JOINT COMMITTEE ON ENTERPRISE AND SMALL BUSINESS debate -
Thursday, 11 Nov 2004

Safety, Health and Welfare at Work Bill 2004: Presentations.

Chairman

We resume for the presentations on the Safety, Health and Welfare at Work Bill 2004 by the Irish Council for Civil Liberties, IBEC, ICTU and the CIF. I remind visitors that we have read the submissions sent to the committee and we ask that each group confine itself to speaking for approximately five minutes on the net issues concerning the brief. We are under pressure of time this morning because of the inauguration of the President, as we must attend at Dublin Castle. Accordingly we wish to conclude at 10.45 a.m.

I remind the visitors that while the comments of members are protected by parliamentary privilege, those of the visitors, unfortunately, are not. I also remind members of the long-standing parliamentary practice to the effect that members should not comment on, criticise or make charges against a person outside the House or an official by name in such a way as to make him or her identifiable. I now call on Mr. Tony Briscoe, the assistant director of IBEC and I also welcome Mr. Thomas O'Brien, chairman of the IBEC policy committee on health and safety, and manager of Waterford Crystal.

Mr. Tony Briscoe

I was thinking of the advertisement on radio this morning about being regulated by IFSRA and so on, and wondering if I could speak as fast as that. I thank the Chairman and members for inviting us to attend. I will be brief as I understand the time constraint. My colleague, Mr. Thomas O'Brien, may elucidate on one or two issues as I go through them, or on the questions, because there are some practical issues that might arise.

I submitted to the committee a copy of the presentation and I will not read through it but will deal with the principal points. It is important to emphasise that while we are representing industry, we are also health and safety practitioners and I want members to be aware that we are looking at this in a professional, as well as a business, context. Certain of the recommendations and observations we set out are based on what we believe could improve the Bill and are not intended to be totally negative. This is why there are 51 items listed in the table submitted to the committee.

We welcome certain aspects of the Bill, including the consolidation of legislation, the single source approach and the measures on intoxicants. We believe that in the current society, business, like many other areas, must address and manage health and safety. If our hands are tied, we cannot manage health and safety and certain of the measures of the Bill will assist in that regard.

However, there is much in the Bill that concerns us. While we all are in favour of progress, moving forward and improving the situation, there is always a danger that we may miss some of the nuances. I emphasise that in our presentation we have tried in a tabular form not only to present complaints or concerns, but to give a justification and explanation so that the committee can fully appreciate the rationale behind those concerns.

I do not underestimate the significant cost of the Bill. We have engaged in wide ranging consultation with our members throughout the country and have run many seminars. We conservatively estimate that the impact of all the measures of the Bill will impose an additional cost on business of €700 million in the first year of application. If members wish, I can explain that in more detail. If any other legislation with such a financial impact was being brought forward, those in this room would be very concerned. It is significant. In this regard I appreciate the function and the responsibility of the committee and its concern for business, especially small businesses.

In attempting to meet your time constraints and rather than going through all of the 51 items, Chairman, I have tried to summarise them under four headings. For example, we have looked at the question of cost. If one wants to see examples of where cost implications arise, one can refer to items 1, 7, 19, 29 and 43 in the table. If one wants to specifically focus on where we, from a business point of view, see implications of cost, it is principally in those items.

Chairman

I ask members to note them.

Mr. Briscoe

The second issue is that when one combines a number of the definitions expressed in the Bill with the duties, then, according to our members, compliance would be almost impossible. We can give examples. I refer to items 1, 4, 7, 17, 20 and 23. I will not go through them but those are the relevant sections of the table.

Chairman

Do they cause the organisation major difficulty?

Mr. Briscoe

Yes.

Chairman

You say it would be almost impossible to be compliant.

Mr. Briscoe

Yes, in certain cases. That is not what we want to see happening.

The third aspect of the Bill is that we are going into significant uncharted waters. We have a situation where we are looking to the future for joint safety agreements, penalising sections, etc. All of this is new to health and safety. In summary, the approach and maxim on health and safety is not to be negotiated; it is not to be agreed on an objective basis. I wonder whether that is the right approach. If that is the route taken, there are fundamental problematic situations which are likely to develop in the future.

The final point is a big issue for managers and employers. When the members read the definition of the term "employer" in the Bill, we ask them to bear in mind that it includes a person in control of a place of work. The duty of an employer is being extended. There is the reversal of the onus of proof and provisions for significant penalties, including imprisonment. At the same time we are trying to encourage managers, supervisors and people to take responsibility and be proactive for safety in the context of what is a mix of a framework and prescriptive provisions in legislation.

