Regulating supply chains to improve health and safety

Industrial Law Journal

Volumn 36, Issue 2, 2007, Pages 163-187

  James, Phil ^a,b,c,d   Johnstone, Richard ^a,b,c,d   Quinlan, Michael ^a,b,c,d   Walters, David ^a,b,c,d  

^a OXFORD BROOKES UNIVERSITY   (United Kingdom)

^b GRIFFITH UNIVERSITY   (Australia)

^c UNIVERSITY OF NEW SOUTH WALES   (Australia)

^d CARDIFF UNIVERSITY   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34447562605     PISSN: 03059332     EISSN: 14643669     Source Type: Journal    
DOI: 10.1093/indlaw/dwm002     Document Type: Article

References (116)

1. M. Marchington, D. Grimshaw, J. Rubery and H. Wilmott, Fragmenting Work: Disordering Organisational Hierarchies and Blurring Boundaries (Oxford: Oxford University Press, 2005).
2. N. Millward, A. Bryson and J. Forth, All Change at Work? (London: Routledge, 2000).
3. J. Druker and C. Stanworth, 'Partnership and the Private Recruitment Industry' Human Resource (2001) 11 Human Resource Management Journal 73.
4. See, eg S. Deakin, 'Interpreting Employment Contracts: Judges, Employers and Workers' (2004) 20 Journal of Comparative Labour Law and Industrial Relations 201;
5. L. Dickens, 'Problems of Fit: Changing Employment and Labour Regulation' (2004) 42 British Journal of Industrial Relations 59;
6. H. Collins 'Regulating the Employment Relation for Competitiveness' (2001) 30 ILJ 17;
7. S. Deakin, 'The Changing Concept of the "Employer" in Labour Law' (2001) 30 ILJ 72;
8. G. Davidov, 'Joint Employer Status in Triangular Employment Relationships' (2004), 42 British Journal of Industrial Relations 727;
9. H. Collins, 'Independent Contractors and the Challenges of Vertical Disintegration to Employment Protection Laws' (1990) 10 Oxford Journal of Legal Studies 353.
10. See, eg O. Williamson, Markets and Hierarchies: Analysis and Antitrust Implications (London: Free Press, 1975);
11. C. Oliver, 'Sustainable Competitive Advantage: Combining Institutional and Resource Based Views' (1997) 18 Strategic Management Journal 697;
12. A. Oliver and M. Ebers, 'Networking Network Studies: An Analysis of Conceptual Configurations in the Study of Inter-Organisational Relationships' (1998) 19 Organisation Studies 549;
13. and R. Osborn and J.Hagedoorn, 'The Institutionalization and Evolutionary Dynamics of Interorganisational Alliances and Networks' (1997) 40 Academy of Management Journal 26.
14. M. Marchington et al, op cit (2005) distinguish a third main approach, that of the learning organisation. However, in the present authors' view this does not, analytically, add much to the resource based perspective.
15. L. Hunter, P. Beaumont and D. Sinclair, 'A "Partnership" Route to Human Resource Management' (1996) 33 Journal of Management Studies 235.
16. See, eg D. Lepak and S. Snell, 'The Human Resource Architecture:TOwards a Theory of Human Capital Allocation and Development' (1999) 24 Academy of Management Review 31.
17. J. Purcell, K. Purcell and S. Tailby, 'Temporary Work Agencies: Here Today, Gone Tomorrow?' (2004) 42 British Journal of Industrial Relations 705.
18. O. Williamson, op cit (1975).
19. Eurostat, European Social Statistics: Accidents at Work and Health-Related Problems: Data 1994-2000 (Luxembourg: Statistical Office of the European Communities, 2002).
20. T. Nichols, A. Dennis and W. Guy, 'Size of Employment Unit and Industrial Injury Rates in British Manufacturing' (1995) 26 Industrial Relations Journal 45;
21. M. Cully, S. Woodland, A. O'Reilly and G. Dix, Britain at Work as depicted in the 1998 Workplace Employee Relations Survey (London: Routledge, 1999);
22. and G. Stevens, 'Workplace Injuries in Small and Large Manufacturing Workplaces 1994/5-1995/6' 107 Labour Market Trends 19.
23. T. Nichols, The Sociology of Industrial Injury (London: Mansell, 1997).
24. See D. Walters, Health and Safety in Small Enterprises (Oxford: Peter Lang, 2001)
25. and D. Walters, T. Nichols, J. Connor, A. Taisran and S. Cam, The Role and Effectiveness of Safety Representatives in Influencing Workplace Health and Safety, HSE Research Report 363 (Sudbury: HSE Books, 2005).
26. J. Rebitzer, 'Job Safety and Contract Workers in the Petrochemical Industry' (1995) 34 Industrial Relations 40;
27. and T. Kochan, M. Smith, J. Wells and J. Rebitzer, 'Human Resource Strategies and Contingent Workers: The Case of Safety in the Petrochemical Industry' (1994) 33 Human Resource Management 55.
28. S. Dawson, A. Clinton, M. Bamford and P. Willman, 'Safety in Construction: Self Regulation, Industrial Structure and Workforce Involvement' (1985) 10 Journal of General Management 21.
