Workplace minimum requirements and EU OSH legislation

Introduction

The European Union sets legislation in the form of Directives, based on the legal foundation established in Article 153 of the Treaty on the Functioning of the European Union. EU legislature has established a system of basic principles of safety management, which must be transposed into national law by the Member States. Thus the principles are applicable in all establishments in the European Union.

General basic requirements for safety and health at workplaces are laid down in Directive 1989/654/EEC concerning the minimum safety and health requirements for the workplace (in the following referred to as WPD). The aim of this Directive is to introduce minimum measures designed to improve the working environment, in order to guarantee a better standard of safety and health protection. Dir 1989/654/EEC is the first individual Directive within the meaning of Article 16 (1) of the Framework Directive (1989/391/EEC), which establishes general principles for managing safety and health. Further provisions are established in specific Directives for workplaces in sectors of elevated risk.

Workplace minimum requirements and EU OSH legislation

The system of EU OSH legislation

The European Union enacts Directives in the field of occupational safety and health (OSH) based on the legal foundation of Article 153 of the treaty on the functioning of the European Union (TFEU).^[1] The European Directives are transposed into national law by the legislatures in each Member State. The European Directives on OSH all set minimum standards for protecting workers. Member States may exceed those standards when transposing the Directives, but they may not lower existing ones.

The Framework Directive (1989/391/EEC)^[2] is often referred to as the 'basic law' in OSH in the EU [3]. It establishes common principles which are generally applicable. They are specified further by nineteen individual directives or daughter Directives, based on Article 16 (1) of the Framework Directive. This means that the provisions of the Framework Directive always apply unless other more specific provisions exist (lex specialis) The system of EU OSH legislation. This includes in particular:

• The general responsibility of the employer for preventing ill-health at work;
• The obligation of the employer to take appropriate measures to make work safer and healthier;
• Key elements of the safety processes, in particular the risk assessment and training;
• Inclusion of the workers and their representatives.

EU OSH legislation is built around the terms ‘working environment’ and ‘health’. Both terms are not defined in the EU legislation itself but important for the context and understanding.

The term ‘Working environment’ derives from the Nordic OSH tradition and was introduced in the negotiations on European Social Policy by the Danish delegation. It goes beyond the prevention of work related accidents and sickness and includes the humane design of work processes and work organisation and aspects of health promotion.^[3] The European Court of Justice (ECJ) acknowledged this broad interpretation in the judgement C-84/94 of 12 Nov. 1996.^[4]

‘Health’ is also acknowledged by the ECJ in the same decision^[4] in the definition of the World Health Organisation (WHO) as the ‘state of complete physical, mental and social well-being and not merely the absence of disease or infirmity’.^[5]

Minimum workplace requirements: Directive 1989/654/EEC

Directive 1989/654 concerning the minimum safety and health requirements for the workplace (in the following referred to as WPD) is the first individual Directive within the meaning of Art.16 (1).^[6] It establishes basic requirements for safety and health at workplaces in general, aiming at introducing minimum measures in order to improve the working environment and to guarantee a better standard of safety and health protection. As the Framework Directive does, the WPD gives the employer the opportunity to decide on improvement measures that best meet the risk profile of the company instead of merely complying with prescriptions and limit values.

In Article 2, the Directive gives a basic definition for workplaces: A workplace in the meaning of the Directive are ‘workstations housed on the premises of the undertaking and/or establishment, and any other place within the area of the undertaking to which the worker has access in the course of his/her employment.’

The Directive does not apply to all kind of workplaces. A workplace in the meaning of this definition must be temporary and spatially permanent, i.e. in buildings or on the permanent site of the company. In accordance to its Art.1 (2) the Directive does not apply to^[2][1]:

• mobile workplaces in means of transport used outside the premises of the company and workplaces situated inside means of transport (e.g. drivers, machine operators and ticket inspectors);
• temporary workplaces;
• workplaces on mobile work sites;
• workplaces in extractive industries;
• workplaces on fishing boats;
• workplaces in agriculture and forestry which are outside the farm or the forestry undertaking (e.g. on fields, in harvesting and forest inspections).

