I draw the attention of Members to an error in amendment No. 14. The reference to (a) is incorrect and should read (b).
Safety, Health and Welfare at Work Bill 2004: Report Stage.
I had spotted it.
Amendments Nos. 1 and 29 are cognate and may be discussed together.
Agreed. Are there other groupings of amendments or will each amendment be discussed separately?
There are groupings. We can arrange to get the list.
I move amendment No. 1:
In page 9, line 22, after "AS" to insert the following:
"AN tÚDARÁS SLÁINTE AGUS SÁBHÁILTEACHTA, OR, IN THE ENGLISH LANGUAGE,".
I would have liked to have sight of it because it is hard to examine groupings if they are handed to one when one is on one's feet. As on Committee Stage the Minister of State might bear with us in respect of groupings which it may not necessarily be useful to take together.
I begin with what is an easy amendment for the Minister of State to accept, being the successor of de Valera in the constituency of Clare. I propose that the Irish version be inserted "AN tÚDARÁS SLÁINTE AGUS SÁBHÁILTEACHTA, OR, IN THE ENGLISH LANGUAGE", which is right and proper.
I sincerely thank the Minister of State for the way in which he has approached the Bill. It was most helpful to have reasoned responses to many of the Committee Stage amendments sent to the Opposition. It is not something that one normally gets from a Minister because in a sense it is showing his hand in advance. It is only a Minister who is particularly competent and confident who can do that.
I am grateful to him because it has helped us understand the reasoning behind the Minister's position and in more than one instance punctured our own logic when we see the case set out. That is a useful way of dealing with legislation and I thank and commend the Minister of State for that approach. After that plámás I am sure the Minister of State will accept the amendment.
I too appreciate the input of the two Deputies opposite in particular and others who were active on Second and Committee Stages because, ultimately, the job of the Oireachtas is to produce the best Bill possible and that is the business we are all in.
In regard to the amendments proposed by Deputy Howlin, glacaim leis ar leibhéal amháin, ba mhaith liom go mbeadh an leagan Gaeilge ann ach moltar dom go mbeadh fadhb ag baint leis b'fhéidir dá mbeadh cás os comhair na cúirte. Ní thuigim cén fáth go mbeadh an fhadhb sin ann ach moltar dom go mbeadh. In the event that the amendment was accepted there is a possibility that if a case came before the courts, which happens frequently in this area, that the Irish language version of the English language version of the Bill would be a complicating factor. I understand there will be a full Irish version of the Bill which will address my concerns and, perhaps, those of Deputy Howlin also.
Tá sé deacair a thuiscint conas a mbeadh deacracht ar bith ag baint leis an moladh atá os comhair na Dála an t-údarás a ainmniú as Gaeilge. I do not see how it could be difficult to put in an English version of the Bill the official title of the agency in the Irish language. The Minister of State has not proposed anything. He said he was advised that there might be deacrachtaí ag baint leis. Where are these deacrachtaí? We do not see the particular difficulties in achieving this.
As a matter of principle, not long ago we established in Bille na dTeangacha Oifigiúla the right of citizens to do their business in Irish más mian leo and, as a matter of course, we should have in normal parlance the use of either the Irish or English versions of all State agencies. It should not be that there is an official title of an agency that is in English. If one wishes one can look at the Irish version of it and use an Irish version of the official title. I am strongly of the view that the Irish version of the title of any agency is as valid and should be inserted as valid in the primary legislation going through the House. That should be the norm rather than the kneejerk reaction from some drafters to say it will be covered in the Irish version and that there will be an Irish version of all legislation in any event.
I am in favour of amendment No. 29 in the names of Deputy Howlin and I. I cannot think of a single reason the Minister of State would refuse to include the Irish language in the title of the agency. I accept there is a copy of the Bill as Gaeilge but the title of the agency will be referred to across the board. Why cannot the Irish language version of the name be included? I support also amendment No. 1.
We had a close look at these amendments and discussed the matter on Committee Stage. I am satisfied that the Act, when enacted, which will be available in both Irish and English, covers the genuine point raised by the Deputies opposite. In view of the advice I have received it is better in this instance to have a full Irish version as well as a full English version of the Bill.
I am disappointed that a Minister of State who has a particular regard for and great competence in the Irish language would not accept this amendment. It is important occasionally to send a signal to the drafters that this is the will of the Oireachtas.
Amendments Nos. 2, 3 and 4 are related and may be discussed together.
I propose that they be taken individually rather than together.
They can be discussed and the question can then be put individually.
I wish to have them discussed individually.
I move amendment No. 2:
In page 9, line 33, to delete "Safety, Health and Welfare" and substitute "Health and Safety".
This matter was discussed on Committee Stage. Given that the Bill is renaming the National Authority for Occupational Safety and Health as the Health and Safety Authority it is appropriate that the Bill should be a health and safety at work Bill. I have had regard to the Minister of State's comment on Committee Stage which was not convincing. Basically he said welfare was important. The amendment proposes to change the reference only in the Short Title but not in the Long Title, at page 9, line 7 of the Bill. The change seems appropriate and right. I do not see a compelling reason for it other than it is not in the original Bill, therefore there has to be a contrived reason for not accepting the amendment.
I understand the point being made by Deputy Howlin but as I said on Committee Stage, there is in this Bill and also in the 1993 Regulations a certain emphasis on the welfare of workers besides their health and safety. While health and safety are the principal underlying reasons for this Bill, under the 1993 regulations there is provision for rest-room sanitary equipment, changing rooms and showers and so on, in some work places. There are welfare elements in the legislation which should not be lost sight of. To some extent it is true that the health and safety elements are the very important and central elements of the Bill. However with a more modern view of the rights of employees that pertain today, the benefit of having welfare included in the Titles— and I accept the point made by Deputy Howlin about the Short and Long Titles— considerably outweigh the disadvantages.
I move amendment No. 3:
In page 9, between lines 34 and 35, to insert the following:
"(2) Pending the repeal of the existing enactments, those enactments and this Act may be cited together as the Health and Safety at Work Acts 1882 to 2005.".
