Select Committee on Environment, Transport and Regional Affairs Memoranda

Memorandum by the Union of Construction, Allied Trades and Technicians (HSE 23)

  The request for us to submit evidence to the House of Commons Environment, Transport and Regional Affairs Select Committee coincides with the circulation of the consultation document Revitalising Health and Safety. We are submitting the same written reponse to both exercises. With the following additional points:

    —  regulations have not been complied with in construction, so much so that a blitz on scaffolding in London last year found 50 per cent of sites visited served prohibition notices[25];

    —  many awareness raising exercises have been low key and uninspiring, and have done little to change the anti-safety culture rife in the industry[26];

    —  individual deaths in construction remain at an unacceptable level, yet little is done regarding publicity for many of these deaths unlike the attention paid to deaths in other sectors;

    —  HSE may be under resourced; but they have ignored the potential of the Safety Representatives and Safety Committee Regulations, it has been policy not to implement them, and thus they have missed an opportunity to plug some gaps by involving the workforce.

  The construction industry has consistently had a worse record than other sectors. The death rate and/or totals have come down but much more slowly[27] and are more like a third of the rates in the 1970s than a quarter. The occupational health record is even worse. The Construction Taskforce report throws doubt on the quality or existence of partnership arrangements in construction at site level although they exist within HSC on CONIAC and even though the industry has a national collective agreement. In addition:

    —  The drop in fatalities in construction was taking place before the 1974 Act almost certain in part because of construction specific prescriptive legislation introduced in the 1960s. This, for example, brought in the requirement to carry out recorded inspections by competent persons of scaffolding; excavations; lifting equipment including cranes.

    —  The rate of construction fatalities for both employees and the self-employed increased in the 1980s and dropped very slowly in the 1990s. Despite this deregulation of safety regulations was contemplated by government, a move vigorously opposed by UCATT members and safety campaigners at the time.

  There are flaws in the 1974 Act and the Regulations that have flowed from it:

    —  Small Firms. Firms with fewer than five are not required to have a written safety policy [2(3) HSWA], or record their risk assessments. This often means safety gets down-graded especially regarding training, information and monitoring and assessments of healths risks. In reality a firm employing four may regularly employ ten because six remain "self-employed".

    —  Safety Specialists (Management Specialists). The requirement to have safety specialists[28] in construction goes back to 1948 but the numbers and quality in the industry rose after the 1974 Act, and has risen again since the introduction of CDM. However much of the industry is not directly covered and monitored by appropriately qualified safety specialists; the job is tagged onto and is secondary to other management functions.

    —  Competent Persons. The minimum qualifications required to carry out certain monitoring exercises are not defined in regulations, encouraging them to be carried out by people who are inadequately qualified.

    —  Risk Assessments. We have recorded our concern about some of the old prescriptive legislation being replaced by goal setting legislation backed by risk assessments. In addition we are concerned about the lack of risk assessments on the ground. What remedy has a worker got if the risk assessment is inadequate? Or not being followed?[29]

    —  Refusing Dangerous Work/Stopping the Job. The European Health and Safety Framework Directive gave workers this right and specifies that they should not be penalised. Currently if a worker is victimised in any way a worker has to go through the Employment Tribunal system, this takes too long and does not lead to reinstatement. The Management Regulations should be looked at to fully implement this part of the Framework Directive.

    —  Safety Representatives and Trade Unions. The Safety Representatives and Safety Committee Regulations (SRSCR) only relate to employees and to workplaces where trade unions are fully recognised.

    —  Regulation 8 of SRSCR. Cases where safety representatives need not be employees only applies to representatives of the British Actors Equity Association and the Musicians' Union; when we believe there is a far stronger case for this to apply to the construction trade unions.

    —  Self employment and the illegal economy. Casualisation and "lump" labour arrangements have been part of construction for many years, increasing drastically in the 1980s, and added to by the growing use of agency workers whose employment status is often subject to debate. The HSAW Act has never adequately covered these groups.


  Since the introduction of the 1974 Act, fatalities in construction have remained high enough to demand attention from HSE, including blitzes and special campaigns by HSE; for example Site Safe (1983) and most recently Working Well Together. Blackspot Construction (1988) found:

    —  the basic causes of deaths in construction had not changed over 10 years[31].

    —  management were responsible for 70 per cent of the deaths.

    —  people are killed during simple routine work because of a clear lack of planning.


  The Construction Design Management Regulations (CDM) were introduced in order to comply with European Directives and to improve safety by introducing a requirement to manage safety on site by the principal contractor. We believe a key feature of management systems in the sectors which have shown significant improvements since the 1970s (particularly manufacturing) has been the involvement of trade union safety representatives through the Safety Representatives and Safety Committee Regulations (SRSCR).

  Unfortunately CDM did not introduce any changes to encourage appointment of trade union safety representatives or extend protection to workers whose employment status is unclear: bogus self-employed, those appointed through Agencies, or any others open to question by employers and the courts.

