I move: "That the Bill be now read a Second Time."
The Safety, Health and Welfare at Work Bill 2004 represents a modernisation of our occupational health and safety laws. It is significant social legislation which affirms the Government's interest in ensuring that labour law is kept up to date and relevant. The Bill's publication in 2004 by the Minister of State, Frank Fahey, coincided with the establishment of the Personal Injuries Assessment Board, which makes this a significant year. Issues of compensation and prevention are being seriously addressed. The Bill updates and amends the provisions of the Safety, Health and Welfare at Work Act 1989 which was steered through the Oireachtas by the Taoiseach who was then the Minister for Labour.
The Safety, Health and Welfare at Work Bill consolidates safety, health and welfare primary legislation into one statute and includes the provisions of framework Directive 89/391 on safety and health and the directive on fixed-term and temporary employees. While its primary focus is on the prevention of workplace accidents, illnesses and dangerous occurrences, the Bill provides also for significantly increased fines and penalties which are aimed at deterring the minority who continue to flout safety and health laws. The Bill includes a scheme for which regulations will be necessary whereby on-the-spot fines can be introduced for minor safety and health offences. It also provides that directors and managers in companies can be held liable to prosecution if they are complicit in deaths and accidents at work.
This legislation sets the scene for achieving further improvements in the national record on safety and health over the next few decades. The presentation of the legal requirements set out in legislation is improved and simpler language is used where possible to help employers and employees to understand its content. The Bill includes a basis for reviewing the remaining older statutes on safety and health with a view to their possible repeal and replacement with modern regulations made under its provisions. The Bill imposes some additional new duties on employers and employees and strikes a balance between the roles and duties to be placed on them. It includes important new protection for employees against penalisation for exercising rights or duties related to safety and health at work and contains new provisions on safety consultation between employers and employees. These provisions include new supports for safety representatives and the recognition of safety committees. The Bill also updates the rules on corporate governance of the Health and Safety Authority.
It is useful to reflect on the background to this legislation. The 1989 Act applied safety and health laws for the first time to all Irish employments. It implemented recommendations made by a tripartite commission of inquiry into occupational health and safety which was chaired by Mr. Justice Barrington. The introduction of the 1989 Act coincided with the recognition internationally that prevention of accidents and ill health at work was better than to continue with the reactive approach of enforcement alone which had been in vogue previously. Significant progress was made on the basis of the 1989 Act. There is now a greatly increased awareness of occupational safety and health among employers and workers and preventative measures are in place in many instances. While the efforts of employers, workers, the Health and Safety Authority and other stakeholders have brought about a reduction in the rate of deaths and accidents at work since the introduction of the 1989 Act, more can be done. There continues to be an unacceptably high level of deaths and accidents at work.
In 2002, the latest year for which figures are available from the Central Statistics Office, it is estimated that nationally 117,800 persons suffered injury at work or occupational illness arising from work activities. This resulted in the loss of 3.16 million workdays among those in employment as opposed to 21,000 days lost to industrial disputes. Days lost to industrial accidents and illness in 2002 alone exceeded those lost through industrial disputes over the past ten years. The rate of injury and illness among those employed decreased by 15% between 1999 and 2002 despite the growth in employment. However, the human cost arising from death, pain and suffering makes an unarguable case for ensuring that our social legislation in this area is relevant to changing conditions of work.
The most common injuries reported to the Health and Safety Authority for all employment sectors were injuries involving handling, lifting and carrying, at 34%. Slips, trips and falls accounted for 26% of injuries. In the defence and health sectors of the public health service, the next most common incident was violence in the workplace. Occupational illnesses tend not to be reported to the Health and Safety Authority which is a matter I would like to address when I review the regulations which apply. In 2003, 65 people died as a result of work activities. While this figure represents a reduction of 25% in the rate of deaths at work since 1998, it is unacceptable. No death at work is acceptable and we require the further measures outlined in the provisions of this Bill to bring about further reductions in this area.
