Читать книгу Occupational Health Law - Diana Kloss - Страница 18

There are a number of European treaties: principally, the European Atomic Energy Community (Euratom) Treaty, the Treaty of Rome, the Maastricht Treaty, the Treaty of Amsterdam, the Nice Treaty and the Treaty of Lisbon. The European Coal and Steel Community expired in 2002. The treaty which founded the European Economic Community, the Treaty of Rome, in 1958 sought to create a common market between the Member States by providing for the free movement of goods, persons, services and capital and restraining anti‐competitive measures like monopolies and restrictive practices. It was incorporated into United Kingdom law by the European Communities Act 1972. The following 28 countries were members of the Union in 2018: Belgium, France, Italy, Luxembourg, Netherlands, Germany, Denmark, Eire, United Kingdom, Greece, Spain, Portugal, Austria, Finland, Sweden, Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, Slovenia, Bulgaria, Romania and Croatia. The Rome treaty was substantially amended by the Single European Act (1986) and more recently by the Treaty on European Union agreed at Maastricht in 1992. Further important changes were made in 1999 in the Treaty of Amsterdam, and in the Treaty of Nice in 2003. A proposal for a written constitution for the European Union caused dissension and was rejected. However, the Treaty of Lisbon, which came into force in December 2009 after its ratification by all the Member States, created a new office of President of the European Council, increased the powers of the European Parliament and made the Union’s Charter of Fundamental Rights legally binding. The effect of the treaty is to create the Union as a separate legal entity.

The power to make new laws is given to the European Commission – which proposes legislation, and to the Council of Ministers. Each Member State sends one Minister to the Council meetings. The directly elected European Parliament at first had a mainly consultative and debating function, and its powers still fall short of a full legislative role, though the Maastricht treaty gave it a power of veto in limited areas. Today, the European Parliament exercises substantial powers of a legislative, budgetary and supervisory nature. The strengthening of a co‐decision (now the ordinary legislative) procedure in the Treaties of Amsterdam and Nice obliges the Council to submit proposed legislation to the Parliament on three occasions. Where amendments are made by the Parliament, the Council can reject or modify them only by unanimous vote. This procedure was extended in 2009 by the Treaty of Lisbon (Treaty on the Functioning of the European Union) and now applies to most legislative acts.

The bureaucracy of the EU is the European Commission which is situated in Brussels. The judicial power is conferred on the Court of Justice of the European Union in Luxembourg. Each Member State has one judge on the court. Its principal task is to interpret the treaties and secondary legislation made with their authority. A Court of First Instance, now known as the General Court, was created in 1988 to relieve the burden on the European Court. It deals inter alia with cases brought by individuals against EU institutions and decisions concerning the EU trade mark. Judicial panels, known as specialised courts, may be set up by the Council to hear certain classes of action at first instance. An EU Civil Service Tribunal hears staff cases. Where the European Court makes a ruling on EU law, the courts of Member States must recognise and enforce it, and there is no appeal from its decisions.

Secondary legislation takes the form of regulations, directives and decisions. Regulations are mandatory. They have the force of law throughout the EU without the need to be ratified by the legislatures of the Member States. An important example of a regulation in the health and safety and environment field is REACH, which is discussed in Chapter 5. Directives are ‘binding as to the result to be achieved’, but leave the choice of method to the states concerned. They therefore require domestic implementing legislation. The Consumer Protection Act 1987 was passed to give effect to the principles laid down in the Product Liability Directive. It is not unknown for states to drag their feet. More than once the United Kingdom has been taken to the European Court by the Commission for failure to implement a directive. In Marshall v. Southampton HA (1986), the ECJ held that an individual employed by a government could sue that government in the national court under the provisions of an unimplemented directive as though it had been implemented, a privilege not available to non‐government employees. Employment in the National Health Service was held to be government service. This right extends to employees of local authorities, universities, police forces, firefighters, in fact all those employed by public authorities. The European Court further developed the law in Francovich v. Italian Republic (1992) when it held that an individual may in some circumstances sue a government for damages for failure to enact a directive within the specified period.