29. See, eg C. Wright, 'Routine Deaths: Fatal Accident in the Oil Industry', (1986) 34 Sociological Review 265;
30. C. Wright, 'A Fallible Safety System: Institutionalised Irrationality in the Offshore Oil and Gas Industry', (1994) 42 Sociological Review 79;
31. C. Baldry,'Off the Rails: Factors Affecting Track Worker Safety in the Rail Industry' (2006) 28 Employee Relations 255.
32. F.Loos and J.Le Deaut, Rapport Fait Au Nom de la Commission D'Enquete sur la Surete des Installations Industrielles et des Centres de Recherche et sur la Proection de Personnes et de L'environnment en cas D'Accident Industriel Majeur (Assemblee Nationale: Paris, 2002).
33. See J. Wiseman and F. Gilbert, Survey of the Recruitment Agencies Industry (Suffolk: HSE Books, 2000). This survey also reveals that workers supplied by agencies tend to be inexperienced young people, placed in lower-skilled occupational areas, often in production, construction and, particularly, manufacturing firms.
34. Economic Development Committee, Inquiry into Labour Hire Employment in Victoria (Parliament of Victoria: Melbourne, 2005)
35. M. Quinlan, C. Mayhew and P. Bohle, 'The Global Expansion of Precarious Employment, Work Disorganisation and Occupational Health: A Review of Recent Research' (2001) 31 International Journal of Health Services 335.
36. I. 'Vickers, R. Baldock, D. Smallbone, P. James, I. Ekanem and M. Bertotti, Cultural Influences on Health and Safety Attitudes and Behaviour in Small Firms, Health and Safety Executive Research Report 150 (Sudbury: HSE Books, 2003).
37. See Economic Development Committee, op cit (2005). Interestingly, this report also noted that economic pressures can lead host employers to 'outsource risk' in order to lower their own workers' compensation premiums. It would therefore, seem that in certain situations the transfer of business risk which was noted earlier to have contributed to the rise it, 'networking' may encompass the transfer of 'physical risk' as well.
38. C Mayhew, M. Quinlan and L. Bennett The Effects of Subcontracting/ Outsourcing on Occupational Health and Safety, UNSW Studies in Australian Industrial Relations 38 (Sydney: University of New South Wales, 1996).
39. R v Associated Octel Co Ltd [1997] IRLR 123.
40. See also R v Mara [1987] 1 WLR 887.
41. [1994] 4 All ER 1037.
42. [1998] 87 IR 268 at 281.
43. At 280-1.
44. [2005] NSWIRComm 263.
45. At pp 850-1.
46. See regulations 3, 10, 12 and 15, Management of Health and Safety Regulations 1999 (SI 1999/1877).
47. House of Commons Work and Pensions Committee, The Work of the Health and Safety Executive and Commission Volume 1 (London: Stationery Office, 2004).
48. Centre for Corporate Accountability/Unison. Safety Last? The Under- Enforcement of Health and Safiety Law (London: Centre for Corporate Accountability, 2002).
49. P. James and D. Walters, Regulating Health and Safety At Work: An Agenda for Change (Institute for Employment Rights: London, 2005).
50. P. Hampton, Reducing Administrative Burdens: Effective, Inspection and Enforcement (London: Stationery Office, 2005).
51. Industrial Relations Services, 'Brown takes Scalpel to Red-tape Herring' (2005) 341 Health and Safety Bulletin 2.
52. House of Commons Work and Pensions Committee. The Work of the Health and Safety Commission and Executive Volume 2 London: Stationery Office, 2004) Ev 29.
53. In relation this point, it should be noted that in 2002/3 there were only two enforcement notices issued under regulation 15 of the Management of Health and Safety at Work Regulations 1999, a regulation which lays down requirements for the provision by employers of information to fixed-term employees, temporary workers and employment businesses.
54. House of Commons Work and Pensions Committee, Government Response to the Committee's Fourth Report into the Work of the Health and Safety Commission and Executive (London: Stationery Office, 2004).
55. See M. Marchington et al. op cit (2005);
56. H. Collins, Regulating Contracts (Oxford: Oxford University Press, 1999);
57. I. Nossar, The Scope for Effective Cross-jurisdictional Regulation of Commercial Contractual Arrangements Beyond the Traditional Employment Relationship: Recent Developments in Australia and their Implications for National and Supranational Regulatory Strategies (Sydney: Textile Clothing and Footwear Union of Australia, 2005);
58. and I. Nossar, 'Cross-Jurisdictional Regulation of Commercial Contracts for Work Beyond the Traditional Relationship' in C. Arup, P. Gahan, J. Howe, R. Johnstone, R. Mitchell and A. O'Donnell (eds), Labour Law and Labour Market Regulation (Sydney: Federation Press, 2006) 202.