The workplace shall be in the premises of an ‘undertaking’ or an ‘establishment’. Both terms are not legally defined in the Directive. From other contexts of EU law we know that undertaking ‘shall be any entity carrying out activities of a commercial or economic nature’ [8] and ‘establishment’ as ‘a professional activity on a stable and continuous basis’.^[7]

More important in the context of the Directive is the worker-employer relationship. Both terms are defined in Art.3 of the Framework Directive.^[1] Worker refers to any person employed, including trainees and apprentices, but excluding domestic workers, military and self-employed persons. The Employer is any natural or legal person who has an employment relationship with a worker and has responsibility for the undertaking and/or establishment.

The WPD does not apply to workplaces of the workers which are not in the scope of the Framework Directive.

Minimum workplace requirements: Further Directives

There are special provisions with regard to some of the mentioned excluded workplaces. The general Directive, the WPD, covers most of the workplaces in manufacturing industry and services while further special Directives cover specific workplaces in sectors of elevated risk. More information on these special Directives can be found in chapter 4 and on legislation web portal of the European Agency for Safety and Health at Work (EU-OSHA).

The scope of Dir 1989/654/EEC

Minimum requirements for workplaces: obligations for the employer

In its section 2 (Art. 3-5) and in the annexes the WPD defines employers’ obligations with respect to the workplace minimum requirements. The employer is responsible for the fulfilment of the duties. Annex I of the WPD sets out minimum health safety and conditions that apply for workplaces which have been used for the first time after 31 December 1992 or when these locations were converted after this date. Annex II defines requirements for workplaces which were already in use before 1 January 1993. When existing workplaces are modified the obligations of Annex I apply (Art. 5).

Table 1: Provision / employer’s obligation

Source: established by the author

Some obligations established are precise, e.g. emergency doors must not be locked (Annex I, II paragraph 4.6). But many obligations of the employer must be interpreted in the single case. Employers must judge wisely to ensure that the building which houses the workplace has a solidity and structure appropriate to its use (Annex I, II paragraph 2). In a most general sense, the obligations ‘apply whenever required by the features of the workplace, the activity, the circumstances or a hazard’ (Annex I, II).^[4]

In so far the WPD fits into the system of goal and improvement oriented prevention established by the European legislation. Instead of rigidly following limit values the employer can take improvement measures that meet best the risk profile of the tasks and workplaces in the company, also regarding the minimal requirements.^[8]

The WPD and the means of prevention

The WPD does not establish its own methods or instruments on prevention as the principles of prevention are already set out in the Framework Directive 1989/391/EEC. The core OSH management process starts with the risk assessment, which is introduced by Art.6 (1) and Art.9 (3) of the Framework Directive Dir 1989/391/EEC.^[1] The periodic risk assessment requires and fosters preventive measures and a continuous improvement process within the company. The aim is to get better each time. In order to ensure this, the Directive sets out principles to be observed when carrying out the risk assessment. It is embedded in a continuous improvement circle, which follows the PDCA (Plan-Do-Check-Act) methodology.

The WPD does not give any further provisions on worker training, information, participation or obligations. That means that the general rules apply which are established in the Framework Directive (see also explicitly Art. 7 and 8 of the WPD). Workers have to be trained, informed, involved and must cooperate according to these rules.

Also the hierarchy of prevention measures in the company which is also known as the ‘general principle of prevention’ is fully applicable. Hence, the employer must first consider how to avoid or eliminate risk at source. If this is not possible, technical or organisational means shall be used to limit the risk, before taking individual measures (e.g. providing personal protection equipment or staff training.

Practical relevance

The term ‘minimum requirements’ which is used in the title of the Directive 1989/654/EEC already points at the indispensability of the provisions of the WPD. The WPD covers fields of great importance such as emergency routes and fire fighting. Such provisions are elemental cornerstones for the safety of the workers.

