Safety, Health & Welfare
SAFETY, HEALTH AND WELFARE AT WORK
The Safety, Health and Welfare at Work Act, 1989 extended legislative
protection in safety, health and welfare matters to include all places of
work and all employers, employees and the self-employed. Up to 1989
those covered were confined to the 20% of the workforce employed in
manufacturing, construction, mines and quarries.
The new sectors coming under health and safety legislation for the first
time include agriculture, forestry, health services, fishing, civil and
public service and education.
The emphasis is on preventing accidents and ill-health from occurring
by identifying workplace hazards and putting appropriate safeguards
in place.
Under the Act, obligations are placed upon employers, employees and
the self-employed to contribute to ensuring that their workplace and
systems of work are safe. Certain obligations are also placed on those
designing, importing, supplying or manufacturing articles or
substances for use at work.
The Act provided for the establishment of the National Authority of
Occupational Safety and Health (often abbreviated to the Health and
Safety Authority - HSA). This is a tripartite body representative of
workers, employers and the State, which is charged with responsibility
for the administration of the occupational safety and health legislation.
The primary functions of the Authority are to ensure an effective
system of enforcement of health and safety legislation and to provide
information and advice relating to the prevention of accidents and
ill-health at work through training and information activities. Through
its inspectors the Authority monitors the observance of legislation at
workplaces and applies a range of enforcement measures up to and
including prosecution. It also provides information and advice on the
prevention of accidents and ill health at work.
The coming into effect of the Safety, Health and Welfare at Work
(General Application) Regulations, 1993 (S.I. 44 of 1993), which
implement the new EC 'Framework' Directive together with a number
of associated directives, represented a significant enhancement of the
provisions of the 1989 Act.
MAIN PROVISION OF THE SAFETY HEALTH AND WELFARE AT WORK ACT 2005
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The Safety, Health and Welfare at Work Act 2005 represents a
modernisation of our occupational health and safety laws and it sets the
scene for achieving further improvements in the national record on safety
and health over the next few decades.
It’s primary focus is on the prevention of workplace accidents, illnesses
and dangerous occurrences and it provides also for significantly increased
fines and penalties aimed at deterring the minority who continue to flout
safety and health laws.
The Act effectively began its journey in the early 1980s when its first
manifestation, the Safety, Health and Welfare at Work Act 1989 Act
applied safety and health laws for the first time to all Irish employments.
That Act implemented recommendations made by a tripartite Commission
of Inquiry into occupational safety and health, chaired at the time by
Mr Justice Barrington. The introduction of the 1989 Act coincided with
the recognition internationally that the prevention of accidents and ill
health at work was the new way forward, rather than the reactive
approach, through enforcement alone, which was in vogue prior to that.
Significant progress was made based on the 1989 Act and there is
now a greatly increased awareness of occupational safety and health
amongst employers and Irish workers and preventive measures are in
place in many employments. This progress was made from the efforts
of employers, workers, the tripartite Health and Safety Authority and
other stakeholders.
Occupational safety and health has been a significant element of social
policy in the European Union over the past 25 years. Starting with the
EU framework Directive on safety and health adopted in 1989, there is
now a considerable range of Directives in place covering particular
employment sectors or risk groups. All of these Directives have been
implemented in Irish law under the auspices of the 1989 Act and will of
course be continued by the new Act.
This new Act is framework in nature, focusing on broad general duties
and the organisational and structural arrangements necessary to achieve
better safety and health.
IMPORTANT ELEMENTS OF THE ACT
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One of the aims of the Act is to encourage a responsible attitude on the
part of both employers and employees. A system of on-the-spot fines by
inspectors is provided for in Section 79 which provides that the level
of on-the-spot fine, not to exceed €1000, will be detailed in Regulations.
The Minister will be proposing a relatively low fine initially. He will identify
in regulations the employment sectors and the minor offences to which
this will apply. The Authority will not initiate a prosecution before the due
date of payment of an on-the-spot fine and, if the payment is made in
time, no prosecution will be launched. If a prosecution is taken, the onus
is on the accused to prove that payment has been made.
Under the heading of duties of employees, in general employees must,
- comply with relevant safety and health laws,
- not be under the influence of an intoxicant at the place of work to the
extent that the state he or she is in is likely to endanger his or her own
safety, health or welfare at work or that of any other person.
- not engage in improper conduct or behaviour,
- wear personal protective clothing where necessary,
- cooperate with their employer and look out for one another, and
- not do anything which would place themselves or others at risk.
Where an employee is working in a safety critical situation, he or she,
subject to regulations, may be required to undergo a periodic medical
assessment of fitness to work.
There has been a certain level of concern expressed and not an
insignificant amount of misinformation about one of the provisions of
Section 13, that relate to possible tests for intoxicants. The Minister
has stated on a number of occasions that it is only in particular
circumstances or sectors that regulations may set down requirements
whereby an employee must, if reasonably required by his or her
employer, submit to independent tests by a competent person which
are appropriate, reasonable and proportionate.
There will be widespread consultation on these regulations.
On the matter of Safety Statements, it will continue to be a requirement
on every employer to have a written Safety Statement, which identifies
the risks and hazards in the place of work.
