Second Stage Speech on the Safety, Health and Welfare at Work Bill 2004

On Thursday 14^th October 2004 in Dáil Éireann

CHECK AGAINST DELIVERY

I move that the Bill be read a second time.

Introduction

The Safety, Health and Welfare at Work Bill 2004 represents a modernisation of our occupational health and safety laws. It is a significant piece of social legislation, affirming the Government’s interest in ensuring that labour law is kept up to date and relevant. Its publication in 2004 by Frank Fahey, coinciding with the establishment of the Personal Injuries Assessment Board (PIAB) makes this a significant year in which both compensation and prevention are seriously addressed.

The Bill updates and amends the provisions of the Safety, Health and Welfare at Work Act 1989 which was steered through the Oireachtas by the Taoiseach, then Minister for Labour. The Bill consolidates safety, health and welfare primary legislation into one statute and includes provisions of the so-called framework Directive 89/391 on safety and health and the Directive on fixed term and temporary employees.

While the primary focus in the Bill is on the prevention of workplace accidents, illnesses and dangerous occurrences, it provides also for significantly increased fines and penalties aimed at deterring the minority who continue to flout safety and health laws. The Bill includes a scheme, for which Regulations will be necessary, under which on-the-spot fines can be introduced for minor safety and health offences. It also provides that Directors and Managers in companies can be held liable to prosecution if they are complicit in deaths and accidents at work.

This Bill sets the scene for achieving further improvements in the national record on safety and health over the next few decades. Presentation of the legal requirements in the Bill is improved and simpler language is used where possible so as to help both employers and employees to understand its content. The Bill includes a basis for reviewing the remaining older statutes on safety and health, leading to their possible repeal and replacement with modern regulations made under the Bill.

The Bill includes some additional new duties on both employers and employees and strikes a balance between the roles and duties to be placed on both employers and workers. It includes important new protection for employees against penalisation for exercising rights or duties related to safety and health at work. It contains new provisions on safety consultation between employers and employees, including new supports for safety representatives and the recognition of safety committees.

It updates the rules on corporate governance of the Health and Safety Authority.

Background

It is useful to reflect on the background of this legislation. The 1989 Act applied safety and health laws for the first time to all Irish employments. It 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. The efforts of employers, workers, the Health and Safety Authority and other stakeholders have brought about a reduction in the rate of deaths and accidents at work in the lifetime of the 1989 Act, but more can be done and there continues to be an unacceptably high level of deaths and accidents at work.

In 2002, the latest year for which figures are available from the Central Statistics Office, the national estimate is that 117,800 persons suffered injury at work or occupational illness, arising from work activities, resulting in 3.16 million workdays lost among those in employment (Source: Quarterly National Household Survey Q1 2003). This compares, for instance with 21,000 days lost to industrial disputes in 2002. Indeed days lost to industrial accidents and illness in 2002 alone exceeded those lost through industrial disputes over the last 10 years. The rate of injury and illness amongst those employed decreased by 15% between 1999 and 2002, despite the growth in employment. However, the human cost arising from death, pain and suffering undoubtedly makes the case for ensuring that our social legislation in this area is relevant to changing conditions of work.

The most common injuries reported to the Health and Safety Authority for all employment sectors were injuries involving handling, lifting and carrying, at 34% and slips, trips and falls, at 26%. In the public services, defence and health sectors, the next most common incident was violence in the workplace. The most common body parts injured were the back and spine, at 26%, fingers (13%), legs (12%) and hands (9%). The most common injuries were sprains, at 33%, bruising, at 23%, open wounds, at 15%, and closed fractures, at 13%. Occupational illnesses tend not to be reported to the Health and Safety Authority and this is an issue I would like to address when I review the regulations which apply.

In 2003, 65 people died arising from work activities. This, though it represents a reduction of 25% in the rate of deaths at work since 1998, is unacceptable. No death at work is acceptable and we need further measures, in the form of the provisions of this Bill to bring about further reductions in deaths at work.

It is particularly relevant that there are now 1.9 million people employed in our economy, as compared to 1.2million people in 1989, many of whom by now would have left the workforce. It is important therefore that this Bill be used as a vehicle to re-launch and promote worker health and safety and to focus on the well-being of the many people who have joined the workforce particularly in this time of economic success.

