Seanad Éireann debate -
Wednesday, 12 Apr 1989

Vol. 122 No. 8

Safety, Health and Welfare at Work Bill, 1988: Committee and Final Stages.

Sections 1 and 2 agreed to.

SECTION 3.

Mr. Harte

I move amendment No. 1:

In page 9, subsection (1) (d), lines 26 to 29, to delete all words down to and including "work,".

The legislation is so comprehensive and the Minister is so determined to find ways and means of serving notices and that notices would be served, including summons notices, orders, etc. or anything required under the legislation, that he is doing it in a flexible way. We feel that when you get down to the question of worrying about looking for addresses, etc. measured against the other parts of the section there could be quite a lot of delay and in the intervening period something could happen that would make the particular intention less effective.

What we are saying here is that instead of worrying about the address where such person ordinarily resides if it cannot be ascertained by reasonable inquiry and notice is required to be served on him or given to him in respect of any place of work, section (d) should merely say "by delivering it to a person over the age of 16 years of age resident in or employed at a place of work or by affixing it in a conspicuous position on or near the place of work." We think the Minister is going out of his way here.

Overall, if you read through the legislation in general it is very substantial and comprehensive and is very good indeed. The Minister is not tying himself down in, for example, section 3(1) (a) by saying that the notice must be delivered to the person in the same way as you would say a summons is to be delivered but that it can be delivered to a partner and it still has the same effect.

In section 3 (1) (b) the Minister makes it valid by saying that it can be served by leaving it at the address at which the person ordinarily resides. That is fair enough but when you come down to the question of subsection (1) (d) we are talking about what happens if the person cannot be found. It seems you go on a bit of a tour looking for the person and, as we see it, this would cause some delays. We are not terribly hung up on it; it is just that we feel it would be much more direct to say: "Forget about looking for the address: it is not the same as serving a summons in a certain way." Therefore, we suggest you could start off by saying delivering it to a person.

Minister for Labour (Mr. B. Ahern)

We have given some consideration to this amendment and I thank the Senator for his remarks about the legislation in general. I would like to explain in some detail our considered view on this amendment. The purpose of section 3 is to standardise the requirement relating to the service of any documents, including summonses and notices under all the relevant statutory provisions on safety and health at work.

The section closely reflects other recent legislation — for example, the provisions of section 38 of the Fire Services Act, 1981. This section provides a wide range of options to the Authority as an enforcing agency or an inspector, as the case may be, to ensure that documents can be served through several possible ways, so they do not have to limit themselves. It covers the service of notice on individuals, partnerships and bodies corporate and unincorporated, as Senator Harte has stated.

It provides for the service of notice either by direct delivery to a named person or to any partnership or by leaving it at a place of business. A notice can also be left either at a person's residence or be sent by registered post to that address — for instance, to a registered office. If there is a problem about finding out an address which, needless, to say could arise, the notice can be handed to a person over 16 years of age living or working at a place of work or in those circumstances a notice can be fixed on or to the workplace.

None of the options provided for in section 3 takes precedence over the others; they are a range of options and the Authority and inspector in serving a document will obviously choose the method which is considered to be the most appropriate in the circumstances of the case. The important point is that the section provides a range of options as regards the method of service to be used. In the case of a range of matters covered by the Bill, such as improvement directions, which is in section 35 of the Bill, or improvement notices in section 36, or prohibition notices as in section 37, or section 42 where it is notice requiring information, the relevant document may be issued to the person in control of the activity in question or some other relevant person. In other words, the document may not necessarily have to be served on the employer himself at his business or other address.

The provisions of section 3 are designed to strike an appropriate balance between the needs of the Authority and the inspectors in discharging their functions effectively and the needs and rights of the recipients. Subsection (1) (d) is the only one of the options provided for with this in mind. If the amendments tabled were to be accepted, the remaining provisions of subsection (1) (d) would add very little, for example, to the provisions of subsection (2) (b).

What we are trying to do in section 3 is to give as wide a range of options as is absolutely possible so that the Authority or the inspectors can then follow that range. From experience and knowledge over the years, the inspectors have to deal with all the people who would be trying to avoid their authority or trying to avoid taking a notice. We believe this covers all of those options and, at the same time, gives a flexibility to the Authority or an individual inspector in dealing with the issue.

An Cathaoirleach

Is the amendment withdrawn?

Mr. Harte

Yes. As I said earlier, I am not going to push the amendments. It is really a question of making matters a little bit clearer. Is the Minister satisfied with regard to the wording used

... where the address at which such person ordinarily resides cannot be ascertained by reasonable inquiry and notice is required to be served on, or given him in respect of any place of work ...

Is he quite satisfied in a legal sense that it does not leave it open to people to use the legal argument, that he is making it quite clear that it is possible to deliver it to a person over the age of 16 or to put it in a suitable place? Is he happy on that?

Mr. B. Ahern

Yes. With section 3 it is not just one day it is the whole range of areas. From debates and discussions we have had on this particular aspect what we are attempting to do is to narrow down and eliminate, if possible, any doubt about our being able to track somebody down or being able to issue the summons. We are quite satisfied with it. There were some issues raised about multinational companies and people outside the country and other difficulties like that. However, I think in section 3 we have given ourselves all the possible options and, from the legal point of view, as far as it is practical to issue and to serve documents, we are satisfied that this will be conclusive.

Amendment, by leave, withdrawn.

Section 3 agreed to.

SECTION 4.

Question proposed: "That section 4 stand part of the Bill."

Mrs. Robinson

Basically relating to repeals of statutory enactments and statutory instruments, I have two questions for the Minister. First, in relation to the various sections of earlier legislation, they are to be repealed when the provisions of this Bill come into operation. It would be helpful if the Minister could indicate how it is envisaged this will come into operation. The Minister has power to bring in different parts of it at different times. Could he give an overall indication of what the timescale is likely to be for bringing in the various provisions?

