What is the Safety, Health, and Welfare at Work Act 2005?
The Safety, Health, and Welfare at Work Act 2005, which repealed and replaced the Safety, Health, and Welfare at Work Act 1989 was brought in to make further provision for the safety, health, and welfare of persons at work. This Act clarifies and enhances the responsibilities of employers, the self-employed, employees, and various other parties in relation to safety and health at work. The Act also details the role and functions of the Health and Safety Authority, provides for a range of enforcement measures that may be applied, and specifies penalties that may be applied for breach of occupational safety and health.
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When did the Act come into force?
The 2005 Act came into force on 1st September 2005
Who does the Act apply to?
The Act applies to all employers, self-employed, and employees in all places of work. It also places duties on designers, suppliers, manufacturers, and others concerned with work activities.
What are my duties as an employer under the 2005 Act?
Employers have extensive duties under the Act. The different requirements are split up into the following headings:
- General duties of Employers
- Information to Employees
- Instruction, Training & Supervision of Employees
- Emergencies and serious and imminent dangers
- Protective and Preventive Measures
- Hazard identification & Risk Assessment
- Safety Statement
- Health Surveillance & Medical fitness to work
- Safety representative
- Employee Consultation
1. General duties of the employer (Part 2, section 8) include:
- To ensure the safety, health, and welfare at work of his or her employees
- To manage and conduct work activities in such a way as to ensure the safety, health, and welfare at work of all employees
- To manage and conduct work activities in such a way as to prevent any improper conduct or behavior likely to endanger employees
- As regards the place of work concerned, the employer must ensure the design, provision, and maintenance of:
– a safe, risk-free place of work,
– safe means access to and egress from it
– plant and machinery that is safe and without risk to health
- To ensure safety and the prevention of risk arising from the use of articles or substances or the exposure to noise, vibration, radiation, or any other ionizing agent
- To provide systems of work that are planned, organized, performed, maintained, and revised as appropriate so as to be safe and risk-free
- To provide and maintain facilities and arrangements for the welfare of employees at work
- To provide information, instruction, training, and supervision, where necessary
- To implement the safety, health, and welfare measures necessary for the protection of employees, as identified through risk assessments and ensuring that these measures take account of changing circumstances and the general principles of prevention specified in Schedule 3.
- To provide protective clothing and equipment where risks cannot be eliminated or adequately controlled
- To prepare and revise emergency plans and procedures
- To report accidents and dangerous occurrences to the relevant authority (prescribed under section 33)
- To obtain where necessary the services of a competent person for the purpose of ensuring safety and health at work
- To ensure that all safety measures take into account both fixed-term and temporary workers and that any measures taken do not involve a financial cost to his or her employees
2. Information to employees (Part 2, Section 9) include:
- When giving information to employees, employers must:
– Ensure that it is given in such appropriate form, manner, and language that it is likely to be understood by the employees concerned
– Ensure that the information includes the workplace hazards and risks identified, the protective and preventive measures taken, and the names of the safety representative and all other persons named in evacuation procedures, etc.
- Where persons from other employees are engaged in work activities in an employer‘s undertaking, the employer must ensure that the person‘s employer receives the above information
- The employer must ensure that the safety representative (section 25) and designated competent persons (section 18) have access to:
– The Risk Assessment
– Information relating to reportable incidents and accidents
– Information arising from protective or preventative measures
- The employer must provide information relating to the following before a fixed-term or temporary employee commences work:
– Any potential risks
– Health surveillance
– Any special occupational qualifications or skills required
– Any increased specific risks which the work may involve
3. Instruction, training, and supervision of employees (part 2, section10)
The employer must ensure that:
- All instruction, training, and supervision is provided in a manner, form, and language that is reasonably likely to be understood
- Employees receive, during time off from their work but without loss of pay, adequate health, safety, and welfare training including, in particular, information and instruction relating to the specific task to be performed and measures to be taken in an emergency
- The employee‘s capabilities in relation to safety, health, and welfare are taken into account
- In the case of a class or classes of sensitive employees or groups of employees exposed to risks expressly provided for in the relevant statutory provisions, the employees are protected against the dangers that specifically affect them
- Training must be adapted to take account of new or changed risks in the workplace
- Training must be provided:
– on recruitment
– when an employee is transferred or tasks change
– on the introduction of new or changed work equipment or work systems
– on the introduction of new technology
- All contractors etc, carrying out work in the employer‘s premises must receive relevant safety instructions
4. Emergencies and serious and imminent dangers (Part 2, Section 11)
The employer must provide adequate plans and procedures to be followed and measures to be taken in the case of emergency or serious and imminent danger.