While the reduction of accidents and ill health at work is an important social goal considering the pain and suffering caused to individuals and their families, there is also a very important economic factor. A range of costs accrue to the economy from the number of people injured at work. There are direct costs to the State’s health services and to social insurance. There are costs to employers including insurance costs, lost time and lost production and lost orders. Injuries and ill-health at work are conservatively estimated to cost the economy up to €1.6bn each year. The absence of a key worker through injury from a small and medium size company could have disastrous results for the company and the other workers. Taking additional measures to encourage reductions in accidents and illnesses at work makes good economic and business sense.

Occupational safety and health has been a significant element of social policy in the European Union over the past 25 years. Starting with the so-called 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. We played our part in the negotiations on these Directives, guided by the principle that they should be workable and not hold back the development of small companies.

Minister Tom Kitt, charged the Authority with the task of reviewing the 1989 Act. I again thank the Board of the Authority, under its Chairperson Mr Frank Cunneen and Mr Joe Hegarty, the Chairperson of the review group, for its comprehensive report and recommendations, the vast bulk of which I have found possible to cover in the Bill.

I look forward to the continued cooperation and commitment of the various stakeholders in giving full effect to the Bill when it is enacted.

The 1989 Act, and the new Bill, are framework in nature, focusing on broad general duties and the organisational and structural arrangements necessary to achieve better safety and health. The regulations implementing directives put flesh on the detailed requirements needed to identify and deal with specific hazards in the workplace. A welcome conclusion to our efforts was evident from a report by Eurostat published this year which showed that Ireland had the lowest rate of accidents at work amongst the then 15 member States of the European Union. We are fifth in the league table as regards deaths at work and this must be improved upon. We can and must do better, both from a social point of view and as regards maintaining our competitiveness, by reducing the costs which can flow from accidents and illnesses in the workplace.

A report published by the European Commission this year on the implementation of a number of the health and safety Directives illustrated that there is still a lack of awareness about safety and health in small companies and that a lot of work needs to be done through information and training measures. This report also pointed to a poor level of compliance in the public sector across the European Union. The public sector in Ireland employs many people in the health services, in education and so forth and I will be looking towards them as regards making significant improvements in our national record.

Content of the Bill

Coming to the content of the Bill, I should like to outline its main features.

One of the aims of the Bill is to encourage a responsible attitude on the part of both employers and employees. I believe it appropriate to provide for a system of on-the-spot fines by inspectors. Section 79 provides that the level of on-the-spot fine, not to exceed €1000, will be detailed in Regulations. I will be proposing a relatively low fine initially. I 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.

In Section 13 , 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 about one of the provisions of Section 13 , that relate to possible tests for intoxicants. 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. 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.  This will reduce the onus on business and the likely beneficiaries will be in the farming sector and small businesses, for example, in the maintenance and service sectors.

The Bill, 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.

I welcome very much the increased recognition given by the courts to the seriousness of committing safety and health offences and the increases in the level of fines in recent years. I feel it is necessary and appropriate to reflect this trend in the Bill so as to send a clear message to those tempted not to comply. There is too much at stake. 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.

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. Responsibility begins at the top. Company directors and managers therefore carry a significant social responsibility to protect safety and health. In 2003, eleven convictions were obtained against directors, managers (and employees). I believe that, by placing greater emphasis on this responsibility in this Bill, it will alert directors and managers to their responsibilities. It will help focus their minds on compliance with the requirements on companies to ensure competent persons are available to advise on health and safety issues and to implement safety measures.

Section 80 makes explicit the responsibilities of directors and managers. It 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.

Going back to other details of the Bill, a full set of definitions is set out in Section 2, including important new definitions of the terms “competent person” and “reasonably practicable”. These definitions are included, in part, so as to satisfy concerns of the European Commission in relation to implementation of the framework Directive. The definition of competent person provides a basis for the orderly recognition of various qualifications in safety and health introduced over the past two decades. The term reasonably practicable is used quite rightly in the Bill, and also in the 1989 Act, to qualify the broad based duties on employers which stem from the common law duties of care which are difficult to interpret in absolute terms. The new definition is focused around compliance with current best standards in safety and health.

Section 7 provides that health and safety must be complied with by self-employed persons as if they were employers and as if they were their own employees. There are many who are self-employed including in construction and agriculture.

Part 2 of the Bill sets out the duties which are appropriate to employers, employees and others who can influence or effect safety, health and welfare in the workplace.

Section 8 sets out the general duties of every employer to ensure, so far as is reasonably practicable, the safety, health and welfare of employees. These include duties in regard to the management and conduct of work, preventing improper conduct or behaviour, providing safe workplaces, safe means of access and egress, safe plant and machinery, providing articles and substances that are safe to work with, protecting against noise, vibration or radiation and providing safe systems of work. The employer must also provide welfare facilities and the necessary information, instruction, training and supervision to ensure safety and health.

