Vol. 387 No. 8
I move amendment No. 1:
In page 8, subsection (1), between lines 16 and 17, to insert the following:
"(e) mines and quarries;".
This refers specifically to the inclusion of mines and quarries in the Bill. My concern is that it is the opinion of people employed in the mining industry that the 1965 Act is deficient. If the Minister gives me an assurance that this section will update the inspectorate I shall be prepared to withdraw the amendment.
I am advised that specific reference to mines and quarries is not essential in the definition of the place of work because they are covered by the term "location" used in the definition. In relation to the 1965 Act, if the Deputy wishes to raise some points I shall be glad to have them examined. In any event deficiencies in the 1965 Act will be corrected by this Bill.
I am prepared to accept the Minister's offer on that because the 1965 Act is not very effective regarding the inspectorate. I felt that my amendment would highlight the plight of people employed in mines, which is an extremely dangerous industry. However, I will withdraw the amendment.
Line 40 refers to (a) the council of a county, (b) the corporation of a county borough, or (c) the Corporation of Dún Laoghaire. Dún Laoghaire is an non-county borough, one of six in the country including Wexford, Sligo, Drogheda, Clonmel and Kilkenny. Why is Dún Laoghaire specifically picked out as it has the same status and management structure as the other five non-county boroughs?
I have checked this point and I understand that all the other areas are covered in the definition; (a), (b) and (c) cover all the authorities according to the Department of the Environment. I assume that the areas mentioned by the Deputy are covered either by (a) or (b).
I move amendment No. 2:
In page 9, subsection (1) (d), lines 26 to 29, to delete all words down to and including "work,".
This amendment will overcome the problems in serving notice to an offender. We want to create a situation whereby people who do not live within the State and whose address cannot be ascertained can be contacted without difficulty. By deleting the words mentioned in the amendment the section will be strengthened considerably.
Section 3 provides for a range of options regarding the serving of notices and it caters adequately for all possibilities. Section 37 also specifies that a prohibition notice may be served on the person in control of the activity but this does not necessarily mean that the notice must be served on the employer at his business or other address. It can be served on the person in charge of the workplace when the inspector calls and on a person over 16 years of age resident in or employed at a place of work by affixing it in a conspicuous position on or near the place of work. These are standard provisions which strike a balance between the interests of a recipient and cases where notices may be difficult to serve. Therefore, the deletion of the line suggested by Deputy O'Sullivan would tilt the balance to the possible detriment of the recipients. The provisions of subsection (1) (d) would apply only if reasonable inquiries fail to identify the address of the person in question. This section deals with the actions of the agency in attempting to locate or to serve the prohibition notices on an individual. They would probably start with (a) where it is addressed to him by name, by delivering it to such person, or in the case of a partnership by delivery to any of the partners; (b) by leaving it at the address at which he ordinarily resides: (c) by sending it by post in a pre-paid registered letter addressed to him at the address at which he ordinarily resides or in a case in which an address for service has been furnished at that address. A combination of mechanisms would be used to try to track somebody down. In the normal course of events I suppose (a) would be sufficient to locate an individual.
My main concern is for firms — multinationals in particular — whose head office is outside the State. They could pose problems. Legislation to deal with this problem was introduced 13 years ago in Britain and, following inquiries regarding their experience, we have come across some weaknesses. One of the problems they encountered was in regard to companies not based in the country. As more and more multinational companies are locating here it could also cause problems in this jurisdiction.
This is an area in which there can be difficulty trying to locate someone. One must make reasonable inquiries regarding an individual and this section provides a range of options which must be followed in trying to serve the notice. I am sure the Deputy will agree that it is a fairly detailed section. Normally (a) or (b) would cover most of the people involved.
In regard to paragraph (d), what is a reasonable inquiry? The Minister spoke about sending a pre-paid registered letter to the potential offender which would suffice, but that is on the assumption that the head office of the postal service is of a reasonable standard, and we have no guarantee that some country, say, in the Far East would provide a similar type of service to what we enjoy here. The Minister has some reservations about fixing a notice. In the case of shipping, when a notice is served it is common practice for it to be pasted to the mast or to some prominent part of the ship. We feel this would be a good way of clearing up any doubt as to who would be responsible. In my view the area of reasonable inquiry is week.
In relation to the prohibition notice, we have strong indictable powers to pursue a person. It would not be in the interests of an individual to ignore a prohibition notice. Under section 3 and other sections we have power to serve a notice on an individual; we would not necessarily want to serve notice on the head of a multinational. In the case of a multinational operation, the notice would be served on the recognised head, manager or supervisor at their Irish location or, as set out in the Bill, any person over 16 years of age. There is a range of options available. A prohibition notice would be served only in respect of a serious offence and, as I said, we would have strong indictable powers to pursue an offender. I do not believe in the event of a prohibition notice being served that a person would be able to walk away from it very easily. This matter has been considered at length. I agree with the Deputy when he says that we should try, so far as we possibly can, to ensure that we would be able to serve a notice. Having considered this matter, we feel this provision adequately covers all possibilities.
Even though I will not be calling for a division, regrettably I will have to say nil.
May I seek clarification in relation to section 3? Section 3 (1) states "Any document... authorised to be served, sent or give...in some one of the following ways". Would it be necessary to state specifically that it could only be sent in one way or could it be sent in more than one way? Assuming it can be shown the documents were sent or delivered in a particular way, can it be claimed that this is adequate if a court case arises?
The documents could be sent in any one way, and there would be a range of options available. A prohibition notice would be served only in respect of a serious offence. If evidence can be produced to show that an attempt was made to serve a notice, I presume it would be permissible in the event of a court case.
I move amendment No. 3:
In page 10, subsection (1) (j), lines 46 and 47, to delete "section 133 of the Mines and Quarries Act, 1965,".
The purpose of this amendment is to allow the provisions of section 133 of the Mines and Quarries Act, 1965, which relate to offences, stand until it may be necessary to amend them in accordance with section 3 of this Bill. Under section 51 of the Bill the Authority will have power to prosecute offences under the Mines and Quarries Act, 1965. The position under that Act whereby prosecutions may be initiated by certain other parties, will remain unchanged unless the Authority in the future seek the amendment of those provisions.
I move amendment No. 4:
In page 11, subsection (2), line 9, after "repealed" to insert "or revoked as the case may be".
This is a technical amendment relating to the revocation of certain provisions of regulations.
We now come to amendment No. 5 in the name of Deputy O'Sullivan. I observe that amendments Nos. 13, 14 and 31 are related. I suggest, therefore, that we discuss these amendments together, separate decisions, of course, if required.
I move amendment No. 5:
In page 11, subsection (1), lines 19 to 21, to delete all words after "ensure" and substitute "that there is at least one board member responsible for the safety, health and welfare at work of all employees",
Very simply, we are asking in this amendment for one person to have overall responsibility for safety and health in the workplace. This is a reasonable request. If that responsibility is not given to one person, the legislation could be weakened considerably. For that reason I ask the Minister to accept this amendment.
These amendments, if adopted, would create a conflict especially as regards the provisions in section 6 (2). They would dilute the overall responsibility which must rest with the enterprise as a whole. I can accept that there is a case for ensuring that responsibility for management, safety and health is where necessary delegated to a responsible person in the company. However, this is framework legislation. I would draw the Deputy's attention to the specific requirements on the employer outlined in section 6 (2), in particular subsection (2) (d), which will inevitably require the employer to make the appropriate supervisory arrangemants within the undertaking. There is also provision in section 48 (19) whereby in particular circumstances any director, manager, secretary or other similar officer of a body corporate may be prosecuted for offences and punished accordingly. This provision is in line with the spirit of the Deputy's amendments.
On the question of including details on deaths, serious injuries and absences in reports, I would again point out that the provisions in this Bill are framework in nature. The possibility of going into greater detail in regulations and codes of practice is provided. Information of that sort detailed in the amendments will, in the normal course, be available to the Authority. It has never been the practice to publish detailed information of this sort except on a cumulative basis. I do not see any great advantage in imposing such a detailed requirement which might be more likely to discourage compliance with the overall requirements to publish in company reports an evaluation of safety and health in the enterprise.
I would like to draw, again, the Deputy's attention to the provision in section 48 (19) whereby in particular circumstances any director, manager, secretary or other similar officer of a body corporate may be prosecuted for offences and punished accordingly. I believe this provision gives what the Deputy is seeking and is in line with the spirit of the point he has made.
I am concerned about the day-to-day safety measures that would have to be taken by the firm rather than the overall responsibility. I am concerned that somebody in a place of work has a job of ensuring that the proper standards are maintained. I take the Minister's point that there are ways and means by which the company can be sued, but I am more concerned about ensuring safety standards are maintained in the day-to-day running of the firm.
