The Gazette 1989

GAZETTE.

SEPTEMBER 1989

porters, suppliers of articles and substances for use at work; duties of designers and builders of places of work. Most of the duties existed already to some degree under the civil law and tort of negligence. Section 6 outlines the general duty on every employer. It states " I t shall be the duty of every employer to ensure, so far as is reasonably practicable, the safety, health and welfare at work of all its employees." The rest of S.6 refers to particular matters for which the employers must take responsibility. They must ensure that these matters are safe and without risk to health. These matters are subject to the limitation that the various steps required to be taken are only those wh i ch are "reasonably practicable". The particular matters referred to include the employers obligations in respect of the place of work, access and egress from it, the design of plant and machinery and the provision of a safe system of work. There is also a duty to pro- vide training and supervision to employees where this is necessary to ensure their safety and health. Where it is not reasonably practicable to control or eliminate hazards the employer is obliged to provide suitable protective clothing or equipment as appropriate. In one sense, Section 6 is just a statutory statement of the existing common law duties of the em- ployer under civil law. Its special significance, however, is that the

i nspec t ora te under the new national authority can now base a prosecution solely on an arguement that an employer has not taken all the reasonably practicable steps required to ensure that this general obligation is met. In the past, an inspector could only base his case on the contravention of specific rules. Prosecutions often failed because of the lack of some specific proof. Therefore, under this Act, the door for prosecutions is opened wider. This also applies to other general duties. Whether an employee received any injury at work or not, is, strictly speaking irrelevant to the prosecution of offences under these general duties. Persons other than Employees Section 7 imposes a duty on employers and the self employed to conduct their business and under- takings in such a way as to ensure that persons not in their em- ployment are not exposed to risks to their safety and health, Again the du ty applies so far as is "reasonably practicable". The section for the first time imposes a duty on the self-employed persons and its scope is as broad as can be imagined. Secion 8 places a duty on persons in control or in charge of a non-domestic place of wo r k, (which means any building or place that is not a private dwelling) which is made available to other persons who are not their employees, to ensure as far as reasonably

practicable, that the places of work, their entrances and exits and any articles or substances in them do not endanger the persons using them at work. This section should not be read to mean that people who employ domestic workers are excluded from the provisions of the Act. It is clear that employers have obligations to such workers under S.6 of the Act. The primary purpose behind this section seems to be to deal with difficulties encountered in the Construction Industry. Employees' Duties Section 9 places general duties of care and co-operation on the employees. Employees are expect- ed to take reasonable care for their own safety, health and welfare and that of other persons who may be affected by their acts or omissons while at work. They are expected to co-operate with their employer, and to use any of the protective gear supplied. There is also a new ob l i ga t i on to report to their employer without unreasonable delay any defects in plant or equipment, place of work or system of work which might endanger their safety or welfare. The significance of this new duty might well lie in civil proceedings arising out of accidents at work rather than through possibilities of enforcement by criminal law. In this context though it may be worth noting Section 60 which provides that breaches of the general duties (Section 6.11) do not create a right of action in civil proceedings.

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