The employer must also decide on and implement any safety, health and welfare measures which are necessary. The employer must provide protective clothing and equipment as appropriate and have emergency plans in place. Employers may be required by regulations to report to the Authority accidents to employees and dangerous occurrences. There are regulations already in place to support this requirement. The employer’s duties extend also to fixed-term contract or temporary contract employees. Finally, under Section 8 employers cannot charge employees for safety and health measures.

The availability of good information is critical to the avoidance of accidents and ill health at work. By now, a great deal of practical information on how to deal with workplace hazards is available, including from the Health and Safety Authority. Section 9 sets out in greater detail the types of information on safety, health and welfare required to be given by employers to employees under Section 8. The information must be in a form, manner and language that can be understood. This will also help protect immigrant workers who contribute to our economy. Some work on language versions of guidance documents is underway in the Health and Safety Authority. It must include information on hazards, risks and measures taken as regards safety, health and welfare and the names of emergency staff and safety representatives. Employees of another employer working in the place of work must also be informed and there is a duty on such employees to cooperate with one another.

The competent persons which must be appointed by the employer under Section 18 and safety representatives, if any, must be given additional information on risk assessment, and on accidents and dangerous occurrences. The employer must also give fixed-term and temporary employees information on any potential risk, on health surveillance and on any special skills required for the job. An employer who hires an employee through a temporary employment business must inform them about the skills required for the job and its specific features and ensure the information is passed on to the employees. The temporary employment business is obliged to give the same information to employees. These are important provisions considering many people are recruited through employment agencies.

Analyses of accidents and illnesses at work show that very often they happen where workers are not supervised or given instructions or training in how to work safely. Young workers are particularly vulnerable in this respect. Section 10 sets out the specific requirements as regards the instruction, training and supervision of employees by employers in support of the general duty in Section 8. Instruction and training must be given in a form, manner and language that can be understood. Employees must also be given training in safety and health and time off from work and at no cost to themselves. Training must include information and instructions in the job to be carried out and emergency measures. In assigning an employee to a job, the employer must take account of his or her physical and mental capabilities.

In the case of groups of particularly sensitive employees and employees covered by specific safety and health legislation, such as pregnant women or young workers, the employer must ensure they are protected against the specific dangers involved.

In cases where legislation requires specific health and safety training, such as in construction, employees must be released for training without loss of pay.

Section 11 provides for the measures to be taken by the employer in emergencies and in the case of serious and imminent danger, in support of the general duties on employers in Section 8 to have plans and procedures for emergencies. The measures must cover first aid, fire fighting and the evacuation of employees, and others present in the workplace, as well as contacts with the emergency services and the designation of employees to carry out the emergency plans.

Section 12 provides that an employer must manage and conduct business, so far as is reasonably practicable, so that other persons present in the place of work while work is in progress, are not exposed to risks to their safety, health or welfare. This would apply, for instance, to visitors or delivery people entering a business and recognises that the employer is the person in control.

There is now a far greater recognition of the problems caused to workers by stress, violence and bullying at work. Guidelines and codes of practice have been published on these issues. These issues need to be recognised in our legislation. In line with a corresponding duty on employers in Section 8 , an employee must not engage in improper conduct or other behaviour which could endanger his or her safety, health and welfare at work or that of another person.

Section 14, which applies to any person, specifies that no person should intentionally, recklessly or without good cause, interfere with, misuse or damage any thing provided to protect the safety, health and welfare of persons at work. This means not interfering with safety signs or safety devices. The section also provides that no person shall place at risk the safety, health or welfare of persons in connection with work activities.

Under Section 15, a landlord who controls premises used as a place of work must ensure, so far as is reasonably practicable, that the place of work, access and egress and any article or substance present is safe and without risk to health.

Section 16 places duties on any person who designs, manufactures, imports or supplies any article, or substance used at work to ensure that, so far as is reasonably practicable, it can be used safely and without risk to health at work. It must also comply with any relevant legislation which implements a Directive of the European Union, and be properly tested and examined so as to meet these requirements.

Section 17 applies to the construction industry and sets out duties to be complied with by persons who commission, procure, design or construct places of work. They must appoint a competent person or persons to ensure, so far as is reasonably practicable, that the place of work is designed and is capable of being constructed so as not to present risk to safety and health; that it can be maintained without risk to safety and health when in use and that it complies with health and safety laws. There are already Regulations in place implementing an EU Directive on safety in construction and these Regulations will be updated to ensure they measure up to the Bill.

