"Joining forces" to escape the "legitimacy trap": explaining the horizontal emulation of risk-based work safety inspections in Germany

Although LASI’s guidelines on risk analysis are merely advisory they are widely followed, and interviewees seem optimistic that they represent “a positive offer” (WSY-05) for harmonizing - within the limits discussed earlier - priority-setting in work safety inspections across Germany. Why such embrace of a common risk analysis model from below? Interviewees portray a three-step narrative on the adoption of risk analysis.

  • • First, LASI-wide risk analysis and its algorithmic use for inspection planning attracted individual states’ support for mainly instrumental reasons. In the absence of perceived collective action problems, however (and unlike in food safety and flood prevention), their individual instrumental orientation has so far not united states in coordinated problem-solving endeavors.
  • • Instead, second, a critical evaluation by the EU’s SLIC plus a serious case of undetected work-related illnesses led states to “join forces” and forge a unified risk-oriented approach around existing blueprints. Beyond individual legitimacy-seeking within each Land, horizontal coordination built on a common wish to defend statutory inspections and their subcentral organization in executive federalism against continuing fragmentation critique.
  • • In addition, third, state inspectorates have started promoting a coordinated risk-analytical inspection programming more pro-actively - up to automation calls by some - as a tool for rendering their weak mandates more visible politically or even to promote evidence-based increases of work safety inspection staff among their respective state governments.

Mainstreaming instrumental orientations without coordinated problem-solving

When North Rhine Westphalia demanded a coordinated approach across states from 2011 onward, it did so under the strong impression of the failure to detect non-compliance with work safety regulation at a large recycling firm. While legitimacy-seeking also sprung-off from this incident (Section 7.3.2), inspection strategists’justifications for adopting risk analysis sound like a perfect rehearsal of the typical instrumental drivers of risk-based regulation (cf. Box 7.1). Where 200 of the previously more than 700 inspectors in one state had been laid off in the last decade (WSY-01), the targeting of scarce resources in a risk-based manner has become a remedy for rationalizing one’s activities (Statement 1). As the trend of scarce budgets for work safety inspections is shared across all Länder, interviewees argue, it did make sense to use the scandalization momentum in one Land at that time as a stimulus for jointly “rationalizing” priority-setting (Statement 2). Indeed, in a climate where some inspectorates saw more than a 50 per cent staff cuts since the 1990s (Herbst, 2004), risk-based planning was welcomed as a formalized procedure for economizing the use of slim and ever slimmer state budgets (Ministerium für Klimaschutz, Umwelt, Landwirtschaft, Natur- und Verbraucherschutz des Landes Nordrhein-Westfalen, 2013, p. 9). Fittingly, the LASI guideline justifies the coordinated turn to risk-oriented inspections across Germany with hope that “inspections are optimized and made more effective by identifying companies with a high potential of endangering [workers]” (LASI, 2014b, p. 22).

BOX 7.1: HOPES OF EFFICIENCY AND EFFECTIVENESS CAINS IN WORK SAFETY THROUGH RISK ANALYSIS

Statement 1: "If you don't have the resources . . . you cannot visit every firm . . . Civen the scarce resources and great number of firms to inspect, we need to aim for a transparent and reproducible approach . . . Not least as we have to convey why have we done certain things and refrained from doing others .. . This [work-induced illnesses at a large recycling firm] was the trigger for us to reflect: how can we do it here? But to also bring this to the ASMK, thinking it would be good to do such a thing in a Lander-coordinated way . . . simply to achieve a certain comparability and maybe even a benchmark between Lander". (WSY-01)

Statement 2: [when asked why LASI decided to create a common model, rather than letting each Land deal with priority-setting and its response to scandals alone] “Well, this problem affects us all, and the related issue of resources also affects all.. . and when we got to ask how to rationalize this all it was really Hessen and Brandenburg who were there first to say: we have got an instrument! It's already adopted, it works . . . we can set and manage priorities with it. Why invent something new where we already have something?" (WSY-12)

Statement 3: [discussing the Land's laggard position in inner-Cerman accident rates and the goal of halving accident rates by help of risk-based inspections] “Well, this is where we want to improve and look for a method which is especially effective. Not to do anything anyhow, but to try and operate most intensively ... in a targeted way ... in those areas where accident and illness potentials exist. This is the main goal, actually, not to work at random but to focus on the problematic areas". (WSY-06)

