,
are now some fifteen to twenty-five years old.3In parts of Europe and
Australia, the British Robens report of 1972 had a profound effect on policy
making, and in the mid to late 1970s resulted in widespread legislative
change. At the time it was introduced this legislation was certainly a major
advance on the antiquated system that it substantially replaced. However,
much has changed in the meantime, both in theory and practice, and what
was then a substantial reform, now falls far short of legislative and adminis-
trative ‘best practice’. Similarly, in the United States of America, the
Occupational Safety and Health Act of 1970 is now increasingly showing
its age and the limitations of the assumptions upon which it was based.4
Substantial improvements in OHS performance (in terms of efficiency and
effectiveness) have been achieved as a result of post-Robens legislation in
particular,5but this is not to imply that traditional health and safety prob-
lems have been solved.6
Second, the capacity of the regulatory state to deal with increasingly
complex social issues is itself declining dramatically. There is a limit to which
it is possible to add more and more specific prescriptions without this resulting
© Blackwell Publishers Ltd 1999
2Of these, the most important is the EEC Directive on the Introduction of Measures to
Encourage Improvements in the Safety and Health of Workers at Work, Directive 89/391.
3See D. Walters, The Identification and Assessment of Occupational Health and Safety
Strategies in Europe, Volume 1, The National Situations (1996); and A. Martin, A. Linehan,
and I. Whitehouse, The Regulation of Health and Safety in Five European Countries: Denmark,
France, Germany, Spain, and Italy with a supplement on recent developments in the Netherlands
(1996). See, also, R. Baldwin, Rules and Government (1995) chs. 5, 6.
4See, for example, General Accounting Office, Occupational Safety and Health Options (1990);
and B. Clinton and A. Gore, The New OSHA: Reinventing Worker Safety and Health (1995).
5See, for example, E.A. Emmett, ‘Regulatory Reform in Occupational Health and Safety in
Australia’ (1995) 11 J. of Occupational Health and Safety in Australia and New Zealand 607.
6On the contrary, 40 per cent of workers in the EU still work in discomfort and over half
have no control over comfort (lighting, temperature, and so on). According to the Second
European Survey on Working Conditions (1996), a quarter of the workforce still complains
of high-level noise and air pollution, a third of extremes of temperature and of heavy loads,
and nearly a half of painful postures induced by faulty ergonomic design of workstations.

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