//.

An Industrial Relations Approach

By David Lewis*
Roberts and participation through consultation
According to the Robens Committee on Safety and Health at Work *
" the primary responsibility for doing something about the present levels
of occupational accidents and disease lies with those who create the
risks and those who work with them." Their report stressed the need
for greater acceptance of shared responsibility and called for " a greater
degree of real participation in the process of decision-making at all
levels." It was therefore recommended that there should be a statutory
duty on employers to consult with employees and to provide arrange-
ments for participation in the development of measures for promoting
safety at work.1

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Although it is the fundamental legal obligation of the employer to
provide safety it is too, superficial to say that safety is the responsibility
of management Since management has the ultimate responsibility for
running the enterprise it carries an overall responsibility for safety which
cannot be shared1; yet the exercise of this responsibility requires the
co-operation of workers and the influence of trade unions in securing iL
It is at this stage that safety becomes the responsibility of management
and workers.4
In the interests of achievingflexibilitythe Robens report did not specify
any particular form of participation. One result may be that managers
are reinforced in their decision to adopt more consultative styles of
management which give workers the illusion of involvement without the
reality of power. Of course management may retain its role as unilateral
decision-maker as a consequence of the relevant unions preferring not to
participate in joint decision-making. Such unions avoid direct involve-
ment in management decisions for fear that they would be less able to
protect and advance their members' interests subsequently.
Acceptance of the principle that workers should be allowed to partici-
pate collectively in the settlement of problems directly affecting them
may lead in practice to very different arrangements. There are funda-
mental differences between systems which give workers powers of decision
in managerial or supervisory boards and systems under which workers
* Lecturer in Law, Middlesex Polytechnic
i 1972, Onnd- 5034.
* In 1973 the Department of Employment proposed that employers should have a
basic obligation " to agree with employees or their representatives at the workplace
adequate arrangements JOT joint consultation on measures for promoting safety and
health" (my italics): Para. 4C Proposals for a Safely and Health at Work Bill
(Department of Employment, 1973).
3 Thus even a safety committee "cannot relieve higher management of its overriding
responsibility for accident prevention": Works Safety Committees in Practice
(Ministry of Labour, 1968).
* Clause 6 (fc) of the Health and Safety at Work etc Bui 1974 made it the duty of
every employee while at work " as regards any duty or requirement imposed on his
employer . . . to co-operate with him so far as is necessary to enable that duly or
requirement to be performed or complied with " (my italics).
96
 Worker Participation in Safety—II 97

bargain with management over specified issues. In the latter case workers
do not share the responsibilities of management, they are solely con-
cerned with promoting their own interests by extracting the maximum
concessions. Thus instead of sharing managerial power trade unions may
use their power as a counterweight to it through collective bargaining
machinery.
The Robens Committee expressed the belief that " real progress is
impossible without the full co-operation and commitment of ah1
employees."5 But is a duty to consult going to be enough to raise
standards or is it true that co-operation can only flourish on the basis of
negotiated agreement? From the point of view of the organised worker
collective bargaining may represent the most acceptable form of partici-
pation and may be the only satisfactory way in which co-operation can

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be achieved."
The Robens Report stated that in manufacturing industry the typical
method of involving workpeople is through the voluntary establishment
of joint safety committees. However, while conceding that a statutory
provision requiring the appointment of safety representatives and safety
committees might be advantageous, the Committee refused to recom-
mend such a provision on the grounds that it might prove " too rigid "
or " too narrow in concept" * In their view the best way to meet the
real need would be to impose on employers a general duty to consult
about arrangements.
It is often claimed that safety committees have made a direct contribu-
tion to reducing the number of accidents and have had the indirect
effect of increasing safety consciousness,* so why have employers been
reluctant to establish such committees? One possible explanation is that
where safety committees were established they often failed to attract
much attention—people thought more readily of-the factory inspector
as the person responsible for accident prevention. Because many com-
mittees lacked real responsibility and authority they were not as successful

