Meeting Between HM Chief Inspector of Railways and Trade Union General Secretaries Tuesday 31 March 2009 Office of Rail

Regulation One Kemble Street, London Present: Office of Rail Regulation Ian Prosser HM Chief Inspector of Railways David Morris Deputy Chief Inspector of Railways (Policy) Paul McCormack Manager, Non-Government Stakeholders ASLEF Simon Weller RMT Mick Cash Paul Clyndes

National Organiser Assistant General Secretary Health and Safety Officer

Unite the Union Amicus Section Bob Rixham Lead Industrial Officer Rob Miguel Health & Safety Officer TSSA David Chalkley 1 1.1 1.2 National Organiser (South)

Welcome and Introductions Ian Prosser welcomed everyone to the meeting and introductions were made round the table. A particular welcome was made to Simon Weller, the new National Organiser for ASLEF. Apologies had been received from Allan Spence (ORR), Caroline Wake (ORR), Gary Taylor (ORR), Dave Bennett (ASLEF), Keith Norman (ASLEF), and Gerry Doherty (TSSA). Minutes of the previous meeting The minutes of the previous meeting on 12 December 2008 had been circulated and agreed in advance of the meeting. Actions/matters arising Paul McCormack explained a revised version of the Actions Summary following the meeting of 21 April 2008 had been circulated to 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). Rob Miguel advised that Action 8.2 of the 21 April 2008 Actions Summary (ORR consultation of TUs regarding ROGS review) was still

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incomplete; he owed Helen Ralphson a further response about his concerns over the way in which workers who carried out safety critical work at maintenance depots were now protected. 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 the one in Action 3.1. Ian Prosser confirmed that all four TUs would be invited to send representatives to the next regular meeting with ORR to discuss matters associated with asbestos. The next meeting had been delayed by ORR restructuring (see 4 below). ACTION: Allan Spence (ORR) Whilst on the subject of asbestos, Paul Clyndes reported that Network Rail was planning to spend 17m in the next financial year to remove asbestos from cabinets in the Kent and East Sussex region as a precursor to a wider roll out across the country. All agreed this was a welcome development. Action 3.6 - David Morris clarified that Action 3.6 was still ongoing in that ORR awaited further details from the TUs about the industry-wide TU initiatives. ORR would then consider whether it was appropriate to participate; read across to the new ORR corporate strategy and sufficient resources would be the key considerations. ORR Corporate Strategy 2009-14 and the associated ORR internal restructuring Ian Prosser reminded those present that copies of the new strategy had been circulated at the last meeting, and that this latest meeting coincided with publication of ORRs business plan 2009-10. Paper copies of that plan were circulated to those present. Ian explained the plan was designed to translate the high level strategy into detailed activity to initiate delivery of its key objectives. He drew particular attention to page 25 of the plan - the activities associated with delivery of the second strategic theme (Excellence in health & safety culture and risk control), indicating the focus would be on signalling maintenance, trackworker safety in possessions, and following up the recommendations arising from the Grayrigg derailment. Ian then focused on the principles underpinning the restructuring of his Railway Safety Directorate (RSD) to facilitate the implementation of the new strategy. He made the following points about the work of the new Directorate: more systematic audit, as well as inspection, of dutyholders management systems, incident investigations and action tracking processes, both in the mainline railway and other parts of the industry; greater use of ORR powers to ensure that dutyholders measure their safety culture and identify and address weaknesses; use ORR influence, and if necessary take regulatory action, so that all dutyholders implement good practice for management of occupational health;

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use ORR powers to ensure the industry manages in an effective way the safety of the railway system as a whole, and the safety interfaces between 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 notably excellence in asset management, and development by the industry of the capabilities of its people.

