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All content © John Higgins 2002-2006 Cork, Ireland

€Millions of reasons to comply with new Act

John Higgins looks at the Safety Health and Welfare at Work Act 2005 effective from 1st September 2005.. (This article was written for the Broker Magazine and a copy of the printed article can be seen here)

Brokers have at least two very good reasons to be interested in this new Act. Firstly they themselves are often employers and therefore have significant duties under the legislation. The second is that clients frequently rely on their broker for some advice when it comes to this difficult area. Rising fatalities, big fines and expanded duties will ensure that this Act attracts plenty of attention.

Fatalities at work were up by 40% in the first four months of 2005. Figures in some parts of the country (Cork, Donegal, Dublin and Louth) were already worse than those for the whole of 2004. Referring to our title, this new Act sets out two categories of offences. It provides for a fine under summary jurisdiction not exceeding €3,000 applying to less serious offences. Following conviction on indictment for a more serious offence, the maximum fine is €3 million or imprisonment for up to 2 years or both. In addition, the person convicted can be ordered to pay the Authority's costs and expenses. The courts have shown their willingness to use their powers and many readers will be aware that the €1m barrier has been broken for fines.

Some of the new features of the 2005 Act are set in the panel below. It is worth looking however at how we can expect the Act to work in practice. In a nutshell, this Act puts an onus on everyone connected with workplaces to think about their responsibilities and take all steps to minimise the risks they add to the occupation. Employers in particular must take special steps to analyse the risks presented to employees, respond to them, and tell employees about that response in a Safety Statement and by notices etc. The employee in turn has expanded responsibilities to adhere to the Safety Measures outlined. We have set out the various duties in the panel. This Act builds on the 1989 Act and those familiar with that Act will be aware that the central reliance on Safety Statements and Risk Assessments is similar. This could in our view be one of the core problems.

The last available figures from the Health and Safety Authority showed that more than one in three employers visited did not any Safety Statement. Of those who had more than one in three did not achieve “Broad Compliance” with the legal requirements. Given that these requirements exist since 1989 the statistics are very disappointing. The companies I visit on a daily basis are usually Insured and one would expect that they would be more compliant. Even with those companies one can find that there is no Safety Statement or that Risk Assessments are grossly inadequate.

On the other hand when one sees how the regime works in a well organised compliant company it is easy to see how effective this approach can be. These companies are aware of their duties and of the importance of the safety message. The Safety Statement is well thought out and procedures are in place for all processes.

Legal Cases have also shown that compliant companies can expect a lot from their employees and when claims are received, they are much easier to fight. The 2005 Act is very clear about the duties of employees. Our experience is that it is not possible to argue breach of these duties on the part of an employee when the employer is clearly not compliant either. It is also easier to pursue other parties if the insured’s house is in order.

Brokers have an important role in the communication of the safety message. Compliant employers are less likely to end up with serious accidents and major fines under these Acts. Their liability position in a claim is likely to be improved. All of this should contribute to your client’s risks being more marketable and the possibility of real long-term premium savings for the policyholder.

A Selection of Important Features

• Codes of Practice will be taken into account in criminal prosecutions.
• Temporary Workers: Almost every type of temporary worker conceivable becomes an employee of the person at whose premises they work for the purposes of this act. It is very clear about agency workers and students.
• Warnings and Information in clear and understandable language: Signs and warnings are to be understandable to the audience they are meant for. This includes the use of foreign languages where necessary.
• Joint Health and Safety Agreements: These can be made between employer organisations and a trade union and approved by the HSA. If this is done, such agreements can be used in assessing compliance of employers who are not party to the agreement.
• Safety Representatives: Employees will continue to elect Safety Representatives who have wide powers
• Employees must take care for their own safety, observe Statutory Provisions, co-operate with the employer, and attend training and assessments. An Employee must not be so intoxicated as to be a danger or engage in improper conduct and when joining an employment must not misrepresent the level of training received in the past.
• Testing of employees for intoxication: This is covered in the act but must be brought in by regulation and the minister is already talking about very limited implementation. Don’t hold your breath!
• Shared places of work: Employers in this situation must co-ordinate their prevention activities and inform each other of risks.
• No Cost for Employees: Any step taken for Health and Safety Reasons must not cost employees anything. There are particularly strong protections in place for Safety Representatives
• Designers, manufacturers, importers and suppliers of an article for use at work must design and construct it to be safe. They must test it and provide information about it and crucially must ensure that revisions of that information are also supplied.
• Clients, Designers and constructors of places of work have extensive duties to make them safe and to ensure that they can be maintained safely.

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