Psychosocial risks in labour and social security law : a comparative legal overview from Europe, North America, Australia and Japan

395 Pages·2017·4.458 MB·English

by  Lerouge, Loïc

Aligning Perspectives on Health, Safety and Well-Being
Loïc Lerouge Editor
Psychosocial
Risks in Labour
and Social
Security Law
A Comparative Legal Overview from
Europe, North America, Australia and
Japan
Aligning Perspectives on Health, Safety
and Well-Being
Series editors
Stavroula Leka, Institute of Work, Health & Organization, University of
Nottingham, Nottingham, UK
AdityaJain,JubileeCampus,NottinghamUniversityBusinessSchool,Nottingham,
UK
Gerard Zwetsloot, University of Nottingham, TNO Innovation for Life,
Hoofddorp, Noord-Holland, The Netherlands
Raising awareness of the interdisciplinary and complementary relationship of
different research perspectives on health, safety and well-being is the main aim
of the book series Aligning Perspectives on Health, Safety and Well-being.
Combinedresearchapproachesonhealth,safetyandwell-beingarebecomingmore
and more popular in several research disciplines across and between the social,
behavioural and medical sciences. Therefore, Aligning Perspectives on Health,
SafetyandWell-beingstimulates thepublication ofinterdisciplinaryapproachesto
thepromotionofhealth,safetyandwell-being.Recognizinganeedwithinsocieties
andworkplacesformoreintegratedapproachestoproblemsolving,theseriescaters
to the notion that most innovation stems from combining knowledge and research
results from related but so far separated areas. Volumes will be edited by expert
authors and editors and will contain contributions from different disciplines. All
authors, and especially volume editors are encouraged to engage in developing
more robust theoretical models that can be applied in actual practice and lead to
policy development. Editorial Board: Professor Johannes Siegrist, University of
Düsseldorf,GermanyProfessorPeterChen,UniversityofSouthAustraliaProfessor
KatherineLippel,UniversityofOttawa,CanadaProfessorNicholasAshford,MIT,
USA, Dr. Steve Sauter, NIOSH, USA, Dr. Peter Hasle, Aalborg University,
Denmark
More information about this series at http://www.springer.com/series/10757
ï
Lo c Lerouge
Editor
Psychosocial Risks in Labour
and Social Security Law
A Comparative Legal Overview from Europe,
North America, Australia and Japan
123
Editor
LoïcLerouge
COMPTRASEC UMR5114, CNRS
University of Bordeaux
Bordeaux
France
ISSN 2213-0497 ISSN 2213-0470 (electronic)
Aligning Perspectives onHealth, Safety andWell-Being
ISBN978-3-319-63063-2 ISBN978-3-319-63065-6 (eBook)
DOI 10.1007/978-3-319-63065-6
LibraryofCongressControlNumber:2017946028
©SpringerInternationalPublishingAG2017
Title of the original French edition:LES RISQUESPSYCHOSOCIAUX AU TRAVAIL EN DROIT
SOCIAL,DALLOZ,PARISCEDEX,FRANCE,2014
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Foreword
Thepaceofmodernlifehasincreasedconsiderablyascomparedtothesituation20
years ago. Globalization and technological progress have transformed the way we
work across the world. The effects of such changes have been significant in the
health and wellbeing of workers all over the world. Many traditional workplace
riskspersistandtheglobalnumbersofwork-relatedaccidentsanddiseasesarestill
unacceptablyhigh.1Evenifinsomecases,moretraditional hazardsandriskshave
been reduced or eliminated, new technologies have also created new hazards and
risks. Many workers are exposed to risks emerging from changes in work orga-
nization and labour relations, conditions arising from precarious employment and
increased pressures to meet the demands of modern working life; such a context
makes it difficult to achieve a healthy work-lifebalance.
Psychosocial risks have now been acknowledged as global issues, affecting all
countries, professions and workers. It is also accepted that such factors can have a
significant impact on workers’ health, absenteeism and performance. Increased
flexibility and precariousness at work, work intensification, downsizing, subcon-
tracting and out-sourcing, as well as changes in working relations are some of the
factors behind a rise in work-related stress and associated pathologies induced or
aggravated by stress, such as musculoskeletal, cardiovascular and digestive disor-
ders. Recent evidence also shows its contribution to certain forms of cancer.
Furthermore, the world of work is increasingly confronted with related workplace
violence, the abuse of drugs and alcohol, strained family relations, depression,
mental health disorders and even suicide.
