The International Labour Organization (ILO) has outlined the accepted good governance principles that should underpin sanctioning procedures for occupational safety and health (OSH) violations around the world.
Aimed at policymakers and lawmakers, the detailed brief also includes five country case studies (Finland, France, Spain, Great Britain and the US), which readers can refer to if they are drafting or reviewing their own procedural rules and are looking for inspiration.
The ILO’s intended aim is that the brief will help countries produce sanctioning procedures that are effective and fair.
Developed under the umbrella of the ILO’s flagship programme, 'Safety + Health for All', the document supports the programme’s objectives by providing practical measures for member states to consider.
These objectives include increasing the impact of the technical assistance that the ILO provides, particularly in low-income and lower-middle-income countries, to improve OSH performance.
Under ‘Safety + Health for All’, special efforts are being made to strengthen the enforcement of OSH laws, notably through robust workplace inspection and effective sanctioning processes.
The ILO recognises that many countries have regulatory gaps and face challenges in relation to how they apply sanctions effectively and fairly.
'To be effective, sanctions must not only be adequate in terms of amount and visibility, they must also be effectively enforced'
These include having insufficient or poorly developed procedural rules that do not adhere to key legal principles.
In other cases, countries may apply opaque rules, drafted in overcomplicated and unclear language, which can create confusion and misunderstanding for parties involved in the sanctioning process.
The ILO also recognises that many countries rely on multiple, scattered, overlapping and contradicting legal provisions to govern sanctioning procedures and these can be difficult to locate, interpret and understand.
Published earlier this month, Key principles underlying sanctioning procedures applicable to occupational safety and health violations seeks to resolve these issues by capturing the most commonly accepted good governance principles, so that policymakers and lawmakers can draft more effective and fair sanctions.
Produced by the ILO’s LABADMIN/OSH Branch, the brief provides guidance on essential legislative drafting techniques that policymakers and lawmakers can refer to improve their own procedural rules.
As the overview in the section on key procedural principles notes, it is up to each member state to determine its own rules. However, as the ILO adds, although legislation can vary significantly from one country to another, there are a number of commonly accepted good governance principles that can be applied to strengthen the enforcement system. The section outlines an extensive list of these key principles.
The brief’s third section covers sanctions and sanctioning procedures in international labour standards. In this section, the ILO notes that, in the case of many of these standards, there is a requirement for member states to establish an enforcement system that features adequate penalties, adding that to be effective, they should be sufficiently dissuasive.
'In many cases national rules and practices governing sanctions are unclear and do not give sufficient or clear guidance to inspectors on ensuring compliance with the law'
The briefing adds that the Committee of Experts on the Application of Conventions and Recommendations (CEACR) has repeatedly emphasised that, for regulatory systems to be credible and effective, penalties must be sufficiently dissuasive, noting that they must be defined in the national legislation and be in proportion to the nature and gravity of the offence.
However, although most countries have legislation that provides for penalties, including fines and terms of imprisonment, the CEACR says practice shows these are often not sufficiently dissuasive and therefore are neither adequate nor effective.
The CEACR has also indicated that penalties should not only be prescribed to punish violations relating to work conditions and the protection of workers but must also be effectively enforced.
‘The available information suggests, however, that they are only rarely imposed and that an effective enforcement procedure is generally conducted only if the violation resulted in serious harm to health or safety,’ the brief notes.
The ILO’s decision to include five country case studies – Finland, France, Spain, Great Britain and the United States – was taken to provide inspiration to countries looking to draft or review their own procedural rules. The main criteria for the country selection was to offer a diversity of legal traditions and approaches, the ILO adds.
‘Sanctions are only one of the means of action available to labour inspectors to enforce compliance with OSH regulations,’ said Joaquim Pintado Nunes, chief of the ILO LABADMIN/OSH Branch.
‘To be effective, sanctions must not only be adequate in terms of amount and visibility, they must also be effectively enforced by appropriate bodies and procedures, while ensuring due process of law and preventing abuse. However, in many cases national rules and practices governing sanctions are unclear and do not give sufficient or clear guidance to inspectors on ensuring compliance with the law.
‘The ILO has produced this brief to provide policymakers and lawmakers with an overview of the main guiding principles that should underpin sanctioning procedures applicable to occupational safety and health violations to ensure that they are effective and fair.’
The ‘Safety + Health for All’ programme is designed to help countries implement proactive systems-based approaches to OSH. Its specific interventions include guidance and tools to support countries in drafting laws and regulations that effectively address OSH; implementing strategic intervention models for OSH compliance in the workplace; and planning for improved occupational health services.