The coordinated turn to risk-oriented controls across Germany
A risk-analytical foundation of routine inspections across the whole country was initiated through horizontal cooperation in the 88th Conference of the Ministers of Labor and Social Affairs (ASMK). In 2011, the ASMK obliged the LASI to identify and agree upon “common guidelines for risk-oriented inspections” (Arbeits- und Sozialministerkonferenz, 2011, p. TOP 7.6, 145). The ASMK had already expressed the wish to coordinate work safety inspections more across states (and with the concurrent inspectorates of the Berufsgenossenschaften) and to jointly review inspection strategies in 2001. LASI first worked toward such coordination in 2006, in immediate response to the critical SLIC evaluation (see Section 7.1.3), by prompting a scoreboard. In this, states were questioned about their priority-setting for inspections and whether or not this contained “some basic elements of risk-based controls, even if they are not always the same” (WSY-11). Answers were voluntary and nothing much happened with the results of the scoreboard.
Indeed, it took a highly publicized scandal to move the agenda from goal expression and initial best practice exchanges to the design of a coordinated riskbased approach to work safety inspections across states. After 50 workers had been severely poisoned by polychlorinated biphenyl (PCB) in a recycling company in 2010, North Rhine Westphalia initiated a call upon the ASKM to promote “risk-oriented controls” across all Lander. This was precisely the task which the ASMK, in its 2011 autumnal meeting, delegated back to the LASI.
The LASI delivered its risk-oriented concept for inspections in 2014 with its “LV1” (LASI, 2014b). This non-binding guideline provides a common model for strategic priority-setting in inspection planning novel to all but the forerunner Lander. LASI suggests that “common risk assessment” will facilitate “risk-oriented inspections” across Germany (LASI, 2014b, p. 23). To achieve this shared strategic orientation, LV1 requires 25 per cent of all inspection activities to be pro-active and risk-based (reacting to accidents or complaints traditionally consumes the bulk of inspectors’ time). This share is of course much lower than is the comprehensive risk-analytical priority-setting in food safety and flooding. According to the LASI’s standard, (the partial) risk-oriented inspection planning pursues a three-step assessment procedure:
- • In a first step, inspectorates classify each employer within their jurisdiction according to a standardized basic classification (“allgemeine länderübergreifende Grundeinstufung von Betrieben”, LASI, 2014b, p. 23). As a basis for this assessment, Länder lead inspection managers sat together to agree upon a common definition of basic hazard levels for 615 economic branches (WSY-13) across four “hazard categories”: mechanic and substance-related hazards, physical, and psychological strains on the employees. The classification ranges from negligible hazard (0) to low (1), medium (2), and finally, high hazard (3). High scores in singular categories or overall scores of 2 or 3 imply that a whole sub-sector will move onto the preliminary inspection list across all Länder. This basic classification scheme is founded on a blueprint from Hessen, which also already used economic subsector lists to classify firm’s basic hazard level in the RSA (WSY-12). When LASI took up the template, the task was to sit down and adjust classifications with input from the 16. The joint classification of sub-sectors rests on accident statistics, data on occupational illnesses per sector, but also a qualitative discussion of inspectors’ professional experience across economic sectors. All interviewees insisted that the classification process was “nothing scientifically proven. Not at all . . . it is more a gut feeling thing, to be honest, professional experience matters a lot here” (WSY-04). To rationalize the “gut feeling” of 16 Länder inspectorates, each Land gave individual assessments first and these were then averaged out to form a final common hazard score for each subsector (WSY-08). Länder hope that this basic risk assessment, though not touching upon firms’ compliance behavior or the frequency of inspections at all, can already facilitate a common strategic inspection focus across the fragmented enforcement regime: “The summary of assessments enables work safety' authorities to set priorities when selecting firms for inspection” (LASI, 2014b, p. 23). Accordingly, for instance, the inspection of sea fishing workplaces, mines, and quarries would need to be treated as a high priority' whilst investment advisers or providers of web portals would be negligible for work safety inspectors (LASI, 2014a).
- • In a second step, inspectorates assess the size of companies in terms of “number of employees” (LASI, 2014b, p. 23) to identify how many workers would potentially be affected by harm (i.e., of two firms with the same basic risk category the one with 10,000 employees as compared to the company with 10 employees would be prioritized in inspections). However, as the LASI guideline does not specify indicators for impact assessment for this category, Länder and local inspectorates retain much leeway' for determining their inspection foci differently from one another. Indeed, the ASMK notes that Länder are meant to “complement” the common basic classification with “state-specific criteria” along with their own inspection concepts (Arbeits- und Sozialministerkonferenz, 2014, p. 176).
