The Safety, Health & Welfare At Work (General Application) Regulations, 1993, SI 44, state that any consultation with the employees must be held ‘in advance and in good time’. This is to ensure that any changes in the planned use of any article or substance in the workplace can be considered from a safety, health and welfare at work perspective and that the employees’ view is heard. The Regulations also state that any consultative mechanisms must be ‘balanced’ - in other words, consideration should be given to the various interests and hazards when determining the shape of any Safety Committee or similar structure.  How such representations should be made and how management demonstrate that they have ‘taken into account’ such representations is not clear from the Act. The putting into place of Safety Consultation structures – such as a Safety Committee – would be the sensible solution, from both employer and employee perspectives – to provide a channel through which consultation can take place and consideration of representations made reported back.  Employees have a legal right to select Safety Representatives. Although the Act says ‘Safety Representative’, all legislation is written in the first person, singular, masculine – so Representative can be any number agreed between management and employees having due consideration of factors such as the range of hazards, number of employees, shift arrangements, different departments and so on.

What Rights Do Safety Representatives Have?

The Act provides that employees may select their own Safety Representatives. The Act is silent on the method of selection or election. Good trade union practice is to have an election where there is more than one candidate for the position of Safety Representative.  In trade union organised employments, Safety Representatives are normally elected through the established democratic procedures utilised for electing other workplace representatives.  The rights of a Safety Representative are summarised in below.

Safety Representatives are entitled to:

CONSULTATION BY THE EMPLOYER

make arrangements to develop ‘balanced’ structures, promote safety and consultation ‘in advance and in good time’

INFORMATION

on substances and articles, on hazards and on plans and records

INVESTIGATE

potential hazards and complaints and accidents make to carry out safety inspections

CONTACT HEALTH & SAFETY INSPECTORS

seek information or advice, accompany a Health & Safety Inspector, make representations to an Inspector and be informed when an Inspector is on the premises

TRAINING/TIMEOFF

training with no loss of earnings, time to carry out functions and duties and not to be placed at any disadvantage

What Do The Safety, Health & Welfare At Work (General Application) Regulations, 1993 Say About Representation & Consultation?

The Regulations provide that any consultation should be ‘in advance and in good time’ of any workplace change that introduces new hazards or alters existing safe practice. ‘In advance and in good time’ is not defined but the Protection Of Employment Act, 1977 obliges employers to give thirty days notice of any ‘collective redundancy’ and thirty (30) days would seem to be an acceptable interpretation of ‘in advance and in good time’.  The Regulations also state that any consultative structures should have ‘balanced participation’. This need not necessarily mean equal numbers of employers and employees but balance as between the differing ‘health and safety constituencies’ in the workplace – shifts, departments, processes and work systems – taking into account the range and severity of hazards within the job.

Are These Rights Difficult To Achieve In Practice?

Apparently so. Evidence suggests that these straightforward and unequivocal rights are proving difficult to achieve in practice.

This is undoubtedly one reason why only about 16% of all employments actually have Safety Representatives in place! It is suggested that, of that figure, much fewer are active. The pressure on Safety Representatives and the disappointment that arises when employers effectively block the Safety Representative from fulfilling their role, has resulted in an alarming fall in the numbers selected or appointed. This is a shocking statistic and suggests that the legislation is simply not working.

Some of the problems that arise for Safety Representatives include –

How Long A Term Of Office Should A Safety Representative Serve?

Again, the Act is silent. The HSA Guidelines On Safety Consultation & Safety Representation suggest three years which most trade union employments operate, subject to the democratic wishes of any annual general meeting of the electing employees to consider the year’s activities.

Can A Safety Representative Stop A Job On Safety Grounds?

The Act gives no authority to a Safety Representative – or any other employee – to stop a job on safety grounds. If any employee feels in serious and imminent danger, common sense would suggest that they can take the appropriate evasive action and notify management immediately so that persons of competence can assess the situation and take corrective or protective action.

A Safety Representative can also remind employees that under Section 9, Safety, Health & Welfare At Work Act, 1989, they have a duty to take reasonable care of their own safety and health, and that of their fellow employees.

