I had more or less concluded my remarks on this amendment. The Director General is appointed under this legislation in the normal way and the contractual arrangements setting out his conditions of appointment would be given to him on taking up duty. The legal power and status rests with the Authority. I hope Deputy O'Sullivan is satisfied with the reply as there is nothing in this section that does not apply to normal State bodies when a Director General takes up the position. The Authority are the legal custodians and the Director General would be answerable to them. The same applied in the Acts relating to Teagasc, Eolas and FÁS.
Safety Health and Welfare at Work Bill, 1988: Committee Stage (Resumed).
Debate resumed on amendment No. 21.
In page 20, subsection (2), lines 20 and 21, to delete ", and may be removed from office at any time,".
—(Deputy O'Sullivan.)
Amendment, by leave, withdrawn.
Amendments Nos. 22 to 24, inclusive, not moved.
I move amendment No. 25:
In page 20, between lines 34 and 35, to insert the following subsection:
"(6) the Director General shall have the right to attend and be heard at meetings of the Board.".
It should be enshrined in the Act that the Director General should have a place on the board and that he should attend by right each board meeting. For reasons we discussed before the break there will come a time when some chairman may not feel it appropriate for the Director General to attend. Therefore, I ask the Minister to accept this amendment.
As I said this morning, this is normal practice in other cases although it is not written into the legislation. Because the social partners will be in a majority on this board the practice would be that normally the Director General would attend. It could equally be argued that there will be times when the board perhaps would not want the Director General to be present but that really is a matter for themselves. I do not think it would be fair to tie the hands of the Authority, as perhaps they would want to discuss the performance of the Director General or the staff in relation to their performance. It would be incorrect to say that they had to be at a board meeting.
I can understand that there would be an occasion where there would be a conflict of interests and where it would not be desirable to have the Director General present but that could also be catered for. However, it is not desirable to exclude that provision from the Bill.
I will indicate my preference to the Authority in relation to this matter but I cannot tie their hands.
Amendment put and declared lost.
Question: "That section 18 stand part of the Bill" put and agreed to.
Section 19 agreed to.
SECTION 20.
Question proposed: "That section 20 stand part of the Bill."
This section deals with security of tenure in relation to existing staff. When the workers are transferred to the semi-State sector there will be an increase in PRSI payments. Will there be compensatory payments to make up for this? The conditions offered should not be less favourable than those they enjoy at present and, for that reason, the Miniser should make provision for payments. We must ensure that there is no threat to existing staff who will be transferred. Will the Minister comment on the implications of the increase in PRSI payments?
I understand that there will not be a change in PRSI in relation to this move. It is also relevant to say that I have been negotiating with the various staff bodies on a number of issues. Indeed, I met them as late as last week in regard to these matters. The matter to which the Deputy referred is not part of their concern and they are satisfied that they will be in a similar position to their present one.
Has the Minister offered retention of Civil Service status to the existing staff?
The staff will be in the same position as the employees in FÁS. There will be a designated date when they will lose their Civil Service status. We have not yet set a date but we are discussing the matter. I understand that the staff are happy about this and there will be a period of time for them to assess their position. They can then decide whether they would prefer to transfer within the Civil Service to other Departments or to stay with the new Authority. As well as that, it has been conceded in discussions with their representatives that they would have the right to apply for promotion within the Civil Service structure until the designated date is named. Therefore, I think that matter has been resolved.
Section 20 (5) states that the terms and conditions relating to the tenure of office for existing inspectors in the new Authority shall not be altered save in accordance with a negotiated collective agreement. May I take it that complete agreement will be reached?
Negotiations will be held with the staff representatives involved.
Question put and agreed to.
Sections 21 and 22 agreed to.
SECTION 23.
I move amendment No. 26:
In page 23, line 10, after "State" to insert ", provided that any enforcement functions are not depleted by such borrowing".
This amendment relates to borrowing. It is possible that people could be compromised if the Authority have to rely on borrowing to implement the enforcing procedures outlined in the Bill. Indeed, the standard of inspections could drop, which would be in nobody's interest. It would be quite legitimate to borrow for other reasons but it should be clearly spelt out that there would be no borrowing for this purpose.
I can give the Deputy an assurance that that is not what is involved here. The Authority would have the power to borrow subject to the consent of both the Minister for Labour and the Minister for Finance. It is expected that this power would be used sparingly and very infrequently. Whatever restrictions or limitations that may be considered necessary will be imposed by the Department of Finance, who would be the final arbitrator in financial matters. It is not intended that the Authority would borrow for the purposes of carrying out their enforcement functions. I can assure the Deputy that they would not be able to borrow for the purposes he outlined.
The provisions in this Bill do not limit the extent of the borrowing. Does the Minister have any views on this aspect?
As I said, this is a standard provision. If the Authority wish to borrow money they would have to obtain the consent of the Minister for Labour and the Minister for Finance. This provision would be used infrequently, but not to implement the enforcing of the procedures outlined in the Bill.
Amendment, by leave, withdrawn.
Section 23 agreed to.
SECTION 24.
We now come to amendment No. 27 in the name of Deputy O'Sullivan. Amendments Nos. 29 and 30 are consequential. It is proposed therefore for discussion purposes to take amendments Nos. 27, 29 and 30 together. Is that agreed? Agreed.
I move amendment No. 27:
In page 23, subsection (1), lines 14 to 16, to delete all words from "as it considers appropriate" down to and including "Minister) and" and substitute ", except for advice and services, as it considers appropriate in respect of".
This amendment relates to the charging of fees for services rendered. I would adopt a far more serious approach to this section because the Minister is proposing to introduce a new element in regard to the carrying out of inspections. The Minister is proposing that a fee be charged for these services. If an inspection is carried out a charge will be levied against the employer. Is that correct? Perhaps the Minister would clarify this for me.
Let me outline what is intended here. I understand what the Deputy is getting at but I can tell him that that is not the intention. The Deputy is concerned that the use of the word "services" in section 24 could imply a financial charge being made on an employer to cover the cost of inspections made under the Bill. I can reassure the Deputy that under no circumstances could the Authority impose a charge for the enforcement of this legislation. This would run counter to all law enforcement practices.
Nevertheless the Authority may wish to charge for advisory work done on behalf of consultants or at the request of employers. The proposed amendments would limit the activities in which the Authority would be in a position to make a financial charge. Let me give an example of what may be involved here. If an inspector of the Authority gave a lecture, made a presentation or carried out some consultancy work, something which would happen and has nothing to do with the enforcement of the regulations, a charge might be levied to cover the staff time.
The Minister has said that no charge may be imposed for the enforcement of this legislation but this can only follow after the carrying out of an inspection. I suggest that he ask the draftsman to take another look at this matter as an element of doubt still remains.
By enforcement we mean inspection.
That is not very clear. Section 24 does not spell this out too clearly. It appears we are asking employers to pay for inspection. We have given fair consideration to this section and have looked at it from many angles — when I say "we" I mean my party colleagues and I — and we believe it is rather ambiguous to say the least. I can accept the points made by the Minister in relation to the imposing of a charge for the giving of lectures by members of the staff of the Authority, but as regards inspections this does not clarify the matter for me. This area needs tightening up.
It is clear that under no circumstances could the Authority impose a charge for the enforcement of the legislation. That would run counter to the principle behind the Bill and all law enforcement practices. A charge may only be imposed in respect of advisory work carried out. The Authority could never think of imposing a charge as for the enforcement of the legislation.
Section 24 (1) states:
Subject to the provisions of this section, the Authority may make such charges as it considers appropriate in consideration of the provision by it of services...
"Services" here could relate to any services provided by the Authority. I ask the Minister to take another look at this rather than get involved in a wrangle about the whole matter.
I would draw the Deputy's attention to subsection (2) which states:
The determination of the amounts or charges by the Authority shall be subject to the approval of the Minister and the Minister for Finance. The Authority could not force an employer to pay for an inspection and then prosecute him for not complying with the regulations. There would be a conflict of interests here. A charge may not be imposed on an individual for the enforcement of the legislation. A charge may only be imposed for a service rendered. It could not happen under the Bill.
Would the Minister have another look at subsection (2)? It could be dressed up a little to avoid any mis-interpretation of it.
Let me refer to my first amendment today regarding the Mines and Quarries Act, 1965. The workers, the people employed in the mining industry pay for the inspection, and there is a precedent in that Act where somebody other than the Minister is paying for the service.
It is a different concept. The term "services" applies to where the Authority would be doing the advisory work. In no way is the interpretation to be stretched, nor would the Minister or the Minister for Finance be asked to allow a service charge to be linked to enforcement procedures. Deputy Wyse is asking me to look at it again. The fact that the Minister for Finance and the Minister for Labour would have to approve it means that never would the Minister for Finance or the Minister for Labour allow the Authority to start charging for an inspector's fee for going out to enforce laws. However, if the Deputy wishes, I will see if the regulation can be tightened up. We are talking about a totally different type of service. It was never envisaged in this legislation that workers would be charged for an inspector going out to enforce the law.
In a similar environment, in mines and quarries, places of work where safety regulations in the place of work apply, the workers are paying for the service provided.
It is not our inspectors they pay.
But they are paying for inspection.
They are paying for a workmen's inspector. They are not paying for a Department's inspector.
Simply because the Department do not provide the inspection. We are not at variance here other than on the wording of this. Will the Minister define clearly what services will be paid for?
The parliamentary draftsman is quite clear on this but if the Deputies think it could be made clearer in regulations I will see that that is looked at. It is a different concept from the mines and quarries. There are departmental inspectors in the mines and quarries area.
Amendment, by leave, withdrawn.
I move amendment No. 28:
In page 23, subsection (2), line 22, to delete "or" and substitute "of".
This is a technical drafting amendment.
Amendment agreed to.
Amendments Nos. 29 and 30 not moved.
Section 24, as amended, agreed to.
Section 25 agreed to.
SECTION 26.
Amendment No. 31 not moved.
Question proposed: "That section 26 stand part of the Bill."