• In a final selection step, Länder ought to consider authorities’ work safety intelligence on any given firms’ "individual work safety situation”. This is intended to inform authorities about firms’ likelihood of compliance and makes active use of the blueprint on system controls from Hamburg. Such probability assessment shall be based on “inspection records, accidents or complaints” (LASI, 2014b, p. 23), but LASI does not detail assessment methods any further. Länder can draw on their own accident and complaint statistics and inspection records, but also on another non-binding LASI guideline (LV 54, LASI, 2011). This second guideline lays down a coordinated approach to system controls at workplaces suggesting inspectors assess “whether the respective employer entertains an adequate organization fit for the identification, planning and execution of necessary OHS measures in its entirety” (LASI, 2011, p. 41). The LASI’s system-audit-approach is relatively fine-grained111; it contains a 15-pages long definition of various assessment criteria and their categorization into a traffic light model (LASI, 2011, pp. 19-33). Criteria include, for example, firms’ organization of their own risk assessment duty, or the effective communication of work safety policies vis-a-vis staff and lead management. Overall, the cumulative assessment model evaluates of companies’ work safety management as being either “adequate”, “partially adequate”, or “insufficient” (LASI, 2011, p. 15), similarly to the template from Hamburg. With a typical traffic light approach, the LASI guideline then suggests deprioritizing those firms with adequate work safety management systems - including with system audit certifications - while targeting firms with “partially adequate” or “insufficient” systems (LASI, 2011, p. 42).
Pushes for a common risk algorithm and its limits
In theory, a substantial bottom-up harmonization of inspection planning across states would be easy to roll out in Germany: with 14 Länder - in 2014 - already using I FAS as their common software for managing their firm cadastres and inspection reports, they could all “switch on the module and use it” at almost no cost, by simply programming the algorithm in line with the 2014 LASI guideline (WSY-12). In the fashion of a growing and increasingly self-aware instrument constituency, the two states which had already used the module for IT-based inspection planning in I FAS before - Hessen and Brandenburg - promoted their algorithms as blueprints for all others to test during a piloting phase in 2017/2018 (Brückner, 2017). The pilot project had the goal of testing how the LASI approach to risk-oriented inspection planning could be aided by the RSA module. With a final report on the outcomes of this pilot project pending at the time of writing, I rely on interviewee statements for an assessment of the relative success of this instrument constituency in triggering a comprehensive turn to risk-based inspections in this context.
From the outlook, the instrument constituency appears weaker than the risk analysis constituency in flood prevention, mainly because it lacked national and EU level support for promoting its tool and it did not have access to coercive backup of risk-analytical decision-making (unlike in the other two cases). However, there is evidence that the piloting of the RSA has led some Länder to reconsider their existing priority-setting approaches. An example is Lower Saxony whose inspection strategy for workplaces was previously driven by the fixed enforcement requirements in EU environmental regulation (cf. the crowding out argument made in section 7.1.2). When they fed the new RSA algorithm with their data and ran an automatic sampling of firms to be inspected, to their surprise, none of the high-risk firms they usually target for environmental safety reasons made it on the priority list: “we were much astonished and said: hey, why does it not show any of our [usual target] firms?” (WSY-05). Such moments of irritation ostensibly made transparent both the various priorities of different inspections models and crowding out effects by neighboring regulatory domains. The new visibility of work safety inspection priorities thus informed a debate about best practices in the LASI: “If they all run and calculate with the same model, I have a certain level of transparency about who’s acceptant of what. And then I can, potentially, also discuss this politically among interested circles” (WSY-05, also WSY-01, WSY-12, and WSY-13).
However, the introduction of common risk analysis across a fragmented work safety inspection landscape in Germany comes with a number of caveats, limiting its potential to be a tool for coordinated problem-solving. First, the relevant guideline which demands risk analysis for inspection planning (LASI’s LV1), though following an explicit mandate by the Länder Ministers’ Conference (ASMK), is “no . . . binding administrative decree, of course, but a kind of internal steering tool to deliver some targets for Länder inspection strategies” (WSY-11). Second, the non-binding guideline only harmonizes the impact assessment side of risk analysis, with a joint method for assessing sub-sectors’ basic risk, while leaving the likelihood of harm dimension relatively vague (though the LV 54 on system control offers another template for potential voluntary emulation). Third, risk-oriented inspections are to make up only a fourth of all inspection activities. Fourth, unlike the highly detailed AVV RÜb guidance on food safety or the close link between risk analysis and national spending in the flood prevention case, the LASI does not specify how risk analysis ought to be used to determine inspection priorities and frequencies.