My second question relates to subsection (2), which revokes provisions of a number of statutory instruments set out in Part II of the Second Schedule. The revocation is in relation to penalties. It is very worrying that there are a number of statutory instruments adopted under the European Communities Act, 1972, and therefore exercising the very wide power available to Ministers, being amended by this measure rather than being incorporated into it as substantive provisions. In other words, the power to bring in statutory instruments to implement our obligations under the European Communities may be necessary at the time in order to implement the particular directives within the timescale permitted by the EC. But it certainly has been the consistent view of the Joint Committee on EC legislation that when an Act of the Oireachtas is brought forward the provisions of the statutory instrument should be incorporated in what then becomes a codified statutory measure, whereas we have now got this measure establishing the new Authority relating to safety, health and welfare at work but it was to be read with a considerable number of statutory instruments dealing with issues that could have been incorporated into this legislation in relation, for example, to the safety signs in places of work regulations. Why are safety signs at places of work in a statutory instrument rather than in the main Act? In relation to classification of packaging of dangerous substances, why is this not incorporated in the main legislation?

It is an important issue because the statutory instruments in question are never properly scrutinised by the Oireachtas. They are examined by the Joint Committee on Legislation as statutory instruments but that is a much less public, a much less rigorous and much less adequate scrutiny. It is not desirable that a major statute of this kind relating to safety, health and welfare at work would be built on a whole network of statutory instruments, indeed amend those statutory instruments, so it is even harder to know what is the state of the law.

It seems to be a very bad policy and approach, particularly in this area. Not only is the Bill concerned with a most important area of health and safety but also it is important that people understand it and that its provisions be ones that can be fully comprehended both by employers and employees. I would like to know if this is a matter that has been considered by the Department and what the reason is for not having a genuine codifying measure at this stage.

Mr. B. Ahern

Senator Robinson asked two questions. The first is straightforward. Most of the powers would come in under a commencement order which will be undertaken immediately. It is on the record generally that we would have a work programme, which we have a agreed with the social partners, to implement the legislation on as early a date as possible. On the passing of the legislation we would commence with setting up the Authority and then try and bring in as many of the provisions as possible by commencement order. It is my intention to stick rigidly to that programme.

On the question of the statutory instruments there are in this area, as Senator Robinson will appreciate, a huge number of statutory instruments and this is a framework legislation. If we had to look at all the statutory instruments and the various regulations we would probably never get around to implementing this legislation. I take Senator Robinson's point on general legislation. Having served on committees over the years, I am aware of the view of both Houses on EC regulations. Part IV, section 27, of the Bill sets out the regulations, codes of practice and review of legislation which will have to be undertaken by the authority. The Authority will look at all of the statutory instruments that are there and, by regulations, will amend those regulations which they are prepared to go along with.

In the Social Affairs Council of the Community in the past few years we have spent practically all of our time discussing new regulations under safety and health because it is a problem, and particularly so in this country. This Bill will help to highlight the importance of safety and health. Particularly in Germany and in other countries safety and health have for a number of years been the focus of social legislation. There are a great number of regulations which have not yet been discussed in depth here. We believe our legislation will be in line with those regulations but there will be a great amount of work to be done on their implementation. In reply to Senator Robinson's question, the Authority will have to undertake a review of the statutory instruments and, by regulation, implement them under the Act.

Mrs. Robinson

I am grateful to the Minister for responding to my question. The Authority is given power under this Bill to review the legislation — indeed it has a duty to do so under section 27 — but these particular statutory instruments, which are set out in Part II of the Schedule and are amended by the revocation of certain provisions by this Act are all required by our obligations as a member of the European Communities. We have got to implement them either by statutory instrument or by statute.

My question was a different one. It is not that you replace these statutory instruments with a different statutory instrument: we could do it by statutory instrument initially because it is implementing our obligations of membership and there is a time scale problem and the European Communities Act, 1972, empowered that way of implementing obligations. But in fact that is contrary to the normal position where Ministers cannot legislate, as the Minister is well aware. I think it is highly undesirable from a policy-making point of view, and potentially unconstitutional. That issue is now being raised by a number of academic writers, and I think they have a point. To implement, and think it is entirely satisfactory, major issues of substantive law by statutory instrument just because they are part of our obligations of membership may not be compatable with the Constitution. It was understandable in 1972, because we had to implement a whole backlog of legislation going back 15 years to bring us up to date with what had happened since 1957 or earlier for the Coal and Steel Treaty. However, it is not a satisfactory situation and I do not think the Minister has answered the real point I was making.

The real point is that substantive measures such as the requirement of certain safety signs at places of work or the actual updated provisions on the preparation of dangerous substances and their marketing and use should be in the main legislation. The main legislation should, where necessary, empower the Minister to make implementing regulations under the parent Act.

A number of the measures covered by these European Communities statutory instruments are substantive new law, not law made by the Oireachtas but law simply made by statutory instrument. It is time to review the way in which this operates. It is not satisfactory, and is positively detrimental to the full implementation of this Bill and its intention to protect workers in their safety and health, by doing so in a measure that amends a whole series of statutory instruments rather than introducing into the main statute the particular substantive provisions and then allowing the Minister to supplement that in the normal way by regulations, but under the tight control of the parent Act.

It is very curious at the moment how strict the Irish courts are about Ministers exercising powers. As the Minister will be well aware, there have been a number of challenges to an Irish Minister acting ultra vires the powers of the parent Act in a statutory instrument in much less significant areas than the areas covered by the range of statutory instruments in the Schedule.

What I ask the Minister — he may not wish to give an immediate answer — is that it is not a case of the Authority substituting a different statutory instrument for the statutory instruments in the Schedule. It will be important for consideration to be given to a consolidating Bill which takes the existing statutory instruments which implement our obligations under the Community and incorporates them in primary legislation at an early opportunity so that this could then be read with that consolidating Act as representing as far as the Oireachtas is concerned the law in question.

