324 / 482
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Industry Act 1980 will be repealed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
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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-
3 0 2