These plans should:
- Provide measures for first aid, fire-fighting, and premises evacuation taking into account the nature of the work being carried out and the size of the place of work.
- Arrange necessary contacts with appropriate emergency services (first aid, emergency medical care, rescue work, and fire-fighting)
- Designate employees who are required to implement these plans, procedures, etc.
- Ensure that all designated employees have adequate training and equipment available to them
In the event of an emergency or serious and imminent danger the employer must:
- Inform all employees of the risk and steps taken to protect them
- Refrain from requiring employees to carry out or resume work where there is still a threat to their safety
- Ensure that, in the absence of appropriate guidance or instruction, based on the employee‘s knowledge and technical means at his or her disposal, the employee must take appropriate steps to avoid the consequences of the danger
- Take action and give instruction for employees to stop work and remove themselves to a safe place
- Ensure that an employee who leaves the place of work in the case of emergency is not penalized because of such action
- Ensure that access to specific hazardous areas is restricted only to employees who have received appropriate training.
5. Protective and Preventive Measures (Part 3, Section 18)
The employer must:
- Appoint an adequate number of competent persons to perform the functions relating to the protection of employees and give them adequate time and means to perform those functions
- Make arrangements for co-operation between the competent person and the safety representative
- Give preference to competent persons within their employment when appointing a competent person
6. Hazard identification and Risk Assessment (Part 3, Section 19)
The employer must:
- Identify all hazards in the workplace
- Keep a written assessment of the risks associated with each hazard (known as a Risk Assessment)
- Review the Risk Assessment if:
– There is a significant change to the matters it relates to or
– There is any other reason to believe that it is no longer valid
- Implement any control measures or improvements which are identified by the Risk Assessment
7. Safety Statement (Part 3, Section 20)
Employers must have a written Safety Statement, based on the hazard identification and Risk Assessment carried out, which specifies how they are going to manage and secure the safety, health and welfare of all employees at work.
The Safety Statement should specify:
- The hazards identified and risks assessed
- The protective and preventive measures taken and the resources provided
- The emergency plans and procedures
- The duties of the employees
- The names, job titles, and positions of anyone assigned with safety responsibilities
The Safety Statement should be brought to the attention of:
- Employees at least annually or when there is any changes
- Newly recruited employees upon the commencement of employment
- Other persons at the place of work who may be exposed to any specific risk
The employer must review the Safety Statement if:
- There is a significant change to the matters it relates to
- There is any other reason to believe that it is no longer valid
- An inspector directs the Statement to be amended
Every employer must ensure that:
- All contractors providing services to the employer have an up to date Safety Statement
- A copy of the Safety Statement is kept available for inspection at or near the place of work
If an employer who employs 3 or fewer employees is engaged in an activity for which there is a Code of Practice for that type of activity, they can fulfill their duty in relation to Safety Statements by complying with such Code of Practice.
8. Duty of employers to co-operate (Part 3, Section 21)Where employers share a place of work, they must:
- Co-operate in complying with and implementing the relevant statutory provisions
- Co-ordinate their actions in relation to prevention and protection of employees
- Inform each other, respective employees, safety representatives, etc. of all risks, including the exchange of Safety Statement and relevant extracts relating to hazards and risks.
9. Health Surveillance and Medical Fitness to Work (Part 3, Sections 22 & 23)
Employers are required to ensure that health surveillance appropriate to the risks that may be incurred in the place of work is available to all employees. The Act requires an assessment of the medical fitness to work of employees involved in certain work activities or occupations.
These activities and occupations will be detailed in the Regulations. Employees are required to inform their employer or their employer‘s Registered Medical Practitioner if they are unfit to carry out a prescribed work activity. If an employer is notified of the unfitness of the employee they must immediately take appropriate action to comply with the general duties of employers to ensure the safety, health, and welfare of all employees at work.