Think of it in the context of what faces a manager or individual in a company. When the 1989 Act came into force we were conscious of the dilemma which people faced. If I am responsible for health and safety, for instance, what are the consequences of me doing something positive and being proactive? The provisions of sections 80 and 81 are substantially different to what is in the 1989 Act. In the 1989 Act, the wording used was "where it is proved to have been committed" but for some reason the word "proved" has been dropped in the context of sections 80 and 81. That is a negative development and it will augur badly for safety in the context of getting people to take responsibility for safety in the future.

Chairman

Mr. Briscoe, you are asking the committee to amend sections 80 and 81. Do you remember that you, among others, came to the insurance inquiry and asked us to bring in four Bills?

Mr. Briscoe

Yes.

Chairman

This is the third of those Bills, introduced within a year. That is a major achievement. We are responding to the industry, of which you are part. If there is something in the Bill which will prohibit employment it will make the task onerous. Is that what you are saying?

Mr. Briscoe

Absolutely. I will explain the perception and the reality in our experience. There is the exception in criminal law, where in health and safety law a person is guilty until he or she proves himself or herself innocent. There is the reversal of the onus of proof. That is what this is about. There are significant penalties provided for it. We are trying to get people to be more pro-active on health and safety. There is an important balance to be struck — I am speaking as a safety practitioner and most safety practitioners would agree with this perspective — in that if one wants to encourage people to be pro-active on health and safety, one does not frighten them or create a legislative environment which means they are looking out for the sword of Damocles hanging over them where they may be put in prison if they take responsibility for something. That is my fundamental point.

Chairman

In the overall Bill, which is huge, IBEC is saying to the committee that sections 80 and 81——

Mr. Briscoe

It is a little complex. The combination of the definition of what is reasonably practicable and of the employer, which is now extended, with the reversal of the onus of proof and the provisions set out in sections 80 and 81 will leave a manager, supervisor or individual open to be prosecuted and put in prison.

Mr. Thomas O’Brien

To follow through on what Mr. Briscoe said, there are a number of important issues in this regard. One of these has to do with intoxicants. When the 1989 Act was introduced, the size of the workforce was 1.2 million; it is now 1.8 million. Some 50% of the 1989 workforce have retired. It is now a young workforce. Manufacturing industry works 24 hours a day, in eight-hour and 12-hour shifts. Society has changed in such a way that young people tend to go out with their girlfriends before going into work at 12 o'clock on a Friday night. They may not drink alcohol. It is easier to detect someone who has been drinking alcohol. They may smoke a joint or drop an ecstasy tablet and then go into work three or four hours later. They may be at risk to themselves and to other people. This is not about taking people's civil liberties away. It is about whether he or she is a risk to the workforce. The employer cannot manage that risk unless he or she has the ability to tell the person that he or she thinks the person is under the influence of some intoxicant, and we must have a means of testing that. That is one aspect of it.

The other aspect is competence, which the Bill seeks at all levels. This may be attributed at HETAC levels of competence. In Waterford Crystal, the company in which I work, there is great emphasis on training, with the training department spending €1 million a year. We have had up to 60 training instructors. Many of them would have operated on a sit by Nelly basis. These instructors had simple jobs but they could develop competencies in others and did not have high levels of accreditation. Many of these people had literacy difficulties but could also get across competencies from one person to another. If one is looking for accreditation under the Maynooth FÁS standards, four days must be spent in training at the cost of €1,200. With 40 people, this results in an average cost of €40,000.

Chairman

The committee will be discussing the Bill on 22 and 23 November. I am sure it will liaise with Mr. O'Brien. I welcome Ms Aisling Reidy, director of the Irish Council for Civil Liberties and Mr. Malachy Murphy, co-chair of the Irish Council for Civil Liberties.

Ms Aisling Reidy

We do not appear too often before this committee. The Irish Council for Civil Liberties is concerned about section 13 of the Safety and Health at Work Bill 2004. It raises issues under human rights law to which Ireland is bound and have not been adequately addressed in the explanatory memorandum or the Bill. The Irish Council for Civil Liberties believes section 13(c), as drafted, raises potential violations of the European Convention on Human Rights Act 2003. Testing for intoxicants in the workplace is an issue that gives rise to concern under article 8 of the convention, the right to the protection of privacy, which has been confirmed by the European Court of Human Rights. The court looked at the question of drug testing in many contexts, particularly in the workplace, as in Wretlund v. Sweden. It has also been addressed in the Canadian and New Zealand courts where limited drug testing is permitted under their respective domestic human rights legislation. As the European Court of Human Rights indicated, the restrictions around drug testing need to be linked into safety sensitive issues. In our submission, we examined section 13(c) from the tests we would expect the European Court of Human Rights to apply to an article 8 test. Any form of drug testing will raise the violation of someone’s privacy and whether there is legitimate justification for such interference.

