Minister Tony Killeen Signs Commencement of the Safety, Health and Welfare at Work Act 2005
‘Penalties for Breaches of Safety Law will be up to €3 Million’ – Minister Killeen
‘On the spot fines for employers and employees will be introduced’
Minister of State Tony Killeen, T.D., today (Friday 1st July 2005) announced the Commencement of the Safety, Health and Welfare at Work Act 2005. The Act is a major piece of new legislation in the area of safety and health in the workplace. It replaces the 1989 Act, which established the Health and Safety Authority (HSA).
Speaking at the signing of the Order to commence the new Act, which will be effective from 1st September, Minister Killeen said “the maximum fine on indictment for breaches of health and safety law will be €3 million plus a term of imprisonment of up to 2 years. Company directors and managers may also be held liable where they are found to have contributed to any offence”.
The primary focus of this Act is on the prevention of deaths and injuries in the workplace. Safety is paramount. Minister Killeen said, “this Act is a serious wake-up call to employers who don’t do enough to prevent accidents at their places of employment. Workers also have a duty not to endanger themselves or others and to be alert to dangerous situations.”
“We have achieved much since the 1989 Act, which will be replaced by this new updated legislation. In overall terms there has been a 25% reduction in the rate of deaths since 1989 but the figures are still far too high; 70 killed in 2003, 50 in 2004 and 34 to date this year.
“I am concerned to learn from the HSA that their evidence is that up to one half of the small employers in this country do little or certainly not enough to ensure a safe workplace.
“The most common causes of accidents are slips, trips and falls at work and lifting habits which result in back injuries. Tidy workplaces cost little. Training in safe lifting posture is available; and supervision is important”, Minister Killeen added.
Welcoming the coming into force of the new Act, Mr. Tom Beegan, CEO of the Health and Safety Authority said “I believe that the new Health, Safety and Welfare at Work Act 2005 is a dynamic and modern piece of legislation which is very timely. I very much welcome the increase in fines and penalties as I believe strongly that the level of fines and penalties should reflect the gravity which society attaches to breaches of the law, particularly those which result in death or injury. We are committed to engaging in a process of consultation with key players to make it user friendly to employers and workers, especially those in small companies. We will also be holding 27 seminars across the country starting in August as part of a major awareness-raising campaign to mark the beginning of this new era in health and safety.”
The growth of Ireland’s economy over the past decade or so means that there are more people at work (2m now, 1.2m in 1989) in the country than ever before. This in turn has brought a new focus to bear on our working environment. It is right that the development of a modern industry and of a modern industrial infrastructure should be accompanied by a modern set of rules and laws governing the obligations of employers and employees alike in ensuring safety in the workplace.
The HSA is empowered under the Act to compile and publish a list of the names and addresses of businesses where a fine has been imposed by a court, a prohibition notice served by the HSA or where a court has made an interim or interlocutory order. Minister Killeen said, “this is an important step in the direction of the public’s right to know”.
In regard to testing for intoxicants the Act imposes a requirement on employees to submit to tests under the supervision of a medical practitioner, if reasonably required by an employer. Minister Killeen said, “the requirement for testing for intoxicants will not come into force until the HSA has consulted the Social Partners and other interested groups. It is intended that the regulations, which have to be made, will bring in the testing requirement in safety critical situations and then only on a sectoral basis”. Minister Killeen added, “it is important to allay fears that testing will be a requirement across all employments. There is no such intention.”
One of the innovations in the Act is the power to make regulations for the imposition of on-the-spot fines for breaches of the health and safety code. Minister Killeen said, “I am asking the Board of the HSA to immediately undertake consultations with trade unions and employer representatives and to come back to me with a report on what are considered to be the appropriate areas for the levying of on-the-spot fines. The Act places duties on both employers and workers alike and I envisage that the on-the-spot fines will apply to both where a HSA inspector finds clear breaches of the health and safety code”.
There is also an innovation in the Act which removes the requirement on an employer with 3 or fewer employees to have an up-to-date safety statement. Instead, it will be sufficient to comply with a code of practice which will be developed by the HSA. Commenting on this, Minister Killeen said, “I am also asking the HSA Board to undertake an urgent assessment of such a code of practice and to make proposals. I envisage that the new code will deal with the specific safety problems of small employers and their employees. It will reduce the paperwork and be more practical and down to earth while at the same time ensuring a safer and healthier workplace. I hope that it will be possible to tailor the code to particular sectors like service and maintenance and farming.”
The third major innovation is the provision in the Act which facilitates trade unions and employers in an industry or sector to get together to agree practical guidance on health and safety. Such an agreement can be recognised by the HSA and taken account of in enforcement.
There is also protection in the Act for employees against dismissal or penalisation for carrying out their duty in regard to safety matters. Minister Killeen said, “where an employee is victimised or otherwise penalised for their legitimate health and safety activities the Act provides for redress. An employee is entitled to appeal to a Rights Commissioner for a determination. In the event of a further appeal, this can be heard by the Labour Court”.
In conclusion Minister Killeen said that he would like to draw attention to other matters under the Act which are coming up in the next few months. “My most immediate concern”, Killeen said, “will be to complete and sign into law the Construction Regulations and the General Application Regulations. Both sets of regulations are in the final phase of completion by the HSA. The construction regulations will complete the implementation of current EU Directives and bring the regulation of the industry into line with requirements under the new Act. The general application regulations will also modernise the existing code and deal with health and safety matters relating to signage, worker protective equipment, manual handling, electricity, first aid, night and shift work, pregnant employees and young persons.”
Main Provision of the Safety Health and Welfare at Work Act 2005
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
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,
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comply with relevant safety and health laws,
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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.
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not engage in improper conduct or behaviour,
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wear personal protective clothing where necessary,
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cooperate with their employer and look out for one another, and
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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 77provides 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,
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comply with relevant safety and health laws,
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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,
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not engage in improper conduct or behaviour,
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wear personal protective clothing where necessary,
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cooperate with their employer and look out for one another, and
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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.
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 .
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,
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inspect,
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investigate accidents or dangerous occurrences,
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accompany a HSA inspector on an inspection
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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.