10. Safety Representative (Part 4, Section 25)
The employer must:
- Agree with the safety representative the frequency of inspections to take place
- Consider any representations made to him or her by the safety representative and so far as reasonably practicable take any action that he or she considers necessary or appropriate with regard to those representations
- Allow the safety representative such time off from their work, without loss of pay, as is reasonable to enable the safety representative to acquire the knowledge and training and time to discharge their functions.
- Inform the safety representative when an inspection is taking place
- Give the safety representative a copy of the written confirmation, required under the Act and sent to the inspector, that an Improvement or Prohibition Notice has been complied with.
11. Consultation and participation with employees (Part 4, Section 26)
Employers are required to:
- Consult with employees for the purpose of making and maintaining safety arrangements
- Consult with their employees and safety representatives in good time regarding:
– protective measures proposed
– the designation of employees with safety responsibilities
– activities arising from or relating to the protection from and the prevention of risks
– the hazard identification and risk assessment
– the safety statement
– the information to be provided to employees (as outlined above)
– the information required to be kept or notified to the Authority in respect of accidents or dangerous occurrences
– the appointment of competent persons
– the planning and organization of training
– the planning and organization of new technologies particularly in relation to the choice of equipment, working conditions, and the work environment
12. Penalisation (Part 4, Section 27):
Employers are prohibited from penalizing (defined as dismissal, demotion, transfer, imposition of duties, coercion, or intimidation) or threatening to penalize employees, who are performing any duty, exercising rights, or who make any complaints relating to safety and health or who give evidence in enforcement proceedings.
The dismissal or penalization in such manner can be deemed to be an unfair dismissal within the meaning of the Unfair Dismissals Acts of 1997 and 2001 and employees may also complain to the Rights Commissioner that their employer has penalized them for exercising their rights under the safety and health legislation.
What are my duties as an employee under the 2005 Act? (Part 2, Section 13)
An employee, while at work must:
- comply with all relevant statutory provisions
- take reasonable care to protect the safety of themselves and others who might be affected by their acts and omissions
- ensure they are not under the influence of an intoxicant or in such a state that they might be a danger to themselves or others.
- submit to reasonable, appropriate testing, if reasonably required by the employer. The Act gives scope for Regulations to be made that provide for employees to be required to undergo tests for intoxicants to be carried out by or under the supervision of a registered medical practitioner. Such Regulations are yet to be developed and until they are made, an employer may not require such testing although local agreements may apply. The employer may, however, prevent an employee from working if it is apparent that he or she would be a danger to themselves or others.
- co-operate with his or her employer so far as is necessary to enable compliance with the relevant statutory provisions
- not engage in any improper conduct or dangerous behavior
- attend training and undergo such assessment as may be necessary
- make correct use of any article or substance provided for use or for the protection of the employee, including protective clothing and equipment
- report to his or her employer as soon as practicable:- any work being carried out which might endanger themselves or others
– any defects in the place of work, the system of work, any article or substance which might endanger themselves or others
– any contravention of the relevant statutory provisions of which he/she is aware
- Notify the employer or the employer‘s nominated registered practitioner if they become aware that they are suffering from any disease or physical or mental impairment which affects their performance of work activities that could give rise to risks to the safety, health, and welfare of persons at work. The duty is on the employee to protect themselves and others.
An employee may not:
- misrepresent himself or herself to an employer with regard to their level of training
- interfere, misuse or damage anything provided for the safety, health, and welfare of employees
- place at risk the safety, health, and welfare of persons in connection with work activities
What do I have to do to prevent improper conduct and behavior?
In order to prevent bullying, horseplay, harassment, or any other behavior that has the potential to endanger an employee’s safety, health, and welfare at work, appropriate procedures must be put in place.
Bullying and Harassment Prevention procedures and disciplinary procedures need to be put in place. Ensuring that competent staff is in place and that appropriate Codes of Conduct are applied will help in complying with these legal requirements.
Are there any regulations on testing for intoxicants in the workplace?
There are no regulations on testing for intoxicants other than in Railway Safety Act 2005. Many companies already have policies on intoxicants and testing may be one element of this policy.
There is already a requirement on employees under Section 13(1)(b) of the 2005 Act not to be under the influence of an intoxicant to such an extent as to endanger themselves or others.
Section 13(1)(c) makes provision for testing as may be prescribed by the Minister.
When may an employee be required to submit to tests for intoxicants?