Decisions are rulings given by the Commission in individual cases and may be addressed to a state, an organisation or an individual. They are binding only on the individual addressed. Recommendations are persuasive, but not legally binding. Salvatore Grimaldi was born in Italy, but had worked for a long period in mining and construction in Belgium. He was diagnosed as suffering from an osteoarticular or angioneurotic impairment of the hand (Dupuytren’s contracture), which he claimed was an occupational disease caused by the use of a pneumatic drill. This was not a prescribed disease under Belgian law, and Grimaldi was refused social security compensation. He appealed to the European Court.

The European Commission has made recommendations, most recently in 2003, setting out a ‘European schedule of occupational disease’, including ‘illness for over‐exertion of the peritendonous tissue’, and calling on Member States to introduce legislation granting compensation to those workers affected by such diseases and also to those able to prove that their disease was caused by work but unable to take advantage of domestic law because the disease was not prescribed. This recommendation places emphasis on the need for Member States to make their statistics on occupational diseases compatible with the European schedule, so that information on the causative agent or factor, the medical diagnosis and the gender of the patient is available for each case of occupational disease. The European Court held that recommendations could not confer rights directly on individuals, but should be taken into consideration by national courts when interpreting domestic legislation, e.g. in cases of ambiguity (Grimaldi v. Fonds des Maladies Professionelles (1990)).

The European Treaties and laws made thereunder deal primarily with matters relating to the establishment of free trade. Much of our law is unaffected by a European dimension. The EU treaties are not concerned with the law of theft, the grounds for divorce, the validity of wills or the need to obtain the consent of a patient to medical treatment. But a free market demands that no enterprise should be able to obtain an unfair advantage by ignoring essential safety measures imposed by law on its competitors. Every producer must start from the same baseline. Member States are unwilling to pass laws to protect the health of workers or the community which demand costly expenditure if other States are permitted to maintain nineteenth century practices.

The EC Treaty anticipated the need to deal with social as well as economic problems: ‘Member States agree upon the need to promote improved working conditions and an improved standard of living for workers…’. Article 137 provided that the Commission had the task of promoting close cooperation between Member States in the social field, particularly in matters relating to employment, labour law and working conditions, basic and advanced vocational training, social security, prevention of occupational accidents and diseases, occupational hygiene, and the right of association and collective bargaining between employers and workers. In 1997, the Treaty of Amsterdam made further important changes to permit the United Kingdom to accede to the European Social Charter which it had rejected at the negotiations in Maastricht in 1991.

In 1974, an Advisory Committee on Safety, Hygiene and Health Protection was established to assist the Commission. It had a significant influence on the development of policy. A series of Action Programmes were adopted. The Committee reported annually. In 2003 its functions were transferred to an Advisory Committee for Health and Safety at Work.

The adoption of directives to implement the Commission’s initiatives was hampered by the necessity to obtain unanimity among Member States. It was possible for only one State to veto any measure in the Council of Ministers. In 1987, however, the Single European Act came into operation. The countries of Europe agreed to establish a truly common market, with the abolition of all barriers to trade, by 1992. The resultant amendments to the Treaty of Rome included Article 138. Under this Article, it was now possible to adopt directives laying down minimum health and safety standards which exceeded recognised standards in Member States. Qualified majority voting gave larger nations more votes than smaller ones, but allowed even one of the ‘Big Four’ (France, Germany, Italy and the United Kingdom) to have legislation forced on it by the other Member States.

Similar principles apply to the enactment of directives in the field of consumer safety. The EU Council may by a qualified majority approve standards for electrical and other goods. In this area, the standards are both minimum and maximum, lest states attempt to protect the home producer by keeping out goods which do not conform to unnecessarily high standards. The long‐term solution is to establish European standards to replace those of the individual countries, and European organisations have been created to bring this about: Comité Européen de la Normalisation (CEN) and Comité Européen de la Normalisation Electronique (CENELEC) (for electrical apparatus).

