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On the 16th of February 2011 the European Commission issued a press release stating that they had asked the UK to change provisions that exempt some maintenance and repair activities from the application of the EU directive1 on protection of workers from asbestos. This decision was taken as a result of a complaint made by the Asbestos Removal Contractors Association (ARCA) in 2006 to the Secretary General of the European Commission, regarding the transposition of certain Articles of The Asbestos Workers Protection Directive2 into UK law.
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On the 16th of February 2011 the European Commission issued a press release stating that they had asked the UK to change provisions that exempt some maintenance and repair activities from the application of the EU directive1 on protection of workers from asbestos. This decision was taken as a result of a complaint made by the Asbestos Removal Contractors Association (ARCA) in 2006 to the Secretary General of the European Commission, regarding the transposition of certain Articles of The Asbestos Workers Protection Directive2 into UK law.
A European Union directive requires member states to achieve a particular result without dictating the means of achieving that result. When the requirements of Article 3(3) (a) and (b) were transposed into UK law, via Regulation 3 of the Control of Asbestos Regulations 2006 (CAR 2006), it was ARCA's opinion that the UK legislation did not achieve the particular result that the directive called for.
The European Commission reported that after a thorough analysis of ARCA's complaint by the different Commission services, the Commission had decided to proceed with two of the points raised by ARCA, namely those concerning article 3(3) (a) and (b) of the directive, regarding the terms "in which only non-friable materials are handled" and "without deterioration of non degraded" materials. These words have been omitted during the transposition of the directive into Regulation 3(c) of CAR 2006. The directive specifies that when it is clear from the results of a risk assessment that the exposure limit will not be exceeded in the air of the working area certain Articles relating to notification of the work and medical surveillance and health records can be waived.
The directive Articles do not allow these articles to be waived when short non continuous maintenance activities are carried out on friable asbestos material, or when asbestos materials, which are firmly linked in a matrix are to be removed when the material is degraded prior to work starting, or when the asbestos material will be deteriorated during the removal process, however CAR 2006 does. This is the reason that ARCA believe that the implementation of the directive by the UK does not achieve the result that the directive called for. In practice very few asbestos materials can be removed without deteriorating the material during the removal process.
In ARCA's opinion, by not transposing the directive correctly the UK have significantly widened the scope of the asbestos work activities that can be carried out in the UK without the need for notification of the work and without the need for medical surveillance and health records being kept for the workers. The exact wording of Articles 3(3) (a) and (b) of the directive have been adopted word for word by other EU states, therefore workers in the UK do not currently have the equivalent legal protection as workers in other EU states who carry out asbestos work.
On the 17th February the EU sent a Reasoned Opinion to the UK, the UK has two months from that date to bring its legislation into line with EU Law. Otherwise, the Commission may decide to refer the UK to the EU's Court of Justice.
It is important to note that asbestos licensing is not a requirement of the directive or European law. Currently all asbestos work in the UK requiring notification, medical surveillance and the keeping of exposure records is aligned to the asbestos licensing regime. Therefore if the UK authorities decide to comply fully with Article 3, as the European Commission have requested, this does not necessarily mean that all the asbestos work where notification, medical surveillance and the keeping of exposure records are not exempted will necessarily have to be licensed.
Commenting on the development, TUC General Secretary, Brendan Barber, said; "This is another nail in the coffin of the myth that the HSE has been 'gold-plating regulation'. European regulations are there to protect workers, and governments should see them as being minimum standards rather than trying to weasel out of their commitments."
Alan Ritchie, General Secretary of construction-workers union UCATT, added: "Construction workers, especially those involved in maintenance work, are now at the greatest risk of being exposed to asbestos and developing asbestos related diseases."
"It is essential that they are given the greatest possible training, education and protection when it comes to dealing with asbestos. UCATT'S advice is clear: if you are not a specialist, do not work with asbestos. If, at any point, you think you are working with asbestos, stop work immediately and get it checked out."
HSE's comment so far has been: "The Reasoned Opinion is a long and complex legal document and we need to look at it carefully before we decide how to respond."
Notes
1 A directive is a legislative act of the European Union, which requires member states to achieve a particular result without dictating the means of achieving that result. When adopted by the European Union, directives give member states a timetable for the implementation of the intended outcome. Occasionally the laws of a member state may already comply with the outcome and the state involved would only be required to keep their laws in place. More commonly member states are required to make changes to their laws (commonly referred to as transposition) in order for the directive to be implemented correctly.
2 It should be noted that Council Directive 83/477/EEC of 19 September 1983 on the protection of workers from the risks related to exposure at work (second individual Directive within the meaning of Article 8 of Directive 80/1107/EEC), as last amended by Directive 2003/18/EC has subsequently been codified by Directive 2009/148/EC of the European Parliament and of the Council of 30 November 2009 on the protection of workers from the risks related to exposure to asbestos at work (codified version)
Contact Information
ARCA House
237 Branston Road
Burton upon Trent
Staffordshire
DE14 3BT
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