I have just said I would draw the Deputy's attention to the requirement in section 6 (2) (d). I should have said (e). Deputy O'Sullivan's point is that under a safety plan an individual would be required to be responsible for safety. That is covered. The point about being able to go after an individual is answered in section 48 (19). Therefore, the Deputy's point is covered both ways. First, somebody is responsible for the safety plan and if you seek somebody under section 48 (19) you could follow the director, manager, secretary or other similar officer of the body corporate in the case of prosecutions.
How stands the amendment?
I accept the Minister's assurance.
I move amendment No. 6:
In page 12, subsection (3), lines 15 and 16, to delete "other than when" and substitute "or".
At the moment third level institutions are doing contract work in research and there is a possibility that some student engaged in such activity would be at risk and would not be covered specifically by the legislation. I ask the Minister to accept this amendment. I think it extremely important. It is only the deletion of three words and their replacement by one word. The implications are serious. This practice is now commonplace and we will see development in this area. Universities will have to do some research work to reduce the cost of running the institutions and students could be put at risk in some of our colleges and universities.
I take the point the Deputy is making. I do not think he is referring to every schoolchild. I presume he is referring to trainees. The main objective of the legislation is to ensure the safety and health of the working population, including persons working in the education sector. It is not the intention to cover any other activities in which persons may be engaged, including normal schooling and third level education. I do not think that is what the Deputy is saying either. There is a requirement on employers in section 7 to conduct their activities in a way which will ensure that persons who may be affected are not exposed to risks. This will have some application in the education sector particularly as far as laboratories are concerned.
However, this section is aimed at protecting the many persons engaged in training for employment working side-by-side with workers who may be subject to safety and health risks and who are covered by the legislation. The main intent, therefore, of this provision is to cover trainees who come under the umbrella of national training bodies such as FÁS, CERT, Teagasc and other training organisations in circumstances in which they may not be working under a contract of employment for an employer. Where individuals are on a FÁS scheme or any of the other schemes I have mentioned for work experience, working side-by-side with workers who are covered under the legislation, they will also be covered. I think that is the point the Deputy is making. Any trainee, even one with no contract of employment on work experience, in for a week, a month or six months on work experience, will also be covered if working side-by-side with workers who are covered. The effect of the Deputy's wording in the amendment would be to cover all schoolchildren. We are covering all trainees working side-by-side with people covered under the legislation.
If the Minister wants to differentiate between people in third level institutions and all schoolchildren he could introduce an amendment on Report Stage or in the Seanad.
Section 7 will cover research students. They are not covered under section 6 but they are picked up under section 7. This section covers primarily all trainees, of which there are a great number, and people on work experience courses who would not have contracts of employment.
What is the position of the amendment?
I will not be calling a vote but I will leave the amendment stand. I will have to disagree with the Minister on this.
I move amendment No. 7:
In page 12, between lines 21 and 22, to insert the following subsection:
"(4) (a) It shall be the duty of every employer to ensure that no agreement is made with an employee or a representative of that employee to accept money by way of wages, salary or expenses in lieu of health or safety within the workplace.
(b) It shall be the duty of every employee or that employee's representative to ensure that no agreement is entered into which accepts money by way of wages, salary or expenses in lieu of health or safety in the workplace.".
This amemdment aims to eradicate the practice of paying what we call danger money. I believe the whole principle of this Bill is to eliminate once and for all the practice of employing young boys and girls and paying them a certain amount of danger money and I ask the Minister, even on principle alone, to accept this amendment.
Another Deputy made a large contribution on this point on Second Stage and we have been examining the position. I agree that the concept of danger money is very undesirable. The difficulty is that a legal ban on agreements in this area would be extremely difficult to enforce and could be easily avoided. The efforts of the Authority should be concentrated on encouraging co-operation between employers and workers on positive measures to improve safety and health, promoting safety and health matters in the education and training of both employers and workers and enforcing the legal requirements to eliminate risks to safety and health. I am sure the Deputy will agree this is a more positive way of ensuring that unsafe practices such as danger money are stamped out.
On checking this with the parliamentary draftsman I am advised it would be very difficult to get a legal ban on agreements in this area and it would be almost impossible to enforce them. We have had considerable discussion on how to cover this point. I agree in some instances an employer will collude with the employees and provide a monetary benefit rather than comply with the provisions of the Act. The inspectorate, regardless of any agreement on site, would take action and prosecute. Where there was a practice against the spirit of legislation, despite any monetary benefit given by the employer. The inspectorate would follow the safety plan and the legislation and issue the appropriate notices.
In some cases dangerous work must be dealt with, possibly where the lives of other people would be at risk. Firemen or people working on offshore rigs would have to undertake dangerous work which would not normally be desirable under safety regulations. The expertise would be required to deal with this work and with accidents and emergencies, otherwise the lives of other people would be at risk. In that case a monetary reward could not be banned because these people might be required to get additional money for what would be considered dangerous work carried out for the overall good. I agree with the concept put forward by Deputy Wyse but it would be difficult to enshrine it in legislation.
I agree that there is a legal implication here, but if this amendment is not inserted in the Bill the payment of danger money will be legal. If an employee had an accident at work he could take his employer to court and say that he was paid danger money. I would assume that judgment would be based on the provisions of this Bill and the judge could easily say that the Bill does not prevent the payment of danger money. What happens then?
These are extreme cases. The judge would have to take the type of work into account. Fire fighters take a risk when they tackle a serious fire. Their job is a dangerous one and they are not paid an additional allowance every time there is a fire. The risk element is catered for in their basic salary. It could happen that people would be asked to carry out some dangerous function. Most normal rescue workers have effectively used that case when negotiating rates of pay. We would implement the law if there were practices which were undesirable and for which there was no good reason. The inspector would not be influenced one way or the other by the fact that danger money was being paid. An inspector would probably not go to the site because of being told danger money was being paid. He would be visiting the site to see for himself what was going on.
People trying to break the spirit of the legislation would find some other heading under which to pay additional money. They would not refer to it as danger money; it would probably be a savings fund or a holiday fund. Even if this section were inserted they would find a way around it. We must try to promote good health and safety regulations in the workplace with the co-operation of the employer and the workforce. If people do not comply we will proceed to prosecute, without being influenced by an agreement between the employer and the workforce.
I see no reason for not including the amendment. I agree that extra money or extra holidays will be given but I do not see anything wrong in including this amendment to reinforce the Bill. We could be a laughing stock if we were seen to promote safety at work but yet to allow employers to pay danger money. The amendment would reinforce our sincerity.
While I appreciate that Deputy Wyse does not want somebody to put their life at risk for a monetary consideration we must still remember that there is a risk factor involved in the workplace. For example take the Piper Alpha explosion in the North Sea. We must ask whether it would have been correct to have offered the people who went out to extinguish that fire an average industrial wage. That is the likely effect of Deputy Wyse's contention. Equally what does one say to a steeplejack whose ordinary daily activities of their very nature are dangerous? Are we to say to him: you will get the same as your counterpart working on the ground? Then what about those people working in mines and quarries, handling explosives, who work with dirty, combustible materials? All of these constitute conditions of employment which are, of their very nature, dangerous. Take the example of people who convey chemicals when there is a bonus payment involved. Once the proper safety standards are not abused I think that would be acceptable. I realise what Deputy Wyse is endeavouring to achieve but I do not think it is workable. There would be many jobs left undone if one were to tell such people they will get the average wage only because the response could be why should I take on this task when I could receive as much for sitting around?
I should like to be helpful to Deputy Wyse because he made his intent very clear on Second Stage. I was anxious to have his amendment accepted but, on seeking legal advice as to how it could be done, we encountered difficulties. I agree with the spirit and principle of the Deputy's contention but the difficulty arises in endeavouring to have it included and overcoming the problems presented by the extreme case referred to by Deputy O'Sullivan. The parliamentary draftsman went to considerable trouble to ascertain whether we could include this provision but it appears it cannot be covered because it would create an anomaly. I am afraid I cannot accept the amendment.
I foresee the day when an unfortunate employee appearing before a court will have the provisions of this Bill used against him. There is nothing in the Bill which states that there is no danger money to be paid. That is my worry. I will accept the Minister's assurance but I predict that the provisions of this Bill will be tested in the High Court.
The important aspect there is that the courts would not recognise or concede that workers had signed away their rights and legal protection in agreements with their employers. The courts would not accept that contention.
But do not the unions insist in certain cases that danger money be paid?
We must accept, of course, that there are dangerous jobs of their very nature. We are now debating another angle, contending that everybody would ignore the safety, health and welfare laws. There will always be dangerous jobs and, as a community, we are happy that some people undertake such tasks. Indeed it would be our view that they should be paid a higher salary for so doing. Not so long ago we had a somewhat similar Bill in the House with regard to safety in offshore installations. Indeed unlike our neighbours, we were fortunate in having our legislation in place at the time of those horrific accidents in the North Sea. It would be very difficult to argue against such workers receiving a higher rate of salary.