I want to make a general point about the annual reports which come before this House. First, they tend to be glossy and expensive affairs. There is no need for a report to be glossy and expensive. This practice has developed among State companies generally. Secondly, reports should be required to highlight where inadequate resources are being provided. It goes back to the enforcement question because the key to success of this legislation will be enforcement. The board should be given the duty and freedom in their annual report to the Oireachtas to highlight difficulties in relation to resources, be they financial or manpower resources. If the board are not given due resources we are going to have problems in implementing this legislation. This is a real problem with all the legislation we are passing in this House.
On the annual reports and what they should contain I am not as concerned as Deputy Mitchell is about the presentation. Individual industries should be identified. It is a noted fact that agriculture and construction are two of the most dangerous industries we have. It is necessary to itemise types of accidents, numbers of accidents, loss of life and other points in detail. All this should be included in any annual report.
I take the points the Deputies have made that (1) the reports should be out quickly and should not necessarily be glossy; and (2) they should be factual and give data which should be acted on. The annual report in this case, though not comprehensive because the Bill does not cover the full range, should give the annual statistics and data. We will see to this.
Question put and agreed to.
SECTION 27.
Question proposed: "That section 27 stand part of the Bill."
With regard to the regulations and codes of practice and their implementation by the statutory Authority, is it intended to make provision for any representation at factory floor level, to report——
Yes, because as we said earlier there is a safety agreement and a safety plan. As part of that plan the workers and their representatives will be fully involved in the discussion and agreement on that plan. They would have their own safety representatives, so there is direct involvement of the workers.
Question put and agreed to.
SECTION 28.
Question proposed: "That section 28 stand part of the Bill."
Under this section the Minister may exempt certain specified classes. It is absolutely essential that any employer who would be exempted from this regulation would maintain a proper standard which would be acceptable to the Minister and to the Authority.
I take the point. If somebody is to be exempted——
The highest possible standards should apply.
The Authority would have to look at the area involved and satisfy themselves that it should be exempted. Any area that would be exempted would have to be looked at carefully. I think the Deputy is seeking that assurance.
This is an important section. Subsection (2) provides: "Regulations made under this Act may apply to all work activities or to particular work activities and may relate to one or more chemical, physical or biological agents". This does not refer to radiological agents. Is this covered? Does it cover atmospheric matters? For instance, does it allow the Minister to regulate smoking at particular workplaces which could affect other workers by way of what is known as passive smoking? Does it allow the Minister to require medical surveillance?
The radiological regulations are covered by the Nuclear Energy Board. Atmospheric matters are covered in paragraph 26 of the regulations.
What about smoking in the workplace? There can be a major problem where a number of people smoke and others do not. Those who do not smoke have to put up with this pollutant which is also a health hazard. We know from recent evidence that passive smoking can be a contributory cause of lung cancer.
We discussed this on Second Stage. It could be covered by regulation under this Act. It is already included in the lead regulations but the Deputy is referring to any workplace. The principle is already established.
I am a reformed smoker and tend to be somewhat zealous about this, but I do not want to impose my penance on other people. This may be an acute problem in enclosed workplaces where a lot of people work. I have been approached by some people for whom this has caused problems. Apart from causing a stench in clothing and hair, it can be a real health hazard. I am glad to have the Minister's assurance.
Where there is a health hazard it can be dealt with by regulation.
Question put and agreed to.
SECTION 29.
I move amendment No. 32:
In page 25, subsection (1), line 12, to delete "or orders" and substitute, "orders, exemptions or exceptions".
This is a technical drafting amendment to ensure that the Minister retains appropriate functions under the existing enactments on safety and health.
Amendment agreed to.
Section 29, as amended, agreed to.
SECTION 30.
I move amendment No. 33:
In page 25, between lines 33 and 34, to insert the following subsection:
"(3) In a factory or plant where an emission of a toxic substance is identified as being harmful to employees, be that substance inhaled or ingested, the following shall apply—
(a) all employees should have an annual medical check-up carried out by a registered practitioner in industrial health medicine,
(b) a minimum of diagnostic tests on all such employees should include a full blood count and an X-ray of chest,
(c) the employer shall keep accurate records of all such examinations and tests,
(d) it shall be the duty of all employers to ensure that further diagnostic examinations be carried out at the request of the registered practitioner, where in his opinion, it is justified, and
(e) all employees should have complete access to all personal medical files.".
I attach much importance to this amendment. Many workers are exposed to toxic substances in the course of their employment. A recent survey carried out by the ITGWU estimated that over 77,000 workers are in daily contact with some form of toxic substance. These substances are to be found in most industries but especially in the chemical and pharmaceutical industries. Industrial dust can be found in industries ranging from steel production to flour milling. It is of vital importance that employees exposed to such hazards should be medically monitored on a regular basis and a specific set of guidelines should be incorporated in the Bill which would be consistent with EC regulations. I appeal to the Minister to accept this amendment.
The Deputy made this point on Second Stage and I have had the matter examined. I am advised that it would not be appropriate in framework legislation to go into the kind of detail the Deputy is requesting. It is more appropriate to be dealt with in regulations or codes of practice envisaged in the legislation. I would draw the attention of the Deputy to paragraph (21) of the Fourth Schedule which foresees the making of regulations on subjects like this. In addition, occupational medical advisers can have workers medically examined under section 34 (4). I accept the Deputy's point about the importance of regulations in these areas. A number of sets of regulations already exist which include details of this sort in respect of special risk areas such as working with lead or asbestos. Last week I issued extremely detailed asbestos regulations. The lead regulations are similar. The Fourth Schedule of this Bill sets out different areas in which codes of practice or regulations are required. This matter will be looked at in that light.
The Minister must be very sure about this.
We are talking about detailed technical areas and the regulations on asbestos issued last week are an example. It would be impossible, however, to include such provisions in the Bill.
Who would the Minister envisage carrying the cost of the medical expenses?
The employer.
Amendment, by leave, withdrawn.
Section 30 agreed to.
NEW SECTION.
Amendment No. 34 in the name of Deputy O'Sullivan. Amendments Nos. 34, 35, 36 and 37 are consequential. It is proposed, by agreement, to take amendments Nos. 34, 35, 36 and 37 together. Agreed.
I move amendment No. 34:
In page 26, before section 31, to insert the following new section:
"31. —Where the Health and Safety Executive recommends to the Minister for Labour that a voluntary code of practice has proved inadequate, the Minister for Labour may introduce a statutory code of practice following consultation with the Health and Safety Executive by laying a resolution before the Houses of the Oireachtas for 21 sitting days. Where the Minister is satisfied that a voluntary code of practice has proved inadequate, and following consultation with the Health and Safety Executive, he may introduce a statutory code of practice by laying a resolution before the Houses of the Oireachtas for 21 sitting days.".
It is necessary to have a statutory code of practice rather than a voluntary one.
The provisions on codes of practice are set out very clearly in section 30 and I do not see the need for another form of code of practice. The Authority may issue, or amend, its own codes of practice. It can also approve of other codes, in whole or in part. By implication, if a code drawn up by another body is deficient, the Authority can choose to replace the unacceptable portion of it with its own ideas.
The amendment proposed has the particular difficulty that it seeks to equate a code of practice with a statutory instrument whereas, by definition in this Bill, a code of practice is not a legal instrument. To convert codes of practice into legal instruments would remove the very flexibility which the provisions in section 30 provide. Codes of practice differ from statutory regulations in that they can be varied and updated, reflecting changes in technology without having to undergo the legal processes necessary to make regulations. For example, where new technology is introduced codes or practice can be amended swiftly. Statutory codes of practice are, therefore, a contradiction in legal terms in the context of this Bill and I would ask the Deputy to withdraw the amendment.
As regards the amendments to the existing section 31, there may be some misunderstanding here. Voluntary codes of practice are perhaps more a feature of industrial relations machinery where procedural arrangements are agreed upon and set down. Safety and health codes on the other hand are more likely to contain detailed technical recommendations as regards the operation of machinery, safe procedures at work, the avoidance of health problems and so forth. The provisions of section 31 are clearly intended to give a recognition in the courts and a status to codes of practice which have been drawn up or approved by the Authority under section 30.
The insertion of the word "voluntary" in several places as suggested would entirely defeat the purpose of the section and would remove from the Authority the strength of the initiative intended for it as regards drawing up and approving codes of practice on safety and health. It would be a retrograde step to relegate such matters entirely to voluntary codes. Of their nature, and if they are to be effective, these codes must contain detailed technical information which the Authority can stand over.
Amendment, by leave, withdrawn.
SECTION 31.
Amendments Nos. 35 to 37, inclusive, not moved.
Section 31 agreed to.
SECTION 32.
I move amendment No. 38:
In page 26, subsection (1), line 37, after "prescribed" to insert "provided that—
(a) there will be no self inspection (including any possibility of conflict of interest) in agency agreements,
(b) the format of any agency agreement shall ensure that the persons enforcing have direct responsibility to the Authority in terms of reporting, accident investigation, taking of proceedings in law, etc.,
(c) the inspectors assigned to these duties are engaged in a permanent and full-time capacity thereon. Furthermore only persons with suitable training and qualifications (acceptable to the Board of the Authority) shall be allowed to act as inspectors".
The primary aim of the Barrington report was the creation of a central Authority for safety, health and welfare of workers but it appears from the Bill that the central Authority will not have a key role. It appears that it will hand over some of this work to agencies and there is a like-lihood of a conflict of interest in that event. Some Government Departments may feel they should carry out inspections within their Department rather than having officers of the Authority do so.
The Barrington Commission suggested that we should look at agencies. The overall impact of this amendment would be to unnecessarily restrict the Authority's role in arranging agency agreements.
As regards subparagraph (a) of the amendment, the Authority will obviously be aware of the problems of self inspection. However, there may well be certain limited areas where self inspection is acceptable under specified conditions and it may well be in the general interest of all concerned that the Authority has the discretion to permit it although it is unlikely to arise.
Subparagraph (b) would restrict the Authority's range of action. The Authority must be allowed to carry out its functions without being excessively inhibited by legal constraints. The Authority which is a tripartite body must be given as free a hand as possible. As regards subparagraph, (c), the training, qualifications and conditions of employment of inspectors is a matter best left to the competence of the Authority.