Statement 4: "to have new hazards . . . feature in assessment. . . We are quick [to consider] the practicable . . . apparent things [in inspection priorities] . . . Wherever it stinks and rumbles, where one can fall onto one's feet or head; this is being considered as especially risky. All the softer aspects are rather outside of this [calculation]. So this [the LV1 basic hazard assessment, including psychological strains] is an attempt to correct things step by step”. (WSY-12)

In addition to efficiency-seeking interviews also evidence a normative isomorphic diffusion process, driven by policymakers’ shared rationalist assumption that risk-based inspections will genuinely improve work safety. This seemingly confirms the thesis of the apolitical and technical expert civil service in Germany

  • (Chapter 4). There are three elements to the pursuit of evidence-based effectiveness gains through risk analysis from the viewpoint of state inspectorates:
  • • First, states whose work safety performance is weaker than others consider the approach, and the necessary scientific research to implement it, as a chance to catch up and optimize inspection activities (Statement 3). Indeed, lead inspection managers in Baden-Württemberg hope to half work accident rates by the help of risk-based inspections (WSY-06 and WSY-07).
  • • Second, the common model is also seen, by some (WSY-01, WSY-05, and WSY-12), as a chance to reconsider existing priorities and check their effectiveness in lowering work safety risks for workers. This concerns, on the one hand side, the integration of novel and/or less apparent types of work-related risks, mainly stress and other psychological strains, into priority-setting (Statement 4, also WSY-01 and WSY-05). By comparing across different categories of hazard in the basic Länder assessment, inspection managers hope, the traditional focus on mechanical and chemical safety can be widened. On the other hand side, in some Länder, the piloting of the RSA has triggered a critical re-examination of the extent to which work safety effectiveness may in fact be jeopardized by priority-setting approaches whose lens is dominated by neighboring regulatory concerns such as environmental safety (WSY-05).
  • • Third, one interviewee highlights positive effects of risk analysis in illuminating “blind spots” among specialist inspectors who would tend, they argue, to inspect what they know best (be it mechanical risks or chemical hazards) rather than setting priorities according to a transversal assessment of different risk factors (WSY-13).

With these interpretive orientations we observe the thin contours of instrumentally founded coordinated action in Germany’s multi-level regime of work safety inspections. Interviewees invariably highlight the importance of increasing the visibility and comparability of risks across states for furthering the cost-effectiveness of work safety controls. Some even name benchmarking as their goal (Statement 1). But while such orientations remind us of those held by food safety inspectors and flood prevention planners, unlike in these other two domains most interviewees see no scope for more substantial coordination of work safety inspection planning. To the contrary, the RSA module’s very appeal is perceived in that “everyone can set parameters as they see fit” (WSY-12; also WSY-10 and WSY-11). This discretion does not seem to be negotiable; the same policymaker who was positive about discussing the larger implications of the piloting phase for shared priorities, is also skeptical about the extent to which pushes for risk-analytical harmonization of inspection frequencies would fly: “we’d ask too much of the majority in LASI if we wanted to set any fixed [inspection] requirements” (WSY-05). As another interviewee highlights, the reluctance to go further with a coordinated automation of inspection priorities - and especially frequencies - across states hits the wall mainly because automation might require (upward) budgetary adjustments for work safety enforcement in most states:

We did have debates within LASI. . . whether we have to come forward with actual control frequencies . . . firms ought to [be controlled] at least. . . in my opinion this won’t happen in LASI and not in the ASMK either. There is much resistance in LASI against tangible requirements. Because people say: I might be able to sell this to my own Minister, but I won't be able to sell it to my Finance Minister.

(WSY-11)

Another interviewee assumes most states will reject any such plan because “they do not want to be measurable” and are therefore warry of introducing any specific cross-Länder performance measures (WSY-13). Whereas in flood prevention, EU-induced risk maps made the variable performance of states and municipalities in prevention planning visible and thus created a new platform for the (soft) harmonization of administrative priorities, German work safety inspectors seem reluctant to self-impose such transparency and its knock-on effects on their autonomous actions. But this may not only be a story of unwillingness to give up autonomy. Unlike in food safety and flood prevention, interviewees do no convey any urgent sense of having to act jointly to solve collective action problems; even where they perceive strong other sources for coordinated action. We turn to these next.

 
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