The other aspect is blatant abuse of the legislation by employers and workers. I do not think the courts would accept that global contention nor would the inspectorate of the new authority. I have sympathy with the Deputy's amendment and will undertake to highlight it, and some others, to the new authority as representing the views of Members of this House.
I feel very strongly about this amendment but will not force it to a division. I cannot withdraw my views on it.
I move amendment No. 8:
In page 12, between lines 21 and 22, to insert the following subsection:
"(4) A person who works in a factory, or any other premises or place of work, whether for wages or not shall be deemed to be employed in that factory, premises or place of work for the purposes of this Act, or any proceedings thereunder.".
The purpose of this amendment is to afford some protection to people who would not be in receipt of a wage in their place of work. It is commonplace nowadays to have students gaining work experience. It has long been the tradition that children living in an area adjacent to industry would frequent such workplaces, thereby placing themselves at risk. For instance, young boys being adjacent to a garage may go there to help a mechanic or engage in other activities. Under the Bill, as it stands, there is no protection for such people.
I am advised that the provisions of section 7 (1) provide the protection sought in this amendment. There is already an absolute duty on an employer to ensure that, "so far as is reasonably practicable" the safety, health and welfare of non-employees in his undertaking is assured. Hence the amendment is restating the requirement already stipulated in that subsection.
The phrase "so far as is reasonably practicable" appears many times throughout this Bill. I consider it to be vague and capable of being mis-interpreted in court. For example, an employer could contend that he took reasonable precaution. Such a contention would not afford any young person definite protection, that is any young person who might be involved in an accident in the workplace. I do not believe that the provisions of section 7 (1) provide adequate cover for people who would not be on the payroll.
"As far as is reasonably practicable" is the legal terminology used both in Irish and English law. I can assure the Deputy that the provisions of section 7 (1) provide the protection sought in his amendment.
Is the amendment withdrawn?
If the Minister's advisers are confident that it is covered I will withdraw my amendment.
I move amendment No. 9:
In page 13, between lines 3 and 4, to insert the following subsection:
"(3) Whenever two or more employers undertake activities simultaneously at the one place of work, the person or company who has overall control of the place of work shall be responsible for co-ordinating safety and health measures.".
My amendment seeks to cover building sites or any area where more than one employer is involved. The section does not give adequate cover to those employed on such sites. It is common nowadays for the successful main contractor to subcontract all the work with the result that it is difficult to pin down who is ultimately responsible for the safety of employees. My amendment would ensure that somebody would be responsible to compensate those injured and the next of kin of those killed on such sites.
I share the Deputy's concern as regards securing the safety and health of workers in places in which several employers share a work place but it would be very difficult to draft a suitable amendment which would cover the intention the Deputy has in mind. It is a difficult area in terms of responsibilities. I believe that it would not be appropriate to tackle the issue in this framework legislation. The problem is more relevant to particular industries than to others. I consider that section 6, which deals with general duties of employers to their employees, and section 7, which deals with general duties of employers and self-employed to persons other than their employees, would have a similar effect to the proposed amendment.
The combined effect of these sections is to impose duties as regards safety and health at work on an employer not only in relation to his own employees but also in relation to persons not in his employment but who may be affected by the way he conducts his undertaking. The duty is also applicable to self-employed persons. For example, the requirements of section 7 (1) in relation to a construction site would require two or more contractors to conduct their work activities in such a way as to ensure, as far as is reasonably practicable, that persons not in their employment who may be affected by their work activities are not exposed to risks to their safety or health. It should be noted also that the Bill makes no distinction between the penalties that may be imposed in respect of breach of general duties in respect of employees or non-employees affected by work activities. If the Authority consider that there is a need to deal with the issue in greater detail this can be achieved through the drafting of regulations following consultation with both sides of the industry.
The Minister made the point that there was a difficulty about drafting a suitable provision but I hope that is not the reason he will not accept my amendment. I should like to know who will accept responsibility where there are two or more employers on one site. Now is the time to do something positive about this problem and the Minister can do that by accepting my amendment.
The Deputy is referring to the difficulties that arise where there are subcontractors on a site. It would be difficult to frame a section to cover the Deputy's point but that is not the reason I am not accepting his amendment. Section 6, which deals with the general duties of employers to their employees, and section 7, which deals with the general duties of employers and the self-employed to persons other than their employees, cover this issue. They have the same effect as the Deputy's amendment. The combined effect of those sections is to impose duties as regards safety and health at work on the employer not only in relation to his own employees but also in relation to persons not in his employment but who may be affected by the way he conducts his undertaking. That would also be applicable to the self-employed.
The change that will take place is that the inspectorate will have power to go on a site and issue a notice to the person they believe to be the employer. Under the old Acts they had the difficulty of trying to establish who the employer was and ducks and drakes were played with inspectors, particularly on construction sites. I do not like referring to construction sites very often but that is the area where we have had the greatest difficulty. When the Bill is passed it will be easier for the inspectorate to identify the employer on a site and proceed against that person. They will not have to follow each employer. The inspectorate can pick the main employer on the site and pursue him. That will eliminate many difficulties.
The inspectorate, Members of the House and myself, will expect some people involved in the construction industry to try to find ways around these provisions and that is why the Authority will be able to get further powers. This represents a great step forward from the present position in that the inspectorate will be able to go on site, identify the main employer and proceed against him. They will be able to issue prohibition notices against that employer and not have to chase after every subcontractor in an effort to identify the employers. This may not close off every loophole and that is why I will be asking the Authority to review the position periodically.
The Minister has said it was likely that people would try to find a way round the legislation but the problem at present is that they are marching right through it. It is difficult to establish who has responsibility on a site where many subcontractors are engaged. By making the main contractor responsible we will be ensuring that proper safety standards are maintained. That contractor will have an obligation to ensure that the subcontractors engaged by him will observe all rules and regulations and will not put lives at risk. If the Minister tried to establish who is responsible on many building sites he would have great difficulty. There is a lot of detection as well as inspection work involved. We have had a great loss of life in the construction industry and the last report to hand, that for 1985, spelt that out clearly.
We have had successful prosecutions in relation to construction sites. It is because of the number of serious accidents that have occurred on such sites that we are prosecuting those found guilty of such offences. It is important to bear in mind that when the Bill is passed we will be able to pursue the main contractor who is normally identifiable on any large site. In the first instance the inspector will go after the subcontractor if the accident relates to him but in case of difficulty the management of the main contractor can be proceeded against. I know construction sites have to be monitored and there has been a lot of discussion in relation to these because these are areas with high levels of accidents. This provision will be a tremendous improvement.
There would be the added bonus of seeing that employees on large construction sites have proper insurance cover. This is a grey area at the moment. If the responsibility is placed squarely on the shoulders of the main contractor it would cover this aspect as well.
It is my advice that sections 6 and 7 will achieve the same result by imposing duties as regards safety and health on an employer not only in relation to his own employees but also in relation to persons not in his employment. I am advised that this will have the effect that Deputy O'Sullivan desires in his amendment.
In this case my amendment would copperfasten the legislation in the sense that if accepted all abuse would be ruled out.
Sections 6 and 7 cover the point anyway. We can proceed against an employer in respect of persons who are not necessarily on his own staff and that is what the Deputy is seeking in his amendment.
These sections do not impose the responsibility on anybody specifically.
The Authority would draft regulations for these industries. The construction industry is an obvious one because this is where many accidents happen. The Deputy's point is covered in the Act as well.
The Minister is saying the Authority will deal with that. The Authority's job will be to ensure that this document is implemented in full. All the necessary steps must be taken to ensure that there are no abuses of the safety code and I feel that my amendment is the best possible way of doing that.
On Second Stage I referred to the fact that many industrial accidents happen not because the safety requirements of the law are not met by employers but frequently because they are not observed by employees. While it is absolutely correct to impose stringent safety and health requirements on employers we have to do more to ensure that employees, in their own interests and in the interests of their colleagues, observe the safety laws and regulations. I speak with some experience in this respect because I was, for some years, a safety officer. In my experience there was little difficulty in persuading the employer, in this case Arthur Guinness, to provide safety shoes, ear muffs, fire doors or whatever, but we had great difficulty in getting those we represented to observe the regulations and use what was provided, and most of the accidents arose because of that.
As far as I can see section 9 is full of exhortation. Unless I am misreading it I do not see that any offence is being created by lack of observance and I know for a fact that there has not been a single prosecution since the foundation of the State against an employee who recklessly ignores safety procedures and regulations, ignoring their own safety and health and the safety and health of their co-workers. It is a feature of our legislation in the industrial and labour areas, and possibly a feature of our society, that we frequently emphasise people's rights, and that is absolutely correct, but fail to emphasise their responsibilities. If we are examining the whole raft of safety legislation in a detached way from the stand-point of preventing loss of life, loss of limb, loss of health and permanent injury in respect of workers, we will have to do more and more to highlight the need for workers to be conscious of their own responsibility for their safety and that of their work mates. We are not going to do that by mere exhortation. I would like the Minister to tell me if I am right in saying that there have been no prosecutions against employees who recklessly disregard safety procedures. I would like him to tell me what provisions there are here for sanctions against reckless employees.