Mr. B. Ahern

I would be prepared to consider what the Senator is saying. It is sensible that we take some advice on how that can be done. It is a valid point but I do not think it affects the Act. In recent months we have brought in statutory instruments dealing with, for example, lead and asbestos to implement European directives. That is the way we have been operating. The Authority should look at all those directives and statutory instruments and consider consolidation. Probably the most suitable time to do that would be at the end of the present European review. This legislation is, hopefully, broad and flexible enough, but it is still detailed and the regulations which will go with this legislation will be extremely detailed. Having been in the Department of Labour and having observed the officials who had to draft the various regulations to correspond with our commitments under EC directives, I can say they are, at the very least, highly technical and complex. Therefore, to have them finally in a consolidated Act would seem to me to be eminently sensible. I would be prepared to seek advice and to look to the Authority. Ultimately having a review of the directives.

Mrs. Robinson

I appreciate the Minister's willingness to look further at this matter. That is a very helpful response. If I could just add one more point, since the matter may be looked into either by the Authority or by the officials of his Department. I fully accept — and there are numerous examples of it — that it is quite common for our obligations, under whatever provisions or directives, to be implemented by statutory instrument; but section 3 of the European Communities Act, 1972, which authorises that, is couched in very broad terms. It has never, as such, been examined by the courts. If that measure itself is necessitated by our obligations of membership, it gets immunity under the amendment to the Constitution in 1972. When that was passed, there was a very good argument for the need to broaden the power to implement by statutory instrument. But I think the question has to be asked now: why would it be necessitated by our obligations that we do it by statutory instrument? Could we not do it perfectly well by the normal procedure of an Act of the Oireachtas? Where is the element of it being in some way necessitated by our obligations that we would do it that way?

The Constitution very expressly states that it is the Oireachtas which has the sole power to make laws for the State and yet, increasingly, we are doing it by statutory instrument. Our use of statutory instrument in that regard is much wider than under a comparable system — that is why I refer to it. The tendency of the Parliament of the United Kingdom is to use primary legislation, Acts of the Westminster Parliament, to implement obligations. It is not very useful to pursue that comparison too much because they do not have a written Constitution, so the issue does not arise but, as a matter of parliamentary policy, they leave it to Parliament to implement substantial changes in United Kingdom law, whereas for us it is not just a matter of policy; it is a matter of constitutional interpretation.

I would just put out a signal. It may well be that there will be a challenge to the use of statutory instruments to implement substantive changes in the law of Ireland. Simply invoking the power to do so under section 3 of the 1972 Act would involve a constitutional challenge and there would be quite an onus on anyone who did so. The basis is that the Oireachtas is the sole law-making power, but that measures can be taken if they are necessitated by membership of the European Communities. But how can you argue that it is necessary to do it by statutory instrument at this stage when Parliament is perfectly capable of doing it? It is important that there should be consideration of these statutory instruments and, more importantly for a measure such as this, we should not have a significant number of statutory instruments.

If one looks at Part II of the Second Schedule, it is clear that a number of the statutory instruments made under the European Communities Act amend earlier statutory instruments, so you have as well a series of statutory instruments amending each other. That is all the more reason why it is desirable that it would be incorporated in primary legislation, particularly when it relates to matters like dangerous substances and the use of dangerous substances which are very important areas for the law to be clearly ascertainable. I have added those few words if the matter is going to be reviewed by the Department, which I hope it will be. I sound a note of caution that the power to implement by statutory instrument may not be quite as copperfastened and as immune from potential constitutional infirmity as was thought.

Mr. B. Ahern

I will not get into what might or might not happen in a constitutional argument in the future. As it stands now, under section 2 of the European Communities Act, 1972, the position is: "From 1 January 1973 the Treaties governing the European Communities and the existing and future Acts adopted by the institutions of those Communities shall be binding on the State and shall be part of the domestic law thereof ...". Section 3 of that Act allowed the Minister of State to make regulations to enable section 2 to have full effect.

The arguments put forward by the Senator may or may not come to fruition. It is hard to know what would actually happen in that case, but as of now the position is quite clear in the 1972 Act. As I said earlier, a primary Act is always far clearer. The great example I have seen in this House was back in 1981 when the Social Welfare Acts from the time of the foundation of the State, along with many of the Acts we had inherited from the previous administration prior to the foundation of the State, were all consolidated. I sat on that committee for about a year when it was consolidating these Acts. I have held the view since that a consolidated Bill is always of far greater benefit and ease for everybody. Having had a great interest in that particular Bill, I do not think I will ever change that view.

However, there is a difficulty. In our system, if you do not use statutory instruments and use regulations, all the time going back to a primary Act, you can have very long delays. It has always been a feature of our legislative system — right or wrong, but probably wrong — that if something is not of immediate need the sections that would normally go into a statutory instrument or regulation would be held until there would be a main Act, and that could be several years. We have probably all seen examples where a main Act is coming up and a lot of little sections are put into that Act for that reason. While the statutory instruments, as the Senator quite rightly says, can be used for anything and might have powers that should not be there, at the same time I would not like to lose that flexibility whereby we can implement EC laws into our regulations by statutory instruments. If we were to do it the other way, perhaps we would not be so up to date in our EC commitments as we should. However, I will review what the Senator has said.

Question put and agreed to.

Section 5 agreed to.

SECTION 6.

Question proposed: "That section 6 stand part of the Bill."

Mrs. Robinson

On this section, I have a general question that covers a number of the sections. I know it was examined in the other House to some extent, but it appears that the actual formulation of the general duties of employers is watered down by that formula that is much discussed, "as far as is reasonably practicable". I would welcome some clarification from the Minister as to whether the codes of practice which the Authority will have power to adopt are intended to make that more specific or how is that particular formulation to become a more precise duty, particularly on employers in this instance.

Mr. B. Ahern

It might be best if I read the full note because we have debated this. The section imposes general duties of care on all employers with regard to their employees to ensure, so far as is reasonably practicable, their safety, health and welfare at work. The setting down of general duties in the Bill is a departure from the traditional approach in existing safety legislation, such as the Safety in Industries Act, where the requirements and prohibitions were set out in more specific terms. This resulted, for example, in a comprehensive range of provisions relating to matters such as the guaranteeing of dangerous parts of machinery but relatively few provisions in relation to other hazards, such as the removal of specific hazards, fumes or dust. The Barrington Commission highlighted the lack of any expression of general principles or body of common provisions applicable to all workers in the existing Acts or regulations and were strongly of the view that it was necessary to set down a foundation of fundamental principles or a common framework for all situations.