The purpose of this amendment is to highlight that the Safety, Health and Welfare at Work Act 1989 repealed all the previous health and safety legislation, going back to 1882. However, the section that was passed by the Oireachtas in 1989 was never brought into operation. Consequently, the old legislation, despite the decision of the Oireachtas a considerable time ago, to repeal it, is still in force. The 1989 Act states that these Acts are repealed but in fact they have never been repealed because that section of the Act was never brought into force.
The Bill now before the House repeats this farce by listing yet again the legislation that the House made the decision to repeal in 1989. How can there be any guarantee, therefore, that this legislation will ever be repealed? Is it a case of three strikes and one is out?
This amendment is designed to highlight the undesirability of retaining the old Victorian legislation which these Houses thought they had repealed in 1989.
The Minister of State addressed the issue on Committee Stage but failed to give a clear or watertight timetable for doing the business. The Minister of State may recall some reference to manpower shortages and other difficulties that caused the delays to date. I acknowledge the Minister of State's reasoned answer to the House subsequent to Committee Stage but we need to be seen to be doing our business. If the Oireachtas decides on something, it really is not a matter for manpower or for the Executive to delay the doing of those things. I know there is generally a catch-all phrase to allow for sections of the Bill to be brought in at different times and this issue will be dealt with later in the debate. The Oireachtas should be the body that sets the law. There must be an expectation that the decisions of the Oireachtas are carried through into legislation in a reasonable period of time.
One of the difficulties is that certain elements of some of these previous and very old enactments, as Deputy Howlin stated, have already been repealed while some are under review and will be repealed.
There are, however, other elements of the Acts which—
The Boiler Explosion Act 1992 is to be repealed shortly.
I think the Deputy means the 1882 Act, which makes it even worse.
There are other elements which still have a relevance. It is an ongoing procedure over a considerable period of time and it is a considerable period of time since the 1989 Act was enacted. However, it is not possible at this stage to give a definite date. The Department would accept the signal from Deputy Howlin that some of the work in this area could be done more quickly but the timescale proposed in his amendment is not realistic.
I am not satisfied with the Minister of State's response. Decisions made by the Oireachtas as long ago as 1989 cannot be brought into force for administrative or manpower reasons and in the year 2005, the House has not been given a definite timeframe. The Minister of State is not even proposing a different timetable to mine in order to do the business which the Minister of State has indicated it is necessary to do. It undermines the Oireachtas when this happens. I will not make more of an issue of this because there are bigger issues to be addressed in this Bill. As a general principle, it is important that the Executive acts on the decisions of the Oireachtas once they have been made by both Houses. I regret there is not a clear timeframe laid down in this Bill.
There are specific areas where some of the provisions of the remaining statutes, including the Mines and Quarries Act 1965, the Dangerous Substances Acts 1972 and 1979 and the Safety, Health and Welfare (Offshore Installations) Act 1987, continue to be relevant and applicable. Certain elements are under review with the possibility of eventual replacement but it is not quite as straightforward as thinking it can all be done very quickly. I assure the House that every effort will be made, in so far as possible, to replace these enactments within a reasonable timescale.
I move amendment No. 4:
In page 10, line 6, after "enactments" to insert the following:
"provided thatsection 4(2) shall be fully brought into operation within 2 years from the date of passing of this Act”.
The purpose of this amendment is to highlight the need to repeal the existing old legislation within a defined timeframe, given that it has been repealed once before by these Houses in the 1989 Act but it has never been brought into force. If the Minister of State rejects a 12 month timetable, why is it so unreasonable to have a two-year timeframe?
I inadvertently addressed this amendment when I answered on amendment No. 3, to the extent that there are a considerable number of previous enactments to be addressed and certain parts of them are still relevant. This is an ongoing process which involves a significant amount of work and in some cases consultation with relevant interests. This deadline could not be met. It would be foolish to accept it in the primary legislation when my judgment is that in respect of at least some elements, it cannot be met.
I find it a little peculiar that a section is set out in legislation and the view is that it is foolhardy to expect that it might be enacted within two years. This is the Minister of State's Bill, not my Bill. If he regards the introduction of the sections in the timeframe of two years as being foolhardy, why is the House debating it at all?
My predecessor who was in this position in 1989 would have thought that a two or three-year timescale for doing exactly this might have been reasonable. There were many reasons this was not possible in respect of some aspects of the various enactments. Work is ongoing and considerable progress has been made. I am confident that a large proportion of the work will be done within the timescale. However, I am not happy to accept the amendment because I am not sure that the entire repeal of enactments proposed can be completed within that timescale.
I will reluctantly withdraw the amendment.
Amendments Nos. 5, 13 and 19 are related and may be discussed together by agreement.
I move amendment No. 5:
In page 10, between lines 10 and 11, to insert the following:
"‘accredited trainer' means a trainer or assessor whose competence, skills and ability have been evaluated by an independent system of appraisal established by Ministerial regulations under this Act;".
The purpose of the amendment is to establish, on a statutory footing under the act, a system of accreditation for people acting as trainers or assessors. The Minister of State will be aware of matters I raised on Committee Stage and during Questions regarding the construction industry. It has emerged that employees did not receive proper training or certification of their training under the FÁS schemes established for this purpose. The Health and Safety Authority delegated to FÁS responsibility for the provision of such training, which is recognised by the Further Education and Training Awards Council.
There has been considerable activity since I raised this issue, with some of those assigned by FÁS to provide training and assessment for workers in the construction industry delisted from the panel. It is a serious matter that hundreds of workers were employed on building sites without proper training. Under building regulations, it is obligatory for those engaged in a range of duties on building sites, for example, working with scaffolding and driving machinery, including tower cranes, to receive training. It is horrendous to believe that the State was engaged in a practice whereby assessors and trainers did not carry out work they were assigned to do.
This amendment is necessary to ensure that this sort of activity will not go unchallenged. It proposes to establish a statutory process in which the accreditation of trainers is set out in defined terms and the competence, skills and training of certain construction workers are laid down by ministerial regulation.
