orrtumins310309.pdf

7/27/2019 ORRTUmins310309.pdf

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Meeting of HM Chief Inspector of Railways and Trade Union General Secretaries on 31/03/09

Doc # 342153.021

Meeting Between HM Chief Inspector of Railwaysand Trade Union General Secretaries

Tuesday 31 March 2009Office of Rail Regulation

One Kemble Street, London

Present:

Office of Rail RegulationIan Prosser HM Chief Inspector of RailwaysDavid Morris Deputy Chief Inspector of Railways (Policy)Paul McCormack Manager, Non-Government Stakeholders

ASLEF

Simon Weller National OrganiserRMTMick Cash Assistant General SecretaryPaul Clyndes Health and Safety Officer

Unite the Union Amicus SectionBob Rixham Lead Industrial OfficerRob Miguel Health & Safety Officer

TSSA

David Chalkley National Organiser (South)

11.1

Welcome and IntroductionsIan Prosser welcomed everyone to the meeting and introductions weremade round the table. A particular welcome was made to Simon Weller,the new National Organiser for ASLEF.

1.2 Apologies had been received from Allan Spence (ORR), Caroline Wake(ORR), Gary Taylor (ORR), Dave Bennett (ASLEF), Keith Norman(ASLEF), and Gerry Doherty (TSSA).

22.1

Minutes of the previous meetingThe minutes of the previous meeting on 12 December 2008 had beencirculated and agreed in advance of the meeting.

33.1

Actions/matters arisingPaul McCormack explained a revised version of the ActionsSummary following the meeting of 21 April 2008 had been circulatedto reflect changes requested by Dave Bennett regarding Action 5.5(ORR consultation of Trade Unions (TUs) about Occupational Health(OH) elements of the HMRI Operating Plan 2009-10).

3.2 Rob Miguel advised that Action 8.2 of the 21 April 2008 ActionsSummary (ORR consultation of TUs regarding ROGS review) was still


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incomplete; he owed Helen Ralphson a further response about hisconcerns over the way in which workers who carried out safety criticalwork at maintenance depots were now protected.

3.3 Turning to the Actions Summary of the 12 December 2008 meeting,David Morris explained in response to a question from Dave Chalkley

that the series of meetings mentioned in Action 3.2 was the same as theone in Action 3.1. Ian Prosser confirmed that all four TUs would beinvited to send representatives to the next regular meeting with ORR todiscuss matters associated with asbestos. The next meeting had beendelayed by ORR restructuring (see 4 below).

ACTION: Allan Spence (ORR)3.4 Whilst on the subject of asbestos, Paul Clyndes reported that Network

Rail was planning to spend 17m in the next financial year to removeasbestos from cabinets in the Kent and East Sussex region as aprecursor to a wider roll out across the country. All agreed this was awelcome development.

3.5 Action 3.6 - David Morris clarified that Action 3.6 was still ongoing in thatORR awaited further details from the TUs about the industry-wide TUinitiatives. ORR would then consider whether it was appropriate toparticipate; read across to the new ORR corporate strategy andsufficient resources would be the key considerations.

4 ORR Corporate Strategy 2009-14 and the associated ORR internalrestructuring

4.1 Ian Prosser reminded those present that copies of the new strategy hadbeen circulated at the last meeting, and that this latest meeting coincided

with publication of ORRs business plan 2009-10. Paper copies of thatplan were circulated to those present. Ian explained the plan wasdesigned to translate the high level strategy into detailed activity toinitiate delivery of its key objectives. He drew particular attention to page25 of the plan - the activities associated with delivery of the secondstrategic theme (Excellence in health & safety culture and risk control),indicating the focus would be on signalling maintenance, trackworkersafety in possessions, and following up the recommendations arisingfrom the Grayrigg derailment.

