by Andrea Potz and Ulrich Runggaldier
1. Definition, purpose and objective
The term ‘employment protection’ generally means all measures and activities aimed at protecting the life, health and integrity of individuals in their work environment. Legally, employment protection is qualified as a part of labour law. The legal system of employment protection embodies provisions of private law and public law. Public law rules are mainly characterized by binding obligations of the employer in favour of the workers that are normally supervised by bodies of public authorities. Employment protection provisions in private law focus on the responsibility of the employers with regard to risk prevention and risk assessment as an expression of their fiduciary duty.
The (national) legal field of employment protection is traditionally divided into two parts—technical and social. Technical employment protection (Occupational Health and Safety, OHS) concerns a broad spectrum of issues that differ in their intensity of regulation. Technical employment protection in the narrower sense covers all provisions that have an impact on what is going on in the undertaking or establishment. Examples are measures and precautions that have to be taken by employers and employees at work (use of work equipment and machines, exposure to hazardous agents, etc); the organization of work places (eg work with display screens); medical and technical preventive and control measures (eg occupational health physicians); and, finally, employers’ and employees’ rights and obligations concerning instructions and information about employment protection. Provisions on the production and marketing of products and agents also lead to an indirect technical employment protection (eg signs and packaging). On the other hand, working time law (working time) and provisions for specific groups of workers who are regarded as being particularly in need of protection are counted among the social employment protections. Examples for such specific groups of workers are pregnant women, mothers, children and young people, as well as employees with disabilities.
The prime objective of employment protection is the protection of the health and safety of workers and third parties, which is why the evaluation and the assessment of risks play an important role in employment protection law. As a result of this preventive effect, employment protection has an indirect impact on the results of occupational accidents and illnesses. Apart from the personal involvement of workers, the financial burden of workers as well as the national system of social security should be mentioned. Furthermore, employment protection safeguards the preservation of cultural traditions as well as the religious beliefs of workers and the organization of the work environment. Finally, the harmonization of employment protection in the European Union is intended to prevent damaging competition between the Member States as a result of the differences in the national legal systems which can lead to conflicts to the detriment of workers.
2. Tendencies in the legal development
Employment protection is the oldest part of modern labour law. The development of modern employment protection law started in the 19th century and was influenced by growing industrialization and the combined risks to the lives and health of workers. The first legal steps in the field of occupational health and safety were taken in public law and concerned matters such as the limitation of working time, restrictions on child labour and women’s employment—measures which were completed by implementing national systems of social security in the second half of the 19th century.
At the same time, employment protection only played a secondary role in the founding treaties of the EU. Despite the fact that the Union regarded employment protection as one of its tasks, the Member States were not able to come to an agreement about transferring power to the Union in this legal field. The protection of health as well as the prevention of accidents at work and occupational illnesses were mentioned in former Art 118 EC, but the Commission’s activity was limited to investigations, opinions and the preparation of consultations concerning this legal field. The problem of missing legislative competence (legislative competence of the EU) was compensated by former Art 100 EC (Art 115 TFEU/94 EC), which lays down the competence for legal approximations with a view to the establishment of the Common Market. This Article was basis for a number of directives, mostly concerning hazardous and noxious substances. Initially, the technological field as well as employment protection at the company level were neglected but came into focus with the introduction of former Art 100 EC (Art 115 TFEU/94 EC) by the Single European Act (SEA).
The SEA also introduced Art 118a (Art 153 TFEU/137 EC), which is now the normative foundation for EU acts concerning employment protection. The main objective was improving the working environment to guarantee a better level of protection of the safety and health of workers. The Scandinavian concept of working environment acts, which is also reflected in the ILO-Convention 155 about Occupational Safety and Health, was taken as the model for the EU rules. This was also the keystone for the establishment of a Social Union. Former Art 118a EC (Art 153 TEU/137 EC) was legal basis for a bundle of directives. The first extensive directive in the field of occupational health and safety was the Framework Directive (Dir 89/391) on the introduction of measures to encourage improvements in the safety and health of workers at work, which is the legal foundation for a number of individual directives.