Our concern is that there is no evidence why this mandatory and statutory power should be given to employers. What is the level of concern in the workplace to the actual level of incidents that link alcohol to accidents? It is a question of productivity and obviously the abuse of substances, either alcohol or drugs, has societal effects. However, to what extent is it a safety issue? Surveys conducted indicate that it tends to be in other areas. While common sense dictates there is a link between not being under the influence and safety sensitive issues, unfortunately the Bill does not specifically relate testing to safety-related issues. In the United Kingdom, when this has been considered, independent inquiries are conducted on inconclusive evidence. We suggest it is premature to give employers statutory power to require employees to submit to a medical examination in the workplace.

If it is felt there is evidence, we ask the committee to consider an amendment, limiting drug testing to ensuring safety in the workplace for both employees and members of the public. Linked with this are safeguards such as appropriateness and the proportionality of any testing. Will testing be done privately? Will there be a limitation of access to the results? Will the results of drug testing be used only for indicating fitness to carry out work? These issues were examined by the European Court of Human Rights when checking the Swedish legislation's compliance with the European Convention on Human Rights. The Irish Council for Civil Liberties believes that it is premature to allow this mandatory testing. If there is a desire to go ahead with it, we ask that it be strictly limited to the context of safety and health in the workplace. In that way, we believe it will be compliant with human rights legislation as addressed by the European Court of Human Rights and the Canadian and New Zealand courts.

Chairman

The Irish Council for Civil Liberties wants the committee to examine section 13(c).

Ms Reidy

Section 13(a) and (b) put obligations on employees not to be under the influence and not to put others in danger in the workplace. We do not have a problem with this. We acknowledge that it allows people to have a drink at lunch time and return to the office where hazardous work does not arise. We feel there is enough flexibility in sections 13(a) and 13(b). However, our concern with section 13(c) is that it gives powers to employers to conduct mandatory drug testing.

Chairman

I welcome Mr. Fergus Whelan, the union services officer, from the Irish Congress of Trade Unions, Mr. Sylvester Cronin, director of health and safety policy at SIPTU, and Mr. Eamon Devoy, chairman of the health and safety sub-committee at the TEEU.

Mr. Fergus Whelan

The committee has been given a copy of our submission. Although we welcome the Bill, we are disappointed that it took so long to get to this stage. As far back as 2001, we agreed with employers on the general headings of what should be in the new Bill. While happy with the old legislation, the one difficulty was that the penalties tended to bring it into disrepute. Until recently, the average fine that would arise from an accident if someone was killed at work, usually through gross negligence, was £500. We acknowledge major improvements in recent times, particularly as the courts have begun to take this issue more seriously with the proper penalties imposed. We welcome the provisions for new penalties in this Bill.

There is also a provision for on-the-spot fines. After much soul searching, during the review we agreed to the principle of these fines. We came to that conclusion on the basis that it must be equitable. For example, if a worker refuses to wear a safety helmet on a building site, it is reasonable that he or she would be fined €100. However, if the employer fails to provide a helmet or enforce that rule, a €100 fine is no deterrent. The Bill states that the maximum fine can be €1,000 but our understanding from officials in the Department is that when it comes to the regulation stage, the maximum fine will be €100. We would regard that as an anti-worker measure and oppose it.

The Bill places new duties on employees, such as looking after their own safety and the safety of others. We accept that, it is in the European directives and the existing legislation. Submitting to appropriate checks for intoxicants, however, presents huge problems for us. None of the research in this area suggests that drugs or alcohol play any role in industrial accidents. It is a major feature in road safety and must be tackled but there is no evidence to suggest it was ever an issue in workplace accidents. We also share the views on the privacy and civil rights aspects of this. It uses a sledgehammer to crack a nut. We discussed this with the Minister of State, Deputy Killeen, and made these points. He assured us that the Bill would not allow for random drug testing and that regulations would be highly prescriptive and focus on safety-critical staff. If that is the case we would be happier but, as drafted, this section of the Bill is open to abuse. It will not improve safety at work, although it might undermine employee assistance programmes and cause conflict between employers and workers.

There is a provision that anyone who has served on two boards cannot serve on another. That would cause grave difficulties for the Irish Congress of Trade Unions and the other representative bodies that nominate to the board. This is a specialised area and most of our organisations have limited resources that we have invested in developing key personnel with skills in this area. If we are prevented from nominating those people to the board, it will prevent us from doing our best and for that reason we would like to see the system changed.