I ask the Minister of State to take a serious view of the matters I have raised. He indicated in reply to a question that the Garda was conducting an investigation. Perhaps he will enlighten the House on the progress of the investigation. Does he have anything to report with regard to untrained people who allegedly set the requirements of the skills training package for employees in the construction trade?
I appeal to the Minister of State to learn from this experience by ensuring we enshrine in legislation the requirement to have appropriate accredited trainers. This type of unsavoury activity must cease because accidents involving an untrained employee on a construction site, for example, the driver of a tower crane, would put employees and members of the public at risk.
I sincerely thank the Deputy for bringing this matter to my attention. I assure him that on each of the occasions he raised it, I have provided him with all information available to me at the time. We discussed how the accreditation of trainers could be provided for at considerable length on Committee Stage. As I explained, considerable progress has been made on having FETAC and HETAC recognised qualifications. Both bodies are doing considerable work in this area across a range of educational attainments and it would not be appropriate for the Department to engage in a parallel system of accrediting awards in the manner prescribed. FETAC and HETAC are best placed to carry out this function. In light of this, the amendment is not relevant.
With regard to amendment No. 13, the accredited trainer requirement proposed by the Deputy is adequately covered in the FETAC and HETAC systems. An example of this type of approach is the health and safety guidelines on first aid, under which, in association with the National Ambulance Council and others, a scheme provided for the recognition of trainers following completion of and assessment under an agreed course syllabus. This type of approach will be brought under the auspices of FETAC and HETAC.
With regard to amendment No. 19, which seeks the introduction of regulations establishing an independent system, my concern is that the Department would seek to establish a parallel system alongside the system operated under the auspices of the Department of Education and Science with FETAC and HETAC. There are considerable advantages in having the accreditation carried out by these two bodies, which operate under a different Department. It has been pointed out in the past, for example, that a body directly involved in training should not give the accreditation.
As regards the Deputy's other questions, cases are being pursued and, as he correctly noted, a number of trainers have been delisted. This decision is being contested in the courts in at least one case. Interestingly, I have also had a substantial body of representation indicating that FÁS is much too hard on trainers and demands unreasonably high standards of them. Nevertheless, I agree with the Deputy that, as a principle, we should be able to stand over the qualifications of trainers and ensure that competent people deliver Safe Pass and other courses are delivered. This is best done in the context of FETAC and HETAC, rather than through establishing a parallel system under the Department.
The Minster of State's reply indicates that nobody will take responsibility for what occurred in FÁS, namely, a clear breach of the regulations leading to the delisting of trainers. It is criminally negligent that workers in the construction trade were employed on sites without proper training. FÁS is the agency delegated under the Health and Safety Acts with carrying out training and assessment, which FETAC is authorised to certify. As the delegating agency of the State, FÁS has not covered itself in glory.
Hundreds of building site workers are being retrained using a voucher system and trainers have received thousands of euro for work they did not do. Despite this, the State does not appear to regard recouping this money — up to €100,000 — as a matter of urgency. Through no fault of their own, unfortunate employees paid an average of €450 for training which amounted to no more than filling in forms. No training was provided and the State sees nothing wrong with trainees being placed on sites to carry out certain duties under the building regulations. It is criminally negligent for the State to have allowed this to happen. In addition, the Government is not prepared to close a loophole to ensure it does not recur.
In view of recent events and the fact that the Minister of State was let down by a delegated agency under the Health and Safety Acts, the House should take steps to ensure such events are not repeated in the future. Having examined the loophole, strong regulations and guidelines must be enshrined in the Bill to ensure trainers are accredited and we can stand over them in law if an investigation arises in the future. FÁS, the Health and Safety Authority and others should not kick the issue into touch.
Recent events call into question the certificates issued by FETAC. As the Minister of State is aware, an investigation is under way to determine how this could have happened. We should take cognisance of the recruitment of Mr. Cromien, former Secretary General of the Department of Finance, by FETAC for the purposes of investigating and producing a report on this serious problem and loophole in the process for accrediting trainers. I am anxious that this issue be covered in the legislation because we do not get many chances to tidy up this serious problem of a criminal nature whereby the safety of employees and the general public has clearly been put at risk in the recent past. That recent experience should be treated seriously.
I support my colleague, Deputy Hogan, who is to be commended on his persistence in addressing what is a serious issue on a number of fronts and one which we have a responsibility to address in legislative terms. I am not sure the Minister of State's response could not be accommodated within the proposals set out in the amendment tabled by Deputy Hogan.
We are talking about a clear validation system so that "accredited trainers" has a meaning we all understand. Responsibility for setting this out in law would belong to the Minister through regulations which he would draw up under this proposal. Since the difficulties that have arisen under the current regime are clear, as consistently outlined by Deputy Hogan both on Committee Stage and by means of parliamentary questions, it would be extraordinary if there were not a significant and robust parliamentary response during our discussion of this health and safety legislation.
In essence, it is the building blocks such as the system of accreditation for trainers that will be crucial in this area. There is no point enacting volumes of legislation if the building blocks on which the system will be based are in any way deficient. There clearly is a deficiency, as described in the well-argued analysis of Deputy Hogan. I strongly support the amendment and see no coherent reason the Minister of State could put forward for not accepting the obligation to set out the standards for an accreditation system by means of ministerial regulations which have the force of law.
It is important to point out that there were difficulties with some of the courses which Deputy Hogan has mentioned. However, in those instances, the people whose training was deficient were provided with alternative training. Arising from these and other experiences, the procedures now in place are considerably more robust and far less likely to be circumvented than was the case in the past.
What are these procedures?
They are not amenable to short explanations. Since that time, FÁS has put in place—
Do they have the force of law?
——a much more stringent system for evaluating the qualifications of trainers in the first instance and, more importantly, for overseeing the training itself.
However, it must be acknowledged that it was necessary to do so and that Deputy Hogan's pursual of this issue has had an impact on the quality of training that will be provided in the future. There is no doubt there were a number of employees whose training was deficient and for whom alternative training had to be provided. The judgment I am required to make is whether it is the best approach to further develop the system and to operate under the 1999 Act by taking advantage of the considerable expertise of FETAC and HETAC in the training area, which has proven to be successful in the case which I outlined earlier. Building on what has been a negative experience, we have moved to a stage where the quality of training is now monitored far more closely and where the involvement of FETAC and HETAC will ensure that the quality of training in the future is of a much higher standard than heretofore.
