A safe place of work means an employer must ensure that a reasonably safe place of work is provided and maintained for employees. Has the employer applied reasonable foresight in carrying out a hazard identification and risk assessment exercise and translated the findings into an action plan of risk reduction/removal, minimisation or control?  Safe plant and equipment means an employer must take reasonable care to provide and maintain proper appliance, train operatives adequately and provide appropriate personal protective equipment (PPE) if necessary. In the absence of any specific Statute or Regulation covering particular plant or equipment, an employer would be expected to faithfully assemble, operate and maintain such plant and equipment to the standards specified by the manufacturer.

Safe systems of work means that an employer must devise reasonably safe methods of carrying out any task, training and supervising employees accordingly. The erection of scaffolding by unqualified operatives that is never checked or maintained would be an obvious example of an unsafe system of work. Asking employees to lift heavy loads when there has been no risk assessment, consideration of using manual handling aids or provision of manual handling training for the employees would be another unsafe system. An overload of administrative work, poorly defined job content and responsibility, and continuous pressure of deadlines leading to occupational stress or ‘burn-out’ would be further example of unsafe systems of work.

Competent fellow employees means that an employer must select proper and competent staff and supervise them adequately. New work systems or plant and machinery may necessitate re-training and newly considered supervisory targets. In other words, competence is not always forever.

In order to attain damages at common law for a workplace injury or disease, an employee must show that the employer owed her/him a duty of care, that there was a breach of that duty of care due to negligence, and that there was reasonably foreseeable damage caused to the employee. Furthermore, the employee must prove that the employer’s negligence caused the injury.

Origin And Purpose Of The Safety, Health & Welfare At Work Act, 1989

Since the passing of the Safety, Health & Welfare At Work Act in 1989 – an Act that applies to all workers, all employers and all workplaces for the first time – over 700 people have been killed. This is an average of over 60 fatalities a year. These figures do not include deaths from road traffic accidents involving commercial vehicles or persons at work; deaths from heart disease caused by work-related factors; or deaths from exposure to carcinogens within the workplace. This latter figure is estimated to be up to 350 per year!

In addition, the number of serious occupational injuries average about 8,500 a year. Over 1,000,000 days are lost every year because of accidents and ill health at work. It is estimated that poor safety, health and welfare at work currently costs the economy some €3.3 billion or 6-7% of GNP.

As with many other codes of law, Ireland inherited its health and safety legislation from Britain.  The first Irish legislation was the Conditions Of Employment Acts, 1936-1944, and similar legislation for shop and office workers, setting down statutory maximum weekly working times, overtime conditions, rest periods and breaks. These provisions were in line with International Labour Organisation (ILO) Conventions. These acts were repealed and updated by the Organisation Of Working Time Act, 1997 that implemented the European Union Working Time Directive.

The Factories Act, 1955 and Safety In Industry Act, 1980 were enacted to set out basic standards and were a continuation of the tradition of ‘prescriptive’ legislation that established absolute criteria that were then to be enforced by factory inspectors and a system of penalties.  The tripartite Barrington Commission Of Inquiry Into Safety, Health & Welfare At Work led to the Safety, Health & Welfare Act, 1989.

Who Is Covered By The Act?

For the first time, the Act extended cover –

In other words, it was totally comprehensive in its coverage of the workplace. As with all statutes, it placed various duties on employers and employees and extended various rights.

What Are The General Duties Imposed On Employers & Self Employed

Section 6 of the Act gives statutory expression to the common law duty of care by obliging employers, ‘in so far as is reasonably practicable’, to ensure the safety, health and welfare at work of all employees.

In particular, employers are obliged to

Some argue that this is all the legislation that is required as this Section of the Act imposes very wide obligations on all employers and self-employed to give effect to their duty of care in every conceivable manner. The Section is one well worth check-listing against the Safety Statement in your employment.

What Is Meant By ‘So Far As Is Reasonably Practicable’?

All of the duties imposed on the employer in the Act are qualified by the expression ‘so far as is reasonably practicable’. What does this mean in practice?

In any proceedings before a court of law, an employer must show that they did everything reasonably practicable to discharge their common law duty of care and statutory duty arising under the Act, otherwise they could be found to be negligent and liable for damages at common law and/or guilty of an offence under the Act.

If an employer has not done something obvious, simple and inexpensive – for example guard an exposed opening, place warning signs and restrict entry to the area to authorised and informed employees – then clearly they have not done everything reasonably practicable and could be guilty of an offence under the Act, or proved negligent and liable for full damages to be awarded against them in a civil court. If they have taken all the measures listed, then they will have complied and will not be guilty of an offence under the Act.  It may, however, be a defence if the employer says that something was not done because it was very expensive in terms of time, trouble or money and that the risk was only very slight.  Here the balance between risk and the cost of removing that risk is disproportionate and it may be reasonable that the employer did not take additional measures. They would be guilty of an offence under the Act and, although liable at common law, the degree of negligence may be slight and damages awarded would reflect this.