This objective is enshrined in section 6 and indeed in the other provisions of Part II of the Bill relating to general duties. The duties set down in the sections qualify for the phrase "in so far as is reasonably practicable"— a term which is also used elsewhere in the Bill, as Senator Robinson has said. This term has already been in use in domestic safety and health legislation. The reason for this approach is that in many instances the employer or the person charged with observing the provisions has to make judgment between the size of the risk and the measures necessary to counteract or eliminate it as well as the benefits likely to accrue to those measures. While there is no precise definition, Redgrave's Health and Safety in Factories (Second Edition) 1982 gives the following commentary from a judgment handed down in the British court:

"Reasonably practicable" is a narrower term than "physically possible" and implies that computation must be made in which the quantum of risk is placed in one scale of the sacrifice, whether in money, time or trouble, involved in the measures necessary to avert the risk, which is placed in the other, and that if it be shown that there is a gross disproportion between them, the risk being insignificant in relation to the sacrifice, the person on whom the duty is laid discharges the burden of proving that compliance was not reasonably practicable.

This computation falls to be made at a point of time, the happening of the accident complained of. The qualification "so far as is reasonably practicable" does not dilute responsibility for safety and health. What it does is to allow the particular circumstances of each situation to be taken into account in the context quoted from Redgrave's book. As the Senator says, the term is used throughout the Bill as a reasonable term, but that is the balance it seeks to give in the legislation.

Question put and agreed to.

Section 7 agreed to.

SECTION 8.

Mr. Harte

I move amendment No. 2:

In page 13, between lines 3 and 4, to insert the following subsection:

"(3) Whenever two or more employers undertake activities simultaneously at the one place of work, the person or company who has overall control of the place of work shall be responsible for co-ordinating safety and health measures.".

What we are trying to deal with in this amendment is that it would be possible to nail somebody down hard and fast. In other words, you would distinguish who was in control. For example, in section 8 (2) we talk about the duty of each person whereas here we are saying whenever two or more employers undertake activities simultaneously at the one place of work, the person or company who has overall control of the place of work shall be responsible for co-ordinating safety and health measures.

Somebody has to have overall control. We do not think this is spelt out hard and fast enough. We would like to see something being inserted, not necessarily the exact wording we have suggested but something that would nail it down to ensure that one person would be responsible for the co-ordinating of safety and health measures.

Mr. B. Ahern

We are seeking the same objective as Senator Harte, to try to avoid loopholes and to get some order into an area that for some years has been very difficult to operate. In work activities which involve multiple employers and workforces such as a large construction site which is normally the example taken as it can present particular difficulties as regards security, safety, health and welfare because of the additional difficulties posed by the type of activities that go on in such sites, it is important that there should be proper consultation and co-ordination of work activities by different employers. I agree with what the Senator says. Where, for example, one employer is carrying out work activity under permit to work system, all other employers and their workers at that location whose activities may impinge upon the permit of work system should also be fully conversant with those requirements and should not be allowed to carry out their functions in such a way as would by-pass the permit system and put workers at risk.

Section 6 of the Bill already sets down general duties for all employers in relation to their employees. Section 7 imposes general duties on all self-employed persons and employers in relation to themselves and persons other than their employees. This is the fundamental change in this legislation. I am sure everybody in the Seanad would have examples of an inspector going onto a building site and trying to establish who is responsible and who a person is working for. With the system of sub-contractors and people working for subcontractors, it can be very difficult. Section 7 imposes general duties on all self-employed persons and employers in relation to themselves and persons other than their employees so they cannot get away by trying to pass the buck from one to another. Clearly where there is more than one employer carrying out a work activity at a particular workplace each employer will, at the same time, have a general duty of care under the Bill both to their own employees and the other employees. There is a designated responsible person. This has not been in the legislation up to this.

Section 12 of the Bill relating to safety policy statements further illustrates the duties of employers and self-employed persons other than to their own employees. Employers or self-employed persons are required to bring to the attention of their employees and other persons at the place of work who may be affected by the safety statement in practical terms by their work activities, the terms of the safety statement. The extent of the obligation on employers and the self-employed is also reflected in the penalties provided for in the Bill which are the same for breach of duty in relation to employees or non-employees affected by the work activity. The obligation of each employer will only extend to matters within his control and that can be determined fully having regard to the particular circumstances of each case. Each case will be investigated by the inspector but he can then implement the legislation because he can identify who is responsible.

The problems caused by different employers working together at the same time at a place of work is more common to some types of work than others. Construction sites have been a particular problem. There is a need to ensure that work activities carried out simultaneously by different employers at the same location need to be co-ordinated properly. Some employers would meet their obligations under section 7 of the Bill as it stands but I am not convinced it would be equitable to impose the primary responsibility on any one employer where several share the workplace. The courts have quite a degree of experience in deciding which employer has been responsible for occupational safety and health in particular circumstances.

I appreciate the Senator's aim is for a preventive approach in co-ordinating safety and health activities but I think we already have that basis in the Bill. The fundamental point is that one can now identify who or what responsibilities an employer has, even when there is a number of employers on the site. I accept that there will be a need for the Authority to develop appropriate advice and guidance in these matters including, if necessary, appropriate regulations or codes of practice. However, on the basis that section 6 and 7 of the Bill already meet the Senator's objective I would ask him not to pursue this amendment because I think we have covered the point he has made.

Mr. Harte

I appreciate the views of the Minister. I know how difficult it is to tackle a situation like this. I would also see difficulties for a building construction firm or a big engineering firm doing a job in, say, a brewery or a distillery. I would find it amazing, apart from this section, if somebody could bring them to court and nail somebody down. Somebody would have to be responsible. That is where I would see confusion arising. I would say it would be very difficult for the direct employer, if he decided to issue a handbook on this new measure to write into an employee's handbook that if there are any problems, if a person is not carrying out the general duties laid down, they can take on the builder and the distiller. However, I appreciate the reply given and also the comprehensiveness of the legislation. I withdraw the amendment.