It should be noted that the numbers of people presenting for training over the last three years have been considerably in excess of the highest estimates at the time. This has levelled off at this stage. However, this does not in any way serve to justify what happened. As a result of the attention this issue has received, I am confident that, within the parameters of the Bill as set out, it has been dealt with adequately.
The Minister of State would like to be reassured through FÁS that this will never happen again. However, his acknowledgement that it has happened should convince him to take this opportunity to enshrine in legislation a provision to ensure it will not recur. This is a better approach than relying on the word of a State agency which did not cover itself in glory by including on its panel of assessors and trainers some who did not meet the required standards.
No significant changes in procedure have arisen as a consequence of the Spollen report. The same situation could recur, depending on the personnel in FÁS and the calibre of trainers and assessors who are appointed. It is down to these individuals whether another such issue can arise in the future. Nobody seems to have lost their job in the wake of this matter and there does not seem to have been any attempt to compensate those employees who paid money to trainers but did not receive any training. We hear nothing of these matters.
A whitewash has taken place and I am pressing this amendment on the basis that it represents a means of ensuring this will never happen again and that attempts will not even be made to bring about a similar situation. The only way to do this is by including a definition of "accredited trainers" in legislation and by imposing robust penalties on those who step out of line.
- Allen, Bernard.
- Boyle, Dan.
- Broughan, Thomas P.
- Burton, Joan.
- Connaughton, Paul.
- Connolly, Paudge.
- Crawford, Seymour.
- Crowe, Seán.
- Cuffe, Ciarán.
- Deenihan, Jimmy.
- Enright, Olwyn.
- Ferris, Martin.
- Gormley, John.
- Gregory, Tony.
- Hayes, Tom.
- Healy, Seamus.
- Higgins, Joe.
- Hogan, Phil.
- Howlin, Brendan.
- Kehoe, Paul.
- Lynch, Kathleen.
- McGinley, Dinny.
- McGrath, Finian.
- McGrath, Paul.
- Mitchell, Olivia.
- Morgan, Arthur.
- Neville, Dan.
- Ó Caoláin, Caoimhghín.
- Ó Snodaigh, Aengus.
- O’Keeffe, Jim.
- O’Shea, Brian.
- O’Sullivan, Jan.
- Pattison, Seamus.
- Penrose, Willie.
- Perry, John.
- Quinn, Ruairi.
- Rabbitte, Pat.
- Ryan, Seán.
- Sargent, Trevor.
- Sherlock, Joe.
- Stanton, David.
- Twomey, Liam.
- Upton, Mary.
- Ahern, Michael.
- Ahern, Noel.
- Andrews, Barry.
- Ardagh, Seán.
- Blaney, Niall.
- Brady, Johnny.
- Brady, Martin.
- Brennan, Seamus.
- Browne, John.
- Callanan, Joe.
- Callely, Ivor.
- Carey, Pat.
- Cassidy, Donie.
- Collins, Michael.
- Cooper-Flynn, Beverley.
- Coughlan, Mary.
- Cregan, John.
- Curran, John.
- Davern, Noel.
- Dempsey, Tony.
- Dennehy, John.
- Devins, Jimmy.
- Ellis, John.
- Finneran, Michael.
- Fitzpatrick, Dermot.
- Fleming, Seán.
- Gallagher, Pat The Cope.
- Glennon, Jim.
- Hanafin, Mary.
- Haughey, Seán.
- Hoctor, Máire.
- Jacob, Joe.
- Keaveney, Cecilia.
- Kelleher, Billy.
- Kelly, Peter.
- Killeen, Tony.
- Kirk, Seamus.
- Kitt, Tom.
- Lenihan, Conor.
- McDaid, James.
- McDowell, Michael.
- McEllistrim, Thomas.
- McGuinness, John.
- Moynihan, Donal.
- Moynihan, Michael.
- Mulcahy, Michael.
- Nolan, M.J.
- Ó Cuív, Éamon.
- Ó Fearghaíl, Seán.
- O’Connor, Charlie.
- O’Donnell, Liz.
- O’Donovan, Denis.
- O’Flynn, Noel.
- O’Keeffe, Ned.
- O’Malley, Fiona.
- O’Malley, Tim.
- Parlon, Tom.
- Power, Seán.
- Roche, Dick.
- Sexton, Mae.
- Smith, Michael.
- Treacy, Noel.
- Wallace, Dan.
- Wilkinson, Ollie.
- Woods, Michael.
- Wright, G.V.
Amendment Nos. 8 and 9 are related to amendment No. 6. Amendments Nos. 6, 8 and 9 will be taken together by agreement.
I move amendment No. 6:
In page 10, line 37, to delete "subsection (2)” and substitute “section 3”.
These amendments were discussed on Committee Stage and propose to change the provisions on a competent person, including changing the provision from a subsection to a section. Section 2(a) sets out precise requirements under which the persons are deemed to be competent. The formula in this subsection is based on negotiations and agreement with the European Commission in the context of the recent opinion on the EU directive. That is what we set out previously in this regard. If it were taken into consideration, it would be very open and would have the effect of lessening the force of what is provided in the Bill. The prevention of accidents and ill-health depends on adequate and competent persons being available. The relevant bodies under the Act are FETAC and HETAC. It is far better to go down that road where there is an established route for doing so.
I move amendment No. 7:
In page 11, to delete lines 14 and 15 and substitute the following:
"(d) any unintentional ignition or explosion of explosives,
as may be prescribed;".
This is a drafting amendment. The words "as may be prescribed" apply to subsections (a), (b), (c) and (d). In the format in the Bill, it might be read as referring only to subsection (d).
I move amendment No. 10:
In page 14, line 40, to delete "subparagraph (a)” and substitute “paragraph (a)”.
This is a technical amendment.