In 1991, the Social Policy Agreement (SPA), which laid down social-political objectives in line with the Community Charter of the Fundamental Social Rights of Workers 1989, was signed by all Member States except the United Kingdom. This agreement was annexed to the Social Policy Protocol, the mechanism by which the United Kingdom allowed the other Member States to advance on the Social Policy front without taking part itself. After its ratification by the United Kingdom, the SPA was then incorporated into the Social Chapter of the EC Treaty through the Treaty of Amsterdam of 1997. The basis for legal Union acts is now Arts 151 ff TFEU/136 ff EC, which entitles the Council to propose drafts for the improvement of the working environment to protect workers’ health and safety. Finally the Charter of Fundamental Rights of 2000 has to be mentioned as it contains a number of workers’ rights as well.
The successive establishment of administrative structures played an important role in the development of employment protection. In 1957 the Safety and Health Commission for the Mining and Other Extractive Industries was first set up, whose oversight was extended to all extractive industries. The next step was the establishment of the Advisory Committee on Safety, Hygiene and Health Protection at Work, which played an important part in regard to the release of directives. At the same time, the Commission gave relevant impetus through its action programmes. The Commission is now supported by the Advisory Committee on Safety and Health at Work. The Committee cooperates with the other Committees involved in safety and health at work, including, inter alia, the Senior Labour Inspectors Committee and the Scientific Committee for Occupational Exposure Limits to Chemical Agents.
In 1994, the European Agency for Safety and Health at Work was established with headquarters in Bilbao. The Agency’s role is to collect, analyse and spread information on health and safety at work. These activities are intended to promote the protection of health at work and to support the safe and productive organization of work places. Furthermore, the European Foundation for the Improvement of Living and Working was set up in Dublin. The main task of the Foundation is to provide information, advice and expertise on living and working conditions, industrial relations and managing change in Europe for key actors in the field of EU social policy on the basis of comparative information, research and analysis.
Health and safety at work is now one of the most important and most highly developed aspects of EU policy on employment and social affairs and thus has a great impact on national labour law because of the large body of Union laws. The Union policy has followed a strategic path and since 1987 has been continuously extended. The strategy is basically characterized by a system of general principles regarding employment protection laid down in a framework directive and a bundle of individual directives containing minimum requirements for special hazards. These individual directives are complemented by directives concerning social employment protection.
One of the main challenges for the legislature is heeding not only the social and demographic changes but technological ones as well. These changes and the related need of adoption and development are the reasons why employment protection is a rather dynamic legal field. The dynamic aspect is also reflected in the jurisprudence of the European Court of Justice (ECJ), which plays a major role concerning the control of the implementation of directives in the Member States. Moreover, the ECJ sets important impulses for the legal development in cases of preliminary ruling, eg working time law.
3. Strategies in Union law
In Union law, different strategies can be identified in the field of employment protection. As far as the content is concerned two regulation methods can be seen: on the one hand the Union law contains provisions on technical aspects of occupational health and safety, on the other hand the Union law provides rules on the protection of the working environment of workers. This difference is important in regard to the legal basis found in the TFEU, which leads to different types of directives.
Most of the legal provisions concerning employment protection are laid down in directives (directive). Additionally, other binding and non-binding Union acts exist (eg regulations and communications from the Commission).
The Framework Directive, which is basis for another 19 individual directives, is of fundamental importance for occupational health and safety. This Directive contains general principles concerning the prevention of occupational risks, the protection of safety and health, the elimination of risk and accident factors, the informing, consultation, balanced participation in accordance with national laws and/or practices and training of workers and their representatives, as well as general guidelines for the implementation of these principles (Art 1(2)).
The Directive encourages and guarantees the harmonization and the full effectiveness of minimum requirements in the Member States’ legislative systems covering safety and health at the work place. Besides measures concerning occupational accidents and diseases, the Directive also provides—within the meaning of modern occupational health and safety—rules with regard to the social organization of the working environment. Therefore the Directive’s scope of application is defined rather widely: according to Art 2, the Directive shall apply to all sectors of activity, both public and private. Certain specific public service activities such as the armed forces or the police or certain specific activities in civil protection are excluded from the scope of application when characteristics peculiar to these activities inevitably conflict with the Directive. The Directive covers all kinds of occupational risks without prejudice to existing or future national and EU provisions that are more favourable to the protection of the safety and health of workers at work.
The Framework Directive contains a definition of worker which has to be interpreted autonomously according to the ECJ. Worker means any person employed by an employer, including trainees and apprentices but excluding domestic servants. Employer on the other hand means any natural or legal person who has an employment relationship with the worker and has the responsibility for the undertaking and/or establishment.