The Single European Act (Article 157) for the first time included specific provisions allowing the Council of Ministers to legislate by a qualified majority in the area of environmental protection by, for example, setting minimum standards for toxic emissions into the atmosphere and water purity. States are permitted to set higher standards for themselves, unless this conflicts with the free market. In EC Commission v. Denmark (1989) a Danish law stating that beer and soft drinks could only be marketed in reusable containers, for which a deposit must be charged, was upheld by the European Court, even though to some extent it discriminated against foreign producers, because it reduced the quantity of litter damaging the environment.

The pace of change was considerably expedited by the new system. Between 1970 and 1985 only six health and safety at work directives were adopted by the European Council. In July 1987, however, a third Action Programme on safety, health and hygiene at work was adopted. A long list of measures was proposed by the Commission, including 15 new directives. By 1989 a ‘Framework’ Directive for the Introduction of Measures to Encourage Improvements in Safety and Health of Workers was approved by the Council of Ministers. This has been enacted into UK law by the Management of Health and Safety at Work Regulations (1992, amended 1999) which require employers to assess risks to employees, provide them with health surveillance, give them information and training and appoint competent persons to supervise a safe system of work.

Shortly after, five ‘Daughter Directives’ containing more specific provisions about health, safety and welfare provision in the workplace (heating, lighting, ventilation, cleanliness and so on), machinery and work equipment safety, personal protective equipment, visual display units and the handling of heavy loads were passed. These are now incorporated into UK law as the Workplace (Health, Safety and Welfare) Regulations 1992, Provision and Use of Work Equipment Regulations 1998, Personal Protective Equipment at Work Regulations 1992, Health and Safety (Display Screen Equipment) Regulations 1992 and Manual Handling Operations Regulations 1992. All these regulations are discussed in detail in Chapter 5, and are regularly reviewed and sometimes updated.

In 1994 a European Agency for Safety and Health at Work was established in Spain. It is charged with the following tasks:

 to collect and disseminate technical, scientific and economic information in Member States to identify existing national priorities and programmes;

 to collect technical, scientific and economic information on research into safety and health at work and on other research activities and to disseminate the results of that research;

 to promote and support co‐operation and exchange of information and experience among Member States including information on training programmes;

 to organise conferences and seminars and exchanges of experts;

 to supply European Union bodies and Member States with technical, scientific and economic information in order to enable them to formulate and implement policies;

 to establish a network for the provision of information;

 to collect and make available information on safety and health from and to countries outside the European Union and international organisations;

 to provide technical, scientific and economic information on methods and tools for implementing preventive activities, paying particular attention to the problems of small‐ and medium‐sized organisations; and

 to contribute to the development of European Union action programmes relating to the protection of health and safety at work.

Further developments have been the creation of a Committee of Senior Labour Inspectors (1995), a Scientific Committee for Occupational Exposure Limits to Chemical Agents (1995), whose functions were transferred to the European Chemicals Agency in 2019, and a Major Accident Hazards Bureau (1996).

The importance of statistics was reflected in research done by the European Agency, which led to a report in 2000 providing a comprehensive overview of the occupational health and safety situation in the European Union. The accession of 12 new Member States, many with industries which had lacked investment resources for 50 years or more, no doubt significantly altered the profile of the average European enterprise.

Although the safety of workers was an important part of European Community policy from the foundation of the Coal and Steel Community in 1951, and the Treaty of Rome provided specifically for equal pay for men and women at work (Chapter 8), the use of Community law to lay down minimum rights for workers in other areas has been far more controversial. Article 95 permitted legislation on working conditions if it was necessary to ensure the effective functioning of the common market, and measures to protect workers affected by collective redundancies, transfer of the undertaking in which they were employed and the insolvency of their employer were enacted under this power.

Conflict arose between the majority of European governments who regarded the protection of the worker as an important aim for social legislation and the free marketeers in the UK government who preferred to allow market forces to determine workers’ rights unfettered by what they regarded as artificial barriers to economic growth.

In December 1989 11 Member States signed a Community Charter of Fundamental Social Rights of Workers (the Social Charter). This was largely a declaration of policy, without direct legal effect. The UK government stood alone in refusing to agree to the principle that workers’ rights should be enshrined in European law and did not sign the Charter. The Charter’s provisions are expressed in general aspirational terms. It deals with minimum wages, working hours and holidays, rights of association and the right to negotiate and conclude collective agreements.