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Ian said ORR inspectors will be more selective about what investigation activity they undertake, focussing on incidents where there are clear HSWA breaches and ORR can add value. The exception would be work-related deaths where ORR will continue to investigate incidents. He emphasised ORRs commitment to increasing the amount of Inspector time on pro-active inspection; designed to realise a significant change on safety culture by dutyholders. He added that where reactive investigation was merited, ORR will act speedily. Ian explained RSD will comprise a total of around 100 people, organised in three main teams: Allan Spence will lead a team of around 50 Inspectors based across the country focussed solely on Network Rail operations, and specifically tasked with undertaking vertical audits of Network Rail so RSD gets a good understanding of how the safety management system is being implemented from top to bottom on a particular part of the network; Caroline Wake will lead a team of around 25 Inspectors, again based across the country, focussed on TOCs, FOCs, LUL, and heritage/tram operators; and, David Morris will lead a policy team of around 30, coordinating the strategy, planning and system safety elements of the Directorates work, including monitoring the delivery of the HLOS safety metric, and RAIB recommendations handling.

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In response to a question from Simon Weller about the number of ORR Inspectors at a regional level in the new RSD structure, Paul McCormack confirmed ORRs previous commitment to circulate details, include contact details for individual Inspector teams, after it goes live on 14 April. In addition, David Morris emphasised ORRs ongoing commitment to effective ORR/Trade Union liaison at local level, and encouraged the Trade Unions to inform ORR of existing networks of Safety Reps with which ORRs Inspectors can engage. ACTION: Paul McCormack (ORR) (re: RSD Inspector contact details) (Completed) Post-meeting note: contact details sent with draft minutes, 30 April 2009 ACTION: Trade Unions (re: Safety Rep networks)

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With regard to the team assigned Network Rail, Bob Rixham welcomed the proposed vertical audits, as they would help to identify why well intentioned corporate h&s policies often breakdown when they implemented inconsistently by middle managers. Given the TUs previous concerns about the consultation process associated with the Periodic Review 2008, Mick Cash asked whether ORRs proposed review of dutyholders h&s performance would be informed by other stakeholders views. For example, would stakeholders be asked to comment on ORRs assessment of Network Rails recently published Business Delivery Plan 2009-10? David Morris explained that the formal rationale for ORRs review of that plan was to ensure it is fit for purpose to enable Network Rail to deliver the public commitment contained in the HLOS. As a result, the review was predominantly an internal ORR process. He agreed to check with his RPP colleagues the process associated with this work and report back to Mick. In the meantime, 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 Simon Weller suggested there was a potential weakness in the new RSD structure given the split between those ORR Inspectors looking at Network Rail and those targeted at TOCs/FOCs. Ian Prosser and David Morris said ORR recognised the need for the Inspectors in the different teams to communicate effectively with one another given the interrelationships between the different dutyholders. Indeed, ORR Inspectors will be assessing how individual dutyholders meet their duty to cooperate with one another, and Inspectors in the different teams will be co-located thereby encouraging information exchange about Network Rail and TOCs/FOCs h&s performance. David Chalkley questioned an apparent inconsistency in the key activities outlined in the ORR business plan associated with delivery of the excellence in h&s culture theme (page 25). Most were very specific to particular dutyholder activity, whereas Section 2.2 (4) seemed to imply ORR would only be checking network Rails working time protocol. David Morris said that was not the case. If Inspection activity in that area revealed particular issues that needed to be addressed, ORR would expect action by the relevant dutyholder(s). Revised Safety Directive Transposition Helen Ralphson, ORR Operational Policy Team Manager, gave a powerpoint presentation (see Powerdocs #341788) outlining the work currently being undertaken by ORR relating to the transposition of the revised Railway Safety Directive, and forthcoming plans to consult the TUs.