4.2 Ian then focused on the principles underpinning the restructuring of hisRailway Safety Directorate (RSD) to facilitate the implementation of the

new strategy. He made the following points about the work of the newDirectorate:

more systematic audit, as well as inspection, of dutyholdersmanagement systems, incident investigations and action trackingprocesses, both in the mainline railway and other parts of theindustry;

greater use of ORR powers to ensure that dutyholders measure theirsafety culture and identify and address weaknesses;

use ORR influence, and if necessary take regulatory action, so thatall dutyholders implement good practice for management ofoccupational health;


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use ORR powers to ensure the industry manages in an effective waythe safety of the railway system as a whole, and the safety interfacesbetween different companies and organisations; and,

cross-office working with ORRs Railway Planning & Performance(RPP), and Railway Markets and Economics (RME) Directorates, to

help deliver some of the other strategic themes, most notablyexcellence in asset management, and development by the industryof the capabilities of its people.

4.3 Ian said ORR inspectors will be more selective about what investigationactivity they undertake, focussing on incidents where there are clearHSWA breaches and ORR can add value. The exception would bework-related deaths where ORR will continue to investigate incidents. Heemphasised ORRs commitment to increasing the amount of Inspectortime on pro-active inspection; designed to realise a significant change on

safety culture by dutyholders. He added that where reactive investigationwas merited, ORR will act speedily.

4.4Ian explained RSD will comprise a total of around 100 people, organisedin three main teams:

Allan Spence will lead a team of around 50 Inspectors based acrossthe country focussed solely on Network Rail operations, andspecifically tasked with undertaking vertical audits of Network Railso RSD gets a good understanding of how the safety managementsystem is being implemented from top to bottom on a particular partof the network;

Caroline Wake will lead a team of around 25 Inspectors, againbased across the country, focussed on TOCs, FOCs, LUL, andheritage/tram operators; and,

David Morris will lead a policy team of around 30, coordinating thestrategy, planning and system safety elements of the Directorateswork, including monitoring the delivery of the HLOS safety metric,and RAIB recommendations handling.

4.5In response to a question from Simon Weller about the number of ORRInspectors at a regional level in the new RSD structure, Paul McCormack

confirmed ORRs previous commitment to circulate details, includecontact details for individual Inspector teams, after it goes live on 14April. In addition, David Morris emphasised ORRs ongoing commitmentto effective ORR/Trade Union liaison at local level, and encouraged theTrade Unions to inform ORR of existing networks of Safety Reps withwhich ORRs Inspectors can engage.

ACTION: Paul McCormack (ORR) (re: RSD Inspector contactdetails) (Completed)

Post-meeting note: contact details sent with draft minutes, 30 April 2009ACTION: Trade Unions (re: Safety Rep networks)


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4.6 With regard to the team assigned Network Rail, Bob Rixham welcomedthe proposed vertical audits, as they would help to identify why wellintentioned corporate h&s policies often breakdown when theyimplemented inconsistently by middle managers.

4.7 Given the TUs previous concerns about the consultation processassociated with the Periodic Review 2008, Mick Cash asked whetherORRs proposed review of dutyholders h&s performance would beinformed by other stakeholders views. For example, would stakeholdersbe asked to comment on ORRs assessment of Network Rails recentlypublished Business Delivery Plan 2009-10? David Morris explained thatthe formal rationale for ORRs review of that plan was to ensure it is fitfor purpose to enable Network Rail to deliver the public commitmentcontained in the HLOS. As a result, the review was predominantly aninternal ORR process. He agreed to check with his RPP colleagues the

process associated with this work and report back to Mick. In themeantime, Ian said that if the TUs had specific concerns about that plan,they should raise them with him or one of his Deputy Directors directly.

ACTION: David Morris (ORR) (Completed)Post-meeting note: David Morris wrote to Mick Cash on 16 April 2009

4.8 Simon Weller suggested there was a potential weakness in the newRSD structure given the split between those ORR Inspectors looking atNetwork Rail and those targeted at TOCs/FOCs. Ian Prosser and DavidMorris said ORR recognised the need for the Inspectors in the differentteams to communicate effectively with one another given the inter-

relationships between the different dutyholders. Indeed, ORR Inspectorswill be assessing how individual dutyholders meet their duty to cooperatewith one another, and Inspectors in the different teams will be co-locatedthereby encouraging information exchange about Network Rail andTOCs/FOCs h&s performance.

