Wednesday, 15 June 2005
Safety, Health and Welfare at Work Bill 2004: From the Seanad.
I draw the attention of Members to two typographical errors in the published list of amendments made by the Seanad. In amendment No. 11, paragraph (b), "another" should be inserted before "reason". In amendment No. 14, paragraph (c), "investigation" should be inserted before "examination".
The purpose of paragraph (b) of the definition of "employer" is to deal with informal employment arrangements. I refer, for example, to instances where an employer uses staff from another company for maintenance work or temporary purposes. In such circumstances, the employer using the staff from the other business is the person in control of the working environment. It is, therefore, appropriate that he or she should bear the responsibility for ensuring that the workplace is safe. Accordingly, this definition seeks to ensure that the person with actual control is responsible regardless of whether he or she is the true employer of the worker.
Seanad amendments Nos. 3 to 5, inclusive, are technical in nature. Under some sections of the Bill — such as section 66(7), concerning an appeal against an improvement notice, or section 67(7) concerning an appeal against a prohibition notice — it will be necessary to prescribe the procedures and forms of order for cases in the District Court. These are matters that will be prescribed by the Minister for Justice, Equality and Law Reform. This is the reason for the deletion of the term "by regulations made" in Seanad amendment No. 3.
Conversely, Seanad amendment No. 4 inserts the term "by regulations made" in page 13, line 3. Seanad amendment No. 5 inserts the phrase "by rules made" after "72(3)" in page 13, line 5, for the same reason.
As regards this amendment it is proposed to delete "for gain". In reviewing the Bill it came to light that there was a possible inconsistency between the use of the word "undertaking" in section 25, which uses the phrase, "whether carried on by him or her for profit or not" and the definition of "undertaking" in an earlier subsection of section 2. For that reason it is proposed to delete "for gain" in this particular instance.
There is a possible inconsistency here as well, between the use of the word "undertaking" in section 25, which uses the very same phrases, as regards Seanad amendment No. 6. The Parliamentary Counsel's advice is the definition of "undertaking" should be amended in line with section 25.
It was pointed out in the Seanad that the Health Service Executive replaced the health boards since the Bill was published in June 2004. The HSE came into effect on 1 January 2005. It was pointed out by Senators O'Toole, Henry and others that the correct reference here should be to the Health Service Executive.
This is where an employee of another undertaking is engaged in work activities in an employer's undertaking. It provides that the employer shall take measures to ensure the employee's employer receives adequate information. Previously, the employer had been required to give the information to the employee which, quite clearly, would be impossible in some circumstances. It was agreed that this was creating an unnecessary burden and one that an employer, in many instances, could not ensure would happen.
This is related to construction work. There were discussions on Committee and Report Stages in this House and subsequently in the Seanad. Arising mainly from discussions in this House, I introduced a new section 17, which addresses some of the difficulties that were pointed out at earlier stages. One of the concerns was that the responsibilities of people who commission construction projects should be more clearly set out, as well as the duties of construction contractors. This is a framework section setting out general obligations. The details will be dealt with in the regulations. However, this section addresses some perceived difficulties with the previous wording.
The Minister of State has certainly come some way towards assisting us as regards safety issues and I welcome that. In the context of the regulations I ask him to include the manner in which training takes place for workers on construction sites and elsewhere. There are obligations on employers, but also on training agencies and people who are listed as trainers. This has been brought into disrepute in recent times. I am not going to oppose anything the Minister of State is trying to do in this section. It is a step forward, but I ask him to give an undertaking that when the regulations are being drawn up he will bring them to the attention of this side of the House for discussion before they are finalised.
There is much concern in construction work as regards safety. I was not present for the earlier stages of the discussion, but the fact the Minister of State has addressed some of the Opposition's concerns is to be welcomed. When does he expect the regulations to be drafted, because most of the detail will be contained in them? It is important they are drafted as soon as possible.
Obviously regulations and duties are of no consequence if they are not monitored or if there are not enough inspectors to ensure they are implemented. My colleague, Deputy Howlin, has raised the question of insufficient health and safety inspectors in various workplaces. There is major concern in this regard in the construction industry in particular. Does the Minister of State intend to address the problem of the shortage of inspectors?
There are two questions about the regulations and when they might be in place. Considerable work has been done on the regulations. Originally it was intended to update the regulations under the previous legislation. However, since this Bill was close to being passed, it was felt it would be more appropriate to update them in the context of the new legislation. Some work has been done. There are areas of disagreement, one of which only came to my notice today, which may occasion a little more delay than I had previously anticipated. Considerable work is being done in that area, however.
