International comparison of (a) techniques used by state bodies to obtain compliance with health and safety law and accountability for administrative and criminal offences and (b) sentences for criminal offences

This report provides an overview of occupational health interventions and sentencing strategies practiced in the Netherlands, Germany, Italy, Sweden, the USA, the Canadian states of Alberta, Ontario and British Columbia, and the Australian states of New South Wales, Queensland and Victoria and critically reviews the evidence relating to their effectiveness. The range of intervention strategies is considerable and growing. Significantly, this process is largely occurring in the absence of strong evaluative evidence.

The most robust studies – those that are well controlled and explore the impact of techniques on health and safety outcomes - have focused on inspection, workers’ compensation and worker participation and have generally found a positive effect on workplace health and safety. Although less robust, most evaluative studies of training, education, eliminating risk through design, systematic occupational health and safety management and campaigns tend to suggest that these may, under certain conditions, reduce occupational injury and ill health. Despite this, it is unclear whether the evidence is strong enough to justify a significant shift in resources away from intervention strategies in relation to which evidence of effectiveness is strong. The changing mix of strategies in most jurisdictions is commonly justified on the basis of changes in the organisation of work and employment. However, notwithstanding some examples of good practice, none of the regulatory authorities we reviewed have systematically addressed the specific problems associated with either labour market transformation or the considerable changes in work organisation over the last thirty years.

Inspections continue to constitute the main tool used by regulatory bodies to promote compliance in all these jurisdictions. However, there is considerable variation in the form, frequency and method of operation of each kind of inspection, as well as in the response to any breaches of law identified. In some jurisdictions, such as Germany and the Canadian province of Alberta, inspections are primarily used as a means of providing advice and detailed information to duty holders, whilst in others, such as Sweden and the Netherlands, this function is more appropriately considered to be undertaken by consultants. Use of enforcement also differs considerably between jurisdictions. In Germany and Sweden duty holders are provided with an opportunity to rectify problems before formal enforcement is considered. Inspections in the Netherlands and Italy, by comparison, are primarily conceived of as vehicles for the identification of violations that can result in enforcement action. Sweden appears to be the only jurisdiction with an explicit policy of informing premises of an impending inspection. Whereas in most jurisdictions inspectors are simply required to notify the workforce that an inspection is taking place, in some jurisdictions, such as Germany and the Netherlands, there is a far greater expectation on inspectors to work closely with the workforce.

Despite the available data suggesting a decline in the use of inspection over the long-term, regulatory authorities in a number of jurisdictions (Alberta, British Columbia, Italy, Ontario, Queensland, and Sweden) have either recently enhanced or plan to increase their capacity to inspect. The focus and style of inspections has also changed considerably in a number of jurisdictions (Australia, German Labour Inspectorates) with more attention being paid to systems of work. Most regulatory bodies, except the USA, have similar powers concerning unrestricted entry of premises and powers to stop work where necessary, whilst inspectors from all the jurisdictions can impose a notice requiring improvements. In most jurisdictions, administrative offences are used alongside criminal offences as a means of underpinning health and safety regulation. In some jurisdictions (such as Ontario, New South Wales, Queensland and Victoria) administrative offences are confined to relatively minor breaches which carry relatively low fines. In other jurisdictions (such as British Columbia, Germany, and USA), where criminal prosecution is rare, administrative offences also involve serious breaches and can result in relatively high fines. The process of assessing fines also varies considerably. In some jurisdictions (such as Ontario) the level of fine is fixed, in others (such as Germany) regulatory bodies have a wide discretion, whilst in others still (the USA, Netherlands and British Columbia) a fixed basic fine is adjusted according to a range of factors.

All jurisdictions have a policy of investigating deaths and the most serious injuries – though only the Netherlands has a policy of investigating all reported reportable injuries. In some jurisdictions, such as Italy, detailed criteria exist to guide the type of incidents to be investigated, whilst in others, such as Germany, officials are afforded far greater discretion. Whilst most jurisdictions focus on the issue of accountability when undertaking investigations, in some jurisdictions, such as British Columbia, the educative function of the process is prioritised. Differences also exist in the organisation of investigations. Some jurisdictions, such as the USA and Victoria, rely heavily on specialised teams of regulatory inspectors, whilst in others, such as Italy, police and prosecutors play a far greater role. Prosecution under the conventional criminal code is rare in most jurisdictions.

In addition to inspection and enforcement, all the jurisdictions we examined administer campaigns aimed at promoting occupational health and safety. An appeal to the commercial advantages of good health and safety is common to all English language jurisdictions as well as some German Länder. Elimination of hazards and risks at the design stage is also used across most of the jurisdictions we examined and evidence from Germany suggests that this can produce significant improvements in occupational health and safety. All regulatory jurisdictions emphasise the importance of partnership – although, in practice, the term is used to describe a wide range of arrangements involving different stakeholders and allowing for varying degrees of flexibility. Where partnerships are highly prescriptive and target focused, as in the case of signed ‘covenants’ in the Netherlands, they have tended to coincide with decreases in work-related injuries. But there is, as yet, no evidence to suggest a cause and effect relationship. The level of worker participation in firm level health and safety is relatively developed in both Commonwealth and European jurisdictions and there is strong evidence to suggest that, where workers are organised, genuine worker participation can have a significant impact on occupational health and safety. Many jurisdictions make some effort to publicise the achievements of firms to raise awareness, encourage innovation and generally promote occupational health and safety. Training and education is integrated into a large number of occupational health and safety initiatives - sometimes as part of inspection or as a stand alone strategy – and regulatory authorities use a range of different methods to provide information and advice.

We found considerable variation in the range of sentencing options available to the courts. Some jurisdictions (Alberta, Nova Scotia, British Colombia, Victoria and New South Wales) have introduced highly developed sentencing frameworks, which make available a diverse range of sentencing options for most health and safety offences, whilst in others sentencing frameworks remain relatively undeveloped. Although there is no research on the relative efficacy of different organisational sanctions, several points of crucial relevance to sentencing policy can be drawn from existing studies. First, given the low rate of detection, investigation and prosecution of health and safety offences, optimising the general deterrent effect of court sanctions is essential to producing the highest return on resources devoted to prosecution. Second, sanctions that produce moral, as well as deterrent, effects are likely to have a greater impact on firm decision-making. Third, where firm reputation is unlikely to be greatly damaged by conviction and sentence, sanctioning policy should focus on increasing the moralising effect of court-based sanctions. Fourth, although research strongly suggests that administrative penalties focus managerial attention on occupational health and safety, their impact in creating a climate of compliance through moralising responsibility is likely to be less than prosecution. Fifth, given the capacity of large firms to absorb even ostensibly large fines and given that increasing the rate of CEO turnover among larger companies is being driven by the demand for higher performance from investors, the effectiveness of organisational sanctions is likely to be highly dependent on fines being linked to firm size. Finally, given investors’ passivity, sanctions which impose significant economic and reputational costs on firms are likely to be necessary to overcome the general inertia against direct intervention in firm management that has historically characterised institutional investing.