59. Existing evidence indicates that 'reputation risk' is an important motivator of health and safety actions within larger companies, while its potential role in influencing the behaviour of multinational has been central to attempts to require them to disclose information on their more general labour practice.
60. See M. Wright, S. Marsden and A. Antonelli, Building an evidence Base for the Health and Safety Commission Strategy to 2010 and Beyond: A Literature Review of Interventions to Improve Health and Safety Complianc, HSE Research Report 196 (Suffolk: HSE Books, 2004);
61. and D. Doorey 'Who Made That?: Influencing Foreign Labour Practices through Reflexive Domestic Disclosure Regulation' (2005) 43 Osgoode Hall Law Journal 353.
62. International Labour Organisation Tripartitite, Declaration of Principles Concerning Multinational Enterprises and Social Policy (Geneva: ILO, 1975);
63. and Organisation of Economic Cooperation and Development, Guidelines for Multinational Enterprises (New York: OECD, 2000).
64. Clean Clothes Campaign Codes of Conduct for Transnational Corporations: An Overview (Irene: Clean Clothes Campaign, 1998).
65. See, eg T. Radin, 'The Effectiveness of Global Codes of Conduct: Role Models That Make Sense' (2004) 109 Business and Society Review 415;
66. and A. Wawryk, 'Regulating Transnational Corporations through Corporate Codes of Conduct' in J. Frynes and S. Pegg (eds). Transnational Corporations and Human Rights (Basingstoke: Palgrave Macmillan, 2003) 53.
67. Bureau of International Affairs, The Apparel Industry and Codes of Conduct (Washington: Department of Labor, 1996) A British study of codes two years later also identified issues in relation to monitoring.
68. See C. Ferguson, A Review of UK Company Codes of Conduct (London: Department of International Development, 1998).
69. Examples include the Clean Clothes campaign in Europe and the Hong Kong-based Coalition for the Charter on the safe production of toys.
70. See M. Quinlan, C. Mayhew and P. Bohle, 'The Global Expansion of Precarious Employment, Work Disorganisation and Occupational Health: Placing the Debate in a Comparative Historical Context' (2001) 31 International Journal of Health Services 507.
71. I. Nossar, R. Johnstone and M. Quinlan, 'Regulating Supply-chains to Address the Occupational Health and Safety Problems Associated with Precarious Employment: The Case of Home-based Clothing Workers in Australia' (2004) 17 Australian Journal of Labour Law 1.
72. For a study making reference to the selectivity of codes and other voluntary measures in terms of content and sectors affected see J. Diller, 'A Social Conscience in the Global Marketplace? Labour Dimensions of Codes of Conduct, Social Labelling and Investor Initiatives' (1999) 138 International Labour Review 99.
73. See, eg the discussion in K. Ewing. Global Rights in Global Companies: Going for Gold at the UK Olympics (London, Institute of Employment Rights, 2006).
74. R. Jenkins, Corporate Codes of Conduct: Self-Regulation in the Global Economy (Technology, Business and Society Programme Paper 2, United Nations Research Institute for Social Development, 2001).
75. For a slightly more optimistic account see R. Pearson and G. Seyfang, 'New Hope of False Dawn? Voluntary Codes of Conduct, Labour Regulation and Social Policy in a Globalizing World' (2001) 1 Global Social Policy 49.
76. G. Zwtsloot, 'Developments and Debates on OHSM System Standards and Certification' in K. Frick, P. Jensen, M. Quinlan and T. Wilthagen (eds), Systematic Occupational Health and Safety Management (Amsterdam: Pergamon, 2000) 391.
77. D. Walters, 'The Efficacy of Strategies for Chemical Risk Management in Small Enterprises in Europe: Evidence for Success?' (2006) 4 Policy and Practice in Health and Safety 82.
78. This point is conceded even by a number of researchers who see value in voluntary codes.
79. See P. Pattberg, 'The Influence of Global Business Regulation: Beyond Good Corporate Conduct' (2006) 111 Business and Society Review 241.
80. For studies pointing to the need to better align codes with labour law so that the latter is not undermined see A. Sobczak, 'Codes of Conduct in Subcontracting Networks: A Labour Law Perspective' (2003) 44 Journal of Business Ethics 225.