It is particularly relevant to note that there are now 1.9 million people employed in our economy as opposed to only 1.2 million in 1989. As many of those at work in 1989 have by now left the workforce, it is important to use this legislation to re-launch and promote worker health and safety and focus on the well-being of the many who have joined the workforce during our time of economic success.
While the reduction of accidents and ill health at work is an important social goal considering the pain and suffering caused to individuals and their families, there are also important economic factors to consider. A range of costs accrue to the economy from the injury of people at work, including direct costs to the State's health services and social insurance. There are costs to employers, including insurance costs, lost time, lost production and lost orders. Injuries and ill health at work are conservatively estimated to cost the economy up to €1.6 billion each year. The absence of a key worker through injury from a small or medium-sized company could have disastrous results for it and the other workers. Adopting additional measures to encourage reductions in accidents and illnesses at work makes good economic and business sense.
Occupational safety and health have been significant elements of social policy in the European Union over the past 25 years. Since the framework directive on safety and health was adopted in 1989, a considerable range of directives have been put in place to cover particular employment sectors or risk groups. All these directives have been implemented in Irish law under the auspices of the 1989 Act. As we played our part in the negotiations on these directives, we were guided by the principle that they should be workable and avoid holding back the development of small companies.
The Minister of State, Deputy Kitt, charged the Health and Safety Authority with the task of reviewing the 1989 Act. I thank the board of the authority, its chairman, Mr. Frank Cunneen, and Mr. Joe Hegarty, the chairman of the review group, for the comprehensive report and recommendations which were produced. I have found it possible to address the majority of the recommendations in the Bill. I look forward to the continued co-operation and commitment of the various stakeholders in giving full effect to the Bill when it is enacted.
The 1989 Act and the new Bill are framework in nature. They focus on broad general duties and the organisational and structural arrangements necessary to achieve better safety and health. The regulations implementing directives put flesh on the detailed requirements needed to identify and deal with specific hazards in the workplace. Welcome indications of the success of our efforts were evident in a report published this year by EUROSTAT which showed that Ireland had the lowest rate of accidents at work among 15 member states of the European Union. We have the fifth highest number of deaths at work, which figure we must reduce. We can and must do better from a social point of view and from the perspective of maintaining our competitiveness by reducing the costs which can flow from accidents and illnesses in the workplace.
A report published by the European Commission this year on the implementation of a number of the health and safety directives illustrated that there continues to be a lack of awareness in small companies about safety and health. A great deal of work must be done to implement information and training measures. The report also pointed to a poor level of compliance in the public sector across the European Union. The public sector in Ireland employs many people in health services, education and so forth and I will be looking to them to make significant improvements in our national record.
I will now outline the main features of the Bill. One of its aims is to encourage a responsible attitude on the part of employers and employees. It is appropriate to provide for a system of on-the-spot fines by inspectors.
Section 79 provides that the level of the on-the-spot fine shall not exceed €1,000 and will be detailed in the regulations. I will propose a relatively low fee initially. I will identify in regulations the employment sectors and the minor offences to which the fine will apply. The authority will not initiate a prosecution before the due date of payment of an on-the-spot fine. If payment is made on time, no prosecution will be launched.
Section 13, which deals with duties of employees, provides that they must comply with relevant safety and health laws; not be under the influence of an intoxicant in the place of work to the extent that the state they are in is likely to endanger their safety, health or welfare at work or that of any other person; not engage in improper conduct or behaviour; wear personal protective clothing where necessary; co-operate with employers and look out for one another; and not do anything which would place themselves or others at risk. Where an employee is working in a safety critical situation, he or she, subject to regulations, may be required to undergo a periodic medical assessment of fitness to work. Some concern has been expressed regarding one of the provisions of section 13 which relates to possible tests for intoxicants. It is only in particular circumstances or sectors that regulations may set down requirements whereby an employee must, if reasonably required by his or her employer, submit to independent tests by a competent person which are appropriate, reasonable and proportionate. There will be widespread consultation on these regulations.