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The main provision of that Directive is the certification of Entities in Charge of Maintenance (ECMs) to ensure that freight wagons have a safe system of maintenance right across the European rail network. FOCs and private freight wagon owners are likely to become ECMs under the revised directive, with ECM certification in the UK undertaken by ORR or a third party accredited or recognised by ORR. Both the Directive itself, and the ECM certification scheme are due to come into force on 24 December 2010. Helen outlined the options currently being considered for the ECM certification scheme, and indicated an external stakeholders consultation group is being established by ORR to help inform ORRs decision about which 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/June 2009. Helens colleague, Steve Lee in ORRs legislative development team will be leading on this work going forward. In the meantime, the European Rail Agency has developed an informal ECM certification scheme governed by a MoU that will be signed by at least eight member states, although not the UK as it would require new legislation and it is more sensible to wait for the new Directive. In response to a request from Rob Miguel, Helen agreed to send him background information about this MoU. ACTION: Helen Ralphson (ORR) (Completed) Post-meeting note: MoU documentation sent to Rob Miguel by Gary Taylor via email dated 14 April 2009. Rob Miguel asked about the rationale underpinning the proposed ECM certification scheme. David Morris explained it was to remove the need for independent audit of private keepers, and to give infrastructure managers across the European rail network the necessary assurance that freight wagons are being properly maintained. Waste Exemption Review Exemption 31 (discharge from rolling stock) David Morris outlined the ongoing issue of discharges from toilet waste tanks on older passenger train rolling stock directly onto open running line and in stations, and the impact on trackworkers there. Specific regulations governing such controlled wastes are overseen by the Environment Agency (EA). There is currently a specific exemption (Exemption 31) for passenger trains. David explained that Defra had led consultation in late 2008 to review waste exemptions, including Exemption 31. He had submitted ORRs response in a letter dated 20 October 2008 (copy circulated with the meeting papers). In summary, ORR ultimately wanted an end to waste discharges. In the interim ORR wanted the EA to enforce the current regulations requiring TOCs to register their exemptions with the EA, and to inform the EA when, where and how often their rolling stock discharge toilet waste, and that they are taking steps to minimise such discharges. David added that Defra is planning a further round of consultation in April 2009 on a waste exemption guidance document, and asked the TUs to help 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 current Exemption 31. Rob Miguel questioned why ORR could not use its powers under HSWA to stop TOCs from discharging toilet waste onto running lines. In response, 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 had recently agreed with Paul Taylor (leading in Network Rail on this issue) the publication of a circular to all NR staff seeking examples of particularly bad practice. Mick Cash observed the scale of the problem was thankfully diminishing as new rolling stock had toilet waste retention tanks, although there was still a need to manage the hazards associated with maintaining such tanks. He suggested it might be helpful to identify which TOCs are still operating older rolling stock and which are currently reporting toilet waste discharges to the EA, and then to plot the scale and location of such discharges against trackworker ill-health data. David Morris recognised there was a distinction between the risks to which maintenance fitters and trackworkers were exposed on this issue. Ian Prosser commented that Network Rail might already have data about the track locations where the incidence of toilet discharges is greatest. Blacklisting of construction workers: h&s implications for railway maintenance/renewal work Rob Miguel introduced this item, explaining the recent revelation by the informational 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 the blacklist, thereby reducing the number of such representatives in the workplace (ii) Fear of being included on the blacklist discourages workers from raising h&s concerns; and, (iii) The very existence of the blacklist is detrimental to the development of an effective safety culture amongst contractors. Rob called on ORR to issue a press statement similar to the one agreed by COGNIAC (one of HSEs advisory committees) strongly opposing this blacklisting practice given its detrimental impact on h&s at work.

