Old Lessons for New Governance: Safety or Profit and the New Conventional Wisdom
York University - Osgoode Hall Law School; Cleveland-Marshall College of Law, Cleveland State University (Visiting)
October 26, 2012
In Theo Nichols and David Walters, eds., Safety Or Profit?: International Studies in Governance, Change and the Work Environment (New York: Baywood Press, 2013), 71-95.
Osgoode CLPE Research Paper No. 38/2012
New governance theory has a large following in academia and is exerting an influence in numerous spheres of regulatory policy. Yet in the area of occupational health and safety, new governance is hardly new at all. Indeed, it is fair to say that it in many ways what are now labelled new governance concepts were first articulated and applied in the 1972 Robens Report, Safety and Health at Work. This included its critique of command and control legislation and its emphasis on the need to develop better self-regulation. This paper critically examines new governance models in OHS regulation. In the first part, I construct some ideal types of OHS regimes based on three variables; state protection, worker participation and employer management systems. These are used as heuristics in subsequent discussion. The second part briefly discusses the roots of new governance in the Robens report (referred to as ‘old’ new governance) and briefly reviews Ontario’s experience with it, to examine its dynamics and its vulnerability to regress toward neo-liberal self regulation/ paternalism in the absence of effective worker OHS activism. In part three, I focus on recent work by two North American new governance theorists, Orly Lobel and Cynthia Estlund, who consciously wish avoid a collapse of new governance approaches into neo-liberal self regulation/paternalism. I argue that despite their aspirations, the new governance prescriptions they embrace are unlikely to be institutionalized with the protective conditions they advocate and that their emphasis on self-regulation valorizes a movement toward the destination they wish to avoid. Finally, I ask whether degradation toward neo-liberal self-regulation/paternalism is inevitable and if not whether a progressive new governance theory is possible and has anything to offer toward strengthening a regime of public regulation under the unfavourable conditions that prevail today.
Number of Pages in PDF File: 45
Keywords: Regulation, Governance, Labour, Employment, Health, Safety, Work, Occupational Health and Safety
Date posted: July 1, 2013 ; Last revised: December 16, 2013