Mr. B. Ahern

Senator Harte knows how employers will go to great lengths to deny that a particular individual is their employee. In the case of machinery on a site, it is very difficult to find out who owns a machine, who hired it, who is responsible, who is working with it. If the inspector investigating the incident is unclear as to who carries the can and who is responsible, under this legislation he can take the whole lot of them to court. The difficulty on a building site is that it is often hard to find out who the subcontractor is working for. If you ask on the building site if he is working for the main contractor he keeps moving around. The inspector now can at least proceed, confident that if people are not coming clean with him he has the power to pull in all the relevant people and let them sort it out in court. That gives him a power which he has not had. Up to now he could be tossed from Billy to Jack and not know who was responsible. An inspector will in future, with this Bill, have confidence that if he sticks at it at least he can get his prosecution and he cannot be codded, as has happened in the past.

Amendment, by leave, withdrawn.

Question proposed: "That section 8 stand part of the Bill."

Mrs. Robinson

On section 8, and the question also relates to section 6 and 7, on the general duties of employers and persons, is it envisaged that the general duties as so framed will lead to increases in insurance cover by employers and self-employed persons and persons in the context of section 8? I note that the Bill provides that it will not affect, in itself, the potential civil liability of employers but has the fact that there are these specific general duties set out, as far as the Minister is aware, given rise to an issue of potential increase in insurance?

Mr. B. Ahern

No, I do not think so because they are general duties that should be common law at present. Overall, the view is that the legislation should lead to a reduction in insurance at the end of the day; I refer to the massive claims and the difficulties that arise in safety and health generally because of people not following the rules and regulations on protective clothing and so on — the legislation should help, with a lot of work by the Authority. It will not just happen. One of the important things will be the PR of both the social partners. Even since we had the last debate here in the Seanad — I think Senator Manning raised the matter of explaining this to the workforce — the FUE, I understand, have been in various regions explaining this legislation: it should certainly not cause an increase in insurance. We would be hopeful that in due course it will reduce insurance, particularly liabilities.

Question put and agreed to.

SECTION 9.

Question proposed: "That section 9 stand part of the Bill."

Mrs. Robinson

On section 9, it is really the same point only this time it is a duty on the employees. Has there been any concern as to whether the spelling out in a fairly specific way of the general duties of employees might affect the liability of the employer by perhaps affecting the extent to which there might be concurrent liability on the employee, that the employee might, in fact, find that because of the specifying of a general duty there was a contributory negligence on the employee's part?

I am reading this with the provisions of section 60 in relation to civil liability, but it does not expressly refer to this question. It provides that nothing in the Bill should be construed as conferring a right of action in any civil proceedings in respect of any failures to comply with any duty imposed under these sections that we are dealing with or (b), as affecting the extent, if any, to which breach of a duty imposed by any of the existing enactments is actionable, but it does not specifically deal with the question of whether it might affect the contributory negligence of the employee. Once you start specifying general duties on employees it may be that that would have an effect and it might be that that is a matter that could be dealt with in section 60.

Mr. B. Ahern

It is a fair question but these are general provisions which are in the 1980 Act. They have not created a problem. The same provisions were in the Safety in Industry Act in 1980 and that has not caused a problem. The important point to add to that — it was raised on Second Stage by a number of Senators and it was raised in the other House — is that it is very wrong that employers should be seen to be the only people who have responsibilities. Employees have duties and responsibilities. It is important that we clearly understand that they have duties and responsibilities and that the Safety in Industry Act or this Safety, Health and Welfare Bill is not a litany of rules for employers. From an insurance point of view it has not created difficulties and we do not believe it will.

Question put and agreed to.

SECTION 10.

Question proposed: "That section 10 stand part of the Bill."

Mr. Harte

Before I put my foot in it too far, perhaps you could guide me a little here. I do not know whether it is relevant to this section or not, but I am thinking in terms of the general duties of designers, manufacturers, etc. with regard to articles and substances for use at work. It is a borderline question, if you like, but the Minister can decide if he wants to answer it under this section, or he might be able to address it under some other section. What I am concerned about is in regard to the health boards. Will the legislation, for example, include things they will use or the installations they might have on health board premises? For example, would any environmental officers or health officers or medical officers or health inspectors have any input at all into the whole question of protection with regard to designs and substances and so on? I do not know which is the relevant section but I have not found anything in the Bill that would give me some information on it.

Mr. B. Ahern

It would not relate to environment issues. Is the Senator asking whether the Bill covers health board officials who are involved with instruments in the workplace? Is that the question?

Mr. Harte

Yes. In other words, the health board would be responsible for the installations on its premises. Does the Bill affect them in every way?

Mr. B. Ahern

Yes, this would cover them. It covers all employers and employees and self-employed people so in that broad definition, yes, the health boards are governed by the legislation.

Mr. Harte

Yes. The only input they would have would be to the Authority?

Mr. B. Ahern

Yes.

Question put and agreed to.

SECTION 11.

Question proposed: "That section 11 stand part of the Bill".

Mr. Manning

I am a little bit puzzled on how this section will operate in practice. Obviously, when a place of work is being constructed and designed in the present day especially architects, builders and so on are going to strive very hard to ensure that it is a safe place to work. The only place perhaps I can see conflict coming is where corners are being cut in the interests of greater efficiency or greater profit. Perhaps the best example of that is in the case of some of the more recent sea-going ferries, which are places of work for large numbers of people and where the evidence to date — I do not want to prejudge the tribunals — would suggest that in recent years the interests of commercial maximisation and of profit and so forth have resulted perhaps in design and construction which put safety second or third down the line. There may be other areas also — I cannot think of any at the present time.

The basic question I am asking the Minister — this section is largely in the form of exhortation; it is saying something everybody would agree with — will there be guidelines — and this could be a very complicated job — to architects, to builders and to those who construct outlining in specific areas what constitutes what is desired by this section? Will there be sanctions against people? Who will judge whether they have transgressed? If they have, will there be sanctions against them or is this what it appears to be which really strikes me as being an exhortation to architects, to builders and others that safety should be uppermost in their thinking when they are designing a place of work?