s Clause 2 (3) (a) of the Health and Safety at Work Bill 1974 made it the duty of
every employer " to consult with his employees or their representatives with a view
to the making and maintenance of arrangements which will enable the employer and
his employees to co-operate effectively in promoting and developing measures to
ensure the health and safety at work of the employees and in checking the effective-
ness of soch measures " (my italics).
« See the Report of the Royal Commission on Trade Unions and Employers' Associa-
tions 1968, Cmnd. 3623, Para. 999: " W e believe that our proposals for the reform
of collective bargaining on the basis of comprehensive agreements at factory and
company level will do more than could any other change to allow workers and their
representatives to exerdse a positive influence in the running of the undertakings in
which they work."
i The Employed Persons (Health and Safety) Bill 1970 obliged employers of more than
100 workers to form joint safety committees if so requested by the safety representa-
tives appointed by recognised unions.
» " Within the Post Office there can be no doubt that safety committees generally have
made a particularly valuable contribution to the effort which has led to a progressive
reduction in accident rates." Extract from a Post Office CirculaT, 1973.
IXJ.—8
98 David Lewis

as was hoped, as purely consultative bodies they have tended to

degenerate quickly into talking shops. If safety is to be promoted
successfully then such committees must have real responsibility and
authority.
It was asserted by Robens that " there is no legitimate scope for
' bargaining' on safety and health issues "; the Committee believed in
the " greater natural identity of interest between ' the two sides' in
relation to safety." This approach is consistent with the view that con-
sultation is the means of promoting action where there are no obvious
conflicts, but the Committee should have acknowledged the fact that
genuine disagreements do arise. Theoretically, of course, accident preven-
tion is common ground—nobody wants workers to be injureo"—but in
practice safety may be just as bedevilled by opposing viewpoints. Safety

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may, in the abstract, be uncontroversial but when managers or workers
contest the adequacy or fairness of the rules or who is at fault when they
are broken the argument cannot be disinterested: " Neither side can be
impartial for management is biased in favour of production and the
workers in favour of protection. Moreover, as costs and earnings may
be affected, economic conflict appears in another guise to influence
judgment on seemingly non-economic issues." B
In an attempt to justify their recommendation of an admittedly
unenforceable duty to consult, the Robens Committee suggested that
this " would not inhibit the development of various forms of joint
endeavour going beyond what is usually comprised in the expression
joint consultation." What exactly did the Committee envisage as being
" usually comprised " in this term?
The old view was that the purposes of negotiation and consultation
were different: "Collective bargaining was appropriate in the narrow
area in which the interests of management and workers conflict Joint
consultation was to be used in the wide area in which these interests
coincided." 10 Thus it became generally accepted that joint consultation
should be kept separate from the collective bargaining machinery and
consultative committee constitutions frequently contained the following
clause: " the committee shall not discuss any question which is covered
by an operative agreement between the company and any trade union,
except by written consent of the trade union concerned." One of the
aims of supporters of joint consultation is the achievement of industrial
harmony, which depends on the concept of the industrial enterprise as
a team unified by common purpose. Unfortunately the unitary frame of
reference ignores the conflicts of interest which must always exist between
the various groups within an enterprise.
The Industrial Relations Code of Practice 1972 regarded consultation
» Allan Flanderi in The Fawiey Productivity Agreements (London, 1964) p. 242.
10 Hugh Clegs in A n*w Approach to Industrial Democracy (Oxford I960) p. 36.
 Worker Participation in Safety—// 99

and negotiation as " closely related but distinct processes " although
some are now of the opinion that many of the distinctions are inadequate
for normal operations." In its fourteenth report the C.LR. recognised
that the distinction between joint consultation and negotiation was
largely meaningless in principle and self-defeating in practice." The
CB.L have also found it impossible to lay down general principles for
the demarcation of these two " channels of communication" and
inclined towards the view that " joint consultation " includes elements
of communication, consultation and negotiation.11 According to Joan
Henderson " the pace of technological and organisational change has
been such that informing, consulting and negotiating have become
part of a continuous whole." " Certainly there is no particular logic in
the distinction between subjects which are suitable for negotiation and