81. Section 6 of the HSW Act admittedly does also impose a duty on designers, importers, manufacturers and suppliers of plant and substances. However, this supply chain related provision operates in an 'upward' rather than 'downward' direction and hence does not, like the CDM regulations, operate in parallel with demand-related pressures flowing from the top of such chains. As a result, it constitutes a different 'species' of supply chain regulation to that forming the focus of this article. The same is true with regard to the legislative framework that has been established under the Gangmasters (Licensing) Act 2004 which requires' gangmasters' to be licensed and to, as a condition of their license, comply with certain labour-related requirements in respect of those they employ to work on supply contracts with food processors and retailers.
82. The scope of the Resolutions application was, in practice, much wider than this since it was also adopted voluntarily by nationalised industries and many local authorities and was also on occasion put on a statutory footing, such as under the Road Haulage Act 1938, Road Traffic Act 1960 and the Broadcasting Act 1982.
83. See B. Doyle, 'Legal Regulation of Colective Bargaining' in R. Lewis (ed), Labour Law in Britain (Oxford: Blackwell, 1986) 109.
84. The cases where the FWR had been put effectively on a statutory footing also disappeared as a result of repeal or obsolescence on the basis that they cross-referred to the resolution itself. See B. Doyle, op cit (1986).
85. See P. Beaumont, 'Experience under the Fair Wages Resolution of 1946' (1977) 8 Industrial Relations Journal 34.
86. See, eg B. Bercusson, Fair Wages Resolutions (London: Mansell, 1978);
87. A. McColgan, Just Wages for Women, (Oxford: Clarendon Press, 1997) The arbitration bodies concerned were the Industrial Court, the Industrial Arbitration Board (from 1971) and the Central Arbitration Committee (from 1976). The decisions of these bodies did not create rights but enabled a relevant government department to take related contractual action.
88. P. Beaumont, op cit (1977) 37.
89. Ibid.
90. See J. Rubery, and P. Edwards, 'Low Pay and the National Minimum Wage' in P.K. Edwards (ed), Industrial Relations: Theory and Practice, 2nd edn (Oxford: Blackwell, 2003) 447.
91. S. Sachdev, The Impact of Contracting Out on Employment Relations in Public Services:THe Experience of the Prison Service and the Military (London: Institute of Employment Rights, 2006).
92. Health and Safety Commission, Consultative Document on the Revision of the Construction (Design and Management Regulations (CDM) 1994, Construction (Health, Safety and Welfare) (CHSW) Regulations 1996, Approved Code of Practice (ACoP) and Guidance (Sudbury: HSE Books, 2004). As this article was going to press, a revised set of regulations, the Construction (Design and Management) Regulations 2007/320 were about to come into effect.
93. Department for the Environment, Transport and the Regions/Health and Safety Commission Revitalising Health and Safety: Strategy Document (London: Department of Trade and Industry, 2000).
94. D. Weil, 'Public Enforcement/Private Monitoring: Evaluating a New Approach to Regulating the Minimum Wage' (2005) 58 Industrial and Labour Relations Review 238.
95. This is not to say that the monitoring arrangements involved go further enough in terms of ensuring contractor compliance. Some campaigners, for example, argue that some regulation and independent licensing of monitors is also required. See J. Esbenshade, Workers, Consumers and the Global Apparel Industry (Philadelphia: Temnle Universitv Press. 2004)
96. See NSW Occupational Health and Safety Amendment (Long Distance Truck Fatigue) Regulation 2005.
97. The code is entitled the Ethical Clothing Trades Extended Responsibility Scheme. For an examination of it see I. Nossar, R. Johnstone and M. Quinlan, 'Regulating Supply-Chains to Addres the Occupational Health and Safety Problems associated with Precarious Employment: The Case of Home-based Clothing Workers in Australia' (2004) 17 Australian Journal of Labour Law 1;
98. and I. Nossar, 'Cross-Jurisdictional Regulation of Commercial Contracts for Work Beyond the Traditional Relationship' in C. Arup, P. Gahan, J. Howe, R. Johnstone, R. Mitchell and A. O'Donnell (eds), Labour Law and Labour Market Regulation (Sydney: Federation Press, 2006) 202.
99. The term 'transport freight long distance' is defined in section 81A of the Act to mean the 'transport by freight by means of a heavy truck (whether by means of a single journey or a series of journeys) more than 500 kilometres, including any part of a journey or journeys where no freight is transported because the heavy truck is being driven to collect freight or to return to base after transporting freight'.