The other point about regulations, was raised by Deputy Hogan, as regards training. I want to acknowledge that this has been raised by the Deputy on a consistent basis and has drawn people's attention to the entire area of training and to the difficulties that have been experienced. I am not sure at this stage to what extent it is appropriate to include the issues of training in the building regulations. It might well be that it is in the general purpose regulations or elsewhere. However, I will certainly follow up the point he has made, wherever appropriate.
The other question concerned inspectors. We have not had a major difficulty as regards the number of inspectors. There was a drop in inspections last year because people were on other duties to do with the Presidency and so on. There has been a substantial increase this year and the targeted inspections have been particularly successful. They have been targeted at specific employments and also specific geographic areas. The Health and Safety Authority has informed me it is very satisfied at the outcome in that regard. One of the great changes to arise from this Bill is that individual employees will be empowered in a manner which had not been the case previously. To some extent the responsibility devolved on safety officers in the past. That is likely to change under the new Bill, where responsibility devolves on everybody to a greater extent than heretofore.
This is in relation to the risk assessment being reviewed by the employer where there has been a significant change in the matters to which it relates, or there is another reason to believe it is no longer valid. Previously there was a requirement to review the risk assessment and safety statement annually. It was pointed out to me on Committee Stage in this House and at other stages and also in the Seanad that this was a very onerous responsibility and one that did not bring any benefits whatsoever. In view of the strong case that was made, I accepted an amendment in this regard, that the risk assessment be reviewed where there has been significant change, or where there is another reason for believing it is no longer valid.
Amendment No. 12 is a technical amendment. Amendment No. 13 arises from a very long debate we had in this House on Report Stage and a case made very strongly by Deputy Morgan. At that stage I accepted the thrust of what he was proposing and this is the format in which I propose to accept the amendment.
It was a useful amendment and I appreciate the Minister of State taking that on board. I do not want to praise him too much in case I get him into trouble. However, it is certainly a change to see so many amendments being accepted right across the board. That is something Members on this side of the House all appreciate.
This amendment, in pages 30 and 31, lines 36 to 46 and 1 and 2, respectively, proposes to delete subsection (5) and substitute this new subsection (5). The Bill currently requires employers to review their risk assessment and safety statement at least annually. This amendment removes that requirement, leaving just the obligation to review the assessment and statement when there has been a significant change or when there is reason to believe that one or other is no longer valid. It has been pointed out to me, as it was in this House, that there are a great many workplaces where there are few or no risks and where the level and nature of risk does not change over time. It was clearly seen that the requirement to change the safety statement annually was particularly burdensome and had no clear benefit.
I have been contacted by several health and safety officers as regards the amendment the Minister of State introduced in the Seanad on this matter.
Practitioners who ensure there are proper health and safety standards in the workplace are alarmed by the removal of the requirement for an annual risk assessment, the cornerstone, in their view, of vigilance in health and safety. I have received faxed memoranda from practitioners who attest from personal experience that the annual assessment is extremely important. One such memorandum states:
The only way to ensure that these proper safeguards are maintained in the workplace is to review the safety statement on an annual basis in order to safeguard workers. Risk assessment for each workplace has also played a major role in accident prevention so with this amendment the only requirement to carry out a risk assessment would be in cases of significant change.
This raises the question as to what constitutes significant change and who determines that. It is not particularly onerous to have an annual obligation to carry out an assessment. If nothing has changed, the annual risk assessment will, by and large, address the same issues as on previous occasions. We should have regard to those at the cutting edge of providing a safe environment for workers and proceeding with this amendment is a matter of concern.
I share the reservations expressed by the previous speaker. While I accept the Minister of State's argument as it applies to an office environment or similar passive setting which does not generally change from year to year, I am concerned by the use of the word "significant". For example, an employer in the chemical industry could decide that a change is not significant. How will the significance of a change be defined? Of late, we have become aware of wayward employers, albeit a minority who have used ambiguity such as this as an escape clause. How will this issue be addressed? How will the word "significant" be defined and who will adjudicate in practical terms on what is significant? Will inspectors have the authority to do so? How will the provision be policed?
The case outlined by Deputy Howlin has been made to me by some people, while the converse case, that the previous practice to review safety statements annually — even in circumstances in which they should be reviewed much more frequently or where significant changes have taken place — has also been made. I agreed to the amendment on the basis that placing emphasis on significant change rather than a requirement to have an annual assessment, which has no meaning in a large number of employments, is the better course of action.
The specific issue raised by Deputy Morgan will be dealt with under regulations for the chemical industry, which are under preparation.
Before Deputy Howlin arrived, I responded to Deputy O'Sullivan on the issue of building regulations. I indicated to Deputy Howlin last week that these were at an advanced stage and that I expect to introduce them as soon as possible following the enactment of the Bill. It came to my attention today, however, that considerable disagreement has arisen with regard to an element of the regulations. While this may not delay matters interminably, it may delay the introduction of the regulations for a little longer than I anticipated last week.