In response to a changing world of work, a number of countries have enacted
national legislation and regulations; codes of practice and collective agreements
1Theviewsexpressedhereinarethoseoftheauthoranddonotnecessarilyreflecttheviewsofthe
International Labour Organization. According to ILO estimates, there are 2.35 million occupa-
tional fatalities every year, only350,000 of them are dueto accidents. The remaining 2 million
deathsarecausedbyvarioustypesofwork-relateddiseases,whichcorrespondtoadailyaverage
of more than 5,500 deaths. This is an unacceptable Decent Work deficit. http://www.ilo.org/
safework/events/meetings/WCMS_204594/lang–en/index.htm.
v
vi Foreword
haveincorporatedprovisionstoregulateunacceptablebehaviours,suchasbullying,
mobbing and psychological harassment setting employers’ responsibilities to deal
with these issues. Certain inspectorates have designed procedures to enforce such
regulations.2 Several courts in different countries have recognized psychological
violence (harassment/bullying/mobbing) as an occupational risk.3 National OSH
legislation in the countries covered in this publication and many other countries in
Africa, Asia and Latin America have enacted anti-bullying/harassment laws. The
recent crisis and recession in Europe have raised awareness on cases of
work-related suicide. Recent jurisprudence in France and in other countries
acknowledgethework-relatedoriginofsuicideopeninganimportantentrypointin
the recognition of this extreme call for help related to changes in the workplace.
Hopefully, awareness will also lead to early prevention. Although, it has to be
mentioned that work-related suicide has been documented earlier in other regions
suchasAsia,andwasacknowledgebyJapaneseresearcherssincethelate1980’s.4
In this new context, many governments have adopted regulations on risk assess-
ment and management of psychosocial risks and work-related stress as part of the
managementofOSHintheworkplace.Thedesignofresearch,technicalguidelines,
assessmenttoolsandworkplacepolicesfordealingwithwork-relatedstressandits
outcomeshaveincreasedinrecentyears.Anumberofnationallistofoccupational
diseases have incorporated stress and pathologies induced by work-related stress.5
Lately, workplace health promotion programmes, have been incorporating health
promotion measures to encourage and help build healthy behaviours, especially in
relation to stress, alcohol and drug, tobacco, nutrition and physical activity. This
publication reflects countries attempts to deal with these trends.
Although the increasing number of workplace programmes promoting healthy
lifestyles acknowledges the importance of a healthy workforce for achieving sus-
tainable enterprises, most initiatives on stress management include individual
counselling,inductionandmentoringofnewstaff,on-goingsupportbyco-workers
and trade unions during unemployment and addressing major life events by
2MainlyinspectoratesinEUcountriesandsomeinLatinAmerica.
3Foundation Findings: Physical and psychological violence at the workplace. European
FoundationfortheImprovementofLivingandWorkingConditions,2010.
4Karojisatsu(suicidefromoverworkandstressfulworkingconditions)hasbecomeasocialissue
inJapansincethelatterhalfofthe1980’safterasustainedeconomicrecession.Longworkhours,
heavyworkloads,lackofjobcontrol, routineandrepetitive tasks,interpersonal conflicts,inade-
quate rewards, employment insecurity, and organizational problems could become psychosocial
hazards at work and cause Karojisatsu. The legal precedent for its recognition was set in 2000
whentheJapaneseSupremeCourtorderedalargeJapanesecompanytocompensatethefamilyof
adeceasedmanwhoallegedlycommittedsuicidebecauseoflongandexcessiveoverwork.Both
Karojisatsu and Karôshi (death from owerwork) can be considered by the Japanese worker’s
compensationinsuranceiftheapparentrelationtoworkcanbedemonstratedevenifKarôshiand
Karojisatsuarenotdirectlymentionedinthelistofoccupationaldiseases.
5For example: Australia, Brazil, Canada, Colombia, Costa Rica, Cuba, Chile, Ecuador, Italy,
Latvia, Malaysia, Mexico, Nicaragua, Paraguay, the Syrian Arab Republic and the Bolivarian
RepublicofVenezuela.
Foreword vii
buildinglinkswithlocalNGO’s.Theneedforacollectiveapproachasapriorityto
deal with workplace psychosocial hazards and risks is not always taken into
account. The ideal response to stress is to prevent its occurrence. This may be
achieved by tackling the core of the problem: the psychosocial risks at its origin.
Specificpreventivemeasuresaimedatdealingwithpsychosocialrisksatthesource
and reducing the potential consequences of work-related stress should be taken.
Comprehensive OSH management should ensure that psycho-social hazards and
risks are properly assessed and managed, in the same way as other OSH risks.
A successful enterprise is based on the people that work in it and on its organi-
zational culture. Workers in a safe and supportive environment feel better and are
healthier, which in turn leads to reduced absenteeism, enhanced motivation,
improved productivity and a positive enterprise’s image. The prevention of occu-
pational accidents and diseases, the protection of both the physical and mental
healthofworkersandthepromotionofahealthyworkinglifecontributetobuilding
a preventive culture and is a shared responsibility of governments, employers and
workers, policy makers, legislators, health professionals and society as a whole.