The Deputy made this point on Second Stage. There are rights and duties on both sides. The Deputy is probably right that it has not been the practice over the years to prosecute employees.
I will answer the other questions raised by the Deputy. On the previous occasion and again today he raised the question of prosecution. An employee can now be prosecuted under section 48 of the Bill. It is important to point out that section 9 provides for basically the same general duties on employees at their place of work as currently exists under section 125 of the Factories Act, 1955, and as amended by the Safety in Industries Act, 1980. Even where an employer provides and maintains a safe place of work, safe plant and machinery and a safe system of work there is still a necessity to ensure that the behaviour of employees at work, whether by act or omission, does not endanger themselves or others. I think that covers the Deputy's point. The obligation on employees is quite specific and they can be prosecuted.
On the bringing into operation of section 9 certain provisions of the existing enactments will be repealed automatically in order to avoid overlapping or duplication. Subsection (1) requires an employee to take reasonable care of his own safety and health and that of others who may be affected by his acts or omissions while at work. Employees are required to co-operate with their employers and others such as sub-contractors on site to ensure compliance with the relevant statutory provisions. They are also required to use such protective clothing, appliances and so on as may be provided for their use so as to provide the protection intended. Employees are also required to report to their employer or immediate supervisor any defects in plant or equipment at their place of work or a system of work which might endanger safety and health of which they become aware. The latter duty is in addition to those which currently exist under the Safety in Industries Acts. I think that covers the points raised by the Deputy.
I am grateful to the Minister for that clarification. What provision is the Minister making for enforcement? The other main point I made on Second Stage of the Bill was one of general application to much of the legislation we pass here, that we do not make provision to enforce the legislation. I do not know any other country in Europe where the law is honoured more in the breach than in the observance. Whether in regard to road transport, health and safety at work or whatever, there is widespread lack of observance and lack of enforcement. In this House we are full of good intentions, like the road to hell. We pass well-meaning legislation but do not enforce it.
I said in this House — the Minister was not present during the debate — and I will raise it now in his presence, that this legislation will be extended to public departments and that is new. In this House there are fire doors all over the place. Like every other factory or firm I know, they are always left open when the whole idea is to keep them closed to prevent the spreading of fire. There is no enforcement in this area. Those doors are left open by ourselves, the employees in this House, and if there is a fire it will spread very quickly around the building. That is the case in many factories and office blocks. There is no enforcement and there is not enough consciousness in this regard but there would be if people were liable to more frequent prosecution. I do not want to see people prosecuted but I want people to be safe. I do not want us to pass legislation which is well-meaning but ineffective and that is the danger here.
We could impose on industry more costs, which would make it more difficult to employ people but, at the same time, end up with no safer work environment in reality. The theory might be right but in reality the position might be no better. That is why it is very important that when we pass legislation in this House we should satisfy ourselves about its enforcement. I am not at all satisfied that adequate provisions are being made for enforcement in this case. Anyone who has been in Government will know that in implementing the law passed by parliament the Minister needs staff. A memorandum is circulated to Government Departments, including the Department of Finance, but the staff required is not provided because there is a public sector embargo or a staff of two is provided when 20 are needed.
I know from my time as Minister for Transport that there are many illegal operators running buses and lorries that are not safe, that are overloaded and that certainly do not meet the safety requirements of this country or the European Community. They are competing unfairly against those who are observing the law but we have no means of enforcing the legislation because we cannot get staff from the Department of Finance as that will cost money. If we had the staff we could save a lot of money in areas where many people are not paying their road taxes, are using red diesel instead of white diesel and are defrauding the Exchequer.
I observe a straying somewhat from the section before us this morning.
I am sorry, Sir, I will not stray any further. I just wish to highlight a very real issue, especially in regard to health and safety regulations that of enforcement. In the transport case I cited, safety and health of workers is very relevant to the unsafe state of many vehicles on our roads. I raised the question on Second Stage as to whether this health and safety legislation covered the mobile workplace, the lorry cab or the bus cab. Enforcement is a very important aspect of all legislation but particularly health and safety legislation. It would be no good for the Minister or some successor to come into this House after some disaster when many people had died from burns, smoke inhalation or whatever and say that the safety regulations were there and all the safety requirements were met but they were not observed. That is what will happen unless a serious attempt is made to enforce the legislation.
I agree with Deputy Mitchell that no worker has the right to put the lives of his fellow-workers at risk and I think any sensible person would accept that. Is it not the case that there should be a proper disciplinary code in the place of work rather than in legislation? As I said earlier, the provision of safety should be the function of a particular person in any firm. If somebody creates a hazard for a fellow-worker he should be dealt with through the normal disciplinary code of that firm. Essentially, it would be extremely difficult to incorporate this in legislation but the responsibility should lie with the personnel manager, the safety officer or whoever is responsible. Some firms are fortunate enough to be able to afford a safety officer. Anybody who violates the safety code in a firm should be dealt with by his superiors. At times people have been suspended for dangerous and reckless behaviour in the workplace.
I notice that section 9 (2) indicates that no person shall intentionally or recklessly interfere with or misuse any appliance etc. Does that subsection apply to employees only? It comes under the description of general duties of employees. I do not see any reference to the same obligation under the general duties of employers. I wonder if "no person" includes employers as well as employee. While I take the point Deputy Mitchell made with regard to employees having a responsibility as well as a right, it may be that work practices in a particular place may force an employee to take short cuts in order to increase productivity, get orders out or whatever. I would like the Minister to clarify if section 9 (2) applies to employers also.
To take that question first, both employers and employees will be covered by that provision. With regard to Deputy Mitchell's point, I do not think he was wasting his efforts and considerable drive in introducing fines under the Transport Act because I have noticed a great many substantial fines under the red diesel and white diesel regulations. The regulations are being enforced.
I am glad to hear it.
I agree.
I tried to get things done when I was Minister. However, all the reports I am getting are to the effect that they are not being enforced.
There are more road checks. I know this is a result of Deputy Mitchell's legislation. I agree that the enforcement of legislation is important. It is not my role as Minister, his role as a former Minister nor the role of the Deputies who are working on this legislation, to implement legislation that will not be enforced. I assure the Deputies that all I can do to ensure that the legislation is enforced properly will be done. As against the enforcement of other legislation, we are in the good position that we are starting with a considerable number of staff on the ground. However, extra staff will be required over time to fulfil all the obligations of the Bill.
I will now deal with a number of other points the Deputy raised. Mobile workers are covered by the Bill. There are inspectors on the road making inspections for dangerous substances and such matters under the current legislation. As I said earlier, we have not taken prosecutions against workers but under the new system, employers and workers share the responsibility for safety and health. In this legislation we are trying to get across the message that safety is everybody's responsibility and nobody can say it is only the role of the employer to try to provide the facilities, instruments and clothing for safety. Deputy Mitchell gave some example where the employer was doing everything. Employees should ask for protective clothing. On construction sites there are certain instruments needed for heights and which are not provided by the employer but it is everybody's responsibility to ensure that there are safe work practices. This legislation attempts to highlight this very important point.
As Deputy Mitchell rightly points out the regulations in many areas are not being enforced because the people are not there to ensure their enforcement. However, this legislation provides that there be a safety plan at the workplace so it is not just confined to an Act or regulations that are filed away. The employers, the workers and their representatives have taken this matter very seriously. The Barrington Commission and the interim board have already commenced implementing certain provisions of the legislation but, like everything else it will be a case of educating people down the ranks. There is a far higher profile being given to this by both the Federated Union of Employers and the Irish Congress of Trade Unions. Under the Bill it will be a statutory obligation to have a safety plan which will have to be worked to. Deputy O'Sullivan made the point that there will be a safety officer responsible for implementing the safety plan, but it will be the overall responsibility of the corporate body. In Leinster House it will be the Ceann Comhairle——
Will you put him in jail if he does not implement it?
Yes. As I said on Second Stage this will happen if the breach is important enough. I hope this will not happen. If the breach arises in the Department of Labour, the Minister will be put in jail because that is what this legislation is about.
Do not tempt us.
I will come and visit you.
The powers are there and it is up to people to implement them. If people leave doors open and do not follow through on safety, it is up to the safety officer in the company to change this.
I can see a fire door open and it is just behind the Minister.
Last week I noticed in this building that somebody walked through a fire door that was supposed to be closed.