I move amendment No. 11:
In page 17, line 37, to delete "except" and substitute the following:
"but the application of this Act to the Defence Forces in the following areas shall be subject to the operational requirements of the Defence Forces, viz".
I debated this matter on Committee Stage and the Minister of State very helpfully sent me a note on his reasoning. The purpose of the amendment is one in which the Acting Chairman, Deputy Sherlock, would be interested. It is to modify the blanket exemption for the Defence Forces from safety legislation. The Defence Forces should, except in exceptional circumstances, have the protection of the same health and safety regulations as everybody else. It would be better to apply the Act generally to the Defence Forces but to provide exceptions regarding operational requirements. That is the logic from which we are coming, that is, that all workers, including members of the Defence Forces, would be included but that we would specify the exceptions where members of the Defence Forces would be required, in set circumstances and for operational purposes, to be exempt.
The Minister of State did not have the Defence Act to hand on Committee Stage, so he did not clarify the matter. As the Minister of State will see, our amendment has been amended to make it clear that my wish is to retain what the Bill states but to extend its provisions to provide some safety obligation in respect of training, aid to the civil power, duties at sea and active service matters, that is, the issues set out in paragraphs (a) to (d) of the subsection. It is a different approach to the one I took on Committee Stage. I hope to take the spirit of what the Minister of State indicated but not have the blanket, non-application of health and safety legislation to the Defence Forces.
The Minister of State explained in his note to me that health and safety provisions apply fully when members of the Defence Forces are not on active service. He said the provisions of the 1989 Act have had a significant influence on health and safety provisions in the Defence Forces. I am delighted to hear that, as it is important. God knows, the State has paid a fairly hefty bill in regard to health and safety matters in respect of the Defence Forces and I hope we are not still making mistakes in the same area.
The type of exclusion about which the Minister of State is talking is compatible with Article 2(2) of the EU directive on safety and health 89/391 and, therefore, it is not appropriate to amend the Bill. I hope the Minister of State will have regard to the amendment I have tabled and will see it meets the operational requirements of the Army and provides some obligations on the authorities in regard to training and the other duties which fall to the Defence Forces to carry out in our name.
I acknowledge the amendment differs from that tabled on Committee Stage and I understand what Deputy Howlin is trying to achieve. I looked carefully at the implications of this because I did not have the defence legislation to hand on Committee Stage. However, I am still of the view that it is better dealt with in the terms presented in the Bill. While I acknowledge the new amendment from Deputy Howlin is closer to what I would have liked, the Bill deals adequately with this, particularly since section 5 of the Defence Act 1954 and section 4(1) of the Defence (Amendment) (No. 2) Act 1960 are relevant in this regard.
In particular circumstances, for example, a state of emergency, the use of the term "active service" in the Health, Safety and Welfare at Work Bill rather than "operational requirements" is more appropriate in the context of situations covered by the Defence Acts to which it is not appropriate to apply the provisions of this Bill. Perhaps on reflection, the Deputy will acknowledge there is a strong case in regard to maintaining the current terminology in the Bill. Having considered it very carefully, I believe the outcome with the current wording is likely to be better than if I agreed to the Deputy's amendment. However, his point about the Defence Forces and the difficulties that arose previously is well made. Lessons have been learnt in that regard.
I am obliged to the Minister of State, who has made a coherent case. I have read a briefing document he provided for me, which was helpful. It is a question of approach. I approach the matter on the basis that everybody should have the protection of the highest standards of health and safety in their normal employment. It is possible to say that armies go to war, from which in terms of health and safety they cannot exactly be protected. That is understood and we can provide for that. I will not push the matter further because the Minister of State has at least taken time to reflect on it. Before I withdraw my amendment I would like the Minister of State to give an assurance that: thehighest standards of health and safety are being applied to members of the Defence Forces in all the areas covered in paragraphs (a) to (d); it is understood that members of the Defence Forces are workers with the same obligations falling on the State as an employer as we would expect of the State and other employers; having regard to the exceptional nature of the work of the Defence Forces, the State does its best to provide the safest possible environment for that unique workload.
I looked very carefully at what the Deputy proposed and I take the point he has made, which is very important. We raised this matter with representatives of the Defence Forces regarding the enactments that affect them. On balance I judged it was better addressed as the Bill stands.
I move amendment No. 12:
In page 18, between lines 5 and 6, to insert the following:
"8.—(1) Within 6 months of the commencement of this Act, the Minister shall commission the publication of a regulatory impact assessment of the impact which this Act is having on business.
(2) When conducting a regulatory impact assessment undersubsection (1), particular regard shall be paid to the impacts which this Act has on small businesses.”
This amendment relates to a regulatory impact assessment. Some time ago the Government published a White Paper entitled, Regulating Better, which advocated the use of regulatory impact assessments. I am sure the Minister of State will have no difficulty in accepting this amendment as it forms part of the policy of the Department of the Taoiseach. The cost implications of the Bill's provisions cause some concerns for employers. The burden imposed by legislation of this kind particularly on small businesses is of some concern to me. While the aims of the Bill are laudable, we need to strike a balance between these aims and the cost of implementation. My amendment would require a regulatory impact assessment six months after the commencement of the Act to ascertain whether any expensive costs are unwittingly imposed without having the desired effect of improving health and safety. If the Government is to heed its own advice in these matters I am sure the Minister of State will consider this sympathetically.
I do not take much comfort from the correspondence I received from the Minister of State on the matter, in which he assured me that he is committed to having a competitiveness study undertaken. He could do so on a statutory basis if he is committed to some kind of assessment.
The sins of the senior Minister are beginning to rub off with another study.
An assertion in the explanatory memorandum that better management of health and safety will result in savings to the State and business is a long way from a statutory guarantee. I ask the Minister of State to reflect carefully on the matter and to implement his Government's policy.