The Directive, as well as the other specific Directives on workplace minimum requirements (chapter 4), require that the workplaces are well designed and constantly maintained so that workers can do their work in the most healthy way possible.Barnard, C., EU Employment Law , 4th Ed., Oxford, 2012, pp. 523 ff. </ref> There is a direct link to the term ‘health’ as a state of well being (chapter 2.1). Current numbers from Germany (2009) show also the relevance of other provisions of the Directive^[9]:

• Some 30% of all registered work accidents in Germany happened due to slips, trips and falls. Staircases and in-house traffic routes were particularly dangerous.
• Around 250,000 workers needed medical treatment after such accidents with an average sickness absence of more than two weeks.
• More than 21% said that they were affected by poor climatic conditions (e.g. cold, heat, wet conditions, and cold air currents).

With regard to the transposition of the workplace directive into Member States, the means of prevention are already established by the Framework Directive, in particular the risk assessment. With the introduction of the risk assessment, the chances for improving OSH in the work place have grown, but also the employer’s responsibility. This means that it provieds the chance for better prevention when the employer grasps the opportunity. Effective prevention requires well informed employers, also with regard to the workplace minimum requirements.^[8]

In practice the provisions of the WPD may be influenced by and have impact on construction and tenant law, especially when the employer rents premises in a building from a third party. The employer is obliged to ensure the conformity of the workplaces with the WPD which can only be guaranteed in cooperation with the building owner. This may include juridical measures against the landlord or the building owner.^[8]

Evaluation of the WPD

An evaluation study on the practical implementation of the WPD took place in 2010 and 2011 and made use of quantitative and qualitative instruments. Interviews were conducted with company representatives and employers in five European countries (Bulgaria, Germany, Poland, Portugal and Finland). Qualitative interviews were again conducted with stakeholders of different levels (national authorities, experts from different levels, and social partners) in all EU Member States and in Norway and Iceland. In terms of the relevance of the WPD the survey concluded the WPD was widely accepted by the policy makers, employers and workers. The majority of the interview partners agreed that the aspects covered by the Directive were important for efficiently reducing accidents and improving health and well-being at work in the EU.^[10]

In this special case it became obvious that in the EU-15 Member States the Directive did not substantially change pre-existing national regulations. In most of the countries the content of the WPD had been covered by pre-existing legislative frameworks already. In some cases the national transposition was used to change existing rules from prescriptive to preventive. In those countries the effect of the new Directive was mainly harmonising existing law with the European neighbours. However in some of the EU-15 Member States the transposition process was difficult. Germany needed 15 years to completely transpose the provisions of the Directive and only succeeded after being sued by the European Commission for not transposing.^[11]

In most of the Member States which accessed the EU in 2004 and 2007 the perception was different because many of them lacked of pre-existing legal prescriptions. In so far the Directive contributed to a harmonisation of the workplace minimum requirements in Europe. In general the Directive demonstrated its effectiveness and the impact was perceived as mostly positive by the majority of the respondents of the stakeholder interviews. The implementation on workplace level did not pose any major problems to the stakeholders in the company.^[10]

In 2012 the Commission issued another evaluation study (call for tender VT/2012/056)^[10], this time including the practical implementation of the existing European safety and health legislation as a whole. This therefore encompassed the WPD and all of the further Directives. According to the synthesis report, the study concluded that the Framework Directives and the 23 other individual Directives (referred to as the EU OSH acquis) clearly provided the reference frame for national OSH legislation and that the significance of the Directives in setting the scene for OSH regulation within the EU was therefore very high.

According to the separate detailed report on the WPD^[1], recommendations included re-examining the definition of a workplace within the Directive to reflect the changing nature of work (and as a result workplaces) within the modern world (e.g. the growth of teleworking). It was also noted that the exclusion of the 'extractive industries' sector from its scope removed a proportion of workers within that sector who nevertheless worked in conventional workplaces. It was therefore recommended that the scope should be reconsidered to remove this anomaly.

Further Directives

As already mentioned does the WPD not apply to all kind of workplaces. Excluded from its provisions are mobile workplaces, temporary workplaces, workplaces on mobile work sites, workplaces in extractive industries, workplaces on fishing boats, workplaces in agriculture and forestry industry. These workplaces which are considered workplaces in sectors of elevated risk are covered by special Directives.

There are common features which also apply on the provisions of the special workplace Directives:

• The provisions laid down in those Directives only apply whenever required by the features of the workplace, the activity, the circumstances or a hazard;
• The methods and instruments of risk prevention are those established in the Framework Directive if not indicated differently.