  Employers are not complying with the sections of CDM which require worker involvement. UCATT has formally notified HSE of our concern that Regulation 17 (information and training) and 18 (advice from and views of people on site) of CDM are not being followed[32].


  The Fairness at Work/Employment Relations Act proposals on union recognition apply only when there are at least 21 workers, working for at least a three month period, and therefore, by default, leave the bulk of the contractors and small employers in construction untouched by the requirement to recognise trade union safety representatives and allow them the facilities to carry out all their functions.

    —  The Employment Relations Act should make it easier to raise individual grievances over safety and give workers some rights to be defended by trade unions if disciplined over safety matters.

    —  The Public Interest Disclosure Act which applies to apprentices, agency staff and the self-employed working under a contract, has no service qualification and will give all workers protection for "whistleblowing" for, amongst other matters, when health and safety is at risk. Workers sacked for whistleblowing are able to use procedures for reinstatement pending a tribunal decision.

  We believe these changes will be very important in construction. However, all protections regarding health and safety, especially the right to be a safety representative as in the SRSC Regulations, must be extended to all categories of workers. They must be able to use procedures for reinstatement pending a tribunal decision, regardless of whether the employers at site level have recognition agreements.

  The industry has a national collective agreement but it only encourages employers in the industry to recognise trade unions (Rule 25). It is very weak on safety (Working Rule 27) and weaker than it was in the past.

  —  63 per cent had not been consulted over Health and Safety Training.

  —  43 per cent of workers thought the training and information they received on site was poor.

  —  58 per cent had not received any information and training on site about emergency procedures.

  We continue to have problems at site and company level over the following issues:

    —  victimisation resulting in dismissal.[34]

    —  paid time off to attend trade union approved courses, including training courses for safety representatives.

    —  setting up of safety committees.[35]


  We would like trade union accredited safety representatives to have access to all workplaces when called in by the workers to represent them on safety matters, to carry out independent inspections and to issue Provisional Improvement Notices to aid enforcement. This is a right that has been tested in practice in many Australian States and proved to be effective in improving occupational health and safety in small and medium sized firms. It has been very effective in construction. Similarly, Regional or Roving safety representatives work effectively in Sweden.


  Revitalising Health and Safety says "We must not repeat the 20th century's experience of asbestos. We must learn how to respond quickly to emerging concerns." Fine words, but what do they mean?

    —  The last two years have shown little evidence of government willingness to act swiftly to ban asbestos.

    —  The promised new preventive measure regarding surveying property for asbestos and making that information available to all who work in repair and maintenance has apparently disappeared.

    —  The promised toughening up of the Asbestos Licensing Regulations has also deregulated work with asbestos cement.

    —  The promised tightening up of the Control of Asbestos at Work Regulations did not lower the Control limit for asbestos to 0.1fibres/ml over four hours, the control level in a number of countries including the USA, a standard arrived at after lengthy debate on both sides of industry.

    —  UCATT policy, affirmed in 1998, is Zero Exposure: there should be no incidental work with asbestos.

    —  Targets for Asbestos in addition to the aim of eliminating dry stripping and giving 10,000 workers asbestos training, we would like a substantially increased target for HSE visits to enforce the asbestos licensing laws.[36]


  In April 1999, at Leeds Crown Court, Neil and Andrew Medley pleaded guilty to employing three schoolboys to strip asbestos and to working without an asbestos licence, after originally facing 64 charges in connection with asbestos at an earlier hearing in a Magistrates court. It was the most serious asbestos prosecution to date. We were assured by HSE, that a two year prison sentence is possible for breaking 3(1) of the Asbestos Licensing Laws and that HSE would argue for this forcefully. Unlimited fines for some of the other offences were also possible.[37]

  We are horrified that in the end they appear to have got off with 240 hours and 120 hours community service, and were ordered to pay only £6,000 costs. The sentence is an insult to the thousands of asbestos victims and their families. This case illustrates that the law must be toughened up so that punishments match the nature of the crime. Asbestos kills people.

  Three years ago a Turin court jailed the nine owner-managers of the Societa Italiana Amianto, an asbestos factory, for terms of between seven months and eight years and ordered them to pay personal compensation totalling £6 million. They were found guilty of murdering 32 workers and causing the occupational diseases of the 11 still alive. This level of punishment would make a real difference in attitudes of employers in this country.


  Over the last 10-20 years the health of men in manual trades has got worse compared to the rest of society[38]. There is now a gap of over five years in the life expectancy of men in the highest social class and men in the lowest.

  There is ample evidence that many of the causes of ill health in construction workers are well understood. Many existing Regulations if rigorously enforced would help reduce the burden of disease. In this category are asbestos related illness, other respiratory illnesses, back injuries, occupational deafness, manual handling injuries, including back problems, repetitive strain injuries and vibration-induced white finger.

  The control of health risks in the industry will only come about when it is possible to implement a much more pro-active strategy. The construction industry must prioritise the funding of a preventative occupational health service to supplement the work of the HSE/EMAS and the medical screening and surveillance provided by some employers.

