The Safety, Health & Welfare The Safety, Health & Welfare at Work Act(s), 1989 (& 2005)at Work Act(s), 1989 (& 2005)

Augustine O Connell

Draft Presentation Bill not yet signed into law

H&SH&S

• Began as a review / Amendment to 1989 act• Significant changes• Changes to general duties• Outline of H&S

Overview of Bill Overview of Bill

• Definition of competent person• Definition of reasonable practicable• General duty to manage work activities• Intoxicates staff• Safety Statement: managing safely and annual review• Civil liability for breach of all duties

Safety StatementSafety Statement

Sections 18 – 24 (Sec 12 & 1993 Regs.)Sections 18 – 24 (Sec 12 & 1993 Regs.)• Safety Statement – securing & managing safety• Content to be more detailed than 89 Act• Risk Assessment: integrated & implemented for all activities

& levels of the place of work• Annual review• Sector (> 3 employees)

Criminal OffencesCriminal Offences

• 89 Act – breaches of general duty–District Court; €1900 (max)–Circuit Court; (Judge & Jury) unlimited fine and / or custody

• 2004 Bill - breaches of general duty–District Court; €3000 and/or 6 months–Circuit Court; €3m and/or 2 years

• Case: Smurfit News Print (2004) €1m fine

ConclusionsConclusions

• Must have corporate governance (result of last three weeks lectures)

• Note increase in penalties• Change to managing Safety, Health & Welfare• Importance of internal procedures (Governance)• Prevention Culture (also assessment of health risks – e.g.

Stress, bullying)

General Duty of Employer to EmployeesGeneral Duty of Employer to Employees

Sec 8 (Sec 6)• Manage & conduct work activities to ensure objective of Act

(S,H&W)• Prevent improper conduct or behaviour • New Specific risks: Noise, vibration, radiation & other

physical agents• Impose the general principles of prevention• Report prescribed accidents to HSA

General Duty of Employer to persons other than General Duty of Employer to persons other than EmployeesEmployees

Sec 12 & 15 (Sec 7 & 8)• Sec 12: Manage & conduct work activities to ensure

objective of Act (S,H&W)• Sec 15: places, access/egress equipment• Sec 20: ensuring contractor’s safety statement is up to date

(‘prescribed activities)

General Duty of EmployeesGeneral Duty of Employees

Sec 13: (sec 9)• Not intoxicated• Submit to reasonable retests by a medical practitioner who

is a competent person (likely to have a Constitutional case on Bodily Integrity)

• Draft Regs.• See Railway Safety Bill for comparison (DETE v. D.

Transport)

Amendments to BillAmendments to Bill

• Intoxication tests by doctor• Corporate killing: LRC Recommendation• Draft Regs. on Intoxication• Regulatory Impact Assessment / Competitive Assessment• Level of fines

Definition of CompetenceDefinition of Competence

• Sec. 8 & 18 – employer must engage at least one competent person

• Sec. 2 – ‘Training, experience & knowledge’ taken into account in 89 Act

• FETAC Framework• Existing qualifications

Definition of Reasonable PracticableDefinition of Reasonable Practicable

• European Commission queries• Case Law• Article 5.4 of framework Directive• Sec 2(6) of Bill

–Exercised all due care–Protective & preventive measures–Hazard & Risk assessment / identification–Where the measures to be taken would be grossly disproportionate

having regard to unusual, unforeseeable and exceptional nature

• Onus of Proof