Placing Regulation And Law In Context: The Direct Impact Of Economic Conditions

 

Important as law, regulation, and enforcement are to OHS standards, it is important to recognize that economic conditions also have a significant impact on safety. We noted above that small businesses were at most risk from prosecution under industrial manslaughter provisions in the UK. But small businesses in some sectors can have lower safety standards because of their weak position in the market place, both as discrete entities and as part of a contracting chain (Haines 1997). They have neither the financial nor human resources to invest in safety to the same degree as their large business counterparts. As a result, the safety afforded to employees of small businesses can suffer. This finding on small business also needs to be extended to include the contracting relationships prevalent in some industries (e.g., construction) and increasing in others due to increasing levels of contract labor and the decision by some companies to contract out non-core parts of their business operations, such as cleaning or maintenance (James et al. 2007). This can create problems for safety. Firstly, these businesses may be small and so less able to ensure the safety of their employees. Secondly, the degree to which they can focus on safety may be dependent upon the contract price they are able to obtain; when stiff competition drives this price down, levels of safety can decline. Because of this, certain jurisdictions have enacted what is known as “chain of responsibility” legislation, making principal contractors responsible for the safety of subcontractors’ employees. This is a good example of law that is sensitive to economic conditions. But not all jurisdictions have these laws, or implement them effectively, and where they are absent, real problems in safety levels can arise (James et al. 2007).

Finally, there has recently been an increased attention paid to workplace stress and its impact on ill health. For some, categorizing workplace stress as a health and safety issue is a step too far, but stress has been associated with significantly decreased life expectancy (La Montagne et al. 2007). In particular, work which is time pressured, but where individuals have little control over the pattern of their work, is particularly hazardous. Also, being at the bottom of the hierarchy in terms of power over the conditions of work within a workplace has been shown to have detrimental health effects, a key finding of the prominent Whitehall studies (see, e.g., Marmot and Smith 1991). The implication of this research is that a narrow intervention of the kind often associated with health and safety initiatives is unlikely to be effective. Rather, what is needed is a wholesale reorganization of work itself. Achieving such change seems at a considerable distance from the debates around the proper boundaries of the criminal law. But they share a similar feature in that reorganizing work in a manner consistent with the promotion of health, as with determining what is and is not criminal behavior, is politically fraught and likely to engender strong opposition from those who benefit from current ways of working.
Globalization, Criminalization, And Workplace Safety
Much current OHS research focuses on deaths, illnesses, and injuries that take place in the industrialized world, but (as stated at the outset of this research paper) these are global problems. There are many high-profile examples of industrial disasters in industrializing countries, like Bhopal, mentioned at the beginning of this research paper. Another example is provided by the Kader toy factory fire that occurred in Bangkok, Thailand, in 1993 (Haines 2005), which resulted in 183 deaths. Many lethal factory fires share similar features, including poor building design, oppressive working conditions, and substandard fire safety procedures. The role the criminal law can play in the aftermath of these disasters is also noteworthy and problematic, particularly in terms of who those laws seek to target. In the case of the Kader fire, it was a worker that was jailed for 10 years for causing the fire because he failed to extinguish the butt of his cigarette. His contribution was minor and pales into insignificance in light of inadequate building and fire safety standards at the Kader factory. Criminalization, in an international context, can act to scapegoat individuals at the expense of dealing with systemic problems. The international diffusion of corporate criminal liability has been driven in no small part by the prompting of international organizations like the OECD. This has the potential to “drive up” the value and effectiveness of regulatory processes in developing nations, but their implementation in very different jurisdictions can lead to problematic outcomes.

The globalization of trade also has an appreciable impact on OHS. There are ever increasing numbers of global supply chains where the most risky jobs are located in rapidly industrializing contexts (James et al. 2007). China provides a salutary lesson in this regard; in the scramble for traction in the new world economy, the maximization of economic growth has taken precedence over the enforcement of effective safety regulations. Chinese industry seeks to undercut production costs (and hence safety standards) elsewhere in the world and, in doing so, sets the floor for workplace conditions in competing developing nations. Governments of the Global South thus prioritize the need to attracting inward investment to spur economic growth over demands for improvement in safety levels. The challenge of OHS from a global perspective contains similar complexities to those reflected in the discussion earlier in this research paper, in that harm is embedded within the benefits of international trade, including employment and income for individuals, extended families, and local communities. But this should not excuse the behavior of multinational corporations which scour the globe in order to find where production is cheapest and safety and environmental standards low. The strength and weaknesses of various industrializing states under global competition needs careful analysis, however. It should not be assumed that states such as Thailand, China, or India have no room to develop an effective OHS regime; indeed, local responses that are sensitive to local conditions can be more effective than those simply transplanted from the Global North (Haines 2005). Hence, a failure, or success, in improving safety needs to be evaluated in light of local political contests in addition to the impact of global economic conditions.
Conclusion
This research paper has argued that the connections between processes of criminalization and occupational health and safety need to be understood within the historical context of the recurrent struggles that have always accompanied law reform in this area. The ambiguous legal standing of OHS law is a result of the struggles in defining what is seen as acceptable within the workplace environment, as well as perceptions of the law’s capacity to effectively secure acceptable behavior on the part of the regulated. But at the same time, regulation here is about the value of human life and the capacity for one person to place another at risk.

It is about the pursuit of a fair and just system of economic citizenship, and there are important debates about how best to advance these values and the role that the notionally “moral” criminal law should play in this process. Is it more important to try and reinforce the normative value of health and safety regulation via the communicative power of the criminal law or to avoid doing so because of the disruptive, individualizing, and distracting impact that such action can have? The contest around criminalization should not simply be one around the need for industrial manslaughter but to understand the history of OHS law in different contexts and the nature of criminal law within the workplace itself.

The struggles and contests also reflect broader economic, political, and social change. Just as prescription can be seen as a result of various contests, so too the Robens model’s emphasis on the consensus of interests needs to be understood within the context of the welfare state in Britain in the 1970s. It is not surprising that this expansive view has been challenged by the rise of neoliberalism and the regulatory state. But this is not simply a return to the past. Hence, the importance and effectiveness of health and safety representatives and committees depends critically upon local context. In one area, it can represent a very real opportunity for representation of those whose lives are most at risk. Yet, in another, it can signal the return of an emphasis on individual responsibility and victim blaming. These struggles and contests are reflected in attempts to introduce new criminal offenses and penalties to sanction egregious failing by employers for their negligence. The push to criminalize is met with resistance, which in turn is met on occasions with capitulation but also with creativity.

It is in this political milieu that multiple techniques have been adopted to try and raise standards. These need careful scrutiny. In particular, the same initiative can work quite differently depending on economic and political context – including whether strong unions that priorities safety are, or are not, present. The constantly changing nature of production and consumption, too, places significant challenges in the path of improving standards. There is now much greater complexity to relations between businesses and a real need for OHS to be included in relations between businesses, not just within the confines of one firm. Finally, economic globalization and the presence of supply chains for particular goods and services spanning the globe make law reform and adequate enforcement of standards difficult. It is a context, however, in which a criminological analysis that is cognizant of the economic and political dimensions of the problem has much to offer.