How are we supposed to get out if the door is closed? The primary responsibility for implementing the safety plan is on the employer but everybody has an obligation to work at safety. The Authority's role as set down in this legislation — and both employers and workers will be represented on the board — is to enforce the legislation and to promote safety and health through education, information and training.
On a general point there are many reasons, apart from accidents, hardship and insurance costs, that both sides of industry will be anxious to implement the legislation. Deputy Mitchell asked about a breach of section 9. This is an offence under section 48 (1) (a). The penalties which may apply under section 49 (2) are, on summary conviction, to a fine not exceeding £1,000 or on conviction on indictment, to a fine not exceeding £15,000 but there will be some discussion on this point later because there are amendments tabled to this section.
Amendments Nos. 10 and 96 are consequential. Is it agreed to take them together? Agreed.
I move amendment No. 10:
In page 14, subsection (5), line 44, after "substance" to insert ", or in a case where the manufacture was undertaken outside the State it shall be the duty of the importer,".
The purpose of these amendments is to provide where imported substances are concerned that the importer, instead of a manufacturer located outside the jurisdiction of the State, will be required to ensure that necessary research is carried out. Under section 10 (6) the importer will not be required to repeat any testing, examination or research which has been already carried out, if the results are reliable. The amendment to the Fourth Schedule is complementary to that relating to section 10 (5).
I move amendment No. 11:
In page 15, subsection (10) (b), line 34, after "article" to insert "or substance".
This is a technical amendment to correct an omission in section 10 (10) (b) in order to bring it into line with the rest of the subsection.
I have a query which perhaps relates more correctly to section 6, which I missed due to commitments to other business. The use of articles and substances at work relates I presume to substances and materials which an employee would have to use in the course of whatever process they are involved in. I wish to ask about the provision of safety equipment and materials and whether there is an obligation on the employer to ensure that the standard and quality of safety equipment or protective clothing has to meet a certain minimum specification. I note that section 6 (2) (f) states "suitable protective clothing" and I wonder if section 10 covers the quality of protective clothing and headgear. Is there an obligation on the employer to ensure that it meets minimum specifications?
Yes, it is actually covered by section 6 and there is an obligation on the employer to provide the proper safety clothing.
I move amendment No. 12:
In page 16, subsection (1), line 13, after "shall" to insert ",following consultation with safety representatives".
Apart from the publication of the safety statement I am asking that there be proper consultation between the employer and staff representatives. Nowadays I think it is usual to have a consultative process between staff and management and what I am asking for is not in any way out of line with what is happening in the workplace. On such an important issue as safety there should be proper consultation. I would ask the Minister to accept this amendment.
I cannot accept the Deputy's amendment as it goes further than he thinks. If the amendment were accepted it would dilute the absolute requirement on the employer to draw up a safety statement as he is obliged to do under the section as it stands. The question of consultation is comprehensively dealt with in section 13 (1) (a) where the employer must consult with his employees with regard to making arrangements to ensure safety and health. The Deputy's amendment would imply that there is not an absolute requirement on the employer in drawing up a safety statement.
I am trying to avoid any likely friction regarding the safety statement. If there is not proper consultation prior to the publication of the statement an employer could short circuit the requirements by taking unilateral action. It is necessary to have agreement before any statement is published. My amendment is the best way to achieve that. I differ from the Minister in that regard.
The Deputy's point about consultations is covered in section 13.
My amendment implies that there should be consultation and agreement.
Section 13 provides that the employer must consult with his employees with regard to making arrangements to ensure safety and health. They must try to get a safety policy they can both work to. The reason I cannot accept the Deputy's amendment is that there is an absolute requirement for the employer to draw up a safety statement. In section 13 (1) (a) the employer must consult but that requirement is omitted from section 12 to keep the section as strong as possible.
This amendment is central to the Bill. If there is not agreement an employer could insist on his way of doing things. Despite the reservations expressed by Deputy Mitchell on section 9, the record to date has shown that by and large most of the prosecutions were against employers who did not comply with the safety regulations. My amendment is one way of ensuring that the proper standards are set down in the statement and are observed. The only way to do that is through consultation. What I am asking is not unreasonable.
If a difficulty arose both sides could call in the inspectors to try to get agreement. Any problems that arose would probably be of a technical nature and they could be resolved with the help of the inspectors. In relation to the Deputy's other point, the safety statements have already received statutory backing in section 40 of the Safety in Industry Act.
The safety statement is a key element of this new scheme. It requires an assessment of the specific hazards and needs in relation to each enterprise to be carried out so that each enterprise would be in a position to pursue its safety and health objectives in accordance with the written safety policy statement. The aim of the statement is to involve management up to the highest levels in a clear programme of action to ensure compliance with the statutory safety and health provisions, to stimulate assessment and clarification of hazards and how to deal with them, to identify and assign clear responsibilities in relation to safety and health matters, to ensure a systematic follow-up of problems once identified, to ensure that resources are assigned to safety and health and to gain the commitment of all persons in the workplace. That is the philosophy that must be incorporated in this agreement. This philosophy cannot be rammed down somebody's throat but the employer has an obligation under law to present and discuss this safety plan.
If there is difficulty getting agreement the inspectorate could be involved but any good employer would want to clearly set down what he is about and what he is seeking to achieve under those headings. A good employer will have no objection to setting down how he wishes to perform his obligations under the Act to his staff and under insurance regulations and so on. I do not imagine there will be serious disagreement but if there is, an inspector could assist in resolving those difficulties.
I see this statement as being part and parcel of normal industrial relations and an effort to avoid pitfalls. My amendment would also take care of the reservations expressed by Deputy Mitchell on section 9 in respect of participation by the employees. The fact that the Minister has conceded that it may be necessary to call in an inspector to resolve difficulties, illustrates at a very early stage that it may be necessary for a third party to arbitrate. This is not the correct approach as all that could be avoided if there was proper consultation within the firm between management and employees' representatives.
By not accepting my amendment the Minister is excluding a very important element from the area of the safety statement. The Minister is putting the hands of the clock back in respect of normal industrial relations. The Minister knows what I am getting at. I feel very strongly on this issue because I, as a union official, have experience in this area. I am not an expert but I have experience with regard to safety standards in the place of employment.
We are dealing with a very important area. We are now talking about the whole basis of the legislation and that is the worker and the employer working together as a team to eliminate any dangers that may arise where accidents are concerned on the factory floor or wherever it may be. Section 13 (2) states that:
Employees shall have the right to make representations to and consult their employer on matters of safety, health and welfare in their place of work.
I know what Deputy O'Sullivan is getting at but I believe we are now talking about building up this kind of co-operation between worker and employer, working as a team, to ensure the elimination of any dangers that may exist within their industry.
In case we get to the stage where we think there is no consultation, as I said at the outset it will be noted that under section 13 (1) the employer must consult his employees regarding the making of arrangements to ensure safety in such matters. I outlined the aims of the safety policy, which are excellent; they are broad and cover anything that could be involved. The difficulties would probably be technical and that is where the inspectorate would be able to assist. They would not be involved in an industrial relations role trying to resolve them. The provisions of section 30 are based on the belief that if adequate safety and health standards are to be implemented in the workplace there is a need for dialogue and co-operation between the employer and workers. In broad terms the section requires employers to consult their employees on safety and health matters and it enables employees to choose the type of consultative mechanisms best suited for such discussions, it also empowers employees to appoint safety representatives to represent them in such consultations and to carry out certain other functions including the investigation of accidents and dangerous occurrences.
That is aspiration with all due respects. The only way to ensure that there is proper consultation between the safety representatives, workers and management is to enshrine it in this legislation. That is the only way to do it. We are expressing a wish that there would be proper consultation and let us enshrine it in this section.
What I am reading is from the Bill. Under section 13 (1) of the Bill there has to be proper consultation.
There is only one way of ensuring that that happens and that is to insert it in the section. That is central to the whole area of safety at work.
The point being made by Deputy O'Sullivan is valid. I am concerned with the statement by the Minister that he is anxious to ensure that the duty on the employer to prepare a statement is not diluted. I am wondering if there is an alternative way of achieving what Deputy O'Sullivan is attempting to achieve in relation to this section. Would it be acceptable to Deputy O'Sullivan, and would it avoid the dilution that the Minister is concerned about if the proposed wording was inserted elsewhere, say, as a subsection (4) (c) or a subsection (4) (d)?
The concern I have is that under section 12 the employer cannot use any device to avoid drawing up a safety plan and he cannot say that consultation is not working or that any of the mechanisms for consultation cannot be agreed. In section 12 there is an absolute requirement that the employer must draw up a safety statement. The point which Deputy O'Sullivan has made — and it is one with which I agree — is that there must be consultation on the safety plan. That is covered in the next section. He has an obligation to draw up a safety plan. It is an absolute requirement that he draws up that safety plan. He cannot avoid drawing up a safety plan by saying there is disagreement between the safety officer, the trade unions and some section of the staff. He must get ahead with the drawing up of the safety plan. I have outlined the aims of the policy. In section 13 it is clearly stated that he must consult with the workers. I do not think we can write in that they must reach agreement. I do not think we can go that far.