Thisbookoffersaninterestingoverviewofthelegislativeframeworkinthisfield
showingitsevolutioninanumberofcountries.Itprovidesforageneralperspective
on a comparative analysis of legislation, collective agreements and enforcement
measuresinthecountries mentioned above.It presentsanumberofjurisprudential
cases which have paved the way for legislation and enforcement. Some pioneer
initiatives are also discussed by the authors. Since its inception, this research has
pursuedaninnovativeandcomprehensiveapproachtowardspsychosocialrisksand
theirimpactinworkingconditionsandtheworkingenvironment,6fromprevention
to research and to framework legislation, assessing different contexts and cultures.
It has also promoted the establishment of networks of specialists from different
disciplinestoencouragejoiningforcestodealwithsuchmultifacetedandcomplex
issues in the world of work of today. I hope you will appreciate as much as I did,
the different and complementary perspectives brought by the authors.
Valentina Forastieri
Senior Specialist on Occupational Health
Health Promotion and Well-being
Labour Administration, Labour Inspection and Occupational
Safety and Health Branch (LABADMIN/OSH)
Governance and Tripartism Department (GOVERNANCE)
International Labour Office
6This publication takes places within the implementation of the HEADS research programme
(Healthdeterminantsinsocieties),fromtheUniversityofBordeaux,http://heads.u-bordeaux.fr.
Contents
1 Work-Related Psychosocial Risks: Key Definitions and an
Overview of the Policy Context in Europe ... .... .... ..... .... 1
Stavroula Leka, Aditya Jain and Loïc Lerouge
Part I General Legal Perspectives on Psychosocial Risks at Work
2 Health and Safety Law and Psychosocial Risks at Work:
A Comparative Overview of France and Other Countries.... .... 15
Loïc Lerouge
3 Comparative Study of the Psychosocial Risks Prevention
Enforcement by the European Labour Inspectorates... ..... .... 31
Manuel Velázquez
4 Effectiveness and Problematic Aspects of the EU Framework
on Psychosocial Risks ... ..... .... .... .... .... .... ..... .... 53
Marco Peruzzi
5 PreventionofPsychosocialRisksinLabourLaw:RoleoftheLaw
and Collective Bargaining..... .... .... .... .... .... ..... .... 67
Franck Héas
6 Employer Responsibility for the Psychosocial and Psychiatric
Well-Being of Employees in the Workplace: A View from
the United Kingdom .... ..... .... .... .... .... .... ..... .... 79
Roger M. Walden
7 Strength and Weakness of the Swedish Legislation
Regarding to Psychosocial Risks ... .... .... .... .... ..... .... 105
Maria Steinberg
8 Psychosocial Risks and Belgian Labour Law: An Emphasis
on Harassment. .... .... ..... .... .... .... .... .... ..... .... 123
Véronique van der Plancke
ix
x Contents
Part II Bullying: The Main Psychosocial Risk Legally Recognised
9 Violence and Bullying in Maritime Transport: The Contribution
of the Maritime Labour Convention of 2006.. .... .... ..... .... 143
Alexandre Charbonneau
10 How to Identify Workplace Bullying. A Case Study Based
on Judgement from the Norwegian Court of Appeal ... ..... .... 159
Jan Reidar Gregersen
11 Violence, Bullying and Management: How Do the Courts
Address Psychosocial Risks at Work?... .... .... .... ..... .... 179
Sandrine Laviolette
12 Harassment Protocols in Spain: The Case of Universities .... .... 197
Lourdes Mella Méndez
13 The Right to a Work Environment Free from Psychological
Harassment Under Quebec’s Labour Standards Act ... ..... .... 215
Rachel Cox
14 Bullying and Law in Japan ... .... .... .... .... .... ..... .... 243
Loïc Lerouge and Shino Naito
15 The Australian Regulatory Framework for Preventing
Harassment and Bullying at Work . .... .... .... .... ..... .... 253
Richard Johnstone
16 Protections from Workplace Bullying and Psychological
Harassment in the United States: A Problem in Search
of a Cause of Action .... ..... .... .... .... .... .... ..... .... 269
L. Camille Hébert
Part III From Reparation to Prevention of Psychosocial Risks
17 Workers’ Compensation for Work-Related Mental Health
Problems: An Overview of Quebec Law . .... .... .... ..... .... 291
Katherine Lippel
18 Apprehension About Psychosocial Risks and Disorders
in Social Security: A Comparison Between the Approaches
in Belgian and French Law ... .... .... .... .... .... ..... .... 305
Valérie Flohimont
19 Recognition of Mental Illness as an Occupational Disease
by Analogy with Physical Illness: Comparative Analyses
with French Law... .... ..... .... .... .... .... .... ..... .... 317
Eri Kasagi