As the workplaces and the working conditions in this specific industry are considered to ‘expose workers to particularly high levels of risk’ (see for example the preface to the 1992/91/EEC Directive)^[13] the Directives introduce additional safety measures and obligations of the employer.

Workplaces on temporary or mobile construction sites

The minimum workplace requirements for workplaces on construction sites are laid down in Annex IV of Directive 1992/57/EEC on the implementation of minimum safety and health requirements at temporary or mobile construction sites.^[14] The Directive establishes a complex system of safety and responsibility for the work on construction sites; the workplace minimum requirements are only one detail of the provision of the Directive. It introduces the health and safety coordinator shall ensure that all employers and self-employed persons present on site comply with the general principles of OSH.^[15]

This does however not limit the responsibility of the employer for the health and safety of the workers. This includes the rules on workplace minimum requirements. Art. 8 of the Directive clearly says that ‘employers shall ... take measures that are in line with minimum requirements set out in Annex IV’.^[14]

In its preliminary remarks Annex IV includes all kind of ‘hutted accommodation’ in the definition of ‘rooms’ which reflects on the fact that on site containers or other kind of temporary constructions are often used as office or staff room. Annex IV also contains additional provisions typical installations on site like on energy distributions installations.

The Annex sets out provisions for on-site workplaces (Part A) and for on-site indoor and outdoor workstations (part B section I and section II). The division of part B into two sections is not regarded as binding (preliminary remark on Part B). This clause is purely formal and does not affect the duty of the employer to apply the required features of the workplace, the activity, the circumstances or a hazard.

The term ‘workstation’ is not legally defined in the Directive. Most commonly the term refers to ‘an area with equipment for the performance of a specialized task usually by a single individual’.^[16] Section II of Part B also refers to crane and excavator operation (‘lifting, excavating and material handling devices and machinery) as well to other power driven machinery. The duties directly influence the procurement of the equipment, as the equipment must be properly designed and constructed.^[14]

Table 2 Minimum requirements for workplaces

Source: established by the author

Table 3 Minimum requirements for workstations

Source: established by the author

Workplaces in the mineral extracting industry

Workplaces in the extracting industry are covered by two Directives:

• Directive 1992/91/EEC establishes minimum requirements for improving the safety and health protection of workers in the mineral-extracting industries through drilling (11th individual Directive within the meaning of Art. 16 (1) of Dir 1989/391/EEC);^[13]
• Directive 1992/104/EEC establishes rules on minimum requirements for improving the safety and health protection of workers in surface and underground mineral-extracting industries (12th individual Directive within the meaning of Art. 16 (1) of Dir 1989/391/EEC).^[17]

Directive 1992/91/EEC addresses in particular the safety of the workers on drilling platforms and takes account of the lessons learned from the Piper Alpha disaster [13]. In addition it applies to other forms of raw material extraction by drilling, including prospection and preparation work. It provides a definition of workplaces to whose the Directive applies to (Art.2, Definition of drilling industries and workplaces).^[13]

Also Directive 1992/104EEC applies to prospecting and preparation work and includes ancillary also ancillary installations. It gives a definition on non-drilling extractive industries and workplaces covered by the provisions [20].

General obligations of the employer with regard to workplace design and facilities in the premises are defined in the text of the Directives. They reflect on the elevated risk, for example^[13][17]:

• Workplace layout, construction, maintenance, and equipment (Art. 3 (1) a);
• Supervision of workplaces (Art. 3 (1) b);
• Specific health and safety document incl. the risk assessment of the workplaces (Art. 3 (2));
• Rules on fire protection and the prevention of explosive atmospheres (Art. 4)
• Escape and rescue facilities and warning systems (Art. 5 and 6).

Mineral-extracting industries through drilling: Minimum workplace requirements

Minimum safety requirements for workplaces are laid down in the Annex of Directive 1992/91/EEC. In contrast to the WPD there are no special provisions for existing workplaces. Employers were only given a term (‘as soon as possible and at the latest five years’, Art.10 (2)) to adopt existing workplaces to the requirements laid down in the Annex of the Directive.^[13] This transition term does not influence the general obligations of Art.3-9 of the Directive.