The Deputy made a very strong case on the matter on Committee Stage and I have reflected on it in the meantime. An argument exists as to whether we should have a regulatory impact assessment or a competitiveness impact assessment. I agreed to undertake a competitiveness impact assessment. We are at the early stages of considering how we might do this. One of the difficulties is that a huge element of this Bill is a restatement of previous enactments, particularly the 1989 Act and others. We are not starting from a green field from a regulatory point of view. However, I believe Deputy Hogan and others accept that very considerable savings will be made for business and the State, when one considers that the loss to the economy annually is conservatively estimated at €1.6 billion from ill-health, injuries and deaths in the workplace. There is scope for benefits to industry and business in that regard through better health, safety and welfare provisions. I accept the Deputy's general point and I will commission a competitiveness assessment. As all the Deputies know, it would be most unusual to have a provision such as this in the primary legislation. I will undertake that review.
I support the amendment. A review of the regulatory regime would be extremely beneficial. I take the point made by the Minister of State about the efficiencies and the savings from improved conditions in the workplace, which I have no doubt will save industry a significant amount of money through not losing so much workers' time. I would greatly value a regulatory impact assessment to establish the cost particularly to small industry, as highlighted in the amendment. Big industry has its own way of assessing these positions and of gathering information. However, the smaller companies would have difficulty carrying out their own regulatory impact assessment. I hope the Minister of State will accept the amendment. While I accept his statement in good faith that he will carry out a competitiveness assessment, unfortunately one never knows how long a Minister will remain in any position.
The Minister of State might be promoted.
Why not build it in to ensure it will happen.
I thank Deputy Morgan, who made the valid point that the assurances of a Minister or Minister of State might not be honoured by his or her successor. We expect the Minister of State to go on to greater things and he might not be in the Minister of State ranks.
Will the Government win the two by-elections?
That would not impact on the Minister of State. I take his point about the competitiveness study to be undertaken. What are his preliminary views on the scope of the study? How and when will it be taken relative to the enactment of the legislation?
I intend to commence the study within 12 months. We have already considered how it might be undertaken and what kind of terms of reference might apply. We are also considering whether a national or an international body should undertake it. We are considering all those points arising from the strong case made by Deputy Hogan. While I do not know about my longevity in the Department, I hope to last at least 12 months to get this started formally. It is a reasonable point and deserves action within 12 months of the enactment of the legislation.
I move amendment No. 14:
In page 18, between lines 20 and 21, to insert the following:
"(a) publish, and revise annually, an Alcohol and Drugs Policy directed at employees;”.
This section could be contentious under the areas of privacy and human rights. The purpose of the amendment is to ensure that employers prepare an alcohol and drugs policy for their workers. It is in the interest of both employers and employees to have certainty about the policy on alcohol and drugs and the procedures to be adopted to give the necessary assurances to their fellow employees as well as to employers that no abuse of alcohol or drugs is evident in any format within the employees' working conditions. I am sure the Minister of State shares my concern in this regard. This amendment gives him an opportunity to show he is serious about tackling drugs and alcohol problems in the workplace. Its acceptance would help employers to be certain about the process they need to follow to ensure that the provision is not being abused. Genuine concerns exist about the protection of people's privacy and legitimate human rights. The publication and annual revision of a company's alcohol and drugs policy would be in the interests of employers and employees.
The Deputies opposite raised this and related matters at considerable length on Committee Stage and even on Second Stage.
There are more amendments to come.
I suppose they are somewhat related. I am trying to be careful to circumscribe and isolate the provisions of section 13, to ensure that something that should be specific does not become of general application. Some Opposition Deputies are worried that will happen. Section 20 of the Bill obliges employers to prepare a safety statement. It might be appropriate, in some circumstances, for such a statement to contain an alcohol and drugs policy, as proposed by Deputy Hogan. While I understand the reasons for the Deputy's suggestion, I would be unhappy to include such a provision in safety, health and welfare legislation. We need to state clearly where we are directing the provisions of section 13, in particular. Section 20 covers that more than adequately.
I move amendment No. 15:
In page 21, to delete lines 17 to 25 and substitute the following:
"(d) in the case of—
(i) a class or classes of particularly sensitive employees to whom any of the relevant statutory provisions apply, or
(ii) any employee or group of employees exposed to risks expressly provided for under the relevant statutory provisions,
the employees concerned are protected against the dangers that specifically affect them.".
This drafting amendment corrects a similar error to that corrected in a previous amendment. The alignment of the final two lines of section 10(1)(d) has an effect on its sense.
Amendments Nos. 16, 17, 18 and 36 may be discussed together, by agreement. If amendment No. 16 is agreed, amendment No. 17 cannot be moved.
I move amendment No. 16:
In page 23, to delete lines 32 to 36.
We had a lengthy discussion on Committee Stage about this amendment, about which I feel strongly. It is grossly unreasonable that section 13(1)(c) attempts to deal with the issue of testing for intoxicants in a mere 24 words. In other jurisdictions, such as the United States, the conditions in which tests may be conducted are outlined in regulations which extend to lengthy tomes. Many countries have enacted primary legislation to specify the conditions in which drug testing can take place. Such regulations need to be lengthy, specific and comprehensive to avoid the misuse of section 13(1)(c), as it stands. I am concerned about this matter. If the Minister insists on maintaining the Government’s current minimalist position, how will employees be protected from the small number of employers who might seek to use the provisions of section 13(1)(c) to harass or bully workers? That is a real concern for me.
The Bill does not restrict drug testing to persons who hold safety-specific positions. On Committee Stage, I referred to Part 9 of the Railway Safety Bill 2001, which is eight pages long. Almost an entire page of that Bill is devoted to safety-specific positions of employment. Section 13(1)(c) of this Bill makes no provision for such restrictions, however. It will apply across the board. I am also concerned that the Bill does not mention specific forms of testing. Can tests other than breath, blood or urine tests be carried out? If the testing will be confined to the three forms I have mentioned, what level or degree of the intoxicant will be specified? No such matters are mentioned in the Bill. Part 9 of the Railway Safety Bill 2001 refers specifically to levels of alcohol in one’s blood, breath or urine. Section 13(1)(c) is of such weight that specific matters of that nature should be included in it.