Chairman

It would also ensure continuity.

Mr. Whelan

Indeed.

Chairman

On behalf of the committee, and I am sure I speak for the delegation as well, I express our sincere sympathy to the family of the young man who lost his life in Ballinasloe yesterday. Health and safety is of the utmost importance and this brings home to us the reality that construction is a difficult industry where the greatest of care must always be taken, no matter how familiar a person is with the terrain in which he is working. We send our condolences to that young man's family.

Deputy Callanan

I know the people involved. It is a sad situation and I offer my sympathy to the family.

Deputy McHugh

I also offer my sympathies to the family.

Deputy Howlin

I also offer my condolences.

Chairman

This Bill is timely and I hope it will help to prevent this happening again. From the Construction Industry Federation, we have Mr. Dermot Carey, the deputy services executive and Mr. Peter McCabe, the director of the CIF.

Mr. Peter McCabe

We thank the Chairman and the committee for allowing us to address it. Our submission is more important than the presentation we will make. People have already approached us about some comments in it.

We are looking at the Bill in the context of smaller firms. There will be new construction regulations next year, work at height regulations, codes of practice and a proliferation of additional documentation that will impinge on small companies. Out-sourcing will expand, with businesses having up to 50 or 60 legal employers on a project instead of ten.

This Bill will take us through to 2015. We welcome parts of it because we must face up to on the spot fines and systems to avoid expensive legal processes. We must also face up to intoxicants and the work place. We would welcome guidelines that address the sensitivity in the area.

We worked closely with the HSA until 2001 to prepare a submission for this Bill and we were committed to the document that was agreed by the social partners and HSA and submitted in 2001. This Bill, however, is significantly different. We are concerned about the bureaucracy arising from it, with extra risk assessments and documentation, and we hope the guidelines will introduce simplified documentation for smaller firms, which make up 90% of the industry.

The Bill must put regulations that work efficiently in place. High costs attach to additional bureaucratic documentation and consultant services add greatly to them but those costs do not lead to safety. We prefer to work in partnership. We have set up a new model of partnership with ICTU and it is achieving real results, not just more and more regulations. We would like to see better regulation and proper regulatory impact assessment, particularly where regulations apply to small firms.

Chairman

Is there another jurisdiction the industry would recommend as a model for legislation? Are we as good as the British, French and Germans? We have made enormous strides in the last three years.

Mr. McCabe

Reports in Britain have highlighted the paperwork and bureaucracy that has arisen as a result of the British construction regulations. They are now modifying the amount of paperwork in the system, often driven by regulations and consultants. The British model is not the best. Better models exist in Scandinavian countries. The social partners have not had the chance to look outside Europe but the Irish approach is probably one of the better European models.

Mr. Dermot Carey

Our major concerns are clarity and a lack of bureaucracy. I have highlighted some of the major issues in the submission on definitions and clarity.

We are concerned about the definition of dangerous occurrences. We have a clear definition under the 1993 general application regulations but the proposed legislation will cover any event that might happen in a place of work which does not necessarily affect safety or put people in danger. A further concern is that currently the employer is responsible for the area under his control but the Bill extends that to an area which is not defined and could be outside his control.

Sections 17(3)(b) and (c), which refer to the construction of a place of work, are areas of concern to our members. While contractors are responsible for ensuring health and safety during construction, maintenance of the project at a later date is not their responsibility. Contractors build what they are contracted to do. That element is covered by the project supervisor provisions of the construction regulations.

We welcome some of the new requirements for safety statements to be prepared for smaller contractors or employers. However, the responsibility of bringing the safety statement to the attention of other people at the place of work could become an impossibility, based on the idea that everything should be practical. We also have concerns about the powers of the inspectors provided for in sections 64 and 66. We recognise that inspectors have a difficult job but we are concerned that there should be a closing-off process in the issuing of enforcement notices, particularly prohibition notices. Penalties are also a major concern to our members, the vast majority of whom are small businesses. The proposal to introduce a possible six month jail sentence on summary conviction is very harsh considering the circumstances. We agree that fines should hurt and are imposed to prevent accidents but a level of €3 million is of major concern, particularly to smaller companies. I refer to the submission made in 2001, in which levels of fine were agreed which we felt were more suitable for this type of situation.

The publication of the names of companies to which prohibition notices have been issued is based purely on an inspector's view and will only result in many more prohibition notices being challenged.

Chairman

I thank the delegations for their submissions. They have given us a great deal of food for thought and I note that a representative of the Department of Enterprise, Trade and Employment has been taking notes on everything that has been said.