4.9 David Chalkley questioned an apparent inconsistency in the keyactivities outlined in the ORR business plan associated with delivery ofthe excellence in h&s culture theme (page 25). Most were very specificto particular dutyholder activity, whereas Section 2.2 (4) seemed to implyORR would only be checking network Rails working time protocol. David

Morris said that was not the case. If Inspection activity in that arearevealed particular issues that needed to be addressed, ORR wouldexpect action by the relevant dutyholder(s).

5 Revised Safety Directive Transposition

5.1 Helen Ralphson, ORR Operational Policy Team Manager, gave apowerpoint presentation (see Powerdocs #341788) outlining the workcurrently being undertaken by ORR relating to the transposition of therevised Railway Safety Directive, and forthcoming plans to consult theTUs.


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5.2 The main provision of that Directive is the certification of Entities inCharge of Maintenance (ECMs) to ensure that freight wagons have asafe system of maintenance right across the European rail network.FOCs and private freight wagon owners are likely to become ECMsunder the revised directive, with ECM certification in the UK undertaken

by ORR or a third party accredited or recognised by ORR. Both theDirective itself, and the ECM certification scheme are due to come intoforce on 24 December 2010.

5.3 Helen outlined the options currently being considered for the ECMcertification scheme, and indicated an external stakeholders consultationgroup is being established by ORR to help inform ORRs decision aboutwhich option to choose. The TUs will be amongst those invited to attend,with the initial meeting of that group scheduled to take place in May/June2009. Helens colleague, Steve Lee in ORRs legislative developmentteam will be leading on this work going forward.

5.4 In the meantime, the European Rail Agency has developed an informalECM certification scheme governed by a MoU that will be signed by atleast eight member states, although not the UK as it would require newlegislation and it is more sensible to wait for the new Directive. Inresponse to a request from Rob Miguel, Helen agreed to send himbackground information about this MoU.

ACTION: Helen Ralphson (ORR) (Completed)

Post-meeting note: MoU documentation sent to Rob Miguel by GaryTaylor via email dated 14 April 2009.

5.5 Rob Miguel asked about the rationale underpinning the proposed ECMcertification scheme. David Morris explained it was to remove the needfor independent audit of private keepers, and to give infrastructuremanagers across the European rail network the necessary assurancethat freight wagons are being properly maintained.

6 Waste Exemption Review Exemption 31 (discharge from rollingstock)

6.1 David Morris outlined the ongoing issue of discharges from toilet wastetanks on older passenger train rolling stock directly onto open runningline and in stations, and the impact on trackworkers there. Specificregulations governing such controlled wastes are overseen by the

Environment Agency (EA). There is currently a specific exemption(Exemption 31) for passenger trains.

6.2 David explained that Defra had led consultation in late 2008 to reviewwaste exemptions, including Exemption 31. He had submitted ORRsresponse in a letter dated 20 October 2008 (copy circulated with themeeting papers). In summary, ORR ultimately wanted an end to wastedischarges. In the interim ORR wanted the EA to enforce the currentregulations requiring TOCs to register their exemptions with the EA, andto inform the EA when, where and how often their rolling stock dischargetoilet waste, and that they are taking steps to minimise such discharges.

6.3 David added that Defra is planning a further round of consultation in April

2009 on a waste exemption guidance document, and asked the TUs tohelp ORR keep up the pressure on Defra initially to require TOCs to


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comply with the current regulations, and ultimately to abolish the currentExemption 31.