Part 3 of the Bill focuses on prevention, which is critical to the reduction of accidents and illnesses at work and to ensuring safety, health and welfare of work. Section 18, in support of section 8, requires the employer to appoint one or more competent persons to enable him or her to comply with health and safety laws. In a low-risk working environment, the employer may be capable of dealing with risks to workers and this is permitted. In any other case, a competent person in safety and health must be appointed. This, depending on the complexity of the risks, should preferably be a trained specialist recruited to the company or an employee who has been trained up. It can also be an outside competent consultant. This is in line with the requirements of the EU framework Directive 89/391. The employer must also ensure cooperation between competent persons and with any safety representatives appointed.

The employer must provide the competent person with information on factors which affect the safety, health and welfare of the employees, the risks involved, and the protective measures in place.

In order to prevent accidents and ill-health at work it is essential to firstly identify the hazards in the workplace. The most common hazards include dusts and fumes, noise and vibrations, electricity, manual handling of loads, transport hazards, machinery, falls from heights, dangerous substances, fire, explosives, radiations and poor maintenance of the working environment.

Secondly, it is necessary to assess the level of risk presented by the hazard. Some hazards may be controlled, others may present risk. Thirdly, where there is a risk, protective measures must be identified and implemented. The necessary resources must be committed. There is by now a great deal of guidance available on workplace hazards, the risks they present and how to protect against them. There are also detailed Regulations applying to the most serious and common forms of hazard.

Section 19 provides that every employer and every person controlling a workplace must identify the hazards at the place of work, assess the risks from those hazards and have a written risk assessment of those risks as they apply to employees, including any single employee and group of employees who may be exposed. In carrying out the risk assessment, the employer must take account of health and safety laws which apply. Any improvements in safety, health and welfare arising from the risk assessment must be implemented by the employer.

Section 20 provides that every employer must have a written safety statement based on the hazards identified and the risk assessment carried out under section 19 and setting out how the safety, health and welfare of employees will be secured and managed. I have already referred to safety statements in the context of small businesses and the farming sector.

Safety statements must set out the hazards identified, the risks assessed, the protective and preventive measures and the resources allocated to safety, health and welfare. It must also include details on the duties of employees as regards safety and health, the names and job titles of persons assigned tasks under the safety statement and the arrangements for the appointment of safety representatives and safety consultation in the place of work in compliance with sections 25 and 26. The names of the safety representatives and those on the safety committee, if appointed, must be included.

The risk assessment and the safety statement must be brought to the attention of employees at least annually, or when amended, and also to others at the place of work exposed to specific risk. Where specific jobs pose serious risk the employer must give relevant extracts of the safety statement to the employees affected covering the risk, the risk assessment and the safety measures taken.

The risk assessment and the safety statement must be reviewed, and amended if necessary, at least annually. This is an important to the current requirements under the 1989Act.

I look to large companies and public sector bodies to set an example by checking that service providers have safety statements. In fact, under the good neighbour principle and as large employers are better resourced, they can often help and advise on what may be required. Section 20 also provides therefore that employers in employment sectors, which will be detailed in Regulations, who contract for services to be provided by another employer, must ensure that that employer has an up to date safety statement.

Surveys undertaken by the Health and Safety Authority in 2003 reveal that while 90% of companies employing more than 50 persons had a safety statement, this falls to 56% in companies employing up to 56 persons. The safety statement is the essential management tool for managing safety and health at work.

In the complex world in which we live now, our safety can depend on those who carry out tasks which, if matters go wrong, can effect many. Examples could include tower crane drivers on building sites, public service vehicle drivers, drivers of dangerous goods vehicles or those who operate process plant in the chemical industry. There are others. Section 23 gives the right to the employer, subject to the making of the Regulations which will name the types of employments concerned and under what circumstances, to require employees to be assessed by a registered medical practitioner as to fitness to carry out work which presents critical risks to the safety, health and welfare of persons at work. If the registered medical practitioner is of the view that an employee is unfit to perform such work, he or she must tell the employer and the employee, giving the reasons for it and the likelihood of early resumption to facilitate rehabilitation. There will be consultation on any Regulations which may be introduced under this heading.