I apologise for not being present in the House for the commencement of the debate. I was misinformed about the time required to debate Report Stage of the previous Bill, which I was told would take at least an hour.
I wish to re-examine this amendment. The Minister of State noted that risk assessments may be required more frequently than once a year. While I have no difficulty with that proposition, provision should be made to require an assessment to be made at least once per annum. If the Minister of State is amenable to providing that a risk assessment be undertaken annually or where significant change has taken place, I would have no difficulty. The problem is that an employer may take the view that no significant change has taken place, with the result that no risk assessment will take place for years. The latter would be dangerous.
The Minister of State pointed out that views have been presented to him from each side of the argument. I can only counsel that when dealing with health and safety legislation, he should err on the side of caution and have particular regard for practitioners on the front line who know how to create a safe environment. If they are of the opinion that this amendment is dangerous, the Minister of State should have regard to their view and not proceed with it.
The Minister of State has accepted a considerable number of amendments which have significantly strengthened the Bill. Although the proposal to introduce a regulation to address issues such as the definition of the word "significant" is reasonably fair, provided it can be introduced quickly, the Minister of State reinforces my point in indicating that this will be done as soon as possible and that he is doing his best in this regard. In the absence of regulation, is it possible to speed up the process and deal with the issue here and now? Can it be addressed by means other than this amendment?
I agree with Deputies Morgan, Howlin and others that the introduction of regulations is urgent and constitutes the only means of achieving what we all seek in this regard. This is one of the reasons I held meetings on the matter today. I did considerable work on the issue recently, during which time we pinpointed the issues that could potentially cause difficulties. Now that we are aware of them, we will be able to make progress.
To return to the central point at issue, Deputy Howlin indicated that safety representatives have contacted him to express concerns about the amendment. While I understand their concerns, practitioners have made the point to me that, heretofore, our culture has to a large extent depended on safety officers. In the context of the legislation, we are trying to empower and encourage all workers to get involved in this area. It has come to my notice that the practice has been to have a glance annually at the safety statement, sign it off as updated and ignore significant changes made in the interim.
Subsection (1)(c) of the proposed new section empowers the inspectorate to require that a safety statement be amended. Throughout the legislation, considerably more pressure is placed on employers to be vigilant and take account of any changes in the risk which arises. On balance, the amendment serves the purposes of the Bill better than the previous provision did.
The Minister of State has not made a coherent argument to support his conclusion. He stated that under subsection (1)(c) of the amendment, an inspector, in the course of an inspection, can give a direction. Unfortunately, as the Minister of State is aware, we have few labour inspectors and health and safety inspections are infrequent. If, as a result of the amendment, we must rely on an inspection to find flaws, it will be a hit and miss provision.
The notion of an annual risk assessment is good. It is like a spring clean in that one is required to undertake an assessment and one is aware that it is approaching. Deputy Morgan and I have not heard who will determine what is significant in the event of the removal of the requirement to carry out an assessment, except where there is significant change. How will it be determined? Is it possible that safety assessments will not be carried out for years in certain employments where practices, by and large, are not thought to change, even if the fabric of a building may be different, new technologies or work practices may have been introduced or certain areas may have degenerated in the meantime? Who will determine what triggers a risk assessment?
Surely an annual provision is preferable to the proposed provision given that it provides certainty that the assessment will take place. If an assessment is required more frequently, as instanced by the Minister of State, this can also be provided for but we should not remove the requirement for an annual risk assessment.
Until now, the practice has been that an annual review was undertaken and that was it. I would prefer, in the context of this legislation, that people would undertake a review when there has been a significant change in the matters to which a safety statement refers. I will not give a detailed treatise on the word "significant" but, in the context of this Bill and the extent to which it empowers employees and protects them when they raise issues of health and safety, I am confident that any significant change of which employees are aware or which arises in employment will be brought to an employer's attention. I would much prefer if an employer had an onus on him or her to take account of changes.
I am sure he or she could do so. However, that has not been happening. The requirement for an annual report is seen as more than adequate and, as a result, there is no emphasis on monitoring the work place and ensuring that anything which changes leads to a review of a safety statement or risk assessment. That is the kind of culture I am aiming to introduce following the enactment of this legislation. In many circumstances, the annual review is an exercise that has no great benefit and becomes an excuse for not doing what ought to be done in circumstances where a change occurs.
