The Gazette 1989

SEPTEMBER 1989

GAZETTE.

Duties of Designers, Menufecturers, Importers and Suppliers Section 10 imposes a range of duties on persons who design, manufacture, import or supply any article for use at work. The range of the duties established is extensive, particularly having regard to the paucity of similar provisions in previous enactments. For example, there is a specific duty to carry out tests and examinations and conduct research to ensure that articles and substances are safe and without risk to health. The onerous duties on manu- facturers etc. is somewhat cir- cumscribed by Section 10 (7) which provides that the duties shall apply only to things done in the course of a trade, business or other undertaking carried on by him (6 whether for profit or not) and "to matters within his control". Furthermore, there is provision in Section 10 (8) for manufacturers to limit their responsibilities on the basis of writtten undertakings from others. However, the circum- stances in which such under- takings are effective is closely restricted. The provisions of Section 10 (7) and 10 (8) are of some interest, not least of all because of their novelty. Beyond that, however, it is not hard to imagine the difficulties which are likely to arise over such concepts as "ma t t e rs wi t h in his con t ro l ". Manufacturers, designers, suppliers etc are likely to seek undertakings from the purchaser as to the use to which the article will be put. Furthermore, in order to relieve them of potential liability such persons might require the pur- chaser to take specified steps to ensure that the article shall be safe. In such situations the purchase contract becomes an important document and it is to be anticipated that such contracts will become much more complex than hereto- fore. Whether this is desirable is open to some doubt especially in the context of a statute which is aimed at promoting safety as opposed to providing for liability in civil actions. Safety Statements Section 12 of the Act places a duty on employers and the self- employed to prepare Safety State- ments based on the identification

and assessment of hazards at work. This provision is in line with the r ecommenda t i on of the Barrington Commission. The Act requires that the statement shall state the arrangements to be made, resources to be provided, the co- operation of employees required, the names of persons responsible for the performance of tasks assigned to them by the statement. The Directors Annual Report of a company under the Companies Act must contain an evaluation of the extent to which the policy set out in the Safety Statement was ful- filled during the period of time covered by the said report. It will be an offence if the report does not do so. It should be noted that where an offence had been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or similar officer, then that officer is liable to prosecution under section 48 (19)(a). Consultation It was noted earlier that one of the aims behind the new statute was the promotion of greater self- regulation at industry level. In this regard the process of consultation and workplace involvement was regarded as being crucial. The Act imposes a duty to consult in Section 13 but unlike the 1980 Act which established a definitive structure for consultation, the new Act is silent on mechanisms. It establishes the duty on employers and provides that employees may select and appoint from amongst their number a Safety Representa- tive. There is no mention of Safety Committees. 5 If appointed, the Safety Representative will have certain rights. These include the following rights:- - make representations to the employer - investigate acc i den ts and dangerous occurrences - make oral or written repre- sentations to inspectors - receive advice and information from inspectors - subject to prior notice and agreement with the employer the Safety Representative may carry out i nspec t i ons or investigations on foot of any complaint from an employee

ISLE OF MAN & TURKS & CAICOS ISLANDS MESSRS SAMUEL Mc CLEERY

Solicitors, Attorneys-at-Law of the Turk9 and Caicos Islands, Registered Legal prac- tioners in the Isle of Man of 1 Castle Street,Castletown, Isle of Man, will be pleased to accept instructions by their senior resident partner, Mr. Samuel McCleery from Irish Solicitors in the forma- tion of resident and non-resident I.O.M. Companies and exempt Turks and Caicos Island Companies. Irish Office. 26 South Frederick Street, Dublin 2. Telephone: 01 -760780 Fax: 01-764037. I.O.M. Office: Telephone : 0624-822210 Telex : 628285. Fax : 0624-823799 London Office: Telephone : 01 -8317761. Telex : 297100 Fax : 01-8317485. - on request, accompany an in- spector on a tour of inspection (other than a tour for the purpose of investigating an accident). Enforcement In the area of enforcement the Act follows the thrust of both the Robens and Barrington Reports and places a new emphasis on ad- ministrative action as opposed to the use of the criminal law. Traditional methods do of course remain in force. Thus the national au t ho r i ty can prosecute any summary offence under any of the relevant s t a t u t o ry provisions through the courts in the normal way. 6 Penalties imposed on summary conv i c t i on can not exceed £1,000 but there is no limit to the possible fine in cases of conviction on indictment. In relation to this question of prosecution it is important to note that Section 50 of the Act provides that in any criminal proceedings under a relevant statutory provision the onus of proof is on the accused to show that it was not reasonably practicable to do more than what was in fact done. The courts will be the judge of what is reasonably practicable. If a precaution is practicable it must be taken unless, in the circumstances as a whole, it would be unreasonable. It is clear from this that the responsibilities imposed on employers by the general duties are indeed as onerous as they appear. More innovative methods of securing compliance with standards lie in the provisions of Sections 35

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