International Comparison of Health and Safety ...

1 International Comparison of Health and Safety responsibilities of Company Directors Written by: David Bergman, Dr Courtney Davis and Bethan Rigby Centre for Corporate Accountability with the assistance of Desir e Abrahams and Rajat Khosra International Comparison of Health and Safety responsibilities of Company Directors Written by: David Bergman, Dr Courtney Davis and Bethan Rigby Centre for Corporate Accountability with the assistance of Desir e Abrahams and Rajat Khosra This is an initial report written in this form for two conferences organised by the HSE.

2 Some details of the law still remain to be fully confirmed, and the final report to be published towards the end of the year - will contain more information about enforcement issues, and the views of regulators on the adequacy of their legislative framework. It will also contain more information on those jurisdictions where there are no direct or indirect duties upon individual directors and senior managers, which are dealt with in this paper in a brief manner. This report and the work it describes were funded by the Health and Safety Executive. Its contents, including any opinions and/or conclusions expressed, are those of the authors(s) alone and do not necessarily reflect HSE policy.

3 2 CONTENTS CHAPTER 1.

4 INTRODUCTION 4 -Background -Legal position in Britain -Direct and indirect duties -Proposals for reform -Comparing Britain to other countries -Non-executive/executive directors and senior managers -Structure of report CHAPTER 2: Safety OBLIGATIONS PLACED DIRECTLYON COMPANY 12 DIRECTORS OR SENIOR MANAGERS -Germany -France -Italy -Sweden -Canadian States: Ontario, British Columbia, North West Territories -Canadian Criminal Code -Australian State: Queensland -Japan CHAPTER 3: DUTIES PLACED UPON DIRECTORS THROUGH 61 THE CREATION OF PARTICULAR OFFENCES -Australian States: Victoria, Tasmania, New South Wales CHAPTER 5.

5 NO DUTIES ON DIRECTORS OR SENIOR MANAGERS 70 -Netherlands -USA 3 Chapter One INTRODUCTION This report looks at whether the law in nine different countries imposes Health and Safety duties upon boardroom directors (and other senior managers), and if so, what these duties are and whether they assist in the prosecution of The Health and Safety Executive s interest in how other jurisdictions deal with the question of directors legal obligations stems from the Government s request to the Health and Safety Commission for advice by the end of 2005 on whether the law in Britain needs to be This request was made in response to the recommendation of the Select Committee on Work and Pensions, that.

6 The Government reconsiders its decision not to legislate on directors duties and brings forward proposals for pre-legislative scrutiny in the next session of Parliament. 3 In this response to the select committee, the Government stated that: The Government believes that there is already an appropriate balance of legislative and voluntary responsibilities on directors for occupational Health and Safety , and has no immediate plans to legislate as recommended. It, along with HSC, will continue to encourage and persuade directors in organisations across all sectors to take their responsibilities seriously and to provide leadership on occupational Health and Safety .

7 The Government has asked HSC to undertake further evaluation to assess the effectiveness and progress of the current measures in place, legislative and voluntary, and to report its findings and recommendations by December 2005. 4 This research report is part of the overall research that the HSE has commissioned on the issue. BACKGROUND Although the lack of prosecutions against company directors has been a long-standing concern of many organisations, the first time a clear demand for a change in the law concerning directors Safety obligations was in a speech in Parliament in 1996 given by the then opposition Environment Spokesperson, Michael Meacher MP.

8 He stated: I emphasise that responsibility for Health and Safety must be vested at the highest level of each organisation .. companies should appoint an individual at board level with overall responsibility for Health and Safety . 5 In 2000, a Government consultation, Revitalising Health and Safety , took place6. 1 This report does not look at the situation of partnerships. 2 Response of Government to Select Committee Report. 3 para 60 4 5 Hansard 26 March 1996, column 898. He was speaking in the context of corporate manslaughter. 4 In its response to the consultation process, the Government published a strategy statement which, in response to a number of stakeholder responses, contained Action point 11 which stated.

9 Health and Safety Commission will develop a code of practice on Directors' responsibilities for Health and Safety , in conjunction with stakeholders. It is intended that the code of practice will, in particular, stipulate that organisations should appoint an individual Director for Health and Safety , or responsible person of similar status (for example in organisations where there is no board of Directors). The Health and Safety Commission will also advise Ministers on how the law would need to be changed to make these responsibilities statutory so that Directors and responsible persons of similar status are clear about what is expected of them in their management of Health and Safety .

10 It is the intention of Ministers, when Parliamentary time allows, to introduce legislation on these responsibilities ." (Emphasis added) Subsequent to this publication, the HSC focused on the first part of this commitment by publishing a leaflet on voluntary guidance for directors and to then undertake research to consider its effectiveness. This research formed the basis for the HSC agreeing in October 2003 to advise ministers that a change in the law was not required8. In 2005, Select Committee on Work and Pensions recommended that the law should be changed and it is this recommendation that has resulted in the current research process.