Posted By Joe Brannigan 2
seems to me that these final paragraphs from the Advocate Generals opinion have left a large gaping window for the commission to return to challenge sfarp?
134. Consequently, it is purely in the alternative, and only should the Court consider that the application seeks to claim that the SFAIRP clause is also unlawful inasmuch as it may restrict the extent of the employer’s duty to ensure safety under Article 5(1) of the framework directive, that I shall consider briefly below whether that complaint is well founded.
135. The considerations set out at points 102 to 110 above have made it possible to identify the parameters of the general duty to ensure safety, as they emerge from Article 5(1) of the framework directive and from the provisions of that directive which help define that duty in greater detail.
136. I stated, at point 111 above, that, pursuant to the duty of safety laid down in Article 5(1) of the framework directive, an employer is required to prevent or reduce, so far as possible and taking into account technical progress, all of the risks to the safety and health of workers that are actually foreseeable.
137. That means, in particular, that whether it is, objectively speaking, technically feasible to eliminate or reduce a risk to the safety and health of workers is the criterion which must form the basis for assessing whether the employer’s conduct actually complies with the requirements of the framework directive.
138. In my view, since it introduces a criterion for assessing the appropriateness of the preventive measures taken which is less rigorous than sheer technical feasibility, the reference in section 2(1) of the HSW Act to the concept of what is ‘reasonably practicable’ is incompatible with the scope that should attach to the general duty to ensure safety laid down in Article 5(1) of the framework directive.
139. The test which courts in the United Kingdom are required to apply in assessing whether an employer’s conduct complies with section 2(1) of the HSW Act involves an evaluation which goes beyond establishing whether it is possible to prevent a risk arising or to reduce the extent of that risk on the basis of the technical possibilities available: even in the case of risks which are actually capable of being eliminated, it permits (or, more accurately, requires) a balancing out between the costs – and not only the financial costs – of the preventive measures, on the one hand, and the seriousness and extent of the harm that could ensue for the workers’ health, on the other.
140. Even accepting the United Kingdom’s point that a cost-benefit analysis of that nature will rarely, in practice, produce a result favourable to the employer, such an analysis does not seem to me to be permissible under the Community system of protecting the safety and health of workers, which appears to give priority to protecting the individual worker rather than financial enterprise. (15)
141. It follows that, should the Court interpret the Commission’s complaints along the lines set out in point 134 above, the application should, in my view, be upheld.