6.4 Rob Miguel questioned why ORR could not use its powers under HSWAto stop TOCs from discharging toilet waste onto running lines. Inresponse, David said that there was currently a disappointing lack of

evidence linking worker exposure to such waste with ill-health outcomes.Paul Clyndes confirmed that was the current position, adding RMT hadrecently agreed with Paul Taylor (leading in Network Rail on this issue)the publication of a circular to all NR staff seeking examples ofparticularly bad practice.

6.5 Mick Cash observed the scale of the problem was thankfully diminishingas new rolling stock had toilet waste retention tanks, although there wasstill a need to manage the hazards associated with maintaining suchtanks. He suggested it might be helpful to identify which TOCs are stilloperating older rolling stock and which are currently reporting toilet

waste discharges to the EA, and then to plot the scale and location ofsuch discharges against trackworker ill-health data. David Morrisrecognised there was a distinction between the risks to whichmaintenance fitters and trackworkers were exposed on this issue. IanProsser commented that Network Rail might already have data about thetrack locations where the incidence of toilet discharges is greatest.

7 Blacklisting of construction workers: h&s implications for railwaymaintenance/renewal work

7.1 Rob Miguel introduced this item, explaining the recent revelation by theinformational commissioner that there was evidence of a blacklist of

construction workers by contractors had three major implications for h&s:(i) TU safety representatives, who it is widely known play an important

role in effective h&s management, are likely to be included on theblacklist, thereby reducing the number of such representatives inthe workplace

(ii) Fear of being included on the blacklist discourages workers fromraising h&s concerns; and,

(iii) The very existence of the blacklist is detrimental to thedevelopment of an effective safety culture amongst contractors.

7.2 Rob called on ORR to issue a press statement similar to the one agreedby COGNIAC (one of HSEs advisory committees) strongly opposing thisblacklisting practice given its detrimental impact on h&s at work.


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7.3 David Morris said ORR welcomed the information commissionersdecision to name and shame those organisations involved in thisblacklisting practice. It was particularly disappointing that some of theorganisations so named were major players in the railway contractorssector, and showed how much remained to be done for excellence in

health and safety culture to be the norm in the railway industry. Asmentioned earlier (see 4 above) this was one of the key workstreams inORRs new corporate strategy, with worker involvement at its heart.Where there is evidence of h&s reps raising genuine h&s concerns beingregarded as troublemakers, ORR will take appropriate action. As animmediate next step, David agreed to liaise with HSE to ensure both h&sregulators had a joined up approach on this issue, and would report backat the next RIAC meeting on 2 June.

ACTION: David Morris (ORR)

7.4 Bob Rixham said there was a need for all railway industry employers to

agree to oppose this blacklisting practice. Ian Prosser replied thatORRs pressure on Network Rail to develop excellence in h&s cultureshould have a knock-on effect on Network Rails contractors too. DavidMorris added that there was growing evidence of the connectionbetween effective h&s culture, including genuine worker involvement,being aligned with efficient, effective and thereby profitableorganisations. Sadly, this business case for h&s was taking time to bewidely understood and acted upon.

8 Working time issues: railway maintenance workers driving motorvehicles to worksites

8.1 Rob Miguel introduced this item, explaining he had raised several times,most recently at RIAC in October 2007, the way in which working timeissues were not being managed properly in the railway industry. He citeda recent example of a road traffic accident fatality resulting from a workertravelling long distances to work sites from depots. He added there wasa difference between the theory of an organisations safety managementsystem, and how it worked in practice. For example, trackworkerslodging away from home with a 24 hour break between shifts travelhome during that break rather than staying at their lodgings, therebyincreasing their fatigue levels.

8.2 In response, David Morris said ORR has published guidance on theimportance of managing fatigue amongst safety critical workers,including specific reference to travel patterns. The principles in thatguidance apply to workers on non-safety critical roles too. He invited theTUs to forward ORR details of specific examples, and confirmed that onreceipt of such information ORR would investigate to assess whether therelevant employers are managing worker fatigue properly.