Deputy Howlin

I welcome the oral presentations, as well as the comprehensive written presentations, which are very helpful to us who are charged with trying to draft amendments and tease through the implications of all the sections. We do not have time to go through them in detail but we will engage with all of the matters raised between now and the preparation of Committee Stage.

I acknowledge the comprehensive and helpful submissions of the four groups represented here and we will not be able to do them justice in the time frame, but they will impact significantly on the manner in which we treat the Bill. It is exactly as it should be that those on whom it impacts have an input before the Bill is proceeded with through the Houses.

The IBEC presentation referred to a cost of €700 million, which is a big sum in any person's perspective. If that is the real cost of the impact of this legislation, it surprises me that we have not heard more criticism of it from an earlier date. Is that because there is full recognition that this is a cost which must be endured and that a larger cost is attached to not pursuing the focus of absolute safety which the Bill largely encapsulates? Does IBEC accept that the cost is justified and that not to undertake it would be worse?

The issue of intoxicants has been raised in a number of presentations. The IBEC presentation runs contrary to that of the Irish Council for Civil Liberties while that of the ICTU is more nuanced between the two. Is IBEC of the view that the section as drafted is appropriate, does not go too far and is required, accepting that it pushes across the borders of civil liberties? In respect of the Irish Council for Civil Liberties presentation, either this provision runs counter to the provisions of the European Court of Human Rights or it does not. That will ultimately have to be determined by law but the issue must be teased out when the Minister comes before the committee. It will require the opinion of the Attorney General. The Swedish case, referred to in the ICCL's presentation, involved a worker running a nuclear power station which, by any stretch of the imagination, must require a degree of safety beyond the norm. However, the amendment proposed by the ICCL as an alternative to the section in the draft Bill, refers to the fact that cases would have to involve what is termed a "safety critical job". What does that mean? It also provides that the test would need to be required for what is termed a "good cause". What does that mean and how could it be interpreted by a court?

All the witnesses have been very helpful in providing documentation, for which I thank them. Mr. Whelan's submission referred to the fact that he had been involved in discussions with employers on these provisions for some years. In his understanding, are the provisions in this Bill agreed by and large and is there any surprise, therefore, that the IBEC and CIF presentations seek to impact on some of the provisions in terms of the penalties and the name and shame provision of section 85? Was Mr. Whelan under the impression that these provisions were broadly agreed with the social partners in advance of the Bill?

Where does Mr. Whelan stand on the provision on intoxicants? Does the Minister's proposal go too far? Does Mr. Whelan agree with the view of the ICCL that there should be a provision to allow testing, but only in very limited circumstances or should it not be there at all? May I ask just two other questions of the trade union representatives?

Chairman

We only have time for one other member to ask questions. I appreciate the Deputy's great expertise in this field, which is acknowledged by the Chair.

Deputy Howlin

One major issue which has not been raised in submissions about which I am concerned is the degree to which non-nationals, who may not have great command of English, are now employed in the Irish work place. Is the ICTU concerned about such persons' comprehension of safety regulations, statements and notices?

Chairman

I wish to advise members that I have made arrangements for transport facilities at 10.45 a.m. Therefore, they can feel they are being looked after.

Deputy T. Dempsey

Many people, particularly farmers and builders, tell me in my role as a politician that too much bureaucracy is involved in everything we do, whether that is reporting on sheep with scrapie, accidents or insurance. Does Mr. McCabe have any suggestions on how to reduce bureaucracy, as it is something I am interested in fighting?

Mr. Briscoe

Deputy Howlin asked two questions. The first related to the justification of cost and the second to intoxicants. An example of what I mean by the cost involved is that this legislation requires employers to identify the hazards. Any safety professional will define a "hazard" as something which has the potential to cause injury, loss or harm. If one walks into this room and opens a door, the door becomes a hazard. If one is sitting on one's seat, the seat is a hazard. That is only one example of the duties set down in this legislation, which are infinite. If I engage a consultant to carry out a risk assessment, where does the buck stop if he or she is being pedantic stating he or she is the professional adviser and I will have to identify the hazards, not the measurable risk in my business? It becomes a case of a "blankety blank" cheque. That is one example and I have given a list of various other measures.

There are almost 180,000 enterprises in this country and if one takes the smallest business and asks it to engage somebody where it does not have the competency to do the analysis, one is probably talking about three or four days work at a rate of €800 or €900 per day, and that is only one element of this legislation. Those are the figures on which I based my sums.

My colleague, Mr. O'Brien has given an example——

Deputy Howlin

I am no wiser as to how Mr. Briscoe reached a total of €700 million.

Chairman

Simple arithmetic.

Mr. Briscoe

Simple arithmetic. There are 180,000 companies in the country and if they all have to do this, that is what it will cost.