In general, it should be left to the Authority to investigate the possibilities as regards enforcing agency arrangements which can subsequently be enshrined in the regulations, made by the Minister, which will be necessary to give effect to such arrangements.
The agency would usually carry out its own inspections but it may arise that it would be better for administrative purposes if the work was handed over to another agency. That is a matter for the Authority to examine. The Deputy will accept that inspectors of the State carry out inspections and it would amount to duplication if the Authority sent out inspectors to do the same work. It will be a matter for the Authority to decide on when to use such agency agreements. In the section we are allowing them flexibility and we are not saying that we have to have agency agreements.
This discretionary power the Minister will be giving to these inspectors could lead to a conflict of interest.
We are giving the discretionary powers to the Authority.
Self inspection will undermine the position of the Authority. I wonder why some people are excluded. I have no doubt that a conflict of interest will arise, particularly in regard to Government Departments. It may not be in the best interest of an official of a Department to present a report that may be damaging to a superior and that is the fear I have.
The Authority is a tripartite body covering both sides of industry and its members will be aware if anybody is trying to hoodwink or side-track an investigation. The Authority will only use an agency's report where an inspection is being carried out on a location on a regular basis. I am thinking, for example, of a health inspector. Rather than the Authority sending an inspector to view a location that is covered by a health inspector they will be in a position to make an agency agreement with those inspectors. It would avoid duplication. I am not saying that the usual or the important work of the Authority will be given out to another agency. We are not telling the Authority what areas they should or should not cover. The power we are giving to the Authority was suggested by the Barrington Commission and the interim board. I agree with Deputy O'Sullivan that there are some pitfalls in this and I expect that the new Authority will be alive to them, as the interim board were. It is not intended that the Authority should delegate important matters to an agency. I do not think we should say what the Authority should inspect.
There is no greater recipe for pitfalls than the inspectors not reporting directly to the Authority. The Authority, for instance, will not be able to intervene if one of its agents does not report back. A delay in reporting back to the Authority could have serious consequences. I am referring to reporting, accident investigation and taking proceedings in law. The Minister is creating a buffer between the Authority and the inspectorate and that is not in the best interests of all concerned.
It will be a matter for the Authority to decide whether to use agency reports.
Providing they get the report. It could be in the interest of a person within the agency to withhold a report.
It will be the function of the Authority to decide whether to use an agency in the first instance. The Authority will be very careful where there is a danger of a conflict of interest. For example, they will not give a local authority the role of checking on themselves but will send their inspectors. Unfortunately to implement this Act solely with the staff of the new agency would require massive numbers and this cannot be done overnight. In certain areas if inspectors are going out every day or every week or every month there is little point in sending one of their own inspectors; but important vital work will not be given out to agencies.
Amendment, by leave, withdrawn.
Sections 32 to 35, inclusive, agreed to.
SECTION 36.
I move amendment No. 39:
In page 30, lines 31 to 34, to delete subsection (6) and substitute the following:
"(6) An improvement notice shall take effect—
(a) if the notice so declares, immediately the notice is received by the person on whom it is served,
(b) in any other case—
(i) if no appeal is taken against the notice, on the expiration of the period during which such an appeal may be taken or the day specified in the notice as that on which it is to come into effect, whichever is the later; or
(ii) in case such an appeal is taken, on the day next following the day which the notice is confirmed on appeal or the appeal is withdrawn or the day specified in the notice as that on which it is to come into effect, whichever is the later.
(7) The bringing of an appeal against a prohibition notice which is to take effect in accordance with subsection (6) shall not have the effect of suspending the operation of the notice: provided, however, that the appelant may apply to the Court to have the operation of the notice suspended until the appeal is disposed of and on such application, the Court may, if it thinks proper to do so, direct that the operation of the notice be suspended until the appeal is disposed of.".
What I am asking for here is that the improvement notice should take immediate effect. Serving an improvement notice which allows for a time lapse is not in the best interest of safety. Where an improvement notice is served and there is a delay in its implementation it is possible that the threat that exists to life or limb might have been removed by the time we go through the whole procedure to ensure that the improvement notice is served. For that reason I ask the Minister to accept this amendment. It is reasonable and in the interests of safety.
I have been looking at exactly what is involved in this section which deals with contravention of the relevant statutory provisions which do not give rise to risk or serious personal injury. In the case of a risk of personal injury a prohibition notice would be in order, not an improvement notice. An improvement notice is applicable in the case of some minor offence such as not displaying information and so on. A prohibition notice would be applicable where there is risk of injury or damage. Consequently it is not essential for the improvement notice to have immediate effect. There is a distinction between an improvement notice and a prohibition notice. The range of responses in the Bill covering both are complementary to one another and appropriate to the conditions to which they are addressed. The powers available to the inspector are fully adequate and for that reason I would ask the Deputy to accept this as it is.
I have reservations about the improvement notice. A danger that exists today may not exist next week, particularly on a construction site, for instance, an unsupported wall or a scaffold not properly erected. It is possible that by the time an improvement notice comes into effect the danger has been removed. I see no reason for not treating the improvement notice in a similar fashion to the prohibition notice.
The Deputy made this point before. Improvement notices cover minor offences and it would be unfair to an employer to issue improvement notices to apply immediately. The improvement notice gives him time to get his act together. The prohibition notice applies to situations where there is a definite danger and the employer must act straight away. If inspectors were to act like demagogues and were to appear on sites every day pointing out minor things and issuing prohibition notices to have these things remedied immediately employers would probably start ignoring the inspectors and trying to find ways around them. As I said, the improvement notice applies to minor infringements and the prohibition notice relates to situations of major risk, and the inspector has the power to decide whether to serve an improvement notice or a prohibition notice so the situation is adequately covered.
I would see this essentially as a preventive measure. I assure the Minister that I am not adopting an anti-employer stance. I want to ensure the safety of the employee who may be the victim of negligence on the part of the employer. Applying an improvement notice straight away rather than going the whole way and applying a prohibition notice which might stop the work would be to everybody's advantage. For that reason I fail to see why the Minister is so reluctant to accept my amendment.
We are just trying to be fair to the employer. I can see that where there is a possibility of a roof caving in or a frame or scaffold falling down the Deputy would have a point; but we are talking about minor things. The inspector is going around and sees things which should be right but are not likely to cause a danger to life and can issue an improvement notice. The employer has two weeks within which to appeal. It is giving the employer a chance to do that. If all infringements were treated the same there would be a difficulty. It would be unfair to treat the employer who has loose scaffolding all over the place and the employer who merely has not put up notices, for instance, in the same way. There must be degrees of punishment for abuses. The improvement notice covers minor infringements noted by an inspector who might, for example, walk into Dáil Éireann and see that those fire doors that we were talking about this morning were open and issue an improvement notice; but in the case of the fire doors being non-existent there would be a prohibition notice. There is a very clear distinction between the two.
There is a distinction in as much as a prohibition order essentially means that all work must stop but if an employer were to heed the warning to improve one could possibly avoid the situation where all work would have to come to a standstill. The improvement notice is essentially a warning shot to the employer. I do not understand why the Minister is so hesitant. It would be in the employers' interest to obey the improvement notice immediately; there would be no man hours lost leading to financial loss, which could happen in the case of a prohibition order.
There are many examples. I am not in disagreement with what the Deputy wants, which is safe sites. I am just trying to draw a distinction. If they go into a factory, an office or any other building and treat everything at the same level, as Deputy Mitchell has said earlier, the people will start ignoring the laws and regulations. An improvement notice is issued in regard to detailed works that are not urgent. I presume most of the time the employer would have to buy the materials necessary to comply with the improvement notice and he would be given time to do so. If he does not agree he can appeal within 14 days, but the spirit of this legislation is such that he would comply with the regulations.
For example, there could be a loose guard on a machine and the employer would need time to get the parts to fix it or there could be a faulty ventilator, rubbish lying around the site which could ultimately cause damage, or worn conveyor belts etc. These are the types of examples where improvement notices would be issued and the employer would be given time to get his act together.
If an employee is working under live electricity wires — for example, a JCB driver, he could be electrocuted if a prohibition notice is not issued and work is stopped straightaway. We are not trying to make this difficult, but an inspector cannot just throw the whole book on an employer's table. He would have to give the employer some time so that at least he will take him seriously. That is the distinction, and I think it is reasonable.
I could well understand the Minister's position if an improvement notice was dispensed by an inspector at regular intervals or if many notices issued per day, but that is not the case. Most of the inspectors have a lot of experience and they do not issue improvement notices lightly. We are talking about the prevention of accidents in many cases. They can be prevented by giving a little more strength to the improvement notice procedure. For that reason I would ask the Minister to accept my proposals.
The concept of improvement notices is new in this legislation. The provision is there as a preventative measure to try to stop people from ignoring fairly simple matters, procedures which they might not otherwise do anything about. If they do not comply with the improvement notice the inspector can take further action and the person can appeal within 14 days. We hope that under this Bill, where both social partners are involved, the inspector, before issuing any notice, would try to explain to the employer, the foreman, the site supervisor, manager or whoever, that he should do certain work. If that person had a bad track record and was not likely to do the work, he could then issue an improvement notice. I have no time for unscrupulous employers who do not look after the safety of their workers but at the same time we have to be reasonably fair and 14 days is not much time to allow people to get their act together when something has been noticed for the first time.
Reluctantly, Deputy O'Sullivan withdraws his amendment?
It is obvious we are not going to reach agreement on this issue. I feel as strongly in favour of the amendment as the Minister does against it. A period of 14 days is a long time when there is danger in a workplace.
I do not agree. The inspector has to be cautious and has obligations under the Bill. I have no doubt that if he felt there was a danger, such as in the example I have given where a JCB driver is working under electric wires or digging foundations, he will not give 14 days. In that case he will not issue an improvement notice but rather a prohibition notice. If prohibition notices are issued all the time, as Deputy Mitchell has said we would bring the law into disrepute. Enforcement procedures will not work if every time an employer slips up over something small he is treated as if he had done something dangerous. I think the Deputy understands my point.
What I am suggesting is that the same appeal procedures would be open to the person who has been served an improvement notice as are open to the person who has been served a prohibition notice, and that there is no victimisation of the individual. The safeguards are built into the legislation. What we are trying to establish is how to make the workplace a safer place.