I am also concerned that section 13(1)(c) states than an employee should submit to a test “if reasonably required by his or her employer”. It does not mention “reasonable suspicion”, which is mentioned in the Road Traffic Acts, for example. Gardaí must have “reasonable suspicion” if they wish to test drivers whom they suspect of being over the legal alcohol level. The Garda is not allowed to set up road blocks and check points and start to test randomly. During the recent Committee Stage debate on the Road Traffic Bill 2004, which will allow gardaí to test without “reasonable suspicion”, I said I understood from leaks in the Department or the comments of advisors that it might not be constitutional. This Bill is being passed with the exact same void.
I am in favour of this Bill, generally speaking, and I am anxious for it to be implemented as quickly as possible. It is very good, on balance, and will be a great asset to employers and employees. I have significant concerns about section 13(1)(c), however. I ask the Minister of State to include a reference to “reasonable suspicion”, even at this stage.
I wish to discuss my amendments Nos. 17, 18 and 26. When we debated this matter on Committee Stage, I thought the Minister of State acknowledged to an extent that real issues need to be addressed in this regard and I half-expected a ministerial amendment to this section.
I would like to examine the basic principles of this legislation. Chapter 2 of the Bill sets out the general duties of employees and persons in control of places of work. Section 13(1) states that an employee "shall", while at work, "if reasonably required by his or her employer, submit to any appropriate, reasonable and proportionate tests for intoxicants by, or under the supervision of, a registered medical practitioner who is a competent person, as may be prescribed". It is a bald and far-reaching provision. Any employee at work "shall" submit to any appropriate, reasonable and proportionate tests for intoxicants. If we are to step across the threshold of the rights of individuals in that manner, we will need a very compelling reason to do so. We will have to adopt a balanced approach. My honest contention is that the bald statement in the Bill is not balanced. It clearly gives all employers a statutory right to test all employees for drugs. The provision is too broad and too strong and it intrudes on civil liberties to too great an extent.
I do not object to specific drug testing provisions being collectively negotiated with employers and trade unions in the workplace on the basis of individual occupations. It is clear that some forms of employment can be considered to be much more onerous than others, in terms of the likelihood of danger being presented to the relevant employee and his or her colleagues. I hope my amendments are in line with the strong argument made by the Minister of State on Committee Stage. If safety is to prevail, employers are not to be held liable and people are to be protected in their places of work, there is a need to identify people who come to their places of work in a state of intoxication and to give employers rights. I am not suggesting the blanket exclusion suggested by Deputy Morgan in amendment No. 16, but, I hope, avia media. I suggest the following in amendment No. 17: “In page 23, line 32, to delete “if” and substitute “subject to subsection (2), if”.” The new subsection (2)(a) would read: “Subsection (1)(c) shall apply only to such categories of employee and in such circumstances as are prescribed by regulations made by the Minister,”. The Minister would have to have regard to the categories of employees and the circumstances in which it would be appropriate to require mandatory drug testing. Amendment No. 36 reads:
In page 56, after line 43, to insert the following:
"(2) Regulations for the purposes ofsection 13(1)(c) shall not be made unless a draft thereof has been approved by both Houses of the Oireachtas.”.
In essence, I am giving scope to the Minister to reflect further so he will not give a catch-all legal right to all employers in all circumstances to test all employees for drugs. I know the Minister of State will point out the phrase "appropriate, reasonable and proportionate." However, what does that really mean? It allows all employers to come up with a set of circumstances to justify the drug testing of all employees. That is a very big step to take. No doubt the Minister of State can point to jurisdictions in which such a law prevails, but I am not keen on replicating in this jurisdiction many of the laws that prevail in others.
I hope my compromise amendment will allow the Minster to make regulations for drug testing that are appropriate but which will also give this House powers of review. This is important in a democracy.
There is always a balancing of rights involved in the provision of security of citizens in a State, whether this is security at work, on the road or elsewhere. The other obligation on the State, either through this House or through the Executive, is to protect the constitutional rights of individuals to privacy and freedom of action. There is now a strong belief, rather than a perception, that the nanny state is too casual in its trampling on the rights of individuals in the belief that it knows best and that it must protect people from themselves. It believes it must intrude in people's lives in such a way as to ensure they are protected in all circumstances. We are constantly narrowing the private space and room for manoeuvre of individuals. I detect on the ground a positive reaction against this incipient restriction of the rights of individuals — I do not know if the Minister of State can perceive it. We must therefore be careful about all provisions through which we want to be so righteous and good that we do not compromise the very privileges that define a democracy. Perhaps this sounds very grandiose in terms of the legislative provision under discussion but the provision is symptomatic of an attitude that has been prevalent in many Bills brought before this House. We push the people at a cost and if they ultimately perceive that the nanny state is going too far, there will be a reaction against all legislation.
My amendment is, in the words of the Minister of State, "appropriate, reasonable and proportionate" in respect of the requirements of health and safety. It would allow for the setting out in regulations under the Minister's control the circumstances and the employments where mandatory testing would be appropriate. It would give the final say to the Oireachtas in determining whether the Minister's judgment is correct. I ask the Minister of State, even now on Report Stage, to reflect hard on what I have said and accept the essence of what I am suggesting.
As has been stated, amendment No. 16, which proposes the deletion of section 13, is a repeat of an amendment proposed by the Labour Party on Committee Stage. I acknowledge that Deputy Howlin has clearly given considerable thought to the points made on all sides during the Committee Stage debate, which shed much light on this subject. I made the case very strongly that there is a very limited number of employments regarding which it might be appropriate to make provision for drug testing and that, consequently, I was not minded to remove the section. Deputy Howlin has acknowledged this clearly in amendments Nos. 17 and 18.
On amendments No. 17 and 18, it is important to remind ourselves of the process by which testing would be achieved. At the first meeting of the new Health and Safety Authority, I spoke about the authority's obligations regarding the preparation of the regulations and I indicated to it that it would have a central role. I also indicated to it that it will be required to consult the social partners, in the first instance, and also any others with an interest in drawing up the regulations. I consulted the Irish Council for Civil Liberties and the social partners on the public concern over these provisions.
There is an acknowledgment that there are circumstances in which it is appropriate to provide for testing of one kind or another. It is also very important that the phrase "appropriate, reasonable and proportionate", which Deputy Howlin quoted, be reflected very strongly in the regulations when they appear.