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those that are not It is based on what unions have managed to establish
as negotiable.10 Increasingly companies are finding that the most effective
method of operation is for shop stewards to represent employees in both
consultation and negotiation and for all matters affecting their day-to-day
relations to be opened for discussion. Where managers have extended
the area of joint regulation and increased the range of issues and topics
discussed with stewards to include the less contentious ones, industrial
relations have become more constructive.1*
Consultation can be used to support and supplement collective bargain-
ing but, like collective bargaining, it will depend on the existence, strength
and recognition of trade unions. With shop stewards in a position to
negotiate as the need arises there is no reason why a single channel of
communication should not function at plant level,17 making attempts to
distinguish matters of conflict from matters of common interest irrelevant.
It is curious that while the Robens Committee indicated that safety is
not a managerial prerogative their Report accentuates the very common
interests which legitimise management's power. If we reject management's
right to decide unilaterally " there can only be one way forward " "—
" See particularly W. Daniel and N. Mclntosh: The Right to Manage (London, 1972).
« Cmnd. 4598,1971.
" Sec " Communications and Consultation " (CB.I. 1966).
« Effective Joint Consultation (Industrial Society, 1965).
<<s In Workers' Participation in Management in Britain (London, 1972) p. 98 Clarke,
Fatchett and Roberts suggest that management has a unitary view not merely because
of an ideological commitment " but because unions have frequently failed to Increase
their organisational strength to a level where they can insist on management accepting
a wider field of joint regulation."
10 See Royal Commission on Trade Unions and Employers' Associations. Research
Paper No. 10 (H.M.S.O., 1968).
" In Royal Commission on Trade Unions and Employers' Associations, Research
Paper No. 1 ( H . M A O , 1966), Dr. McCarthy thought that joint consultative com-
mittees would be unable to survive the development of effective shop-floor
organisation: " Either they must change their character and become essentially
negotiating committees carrying out functions which are indistinguishable from the
processes of shop-floor bargaining or they are boycotted by shop stewards and,
as the influence of the latter grows, fall into disuse." p. 33.
i« W. Daniel and N. Mclntosh (above, note 11).
 100 David Lewis

authority should be shared with workers through an extension of joint

regulation.
The role and scope of collective agreements
It is axiomatic that no piece of legislation can cover every contingency.
It can make a requirement of those precautions which can be specified
in legal form but it cannot provide a complete guide to what should
be done. While strict compliance with safety legislation might ensure a
reasonable level of safety, generally speaking legislation can only pre-
scribe a minimum standard if it is to apply to most of the establishments
it covers. Agreements between managements and unions can help
to ensure that statutory requirements are adhered to, can provide
facilities above the legal minimum1* and be of great value in dealing

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with matters which are not easy to enforce under criminal law. Not only
do collective agreements at plant level enable legislation to be applied
to the conditions existing at a particular workplace, but people are
usually more committed to goals that they themselves have played a part
in setting than to those imposed from above. The role of employers
and trade unions at national level should be one of watchfulness and
encouragement, though occasionally there may be major hazards which
can and should be dealt with at that level. Agreements must be made
at the point at which they are going to work.
Although an employer cannot be ordered to bargain on safety matters
in this country10 negotiations do take place both in conjunction with
and separate from consultation.21 Sometimes safety rules are included in
formal agreements " and all too often unions negotiate hazard payments
where there are unsafe conditions. In many companies disputes on safety
issues can be processed through the grievance procedure, which often
provides for the " prompt and amicable settlement of all grievances and
disputes as expeditiously as possible by negotiation." At Hoover Ltd.,
Perivale, the joint safety committee combines the functions of both con-
sultation and negotiation to a greater or lesser degree depending on the
nature of the item and the Post Office has made arrangements for
decisions on local safety matters to be arrived at by agreement in self-
contained sub-committees of the local joint negotiating and consultative
committees.
i» In Sweden the provisions of the Workers Protection Act have been extended and
amplified by comprehensive national agreements between management and unions.
so It is the longstanding policy of the United States National Labor Relations Board
that the safety and health demands of unions are mandatory subjects of collective
bargaining. Employers must bargain on safety issues even though working conditions
are also subject to the many safety regulations imposed by federal and state statutes.
11
A few unions daim to negotiate on safety matters, e.g. the Fire Brigades Union. An
investigation into the range of bargaining of shop stewards revealed that 54 per cent.
" discussed and settled " safety questions as standard practice. Royal Commission
Research Paper No. 10, p. 33.
** See particularly the agreements of United Kingdom subsidiaries of American
companies.
 Worker Participation in Safety—II 101

Under the Gas Act 1948, the Gas Council (which ceased to exist after
1972) had a statutory obligation, in common with other nationalised
corporations, to consult with appropriate organisations with a view to
concluding agreements on joint machinery for the promotion of measures
affecting safety. It was policy in the industry to consider safety as an
appropriate subject for joint consultation and at local level the negotiat-
ing and consultative machinery was separated. However, at higher levels
safety was dealt with by bodies which negotiated terms and conditions
of employment The fact that negotiations on safety are conducted
within a procedure for joint consultation helps to sustain the myth that
the issues are not settled by collective bargaining at all.
Turning to the potential safety content of collective agreements,
perhaps the most important item to be agreed is the method of appointing