Mr. O'Brien may wish to take up the second point on intoxicants.

Mr. O’Brien

No statistics relating to injuries or fatalities arising from the use of intoxicants are available. If one looks at the Road Traffic Act for which statistics were available, it is evident that the culture has changed. It is not about penalising or dismissing people who may have drug or alcohol problems, it is about identifying the potential for risk to themselves and other people in industry. If this provision is included in the Bill, the fact that it is there will be enough to deter 60% of people from doing it. The people with problems will still remain but it will give management the opportunity to be able to do something about it.

Mr. Briscoe

I have two points to add to that. One is that it takes the liver an hour to detoxify the effects of a unit of alcohol. Mr. O'Brien has given examples in regard to issues surrounding shift work and so on.

I heard recently that the State Laboratory had done some forensic analysis on blood samples in connection with road traffic cases. Positive results for drugs associated with alcohol were found to be as high as 30% or 40%. It is a societal issue and it is folly to suggest it does not exist in the work environment.

I took careful note of the fact that the Irish Council for Civil Liberties appears to be happy with the provision in terms of the duty, but it had reservations in regard to testing. My reading of the testing element is that it is to be prescribed according to the provision in 17(3)(c). It is my understanding that there will be further consultation on the appropriate testing that will be involved.

I read the Wretlund case and I mentioned it in our submission. A great deal of qualifications were made in regard to reasonableness, proportionality, confidentiality, etc. We must bear in mind that Ms Wretlund was a cleaner in a nuclear plant and she made the point that she was not an exceptional risk. While it is only one case, it is an interesting one at which we should look carefully. We should not throw out the baby with the bath water. I presume the committee's decision on its recommendations on the Bill will not prescribe that it will happen on day one but will be subject to regulation and further consultation.

Chairman

Absolutely.

Ms Reidy

To address the points made by Deputy Howlin, Ms Wretlund was not running a nuclear plant but she was employed as a cleaner. The company made the point that it was not able to guarantee that she would not have access to areas which were sensitive and because of the extreme situation raised by a nuclear power station it said it was unreasonable on the employer to distinguish between different categories of staff where people have access to certain areas. This was an issue the court had to look at domestically.

The company focused on the fact that it was a safety critical issue, which brings me to the two questions Deputy Howlin had concerning our proposal. The term "safety critical" was raised, for example in New Zealand in regard to staff working for airlines, particularly pilots, but also anyone who has to look after the safety of passengers in case of an emergency on board. Construction is one area where a person may be in danger or put others in danger and where there are inherent risks in the job. It also includes anyone involved in transportation such as drivers. The term therefore includes situations where people are at risk themselves or where they may put other people in danger.

Deputy Howlin

It effectively includes every worker.

Ms Reidy

No, I do not think it includes everyone. For example a receptionist will not put someone in danger, although he or she may not do the job efficiently if under the influence. Then one gets to the question of how does one test and if one is testing for productivity. Impairment tests exist and we have no objection to looking at that aspect. A number of models are in use, for example on Australian miners and in other areas.

People are being impairment tested to ascertain what has been taken and when it was taken. One can conclude that a person may not be sufficiently reactive to carry out one's duties if one is in a situation where one needs to react quickly if someone is in danger. It is something that is flexible. I do not think it would be a sensible way to proceed by being prescriptive in saying this or that particular job falls into a safety critical category. One needs to look at all the elements, including the inherent risks of a job and who interacts with that person.

The phrase "for good cause" is regularly used in legislation. It means something cannot be done randomly or arbitrarily. There needs to be some objective reason or belief behind the carrying out of a test. The duty is on the person carrying out the test to show that it is not arbitrary or random and that there is a rational cause underlying it. The aim is to safeguard against arbitrary, random behaviour or victimisation of a disliked staff member.

Instead of describing a job as safety critical we suggest that it would be better to look at it in terms of a safety critical work environment so the emphasis is not on the job but on the environment in which the person works.

Mr. Whelan

I was asked three questions, one of which will be answered by my colleague, Mr. Sylvester Cronin. As to whether this legislation was agreed, confusion arises because both the employer's organisations represented here and ourselves welcome aspects of the Bill in different ways. There is a great deal of agreement on the majority of what is proposed but there is a difference of opinion on some issues. Some elements of the legislation came as a surprise to us as they did not appear on the submissions in the original discussions and were not signed off in the original review. I do not suggest the employers have been inconsistent. The aspects with which they have difficulty were not ones they previously agreed with us.