The 2005 Act gives scope for Regulations to be made that may allow for employees to be required to undergo tests for intoxicants carried out by or under the supervision of a registered medical practitioner.
Regulations are yet to be developed and until they are made, an employer may not require such testing unless a local agreement applies within the contract of employment. The employer may, however, prevent an employee from working if it is apparent that he or she would be a danger to themselves or others.
The duty of the employee not to be under the influence of an intoxicant is effective immediately.
For further information see the Intoxicants at Work Information Sheet on the HSE Website.
Do all employers have to carry out medical fitness-to-work assessments?
The Act requires an assessment of the medical fitness to work of employees involved in certain work activities or occupations. These activities and occupations are to be detailed in Regulations. Registered medical practitioners nominated by the employer will carry out the assessments.
What happens if an employee is found to be medically unfit for work?
If the medical practitioner is of the opinion that the employee is unfit to perform work activities, he or she must notify both the employer and the employee as soon as possible giving the reason for the opinion and the likelihood of early resumption of work for rehabilitation purposes. The amount of information that can be passed on to the employer is limited by Doctor/ Patient confidentiality.
When an employee is informed by their General Practitioner or other medical practitioners that they are unfit to carry out an occupation or activity specified in the regulations they must inform either the employer or the employer‘s registered medical practitioner.
When an employer is notified of the unfitness of the employee they must immediately take appropriate action to comply with the general duties of employers to ensure the safety, health, and welfare of all employees at work.
What is an article or substance?
These are both defined in Section 2 of the 2005 Act.
An article is:
any plant, machine, machinery, appliance, apparatus, tool, or any other work equipment for use or operation at work any article designed for use as a component in, part of or to control any of the foregoing or any work equipment any other product used by persons at work.
A substance is any natural or artificial substance, preparation, or agent in solid or liquid form or in the form of a gas, vapor, or microorganism.
In addition to the requirements for articles, referred to above, the substance supplier or manufacturer must supply information with regard to the identification of the substance, any risk arising from its inherent properties, any relevant test results, and any conditions necessary to ensure its safe use, handling, processing, storing, transportation or disposal.
What are the duties of designers, manufacturers, importers, and suppliers of articles and substances under the 2005 Act?
Manufacturers, importers, and suppliers of equipment, machinery, articles, or substances used at work have the duty of ensuring safety and health concerning the use of the materials that they produce or supply. Manufacturers, importers, and suppliers must provide information on the correct use of the materials to ensure safety and health at work.
Users must be provided with information about the safe use of the article and updated information must be supplied if it becomes known to the supplier or manufacturer that there is any risk to health, safety, and welfare. Information provided must relate to the use for which the article has been designed, manufactured, or tested and must include information on its safe installation, use, maintenance, cleaning, dismantling, or disposal without risk to safety or health.
Designers, manufacturers, importers, and suppliers of articles who retain a responsibility under a rental, leasing, or other agreement, must maintain the article in a safe condition and in compliance with health and safety laws. Designers and manufacturers must carry out research to discover if the article gives rise to risks with a view to reducing these risks. Persons who erect, assemble or install an article for use at the place of work must ensure that it is done so safely and without future risk.
What are the penalties for breaches of health and safety legislation?
Most offenses, including any breaches of Regulations under the 2005 Act may be tried either:
in summary proceedings in the District Court where the max penalty is €5,000 per charge and/or up to twelve months imprisonment or on indictment in the Circuit Court where the maximum penalty is €3,000,000 and/or imprisonment for a term not exceeding two years.
Can the Health and Safety Authority publish the name of my company if it is in breach of the legislation?
The Health and Safety Authority may compile and publish a list of names and addresses and the description of the business or activities of every person who has been fined or given any other penalty by a court in relation to safety and health legislation on whom a Prohibition Notice has been served against whom a High Court order was made regarding the use of a place of work
When may an Inspector issue “On the spot fines”?
The 2005 Act provides that Regulations may be made under it empowering an inspector to issue on “the spot fines” where he or she has reasonable grounds for believing that a person is committing or has committed certain prescribed offenses under occupational safety and health legislation.
The Act allows for fines of up to €1000 per offense although the Regulations may set a lower level.
On-the-spot fines can apply to employers, employees, persons in control of workplaces, importers, and suppliers, etc – all duty holders under the Act.
Proposals for such Regulations will be developed by the Health and Safety Authority.
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