New Safety, Health and Welfare at Work Bill Published

On the Spot Fines

An innovation in the Bill will provide for the imposition of on-the-spot fines on either employers or employees. It enables the Minister to make Regulations for a limited range of clearly defined situations where employers or employees are found to be in clear breach of safety regulations, to be liable for an on-the-spot fine, which if paid within a defined period no prosecution will ensue. The amount of the fine will start at €100 which will also be defined in the Regulations. The amount of the fine may be increased over time to €1,000.

Publication of Names

The Bill will provide for the Health and Safety Authority to compile a list of the names of persons,

• on whom a fine or other penalty was imposed by the Courts,
• on whom a prohibition notice was served, and
• in respect of whom an interim or interlocutory order was made by a Court.

The Authority may publish that list.

Penalties

There are two levels of prosecution for offences under the Bill:-

• summary prosecution in the District Courts for relatively minor offences, and
• prosecution on indictment in the Circuit Courts for very serious offences.

The maximum fine in the District Court on summary conviction is €3,000, 6 months imprisonment or both. The Bill provides in the case of conviction on indictment in the Circuit Court for the imposition of a fine of up to €3million or imprisonment for up to two years, or both.

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, or,

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.

General Duties of Employers

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 .

Risk Assessment

Every employer must identify the hazards in the place of work, known as a Risk Assessment.

Safety Statement

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. Under a new requirement it will have to be reviewed annually.

A novel feature is 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 likely beneficiaries will be in the farming sector and small businesses, for example, in the maintenance and service sectors.

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 Bill 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 Bill 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 Employment Appeals Tribunal.

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.

Prohibition Notice

If an inspector encounters a risk of very serious injury in a workplace he or she can serve a prohibition notice. This will have the effect of stopping the work activity until the matter has been remedied.

An employer may appeal to the Courts against either an Improvement or Prohibition Notice.

Liability of Directors and Bodies Corporate

Where an offence under the Bill is proved to have been committed with the consent or connivance or can be attributed to any neglect on the part of a director, manager or other officer of a company that person as well as the company will be guilty of an offence and liable to be proceeded against.

ENDS/LA 81