The Directive focuses on the prevention of occupational risks and risk assessment at the level of the work establishment. Therefore the Directive lays down obligations primarily addressing the employer (Art 5). The responsibility of the employer is shown by the obligation to make provision for the necessary organization and means and is complemented by the provisions concerning the adoption of a preventive system in the undertaking or establishment. According to this framework, workers and their representatives are also involved in employment protection. Workers and/or their representatives have to receive all the necessary information concerning safety and health risks and possible measures.
Article 6 requires the employer to adjust measures to take account of changing circumstances and to aim towards improving existing situations so that the technical and social development of employment protection is guaranteed. The employer is also obliged to evaluate risks for the safety and health of workers, which must also be documented.
The individual directives that have been adopted within the meaning of the Framework Directive complement and reinforce the Framework Directive. The individual directives are characterized by the setting of minimum requirements and by the principle that an existing, more favourable level of legal protection in the Member States cannot be reduced on the occasion of a new Union act. The individual directives can be classified under the following criteria: workplace (eg building site and agriculture); work equipment (eg use, signs and loads) and agents (eg chemical, physical and biological agents); specific risks (eg work with display screens); and finally specific groups of workers (eg pregnant women).
In the field of social employment protection, different tendencies are identifiable. On the one hand directives have been released which provide specific protection for certain groups of workers. Directive 92/85 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding, which contains provisions concerning not only occupational health and safety but also rules on contract law (protection against dismissal), belongs to this group as does Directive 94/33 on the protection of young people at work, which is applicable to any person under 18 years of age having an employment contract or an employment relationship defined by the law in force in a Member State and/or governed by the law in force in a Member State. The Work Time Directive (Dir 2003/88) (working time) on the other hand is applicable to all workers and lays down binding minimum requirements concerning working time and annual leave.
Finally, Dir 91/383 supplementing the measures to encourage improvements in the safety and health at work of workers with a fixed-duration employment relationship or a temporary employment relationship and Dir 95/46 on the protection of individuals with regard to the processing of personal data and on the free movement of such data are counted in the field of social protection.
The substantive provisions on employment protection are complemented by a complex system of legal enforcement. At the Union level, the ECJ plays an important role for the control of the implementation of directives in the Member States. At the national level, the system of legal enforcement differs according to the violation of civil or public law rules. Employees may initiate claims in case of the infringement of employment protection obligations as regards the employer or another worker. Additionally, the Member States have to establish a public control system enforced by public authorities. Up to a certain degree, the social security institutions (especially with respect to accident insurance) and the professional associations also have specific control rights.
4. Harmonization projects
The anticipated development of employment protection in the coming years can be characterized as follows: extending, modernizing, consolidating and simplifying the legislative framework. The Union strategy 2007–12 still refers to the continuous permanent and homogeneous reduction of occupational accidents and illnesses as the main objective. On a long-term basis, a promotion of work quality and a progressive increase of the productivity are to be sought. At the Union level, the Commission will continue the work of codifying the ‘health and safety’ directives, examining the possibilities of simplifying the legislation in order to reduce unnecessary administrative charges and promoting a coherent policy. At the national level this aim is to be reached by the improvement of preventive effectiveness of health surveillance and by actions promoting the rehabilitation and integration of workers. In the Union, but also in the Member States, these strategies are to be defined on the basis of a detailed evaluation with the active participation and consultation of all interested parties including the social partners.
Rolf Wank and Udo Börgmann, Deutsches und europäisches Arbeitsschutzrecht (1992); Brian Bercusson, European Labour Law (1996); Udo Börgmann, EAS B 6200, Einzelrichtlinien zur Arbeitnehmerschutzrichtlinie (36th suppl, April 1998); Rolf Wank, EAS B 6000, Technischer Arbeitsschutz in der EU im Überblick (36th suppl, April 1998); Wolfgang Balze, EAS B 5000, Überblick zum sozialen Arbeitsschutz in der EU (38th suppl, August 1998); Wolfhard Kohte, EAS B 6100, Arbeitsschutzrahmenrichtlinie (38th suppl, August 1998); Peter Hanau, Heinz-Dietrich Steinmeyer and Rolf Wank, Handbuch des europäischen Arbeits- und Sozialrechts (2002); Maximilian Fuchs and Franz Marhold, Europäisches Arbeitsrecht (2006); Walter Nöstlinger (ed), Handbuch Arbeitnehmerschutz (2006); Roger Blanpain, European Labour Law (11th edn, 2008).