If it was proposed that the employees or their representatives could seek an amendment to the statement, that would enable consultation to take place subsequent to the obligation being fulfilled of actually making the statement. It would not dilute the obligation to make the statement but the employees would then be enabled to seek amendment to it and that would engage them in consultation. I do not know whether that would meet Deputy O'Sullivan's requirement.
Under section 13 they would be able to do that. The provisions of section 13 are flexible enough to allow such consultation arrangements to continue despite the repeal of the relevant provisions of the 1980 Act under which they are established. It is an open discussion once the employer has fulfilled his legal obligation to bring forward the safety plan. I think the Deputy's point is catered for.
The employer's interpretation of what his obligation is, is all we are getting here as the Minister has presented it to us in section 12. To ensure that there is no danger of shoddy work practices or people taking short cuts that could endanger lives, there must be proper consultation between the safety representatives and management. My fear, in the event of conflict, is that the inspector could be brought in. There would then be an environment where lives could be put at risk. In the workplace while the management and the safety representatives are arguing on whether there should be a guard on a particular machine or whether the scaffold is safe, the danger is still there. This is extremely dangerous and I would ask the Minister to give this matter consideration or, as suggested by Deputy De Rossa, to come back to us on a later Stage and perhaps incorporate what we are trying to achieve in the Bill.
If I thought there was a lack of consultation in these sections I certainly would bring forward an amendment. I would ask the Deputies to look at section 13 (1) (a), which states that it will be the duty of every employer
to consult his employees for the purpose of the making and maintenance of arrangements which will enable him and his employees to co-operate effectively in promoting and developing measures to ensure their safety, health and welfare at work and in ascertaining the effectiveness of such measures.
This provision is written into the legislation. Section 13 (1) (b) provides that it will be the duty of every employer
as far as is reasonably practicable, to take account of any representations made by his employees.
The areas a safety plan should cover are written into the legislation. I do not understand how an employer could get out from under that.
If this requirement is already provided in section 13 why can the Minister not incorporate it in section 12?
For the very reason I gave at the start of the debate — if it is included in section 12 it will dilute the absolute requirement in section 12 for an employer to have a safety plan. If an employer who does not like this Bill is given the opportunity under section 12 not to commence with the process of a safety plan, he will use this provision as a device for saying he cannot agree on the mechanisms for discussion or the delegation who will discuss the safety plan. I am seeking in section 12 to set down that there is an absolute requirement for every employer to have a safety plan and section 13 sets down the process of consultation, which I believe is strongly in the interests of workers.
Does the Minister not agree that the safety statement is central to the legislation? This is, as it were, the proclamation that safety standards will have to be set down in the safety statement. With all due respects, I believe section 13 is an afterthought and the only way to ensure that safety standards are maintained is to include them in the safety statement which will be put up on the wall in a factory or place of work so that everybody can see them.
I have read out already the conditions which much be met in drawing up a safety statement. These provisions are extremely broad and I will refer again to some of them: to involve management to the highest level in a clear programme of action; to stimulate action to ensure compliance with the statutory safety and health provisions; to stimulate assessment and clarification of hazards and how to deal with them; to identify and assign clear responsibilities in relation to safety and health measures — these responsibilities cannot be set down unless the roles of the employees and the employer are identified; to ensure systematic follow-up of problems once identified — again the employees will have to be involved in this process because it is no good setting down the difficulties and the hazards and trying to identify them if they do not have the good will of the employees; to ensure that resources are assigned, which will directly involve the employees; and to gain the commitment of all persons in the workplace. It is fundamental that any employer endeavouring to have a safety plan agreed should have the good will of the workforce. Those conditions and powers of consultation are provided in the Bill and the point raised by the Deputy is well covered.
With regard to sections 12 and 13, if an employer makes a statement on the safety requirements but in the course of consultation on how they are to be implemented the employees subsequently find that there is a material gap in the statement and they cannot convince an inspector that it is a serious gap, surely this could lead to problems between the employees and the employer, which could perhaps have been avoided at an earlier stage in the preparation of the statement. I think Deputy O'Sullivan has a point without, as the Minister is concerned, diluting section 12 in trying to find a way of ensuring that employees are satisfied with the generality of the statement being made by an employer.
If the Minister holds that the amendment as proposed weakens the obligation of the employer in section 12, then surely we should be searching for a means of ensuring that at some point the employees can propose amendments to that statement. There is nothing under the consultation process in section 13 which enables employees to propose amendments to the statement, the basic document around which the safety proposals and procedures will be built. Perhaps a statement could be included in section 12 (3) which would provide that a draft of the statement should be presented within 14 days and submissions made within a further 14 days. Maybe a formula should be included in the section whereby employees would have the right to say the statement is fine and should go ahead, or the statement is defective in one, two or three respects and should be amended, then if there is a dispute about a statement an inspector can be brought in. However, there should be some way of ensuring that there is a process of input from the employees.
I believe that input is already provided in section 13. If the system does not work, which is what we are arguing about, and difficulties arise, which I do not think will happen, the Authority could amend the statement by way of regulations. Section 12 (5) states:
Where a safety statement is prepared or revised pursuant to this section and an inspector is satisfied that the statement is inadequate in a material respect he may direct that the statement be revised and the employer shall comply with the direction within thirty days of the direction being given by the inspector.
I think this paragraph satisfies the Deputy's concern in this regard.
The Deputy's other point related to the problems which would arise if a safety officer of a firm failed to convince an inspector that a safety statement was adequate. In such cases the inspector, who would be representing the Authority, would try to get co-operation between employers and employees in ensuring that the legislation works. The function of an inspector would be to try to get a compromise so that the safety plan can go ahead. The employers and the unions involved must sit down together to draw up guidelines on safety statements for the information of employers and different employment sectors. As soon as the legislation is enacted we will try to get employers and unions in all workplaces to draw up guidelines on how the safety statements will work and as part of that, the Authority will be made up of the Congress of Trade Unions and the Federated Union of Employers who will try to ensure that there is compromise and that there will be agreed safety statements. Otherwise the legislation will not work.
I would be concerned if I did not think that adequate consultation was allowed for in the system, but I believe it is. The principle of the safety statement is contained in section 12 and the consultation process is contained in section 13. What is necessary is there; this is not an area of difficulty. I must, however, concede that something can always go wrong. If it does not work, a regulation will have to be introduced, but I believe it will work. The employer is asked to comply with the safety statement under section 12 and under section 13 to enter into consultation. The safety plan I have been working on has a number of sections in it which state that the employer must have consultation, otherwise he will get nowhere with the safety plan.
The FUE guidelines to employers and the Congress of Trade Unions guidelines to their members will be to seek agreement on these safety plans. Otherwise the whole philosophy behind the legislation would be defeated.
I am reluctant to introduce any note of acrimony into what has now become a very constructive debate. The only objection I can see to this is that the FUE are an employers' organisation. I am looking at the matter from a somewhat different perspective, from the workers' point of view. I have a certain bias. The employee is at a disadvantage in not having a position within the safety statement. It is absolutely necessary that he should have a role and this would come about by proper consultation between management and the safety representatives before the statement is published.
It would not be published without such consultation. To clarify one point, three members of the Authority will represent the employers and three will represent the workers.
I hope the Minister has not already picked them.
No. In the Department of Labour there would be little chance of picking anybody, because all these agencies pick their own members. I could never put friends in anywhere, which is just as well.
The advantage is that both employers and trade unions will be involved in the guidelines as to what the safety plan will be. They would have to stress that for that plan to work there must be involvement. There must be not just involvement but negotiation with the workers. There would be no point in an employer trying to draft a safety plan and railroad it through without input from the workers. I do not see Deputy O'Sullivan's comments as introducing any acrimony. If I felt that the workers were not getting full consultation, I would be in agreement with the Deputy's amendment. Under section 13, they are guaranteed that full consultation. My concern is that under section 12 an employer might drag his feet and that is why I have argued the point.
Are you pressing your amendment, Deputy?
Yes. I would ask you to put it to the House.
Is it agreed that amendments Nos. 15 and 17 be taken together? Agreed.
I move amendment No. 15:
In page 17, subsection (5), lines 27 and 28, to delete "(other than a tour of inspection for the purpose of investigating an accident)".
I cannot understand the rationale of the exclusion of an inspector or of the employer's representative from a tour of inspection. It is in this section that there is a problem. To exclude anybody following what could be a very serious accident is not in keeping with the spirit of the legislation. I ask the Minister to reconsider his position.