100. A 'head carrier' is defined under section 81A as a 'carrier other than a self-employed carrier'. It should also be noted that, by virtue of section 81E(3), the obligations imposed under the Regulation only applies to consignors and consignees that employ 200 or more employees (including persons carrying out work under labour hire arrangements).
101. These obligations it should be noted therefore apply not only in relation to those drivers employed by 'head carriers' that are to undertake the relevant contractual work, but also to any self-employed ones that are to be utilised. In relation to the specific obligations of freight consignors and consignees, see I. Nossar, op cit (2006).
102. This trend has been apparent for some time in Australia and has included most jurisdictions, with OHS agencies issuing guidance material, conducting joint enforcement campaigns with police and road transport agencies, and launching prosecutions in the case of serious breaches. One state, Western Australia, also introduced a code on truck-driver fatigue under its OHS legislation some years before the NSW Regulation. Initially, voluntary, the code was made mandatory and placed obligations on major transport operators to manage any subcontractors they engaged. M. Quinlan, Report of Inquiry into Safety in the Long Haul Trucking Industry (Sydney: Motor Accidents Authority of New South Wales, 2001)
103. and M. Quinlan, R. Johnstone and C. Mayhew, 'Trucking Tragedies: The Hidden Disaster of Mass Death in the Long Haul Road Transport Industry' in E. Tucker (ed), Working Disasters (New York: Baywood, 2006) 19.
104. Several Canadian provinces have introduced 'shipper' provisions (see for example,s 37(13) of the Saskatchewan Highways and Transportation Act 1997) and a similar proposal was made in California. For further evidence of debates and initiatives, including shipper concerns about litigation, see US Federal Motor Carrier Safety Administration, Results from the 2003 R & T Stakeholder Forum, accessed 16 November 2006 from http://www.fmcsa.dot.gov/facts-researh/ research-technology/report/
105. and G. Saltzman and M. Belzer, Truck Driver Occupational Safety and Health: 2003 Conference Report and Selective Literature Review (Washington: National Institute of Occupational Safety and Health: 2006).
106. I. Nossar. op cit (2006). Interestingly, one union proposal that was advanced, in 1970, to overcome the weakness of the wording of the 1946 FWR was the insertion of a clause into it similarly requiring a main contractor to notify the Civil Services Department of the names and addresses of all subcontractors so that they could be required to give the same assurances regarding compliance with the resolution to the Department as those that had to be provided by the main contractor.
107. See B. Bercusson, op cit (1978) 361.
108. A 'relevant person' for this purpose is n supplier, contractor, a supplier's continuing entity or a transferee. More generally, it should be noted that the union has had some success extending the regulation of clothing outworkers to other states, most notably South Australia, which has also introduced a mandatory code that, critically, is generic in scope and hence not restricted to the clothing industry. For discussion of this development and generic supply chain regulation more generally see I. Nossar, op cit (2006)
109. and M. Rawling, 'A Generic Model of Regulating Supply Chain Outsourcing' in C. Arup, P. Gahan, J. Howe, R. Johnstone, R. Mitchell and A. O'Donnell (eds), Labour Law and Labour Market Regulation (Sydney: Federation Press, 2006) 520.
110. D. Walters, 'Worker Representation and Health and Safety in Small Enterprises in Europe' (2004) 35 Industrial Relations Journal 169.
111. N. Shaw and R. Turner, The Worker Safety Advisors (WSA) Pilot, Health and Safety Excutive Research Report 144 (Sudbury: HSE Books).
112. See R. Johnstone, M. Quinlan and D. Walters, 'Statutory Occupational Health and Safety Workplace Arrangements for the Modern Labour Market' (2005) 47 Journal of Industrial Relations 93.
113. The presence of such provisions can be contrasted sharply with their absence under the rescinded FWR, as well as the current, Code of Practice on Workforce Matters in Public Service Contracts.
114. United Kingdom v Council of the European Union [1997] ICR 501.
115. More generally, some of the current problems relating to the management of the risks faced by temporary workers could potentially be resolved by deeming them to be 'employees' for the purposes of health and safety legislation and hence clarifying who has overall responsibility for their protection. See Deakin (2001), op cit.
116. House of Commons Work and Pensions Committee, op cit (2004).