Mr. B. Ahern

This section places a general duty on persons who design and construct places of work to ensure that they are, so far as is reasonably practicable, safe and without risk to health. If necessary, guidelines will be issued but it is an offence. There are fines that will be imposed if people are found to be negligent or not to have complied with the section. It still is an offence.

Mr. Manning

How would an offence be established under this section? Would it be through the normal courts, through a tribunal or by what mechanism?

Mr. B. Ahern

First of all, it reflects Barrington. I have been advised that safety should be designed in to a particular construction but if, say, ventilation in the building was not up to standard in the planning system or if it was found not to be satisfactory or I assume if there was something that proved afterwards not to be in line with normal safety standards which are mentioned throughout this Bill, there would be prosecutions. I do not want to go into examples but I presume it would also apply to health hazards, to sanitary areas and other areas that should normally be covered in planning specifications. I do not know if it would extend to areas like building by-laws or to matters that are not safe in that regard but the fact that it is a general duty on persons who design and construct buildings to ensure that they are safe as far as is reasonably practicable, leaves it loose and flexible enough. If something afterwards was found not to be safe, under the section they would not have complied with the Act.

Mr. Harte

If the designer is Japanese or American and draws up his designs and plans in Japan or Germany, is he still liable under Irish law?

Mr. B. Ahern

That would be governed under European developments but he would be liable.

Mr. Harte

If he was outside the EC?

Mr. B. Ahern

If he is outside the EC it is more difficult but normally in a case like that they are linked with an architects' practice or a joint venture in this country. Many of the buildings here have had outside non-EC connections are into Irish agencies so you would seek to follow these. Another example is stairs rail handles. There are a number of areas that could be covered.

Question put and agreed to.

Section 12 agreed to.

SECTION 13.

Question proposed: "That section 13 stand part of the Bill."

Mr. Manning

The situation as described in this section is the ideal that should operate in any well run concern. Every employer has a total vested interest in seeing that safety is maximised. He wants to see that the health of those who work there are protected. Clearly in economic terms and in terms of productivity, all of that is very much in his interest. What is described here is something which probably should not even need the force of law to back it up, it should operate almost from the start.

I have a number of queries about the way in which this might operate in practice. I am sure the points I am raising will only occur in a minority of cases but in section 3 it says that the employees may from time to time select and appoint from among their number at a place of work a representative to represent them in consultation and so forth. Is an employer obliged to accept the person who is so selected? The situation I have in mind here is where, say, there is somebody who is the safety person, who has been trained, who has the confidence of the employer and a situation of bad industrial relations may arise where the appointing of somebody else by the workforce or by part of the workforce may be a part of the industrial relations battle. The only question I am asking here is in a situation like that under this law is the employer obliged to accept the person who is chosen from among the workforce as the safety officer? What happens, say, where there are two or three competing unions? Is a simple majority of all workers of all categories and all grades balloted who will decide who is the safety person?

Under the same section, is there anything in this to protect an employer against a situation where vexatious, frivolous and excessive demands are being made upon him? Again, I am talking about a situation which would not be the norm, where there is bad industrial relations and where this could become a weapon against the employer. Is there anything which will indicate what is reasonable in terms of the amount of consultation? I would say commonsense should dictate what would happen but under the law is there anything? Subsection (8) (b) says:

An employer shall afford a safety representative such time off from his duties as may be reasonable.

Who is to judge what is reasonable in this? Are we left with commonsense or is there some sort of guideline that an employer might have there as to what might be reasonable because we have seen in some situations where the right to mandatory meetings, consultation during working hours, was abused. It was abused in a number of areas and with consequences which were often fairly horrific.

Mr. B. Ahern

First, on the point about the nominee from the workforce, that nominee would have to be accepted by the employer. Under the Act it is their right to nominate somebody.

Mr. Manning

And a majority of all the workforce voting?

Mr. B. Ahern

It would be but under subsection (3) there could be a number of unions and a number of staff organisations and perhaps even some nonunion people. Normally what happens in these cases is that the unions concerned who are affiliated to the Congress of Trade Unions come to an agreement themselves. They have their own rules governing where the representative should come from, perhaps the largest union, or they will allow people to propose names and then they will agree at their works council level. However, if it is not agreed or if there is difficulty, regulations could be set, or a code of practice if necessary, to provide practical advice and guidance in selecting the number and functions of safety representatives required at the workplace. The Authority probably will draw up guidelines on it anyway which would be far better than having the difficulties which you have stated will inevitably arise in at least some enterprises and, as you say, hopefully very few. What was the question the Senator asked on the responsibilities of the safety representative?

Mr. Manning

Who will judge as to what is a reasonable time off to do training courses and so forth.

Mr. B. Ahern

Again, I think that should be built into the type of regulations of code of practice. If there was a difficulty perhaps the Authority should lay down some of these guidelines and regulations. I would agree with what the Senator is saying, that it is unlikely to happen in this case because he is really talking about time off for seminars or training, which is an identifiable time. It would be far better if the Authority were to set down at an early date what they consider to be reasonable standards, that they would get that right from the start so that people will not attempt — very few people do in industry — to overplay the position.

Mr. Manning

The Minister will agree to his Authority having a sort of vigilant role at an early stage in trying to solve problems like this which may arise?

Mr. B. Ahern

I would rather put it that they should in codes of practice or in regulations set down what they consider to be reasonable standards under these sections of the Bill. I have some answers and data. Rather than that being a back-up to the Bill it would be far better put into it. Since this Bill the Authority had such co-operation between both sides of the social partners that should be followed through to the Authority. When the Authority will be made up primarily of both sides of the social partners it would be best in these contentious areas, or potentially contentious areas, to specify and stipulate what their understanding is because I do not envisage the workers closely following each of these sections. It would be far better to have guidelines and set out what would be considered to be reasonable.

Professor Hillery

The legislation in course, I think Senator Manning will agree, would be inappropriate to capture the precise regulations, as it were, governing the question of the selection and the time off. In relation to the selection of safety representatives, the democratic nature of the intention of the Bill and actual custom in practice, which is of critical importance in the industrial relations field, would of course suggest that the selection should be done by the employees themselves.