Table 4 Common minimum requirements

Source: established by the author

Table 5 Special minimum requirements

Source: established by the author

Mineral-extracting industries (surface and underground): Minimum workplace requirements

Minimum safety requirements for workplaces are laid down in the Annex of Directive 1992/104/EEC. In contrast to the WPD there are no special provisions for existing workplaces. Employers were only a term (‘as soon as possible and at the latest nine years’, Art.10 (2)) to adopt existing workplaces to the requirements laid down in the Annex of the Directive [20]. This transition term does not influence the general obligations of Art.3-9 of the Directive.

Table 6 Common minimum requirements

Source: established by the author

Table 7 Special minimum requirements

Source: established by the author

Workplaces on fishing vessels

The minimum workplace requirements for workplaces on fishing vessels are laid down in Directive 1993/103/EEC concerning the minimum safety and health requirements for work on board fishing vessels. ^[18] The Directive defines ‘fishing vessel’ as any ship that is used commercially for catching or catching and processing fish (Art 1 (1)). The Directive only applies to vessels sailing under the flag of or registered under the plenary jurisdiction of an EU Member State.^[19]

With respect to the minimum requirements the Directive distinguishes between old (existing) and new vessels (Art. 2 (b)). The provisions on workplace minimum requirements for new vessels are laid down in Annex I and must be fulfilled immediately (original transition period until 23 November 1995, Art. 4, 13 (1)). Old vessels were given a seven years term to comply with the provisions of Annex II (Art. 5). Annexes III and IV contain rules on life saving and personal protective equipment and apply to old and new vessels.

In contrast to Annex I the rules for existing fishing vessels do not contain a provision on noise on board. This does however not abolish the duty of the employer to include all relevant hazards at the workplace, including noise, in the risk assessment and to take appropriate measures to prevent noise induced health risks from the staff (for more information on noise prevention see:^[20]).

The Directive introduces the owner and the skipper. The term ‘owner’ is legally defined in Art 2 (f) of the Directive and refers to the person under whose name the vessel is registered. Alternatively it can also be the demise charterer or manager. Both have special responsibilities for health and safety on board, in particular with regard to the minimum workplace requirements, while the employer remains responsible for the risk assessment and general health and safety management on board^[21]:

• The owner must ensure the vessels, the equipment, the fittings and the standard of hygiene are maintained (Art. 7). These rules refer especially to the obligations mentioned in the Annexes.
• The skipper must take precautionary measures necessary to maintain the stability of the vessel in accordance to Annex I (1) and Annex II (1).

Table 8: Special minimum requirements

Source: established by the author

Provisions on workplaces in the agricultural sector and on workplaces in means of transportation

The provisions of the WPD do explicitly not apply to ‘fields, woods and other land forming part of an agricultural or forestry undertaking but situated away from the undertaking's buildings’ neither to mobile workplaces in means of transport used outside the premises of the company and workplaces situated inside means of transport (Art. 1). ^[2] Until today there are no Directives on the minimum requirements for such workplaces. Reasons are seen on the one hand in the fact that many general rules on workplace minimum requirements would not be applicable anyway or that they would collide with other rules e.g. on road safety.^[22]

The employer is however obliged to carry out a risk assessment and to respect the general rules on risk prevention as the Framework Directive is fully applicable. This also includes individual Directives which aim at protecting the workers against specific risks (noise at the workplace, vibration, etc.) or that apply on the equipment used in this tasks (Directives on machinery and work equipment).

In 2012 the European Commission issued a good practice guide on the workplace safety in the agricultural and forestry sector. This publication contains also an overview of the relevant legislation and how the provision should be applied.^[23]

In the transport sector there can be however rules on the workplace lay out on national level, for example on the layout of driver compartments and beds.^[24] The legislation summaries website of the European Commission also covers related fields of legislation like general road safety and safety of passengers.^[25] EU-OSHA provides a thorough overview on additional rules and good practice that apply on safety in transport sector and that are relevant for driver’s safety, e.g. on load safety, manual handling, vibration and noise.^[26]