Deputy O'Sullivan is allowing us to move on, I take it.
I am pressing my amendment.
Amendment put and declared lost.
I move amendment No. 40:
In page 30, subsection (7), line 36, to delete "subsection (1) (c)" and insert "subsection (1) (d)".
This is a technical drafting amendment.
Amendment agreed to.
Section 36, as amended, agreed to.
Section 37 agreed to.
SECTION 38.
I move amendment No. 41:
In page 32, line 36, to delete "48 hours" and substitute "7 days".
There are precedents for this in the Fire Prevention Act. I would like to hear the Minister's comments on this.
I will explain what is involved. What we are doing here is setting down a period of 48 hours during which the Revenue Commissioners may detain goods to enable the Authority to send an inspector to investigate. I am satisfied the 48 hour period in this section is adequate. If the inspector, on examining the goods, is of the opinion that the goods in question pose risks of serious personal injury to workers, he can use his powers under section 37 of the Bill which provides for prohibition notices.
The Revenue Commissioners are being requested to hold the goods for a period of 48 hours and the obligation is on the Authority to get an inspector out to examine those goods and to act accordingly. I do not think the Revenue Commissioners could hold them longer, anyway. Needless to say, if there is something wrong they will hold them for a longer period but it forces the inspectors to be efficient about their business.
My concern is that in the event of that 48 hours being over a week-end it would not be possible to carry out examinations. It is precisely to overcome this problem that I put down the amendment. It would also help if the examining agency was not functioning during that period.
The inspectors would be on call.
If it entails technical know-how and involves specialists, what would be the position?
There is always an inspector available. If the inspectors felt they needed further information they could use their powers under section 37 which provides for prohibition notices and in that way they could get an extension of time. If we set a time of seven days for all cases, the Revenue Commissioners would not be too happy. We and the inspectorate are happy that we can fulfil the requirements of the regulations in that 48 hour period.
I take it the Deputy is not pressing the amendment.
The Minister is getting some further information in this regard and I would like to hear it.
My colleagues say that the efficiency of the inspectorate would be known by Deputy Wyse. Officials in the Department worked on the afternoon of Christmas Eve with regard to the action in Cork. The inspector worked on that job all over Christmas. He was there on Christmas Eve night and on Christmas Day. The inspectors are on call all the time.
If it is good enough for Cork, it is good enough for legislation.
Amendment, by leave, withdrawn.
Section 38 agreed to.
Section 39 agreed to.
NEW SECTION.
Amendment No. 42 is in the name of Deputy O'Sullivan. It is proposed for discussion purposes to take the following amendments together: Nos. 42, 43, 44, 45, 46, all of which are alternatives, 86a which is related and 87 which is an alternative to 86a. Is that agreed? Agreed.
The requirements of my amendments Nos. 43 and 45 are met.
The amendments are being taken together for discussion purposes but a separate question can be put on each amendment when it is reached.
I move amendment No. 42:
In page 33, before section 40, to insert the following new section:
40. —Where the inspector has discharged his duties in accordance with the relevant statutory provisions he shall be indemnified against all action or claims howsoever arising in respect of the discharge by him of those duties.".
Will the Minister please respond to it?
Does Deputy Wyse wish to intervene?
I move——
The Deputy cannot move the amendments, however we are going to discuss them with the other amendments. Only one amendment can be moved and we will then dispose of that. The Deputy may discuss amendments Nos. 43 and 45.
I am quite satisfied that the Minister meets the requirements of amendment No. 43 in his amendment No. 44.
I thank Deputy Wyse for his remarks. In amendment No. 44 we tried to concede the point raised in amendments Nos. 43 and 45.
The specific purpose of section 40 is to provide an indemnification for inspectors in respect of the discharge of their duties in a bona fide manner. This is an important provision that will enable inspectors to engage in a greater degree of dialogue with both employers and workers on safety and health matters. It is tied specifically to functions discharged in good faith and I regret that I cannot accept the proposed substitution of a new section. The addition of the words "prescribed by the Minister" is unnecessary as by definition the relevant statutory provisions are legal instruments made under the responsibility of the Minister for Labour. With regard to the additional points raised in the various amendments, it would be undesirable as regards indemnification to discriminate between inspectors attached to an enforcing agency and those working for the Authority. All inspectors who will have functions under the legislation will be provided with training and instruction. Provided they carry out their duty in a bona fide manner they should be covered by this indemnification section and I cannot therefore accept this amendment.
The amendments in the name of the Minister are necessary on the one hand to bring terminology into line with that used in the other sections — using "authorised" instead of "appointed"— and on the other hand to provide that the Authority will indemnify any member of its staff who discharges his duty in relation to the enforcement of the relevant statutory provisions in a bona fide manner. It may well be that staff other than inspectors will be involved in bona fide communications or decisions on safety and health matters. If they are to be effective they all will require to be indemnified against legal actions.
Section 61 provides for immunity for the Authority or an enforcing agency against actions arising from the failure to perform or comply with any of the functions imposed on it. It would not be appropriate to provide for total immunity relating to the actions of the Authority or any of its staff as proposed by Deputy O'Sullivan in amendment No. 87. Neither is immunity for the Minister necessary under the Bill.
As regards references in amendment No. 87 to "any officer or servant", an inspector or other staff member of the Authority or enforcing agency is already protected by section 40, which provides for their indemnification. In addition the provisions in section 37 as regards appeals against prohibition notices will have a part to play in this matter. Employers can have recourse to the court under this section if they want to challenge the operaction of a prohibition notice. The improvements I proposed with regard to section 61 under amendment No. 86a will help to alleviate much of the Deputy's concern regarding immunity in respect of other loss, and this satisfies Deputy Wyse's amendments. I therefore ask the Deputies to withdraw their amendments and accept amendments, Nos. 44, 46 and 86a which cover the points raised.
I find it difficult to accept the Minister's explanation that ample cover is being provided for the inspectors. If anything is likely to under-mine the Bill it is the issue of the indemnification of inspectors. If the inspectors are not properly indemnified there will be a reluctance on their part to apply the full rigours of the law where it is required. For that reason I will be calling for a vote on the section. If the Minister is not prepared to accept that, we will be sending inspectors out who could very well be intimidated by virtue of the fact that they could be held responsible for closing down a firm and for the subsequent loss of earnings.
What would happen in this case is that if the inspectors act in a bona fide manner under the Act, they are fully indemnified. We cannot give a blanket indemnification. If an inspector acts in a manner that is not within the Acts, he would have to report and explain himself to the Authority. However, if the inspector acts in a bona fide manner, he could still make a mistake, but he is still totally indemnified. It is only in a case where an inspector acts in a way that is clearly irresponsible, and it is then a matter for the Authority to say that he acted irresponsibly. The weight of power is with him, the wording is "shall" and the Authority would have to say that inspector A had acted in a non bona fide manner but this is an unlikely occurrence. It is a possibility and I do not think we could give a total blanket indemnity because we would be asking the taxpayer to cover the risk of a huge case where an inspector totally unreasonably and irresponsibly closed down a firm on a prohibition notice without regard to the law. This might never happen but if the inspector acts in a bona fide way he is fully indemnified.
On the board of the Authority you have essentially two vested interests and it is reasonable to say that both sides will be looking after their own interests. Undue pressure could be brought to bear on an inspector from that source, unless he is fully indemnified. I would like to know how many cases have been established — perhaps it us unfair to ask this question — and reported to his Department where an inspector has acted improperly in the enforcement of the law. I do not think there is a precedent, that it has ever been established that an inspector was guilty of acting in an improper manner.
I gather there is none. Our present position on indemnification is the same as that in Britain. If our inspectors act properly and in a bona fide manner they have the power of the Authority and the power of the law. With regard to the Deputy's point on members of the Authority, an inspector will be acting under his powers in this Act and in regulations and in the code of practices provided in section 30. Although it could happen, it is unlikely that that will cause a difficulty, because in law we cannot give a blanket indemnification to a person who could act irresponsibly.
Is the Minister suggesting that my amendment is illegal?
I suggest that it is unwise rather than illegal.
It could not be illegal. It could be unconstitutional but not illegal.
It is neither. If inspectors act in a bona fide manner, they are covered under the Act; that has never created a difficulty. There are considerable powers under this Bill and if somebody acts outside the law he should not be indemnified.
Up to now, inspectors have demonstrated that they are extremely responsible. No charge has ever been brought against them. I fail to see why the Minister is not prepared to accept my amendment. When inspectors were answerable to the Minister and to the Department they at least had more independence than they will now have. I am not suggesting that they would act improperly but there are two sets of people over them — they are the social partners, who represent a vested interest on either side, the workers on one side and the employers on the other. It is reasonable to assume that at some stage pressure could be brought to bear on an inspector when it would not be in the best interests of safety.
Deputy O'Sullivan has a point. Pressure could be brought to bear on the inspector, or an inspector may not be certain of the support of his superiors should he get into dodgy territory carrying out his duties. If an inspector lacks confidence in the support of his superiors he may be less than enthusiastic or over-careful thus becoming less effective in his job. What Deputy O'Sullivan is suggesting seems to be largely covered in section 40 as it stands, but in the light of Deputy O'Sullivan's point will the Minister in the Seanad if he has not an opportunity to do so today, give consideration to what is a valid point?
I have never heard of any inspector acting improperly but the danger is there and I agree that we must put in some sort of a safeguard.
That is correct.
There is nothing wrong in what the Minister is saying. It is of vital importance to safeguard against abuse in any legislation. I would go along with the Minister in this.
I agree with Deputy Wyse but the Minister's and Deputy O'Sullivan's points are not mutually exclusive. No agent of the State should be insured against wrongdoing. That is not what Deputy O'Sullivan is arguing for. His point is that pressure could be put on an inspector not to perform his duties. This pressure might not come from his superiors by way of any act, but it could be by way of the general aura of confidence. Many of us have had the experience of discharging our duties to the best of our abilities only to be let down later by our superiors. Deputy O'Sullivan's is a valid point. We cannot afford to have inspectors who are not absolutely confident that they will get support doing their duty.