The Dail Divided:
For the motion: 66 (Noel Ahern, Barry Andrews, Seán Ardagh, Niall Blaney, Johnny Brady, Martin Brady, John Browne, Joe Callanan, Ivor Callely, Pat Carey, John Carty, Beverley Flynn, Mary Coughlan, John Cregan, Martin Cullen, John Curran, Noel Davern, Noel Dempsey, Tony Dempsey, John Dennehy, Jimmy Devins, John Ellis, Frank Fahey, Dermot Fitzpatrick, Seán Fleming, Pat Gallagher, Jim Glennon, Noel Grealish, Mary Hanafin, Seán Haughey, Máire Hoctor, Cecilia Keaveney, Billy Kelleher, Peter Kelly, Tony Killeen, Séamus Kirk, Tom Kitt, Conor Lenihan, Micheál Martin, Tom McEllistrim, John McGuinness, John Moloney, Donal Moynihan, Michael Moynihan, Michael Mulcahy, M J Nolan, Seán Ó Fearghaíl, Charlie O'Connor, Willie O'Dea, Liz O'Donnell, Denis O'Donovan, Noel O'Flynn, Batt O'Keeffe, Tim O'Malley, Tom Parlon, Peter Power, Seán Power, Dick Roche, Mae Sexton, Brendan Smith, Michael Smith, Noel Treacy, Dan Wallace, Mary Wallace, Ollie Wilkinson, Michael Woods)
Against the motion: 35 (Dan Boyle, James Breen, Tommy Broughan, Joan Burton, Paudge Connolly, Joe Costello, Jerry Cowley, Seán Crowe, Ciarán Cuffe, Martin Ferris, Eamon Gilmore, John Gormley, Séamus Healy, Joe Higgins, Michael D Higgins, Brendan Howlin, Kathleen Lynch, Liz McManus, Arthur Morgan, Breeda Moynihan-Cronin, Catherine Murphy, Caoimhghín Ó Caoláin, Aengus Ó Snodaigh, Brian O'Shea, Jan O'Sullivan, Willie Penrose, Pat Rabbitte, Eamon Ryan, Seán Ryan, Trevor Sargent, Joe Sherlock, Róisín Shortall, Emmet Stagg, Mary Upton, Jack Wall)
Tellers: Tá, Deputies Kitt and Kelleher; Níl, Deputies Stagg and Wall.
Question declared carried.
Section 26: In page 35, subsection (l)(b) lines 13 and 14, "consult with his or her employees and their safety representatives in advance and in good time regarding-" deleted and "consult with his or her employees, their safety representatives or both, as appropriate, in advance and in good time regarding-" substituted.
This removes the obligation on employers to consult with both their employees and a safety representative. In some instances it will be sufficient and more efficient for the employer to consult only with the safety representatives. If he or she consults with the entire workforce, the safety representative is included in any event.
"(8) The provisions of this section shall be deemed to have been in operation on the commencement of section 28 of the Act of 1989 and to have been incorporated in that section from that date and every regulation made in exercise of the powers under that section and not revoked before the commencement of this section shall be deemed to have been made in the exercise of the powers under the provisions of that section, including the provisions of this section deemed to have been incorporated in that section by this subsection.".
The reason for this amendment is that section 58 provides that the Minister must allow a period of at least 21 days for consultation before he or she signs new regulations. As a result, there will be periods between the commencement of the Bill and the bringing into force of the new regulations. This provision ensures the old regulations remain in force in that period.
If the additional wording was not included in Seanad amendment No. 18, the Parliamentary Counsel was concerned that it would not be clear that the authority had the right to consider it appropriate to make this provision. It is similar in Seanad amendment No. 19 which will insert in page 59, subsection (4), line 25, after "section", "under section 33 of the Act of 1989". This concerns the authorisation of inspectors which would be the case until the new provision for their authorisation would arise.
This is a technical amendment that is required to re-align the paragraphs so that it is clear that subparagraphs (i) and (ii) apply to paragraphs (a) and (b) as well as (c).
It is unfortunate the Minister of State did not go that extra bit in this instance and take on board the sentiment of the amendments on Report Stage in the names of myself and Deputy Howlin.
Furthermore, it is unfortunate the Minister did not accept some kind of amendment pertaining to the issue of testing for intoxicants as had been discussed at length on Report Stage. That is a source of considerable disappointment. However, I do not oppose this amendment.
This is a technical amendment. It refers to European Commission regulations which have come into force since the Bill was published and which it is now possible toinclude.
This involves deleting the word "board" and replacing it with the word "authority". It is a technical amendment to ensure consistency throughout the Schedule because the reference elsewhere is to "authority" rather than to "board".
I thank Members on all sides of the House for the tremendous amount of work they put into the Bill. I also thank the officials from the Department and the Health and Safety Authority and others, including the Members of the Seanad, who made a contribution.