Has European-based legislation worked for the lifting industry?

The transition began with the Machinery Directive, which was a radical departure from previous legislation in several important ways. The objective of this type of Directive is to remove technical barriers to trade within the European market. It does so by setting essential health and safety requirements. The intention is that manufacturers whose products meet those requirements are able to place them on the market anywhere in Europe without being subject to further requirements from any member state. It applies to equipment placed on the European market for the first time irrespective of where in the world it is manufactured and, although it does not generally apply to second hand machinery, it does if such machinery is brought into Europe from outside.

The Directive came into force in 1992 but with a two-year transitional period. It was implemented in the UK by the Supply of Machinery (Safety) Regulations 1992 and subsequent amendments. Unlike the existing legislation, those regulations do not deal with use of the machinery. Hence the existing legislation was retained but with certain parts ‘dis-applied’. This led to a degree of confusion.

The situation persisted until the new legislation dealing with the use of the equipment came into force. In the context of lifting equipment, that occurred when an updated version of the Use of Work Equipment Directive was implemented by a new version of the Provision and Use of Work Equipment Regulations (PUWER), together with LOLER, in 1998.

Like the Machinery Directive, the Use of Work Equipment Directive is also risk based but with one important difference. The requirements of the Machinery Directive are the maximum which a member state can require, whereas the requirements of the Use of Work Equipment Directive are the minimum which must apply. The UK government, whilst being careful not to over-implement and place an unnecessary burden on industry, nevertheless was also careful not to reduce the previous standard.

From 1998 we have therefore had in place what should be two complimentary sets of regulations, one dealing with the supply side and the other with use. How have they affected the lifting equipment industry?

The Machinery Directive, through its ‘essential requirements,’ focussed on the problems; the solutions were left to industry in general, and the standards organisations in particular. The CEN Harmonised Standards have a special status, in that products made to them are deemed to comply with the ‘essential requirements’ in so far as they address them. They were seen as the best way forward and, in 1987, the industry embarked upon a very ambitious programme to create new European standards for virtually every type of lifting machine and lifting accessory.

Rather naively, we expected the majority of the programme to be finished by 1992, the date set for the completion of the single European market. We certainly underestimated the task and were not helped by a regular shifting of the goalposts. Moreover the style of standard was very different from that we had previously experienced.

Traditional British Standards were generally fully specified in terms of dimensions, materials, design formula etc. There was little or no room for innovation. International Standards, on the other hand, were generally performance based with a limited dimensional envelope and material requirements that were open to interpretation. Whilst they allowed for innovation, they tended to represent the lowest common denominator. It was certainly possible to make inferior and even unsafe products which were arguably within the standard.

By comparison, the drafting rules for European Standards require a performance based specification which identifies and addresses all the relevant hazards and eliminates or controls the risks to an acceptable level. The specification must allow for innovation and all the requirements must be verifiable by repeatable methods - either by reference to other standards or by methods detailed within the standard itself. In short, it should not be possible to manufacture an unsafe product within the standard.

Creating them has involved a lot of hard, expensive work, but the result is a new generation of high quality practical standards which have been widely accepted not only within Europe but throughout the world. European Standards were being written during the period when globalisation was gaining momentum and, for many manufacturers, became the first standards they could expect to be acceptable worldwide. They are now being extensively used as the basis for the next generation of International Standards, which will lead to dual numbered ISO EN standards. Overall, the practical, risk based ‘essential requirements’ of the Machinery Directive, combined with the innovative and essentially watertight Harmonised European Standards, have not just achieved the objective of removing technical barriers to trade. They have markedly improved the product specifications in a lasting way.

The Lifting Operations and Lifting Equipment Regulations also brought a new risk based approach. This recognised that many of the lifting accidents which occurred were the result of the way the equipment was used rather than faults with the equipment itself. Hence, compared to previous legislation, LOLER places much greater emphasis on planning and supervision. However the equipment itself is not neglected, with LOLER building upon the more general requirements of PUWER.

Regulation 10 of PUWER requires, in effect, that work equipment provided after the Machinery Directive came into force meets the ‘essential requirements’ referred to above. This is the main link between the supply and use legislation, although there is another in regulation 9 of LOLER. There are also requirements in PUWER applicable to older equipment to ensure a comparable level of safety. Between them, PUWER and LOLER emphasise the need for an adequate maintenance and in-service inspection regime rather than relying solely on periodic inspection - or thorough examination as it is called in LOLER.

As an alternative to the periodic thorough examination, LOLER allows an examination scheme. The main advantage of such a scheme is to tailor the examination to the amount and nature of use the equipment gets. Generally it is not suitable for lifting accessories but in fact users have been slow to exploit the advantages of it for cranes and other lifting machines.

LOLER is, however, a very practical piece of legislation which, if followed, genuinely provides a good standard of safety. Because of this, whilst it has no official status outside of the UK, LOLER has been adopted as good practice in many parts of the world. This is particularly true of the oil industry, which is familiar with the legislation from its UK operations.

All the above may appear to paint a rather rosy picture and, to a large extent, the overall picture is good. However there are some problems with both the legislation and the way it is followed. On the supply side, globalisation has resulted in the manufacture of many series produced items moving to low wage economies in the east. Initially such equipment was sourced by the established manufacturers who kept quality under control to protect their reputations. Subsequently, other players with little technical knowledge came into the market, and price became an ever more important factor. The result has been an influx of low cost, poor quality equipment which the reputable companies struggle to compete against. Unfortunately, the official response in the UK is reactive and no action is taken until an incident occurs.

The UK is a relatively open market, but that is not quite the case in other parts of Europe. Whilst manufacturers whose products meet the requirement are legally permitted to place them on the market there are still, in practice, reasons why users are unwilling to buy them without further ‘approval’ of some kind.

In the UK, many users have still not updated their purchasing procedures, fail to specify the new standards and continue to demand out of date and inappropriate documentation. There always has been a problem with the documentation required by the Machinery Directive, which seems to require an original document for each individual item. This is clearly impractical and uneconomical for high volume low value items. There is also a problem in the interface between the Directive and LOLER. However these are not insurmountable irritants. Working with the UK authorities, LEEA has produced guidance which adequately addresses most situations.

The same applies to the thorough examination reports required by LOLER; many users continue to demand what they were familiar with from a decade ago. This situation is steadily improving but it is taking a lot longer than it should. Furthermore, it is not helped by some sections of the industry which are themselves out of date or not willing to explain the changes to their customers.

A new Machinery Directive is now on the horizon. This is due to come into force at the end of 2009. It has addressed many of the acknowledged problems with the current Directive but regrettably some careless drafting has introduced several new and very significant ones. Fortunately, this time round, official guidance is already under preparation and will be issued with the legislation implementing the new Directive. Hopefully it will serve to clarify matters.

In conclusion, the formation of the single European market made it necessary to harmonise across Europe many historically very different legislative requirements. The approach taken by the European Directives has given rise to very practical legislation in the UK and some of the best quality product standards ever published. Those standards are accepted worldwide and many of the principles and even the details of the legislation have been adopted as good practice well outside its geographical jurisdiction. It has been a long journey so far and not without its problems. There is still some way to go, but overall I think it can be considered a success.