Select Committee on Environment, Transport and Regional Affairs Appendices to the Minutes of Evidence

Supplementary memorandum by the Health and Safety Executive (P 11B)

  I promised to provide the Committee with some further information on how HSE approaches casualisation issues. This is closely related to the growth of contractorisation (in workplaces where large number of contractors work together on specialist tasks in contrast to a workplace where everyone works for the same employer). There is no question that the greater use of contractors presents challenges to health and safety at work because it increases interfaces and can lead to confusion about who is ultimately in charge of and take responsibility for safety and in relation to what aspects of the work. On the other hand it can lead to more effective control of risks when expert contractors deal with certain operations they specialise in undertaking. This is as true in ports as elsewhere.

  Over the past 12 years or so, the number of dock workers directly employed by port undertakings has dropped, and greater use is now made of stevedoring contractors. Some ports retain enough direct employees for regular work, and bring in contractors for peak periods or for specialist work. In other cases all stevedoring is carried out by independent contractors engaged directly by the shippers or their agents. The contractors may have teams permanently employed, perhaps contracting to a number of agents of dock/berth/terminal operators within a port, or even a number of ports, if close together. In many cases, they have a "bank" of workers on whom they draw if additional labour is required for peaks. Some small operators hire in staff from a labour supply agency (which was the case in the Simon Jones incident). Thus there is a wide range of employment practice throughout the industry, and even within individual ports.

  HSE consulted widely on Changing Patterns of Employment in 1996 issuing a discussion document that provoked a thoughtful response. Some respondents suggested that contractorisation resulted in increases in occupational injuries and ill-health, but HSE is unable to verify this from its current data. Work will start on a fundamental review of the health and safety incident reporting regulations later this year and we plan to take this issue into account during that process.

  There is a general trend in all sectors of employment for greater use of contractors and increased complexity in management arrangements, not least through the formation of partnerships and alliances. This makes it difficult to quantify the numbers of workers involved. Legal responsibilities can become blurred in the minds of contracting parties in that many believe—erroneously—that a contract for civil purposes discharges their criminal duties.

  The Management of Health and Safety at Work Regulations (MHSWR) 1999 ensure that the health and safety of temporary workers is adequately protected by regulation. The regulations impose duties on both employment undertakings (such as employment agencies) and host employers to provide information about qualifications or skills needed to carry out the work safely and to advise of specific features of the work which might affect health and safety. Both the employment undertaking and the host employer must inform the worker directly. MHSWR also require employers to take account of employees' capabilities as regards health and safety when selecting staff and to provide adequate health and safety training. Where two or more employers share a workplace (whether on a temporary or permanent basis) they are required to co-operate with each other and to co-ordinate their activities to comply with their health and safety duties.

  Recent research carried out for HSE—"Survey of the recruitment agencies industry" (Contract Research Report no 284/2000) confirmed concerns that there is confusion over whether an agency worker is an employee of the agency for health and safety purposes, and who has, or is perceived to have, that responsibility for agency staff—the recruitment agency or the person/company employing staff through the agency. (Employee status is determined by the courts according to the facts of each individual case. The fact that an agency pays a worker's tax and national insurance contributions is not conclusive evidence, on its own, that the worker is an employee of the agency.) The survey found that most agencies use a contract whereby agency workers are employed by the agency. This suggests that where health and safety legislation place duties on the "employer", the agency is responsible for these duties. However, the research confirmed that in the vast majority of cases the host employer is perceived as being responsible for an agency worker's health and safety. Many employment agencies are unaware of their responsibilities and some do not take steps to ensure that measures are in place to protect the temporary workers while they are in the host employer's premises.

  Discussions within HSE on the outcome of the research, and how best to tackle the issues arising, considered a number of options and concluded that not only would it be very difficult to change primary legislation so that all the issues relevant to agency workers would be addressed, but that changing the current law had the potential to result in a much more restrictive approach to the definition of "employment" by the courts. We will therefore be taking this issue forward by preparing guidance for the recruitment industry, and amending secondary legislation as appropriate to ensure that account is taken of atypical employment practices.