The Safety, Health & Welfare At Work (General Application) Regulations, 1993 do give all employees, faced with serious and imminent danger, and in the absence of an immediate superior to give instruction, the right to evacuate the premises in order to avoid the threat of the serious and imminent danger.

What Safety Representatives do have the right to do, is to report dangers or hazards if they arise, remind management of their duties, seek competent persons to declare that the danger did not exist, has been removed or is under control under specific conditions, and, failing all that, notify the HSA on the one hand and the Union Committee on the other.  It may well be lawful to reject the content of any management order if it is thought to be unsafe.

Are Safety Representatives Entitled To Any Facilities?

There is no special provision for facilities in the legislation. The HSA has, however, published a set of Guidelines On Safety Consultation & Safety Representation that suggest a range of basic facilities that should be provided to enable a Safety Representative operate effectively.  The Guidelines are worth consulting.

Can Safety Committees Still Operate?

Yes. There is nothing in the legislation preventing employers and workers from organising a Safety Committee. The only obligation – contained in the Safety, Health & Welfare At Work (General Application) Regulations, 1993 - is that representation on such a body be ‘balanced’.  This does not necessarily mean equal numbers from employer and employee but careful consideration given to representation of the various ‘safety constituencies’ in the workplace –shifts, numbers, different departments and processes – and, in particular, the seriousness and range of hazards presented.

Many trade union members are very supportive of Safety Committees, a view shared by enlightened managements.

What Might Such A Safety Committee Do?

A Safety Committee can be established –

Should A Safety Committee Take Minutes?

Absolutely. Minutes are the legal record of the business of any Safety Committee.  Remember that the minutes of a Safety Committee may be admissible as evidence in a prosecution of an employer or in an employee’s action for compensation against the employer. So make sure that the important issues raised by Worker Representatives are duly recorded in the Safety Committee minutes.

Can The Terms Of Reference Of A Safety Committee Be Written Into A Safety Agreement?

Much confusion could be avoided by the adoption of Safety Agreements between employers and trade unions.

A full, model Safety Agreement is included at the end of this chapter but the typical heads of a Safety Agreement might include the following items

Is There A Code Of Practice For Safety Consultation And Representation?

No. There is a strong case to be made for the current HSA Guidelines On Safety Consultation & Representation to be upgraded to the status of a Code Of Practice, once the review of the 1989 Act is complete. Such a Code Of Practice would give more authority to Safety Representatives in pursuit of their legal entitlements.

There is a need that these Guidelines should now be upgraded to the status of a Code Of Practice.

What Is The Connection Between Safety Representatives And Trade Unions?

In law, there is no formal relationship. Safety Representatives are elected by the employees in their workplace - not through their trade unions. There is no mention of ‘trade union’ in the Act. However, on the board of the HSA, the Act provides for the nomination of three Board members by ‘such organisations of employees’, meaning trade unions.  That said, Safety Representatives should have close relations with Trade Union Works, House or Section Committees. The liaison might include –

Good employers have come to regard good Safety Representatives as being assets in the promotion of good safety, health and welfare at work practice and in the effective management of workplace hazards and risk.

This Agreement is drawn up between Humdrum Engineering Plc, hereinafter called the employer, and the Services Industrial Professional & Technical Union (SIPTU) and Technical Engineering & Electrical Union (TEEU), hereinafter called the Unions.  Nothing in this Safety Agreement can override the statutory obligations, duties and rights of any person.

Purpose

The purpose of entering into this Agreement is to promote and protect the safety, health and welfare at work of the employees covered by the Agreement and to secure full compliance with all terms of the Safety, Health & Welfare At Work, 1989 and attendant legislation.  Recognising the need to create and maintain a positive health and safety culture in the employment, the employer is committed to (i) disseminating information to all employees on health and safety matters to promote interest and awareness;

(ii) creating a positive climate in management to the receipt of health and safety complaints, dealing with them promptly and reporting back on progress;

(iii) health and safety matters taking a higher priority than other industrial relations issues.  Whilst standard industrial relations issues once decided upon may attract aspects of retrospection, the employer accepts as a good maxim that ‘there is no retrospection on health and safety’.