I do not disagree with Deputy Mitchell. The inspectors received detailed training and instruction. Under section 40 where the Authority or enforcing agent are satisfied that an inspector appointed by them has discharged his duties in relation to the enforcement of the relative statutory provisions in a bona fide manner, they shall indemnify the inspector against all actions or claims arising in respect of the discharge of his duties. That is clear. An inspector could make a mistake but if he is acting in a bona fide manner he is fully indemnified under the law. However, we cannot give a blanket indemnity to an inspector who could do anything which could result in massive claims. They have a very important job which requires a great deal of responsibility but there could be massive claims against the taxpayer. In this case we could not give a blanket indemnity but if an inspector is acting in a bona fide manner he is fully covered.
Is it the 1954 Act which is operating at the moment?
The 1955 Act and the 1980 act are operating at the moment.
The Safety in Industry Act, is the last one.
Is the inspector indemnified at the moment while under the ambit of the Department?
He would be, because he is answerable to the Minister and is indemnified.
If we pass this section as it stands, as a result of going over to the Authority, the inspectors' conditions of employment will be less favourable then they are now.
If he acted irresponsibily he would be treated in the same way.
At the moment he has full cover from the Minister. We are talking about the same person who, when he goes into the employment of the Authority, will not enjoy the same conditions of employment. That will affect his judgment. Human nature being what it is, the inspector will be subject to pressures to which he was not subject in the past. Despite the fact that the inspector had total cover from the Department by virtue of the fact that he was a civil servant, he did not abuse his position in the past. I fail to see why the Minister is so reluctant in this case because the pressure will increase by virtue of the fact that two conflicting interests will constitute membership of the Authority.
If he acts in a bona fide manner he will be indemnified by the Minister; if he does not he will not be covered. That is the same position as obtains at present. I do not accept that the Authority responsible for safety and health will be in there bouncing the ball off one another. I do not think that is what the social partners would do under this legislation. That is not the point. The point is that one can only indemnify an individual who acts in a bona fide manner under the rules and regulations under which they are bound to work. They are trained and experienced people and they have proved that beyond all doubt. To cover them outside of that is something——
Cover they already enjoy.
If they acted in a bona fide manner.
Is it specifically stated in the 1955 Act that they have to act in a bona fide manner? It is not.
The Minister for Labour would give cover to any officer who is working in a bona fide manner.
Is that specifically stated in the 1955 Act?
I do not think it is but that is the cover I give all my departmental officers. It is based on working in a bona fide manner. A person will not be covered now if he does not act in a bona fide manner.
Would he not be subject to the same rigours of discipline within the Authority as now prevail within the Department and, therefore, the words here are superfluous? The Minister is opening up the whole matter and is putting undue pressure which may affect an inspector's judgment on the individual. It should be deleted and the new section substituted.
An inspector now has far more powers than he had under the 1980 Act. An inspector would require it to be written in law that if he acts in a bona fide manner he will be fully indemnified. I do not visualise — and nothing has happened since 1955 which is 34 years ago — inspectors making errors; it is only in case somebody goes off in a totally irresponsible fashion. It is unlikely to happen, but I am advised that that has to be covered. If somebody does not act in a bona fide manner a blanket indemnity under this law cannot be given regardless of what inspector he works with and it is not saying he has to comply with the law. If he makes an error of judgment and if he has a bona fide reason he is covered. It is difficult to see why he would want a blanket indemnity — and I hope it would never happen. Why should he be covered if he goes off and acts in a totally irresponsible manner? Some responsibility must rest with the inspector as with every-one else. He cannot expect to be able to go off and act totally irresponsibly and expect the State and the taxpayer to clear up the legal problems that would ensue. I do not believe that will ever happen. That is an academic argument. It has not happened in 34 years but what we are saying is that if an inspector acts in a bona fide manner he is totally indemnified under the Act.
My apologies for coming back again to this point. There are many points I would like to refer to but one is the role of the social partners. I am not suggesting for one moment that any member representing either party would behave in an improper manner. What I am saying is that, human nature being what it is, all representatives are answerable to their parent bodies and would have to represent the interests of their parent bodies. Therefore there could be a situation where one or other of the representatives on either side could say: "In my opinion, this inspector behaved improperly". The conditions that the inspector will now enjoy are definitely less favourable than those he enjoyed when he was an employee of the Department of Labour.
I am advised that is not so. I am advised that an officer under section 40 is in exactly the same position as an inspector within the Department of Labour today.
I am not condoning shoddy workmanship in any way as being right. The onus is now being shifted on to the shoulders of the inspectors, which I cannot accept.
That is not correct. If the inspector carries out his functions under this Bill——
They have since 1955.
——in a bona fide manner and makes an error of judgment he is fully indemnified. It is only if an inspector goes outside his powers and outside the provisions of this Bill and the regulations and the codes of practice laid down that he will not be covered.
There is no precedent for an inspector going outside.
There is not and it will not arise now because the inspectors now have far greater powers under this Act than they had before. For their protection they would want it written down. Previously it was the understanding and it was the law, but it was not written into the Act. If I did not insert this section that an inspector is indemnified, then the inspector would be very worried going out. It is in his interest and for his protection that section 40 is written in to cover his functions and the regulations under which he is working. The inspector would want to see that input. In putting that in I cannot cover the position that at some future date some inspector will, because he is fully indemnified, go off and play havoc. I do not think any of us in this House could ask that that be done because we would end up involved in libel actions, court actions and huge amounts of compensation when the taxpayer would be forced to pay for something for which an individual or perhap some pressure group, had lobbied. I am trying to ensure that all the inspectors and the enforcement agencies who will work on the implementation of this Bill are given full indemnification where they act in a bona fide manner. That is reasonable.
I propose that the amendment now be put.
Amendment put.
The Committee divided: Tá, 17; Níl, 72.
Tá
- Bell, Michael.
- De Rossa, Proinsias.
- Desmond, Barry.
- Gregory, Tony.
- Higgins, Michael D.
- Howlin, Brendan.
- Kavanagh, Liam.
- Kemmy, Jim.
- McCartan, Pat.
- Mac Giolla, Tomás.
- O'Sullivan, Toddy.
- Pattison, Séamus.
- Quinn, Ruairí.
- Sherlock, Joe.
- Spring, Dick.
- Stagg, Emmet.
- Taylor, Mervyn.
Níl
- Abbott, Henry.
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Matthew.
- Brennan, Séamus.
- Browne, John.
- Burke, Ray.
- Byrne, Hugh.
- Conaghan, Hugh.
- Connolly, Ger.
- Coughlan, Mary T.
- Cowen, Brian.
- Daly, Brendan.
- Dempsey, Noel.
- Dennehy, John.
- de Valera, Síle.
- Doherty, Seán.
- Ellis, John.
- Fahey, Frank.
- Morley, P.J.
- Moynihan, Donal.
- Nolan, M.J.
- O'Dea, William Gerard.
- O'Donoghue, John.
- O'Keeffe, Batt.
- O'Keeffe, Ned.
- O'Kennedy, Michael.
- O'Leary, John.
- O'Rourke, Mary.
- Power, Paddy.
- Reynolds, Albert.
- Fahey, Jackie.
- Fitzgerald, Liam.
- Fitzpatrick, Dermot.
- Flood, Chris.
- Foley, Denis.
- Gallagher, Denis.
- Gallagher, Pat the Cope.
- Geoghegan-Quinn, Máire.
- Haughey, Charles J.
- Hilliard, Colm Michael.
- Hyland, Liam.
- Jacob, Joe.
- Kirk, Séamus.
- Kitt, Michael P.
- Kitt, Tom.
- Lawlor, Liam.
- Lenihan, Brian.
- Leonard, Jimmy.
- Leyden, Terry.
- Lynch, Michael.
- Lyons, Denis.
- McCarthy, Seán.
- McCreevy, Charlie.
- Mooney, Mary.
- Roche, Dick.
- Smith, Michael.
- Stafford, John.
- Swift, Brian.
- Treacy, Noel.
- Tunney, Jim.
- Wallace, Dan.
- Walsh, Joe.
- Walsh, Seán.
- Wilson, John P.
- Woods, Michael.
- Wright, G.V.
Tellers: Tá, Deputies Howlin and Quinn; Níl, Deputies V. Brady and Browne.
Amendment declared lost.
SECTION 40.
We come to amendment No. 43 in the name of Deputy Wyse. It was discussed with amendment No. 42. How stands the amendment?
Amendment 43 not moved.
Amendment No. 44 is the name of the Minister and it was discussed with amendment No. 42.
I move amendment No. 44:
In page 33, line 4, to delete "appointed by it" and substitute "authorised by it, or any other member of the staff of the Authority,".
Amendment agreed to.
Amendment No. 45 was also discussed with amendment No. 42. It is in the name of Deputy Wyse.
Amendment 45 not moved.
Amendment No. 46, in the name of the Minister was also discussed with amendment No. 42.
I move amendment No. 46:
In page 33, line 6, after "the inspector" to insert ", or such member of the staff of the Authority,".
Amendment agreed to.
Question proposed: "That section 40, as amended, stand part of the Bill."
This section, which is the last section of this Part of the Bill, deals with enforcement. I want to emphasise again the importance of enforcement. We have no doubt whatever about the commitment of the Department of Labour and of the proposed Authority to this area. However, like everything else, this will be affected by the resources made available. The big bad wolf of the Department of Finance always lurks in the background. I am glad to see the Taoiseach present. I want to say in his presence what I said earlier. We are enacting a great deal of legislation which subsequently is not enforced. Some of this non-enforcement is actually costing the State money — as in the case of the Revenue Commissioners not having the staff to pursue the misuse of red diesel, the non-enforcement of the road transport laws, etc. It would pay us to hire a few additional inspectors but because of the embargoes of recent years we are not enforcing the law.
I emphasise the need for the Government to realise that if we enact legislation we should provide the necessary resources. By not doing so, the State is losing money. Even if money were not to be saved by enforcement, if we enact legislation we have a duty to enforce it. Otherwise we should not pass legislation and should repeal the legislation which has already been proved unsuccessful because of non-enforcement. Road transport and road traffic law are two examples. I could name several other areas where legislation is not being enforced. The situation in this country is so bad that there is almost a need for a Minister for Law Enforcement to be appointed for about a year to sort many things out.