Safety Statements of course will be informed by risk assessments which
will be based on identification and assessment of all hazards in a
workplace. Both risk assessments and safety statements will have to
be kept up to date
In the new Act the Minister has moved to reduce the onus on small
business and the farming sector and small businesses by providing
that an employer with three or less employees can meet the
Safety Statement requirement by adhering to a special Code of
Practice to be developed by the Health and Safety Authority for a
particular industry or sector.
The Act, in Section 77 provides for two categories of offences.
The first category applies to less serious matters and the second
category covers all of the more serious offences under health and
safety laws.
The Bill (Section 78) provides for a fine under summary jurisdiction
not exceeding €3,000 for a person guilty of an offence under the
first category of offences set out in Section 77 applying to less
serious offences. A person guilty of any other offence set out in
Section 77 is liable, on summary conviction, to a fine not exceeding
€3,000 or imprisonment up to 6 months or both. On conviction on
indictment for a more serious offence, the maximum fine is €3 million
or imprisonment for up to 2 years or both.
In addition, the person convicted can be ordered to pay the
Authority’s costs and expenses.
Section 80 makes explicit the responsibilities of directors and
managers. Primary responsibility for worker safety and health falls
on employers, including in private companies and in the public
sector, because it is they, in effect, who create the risks. Company
directors and managers therefore carry a significant social responsibility
to protect safety and health.
Section 80 adopts an evidence-based approach. It provides that
when an offence under health and safety laws is committed by an
undertaking and the acts involved were authorised or consented
to or were attributable to connivance or neglect on the part of a
director, manager or other similar officer in the undertaking, both the
person and the undertaking will be guilty of an offence and liable to
be proceeded against and punished as if the person was guilty of
the offence committed by the undertaking. If it is proven in such a
case that the person’s duties included making decisions that affected
the management of the undertaking, it is presumed, until the contrary
is proved, that the acts which resulted in the offence were authorised,
consented to or attributable to connivance or neglect on the part of
that person.
Other important elements of the Act:-
General Duties of Employees
In general employees must,
- comply with relevant safety and health laws,
- not be under the influence of an intoxicant at the place of work;
and in that regard submit to an appropriate test, if reasonably required
by their employer,
- not engage in improper conduct or behaviour,
- wear personal protective clothing where necessary,
- cooperate with their employer and look out for one another, and
- not do anything which would place themselves or others at risk.
Testing for intoxicants will be regulated by the Minister and must be
carried out by a registered medical practitioner. There are two
situations in which testing will apply under the Bill -
Firstly, if an employee appears to be under the influence of an
intoxicant and in such a state as to endanger his/her own safety or
the safety of others, (this particular provision is one of the many which
will be subject to regulations before it comes into operation)
Secondly, where an employee is working in a safety critical situation,
he or she may be required to undergo a periodic medical assessment
of fitness to work.
It will continue to be the duty of every employer to do everything he or
she can, as far as reasonably practicable, to ensure the safety, health
and welfare of his or her employees. The list of specific duties and
responsibilities on employers will include responsibility for ensuring
adequate instruction and training, without loss of earnings to employees.
Employers must also ensure, as far as reasonably practicable, that
others at the place of work, not being employees, are not exposed to
risks to their safety , health or welfare .
JOINT SAFETY AND HEALTH AGREEMENTS
A new feature, which will provide that where employers and trade
unions get together and agree practical guidance on health and
safety in an industry or sector, that agreement can be recognised
by the HSA and taken account of in enforcement .
Designers, Manufacturers, Importers
They must ensure, as far as reasonably practicable, that anything
which they design, manufacture or import is properly tested and safe
and that adequate information is provided to ensure safe and proper
use.
Construction of Places of Work
A new provision in the Act provides that persons who commission,
procure or construct a place of work must appoint a competent
person to ensure that construction is carried out safely and properly
and without risk to health or safety.
Protection against Dismissal and Penalisation
Another new provision in the Act will ensure that employees have
an avenue of appeal against any form of penalisation in their
employment, which results from carrying out their duty in regard to
safety matters.
They may appeal to a Rights Commissioner for a determination.
In the event of a further appeal, this can be heard by the Labour
Court.
It is expected that the use of the existing employment appeals
machinery will ensure order and fairness in dealing with matters
which give rise to dispute at the place of employment.
Safety Representatives
As is still the case, employees will continue to be entitled to select
and appoint Safety Representatives, who will have wide powers to,
- inspect,
- investigate accidents or dangerous occurrences,
- accompany a HSA inspector on an inspection
- make oral and written submissions, etc
An employer must consider representations from a Safety Representative.
Advisory Committees
The Health and Safety Authority may establish Advisory Committees
to advise in relation to any of its functions. This is intended to provide
a broad base for consultation with all sectoral interests in relation to
any matter under consideration.
Codes of Practice
Codes of Practice exist for the purpose of regulating safety and other
procedures and activities. A failure to observe a Code of Practice,
which leads to an accident and subsequent prosecution, will be
admissible as evidence in a Court.
Improvement Plan
Where an inspector comes across work activities which involve risk
to safety, health or welfare he or she can give written direction
requiring the submission of an improvement plan.