Scope

The scope of the agreement is limited to members of SIPTU and TEEU.

Safety Committee

It is agreed that a Joint Safety Committee be set up to protect and promote safety, health and welfare of employees and environmental protection of the workplace and its locality.  The Safety Committee shall comprise of management and Worker Representatives. The selection or election of such Representatives is entirely a matter for management on the one hand and the unions on the other.

There shall be a total of …. Seats on the Safety Committee.

The number of representatives from each side, the method of selection or election, the term of office and other matters shall be set out in the Standing Orders for the Safety Committee in Annex 1 to this Agreement. (For reasons of space Annex 1 is not attached here but standard Standing Orders are available from the Union)

Facilities For Safety Committee Members

To encourage the fullest participation by employee representatives in the whole area of safety, health and welfare at work, the employer accepts in principle that no loss of remuneration will ensue as a result of an employee acting as an employee representative on the Safety Committee.

While engaged on Safety Committee activities the employee representative will be considered to be at normal work.

Safety Committee meetings shall take place during normal working hours. Emergency or extraordinary Safety Committee meetings may take place outside normal working hours.  Employee representatives on the Committee whose working hours do not coincide with Safety Committee meetings – shift or night workers – shall be facilitated in attendance by being allowed paid time off from normal work before or after the meeting at the discretion of the particular representative to take account of social, family and physical needs.  Employee representatives on the Committee whose normal hours of work do not coincide with the time of Committee meetings shall be paid time plus a half for the time spent at the meeting.

Employee representatives shall be allowed paid time off to attend pre-Committee meetings of the employee side of the Safety Committee.

Committee members incurring travelling expenses in attending meetings shall be reimbursed by the employer.

Employee representatives on the Safety Committee shall have the same facilities extended to them as are extended to the Safety Representatives. To allow for the effective performance of their role, employee representatives shall be allowed a half an hour before full Safety Committee meetings to privately consider their collective attitude to the agenda.

Facilities For Safety Representatives

Recognising that the role of Safety Representatives will require support and back-up, the following are some of the facilities which shall be extended by the employer to aid in the performance of that role in accordance with the Health & Safety Authority (HSA) Guidelines On Safety Consultation & Safety Representation.

Communications

Secretarial facilities – word processing, e-mail, fax, internet access.

Use of notice boards – electronic and traditional.

Access to and use of private telephone.

Provision of secure place, under lock and key for the keeping of files, correspondence and literature.

Use of company facilities for holding meetings and consultations with other employees and Safety Representatives and Safety Committee members.

Education & Training

Recognising the important role that education and training will play in attaining and up-dating the necessary knowledge and skills required by Safety Representatives and Safety Committee members, the employer will release – with no loss of earnings and expenses paid – the Safety Representatives and Safety Committee members to approved health and safety courses, including those provided by trade unions.

The employer will provide opportunities and encourage attendance at such courses. In particular, the employer will encourage and facilitate release for those courses which are approved of or certified by the HSA, FETAC, HETAC, FÁS, IOSH or recognised third level institutes.

Time Off

The Safety Representatives and Safety Committee members shall be allowed time of from normal work without loss of remuneration to attend to their duties such as –

Disclosure Of Information And Reports

The employer will disclose and supply to the Safety Representatives and Safety Committee members all information and reports relating to health and safety which is generally to hand or which is commissioned for specific or general purposes by the employer from internal or external sources.

Consultation In Event Of Change

Recognising the duty to consult with employees ‘ in advance and in good time’ of any change in technology, work systems, procedures, methods, processes or work organisation, use of articles and substances, the employer will consult with Safety Representatives and Safety Committee members at the formative stages of such change and take note of any recommendations made.

Access To All Work Areas

The employer will allow access to all work areas of the workplace to the Safety Representatives and Safety Committee members. Such access will not be restricted by time or number of occasions – unless for valid health and safety reasons.