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employees safety representatives. The Robens Committee contemplated
election by employees " arranged through trade unions recognised at
the workplace or through work groups as appropriate." M Election by
ballot is more likely to stimulate employee interest in safety than is
nomination and, once elected, employee representatives should be given
such facilities and assistance as they might reasonably require for carrying
out inspections and acquainting themselves with circumstances in the
workplace.14 Representatives should be entitled to perform their duties
without loss of pay and should be protected against victimisation where
safety activities are carried out in good faith. Although dismissal for
such activities alone might be deemed "unfair," what is really envisaged
is the recognition of a positive right in this area. For this purpose an
appropriate clause might be: " each and every employee who may be at
any time a safety representative is perfectly free to discharge the duties
of his office with the absolute assurance that his personal standing with
the company will in no way be prejudiced by any action he may take in
good faith while acting in the capacity of safety representative." Em-
ployee representatives should have the right to check safety arrangements
and to inspect for danger as this can inspire confidence in employees
and can lead to improved safety standards. This right should be given
some force by the guarantee of unrestricted rights of access to both
government and local authority inspectors. Provisions should also be
made for inspectors' findings, recommendations and instructions to be
conveyed to safety representatives " and for tripartite discussions between
these representatives, inspectors and management It is essential to
arrange for the disclosure of all relevant information so that discussions
are not rendered futile by lack of knowledge. Adequate warning should
u The question of whether the appointment of employee safety representatives should
be a union prerogative, as was proposed in the Employed Penons (Health and
Safety) Bill 1970, was not discussed.
« See the provisions of the 1970 Bill.
so As in Sweden. In this country workers are usually kept in the dark about an
inspector's recommendations and instructions.
 102 David Lewis

be given of impending changes and sufficient time should be allowed for

employee representatives to make their views known.
Having defined the role of safety representatives, collective agreements
should provide for the establishment of joint safety committees, whose
purpose would be to keep under review the circumstances which affect,
or may affect, the safety of employees and to promote co-operation
generally. As far as possible these committees should be geared to the
existing negotiating and consultative machinery, eg. as a sub-committee
of a plant or works committee. They should have the power to make
decisions by agreement and should be either self-contained or directly
responsible to the plant or works committee. The constitution of a
safety committee should allow disputes to be processed through the
normal grievance channels.

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An effective safety programme cannot be achieved unless both sides
are prepared to play their full part, which necessitates reaching agree-
ment on all issues. When agreement is reached unions should co-operate
in publicising the rules so that the shop floor can legitimise the norms
which their representatives are committing them. Procedures must be
set up to ensure that all accidents are investigated, the causes established
and appropriate remedial action taken. Agreement is necessary on the
adoption of safe and efficient working methods and the supply of pro-
tective clothing, and arrangements for monitoring safety performance
and for utilising diagnostic and predictive techniques should be discussed.
By embodying safety rules in a collective agreement rather than a code
of practice they are seen to carry the same weight as any other plant
or company rules.16
Is it the union's job to police agreed safety rules or merely to see that
any punishment is justified and fair? It is frequently argued that if both
management and unions have the task of enforcing rules it becomes
too easy for the buck to be passed. Thus trade unions in this country have
not normally been required to share what is considered to be manage-
ment's responsibility. Disciplinary powers should be agreed and exercised
in appropriate circumstances, since a rule that is not enforced is quickly
forgotten. So long as employees know when they are infringing the
rules and what the consequences will be there can be few objections
to making a wilful breach of safety regulations, whether a cause of
danger or not, grounds for disciplinary action." At the same time pro-
tection is urgently required for the worker who refuses to undertake
hazardous work.**
so A delegate to the 1972 TUC Congress said that it was the experience of the National
Union of Mincworkers that codes of practice were ineffective in dealing with safety
matters. But sec clause 1 (?) of the Health and Safety at Work Bill 1974.
" On this see " unfair dismissal " cases involving safety rules, e.g. Young v. Thomas
[1972] I.RX.R. 40.
*» In Turner v. A.CM. Electronics [1972] unreported, a London tribunal hdd that an
employee is justified in refusing to obey an order when to do so would put him in
physical danger.
 Worker Participation in Safety—II 103

Again, if safety is to become a part of a worker's approach to his

job some reference must be made to industrial training. Collective agree-
ments should provide for training in safety procedures to be treated
as a fundamental part of all basic training and for follow-up sessions to
be held at regular intervals.1" Managements must accept that their own
learning is just as necessary as training workers on the shop floor and
should be urged to employ specialist safety staff where possible.