  We would like to see the setting up of Regional Construction Occupational Health Centres, involving a range of expertise rather than simply the work of the (handful) of occupational health physicians and nurses currently provided. We would like to see people with practical experience in the industry involved in site visits, risk assessments, training and dissemination of information to workers. These centres would employ or consult occupational hygienists, ergonomists, engineers and safety trainers. Other countries including the USA, Italy, Denmark, Australia have already set up such centres. Usually they are managed on a bi-partite basis. The involvement of employers and trade unions is important.


  Although HSE has recently run a campaign to alert workers and management to the dangers of working with solvents and though the Control of Substances Hazardous to Health Regulations requires elimination or substitution when this is practical, the issue of brain damage to painters and other ill health has not been addressed in this country as it has in other European countries. Solvent based paints are widely used in this country, whereas Denmark imposed strict controls in 1988 and now 95 per cent of paint used internally, 50 per cent externally, is solvent free. In Holland recent legislation will permit up to 10 per cent volatile solvent in internal paints, and tougher controls on external paints, backed by a national training programme for painters. In addition Organo Psycho Syndrome is a recognised industrial disease in other countries but is not a prescribed industrial disease in the UK.


  There are many causes of stress in construction but one of the major factors is the long hours, given the arduous nature of the work. The seven year UK opt out of the 48 hour week on the basis of individual workers signing, with no requirement for a collective decision with a workforce of less than 20, means that the Working Time Regulations has not yet reduced the pressure in the industry to work excessive hours. This should be a priority.

  In addition the culture and general management practice in the industry means that bullying and even violence are not uncommon. The absence of any effective consultative machinery at site level means that workers struggle to tackle these issues. The Construction Taskforce said: "much of construction does not yet recognise that its people are its greatest asset and treat them as such." In our response to this report we argued a significant section of construction appears to have no knowledge of employment law in this country and/or willingly ignores it. However, it is not unusual for us to be contacted by workers worried about basics: dangerous equipment, lack of protective equipment, bad welfare etc and be told they are afraid to raise these matters, or that they have raised them and have been met with abuse and threats. If health and safety is to improve in the industry the confrontational approach by management must end.


  Over half of all HSE prohibition notices are given in construction. One third of all HSE prosecutions involve construction. UCATT would like to see tougher sentences, including prison sentences, for all serious health and safety offenses. Average fines in Magistrates Courts are low, only £3,886 and in the Crown Court are only £17,768. Recent high fines have been a record £1.2 million fine for Balfour Beatty for the Heathrow Tunnel collapse which signals a change in the right direction. However the Medley case shows we have a long way to go.


  We believe that there should be a mechanism for referring unduly lenient sentences for serious health and safety matters to the Court of Appeal with regard to increasing the sentence.

September 1999

25   HSE Press Release 22 September 1999. Back

26   Rethinking Construction DETR. Back

27   The HSE Briefing Key Facts Injuries in the Construction Industry 1961 to 1995-96 shows an average of 250 construction employees killed each year in the 1960s, with a peak of 292 in 1966; an average of 162 employees in the 1970s with a peak of 231 in 1973. In the eighties the reporting systems changed making comparisons more difficult. However overall totals dropped slightly in the early eighties but went up again to 165 in 1989-90. The rates for employees and self-employed rose in the eighties. Back

28    In the Building (Safety, Health and Welfare) Regulations 1948 it applied to firms over 50; in 1961 this was lowered to firms employing over 20. Back

29    Keltbrey, a demolition firm, was recently fined £200,000 at Southwark Crown Court following the death of Patrick Fraher and William Cummings. The judge found they had not followed their written safety procedures. Back

30    Paragraph 71 of Revitalising SafetyBack

31    Even in 1927 a Chief Inspector of Factories was reporting that construction accidents followed a predictable pattern ". . . There is a striking similarity in the reports from different parts of the country . . . There seems to be considerable neglect in the fencing of openings and the edges of scaffolds . . ." See 1986-87 HSE Annual Report. Back

32    In a UCATT survey we found: Back

33    Paragraph 79 of Revitalising Safety. Back

34    Recent cases have been reported in the press regarding UCATT representatives on Costains and Schall (Tarmac) sites. Back

35    At Wimpeys in Scotalnd a representative attempting to set up a committee was made redundant before the case wound its way through the Tribunal system. Other workers also made redundant were later re-employed on a self-employed basis. Back

36    In 1996-97 and 1997-98, the HSE target for inspections of notified asbestos removal operations was 6 per cent, and the plan for 1998-99 was to inspect 10 per cent. In other words 90 per cent of removal jobs were unlikely to be inspected. More than half of active asbestos licensees, 54 per cent, are not visited on site. Back

37    In addition, we know that Roy Hill got three months for asbestos offences in Bristol in 1996, and that Paul Evans got nine months for work without a licence in Birmingham, at the end of 1998. Back

38    The Department of Health Healthier Nation Campaign. Back

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Prepared 26 October 1999