Enforcement would appear to be the all important matter, but the statistics with regard to accidents at work in the agricultural sector are alarming. There are three farming deaths for every fatality in industry, and non-fatal injuries are comparable with those in industry, even though there are far fewer employed in the agricultural industry. Forestry is another critical area and the area of transport law which was mentioned by the previous speaker. The number of accidents in the forestry area are certainly appalling. I should like to ask the enforcing body who starts the procedures for enforcement.
On Deputy Mitchell's question, I have already stated that I agree with him. With the resources initially available we will have to prioritise the areas that are most important, act on them and try to implement the legislation properly. If the duties and very important functions as set down in this Bill are not properly dealt with, the whole philosophy behind the Bill will be lost. There are some very important provisions which cover the point raised by Deputy Sherlock because every firm will have to have a safety plan which covers all workers. If the Authority and the agency pursue their work and functions properly this legislation could be extremely successful and I hope that will be the case.
In the case of construction, factory and forestry workers and workers involved in dangerous chemicals, separate regulations within the framework of the Bill will apply. In the case of forestry workers, detailed regulations have been worked out by the Authority and their officials with both sides of that industry and the inspectorate will enforce the regulations. Implementing safety and health regulations is like implementing the law, you cannot have a garda on every corner and at every crossroads. If management and workers are not interested in their own safety it will be very hard to enforce regulations. We must get to a position where everybody thinks about safety and health. There are good reasons for doing so and it is not a nebulous concept. I see statistics in regard to accidents which caused many deaths, misery, hardship and medical and insurance costs. Safety and health affect everything and that is why this legislation is so important.
Question put and agreed to.
Section 41 agreed to.
SECTION 42.
I move amendment No. 47:
In page 34, subsection (4) (c), line 37, to delete "paragraph" and subsitute "subsection".
This is a technical drafting amendment.
Amendment agreed to.
Section 42, as amended, agreed to.
SECTION 43.
I move amendment No. 48:
In page 35, line 7, to delete "may" and substitute "shall".
There is no need for a long discussion on this but I should like to delete the word "may" and substitute "shall".
I was endeavouring to see if I could do that but it is the standard provision. I am told there is no difficulty in regard to its operation because it relates to the Revenue Commissioners but because it is not in my area I cannot substitute "shall".
I fail to understand that. How does one amend an Act which was introduced by another Minister? Do I now have to put a question down to the Minister for Finance in regard to this matter?
The section reads:
If they see fit to do so for the purposes of facilitating the exercise or performance by the Authority or an enforcing agency or an inspector of the Authority or of an enforcing agency of any of the powers or duties exercised by them under any of the relevant statutory provisions, the Revenue Commissioners may authorise the disclosure to the Authority or to an enforcing agency or an inspector of the Authority...
I cannot say that the Revenue Commissioners "shall" authorise the disclosure to the Authority. The Revenue Commissioners are independent although they are associated with the Department of Finance. I am advised that it is a matter for the Revenue Commissioners to authorise disclosure to the Authority or an enforcing agency. However, the Revenue Commissioners might be reluctant to be unhelpful, their view is that they will be helpful in disclosing information. Of course it may be the case that the Revenue Commissioners may not always wish to disclose information, for many reasons.
It would be a discretionary matter then for the Revenue Commissioners?
As I understand it, the Revenue Commissioners have data which they could refuse to disclose. It is unlikely that they would refuse to disclose information which would be helpful to an inquiry but I could not force them to do so.
I accept that.
There are commitments in relation to operating the section but I cannot force the Revenue Commissioners to give me details.
Amendment, by leave, withdrawn.
Section 43 agreed to.
Sections 44 and 45 agreed to.
SECTION 46.
Amendment No. 49 is in the name of the Minister and amendment No. 50 is an alternative. Is it agreed that they be discussed together? Agreed.
I move amendment No. 49:
In page 37, subsection (4), line 28, to delete "at such" and substitute "within a reasonable".
I accept the Deputy's suggestion provided the final phrase in the subsection can be retained. Therefore, I ask the Deputy to withdraw his amendment in favour of the alternative draft amendment which is being prepared by the legal draftsman and which will cover the points the Deputy wishes to pursue.
Is the Minister suggesting that he wants to retain "at such time and in such manner"?
Yes.
Will the Minister read what he proposes to insert?
The Authority may cause a special report, or part of such special report, to be made public within a reasonable time and in such manner as it thinks fit.
That is an improvement but not what I am looking for. However, I will accept it.
It would be for the Authority to decide if a special report is to be made public.
Let me sound a word of caution. In referring to the words "in such manner as it thinks fit", there is the possibility of abuse in this area. I admit that I have succeeded in having at least part of my amendment incorporated into the section but I would much prefer if the Minister would agree to delete——
Reports of this nature could contain very sensitive information and it would be for the Authority to decide whether to make a report public. In some cases it may be inappropriate to publish a special report. In order to maintain confidence between an inspectorate and an employer it is not the norm to make public such reports provided for under other legislation. If the inspectorate can get an employer to implement the findings of a report and are able to monitor the way in which the employer implements those findings they are satisfied with that.
I can accept the Minister's explanation but I still have to sound a word of caution. There is the possibility of abuse in this area. I would much prefer if the Minister agreed to insert a new section into the Bill which would deal specifically with sensitive information contained in a report which, if published, would be likely to affect the performance of an enterprise or the character or welfare of a person. It would be far more preferable to insert a new section rather than to maintain the proposed terminology.
We are talking here about the making public of special reports or parts of special reports. We wish to leave it up to the Authority to decide on whether a report should be made public but it is possible that they may decide to make part of the report public. I am advised that sections of these reports could be included in the annual report. I am also aware that some of the reports issued at present are confidential, and could contain the findings of a very detailed examination on the way in which an enterprise is run and information on what equipment is used and on the age of such equipment. I am sure this information would be of use to a person involved in a commercial enterprise. It would have been the aim of the inspectorate to try to remedy a fault and most good companies make an effort to help them achieve that aim. If they were to fail to do so, difficulties would arise. While agreeing to insert the words "within a reasonable time" I still wish to maintain this flexibility.
I accept that the Minister wishes to maintain flexibility, however the Authority would be given a free rein in that they would be able to withhold reports. I would be prepared to ask some of my colleagues in the Seanad to sponsor an amendment there which would meet the points made by the Minister in regard to confidentiality. Rather than maintaining the very loose wording contained in the section — it is like saying to a jarvey "I will leave it up to yourself" when asking what the fare will be——
In fairness I do not think that it amounts to the same thing. We are talking here about making public special reports. If a special report is to be made public within a reasonable period it is only fair that the Authority be allowed to decide in what way it should be published.
We are in agreement in regard to the making available of the report within a reasonable period but I believe that the words "as it thinks fit" are very vague. It is likely that many problems will arise in the future. I would much prefer if the Minister agreed to insert a new subsection into the section. I am sure there are precedents for such a move.
Practically no special report is made public. I recall that the last big one issued, the Cork one, which both of the Deputies would have an interest in, has not been made public. The reason for this is that the report contains a lot of technical data and other information not connected with the accident.
I am quite prepared to accept what the Minister says in regard to confidentially but this section is not going to cater for it. I will repeat once more that there is the possibility of abuse in this area. I would prefer if the Minister agreed to insert a new subsection. We are not in disagreement over the principle but rather over the method. The wording is extremely loose.
Amendment agreed to.
Amendment No. 50 not moved.
We now come to amendment No. 51 in the name of Deputy O'Sullivan. Amendment No. 52 is related and it is proposed therefore that for discussion purposes we take amendments Nos. 51 and 52 together. Is that agreed? Agreed.
I move amendment No. 51:
In page 37, lines 30 to 33, to delete subsection (5).
Would the Minister like to make a comment on this amendment?
This subsection is aimed at avoiding duplication in investigations or inquiries. Under separate legislation, for example, section 465 of the Merchant Shipping Act, 1894, and section 60 of the Air Navigation and Transport Act, 1936, the Minister for Tourism and Transport has power to direct investigations into air or rail accidents and the Minister for the Marine has power to direct investigations into accidents at sea. The provisions in the Bill do not rule out an investigation or inquiry by the Authority or involvement by the Authority in an investigation or inquiry into an air, rail or sea accident. Therefore both of the matters raised by the Deputy are covered in other legislation. The amendment aims to avoid duplication but the provisions do not rule out the possibility of the Authority being actively involved in any such inquiry.
Amendment, by leave, withdrawn.
Section 46, as amended, agreed to.
SECTION 47.
Amendment 52 not moved.
Section 47 agreed to.
SECTION 48.
I move amendment No. 53:
In page 40, subsection (17), between lines 43 and 44, to insert the following:
"(iii) in the case of death, the latter person shall be guilty of an offence under this subsection liable to a minimum charge of manslaughter.".
The Bill makes adequate provision as regards the protection of summary offences and offences on indictment. From a legal point of view if the circumstances of an accident indicate that a charge of manslaughter should be contemplated such a decision would be appropriate for the DPP. Specific provision in that regard is not necessary in the Bill.
Is the Minister certain that such an agreement is covered?
Yes, they will be legally advised.
Amendment, by leave, withdrawn.
Section 48 agreed to.
SECTION 49.
I move amendment No. 54:
In page 41, subsection (1), lines 35 and 36, to delete "this Act or any regulation under this Act or any of the existing statutory provisions" and substitute "any of the relevant statutory provisons".
This is a technical drafting amendment of the Bill. Regulations made under it and existing enactments on safety and health are comprehended in the term "relevant statutory provisions" as defined in the Bill.
Amendment agreed to.
Amendment No. 55 in the names of Deputies O'Sullivan, De Rossa, Mac Giolla, Sherlock and McCartan; Amendments Nos. 83 and 84 are related. It is proposed, therefore, with the agreement of the House to take amendments Nos. 55, 83 and 84 together.
I move amendment No. 55:
In page 41, subsection (2) (a), line 41, to delete "£1,000 and substitute "£10,000".
