The Gazette 1989

GAZETTE.

SEPTEMBER 1989

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.

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.

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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