I cannot accept the Deputy's amendment to subsection (5), although I understand the point he is making. On the understanding that he will withdraw his amendment to subsection (6) (g), I do not see any difficulty in having the safety representative informed when an inspector calls to investigate an accident. That is the point the Deputy has just now made. This would certainly help to reduce suspicion and misunderstanding. However, the inspector must be free independently to investigate accidents and inquire into matters which could be quite sensitive. His investigations could very well have subsequent legal implications for either the employer or the workers. In the event of court proceedings, either party can produce their own evidence. In general terms, a considerable degree of latitude has been incorporated into the Bill with regard to the giving of information by an inspector to safety representatives.
This is without prejudice to the general idea of sections 1 and 2 where the employees appoint their representative. I have had experience of the employee selected sometimes becoming a victim of his work as a safety representative of the employees. He must go to the employer complaining on behalf of his colleagues and he could become very unpopular. On the other hand, a safety representative could be very disruptive and could be going every minute to the employer with some complaint or other. Where a representative of that kind is being selected on the factory floor, should there not also be negotiations with the trade union? This would be so that the best person would be selected. From my long observation of this area, I have seen people being victimised, being told that they were cranks. The House would say that they were about their job.
I want to raise a point somewhat unconnected with what Deputy Wyse has said. I do not know if the Minister wants to reply to Deputy Wyse.
On Deputy Wyse's point, I would agree with him. I would hope that the people involved would be of the highest calibre. However, I do not see that I could direct that. Perhaps the trade unions would resent somebody else deciding who should represent them on the safety committee. In normal cases the existing practices are good. I have presented safety awards and launched safety weeks and the people involved are recognised by the employers and the unions as having considerable capabilities in that area. They are given time and resources to encourage and cajole their workers to adopt certain practices. In promoting this Bill we will endeavour to ensure that we have the most capable people involved.
I know of a number of cases where a person was later deprived of his job. In cases of that kind the representative will feel he is a victim. I am not pushing anything but we should try to ensure the protection of the worker in that regard.
I take the Deputy's point but he was referring to a case where an employee took on a particular function where he could be isolated for other reasons.
I want to raise a general point on the duty of employers. Should we not be making provision in the Bill that at least industries or workplaces of a certain type should be required to have medical surveillance for their staff, depending on the nature of employment? There is no reference to this in the Bill. I am thinking of places where radiology or chemicals are used frequently. The Minister should consider this point for possible elaboration on Report Stage or in the Seanad. In many workplaces employers and employee representatives have agreed on annual medical surveillance which would involve possibly blood tests, X-rays, spirometry, eye tests and so on as well as a physical examination.
Is the Minister prepared to include provision for medical surveillance in workplaces of a particular nature? I would be agreeable to employing regulations in this regard as it need not have general application but could be of importance in cases of specific types of workplaces. The truism — prevention is better than cure — is as valid today as ever. There is no sense in closing the door when the horse has bolted. Medical surveillance could do an awful lot more to protect health and safety than many of the provisions in the Bill.
I agree with the Deputy but there is provision for medical surveillance in the Fourth Schedule. On page 54, item (21) provides for requirements to be imposed as regards the making of arrangements for health surveillance of persons at work, including medical examinations, biological monitoring or special health surveys. I take the Deputy's point and we attach great importance to prevention of illness. Many companies arrange medical checks for women and it is now a negotiated item. They arrange breast screening facilities which trade unions have asked for. I thank the Deputy for raising this important point and I am glad that it is covered.
I move amendment No. 16:
In page 17, subsection (6) (e), line 43, to delete "unreasonably".
This applies to wage agreements and inability to pay. It will be very difficult to determine what is "reasonable" as it will be open to interpretation. I see it as an area of potential conflict where the management may claim that something is unreasonable. For that reason it should be deleted as it puts the employer in an advantaged position and the workers' representative would have little right of appeal. I ask the Minister to accept this amendment.
The formula here for enabling safety representatives to carry out inspections was carefully worked out by both sides of industry on the Interim Board for Occupational Safety and Health. If there is a need in future to spell out the arrangements for such inspections this can be achieved through either regulations or codes of practice. I regret that I cannot accept the Deputy's amendment.
Will the Minister agree that it is an area of potential conflict? There will be lots of arguments centred on this section. Despite the protracted discussions which took place at the interim board level this amendment would be a positive step in ensuring that safety is maintained and that lives are not put at risk.
I take the Deputy's point that this is a controversial area but it was a carefully worked out balance between both sides. There was a lot of give and take on some of these aspects and compromises were reached. The interim board did a great deal of work on this and worked out a compromise on this and other areas. If it proves necessary to introduce a requirement for the carrying out of an inspection this can be done by way of regulations. That would be the road to follow. As the Deputy is aware, the question of changing the provisions in section 13 was a source of great debate but I would rather let it stand as it is.
We have the Barrington report in our possession but to my knowledge we do not have in our possession a report on the proceedings at inter-board level. Because I am not privy to this information I am at a bit of a loss and my reservations in regard to this section are as strong as ever. The Minister is at an advantage in that he knows precisely what took place at inter-board level. However, Members are not aware of what took place.
I accept the point the Deputy is making. I was thinking of the Barrington report and, therefore, I am privy to information to which the Deputy is not privy. There was controversy in respect of a number of areas but in the end a balance was struck following a lot of negotiation. We did spend a considerable amount of time on this matter. If it proves necessary in the future to spell out the arrangements as we will have to do in many cases, this can be achieved by way of regulations. I give a commitment to do this if a difficulty arises.
I move amendment No. 18:
In page 18, subsection (7), line 10, after "consider" to insert "and, if necessary, act upon".
I consider that the present wording is too weak and needs strengthening. We can do this by inserting the words "and, if necessary, act upon."
My advice is that the amendment is unnecessary as elsewhere the duties on employers as regards the ensuring of safety and health are set out. In addition the safety representative would have access to the inspector. Therefore, if there are matters the safety representative brings to the attention of the employer and on which action is necessary and if the employer is unwise enough to fail to act he would face action on the part of the inspector. Overall these provisions are designed to encourage co-operation between employers and workers in securing safety and health at work. Over emphasis on coercion would prove counterproductive in this area. As I have stated, the duties on employers as regards the ensuring of health and safety are set out in the Bill and the safety representative would have access to the inspector. Therefore a protection exists.
We do not wish to coerce anybody into complying with the safety regulations. There should be no need to do so. What I am saying is that the present wording in the Bill is weak in that an employer could go on considering for an indefinite length of time. The fact that we would have to involve a third party in resolving a problem indicates a weakness in the section. I ask the Minister to consider accepting my amendment for that reason.
I do not want to fight over straws. I will concede this time.
We now come to amendment No. 19 in the name of Deputy O'Sullivan. Amendment No. 20 is an alternative and therefore amendments Nos. 19 and 20 may be taken together by agreement.
I move amendment No. 19:
In page 18, subsection (8), between lines 27 and 28, to insert the following:
"(c) In pursuing their duties, safety representatives may not lose any position of seniority, rights to promotion or security of tenure.".
This amendment seeks to ensure that a safety officer would not be put in a disadvantageous position. Workers who allow their names be put forward for selection as safety representatives could endanger their promotional prospects or security of tenure as a result. Deputy Wyse already referred to this matter when speaking to an earlier section when he said that people who allowed their names be put forward could find themselves being discriminated against and it is because of this that I tabled this amendment which seeks to ensure that a person with the interests of his fellow workers at heart and who becomes a member of the board will not be put in a disadvantageous position.
I would like to remind the House that there is a printing error in amendment No. 20. That amendment reads:
Arising from the discharge of his functions under this section, a safety representative shall not be placed at any disadvantage in relation to this employment.
The word "this" on the last line should read "his".
In reply to Deputy O'Sullivan let me say that I accept the principle he is pursuing in amendment No. 19. However, I ask him to accept amendment No. 20, which contains a tighter wording. Therefore, while I accept the principle he is pursuing in amendment No. 19 I ask him to withdraw that amendment in favour of amendment No. 20.
I am prepared to do so.
I move amendment No. 20:
In page 18, between lines 27 and 28, to insert the following subsection:
"(9) Arising from the discharge of his functions under this section, a safety representative shall not be placed at any disadvantage in relation to his employment.".
We now come to amendment No. 21 in the name of Deputy O'Sullivan. I suggest that we debate amendments Nos. 21 to 25, inclusive, together. Is that agreed? Agreed.
I move amendment No. 21:
In page 20, subsection (2), lines 20 and 21, to delete ", and may be removed from office at any time,".
Let me ask the question: who would want to be the director general? The director general would have no security what-soever and there is no way that he could act independently given the terms being offered to him. This would be not in the interests of those who would be affected by this legislation.