If an employee covered by this Section suffers any disease or illness likely to add to risks, he or she must immediately tell the employer. If the employer is informed as above by either the registered medical practitioner or the employee, action must be taken by the employer to comply with the general duties under Section 8 as regards a safe place of work.

With the level of knowledge which now exists on safety matters I believe there is a basis for encouraging greater partnership between employers and unions to come together to set safety standards in particular employment sectors to support the legislative provisions. We also need a basis to give recognition to the agreements being reached under the European Union social dialogue arrangements, which are tackling such issues as teleworking and stress at work. Section 24 provides that trade unions and bodies representing employers can make agreements setting out practical guidance on safety, health and welfare, and the requirements of health and safety laws, and can apply to the Authority for approval of an agreement or of its variation. The Authority can approve a joint safety and health agreement, if the agreement stipulates that it applies to all employees in a particular class of employees. The parties must make copies of agreements available for inspection by any person affected. This a novel feature of the Bill and I look forward to seeing how the Social Partners will work it.

In assessing compliance with health and safety laws, the Authority must take account of an approved joint safety and health agreement, whether or not an employer in an employment sector covered by the agreement is a party to it.

Consultation on safety and health between workers and their employer is critical to the prevention of accidents. In addition to their personal interest in their own well-being, workers have an intimate knowledge of the conditions in which they work and the wise employer will take note of and learn from their experience. The concept of the worker safety representative was introduced in earlier legislation. I wish to commend the many individuals who volunteered and underwent training to act as safety representatives. The trade union and employer bodies have provided extensive training.

Surveys by the Health and Safety Authority in 2003 showed that in 74% of companies employing 50 or more persons, workers had appointed safety representatives. In companies employing up to 15 workers this fell to 15%.

Despite all efforts I believe that safety representatives need additional support in their challenging role. Section 25 , therefore, is devoted solely to them. It contains some additional supports and I have included others in later sections. I would encourage the representative bodies to match these initiatives by providing support services for safety representatives.

Section 25 , entitles employees to decide on a safety representative, or, if the employer agrees, more than one, to represent them in consultations with the employer on matters of safety, health and welfare. The safety representative has the right to inspect the place of work having given reasonable notice to the employer. The employer must be reasonable as to the frequency of inspections. The safety representative can inspect immediately if there is an accident, dangerous occurrence or imminent danger or risk to safety, health and welfare. The safety representative may also investigate accidents and dangerous occurrences provided this does not interfere with another person carrying out duties under health and safety laws.

Providing for broader consultation between workers and their employer, Section 26 places a duty on the employer to consult the employees so as to make and maintain arrangements to enable the employer and employees to cooperate to promote and develop safety, health and welfare and to monitor the effectiveness of those arrangements. As part of the arrangements, the employer must consult the employees and their safety representatives on any measure likely to substantially affect safety, health and welfare. The employer must also consult on the designation of employees having emergency duties under Section 11, things done relating to protection from and prevention of risks, the hazard identification and risk assessment under Section 19, the preparation of the safety statement under Section 20, the information required to be given to employees under Section 9, information on accidents and dangerous occurrences notified under Section 8, the appointment of competent persons under Section 18, the planning and organisation of training under Section 10, the planning and introduction of new technologies and the implications for safety, health and welfare of choices available as regards equipment, working conditions and the working environment.

As a corollary, employees have a right to make representations to and consult their employer on matters of safety, health and welfare.

A system of safety committees was provided for in factories under the Safety in Industry Act 1980. Many such committees continue to work effectively. I am very happy to respond to the desire of employer and union bodies to give recognition in the Bill to safety committees across all employments. I believe they could operate effectively in other sectors, including, perhaps, health–care and in shops and offices. If therefore a safety committee is agreed in the undertaking which can meet the requirements set out above, the safety committee can be used to meet the consultation requirements under this section. The organisational arrangements for safety committees are set out in Schedule 4.

I believe it is timely to send a strong signal that employees should not be penalised for acting in good faith in the interests of safety and health. Section 27 prohibits an employer from penalising an employee for acting in accordance with or performing any duty or exercising any right under health and safety laws, or making a complaint or a representation about health and safety to the safety representative or to the employer or to an inspector. Penalisation is also forbidden for giving evidence in health and safety cases, or for being a safety representative or for being an employee having to discharge duties in an emergency or for acting as a competent person or for leaving or refusing to return to the place of work where there is serious or imminent danger which the employee could not reasonably have dealt with.