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David Morris said ORR welcomed the information commissioners decision to name and shame those organisations involved in this blacklisting practice. It was particularly disappointing that some of the organisations so named were major players in the railway contractors sector, and showed how much remained to be done for excellence in health and safety culture to be the norm in the railway industry. As mentioned earlier (see 4 above) this was one of the key workstreams in ORRs new corporate strategy, with worker involvement at its heart. Where there is evidence of h&s reps raising genuine h&s concerns being regarded as troublemakers, ORR will take appropriate action. As an immediate next step, David agreed to liaise with HSE to ensure both h&s regulators had a joined up approach on this issue, and would report back at the next RIAC meeting on 2 June. ACTION: David Morris (ORR) Bob Rixham said there was a need for all railway industry employers to agree to oppose this blacklisting practice. Ian Prosser replied that ORRs pressure on Network Rail to develop excellence in h&s culture should have a knock-on effect on Network Rails contractors too. David Morris added that there was growing evidence of the connection between effective h&s culture, including genuine worker involvement, being aligned with efficient, effective and thereby profitable organisations. Sadly, this business case for h&s was taking time to be widely understood and acted upon. Working time issues: railway maintenance workers driving motor vehicles to worksites Rob Miguel introduced this item, explaining he had raised several times, most recently at RIAC in October 2007, the way in which working time issues were not being managed properly in the railway industry. He cited a recent example of a road traffic accident fatality resulting from a worker travelling long distances to work sites from depots. He added there was a difference between the theory of an organisations safety management system, and how it worked in practice. For example, trackworkers lodging away from home with a 24 hour break between shifts travel home during that break rather than staying at their lodgings, thereby increasing their fatigue levels. In response, David Morris said ORR has published guidance on the importance of managing fatigue amongst safety critical workers, including specific reference to travel patterns. The principles in that guidance apply to workers on non-safety critical roles too. He invited the TUs to forward ORR details of specific examples, and confirmed that on receipt of such information ORR would investigate to assess whether the relevant employers are managing worker fatigue properly. ACTION: Trade Unions Mick Cash mentioned that at the last meeting of Network Rails Joint Safety Committee he had expressed concern that Network Rail was issuing guidance rather than standards about working time to its contractors, and that the TUs had not been consulted on this guidance at the development stage. Bob Rixham emphasised the seriousness of this

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issue, citing the recent media coverage of new Scandinavian research showing the link between female night shift workers and long-term illhealth outcomes. There was direct read across to the rail industry. Ian Prosser agreed to discuss with Network Rail, in particular why it had developed guidance rather than standards in this area. ACTION: Ian Prosser (ORR) Ian invited the TUs to forward specific examples of poor practice by Network Rail and its contractors for managing staff working hours. This would help inform ORRs planned inspection activity on this issue (see Section 2.2 (4), page 25, of ORRs business plan 2009-10). ACTION: Trade Unions TUCs Charter for change for worker safety representatives update on development of railway industry version Paul Clyndes gave a powerpoint presentation (see Powerdocs #343292) outlining the genesis of the TUCs Charter for change for worker safety representatives, and RMTs agreement to produce a railway specific version of that charter. In summary, the aim of the TUCs Charter and the RMT version was to highlight the evidence linking a strong TU worker safety representatives presence with reduced incidence of workplace injuries and fatalities and thereby improved organisational efficiency and effectiveness. Paul C explained that TU concerns centred on recent employment review research showing that employer consultation of the workforce was becoming less common 68% of all employers undertook such consultation in 2004; only 44% in 2008. Paul C recognised that ORR had a published policy statement encouraging meaningful worker involvement by railway employers, but expressed concern that ORR currently sees worker consultation predominantly as an industrial relations rather than an h&s issue. He argued that 650,000 new cases of occupational ill-health per annum could be reduced by improved worker involvement, and that recent RMT estimated costs of accidents and ill-health to the railway industry were approximately 350m per annum considerably more than ORRs estimate of 185m euros (based on CSI data of rolling stock in motion incidents). Paul C agreed to send David Morris details of how RMT developed these estimates. ACTION: Paul Clyndes (RMT) Paul C concluded his presentation with a series of eleven recommendations calling for action by ORR: four in the short-term: three in the medium-term; and, four in the longer-term.