Picking up the point that the Minister made, rather than the Authority reacting to problems as they arise, I would like to think that the Authority, being a joint body, would use its expertise to initiate in a number of areas, including procedures for both selection and reconciling, if you like, multi-union representation and who should represent the employees involved. With regard to time off, that can be abused. That is true and it is a valid point. Again, the Authority should prescribe and anticipate, if you like, appropriate procedures for the implementation of the Bill.

With regard to the codes of practice, let us take the report of the Commission on Industrial Relations long since published. It became clear from that that one of the few areas where both sides can easily agree is the area of codes of practice. Anything in this safety area, as in many other areas, that will lead to more formality and, with the initiative of the Authority, facilitating the establishment of codes of practice, can only be a step in the right direction. Through a consultative process, they will develop a type of ownership for what has been agreed and that under our voluntary system of industrial relations certainly offers the best prospect for good practice in the future.

Question put and agreed to.

Sections 14 to 35, inclusive, agreed to.

SECTION 36.

Mr. Harte

I move amendment No. 3:

In page 30, lines 31 to 34, to delete subsection (6) and substitute the following:

"(6) An improvement notice shall take effect—

(a) if the notice so declares, immediately the notice is received by the person on whom it is served,

(b) in any other case—

(i) if no appeal is taken against the notice, on the expiration of the period during which such an appeal may be taken or the day specified in the notice as that on which it is to come into effect, whichever is the later; or

(ii) in case such an appeal is taken, on the day next following the day on which the notice is confirmed on appeal or the appeal is withdrawn or the day specified in the notice as that on which it is to come into effect, whichever is the later.

(7) The bringing of an appeal against a prohibition notice which is to take effect in accordance with subsection (6) shall not have the effect of suspending the operation of the notice: provided, however, that the appellant may apply to the Court to have the operation of the notice suspended until the appeal is disposed of and on such application, the Court may, if it thinks proper to do so, direct that the operation of the notice be suspended until the appeal is disposed of.

This section is very important, as are all the sections. Our only concern with it is not that the Minister has not gone far enough but whether the actual wording, particularly the wording contained between line 31 to line 34 subsection (6) will do the job that the overall intention of the section is aimed at. To be quite frank about it, there is no intention to press this amendment but rather to extract information from the Minister, rather than have an argument or debate about it. I would like to know whether the Minister could give us some indication as to whether the language used in the section satisfies the overall conditions he is trying to apply in this area of the legislation, which is very important indeed.

Mr. B. Ahern

It is as Senator Harte says, extremely important. I will explain the section and if there is any question then arising it can be dealt with. The first point in looking at this section and dealing with the amendment is, there is a fundamental difference between the purpose and circumstances for which improvement notices and prohibition notices are intended. They are entirely different and it will be a matter for the inspector, subject to the overall policy and guidance of the Authority, or an enforcement agency as the case may be, to decide in the particular circumstances of the case whether to issue an improvement notice under section 36 or a prohibition notice under section 37. They are fundamentally different.

An improvement notice is intended to be used in circumstances where an inspector believes that a contravention of any of the relevant statutory provisions on safety and health has occurred but where the deficiency may be remedied over a period of time without posing serious risk to the safety or health of persons. An example is where an inspector finds himself doing routine visits to sites and factories and perhaps finding them untidy, perhaps finding instruments left lying around, safety notices not in the right position or covered by something where it is not creating an immediate danger to life and limb. The inspector would be happy to issue a warning, that would be an improvement notice, not to be heavy-handed but to say that this is not satisfactory, to seek an improvement and to issue an improvement notice and probably say he would return again or keep a check on the matter. A prohibition notice, on the other hand, tends to be used in circumstances where an inspector believes there is risk of serious personal injury to persons arising from the activity in question. Where an inspector considers that such a risk is imminent he may bring the prohibition notice so that it will have effect immediately it is served.

The bringing of an appeal against such a notice will not in itself lead to its suspension until the appeal is disposed of. Only the courts may grant the suspension of such a notice and then only following a specific application in that regard. This procedure will ensure that the protection intended under a prohibition notice for workers who are in imminent danger will be preserved until the courts have considered an application, if any, for suspension of the notice.

The point to make about the fundamental difference is that the gravity of the circumstances for which improvement notices and prohibition notices are intended is reflected in the period set down during which the appeal to the courts may be lodged, which is 14 days in the case of an improvement notice, under section 36 (3), and seven days in the case of a prohibition notice under section 37 (6). There is a large difference, where one is just a warning to an employer, an owner or responsible person in an enterprise to undertake improvement of something that is not in line with the legislation but is not causing immediate danger as against the prohibition notice where the inspector perhaps may feel that he cannot leave the site without starting the process of a prohibition notice.

Amendment, by leave, withdrawn.

Section 36 agreed to.

Sitting suspended at 4.15 p.m. and resumed at 4.45 p.m.

Sections 37 to 61, inclusive, agreed to.

FIRST SCHEDULE.

Question proposed: "That the First Schedule be the First Schedule to the Bill."

Mr. Harte

I will not delay the Minister but on the question of appointments I wish to restate the point I made on section 10 but not in the same way. On the question of appointing ordinary members of the Authority, it says the Minister shall appoint three persons nominated by such organisations representative of employees, three persons nominated by such organisations representative of employers and four persons representative of such Government Departments, State agencies and other bodies, whose activities are concerned with matters relating to any of the purposes of this Bill, as he considers appropriate.

Perhaps I should have asked about the input of health boards under this particular heading? I wonder if the Minister can be drawn a bit on the part of the Schedule relating to his own Department? The Minister mentions State agencies. Having regard to the role of environmental officers, health officers, etc., is it the intention to improve their effectiveness or does it mean that the State agencies will be at the discretion of the Minister?

Mr. B. Ahern

The Authority, as the Senator has stated, is representative of the social partners and both the Congress of Trade Unions and the Federated Union of Employers' will nominate people. The other members and the chairman would be nominated by the Government. The Senator is primarily concerned that the health boards be involved in some way——

Mr. Harte

They should have an input. I am not terribly concerned that the State agency nominees must be from the health boards but the health boards should have at least an input in some respects.

