The Gazette 1989

GAZETTE

SEPTEMBER 1989

pace of technological change rendered unimportant. On the question of enforcement the Barrington Commission was equally damning of the existing system. It considered that the criminal law was not particularly well suited to bringing about preventative strategies - "con- ce r ned w i t h f au l t, not w i t h causation or prevention, and inter- vening after a serious breach of the law (and in practice, frequently after an accident) the Court's contribution to the prevention of accidents and illness is at best indirect." 3 Thus Barrington advo- cated the use of preventative executive actions to secure com- pliance w i th standards rather than reliance on sanctions for the breach of regulations. Taking Barrington as a whole it is possible to see three key proposals wh i ch shape t he present legislation: 1. The Commission favoured the adoption of a "F r amewo r k" Act to replace the multitude of existing statutes. It was to operate on the basis of the imposition of a small number of general duties rather than a multitude of specific ones. 2. The Commission recommended a different regime of enforce- ment to be based on the wider use of administrative orders - Improvement Notices and Pro- hibition Notices - which would encourage the prevention of accidents. 3. The Commission sought better management of safety issues through the use of Safety State- ments, the achievement of workplace involvement and the designation of responsibilities in a clear and direct way. It will be helpful to bear these key recommendations in mind as we examine the Safety, Health and Welfare at Work Act. The 1989 Act The Safety, Health & Welfare at Work Act 1989 passed all stages of the Oireachtas on 19th April 1989. It will come into operation when the Minister for Labour exercises the power given to him in Secion 1 (2) to declare all or part of its provisions effective. The Act envisages a transition pe r i od be t ween p r e - ex i s t i ng legislation and the full operation of

the Act itself. Section 4 provides for repeal of previous enactments. For example, Section 4, subsection (h) provides that the prohibition notice referred to in the Safety in Industry Act 1980 will be repealed when the relevant section of this Act which also deals wi th the prohibition notices comes into operation. Thus the obligations owed by employers to their em- ployees w i ll be i nc r eas i ng ly governed by statute as provided for by this Act and by the rules and regulations made by the new National Authority (for Occupa- tional Safety and Health), which wi ll provide for a degree of industrial self-regulation for health and safety. In time it is envisaged that the Act will replace all previous enactments and statutes that fall within its ambit. In drafting the legislation it is apparent that our obligations under the Single European Act have been taken into account. Article 118A of the Act provides that member s t a t es " s h a l l pay pa r t i cu l ar attention to encouraging improve- ments, especially in the working environment, as regards the health and safety of workers, and shall set as their objective the harmonisation of conditions in this area while maintaining the improvements made." The Article goes on to provide for the establishment of minimum requirements by way of Community Directives. Six draft Directives have now been proposed and it is expected that four of them will be adopted this year. 4

The new obligations contained in these Directives have been antici- pated to some extent by the 1989 Act so it is not expected that any substantial amendment of the legislation will be required. It is recognised, however, that it may be necessary to introduce statutory regulations to implement some of the detailed provisions. This can be done under Section 28 which allows for the Minister to issue regulations after consultation wi th the New Authority. The Act contains a number of important definitions which merit examination. It provides that a "place of wo r k" includes any place, land or other location at, in, upon or near which, work is carried on whe t her occass i ona l ly or otherwise and in particular includes - (a) a premises, (b) an installation on land and any offshore installa- tion (c) a tent, temporary structure of other moveable structure, and (d) a vehicle, vessel or aircraft." The definition could hardly be more comprehensive and is much wider than any single provision in existing legislation. The definition of employee remains confined to persons employed under contracts of service and the distinction be t ween emp l oyees and in- dependent contractors is main- tained. However, the importance of this distinction is diminished in practice by the duties imposed by Section 7 on people such as outside contractors who work on the premises. It is also worth mentioning that persons under- going training for employement or receiving work experience, other than at school or university, are deemed to be employees of the person who provides such training or work experience. The General Duties Section 6 to 13 of the Act outline the general statutory obligations relating to the basic and over-riding responsibilities of employers, employees and others engaged in work activities. They are at the core of the Act. Very briefly, they are the general duties of employers to employees; the duties of employers and self-employed to the public; duties of persons who allow their workplace to be used by others who are not their employees; the duties of employees; the duties of designers, manufacturers, im-

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