ACTION: Trade Unions

8.3 Mick Cash mentioned that at the last meeting of Network Rails JointSafety Committee he had expressed concern that Network Rail wasissuing guidance rather than standards about working time to its

contractors, and that the TUs had not been consulted on this guidance atthe development stage. Bob Rixham emphasised the seriousness of this


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issue, citing the recent media coverage of new Scandinavian researchshowing the link between female night shift workers and long-term ill-health outcomes. There was direct read across to the rail industry. IanProsser agreed to discuss with Network Rail, in particular why it haddeveloped guidance rather than standards in this area.

ACTION: Ian Prosser (ORR)8.4 Ian invited the TUs to forward specific examples of poor practice by

Network Rail and its contractors for managing staff working hours. Thiswould help inform ORRs planned inspection activity on this issue (seeSection 2.2 (4), page 25, of ORRs business plan 2009-10).

ACTION: Trade Unions

9TUCs Charter for change for worker safety representatives update on development of railway industry version

9.1 Paul Clyndes gave a powerpoint presentation (see Powerdocs #343292)outlining the genesis of the TUCs Charter for change for worker safetyrepresentatives, and RMTs agreement to produce a railway specificversion of that charter. In summary, the aim of the TUCs Charter andthe RMT version was to highlight the evidence linking a strong TUworker safety representatives presence with reduced incidence ofworkplace injuries and fatalities and thereby improved organisationalefficiency and effectiveness.

9.2 Paul C explained that TU concerns centred on recent employmentreview research showing that employer consultation of the workforcewas becoming less common 68% of all employers undertook such

consultation in 2004; only 44% in 2008.9.3 Paul C recognised that ORR had a published policy statement

encouraging meaningful worker involvement by railway employers, butexpressed concern that ORR currently sees worker consultationpredominantly as an industrial relations rather than an h&s issue. Heargued that 650,000 new cases of occupational ill-health per annumcould be reduced by improved worker involvement, and that recent RMTestimated costs of accidents and ill-health to the railway industry wereapproximately 350m per annum considerably more than ORRsestimate of 185m euros (based on CSI data of rolling stock in motionincidents). Paul C agreed to send David Morris details of how RMTdeveloped these estimates.

ACTION: Paul Clyndes (RMT)

9.4 Paul C concluded his presentation with a series of elevenrecommendations calling for action by ORR: four in the short-term: threein the medium-term; and, four in the longer-term.


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9.5 In response, Ian Prosser said ORRs new audit approach to inspectionwould address the first recommendation (greater enforcement by ORRof worker consultation regulations), and with regard to the thirdrecommendation (sanctions against employers who deny TU safetyrepresentatives paid release for training) David Morris reminded Paul C

about ORRs commitment to effective ORR/TU liaison at local level (see4.5 above). Turning to the longer-term recommendation seeking a newduty on enforcing authorities to respond to complaints from safetyrepresentatives, David emphasised that ORR already had a policy offollowing up all complaints, including those from TU worker safety reps,even though there was currently no legal duty to do so.

9.6 Both Paul C and Rob Miguel expressed concern that neither ORR norHSE had undertaken any enforcement action under the worker safetyregulations even though they were now more than 30 years old. Inresponse, Ian Prosser and David Morris questioned the effectiveness ofachieving increased worker involvement via enforcement action, arguinga better approach was for ORR to act as an honest broker to get thedifferent sides of industry to reach collective agreements on h&s issues.

9.7 Ian added that ORRs work under its new strategy to drive forwardimprovements in h&s culture will help address many of the issues raisedby the Charter because worker and TU consultation is a particular areaof culture that needs improvement. He explained he had raised thematter with Julian Lindfield, highlighting the need for Network Rail todevelop machinery for effective and meaningful worker and TUconsultation, and encouraging Julian to take action, initially byestablishing 1:1s with his counterparts on the main rail TUs.