Mr. B. Ahern

I think the position would be that the Authority would nominate agencies that would be involved and would play a part in the legislation but they would not necessarily be on the Authority. I think the Senator is asking who would be on the Authority?

Mr. Harte

The answer is that it would not necessarily mean the health boards would be on the Authority——

Mr. B. Ahern

That would not necessarily mean they would be on the Authority.

Mr. Harte

Would they have an input on a consultative basis etc., or is that a matter for the Authority?

Mr. B. Ahern

I think to give a straight answer they would have an input but on the interim board the Departments involved were the Department of Health, the Department of the Environment, the Department of Agriculture and Food, the Department of Labour, a range of Departments and agencies. The advisory board and the Authority will be anxious to have agencies involved but the mechanism they will use for that will be a matter for the Authority. They will be endeavouring to involve all of the State organisations, the employer bodies, which are directly involved through the Federated Union of Employers, and the workers through the Congress of Trade Unions. After that the way they will involve others will be a matter for them. I have no doubt they will, because they will endeavour to include the entire workforce, both employer and employee, which will be covered under the Bill.

Question put and agreed to.

Second, Third, Fourth and Fifth Schedules agreed to.

Title agreed to.

Agreed to take remaining Stages today.

Bill reported without amendment and received for final consideration.

Question proposed: "That the Bill do now pass."

Minister for Labour (Mr. B. Ahern)

I would like to express my thanks to the Members of the House who contributed so constructively to the debate today and on Second Stage.

I am especially pleased with the consensus approach which both Houses of the Oireachtas have adopted in relation to this measure. This, I am glad to acknowledge, has been a feature of the whole process of the development of the legislation, commencing with the work of the Barrington Commission of Inquiry on Safety, Health and Welfare at Work right through to the work of the interim board for occupational safety and health. It is essential that this spirit of co-operation and dialogue should continue so that the new legislative and structural safety and health system is effective in reducing the occurrence of accidents and diseases in the workplace. Because of the operation of the commission, the interim board and bodies such as the representative national industrial safety organisation, I am confident that such co-operation will be readily forthcoming.

The Bill is the most radical measure on occupational safety and health ever considered by the Oireachtas. It will ensure that a legislative framework exists through which safety and health standards can be implemented at the workplace which will take into account such vital factors as technological change and requirements arising from the development of integrated social policies within the European Community.

I have said before that the Bill has one clear objective — to help to reduce the toll of accidents and ill-health at work which gives rise both to human loss and suffering and to heavy financial costs. I must emphasise that the legislation is not expected to provide a panacea for all our safety and health problems at the workplace. What I expect it to do is to provide a sound basis where employers, workers and the self-employed can solve their problems in a spirit of co-operation with the support and guidance of the State. The primary responsibility, however, will remain with those who create the risks at the workplace. In addition, where advice and guidance fails to have the desired impact the possibility must exist for appropriate enforcement controls and sanctions. I believe the Bill allows for that type of balanced approach to the problem.

In contrast with existing safety legislation, the Bill does not set out a detailed series of specific requirements and prohibitions as regards safety and health to be observed at each place of work. Instead, it sets out broad general duties of care for all employers, employees and the self-employed. Broadly speaking, those general duties of care involve the provision of a safe place of work, safe plant and equipment and a safe system of work. Other requirements include adequate training and information for those at risk about the relevant hazards and the steps taken to deal with them. The Bill also places broad general duties of care on those who design, manufacture, import, supply and install articles and substances for use at work.

In this debate I think we have covered all the general duties in the Bill. I want to assure the House again, because during the debate a number of Senators asked about this that they may be supplemented or amplified, as necessary, by regulations and codes of practice developed under the Bill covering an extensive and diverse range of issues. It is anticipated that there will be frequent recourse to the use of codes of practice under the new system. It is likely that such codes can be better attuned to the needs of those at the place of work than detailed sets of statutory regulations. Regulations, by their nature, may not be easily understood by those who are affected by them. It should be possible to indicate in clear terms in codes of practice possible ways of compliance with the relevant statutory provisions.

I am very aware that the new national Authority will require adequate resources if it is to be successful in carrying out its functions. Expenditure on safety and health matters, whether at national or workplace level, is an investment which is essential, not only to prevent human loss and suffering, but will also be repaid in monetary terms by reduced insurance premium which we discussed earlier with Senator Robinson's question — fewer legal actions, less disruption at work and fewer occupational injury benefit claims. In seeking resources for the national Authority I will emphasise strongly the positive and essential role it has to play in the economic life of the country.

The successful implementation of the new safety system will also give rise to the need for a substantial and sustained exercise of training, information and education. I share the Barrington Commission's view that the legislation on its own would be ineffective without such an exercise. In this regard several initiatives have been taken, even in advance of this legislation, in the voluntary, private and public sectors, particularly in the crucial areas of information, education and training. I know that in the course of the debate a number of Senators asked that that be done, and it has commenced. Employer organisations, trade unions and private enterprise provide the necessary training. Under the aegis of my Department, a multi-disciplinary course in occupational safety and health was instituted at third level education. NISO, the National Industrial Safety Organisation, a voluntary body in safety and health, broadened its horizons and its range of activities.

Initiatives such as these are welcome. Not alone will they contribute towards overall public awareness and expertise but they will also help to relieve the direct burden on the State and on employers as regards achieving the objectives of the new system.

The passage of this Bill by the Oireachtas will mark an historic development and it also represents the beginning of a new challenge. It will require concerted effort by all concerned in development and implementation of appropriate safety and health standards within the framework which the legislation provides. I am convinced with the proper commitment we can meet those challenges. This legislation will make a major contribution to economic and social development of the country. I would like to thank the Cathaoirleach and the Senators for their help and co-operation during the course of this debate.

Mr. Manning

As the Minister says, there is a consensus on this Bill. It is good legislation and it has the support of all parties in the House. I would like to congratulate the Minister on the very speedy and effective way he got it through both Houses.

Question put and agreed to.