I appreciate the Deputies' concern that an adequate level of fines be provided for under the Bill. It is important, however, that the possibility of summary proceedings in the District Court be written in. Summary proceedings under the Bill would be taken by the Authority or enforcing agencies. Proceedings on indictment would be taken by the DPP if necessary on foot of an approach to him by the Authority or an enforcing agency.
In taking proceedings a number of important factors would have to be taken into account including (1) the gravity of the matter which gave rise to the proceedings and (2) the need to avoid the higher level of costs which would arise in relation to less serious contraventions if proceedings could be taken only in the higher courts. In the terms of District Court prosecutions the court rules are that the maximum fine which can be imposed is currently £1,000 as provided for in the Bill in respect of summary proceedings. I feel that the facility of taking summary proceedings in the District Court should remain and will be valuable to the Authority as regards many offences which can arise under the Bill even though the fine is limited to £1,000.
The Deputies will see when we come to amendment No. 56 that I propose to make a change as regards the level of fine on indictment which will give the courts discretion to set as large a fine as they think appropriate in the case of serious offences. Therefore, I ask the Deputies to withdraw these amendments under discussion.
The aim of these amendments in the name of Deputy O'Sullivan and Deputies of The Workers' Party is to seek not to have a maximum for more serious offences. In later amendments I have provided for that. For small offences they will go into the District Court with a fine of a maximum of £1,000. We talked about these types of things earlier in regard to improvement notices and providing a deterrent.
On more serious offences the Authority or enforcing agency could bring the offence to the Circuit Court or a higher court as necessary and the upper limit for the fines would be removed in that case. The matter has to be seen in relation to the later amendments but we are discussing it at this stage and I concede the point.
The Minister made a comparison between the District Court and Circuit Court. I understand the problem with the District Court is that cases tried there cannot be taken as a precedent whereas in Circuit Court cases they can. What is the position?
What the Deputy is saying is correct but it is not a problem. The District Court is not a court of records. It is not a court of records.
I understand a decision of the District Court can be taken in evidence but cannot be used as a precedent. This is a very important provision. For that reason the Minister is making it a little more difficult for people who would take a case to court seeking compensation or something of that nature.
This happens all the time but we do not have difficulty in this regard if we have a case of a minor nature.
What about the plain-tiffs in the event of somebody being charged in the District Court following an accident at work when a worker would bring his employer to court? These cases cannot be cited in court actions simply because there is no precedent there.
In our present position it is not creating a difficulty for us. If we were to take minor cases to other than the District Court it would create substantial expense. In a case of serious injury we would consider it necessary to go to a higher court and we would go to the Circuit Court or a higher court under this Bill. Most of the smaller cases would be District Court cases. It is not a difficulty in the procedure at present operated and as it will be operated under this Bill.
I accept that the Minister has been co-operative and receptive generally, but he is reluctant to consider increasing the level of fines in this area. Some of the charges will be against firms which have quite a substantial budget, and £10,000 would be petty cash to some of them, whereas somebody who is injured as a result of negligence could be permanently incapacitated and would bear the scars for the rest of his or her life.
In a case like that we would go to the Circuit Court. I agree that it would not be appropriate to deal with a serious injury case in the District Court. Many of the cases in the District Court concern improvement notices and warnings. I agree with the Deputy's suggestion about the more serious cases and that is why in later amendments we increase the upper limit. I hold the view Deputy Mitchell has been putting forward for weeks in this debate, that you have to be seen to be implementing the legislation and that it will be necessary for the Authority at an early date in some of these cases to go to a higher court. In the agricultural area there is a death a week. These are fairly serious cases which would be going to the Circuit Court and the higher courts.
Amendment, by leave, withdrawn.
Amendment No. 56 in the name of the Minister. Amendment No. 57 is an alternative and amendment No. 58 is related. Therefore, amendments Nos. 56, 57 and 58 may be taken together for the purposes of discussion.
I move amendment No. 56:
In page 41, subsection (2) (b), line 42, to delete "not exceeding £15,000".
Having regard to what was asked by Deputy O'Sullivan and members of The Workers' Party, we have considered this matter further in the light of legal advice and I propose to amend section 49 (2) (b) and the similar provision in section 49 (3) (c) (ii) so as to leave unspecified the level of fine which may be imposed on conviction on indictment. It will be for the courts to decide the level of fine on indictment, having regard to the circumstances of the cases coming before them.
That is even better.
I am conceding the point.
Amendment agreed to.
Amendment No. 57 not moved.
I move amendment No. 58:
In page 42, subsection (3) (c) (ii), lines 5 and 6, to delete "not exceeding £15,000".
Amendment agreed to.
Section 49, as amended, agreed to.
Section 50 agreed to.
SECTION 51.
Amendment No. 59 in the name of the Minister. Amendments Nos. 60 and 63 are related. It is proposed, therefore, to take together for discussion purposes amendments Nos. 59, 60 and 63.
I move amendment No. 59:
In page 42, subsection (4), line 44, to delete "or inquiry".
These are technical amendments to avoid any doubt about the extension of the time for taking proceedings.
Amendment agreed to.
I move amendment No. 60:
In page 42, subsection (4), lines 46 and 47, to delete "report, inquest or inquiry," and substitute "report or inquest, summary".
Amendment agreed to.
Amendment No. 61 in the names of Deputies O'Sullivan, De Rossa, Mac Giolla, Sherlock and McCartan. As amendment No. 62 is related, both amendments may be taken together for discussion purposes.
I move amendment No. 61:
In page 42, subsection (4), line 49, to delete "six months" and substitute "one year".
The time limit is six months after an inquest, special report or inquiry is completed. This is adequate time in which to institute proceedings. It is a standard provision and I do not believe it is necessary to extend it. It would prolong the final outcome in the case of individual accidents, diseases or occurrences. I would ask the Deputies to withdraw their amendments. There is a 12-month period in which to institute proceedings but if a special report or examination is undertaken, it would be six months from the completion of the report or examination. It is not six months in total but six further months.
What happens if there is a delay in the coroner's office regarding the inquest? Is there a limitation on the period?
That is covered. It is six months from the issuing of the report.
In effect it could go on for three years.
Yes.
Amendment, by leave, withdrawn.
Amendment No. 62 not moved.
I move amendment No. 63:
In page 43, subsection (4), lines 1 and 2, to delete "or inquiry".
Amendment agreed to.
Section 51, as amended, agreed to.
Sections 52 to 56, inclusive, agreed to.
SECTION 57.
I move amendment No. 64:
In page 45, lines 4 to 6, to delete "unless its application is incompatible with safe custody, good order and security" and substitute "and other institutions under the control of the State or any semi-State body".
I want to include other institutions under the control of the State or any semi-State body. I have in mind nurses and gardaí who are exposed to hepatitis B, AIDS and other conditions of that kind. It is vitally important that this amendment should be accepted by the Minister to cover these people.
I assure the Deputy that the Bill applies to all persons in employment in the State sector or otherwise. In that sense the need for the amendment does not exist. On the other hand, it must be recognised that in terms of the security arrangements within prisons and places of detention a degree of flexibility may be required as regards compliance with detailed health and safety requirements. I can, however, confirm that the intention is to protect the interests of persons employed in prisons and places of detention within the context of the section as drafted. Nurses and gardaí would also be included.
Amendment, by leave, withdrawn.
Section 57 agreed to.
SECTION 58.
Amendment No. 65 in the names of Deputies O'Sullivan, De Rossa, Mac Giolla, Sherlock and McCartan. Amendments Nos. 67, 69, 71, 73, 75, 77, 79, 81 and 85 are related and amendments Nos. 66, 68, 70, 72, 74, 76, 78, 80, 82 and 86 are consequential. Accordingly, amendments Nos. 65 to 82, inclusive, and amendments Nos. 85 and 86 may be taken together for discussion.
I move amendment No. 65:
In page 45, paragraph (a), line 10, to delete "£150" and substitute "£1,000".
All these fines relate not to breaches of the law based on actual risks to workers or accidents or diseases but to the administrative arrangements under the legislative provisions in question, such as sending in notifications of accidents, diseases, occupation of premises, defacement of posters and notices and such matters. It would be inappropriate to set the fines in respect of these matters at the same levels as the fines which relate to injury to workers. From a legal viewpoint it is not possible to provide in advance for increases in fines and from time to time it may be necessary in the light of changes in money values to seek Oireachtas approval for necessary increases. The fines incorporated in section 58 represent an updating of the fines which were last brought up to date in the Safety in Industry Act, 1980. We discussed this matter at length earlier today. Minor offences cannot be correlated to the more serious offences which would arise. We are dealing here with administrative arrangements which have not been followed. The amount of money involved is not great but from experience we have learned that the majority of employers do not like the idea of being prosecuted. The amount of the fine is not necessarily what matters but the harassment and embarrassment of a court case. What the Deputy has suggested would be unjust. All employers and workers are covered under the Bill and if we adopted the Deputy's suggestion we would be insisting on substantial fines being imposed for minor offences. We would be imposing big fines on the owners of small shops, small industries and small offices and that would be wrong. We are talking about minor infringements and for those I do not think it is necessary to stipulate large fines. I should like to ask the Deputies to withdraw their amendments.
I am surprised at the attitude of the Minister, who appeared to indicate that he was prepared to meet our point in regard to the fines. It may be that we are not talking about fines for the same offences.
I should like to clarify the position in regard to this. I said I would meet the points referred to by the Deputies in regard to offences where serious injuries occur. I am conceding that where an employer is prosecuted before the Circuit Court for a serious infringement there will not be an upper limit on the fine but in the cases dealt with in the amendments we could be talking about a person forgetting to send in a report, a person who does not erect a poster or whose poster is defaced. In the main we are talking about small concerns and I do not think it is reasonable to suggest that we should impose a fine of £1,000 for such minor infringements. I agree with the Deputies' suggestions where injuries are involved but in the case under discussion we would be hitting small business concerns.