What Are The Other Duties On Employers & Self Employed?

Sections 7 and 8 impose other duties on employers to ensure the safety, health and welfare of their workers when they visit other premises in the course of their employment. This may mean that an employer asking a member of their staff to enter another’s premises to deliver goods or provide a service should be notified in advance of any hazards that may be encountered within the second premises. Conversely, of course, employees in the second premises are entitled to be made aware of any hazards that the worker entering their premises may bring with them. Employers must also consider others - including the public - who may be affected by their workplace - for example, leakage of toxic substances into the air.

What Are The General Duties Imposed On Employees?

Section 9 imposes general duties on all employees. These are again rooted in the common

duty of care and oblige workers to

There is nothing particularly new in the content of this section in that the requirements existed in common law - other than the obligation to report defects. In some cases workers have been accused of being ‘troublemakers’ because they report faults and defects. Nevertheless, workers should persist in reporting such faults and defects. Evidence also suggests that workers do not necessarily obey this section for fear that reporting will result in disciplinary action or other problems, and, that reporting faults is pointless because little or no corrective action is ever taken. This can be overcome by insisting on reporting systems that are reviewed by the Safety Committee and seen to be promptly acted upon.  The duty to ‘take reasonable care of their own safety and others who may be affected by their acts or omissions at work’ means that employees should not expose themselves, or others, to risk from hazards they become aware of that are not dealt with in any way by a safe work system or practice, the supply of adequate training and information, and, if necessary, the provision of suitable personal protective equipment (PPE).

What Are The General Duties Imposed On Designers, Manufacturers, Importers Or Suppliers?

Sections 10 and 11 oblige those designing, manufacturing, importing, supplying or constructing places of work to make sure that they are designed, constructed, tested and examined so as to be safe and without risk to those who may work with such products or in such places.

Manufacturers’ instructions and guide manuals should be retained and available for reference as they detail safe work systems, handling and emergency instructions.

Should All Employers And Self Employed Have A Safety Statement?

Yes. Section 12 obliges all employers and self-employed to have a written Safety Statement based on an identification of the hazards and assessment of the risk. The Safety Statement is the core of the Act and its aim is to prevent unsafe and unhealthy situations arising by effective hazard identification, risk assessment and appropriate safety and health management systems/control.

The statutory obligations on employers to produce a Safety Statement are outlined in greater detail in a general discussion of the Safety Statement in Chapter 30 below. The Health & Safety Authority Guidelines On Safety Statements should also be consulted.  A Safety Statement is admissible in any proceedings taken against an employer either by the Health & Safety Authority for breaches of the Act or by an employee suing for compensation for a workplace accident or injury. An employer may cite a good Safety Statement in defence of any criminal or civil proceedings taken against them.

Are All Employees Entitled To Select Safety Representatives And Establish Safety Committees?

Yes. Section 13 obliges all employers to consult with their employees on matters of safety, health and welfare and to consider representations they might make and to take account of any representations made by the workers.

Workers have the right to make representations and consult with their employer on matters of safety, health and welfare in their place of work. This does no mean making representations only to their immediate superior. Complaints or representations can be made to the employer at the highest level.

Workers may, from time to time, select and appoint from their number a Safety Representative who have rights to be consulted, to receive information, to investigate hazards and accidents, to carry out safety inspections, and to contact Health & Safety Inspectors.  This does not mean that Safety Committees – not directly mentioned in the 1989 Act – cannot also be established. This is clear from the Guidelines On Safety Consultation & Safety Representation issued by the Health & Safety Authority, in consultation with the employers and trade unions, which are well worth consulting.

A fuller discussion of the rights of Safety Representatives is contained in Chapter 34 below.

What Is The Health & Safety Authority – HSA?

The Act established the National Authority For Occupational Safety & Health, known as the Health & Safety Authority (HSA).

The HSA is based at 10 Hogan Place, Dublin 2 and can be contacted - tel 01 614 7000, fax 01 614 7020, or e-mail info@hsa.ie . The Authority has an excellent website at http://www.hsa.ie The HSA is managed by a Director General, who reports to a Board. The Board, appointed by the Minister, has representatives nominated by the employers, trade unions and others. The HSA has the following functions of enforcement, advisory, promotional and other duties –

The HSA is a tremendous resource for Safety Representatives and employees generally. They produce a wide range of publications detailing legal entitlements and explanation of hazards and their controls within the workplace. Safety Representatives should avail of and utilise advice from the HSA – not simply see the Authority as a place to report problems.