I am not sure the issue of non-nationals is still a factor in terms of health and safety. A number of companies with non-national workforces which have come to this country have shown us the way to some extent. They have performed well in the area of safety and our native companies would do well to emulate them.

Mr. Sylvester Cronin

Following publication of the Bill on behalf of SIPTU, I consulted with hundreds of safety representatives during the summer months. I travelled all over the country and had meetings in Mullingar, Galway, Limerick and Wexford.

Chairman

That was a good start.

Mr. Cronin

I informed them of what was coming up in the Bill. The part of the Bill which gave rise to most concern and anxiety was the phrasing of the section on testing for alcohol and drugs. There was no objection to what the Bill is attempting to achieve. The consensus that emerged from each of the ten meetings was that the legislation should be framed in another way and the provisions on testing should be dealt with in section 24, which provides for health and safety agreements. In addition, in the event that tests are necessary in a workplace because some jobs are safety critical, an agreement could be tailor made to suit the workplace in question.

Chairman

Should this be done through section 24?

Mr. Cronin

Yes, that was the consensus. The meetings were held separately but all of them independently arrived at the same conclusion. Safety representatives are interested in safety and health. They work with the issue and its consequences every day.

Mr. McCabe

We will get back to members at a later date on some of the points they raised, including the request for suggestions to simplify some of the documentation.

As regards the intoxicant issue, there is no doubt that employers have a duty to provide safe systems in places of work. This is provided for in the primary legislation. An employer must have some mechanism for exercising this responsibility. He must have a way of determining whether persons arriving for work are fit for work. This matter cannot be addressed in any other manner and we must face up to it. Much of the detail of how this will be done must be worked out. How can an employer fulfil his duty to provide a safe place and system of work if he does not have a mechanism to exercise his responsibility?

Chairman

Do CIF members prefer applicants for positions to be members of the pioneers?

Mr. McCabe

No, we would not judge people on that basis.

Deputy McHugh

Would they wear pioneer association badges?

Chairman

That would be a way around the problem. As an employer, if I were faced with a 50:50 position as regards two applicants, I would deal with it that way.

Mr. McCabe

In today's society alcohol is not our main concern.

Mr. Carey

We welcome the inclusion of a duty on employees to be fit for work and not under the influence of alcohol. It is a good measure.

Deputy Morgan

It is excellent that everyone present has broadly welcomed this Bill, which will help reduce death and injury in the workplace. It is unfortunate that we are constrained by time as I had hoped to deal with a number of the sections.

Will the IBEC representative comment on Ms Reidy's statement that regulation may be employed at a later date to deal with the issue of reasonable cause for drug testing? Do IBEC and the CIF believe that section 13(c), as currently worded, could be used improperly by an employer to harass an employee?

Does Ms Reidy believe a section comprising 24 words is adequate to address this issue of reasonable cause? For example, Part 9 of the Railway Safety Bill 2001 includes several pages and sections to address the issue of reasonable cause. It is important to address the matter correctly and a text of equivalent length to that used in the Railway Safety Bill 2001 is necessary. Do IBEC and the CIF accept this? I am conscious that other members wish to contribute.

Chairman

The Deputy is welcome to attend and ask questions during the select committee's deliberations on the Bill, for which two days have been allocated. I assure him time will not be a problem.

Deputy McHugh

We have a considerable amount of documentation and have received good submissions from all sides. It is clear there is a desire on all sides to arrive at a satisfactory conclusion. I echo the words of Mr. McCabe that the outcome must be workable. We must not create bureaucracy that is of no benefit to anyone. We want safe workplaces and should strive to achieve this in the simplest manner possible.

Chairman

We all support the Deputy's comment, which he expressed well.

Ms Reidy

The Bill refers to proportionate tests, as may be prescribed. This simply means they must be in writing. The European Convention on Human Rights, which recently became directly effective in Ireland, requires a sound basis in law, providing clarity to those who will be affected by such tests. The Irish Council of Civil Liberties believes the 24 words, to which Deputy Morgan referred, do not provide a proper context. Any prescription may provide that tests must be conducted in private or its results may not be shared with the Garda Síochána, but there is no indication that persons may only be tested for legitimate purposes, namely, to comply with safety regulations. The provision, as currently framed, will result in litigation to determine its meaning. Everybody wants to avoid such a circumstance.

I have not read the similar provision in the Railway Safety Bill to which Deputy Morgan referred and, as such, I do not propose to comment on it. Regardless of one's perspective, the current wording is too vague, does not provide sufficient clarity and does not bring the legislation into line with the European Convention on Human Rights. In addition, it is likely to lead to litigation, which everyone wishes to avoid.

Deputy Morgan

Should such a fundamental issue be left to regulation?