It is unlikely that small shopkeepers would be prosecuted under the Factories Act, 1955. What we are talking about are businesses that are covered by that Act and by the Mines and Quarries Act. We are concerned about the high risk areas and if there is negligence at any level it should be punished. Some of the fines stipulated are derisory and will not force any person to comply with the law. For breaches of the factories Act we should be talking about a fine of £1,000 and not a fine of £25 or £150. The Minister may not agree with what the Labour Party and The Workers' Party are suggesting but I am sure he will accept that the existing fines are ridiculous. We could be talking about a breach of regulations that might lead to a loss of life or serious injury. If we fall down in this area our efforts today will have been wasted.
The Deputy will note that I removed the £15,000 maximum fine in the case of injuries. There is a lot of merit in providing for prosecutions under these sections because firms who will not be anxious to have reports of their cases published in the newspapers will be careful to comply with the regulations. I accept that some industries will not. However, we are talking about offences of omission or administrative offences rather than people disregarding the law. One of the benefits of the Bill will be to reduce insurance costs. If there is a greater awareness about safety and health in the workplace, as I believe there will be when we get the unions and the Federated Union of Employers working on this, I am sure insurance costs will fall. The insurance industry have made that clear.
I would be unhappy to have large fines for minor offences. However, if it is considered that the fines are too low at a later date they can be reviewed. I do not think inspectors would be happy to have to deal with small firms if the fines are to be as suggested by the Deputies. They have adequate powers to deal with the big companies. It is not the amount of the fine that will be the deterrent but the bringing of the company to court. I have no doubt that some companies would not be too concerned if the fine was as suggested by the Deputies but they would have second thoughts if they knew that a report of their court case would be published in the newspapers.
I am satisfied with the procedure being adopted by the Minister. In the course of my Second Stage contribution I called for more co-operation between workers and employers to ensure greater safety at work. I was nervous about the fact that we could be inflicting substantial costs on small industries who are obliged to carry out renovations to comply with the provisions of the Bill. We should be careful not to inflict any unnecessary costs on the many small industries who are finding it difficult to survive. I am prepared to accept the Minister's word in regard to fines.
Will the Minister consider introducing an upper and lower limit? I do not wish to penalise those who are not in a position to meet the fines, particularly if the future of an enterprise is threatened. Is the Minister prepared to set a minimum figure for breaches of the regulations? Would he be prepared to go down that road in respect of these amendments?
We have gone through these at great length. In some cases it has gone up tenfold.
Since the 1955 Act.
Since the 1980 Act. They were in the last Act.
Even nine years ago.
Yes. There are some under the Mines and Quarries Act, 1965.
All we are doing is keeping up with inflation.
Some have increased from £5 to £300. I am not making the point that the money value is high; it may be to a small businessman. It is really a deterrent to get them to comply with obligations. There is one matter I should have mentioned. In the case of an inspector checking out an industry and finding that they were in breach by not reporting an accident, he could impose a minor fine but we will be pursuing larger cases in the courts. A person might not be involved in a serious offence but if there were other breaches he would not get away with them. The only person paying this fine is someone with administrative breaches.
The fines have been looked at. It could be argued that they should be another £20 or £30. If I were to look at it again tomorrow I might say that they should be £10 or £20 more. These are the rates that have been achieved and we are talking about ommissions and not serious offences. I am totally in agreement with the Deputy in pursuing the more serious offences with great vigour. I ask that these small ones be left as they are.
Amendment, by leave, withdrawn.
Amendments Nos. 66 to 86, inclusive, not moved.
Section 58 agreed to.
Sections 59 and 60 agreed to.
SECTION 61.
I move amendment No. 86a:
In page 47, line 23, to delete "or property" and substitute ", damage to property or other loss".
Amendment agreed to.
Amendment No. 87 not moved.
Section 61, as amended, agreed to.
FIRST SCHEDULE.
Amendment No. 88 not moved.
I move amendment No. 89:
In page 47, line 36, to delete "for Labour".
This is a technical drafting amendment. The Minister is already defined in the Bill as the Minister for Labour.
Amendment agreed to.
Amendments Nos. 90 and 92 may be taken together.
I move amendment No. 90:
In page 47, line 38, to delete "three persons" and substitute "one person".
The composition of the board of the Authority, comprising a chairman and ten ordinary members, is in accordance with the recommendations of the Barrington Commission and is delicately balanced in order to ensure that the social partners will hold the balance of power on the board. Both sides of industry attach great importance to retention of this balance. An increase in the number of board members would have to be compensated for by increasing the number of places for the representative groups. The Barrington Commission stressed that in order to be effective the board should be small in size.
The formula in the Bill reflects the consensus view of the commission as endorsed by the interim board for occupational safety and health. On the question of employee participation I decided as a first step that participation of workers in the affairs of the Authority should be at sub-board level. The Worker (Participation in State Enterprises) Act, 1988, provides for the appointment of an appropriate officer in the State enterprise who will have responsibilities in relation to the establishment of sub-board participation arrangements.
Sub-board participation arrangements can be initiated by one application from the trade union or similar body; petitioned by an employee majority; or by a ballot where the application must be signed by at least 15 per cent of the employees and submitted to the appropriate officer. The provisions for agreement between State enterprises and the employees in respect of sub-board participatory arrangements must include regular exchange of views, information given in good time to the employees and dissemination of information to all employees. The Act also provides for the review, amendment, replacement or winding up of the participative agreement. I propose to take under review the operations of board participative structures. In these circumstances I would ask for the withdrawal of the amendments.
The Minister may say that he is following the recommendation, but on another section he chooses to ignore them. There is a lack of consistency here regarding the vesting of power. If I thought there was a uniform approach I would accept this without reservation.
Once again there has been a drift away from industrial democracy in as much as the Minister is now offering to the employees representation at sub-board level and this has become the pattern. With all due respects to the Minister, he has created a precedent in that with regard to other bodies which he has set up the representation of trade unions is at sub-board level and this is not a welcome development. We should be going in the opposite direction in respect of industrial relations. To offer to staff members representation below board level is a development which I would like to see terminated but unfortunately the Minister is not prepared to go down that road.
In relation to FÁS, there are worker directors on the board. Because it was an established practice I decided to put workers directors on that board. Last year we brought in the Worker Participation Bill which gives effect to worker participation at sub-board level in 60 or 70 different organisations. My reason for doing so in this case is that in the first instance both social partners would be on the board, thus creating a balance. There would be three members on the board, with the majority on the side of the social partners. There would be three trade union representatives on the board. Some of the amendments proposed two worker directors in addition to that, which would mean there would be five worker directors, five union representatives, and only three employers representatives. The Barrington Commission recommended that there be a balance and therefore I am putting three workers on the board and three employers, out of a total of ten. That clearly is a good balance.
The individual workers in the firm should be involved in worker participation from day one. I will move the orders to designate that there will be sub-board structures and worker participation from day one. I am giving that commitment now to Deputy Sherlock and Deputy O'Sullivan who raised this issue. As part of the composition of the board there will be three trade union representatives from day one and that should not be forgotten.
The Minister is once again using this device of representation at sub-board level. Having discussed at length the vulnerability of inspectors who are now working for the Authority and whether or not they behaved in a bona fide manner, it is absolutely important that there is worker representation at board level rather than at sub-board level to ensure that no decisions are taken regarding the employees that they do not know about. Never before has there been a greater need for this. I do not accept that simply because, in the Worker Participation Bill and other Bills, the Minister offered representation at sub-board level, this should necessarily be taken as a precedent. There is a special case to be made regarding the inspectors in particular because under the Authority as distinct from the Department they are particularly vulnerable. For that reason there is need for some representation at board level rather than at sub-board level.
I welcome the Minister's commitment to establish employee participation below board level. There is no point in enacting legislation in this House under the heading of safety, health and welfare at work and setting up a board for that purpose unless there is representation at sub-board level. Participation by workers and employers together would be more effective. I welcome that commitment by the Minister and we will certainly be asking him to implement that once the legislation is enacted.
I would be glad to honour that commitment. I believe it is the right way to proceed.
Is amendment No. 90 withdrawn?
It is obvious I have no support here and therefore I will reluctantly withdraw it.
Amendment, by leave, withdrawn.
Amendments Nos. 91 and 92 not moved.
First Schedule, as amended, agreed to.
SECOND SCHEDULE.
I move amendment No. 93:
In page 51, Part II, after the reference to "No. 294 of 1988", to insert in column (1) "No. 34 of 1989" and to insert in column (2) "European Communities (Protection of Workers) (Exposure to Asbestos) Regulations, 1989".
On 21 February 1989 I signed new regulations dealing with the protection of workers against exposure to asbestos. Those regulations come into operation on 1 March 1989. This amendment is therefore necessary to add these regulations to the first list in Part II of the Second Schedule.
A member of the staff of this House has been exposed to asbestos. Will this regulation apply retrospectively to cases at present under consideration? A member of the staff of this House was exposed to asbestos for an extended period and is under constant medical supervision. Will this regulation apply in this case?
I understand the regulation is not retrospective. If there was still a difficulty it would be a different matter but it is not retrospective. It becomes effective from today.
Amendment agreed to.
Second Schedule, as amended, agreed to.
THIRD SCHEDULE.
Amendments Nos. 94 and 95 in the name of the Minister are related and may be discussed together.
I move amendment No. 94:
In page 51, column 2, third entry, to delete "Merchant Shipping Acts, 1984 to 1988" and substitute, "Merchant Shipping Acts, 1894 to 1987".
These are technical drafting amendments.
Amendment agreed to.
I move amendment No. 95:
In page 51, column 2, ninth entry, to delete "Road Traffic Acts, 1961 to 1984" and substitute "Road Traffic Acts, 1961 to 1987".
Amendment agreed to.
Third Schedule, as amended, agreed to.
FOURTH SCHEDULE.
I move amendment No. 96:
In page 53, line 29, after "manufacture" to insert ", or in a case where the manufacture is undertaken outside the State import,".
This is a technical amendment to ensure that the power to make regulations under this paragraph is comprehensive.
It seems to have been discussed with No. 10.
Amendment agreed to.
I move amendment No. 97:
In page 54, line 43, after "specified gas," to insert "vapour,".
This is a technical amendment to ensure that the power to make regulations under this paragraph is comprehensive.
Amendment agreed to.
Fourth Schedule, as amended, agreed to.
Fifth Schedule agreed to.
Title agreed to.
Bill reported with amendments.