Personal Protective Equipment (PPE)

Recognising that it is desirable to fit the task to the person rather than the person to the task, PPE will only be designated where there is no other way in which the task can be done.  Where PPE is absolutely and unavoidably necessary, employees and their Safety Representatives will be consulted in advance of its purchase, through the Safety Committee, as to its suitability and appropriateness regarding safety and comfort of use. If necessary, a number of samples of the proposed PPE will be tested to establish comfort, suitability and effectiveness and to ascertain as to whether the PPE itself brings new hazards with it.  The provision of suitable PPE will not discharge the employer’s obligation to seek the removal of the hazard or the primary principle of prevention that gives rise to the need for PPE.  PPE should be issued at no cost to the employees.

Provision Of A Health & Safety Library

In order to keep management and employees advised and updated on health and safety matters, the employer will provide, stock and keep up-to-date a health and safety library containing, among other things, legislation, Safety Statement, CD-roms, books and journals, Material Safety Data Sheets (MSDS), supplier and manufacturers instructions and manuals, etc.

Opportunities for all employees to visit and use the library during working hours will be allowed and promoted by the employer.

The Safety Committee and Safety Representatives will be consulted about materials collected in the library.

Where necessary, video, CD or ciné equipment might be included.

Health And Safety Grievances

Individual Health And Safety Grievances should be taken up by either the individual employee and/or the Safety Representative, who will set out the grievance in writing. The matter may also be directed to a Shop Steward at the discretion of either the employee or Safety Representative at this stage.

Collective Health And Safety Grievances should be directed to the Safety Representative who will then take them up with the appropriate management level and/or the Safety Committee at her/his discretion. If the matter cannot be resolved at local management level, it will be set out in writing by the Safety Representative.

A collective health and safety grievance may also be directed to a Shop Steward by the aggrieved group or Safety Representative for processing.

Where a health and safety grievance – whether of an individual or a group nature – is referred to a Shop Steward, it will be taken through the normal industrial relations grievance/dispute procedure. In such circumstances, the matter shall not be handled by the Safety Representative without the agreement of the Shop Steward.

A written health and safety grievance shall be taken up with the appropriate senior management or the Safety Committee at the complete discretion of the Safety Representative.

Health And Safety Emergencies

There may be occasions when the preservation of the health, safety and welfare of the workforce requires critical and instant action. This may necessitate stopping work or evacuating the immediate work area in order to prevent or avoid a dangerous situation. In such cases, the matter should be referred directly to the Foreperson/Shift Leader/Supervisor by the worker(s) concerned and the Safety Representative. If the matter warrants action, local management will authorise a work stoppage or evacuation and take the appropriate steps to deal with the dangerous situation.

In the event of immediate management being absent or unavailable, the Safety Representative – or any other competent worker – may authorise a stoppage or evacuation until the imminent danger can be investigated and removed.

After any authorised stoppage or evacuation, work will not resume until a competent authority has investigated the reason for the stoppage and issued a Certificate Of Clearance or Permit that the matter is now resolved and it is safe to return to work. This Safety Clearance or Permit must have the personal signatures of -

To avoid unnecessary confrontation, no employee will be compelled to do any work which that employee has objected to because of a fear for her/his health, safety and welfare. This is a recognition of basic human right not to subject to risk.

A worker who objects to working at a task that s/he considers to be dangerous shall suffer no loss of earnings while the alleged danger is investigated.

Any dispute which may arise as to the reasonableness of any such objection to perform work shall be dealt with the normal disputes procedure as an industrial relations matter.  No unilateral disciplinary action shall be taken by the employer during the processing of a dispute through the disputes procedure.

Nothing in this Health & Safety Agreement shall preclude the Union from representing its members in the normal way.

All documentation, minutes and reports arising out of Health And Safety Grievance in the employment shall be made available to the Union by the employer.

No Loss Of Earnings

In the event of any area of the workplace, or the workplace generally, being closed as a result of a health and safety emergency, the issuing of a Prohibition Notice or Court Order, no employee affected by such closure will suffer any loss of earnings.

Safety Statement

This Health & Safety Agreement shall be incorporated as an Annexe to the Safety Statement.

Review And Amendment

This Health & Safety Agreement can only be altered with the consent of both parties to the Agreement.

The operation of the Agreement shall be subject to annual review by the Safety Committee who may make suggestions for alteration to the parties.