Penalisation by the employer will include any act or omission affecting detrimentally any term or condition of employment of an employee. It will include suspension, layoff or dismissal, demotion or loss of opportunities for promotion, transfer or a change of location. It also covers reduction in wages or change in working hours, imposition of any discipline, reprimand or other penalty and coercion or intimidation.

The dismissal of the employee will be a dismissal under the Unfair Dismissals Acts 1977-2001 if it results from penalisation related to safety and health.

Section 28 entitles an employee to make a complaint about penalisation in writing, within 6 months, to a Rights Commissioner where the employer has contravened Section 27. The Rights Commissioner must make a recommendation indicating that the complaint was or was not well founded, requiring the employer to take specific action or requiring the employer to pay fair compensation to the employee.

Section 29 entitles either party affected by a recommendation of a Rights Commissioner under Section 28 to appeal within six weeks to the Employment Appeals Tribunal. The Tribunal, having heard the case, must make a determination affirming, altering, varying or setting aside the recommendation.

If, up to 6 weeks after the appeal period, an employer has not carried out a recommendation of a Rights Commissioner, the employee can go to the Tribunal, which can make a determination reflecting the recommendation.

Section 30 permits an employee, his or her trade union or the Minister to apply to the District Court against a determination of the Tribunal if no appeal has been made and where an employer fails within 6 weeks to implement a determination of the Tribunal. The District Court must order the employer to carry out the determination including the payment of interest or compensation.

Section 37 and Schedule 5 provide that the Board of the Authority will consist of a Chairperson and 12 ordinary members appointed by the Minister, including 3 persons nominated by trade unions and 3 nominated by employer organisations. This represents some change from the 1989 Act where the Board consisted of a Chairperson and 10 ordinary members. As is still the case under the Bill, the Social Partners nominated 3 each under the 1989 Act.

A term of office will continue to be three years but the Bill proposes to limit the duration of office to 2 terms, i.e., a total of 6 years.

The Chief Executive will be an ex officio member of the Board and one of the appointees must be a civil servant from my Department.

Section 38 enables the Authority to establish advisory committees to advise it in relation to its functions. This has been a very successful mechanism employed under the 1989 Act to harness inputs from a wide range of organisations to deal with health and safety issues in particular employment sectors and also cross-cutting issues.

In accordance with current good practice, Section 49 requires the Chief Executive to appear before the Public Accounts Committee whenever required in writing to do so to give evidence on the Authority accounts, or of a subsidiary, and on the use of its resources. Section 50 requires the Chief Executive, when requested in writing to do so, to appear before a Committee of the Houses of the Oireachtas, other than the Public Accounts Committee, the Committee on Members’ Interests of Dail Eireann and the Committee on Members’ Interests of Seanad Eireann (or sub-committees thereof), to account for the general administration of the Authority.

Section 60 enables the Authority to draw up and publish codes of practice to give practical guidance to employers, employees and other persons on safety, health and welfare at work. Several useful codes of practice have been published before now by the Authority. Section 61 provides that where relevant, a code of practice is admissible in evidence in prosecutions relating to safety and health.

Section 66 provides that where an inspector is of the opinion that a person is breaching health and safety laws or has failed to submit a revised improvement plan or to implement an improvement plan under Section 65, he or she can serve an improvement notice, directing that the matter be remedied within one month. The inspector must give a copy of the improvement notice to the safety representative, if there is one. The person on whom the notice is served must confirm in writing to the inspector that matters have been rectified and send a copy to the safety representative. An improvement notice can be appealed to the District Court.

Where an activity at a place of work involves a risk of serious personal injury to any person. Section 67 empowers an inspector to serve a prohibition notice on the person in control which has immediate effect. A copy must be given to the safety representative if there is one. There is an appeal procedure to the District Court.

Section 69 provides that a person on whom an improvement notice or a prohibition notice is served must bring it to the attention of any person whose work is affected by the notice and display the notice in a prominent place at the place of work.

Section 68 provides that where activities are carried on in contravention of a prohibition notice served under Section 67, the High Court may, on an application ex parte by an inspector, prohibit the continuance of the activities.

In Section 71 , where the Authority considers that the risk to the safety, health and welfare of persons is so serious that the use of a place of work or part of a place of work should be restricted, it empowers the Authority to apply ex parte in such circumstances to the High Court for an order restricting or prohibiting the use of the place of work. The court can make any interim or interlocutory order. The Authority over the past 4 years has secured 9 such orders in the High Court, many of which have had exemplary effect in convincing other companies that unsafe behaviour will not be tolerated.

Conclusion

ENDS/LA 88