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In response, Ian Prosser said ORRs new audit approach to inspection would address the first recommendation (greater enforcement by ORR of worker consultation regulations), and with regard to the third recommendation (sanctions against employers who deny TU safety representatives paid release for training) David Morris reminded Paul C about ORRs commitment to effective ORR/TU liaison at local level (see 4.5 above). Turning to the longer-term recommendation seeking a new duty on enforcing authorities to respond to complaints from safety representatives, David emphasised that ORR already had a policy of following up all complaints, including those from TU worker safety reps, even though there was currently no legal duty to do so. Both Paul C and Rob Miguel expressed concern that neither ORR nor HSE had undertaken any enforcement action under the worker safety regulations even though they were now more than 30 years old. In response, Ian Prosser and David Morris questioned the effectiveness of achieving increased worker involvement via enforcement action, arguing a better approach was for ORR to act as an honest broker to get the different sides of industry to reach collective agreements on h&s issues. Ian added that ORRs work under its new strategy to drive forward improvements in h&s culture will help address many of the issues raised by the Charter because worker and TU consultation is a particular area of culture that needs improvement. He explained he had raised the matter with Julian Lindfield, highlighting the need for Network Rail to develop machinery for effective and meaningful worker and TU consultation, and encouraging Julian to take action, initially by establishing 1:1s with his counterparts on the main rail TUs. Paul C explained he was planning further presentations on the Charter for RIAC on 2 June and the RSSB Risk Management Forum in July. Ian thanked Paul C for stimulating an interesting and lively debate, indicating his own presentation to the Risk Management Forum would cover worker involvement too. Recent enforcement and updates Paul McCormack circulated to those present paper copies of the latest enforcement update paper for information, suggesting that if the TU representatives had any detailed comments or queries, these were best discussed outside the meeting. By way of an initial response, the TU representatives queried the accuracy of the information at paragraph 4 - the Prohibition Notice on Schweizer Electronic Ltd. Paul Mc agreed to check, and circulate a revised version of the update paper in due course. ACTION: Secretariat (ORR) (Completed) Post-meeting note: A revised copy of the enforcement update paper was circulated by Gary Taylor via email dated 2 April 2009. Any other business Simon Weller expressed concern about the recent decision by National Express East Anglia (NXEA) of using their Driver Managers to act as Guards. This practice was part of a wider practice by TOCs across the country which had serious implications for the safety of ASLEF members
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and also the travelling public. Simon also expressed concern about Network Rails decision to defer a lot of track renewal and maintenance work to the latter years of CP4. This decision had serious implications for the short-term financial viability of railway maintenance contractors; with Network Rail running the considerable risk that it will not have access to sufficient railway maintenance contractors with the necessary skills and experience to deliver all planned renewal and maintenance work to time and budget by the end of CP4. In summary, Simon said Network Rails deferral policy was having a serious impact on the current structure of the railway industry with 160 train drivers recently made redundant and at least a further 100 anticipated, and its long-term capacity to deliver the CP4 targets. Mick Cash shared Simons concerns. He also cited a specific recent example of a broken rail incident resulting directly from Network Rails current approach of deferring track renewal work. In that incident, a piece of rail dating from the late 1960s broke following a decision to defer renewal work based on data from Network Rails Ultrasonic testing train suggesting it was sound. The broken rail was caused by a foot defect. Mick considered this incident called into question the way in which Network Rail make assessments and judgments. And whilst on the subject of the Ultrasonics testing train, Mick said he was still awaiting ORRs report on the reliability of on-train ultrasonics data from Allan Spence (Action point 7.2 of ORR/RMT bilateral of 13 February 2009 refers). Mick then outlined RMTs frustration at the time being taken to obtain from Network Rail the report on the track inspection regimes at the 150 sites across the network similar to Grayrigg. In addition, he expressed concern about both the nature and short notice of the recent announcement by Network Rail about track renewal deferrals and changes to on-track machine contracts, all effective from 1 April. This was further evidence of the nature and pace of change by Network Rail having a detrimental impact, not only on the health, safety and welfare of RMT members, but also other rail industry workers and the travelling public In response, Ian Prosser and David Morris recognised that Network Rail has a reputational risk to manage in terms of how it organises track renewal and maintenance work. ORR will be assessing the robustness of Network Rails decision making processes associated with maintenance deferrals, as part of ORRs wider assessment of the Network Rail Delivery Plan 2009-10. Ian added that the types of foot defects mentioned by Mick were difficult to detect. If Mick sent him more details about the specific incident he would arrange for it to be investigated. ACTION: Mick Cash (RMT)

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With regard to the Ultrasonic testing train report, Ian agreed to ask Allan Spence to arrange for the report to be sent to RMT as soon as it was ready. ACTION: Allan Spence (ORR) (Completed) Post-meeting note: Report sent to RMT on 9 April 2009

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Date of Next Meeting The Secretariat will be in touch to identify a date for the next meeting in October/November 2009. ACTION: Secretariat (ORR)

Paul McCormack Stakeholder Engagement Team 30 April 2009

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