Making Companies Safe - what works? (CCA ... - Unite the Union

Chapter Four
Conclusion
There is very strong evidence from the international and national empirical research that the
introduction or threat of new legislation is a key driver of behavioural change, and that
employers are unlikely to introduce measures that are not required of them by law. Therefore
the recent reversals of government and HSC policies to develop and implement new
legislation that would address current gaps or flaws in the regulatory framework contradict
independently conducted international and national research.
In addition, the HSC has decided to engage with the Corporate Social Responsibility
movement as a substitute for legal regulation 1 at a time when serious questions are being
raised by many stakeholders about the ability of CSR to deliver meaningful and sustained
improvements, with these groups arguing that CSR should only be seen as a stop-gap on the
road towards legal regulation.
The U-turns in relation to both directors’ duties and worker participation and consultation are
particularly worrying for two reasons. First, as stated, there is general evidence that
voluntarism does not work. Second, there is strong and specific evidence to suggest that both
of these factors – namely, board level commitment and workforce participation – are crucial
to improving OHS performance, and that the imposition of legal duties and additional rights,
for directors and workers respectively, and the enforcement of those duties and rights,
would be effective means of reducing injuries and ill-health in the workplace.
It is uncertain whether HSC’s stance on these two issues reflects the position of the Better
Regulation Task Force (BRTF) which has produced a number of reports critical of any knee jerk
response to the ‘automatic’ use of law as a regulatory tool. In a foreward of a recent report,
called ‘Imaginative Regulation’, the BRTF states that: “arguably the most important of all the
options discussed in their report is the option not to intervene at all.” The report also goes
onto say:
“Prescriptive state regulation, which we call ‘classic regulation’ in this report, is
where a law is passed to tell people what to do or what not to do. This may be
primary legislation – where there is an Act of Parliament – or secondary
legislation, often (confusingly) known as ‘regulations’.……
Classic regulation is the traditional way for the State to seek to change
behaviour. If there seems to be a need to intervene in a market; a new health risk
needs to be addressed; there has been an accident or disaster and “something
must be done”, the first thought is usually “we need to regulate” We want to
stop this from being the first thought. Too often this first thought becomes the
only option. We want Departments to choose the best way of solving their
problem. Classic regulation may prove to be the best way; but equally it
may not.” 2
However, the BRTF does take a nuanced view in that it does make clear that legal regulation
has, in many cases, its advantages, and that the important thing is to consider whether there
are any alternatives to legal regulation rather than simply ruling it out. 3 However, the HSE
appears to be unaware of this and in its report to the Commission – which was accepted by
them – the HSE stated:
“In considering the way forward, the Commission may wish to take note of the
Better Regulation Task Force’s guidance on policy development which indicates
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