Chairman

The Deputy should address his questions through the Chair. This committee is run in an orderly fashion. Does the Irish Council of Civil Liberties have a formula of words the select committee could consider on Committee Stage and discuss with the Minister and his officials?

Ms Reidy

We have provided an alternative. The Minister has invited us to meet him next week and we will do so.

Another issue, raised by Mr. Murphy, was the concept of having legislation to deter people. The evidence from many jurisdictions is that such legal provision does not have a deterrent effect. It is one thing to make assertions about linking road traffic accidents and workplace deterrence when all the evidence is equivocal at best and, on analysis, tends to show that testing is not a deterrent but acts to undermine many supportive measures which could alleviate the impact of substance abuse in the workplace. It is important the joint committee consider the evidence and is not swayed by the suggestion of deterrence.

Mr. Briscoe

I have read the Bill so often, perhaps 20 to 30 times, that my colleagues joke that I live and breathe it. On first and second reading, the legislation seems fine but problems arise when one scratches the surface and examines what I call "the loop" — definitions, duties and so forth. For example, while speaking to a group of safety representatives in Carrick-on-Suir recently, one of them asked me if, under the legislation, he would be forced to investigate stress cases. I told him we should look at the legislation. It states that personal injury includes mental impairment. Safety representatives have a right to investigate an accident. How does the legislation define "accident"? It is defined as "personal injury". He told me he did not want to do this because it creates a problem for him. When one considers the practical implications of some of the provisions of the legislation, one must do this kind of "looping" exercise.

The issue of intoxicants is a concern for employers and a reality which must be addressed properly. Nobody wants to interfere with civil liberties but the reality, as I noted, is that the wording in the Bill is good. It refers to "reasonable and proportionate tests". The section must be prescribed because testing will not begin immediately. I expect the Minister to consult various interest groups to develop an appropriate provision. Ultimately, however, an employer must be able to take action if presented with a person who is a danger to themselves. To take Deputy Howlin's point, what if a secretary who returns to work after a drink at lunchtime is responsible for the fire drill? Is the person a risk, given that he or she may not be capable of exercising his or her responsibilities?

It is very difficult to narrow down this aspect to say it is one particular job rather than another. The employer is faced with the problem and must address it effectively. Sometimes it is a question of insisting an employee sees a doctor who will have to make a determination as to whether he or she is fit to work. Most cases are handled sensitively. If we wrote legislation to cater for every scenario of potential abuse, we would have nothing. I welcome the opportunity to discuss the matter, which the Chairman has indicated the committee intends to consider in detail. We will be available if we are required to comment further.

Chairman

As I said to Ms Reidy of the Irish Council for Civil Liberties, if you have an alternative wording, present it for our consideration. We will endeavour to discuss it with the Minister and his officials before Committee Stage to give them time to consider it also. You are the experts in this field and we want to function as the conduit between you and the Department. The matter is back over to you.

Mr. Carey

We welcome the inclusion of the clause dealing with intoxication. We were asked to comment on it during the summer and said we looked forward to clarification of how exactly the provision would be administered. There are specific safety-critical jobs in our industry, such as tower crane driving, which affect a great many people. We look forward to further discussions. The fact that the provision has been included in the Bill is of benefit to safety management.

We have gone through all the points we intended to cover. While the CIF may be considered large, 90% of companies within our organisation are small contracting operations. We agree that the vast majority of the Bill's provisions will improve safety, but would like to see it simplified and welcome the Deputy's comments on clarity and bureaucracy.

Deputy Morgan

The Bill refers to "reasonable tests", which I accept, but fails to refer to "reasonable cause" to require a test to be carried out in the first instance. Workers rights are important and we must consider the matter from that perspective also. I invite people to do so.

Chairman

That is a good point.

Mr. Whelan

To listen to the employers' organisations today, one would think they had no power to deal with this issue already. If an employer comes to the conclusion that a person is incapable or incompetent due to use of alcohol or a controlled substance, he or she has plenty of powers to address the matter. Committee members may believe me that they use such powers.

Chairman

I suggest that any final comments witnesses wish to convey to the Minister, his officials and the membership of the committee are submitted before the deadline of next Tuesday evening. If Ms Reidy has an alternative wording, she should also submit it by then to provide officials and committee members with three or four days to consider this lengthy and detailed Bill before Committee Stage. We intend to tease out and discuss in minute detail the concerns of the various professional and interested bodies.

On behalf of the committee, I thank the witnesses for attending to make enlightening contributions. I look forward to working with them when the Bill is considered by the committee on 22 and 23 November.

The joint committee went into private session at 10.45 a.m. and adjourned at 10.50 a.m. sine die.