  As indicated in paragraph 4.1.24 of Modern Ports the Department of Trade and Industry is introducing new regulations to ensure that, before a worker is supplied, the agency/employment business obtains sufficient information from the hirer to select someone suitable for the position in question. This information includes confirming details of any risks to health or safety known to the hirer and steps the hirer has taken to prevent or control such risks; details of the experience, training, qualifications and any authorisation which the hirer considers are necessary (or are required by law or by any professional body), for the worker to possess in order to work in that position; and the ability which the hirer considers is necessary for the worker to possess in order to work in that position. The result should be that the eventual placement will not be detrimental to the interests of the worker or the hirer.

  The Health and Safety Commission (HSC) and Executive has published guidance on the management of contractors in industry. In 1998 we published Managing Risk—Adding Value, a study of how big firms manage contractual relations to reduce risk. Although none of the 23 firms studied were dock companies the approaches described are relevant to all large organisations. At the same time HSE published Working Together which complemented the study and provides guidance on health and safety for contractors and suppliers. It contains basic information for contractors about their responsibilities, what they need to do, where to get more information and what clients are most likely to ask about when assessing contractors' health and safety capability.

  The Committee will be aware from our earlier submissions that work is also in hand to address the Government and HSC's Revitalising Health and Safety Strategy in the docks industry which will consider whether the management principles contained in the Construction, Design and Management Regulations could be encouraged in other areas.

  Throughout the docks industry, HSE has been instrumental in encouraging the use of the "passport scheme" to identify those casual or "non-permanent" workers who have received health and safety training, thus reducing the likelihood of inexperienced or untrained casual staff being engaged in activities to which they are not suitable. One dock company has extended the scheme so that workers carry cards showing their photographs, and listing their skills and competencies. HSE would like to encourage the extension of this more comprehensive scheme throughout the industry, and apply it to all workers in ports, regardless of employment status.

  HSE is also in the process of developing guidance on health and safety management in docks. This will include advice on duties towards temporary workers, control of contractors, and co-operation and co-ordination between different companies operating at docks.

  Last year (2000-01) HSE's inspectors carried out a programme of extra visits to docks, over and above their routine inspections, investigations and other work. The objective was to examine health and safety management arrangements. Inspectors have been assessing how well dock companies and cargo handlers manage the health and safety aspects of their operations, particularly where contractors are involved. At every visit under this programme inspectors have checked whether there was adequate training for both permanent employees and temporary workers. They have been encouraging the industry safety passport scheme as a key component of ensuring temporary workers are adequately trained.

  Extra visits to examine the above issues will continue this year. In addition Inspectors will be looking closely at workplace transport issues and cargo handling operations, especially in relation to timber, steel and mixed general cargo (lift-on lift-off).

  At all visits inspectors do not just consider the duties of each employer to their own employees under Section 2 of the Health and Safety at Work Act. They also consider employers' responsibilities under sections 3 and 4 of the Act, for the effect their business may be having on the health and safety of others, be they users of their premises and facilities, their sub-contractors, their customers or members of the public. In addition, inspectors take into account the requirement on all employers/contractors to co-operate with each other to discharge their duties under MHSWR.

  On the policy side, as part of the package of measures being developed to continue the impetus of "Modern Ports" and the "Safer Ports" Conference, HSE will review the Approved Code of Practice Safety in Docks to reflect changes in legislation and technical developments since they were issued, and consider whether a more fundamental revision is needed to the Docks Regulations themselves. These reviews will give HSE an opportunity to consider how best to address changes in the employment structure within the industry.

  The Committee will recall that during our evidence we indicated that there had been one fatal accident this calendar year. There have now been four. All are under active investigation and appropriate enforcement action has either been taken or is under consideration.

  I hope this is helpful.

Graeme Henderson

Head of Marine Policy

11 May 2001

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