It will continue to be a requirement of every employer to have a written safety statement which identifies the risks and hazards in the place of work and, under a new requirement, it will have to be reviewed annually. A novel feature is that an employer with three or fewer employees can meet the safety statement requirement by adhering to a special code of practice to be developed for a particular industry or sector by the Health and Safety Authority. This will reduce the onus on business and the likely beneficiaries will be in the farming sector and small businesses in the maintenance and service sectors.
Section 77 provides for two categories of offences. The first applies to less serious matters and the second covers the more serious offences under health and safety laws. I welcome the increased recognition given by the courts to the seriousness of committing safety and health offences and the increases in the level of fines in recent years. It is necessary and appropriate to reflect this trend in the Bill to send a clear message to those tempted not to comply. Too much is at stake. Section 78 provides for a fine not exceeding €3,000 for a person found guilty of an offence under the first category of offences set out in section 77 applying to less serious offences. A person guilty of any other offence set out in section 77 is liable, on summary conviction, to a fine not exceeding €3,000 or imprisonment for up to six months or both. On conviction on indictment for a more serious offence, the maximum fine is €3 million or imprisonment for up to two years or both. In addition, the person convicted can be ordered to pay the authority's costs and expenses.
Primary responsibility for worker safety and health falls on employers, including in private companies and in the public sector, because it is, in effect, they who create the risks. Responsibility begins at the top. Company directors and managers therefore carry a significant social responsibility to protect safety and health. In 2003, 11 convictions were obtained against directors, managers and employees. The placing of greater emphasis on this responsibility will alert directors and managers thereto. It will help focus their minds on compliance with the requirements on companies to ensure competent persons are available to advise on health and safety issues and to implement safety measures.
Section 80 makes explicit the responsibilities of directors and managers. It adopts an evidence-based approach. It provides that when an offence under health and safety laws is committed by an undertaking and the acts involved were authorised or consented to or were attributable to connivance or neglect on the part of a director, manager or other similar officer in the undertaking, both the person and the undertaking will be guilty of an offence and liable to be proceeded against and punished as if the person was guilty of the offence committed by the undertaking. If it is proven in such a case that the person's duties included making decisions that affected the management of the undertaking, it is presumed, until the contrary is proved, that the acts which resulted in the offence were authorised, consented to or attributable to connivance or neglect on the part of that person.
A full set of definitions is set out in section 2, including important new definitions of the terms "competent person" and "reasonably practicable". These definitions are included, in part, so as to satisfy concerns of the European Commission on implementation of the framework directive. The definition of competent person provides a basis for the orderly recognition of various qualifications in safety and health introduced over the past two decades. The term "reasonably practicable" used in the Bill and also in the 1989 Act seeks to qualify the broad based duties on employers which stem from the common law duties of care which are difficult to interpret in absolute terms. The new definition is focused around compliance with current best standards in safety and health.
Section 7 provides that health and safety must be complied with by self-employed persons as if they were employers and as if they were their own employees. There are many who are self-employed including in construction and agriculture. Part 2 of the Bill sets out the duties which are appropriate to employers, employees and others who can influence or effect safety, health and welfare in the workplace.
Section 8 sets out the general duties of every employer to ensure, so far as is reasonably practicable, the safety, health and welfare of employees. These include duties in regard to the management and conduct of work, preventing improper conduct or behaviour, providing safe workplaces, safe means of access and egress, safe plant and machinery, providing articles and substances that are safe to work with, protecting against noise, vibration or radiation and providing safe systems of work. The employer must also provide welfare facilities and the necessary information, instruction, training and supervision to ensure safety and health. He or she must also decide on and implement any safety, health and welfare measures which are necessary and provide protective clothing and equipment as appropriate and have emergency plans in place. Employers may be required by regulation to report to the authority accidents to employees and dangerous occurrences. Regulations to support this requirement are already in place. The employer's duties also extend to fixed-term contract or temporary contract employees. Under section 8, employers cannot charge employees for safety and health measures.