Amendment No. 18 in particular, which is related to amendment No. 17, seeks to set out criteria already provided for in section 58(4)(b) for the making of regulations related to section 13(1)(c) and requiring prior approval by both Houses of the Oireachtas. However, I went considerably further than that. Owing to the public debate initiated on this issue, there was extensive involvement on the part of the Health and Safety Authority, the social partners and others. We also consulted the national drugs advisory board and other bodies in this area. The role of Parliament in the approval and consideration of the regulations ought to be centre-stage and, therefore, I undertook to present the draft regulations to the members of the Oireachtas Committee on Enterprise and Small Business. I will certainly do so as soon as a fairly advanced draft becomes available.
No matter how we change the terms of section 13(1)(c), in particular, or those of any other section, the detail will be in the regulations. The best we can do in this regard is ensure that any interested parties, including the social partners, the national drugs advisory board and those involved in the national drugs strategy, are consulted by the Health and Safety Authority when preparing the draft. There should be a further undertaking that Parliament would have a key role, through the relevant committees, in considering the draft proposals before they are signed into law. It is not possible to go further than this, regardless of what detail we include in the Bill. Ultimately, regulations will have to be drawn up. As a Member of the Oireachtas, I am certainly prepared to say that such important regulations should be laid before the relevant committees. I will ensure that this is done.
It is fine that regulations are to be drawn up but we should know when because this blunt instrument may come into effect long before they are available.
The Minister of State said he consulted the Irish Council for Civil Liberties. The council said that section 13(1)(c) is not compatible with the European Convention on Human Rights. I wonder what the Irish Council for Civil Liberties said to the Minister of State. Did it change its view on this section? If so, that would be a significant move and I would like to hear the outcome of the consultation. We all know what can happen at consultations.
My amendment seeks to delete that section. I accept the point that it is a blanket exclusion. I opted for that because a blanket exclusion would be more appropriate and we can come back to it on another occasion with a proper amendment when the full detail in terms of reasonableness of the approach to this issue has been teased out and agreed between employers' organisations and trade unions, as well as other agencies such as the Irish Council for Civil Liberties. This is much too bland to be accepted.
The words "appropriate, reasonable and proportionate" sound good but they refer only to the test, not to the conditions under which the test could be required. That is a fundamental point because any test could meet those criteria but the person might be called to have that test under unreasonable or inappropriate conditions, which, for example, raises the issue of invasion of privacy. This also involves a major issue of the dignity of workers that is not fully recognised under this paragraph. That is why I am so concerned about it.
I am disappointed the Department did not make a greater effort to find some way by amendment to ameliorate this draconian section. If this Bill is passed workers' rights will have suffered a grievous blow, which is worrying for all of us.
The Minister of State has drawn our attention to section 58, namely the regulation and codes of practice that will be drawn up, under Part 6. I always break out in a cold sweat when I read this part of any Bill because here, after all the detail has been debated, the draftsman writes that notwithstanding the detail the Minister may do all sorts of things that he or she deems appropriate. It is a catch-all phrase supplying the belt and braces just in case of a problem.
The Minister of State has indicated that regulations will be required for the enactment of section 13 which includes subsection (c) and that under section 58(4)(d):
subject to subsection (5) and to any conditions that may be prescribed, exempt from all or any of the provisions of the relevant statutory provisions any specified class of work activity, employment, article or substance or any specified class of person or place of work, where, having regard to the class of work activity, employment, article, substance, person or place of work, the Minister is satisfied that the application of those provisions is unnecessary or impracticable and that adequate protective measures are in place.
That is a catch-all clause and I am concerned that the Minister of State points to this as his solution to the specific points I raised. I would prefer to have a specific requirement that the categories of work subject to mandatory drug testing would be laid out by the Minister of State and approved by the Oireachtas. Is that the Minister of State's intent? Will he use the provisions of section 58(4)(d) to do that, as I suggest?
Does he intend to specify categories of work and to exempt any categories of work or will all workers be subject to testing regardless, as baldly stated in section 13(1)(c)? We need to know the Minister’s intention. I would prefer that it be laid out in the Act rather than be captured by a catch-all section at the end.
It is always dangerous to point out these catch-all sections because section 58(4)(a) states that Regulations under this Act may:
(a) contain any incidental, supplementary and consequential provisions that appear to the Minister to be necessary or expedient for the purposes of the regulations,
The Deputy has far exceeded his two minutes. I want to give the Minister of State an opportunity to reply to this debate.
We will return to this on another day. This is a difficult issue to encompass in two minutes.
The Minister of State needs to give a very clear indication of his intent on this. I am not content with an indication that it will be captured by a general provision. I do not know whether the Minister of State intends to exempt any category of work or specify a category of workers that will be subject to mandatory drug testing.
The Deputies have raised two central points. Deputy Morgan asked about the implementation of section 13(1)(c). This will come into effect only as may be prescribed. There is no question of any element coming into place until the regulations prescribed in the primary legislation are in place.
What about the consultation with the Irish Council for Civil Liberties?
It would be grossly unfair of me to say what the council's feelings were after the meeting. I am not aware it issued any statements condemning me afterwards.
The Minister of State employed the council in his argument.
I said I consulted with the council but it would be unfair of me to use this forum to speak on its behalf.
I thought the Minister of State did speak on the council's behalf.
I did not. I said I consulted with the council.
I took the Minister of State to mean that he spoke on the council's behalf.
Deputy Howlin read out a subsection which is a long list of exemptions. The Deputies make a reasonable point in that I am not able to say what are the regulations. This is for the very good reason that I have undertaken to consult various groups, including the social partners and the drugs advisory groups, and return to the Oireachtas through a committee with draft regulations.
Does the Minister intend to exempt some categories and focus on other categories where it would be appropriate?
I hope the draft regulations which will be prepared by the Health and Safety Authority will follow that route. If not, Members will have an opportunity in the committee to say what they think about them before they are signed. No matter what was in this section the test would be what is in the regulations. That is why it is better to deal with it as it is and deal with the regulations through the consultation process, and in the Oireachtas.