The provisions contained in the Bill as regards the appointment of the director general are standard provisions in legislation of this sort. Usually they complement the contractual arrangements in respect of such appointments. The type of amendments proposed by the Deputy in respect of such appointments would introduce an undesirable degree of inflexibility. I regret therefore that I cannot accept them. Under section 18 (3) the director general would have responsibility for carrying on, managing and controlling the administration and business of the authority and shall perform such other functions as may be determined by the authority. A vital part of these functions and duties would undoubtedly be the reporting to the board of the Authority on the execution of settled policy and assisting the board in their discussions on the formulation of policy as well as all other relevant matters. This is the normal role that would be given to a director general. I do not consider that the amendments are necessary to ensure the appropriate participation by the director general at board meetings. In most State boards the director general or senior manager would normally attend board meetings and participate as directed by the chairman and members of the board. He would not be a member of the board. In most cases he attends all board meetings and answers in his executive capacity. They might often be chair-persons of the executive committees but on the boards in the vast majority of cases they would not be full members. I do not think the amendments are necessary.
Amendment No. 25 states the norm, but the director general could be excluded in this case particularly if any controversial issue was being discussed. That is extremely dangerous. It is absolutely necessary that the director general sit on the board. I am not seeking voting rights or anything like that for him, but part of his duty should be to attend every board meeting by right and not at the whim of the chairman of the board. The Minister should accede to this amendment to ensure that he has the right to attend.
That would be the position in practice but it would be for the authority to decide. All the agencies under my control are made up, as this one will be, by a majority of the social partners. It will be six to four in this case and the social partners always opt to have their secretaries general at the meetings. I do not think it a matter for us. It is an administrative matter for the board. The FÁS Act, for example, does not specify the secretary general. The chief executive of the Employment Equality Agency attends all board meetings without exception. It is a matter for the board concerned.
The Minister is making one miscalculation in that he is assuming they will be social partners. There is nothing to guarantee this arrangement will go on indefinitely, desirable though it be. At some later stage, the same sort of working arrangement may not apply within the partnership and the director general could be at a frightful disadvantage if it does not.
I see the Deputy's point. He wants to ensure this arrangement continues. I will write into the Bill that the social partners, three from either side, will always be on the board.
A director general could to a large degree be dependent on the judgment of the chairman who may at any time exclude him, and that may not be in the best interests of the people we are trying to protect.
The social partners will always be a majority under the provisions of this Bill; there will always be six. It is the practice to have general secretaries attend. The Deputy can be assured they will operate that system. In important decisions in none of the boards under my aegis as Minister for Labour, have the social partners left out the director general. Their normal practice, but perhaps not at every meeting, is to have the director general, general secretary and CEO attend.
On Second Stage Deputy O'Sullivan touched on a very important aspect of the Bill when he raised the question of the activities of the Authority. Can a Deputy question the Minister on the conduct or misconduct of the director general? Normally questions regarding a State-sponsored body are asked of the director of the State-sponsored body. In this case, I am very keen to see every possible opportunity open to Deputies to question the activities of the director general.
The Deputy has probably been frustrated by some replies to questions in regard to day to day matters. If they are administrative matters, Ministers do not answer. However, the Deputy seems to imply that he is thinking about policy matters. If it was a serious breach of conduct or maladministration it would be a policy matter, and it would be for the House to decide on it. In such a case a Deputy would be entitled to put down a question.
Section 18 (2) provides that the first director general shall be appointed, and may be removed from office at any time by the Minister. Is this normal practice?
Yes.
In other areas perhaps, but here one could be determining whether people's lives could be put at risk, and the Minister still insists it is necessary to have the power to remove him. Would the Minister not consider, as I have suggested, that the first director general be appointed for a minimum of three years, and that he would operate more efficiently and with greater independence if he could be assured he is in office for three years? There could be a change of Government or another Minister may not be favourably disposed towards a director general and for some spurious reason would have him removed from office. Does the Minister not think that by accepting my amendment that the first director general be appointed for three years, he would be appointing somebody with clout and independence whose judgment will not be affected by the threat to his employment? We have said that the promotional chances and security of tenure of safety representatives may be put at risk by virtue of their involvement on safety committees. It could be very easy for the director general in this case to be compromised because a Minister can hold the axe over his head at any time. That is not the proper environment for a man in such a position to be working in.
I am not rejecting the principle of Deputy O'Sullivan's amendment, but in practice the Minister would appoint the director general and the director general would then be given a contract with various conditions laid down. Normally contracts in semi-State boards such as this are for five years. That contract would have to be cleared in this instance by the Department of Labour with the Department of Finance. The normal term is five years, so the recipient of the first contract will be held to it, and I imagine the contract will be for five years. That provision would be set out along with other conditions on pensions, sick leave, benefits and entitlements in the letter of contract, which is now fairly standard. It varies slightly with the agencies but normally the chief executive of a semi-State company gets a five year contract from the Minister of the day. I am not rejecting what the Deputy is saying but probably it will be effectively five years.
The Minister understands what I am trying to achieve. Maybe the manner in which the matter has been presented is questionable. I am not suggesting the director general should not be subject to supervision by the Minister and his Department or that he should not have a great deal of scope to perform his tasks efficiently. The Minister obviously has very set views on this issue. He is using precedent which in this case may not be the best course of action. We must agree to differ on this issue.
Sections of this Bill have been taken directly from the Acts dealing with Eolas, Teagasc and FÁS. When the Authority is appointed the Minister will appoint the first director general but thereafter appointments will be made by the Authority. The Minister will give a contract of employment but I would have very little room for manoeuvre. It is a set contract drawn up by the Department of Finance for directors general and chief executive officers of semi-State companies. The salaries, conditions and pensions are set down and the contract is normally for five years. This is the normal standard practice. There is nothing sinister in it.
The Minister has cited FÁS but he will admit that the role of FÁS and the role of the director general in this instance will be entirely different. I am concerned that the type of contract offered to the director general may interfere with his independence and may compromise him in some way. If there is some issue involving a Government Department who are negligent regarding safety standards, there is a possibility that pressure could be put on the chairman. That would be extremely dangerous.
The Authority will have the legal powers and the protection of the director general lies in those powers. I take the point that if he intended to prosecute the Department of Labour the Minister of the day might try to get at him. The Authority are answerable to the Minister for Labour in broad policy matters but they would be totally independent in regard to day-to-day matters. Responsibility ultimately rests with the Minister but in this case the director general would have to be responsive to the demands of his employer, the Minister for Labour, through the Authority. The director general will be well protected. I understand the Deputy's point but the legally empowered body is the Authority.
The Minister has ultimate authority in this area. The director general will be in a very vulnerable position. He will be doing more than fulfilling a management role. At times he will have to act as arbitrator in areas of conflict and he could be compromised. I am insisting on some consideration being given to these amendments to ensure the independence of the director general.
I do not know how that could be done. In the case of all agencies it is the Minister who has the final statutory function. In this case it is delegated to the Authority, who will be the day-to-day administrators. They will come back to the Minister on certain policy issues. The director general appointed by the Minister in the first instance and given a contract to be chief executive of a State company has his protection in that contract and in the legal powers of the Authority, who will be made up of the social partners. He will be answerable to them as his employers. If the Authority instructed him to issue a prohibition notice against some State or semi-State body, he would do so on that instruction. I could not say that the Minister of the day would not try to involve himself in doing something about it, but it would be wrong for him to do so if part of the arm of the State was breaking the regulations and the inspectorate saw fit to go to the Authority to seek a prohibition notice. A Minister would be very unwise to involve himself in trying to block a prohibition notice or to put undue pressure on a director general.
I repeat that this is a standard clause. There is nothing further I can add.
Ministers have acted unwisely in the past.
I cannot speak for unwise Ministers; I can only act for myself.
They do it every day.
The protections are there and the Authority have the legal obligation to carry out the legislation. If something wrong happens after that, I am sure the House will debate it.
It is very difficult in this House to raise matters relating to bodies such as FÁS and Teagasc. I have put down questions to the Minister for Labour relating to them but I have been referred to the individual bodies. Is there a pattern in all this? It seems to be a feature of the legislation introduced by this Minister that he sets up independent authorities and as a result he has had a fairly easy ride at Question Time. I am not saying there is anything wrong with this, but it is taking away from this House the right to probe deeply into the activities of some of these organisations. That is why it is absolutely essential that the director general be independent and not subject to pressure from any Minister. This is my main concern and I would ask the Minister to consider it.
Regarding Question Time, I would often prefer to answer a question rather than refer it to FÁS or one of the other bodies. The rule in the House is that only policy questions relating to semi-State organisations are raised here. Not many years ago there were hundreds of questions on the Order Paper dealing with posts and telegraphs issues but responsibility now lies in the semi-State area and such questions no longer appear on the Order Paper. There is a number of agencies under the aegis of almost every Minister. FÁS is now just over a year old and and has been taken out of the ambit. It is difficult to decide what is policy and what is not. I leave it to the people in the House to discuss.