The availability of good information is critical to the avoidance of accidents and ill health at work. By now, a great deal of practical information on how to deal with workplace hazards is available, including from the Health and Safety Authority. Section 9 sets out in greater detail the types of information on safety, health and welfare required to be given by employers to employees under section 8. The information must be in a form, manner and language that can be understood. This will also help to protect immigrant workers who contribute to our economy. Work on language versions of guidance documents is under way in the Health and Safety Authority. They must include information on hazards, risks and measures taken as regards safety, health and welfare and the names of emergency staff and safety representatives. Employees of another employer working in the place of work must also be informed and there is a duty on such employees to co-operate with one another.
The competent persons who must be appointed by the employer under section 18 and safety representatives, if any, must be given additional information on risk assessment and on accidents and dangerous occurrences. The employer must also give fixed-term and temporary employees information on any potential risk, health surveillance and any special skills required for the job. An employer who hires an employee through a temporary employment business must inform that concern of the skills required for the job and its specific features and ensure the information is passed on to the employees. The temporary employment business is obliged to give the same information to employees. These are important provisions considering many people are recruited through employment agencies.
Analyses of accidents and illnesses at work show that they often happen where workers are not supervised or given instructions or training in how to work safely. Young workers are especially vulnerable in this respect. Section 10 sets out the specific requirements in the instruction, training and supervision of employees by employers in support of the general duty in section 8. Instruction and training must be given in a form, manner and language that can be understood. Employees must also be given training in safety and health and time off from work and at no cost. Training must include information and instructions in the job to be carried out and emergency measures. In assigning an employee to a job, the employer must take account of his or her physical and mental capabilities. In the case of groups of particularly sensitive employees and employees covered by specific safety and health legislation, such as pregnant women or young workers, the employer must ensure they are protected against the specific dangers involved. In cases where legislation requires specific health and safety training, such as in construction, employees must be released for training without loss of pay.
Section 11 provides for the measures to be taken by the employer in emergencies and in the case of serious and imminent danger in support of the general duties on employers in section 8 to have plans and procedures for emergencies. The measures must cover first aid, fire fighting and the evacuation of employees and others present in the workplace, as well as contacts with the emergency services and the designation of employees to carry out the emergency plans.
Section 12 provides that an employer must manage and conduct business, as far as is reasonably practicable, so that other persons present in the place of work while work is in progress are not exposed to risks to their safety, health or welfare. This would apply, for instance, to visitors or delivery people entering a business and recognises that the employer is the person in control.
There is now a far greater recognition of the problems caused to workers by stress, violence and bullying at work. Guidelines and codes of practice have been published on these issues, which need to be recognised in our legislation. In line with a corresponding duty on employers in section 8, an employee must not engage in improper conduct or other behaviour that could endanger his or her safety, health and welfare at work or that of another person.
Section 14, which applies to any person, specifies that no person should intentionally, recklessly or without good cause interfere with, misuse or damage any thing provided to protect the safety, health and welfare of persons at work. This means not interfering with safety signs or safety devices. The section also provides that no person shall place at risk the safety, health or welfare of persons in connection with work activities.
Under Section 15, a landlord who controls premises used as a place of work must ensure, as far as is reasonably practicable, that the place of work, access and egress and any article or substance present is safe and without risk to health.
Section 16 places duties on any person who designs, manufactures, imports or supplies any article or substance used at work to ensure that, as far as is reasonably practicable, it can be used safely and without risk to health at work. It must also comply with any relevant legislation that implements a directive of the European Union and be properly tested and examined to meet these requirements.
Section 17 applies to the construction industry and sets out duties to be complied with by persons who commission, procure, design or construct places of work. They must appoint a competent person or persons to ensure, as far as is reasonably practicable, that the place of work is designed and is capable of being constructed not to present risk to safety and health; that it can be maintained without risk to safety and health when in use and that it complies with health and safety laws. There are already regulations in place implementing an EU directive on safety in construction and these regulations will be updated to ensure they measure up to the Bill.