Trade union attitudes and pressure

Although it is the function of trade unions to secure better wages,
hours, holidays and benefits and to improve the living conditions of their
members generally, it should be their first duty to do all they can to

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keep their members alive and intact One sort of activity which is
definitely not conducive to safety is the willingness of unions to negotiate
additional payments for particularly dangerous work. Safety cannot be
promoted in such circumstances since the work and risks remain the
same and a special rate-for-the-job merely condones the acceptance of
unsafe conditions. In hazardous industries attempts must be made to
replace payment-by-results systems. Instead of gearing themselves
towards obtaining the best possible settlement of injury claims unions
should focus more attention on prevention and the sources of injuries.
Unions have a vital and positive role to play in encouraging " hazard
consciousness " but in the past they have been too willing to confine
the scope of their activities and workers have come to expect union
action only in limited areas. It is now time to press for agreements
covering safety matters.10 Workers should be encouraged to become less
tolerant of the risks to which they are exposed and pressure should
be brought to bear on negligent employers.11
In the United States workers' safety representatives can apply directly
for court orders requiring inspectors to enforce regulations and can stop
a process or machine they consider to be dangerous.32 If no similar
powers are introduced in this country should employee safety representa-
tives be permitted to pressurise recalcitrant employers by drawing on

a> Clause 2 (2) (c) of the Health and Safety at Work Bill 1974 made it the employer's
duty to provide " such instruction, training and supervision as is necessary to ensure,
so far as is reasonably practicable, the health and safety at work of his employees."
In The Hazards of Work: Bow to Fight Them (London, 1974), p. 315, Klnnersley
argues that " workers need union training if they are to cut through management
safety jargon and get at the real facts."
M
A recent G.M.W.U. Research Department Brief on Model Procedure Agreements
favoured negotiating procedures which are capable of handling all issues. Safety
was specifically included.
" In January 1973 the American Oil, Chemical and Atomic Workers Union in Shell
refineries commenced the first national strike on a health and safety issue. The
strike ended in June when the company conceded most of their demands for better
protection.
« See Occupational Safety and Health Act 1970.
104 David Lewis

their experience of different forms of industrial action? So long as reason-

able time is allowed for remedial action an ultimatum issued by such
representatives need prove no more objectionable than a formal improve-
ment notice emanating from an inspector. Provision could be made for
an employer to appeal against strike notice to an industrial tribunal."
Of course it is regrettable that it is often necessary for something
dramatic to happen in order to draw attention to what needs doing,
but industrial action can direct management's attention to safety problems
in a manner that is positive and constructive and may stimulate the
growth of joint regulation."

Conclusion

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Industrial accidents affect both the lives of workers and the prosperity
of the organisation and by stoppages of work cause such losses of output
as to harm the country's economy. Some of the apathy in industry
derives from the feeling that safety is not really the responsibility of
workers, although experience of worker-involvement has already shown
us that they can " sell" safety where management has failed to do so.
Joint safety committees can set an atmosphere of awareness and can
continuously supervise at the workplace, a function which cannot be
exercised by any number of government inspectors.
Steps must be taken to foster greater co-operation between manage-
ment and unions by the removal of impediments to such co-operation.
One impediment is too great an emphasis on alleged common interests
and reliance on managerial prerogative. The distinction between negotia-
tion and consultation, which was theoretically based on the ultimate
location of authority,38 is now obsolete. Managers must realise that to
get the right decisions taken, accepted and implemented is more
important than prerogative,38 so they should accelerate the merger of
negotiating and consultative machinery. The initiative must come from
management but it is a union function to jog management. The trade
union movement should insist that safety, like any other subject, is a
fit one for the negotiating table. Collective bargaining not only raises
the status of safety, it may also constitute a " more effective form of
participation than any of the schemes formally given that name." "

« Clause 23 of the Health and Safety at Work Bill 1974 provided for appeals against
improvement or prohibition notice* to be heard by industrial tribunal*. No time
limit was specified.
*• Where there is a genuine safety dispute workers should not be disqualified from
receiving unemployment benefit: see R(U)3/71.
as Consultation leaving the final decision with management
" See now the proposals for a European Works Council. Article 66 lists safety as one
of the subjects on which decisions may be made by the board of management of a
company only with the agreement of the European Works Council.
« Strauss and Rosenstein in (1969-70) 9 Industrial Relations 205.