9.8 Paul C explained he was planning further presentations on the Charterfor RIAC on 2 June and the RSSB Risk Management Forum in July. Ianthanked Paul C for stimulating an interesting and lively debate, indicatinghis own presentation to the Risk Management Forum would coverworker involvement too.

10 Recent enforcement and updates

10.1 Paul McCormack circulated to those present paper copies of the latestenforcement update paper for information, suggesting that if the TUrepresentatives had any detailed comments or queries, these were bestdiscussed outside the meeting.

10.2 By way of an initial response, the TU representatives queried theaccuracy of the information at paragraph 4 - the Prohibition Notice onSchweizer Electronic Ltd. Paul Mc agreed to check, and circulate arevised version of the update paper in due course.

ACTION: Secretariat (ORR) (Completed)Post-meeting note: A revised copy of the enforcement update paper wascirculated by Gary Taylor via email dated 2 April 2009.

11 Any other business

11.1 Simon Weller expressed concern about the recent decision by NationalExpress East Anglia (NXEA) of using their Driver Managers to act asGuards. This practice was part of a wider practice by TOCs across thecountry which had serious implications for the safety of ASLEF members


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and also the travelling public. Simon also expressed concern aboutNetwork Rails decision to defer a lot of track renewal and maintenancework to the latter years of CP4. This decision had serious implications forthe short-term financial viability of railway maintenance contractors; withNetwork Rail running the considerable risk that it will not have access to

sufficient railway maintenance contractors with the necessary skills andexperience to deliver all planned renewal and maintenance work to timeand budget by the end of CP4. In summary, Simon said Network Railsdeferral policy was having a serious impact on the current structure ofthe railway industry with 160 train drivers recently made redundant andat least a further 100 anticipated, and its long-term capacity to deliver theCP4 targets.

11.2 Mick Cash shared Simons concerns. He also cited a specific recentexample of a broken rail incident resulting directly from Network Railscurrent approach of deferring track renewal work. In that incident, apiece of rail dating from the late 1960s broke following a decision todefer renewal work based on data from Network Rails Ultrasonic testingtrain suggesting it was sound. The broken rail was caused by a footdefect. Mick considered this incident called into question the way inwhich Network Rail make assessments and judgments. And whilst onthe subject of the Ultrasonics testing train, Mick said he was stillawaiting ORRs report on the reliability of on-train ultrasonics data fromAllan Spence (Action point 7.2 of ORR/RMT bilateral of 13 February2009 refers).

11.3 Mick then outlined RMTs frustration at the time being taken to obtainfrom Network Rail the report on the track inspection regimes at the 150

sites across the network similar to Grayrigg. In addition, he expressedconcern about both the nature and short notice of the recentannouncement by Network Rail about track renewal deferrals andchanges to on-track machine contracts, all effective from 1 April. Thiswas further evidence of the nature and pace of change by Network Railhaving a detrimental impact, not only on the health, safety and welfare ofRMT members, but also other rail industry workers and the travellingpublic

11.4 In response, Ian Prosser and David Morris recognised that Network Railhas a reputational risk to manage in terms of how it organises trackrenewal and maintenance work. ORR will be assessing the robustnessof Network Rails decision making processes associated withmaintenance deferrals, as part of ORRs wider assessment of theNetwork Rail Delivery Plan 2009-10. Ian added that the types of footdefects mentioned by Mick were difficult to detect. If Mick sent him moredetails about the specific incident he would arrange for it to beinvestigated.

ACTION: Mick Cash (RMT)


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With regard to the Ultrasonic testing train report, Ian agreed to ask AllanSpence to arrange for the report to be sent to RMT as soon as it wasready.

ACTION: Allan Spence (ORR) (Completed)

Post-meeting note: Report sent to RMT on 9 April 2009

12 Date of Next Meeting

12.1 The Secretariat will be in touch to identify a date for the next meeting inOctober/November 2009.

ACTION: Secretariat (ORR)

Paul McCormackStakeholder Engagement Team30 April 2009

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