Part 3 focuses on prevention, which is critical to the reduction of accidents and illnesses at work and to ensuring safety, health and welfare of work. Section 18, in support of section 8, requires the employer to appoint one or more competent persons to enable him or her to comply with health and safety laws. In a low-risk working environment, the employer may be capable of dealing with risks to workers and this is permitted. In any other case, a person competent in safety and health must be appointed. This, depending on the complexity of the risks, should preferably be a trained specialist recruited to the company or an employee who has been trained. It can also be an outside competent consultant. This is in line with the requirements of the EU Framework Directive 89/391.
The employer must also ensure co-operation between competent persons and with any safety representatives appointed. The employer must provide the competent person with information on factors that affect the safety, health and welfare of the employees, the risks involved, and the protective measures in place.
To prevent accidents and ill-health at work it is essential to identify the hazards in the workplace. The most common hazards include dusts and fumes, noise and vibrations, electricity, manual handling of loads, transport hazards, machinery, falls from heights, dangerous substances, fire, explosives, radiation and poor maintenance of the working environment.
It is also necessary to assess the level of risk presented by the hazard. Some hazards may be controlled while others may present a risk. Where there is a risk, protective measures must be identified and implemented. The necessary resources must be committed. There is by now a great deal of guidance available on workplace hazards, the risks they present and how to protect against them. There are also detailed regulations applying to the most serious and common forms of hazard.
Section 19 provides that every employer and every person controlling a workplace must identify the hazards at the place of work, assess the risks from those hazards and have a written risk assessment of them as they apply to employees, including any single employee and group of employees who may be exposed. In carrying out the risk assessment the employer must take account of health and safety laws that apply. The employer must implement any improvements in safety, health and welfare arising from the risk assessment.
Section 20 provides that every employer must have a written safety statement based on the hazards identified and the risk assessment carried out under section 19 setting out how the safety, health and welfare of employees will be secured and managed. I have already referred to safety statements in the context of small businesses and the farming sector.
Safety statements must set out the hazards identified, the risks assessed, the protective and preventive measures and the resources allocated to safety, health and welfare. They must also include details on the duties of employees as regards safety and health, the names and job titles of persons assigned tasks under the safety statement and the arrangements for the appointment of safety representatives and safety consultation in the place of work in compliance with sections 25 and 26. The names of the safety representatives and those on the safety committee, if appointed, must be included.
The risk assessment and the safety statement must be brought to the attention of employees at least annually, or when amended, and to others at the place of work exposed to specific risk. Where specific jobs pose serious risk the employer must give relevant extracts of the safety statement to the employees affected covering the risk, the risk assessment and the safety measures taken. The risk assessment and the safety statement must be reviewed and amended if necessary at least annually. This is an important addition to the current requirements under the 1989 Act.
I look to large companies and public sector bodies to set an example by checking that service providers have safety statements. Under the good neighbour principle, and as large employers are better resourced, they can often help and advise on what may be required. Section 20 also provides that employers in employment sectors, which will be detailed in regulations, who contract for services to be provided by another employer, must ensure that that employer has an up to date safety statement.
Surveys undertaken by the Health and Safety Authority in 2003 reveal that while 90% of companies employing more than 50 persons had a safety statement, this falls to 56% in companies employing up to 50 persons. The safety statement is the essential management tool for managing safety and health at work.
In the complex world in which we live now, our safety can depend on those who carry out tasks that can affect many people if matters go wrong. Examples include tower crane drivers on building sites, public service vehicle drivers, drivers of dangerous goods vehicles or those who operate process plant in the chemical industry and many others.
Section 23 gives the right to the employer, subject to the making of the regulations which will name the types of employment concerned and under what circumstances, to require employees to be assessed by a registered medical practitioner as to fitness to carry out work that presents critical risks to the safety, health and welfare of persons at work. If the registered medical practitioner is of the view that an employee is unfit to perform such work, he or she must tell the employer and the employee, giving the reasons for it and the likelihood of early resumption to facilitate rehabilitation. There will be consultation on any regulations that may be introduced under this heading.