How Is The Act Implemented And Enforced?

Health & Safety Inspectors are given certain enforcement powers which are usually driven by physical inspections of the workplace –

In practice, an Inspector visiting any place of work may either do nothing – because the work place is in full compliance with its statutory obligations and the Inspector is satisfied as to the general standards of safety, health and welfare – or exercise the enforcement powers. In the HSA Annual Report, summaries of prosecution taken in that year are published along with other enforcement statistics.

Remember, Safety Represenataives have the legal right to accompany an Inspector on a tour of inspection - other than an accident investigation - and to receive advice and information from an Inspector.

What Are Improvement Directions, Plans And Notices?

An Inspector, following a workplace inspection, might issue a Letter Of Advice, drawing the employer’s attention to minor matters and serving, in effect, as a gentle tap on the knuckles.  Where it is considered that work activity involves or is likely to involve a risk to safety and health, an Inspector may serve an Improvement Direction on the employer, directing, in writing, the person in control of the activity to submit an Improvement Plan for approval within a specified time. The plan must specify remedial action. Where the Inspector considers the Improvement Plan submitted to be inadequate, the Inspector can require its revision and resubmission within a specified time.

Where the Inspector is of the opinion that a relevant statutory provision is or has been contravened, the Inspector can serve an Improvement Notice on that person. An Improvement Notice can also be served where someone fails to submit or comply with an Improvement Plan. This Notice specifies the alleged contravention of the legislation and a date by which it must be rectified. The Notice can be appealed to the District Court within fourteen (14) days where it may be confirmed, modified or cancelled.

What Is A Prohibition Notice?

Where an Inspector is of the opinion that activities involve or are likely to involve a risk of serious personal injury, the Inspector may serve a Prohibition Notice on the person in control.  This Notice will direct that the activities specified must not be carried on unless the matters specified have been remedied. The Notice can be appealed within seven (7) days to the District Court that may confirm, modify or cancel it. A Prohibition Notice may have immediate effect or be deferred for a specified period.

Trade unions have been actively campaigning to have Safety Representatives invested with power to issue Provisional Improvement Notices and Provisional Prohibition Notices – powers enjoyed by Safety Representatives in other jurisdictions – particularly in the construction industry. Such power would enable immediate workplace action to be taken where there is considered to be a serious risk of injury to workers.

Can The HSA Obtain A Court Order Against Employers?

Yes. The HSA also has power to seek a Court Order – or Section 39 as it is commonly referred to - to close a workplace – or part of a workplace – where infringements of legal duties are rampant and where other attempts to enforce compliance have failed. This may lead to the closure of the job, or part of the job, until the employer rectifies the matters that are in breach of the law. Where a Court Order is obtained, it is only that court that may permit the workplace to re-open.

Court orders have also been successfully sought – for example in the construction industry –after serious breaches of statutory duties have led to a fatality or persistent accidents. Serious breaches of statutory duty may trigger a Court Order - there does not need to have been an accident or a fatality.

What Happens If Employees Lose Money Because The Workplace Is Closed By A Prohibition Notice Or Court Order?

The Act is silent in this regard but the Labour Court has recommended that in such situations, employees should not be at a loss and that employers should make good their losses, minus any social welfare payments.

The trade unions would believe that this principle should be included in the legislation and, in the interim, collective agreements or safety agreements.

What Are The Penalties Under The Act?

The Act provides for both summary prosecution and prosecution on indictment. The HSA initiates prosecutions under summary jurisdiction in the District Court. Prosecutions on indictment may only by instituted by the Director Of Public Prosecutions.  Most offences listed in Section 48 carry a fine on summary conviction not exceeding €2,105 on each charge set out or, on conviction on indictment, a fine at the discretion of the court.  Other more serious offences – such as failure to comply with a Prohibition Notice, carry a fine on summary conviction not exceeding €2,105 or, on conviction on indictment, to a fine or, at the discretion of the court, to imprisonment for up to two years, or both.  Questions have been rightly asked about the effectiveness of such levels of fines. Trade unions have been campaigning for more substantial penalties to serve as effective deterrent and encouragement to more employers to adopt best practice.

In summary then, the Safety, Health & Welfare At Work Act, 1989 covers all employers, all self employed, all workers, all workplaces, and all articles and all substances used at work.

It obliges employers and self employed to have a written Safety Statement based on an identification of the hazards and an assessment of the risk within the workplace.  It entitles all workers to have consultative mechanisms with their employers to make representations about safety, health and welfare at work and to have these representations considered. It entitles workers to select and appoint Safety Representatives.