At the meeting of governments at Maastricht in December 1991, the majority of Member States agreed that they wished to adopt further measures to pursue the aims of the Social Charter. Again, the UK government was in a minority of one. The compromise eventually reached (the Maastricht Protocol) was that all 12 Member States agreed that 11 states (all except the UK) might have recourse to the institutions, procedures and mechanisms of the Treaty of Rome for the purposes of taking the acts and decisions necessary to give effect to the new agreement. The UK government would not participate in this process, though it would not interfere with the 11, and it would continue to comply with pre‐Maastricht legislation.

The political and social problems created by this two‐tier system were many. In particular, its implementation was thought to result in the British worker becoming the poor man of Europe, with significantly lower wage rates and reduced legal protection against exploitation by the employer, although increased trade through the production of more competitive goods increased general prosperity. There were signs that multinational companies looked favourably at siting their plants in the UK to take advantage of lower rates of pay.

The legal problems were formidable. It was not easy to differentiate between the various types of legislation. Take, for example, the Working Time Directive, which created minimum daily and weekly rest periods and annual paid holidays of a minimum length. If, as the Commission argued, this was as a health and safety measure it could be passed by a qualified majority without the consent of the UK government and must then be enacted into UK law. If it were to be classified as a ‘workers’ rights’ measure, it might either fall within what is now Article 95, in which case it could only become law if all the Member States agreed, or alternatively (but less likely) it could be regarded as an attempt to implement the Social Charter falling within the Maastricht Protocol and therefore not involving the UK at all.

This issue was litigated in the European Court in 1996. In United Kingdom v. EU Council the European Court held that ‘working environment’, ‘safety’ and ‘health’ should be interpreted liberally to embrace all factors (physical or otherwise) capable of affecting the health and safety of the worker in his working environment. Legislation on rest periods, holidays and night working was held to be relevant to health, defined by the World Health Organization as ‘a state of complete physical, mental and social well‐being and not merely the absence of disease or infirmity’. Thus, the Working Time Directive was mandatory on the United Kingdom.

The Social Charter and the Maastricht Protocol emphasised the principle of subsidiarity, namely that the Community must recognise the differing social structures and the diversity of national practices of the Member States, and legislate only where it is necessary to achieve the objectives of the treaties. There can be no Union‐wide minimum fair wage, because of the many differences in cost of living, incidence of taxation and social security etc., but there can be the espousal of the concept of a legally guaranteed fair wage for each individual country. The Labour government elected in May 1997 adopted the Social Charter for the United Kingdom, and introduced national minimum wage legislation. In the Treaty of Amsterdam 1997 the UK government agreed to accept qualified majority voting for all Social Charter Directives in the future, and to adopt those directives already agreed by the other Member States after Maastricht. These were the European Works Council Directive, the Parental Leave Directive, the Part‐Time Workers Directive and the Directive on Burden of Proof in Sex Discrimination cases.

The previous Conservative government expressed concern that, at a time when it was pursuing a policy of deregulation on the home front with the aim of freeing industry from petty legal restrictions which deter growth, new and onerous duties were being introduced through membership of the European Community. ‘Health and safety legislation could be brought into disrepute by introducing bureaucratic requirements which would not be complied with’ (Review of implementation and enforcement of EC law in the UK (1993) Department of Trade and Industry). The DTI report recommended the designation of one of the Health and Safety Commissioners as especially concerned, as far as possible, to look after the interests of the small employer. In 2000 a report from the Department of Environment, Transport and the Regions stated that ‘a more deeply engrained culture of self‐regulation needs to be cultivated, most crucially in the 3.7 million businesses with less than 250 employees’. The development of a Better Regulation strategy which followed is discussed in Chapter 5.

The implementation of EU law is for the Member States, who must adjust the European principles to their own domestic institutions, but the essence of the principles must reach the statute book. In recent years there have been fewer directives in the field of health and safety at work. The European Commission has engaged in an evaluation of the whole body of occupational health and safety legislation with the aim of simplification and reducing unnecessary burdens on small and medium‐sized enterprises.