If an employee covered by this section suffers any disease or illness likely to add to risks, he or she must immediately tell the employer. If either the registered medical practitioner or the employee informs the employer, the employer must take action to comply with the general duties under section 8 as regards a safe place of work.
With the level of knowledge that now exists on safety matters, there is a basis for encouraging greater partnership between employers and unions to come together to set safety standards in particular employment sectors to support the legislative provisions. We also need a basis to give recognition to the agreements being reached under the European Union social dialogue arrangements, which are tackling such issues as teleworking and stress at work.
Section 24 provides that trade unions and bodies representing employers can make agreements setting out practical guidance on safety, health and welfare, and the requirements of health and safety laws, and can apply to the authority for approval of an agreement or of its variation. The authority can approve a joint safety and health agreement if the agreement stipulates that it applies to all employees in a particular class of employees. The parties must make copies of agreements available for inspection by any person affected. This a novel feature of the Bill and I look forward to seeing how the social partners will work it.
In assessing compliance with health and safety laws, the authority must take account of an approved joint safety and health agreement, whether or not an employer in an employment sector covered by the agreement is a party to it. Consultation on safety and health between workers and their employer is critical to the prevention of accidents. In addition to their personal interest in their own well-being, workers have an intimate knowledge of the conditions in which they work and the wise employer will take note of and learn from their experience. The concept of the worker safety representative was introduced in earlier legislation. I commend the many individuals who volunteered and underwent training to act as safety representatives. The trade union and employer bodies have provided extensive training.
Surveys by the Health and Safety Authority in 2003 showed that in 74% of companies employing 50 or more persons, workers had appointed safety representatives but in companies employing up to 50 workers this fell to 15%. Despite all efforts I believe that safety representatives need additional support in their challenging role. Section 25, therefore, is devoted solely to them. It contains some additional supports and I have included others in later sections. I encourage the representative bodies to match these initiatives by providing support services for safety representatives.
Section 25 entitles employees to decide on a safety representative, or more than one, if the employer agrees, to represent them in consultations with the employer on matters of safety, health and welfare. The safety representative has the right to inspect the place of work having given reasonable notice to the employer. The employer must be reasonable as to the frequency of inspections. The safety representative can inspect immediately if there is an accident, dangerous occurrence or imminent danger or risk to safety, health and welfare. The safety representative may also investigate accidents and dangerous occurrences provided this does not interfere with another person carrying out duties under health and safety laws.
Providing for broader consultation between workers and their employer, section 26 places a duty on the employer to consult the employees so as to make and maintain arrangements to enable the employer and employees to co-operate to promote and develop safety, health and welfare and to monitor, the effectiveness of those arrangements. As part of the arrangements, the employer must consult the employees and their safety representatives on any measure likely to substantially affect safety, health and welfare. The employer must also consult on the designation of employees having emergency duties under section 11; actions taken relating to protection from and prevention of risks; the hazard identification and risk assessment under section 19; the preparation of the safety statement under section 20; the information required to be given to employees under section 9; information on accidents and dangerous occurrences notified under section 8; the appointment of competent persons under section 18; the planning and organisation of training under section 10; the planning and introduction of new technologies and the implications for safety, health and welfare of choices available as regards equipment, working conditions and the working environment. As a corollary, employees have a right to make representations to and consult their employer on matters of safety, health and welfare.
A system of safety committees in factories was provided for under the Safety in Industry Act 1980 and many such committees continue to work effectively. I am very happy to respond to the desire of employer and union bodies to give recognition in the Bill to safety committees across all employment. They could operate effectively in other sectors, including, perhaps, in the health care sector and in shops and offices. If therefore a safety committee is agreed in the undertaking, which can meet the requirements I outlined, the safety committee can be used to meet the consultation requirements under this section. The organisational arrangements for safety committees are set out in Schedule 4.
It is timely to send a strong signal that employees should not be penalised for acting in good faith in the interests of safety and health. Section 27 prohibits an employer from penalising an employee for acting in accordance with or performing any duty or exercising any right under health and safety laws, or making a complaint or a representation about health and safety to the safety representative or to the employer or to an inspector.