Health & Safety Modules

Session 2

Legal Aspects

Today

• Quick Review• Common vs Statute Law• Common Law Aspects• Statute Law

– SHWWA 2005– Genl App Regs– Other Provisions

• Enforcement• Practical Work

– Common Law– Statute

Law at Work!

• Common Law– Precedent– Previous cases– Organic

• Statute Law• SAFETY, HEALTH AND

WELFARE AT WORK ACT 2005– The Safety, Health and

Welfare at Work Act (1989)– Safety Health and Welfare

at Work (General Application) Regulations (1993)

• Many other provisions!

SCHEDULE 3General Principles of Prevention

1. The avoidance of risks.2. The evaluation of unavoidable risks.3. The combating of risks at source.4. The adaptation of work to the individual (design of

places of work, work equipment, systems of work) 5. The adaptation of the place of work to technical

progress.6. The replacement of dangerous articles, substances or

systems of work by safe or less dangerous articles etc. 7. The giving of priority to collective protective measures

over individual protective measures.8. The development of an adequate prevention policy in

relation to SHW at work (technology, organisation of work, working conditions / environment, social factors.

9. The giving of appropriate training and instructions to employees.

Legal Aspects

• Common Law (Duty of Care)– Safe Place of work– Safe plant and equipment– Competent staff– Safe systems of work

HSWWA 2005

• Preventative approach

• Places obligations on employers and employees.

• Requires a H&S management system.

• Requires H&S consultation

• Requires risk assessment and a safety statement

Scope

• The Act applies to all places of work, be they temporary installations, a vehicle, aircraft, ship, office or industrial premises.

• It affects all employers, all employees, the designers and suppliers of workplaces and workplace equipment, and the self-employed.

• The Act overrides many of the provisions and definitions in earlier health and safety legislation.

General duties of employers

• The Act provides an overall duty to ensure, so far as is reasonably practicable, the safety, health and welfare of all employees (including casual staff, trainees etc.).

• The “Duty of Care”.

Tuesday June 14, 09:39 PM Hospital in safety breach claim

• An NHS Trust is facing prosecution for an alleged breach of health and safety legislation involving a four-year-old child, it has emerged.

• It is claimed the child was exposed to risk of injury or infection when a brightly-coloured bucket containing used needles was left lying around the cardiology department of Barnet Hospital in north London.

• Barnet and Chase Farm Hospitals NHS Trust is accused of breaching the Health and Safety at Work Act 1974 on July 29 2003. The prosecution is being brought by the Health and Safety Executive and the case is due to be heard at City of London Magistrates' Court. The trust could face a fine of up to £20,000 if it is found guilty by magistrates, or an unlimited sum at crown court.

Legal Aspects

• Statutory Law– SAFETY, HEALTH AND WELFARE AT

WORK ACT 2005– Replacing….

• The Safety, Health and Welfare at Work Act (1989)• Safety Health and Welfare at Work (General

Application) Regulations (1993)

– Numerous subsequent regulations, amendments, SI’s etc. to come.

‘‘reasonably practicable”• an employer has exercised all due care• by putting in place the necessary protective and

preventive measures, • having identified the hazards and assessed the

risks to S&H likely to result in accidents or injury to health at the place of work concerned

• and Service of notices, etc. • where the putting in place of any further

measures is grossly disproportionate having regard to the unusual, unforeseeable and exceptional nature of any circumstance or occurrence that may result in an accident at work or injury to health…

Key Concepts

• Prevention

• Reasonably Forseeable

• Reasonably Practicable

Obligation to provide information on hazards!

Information on Hazards!

Reasonable ForeseeableReasonably Practicable

• Select Service Partners Ireland Ltd• Select Service Partner Ireland Ltd, of Level 5, Terminal

Building, Dublin Airport, Co. Dublin was fined a total of €2,000 in Dublin District Court on the 18th March 2003 having pleaded guilty to the following charges:

• Sections 6(2)(d) and 6(2)(e) of the Safety, Health and Welfare at Work Act, 1989.

• The trial arose following an accident at the Mezz Food Court run by Select Service Partner Ireland Ltd at Dublin Airport. An employee engaged in removing and cleaning filters from a canopy above two deep fat fryers slipped on the ledge between the two fryers resulting in his right foot entering the hot oil in one of the them.

The Safety, Health and Welfare at Work Act 2005

• Sets out the main provisions for securing and improving the safety, health and welfare of people at work. The 2005 Act replaces the Safety, Health, and Welfare at Work Act 1989. It details:

• The requirements for the control of safety and health at work.

• The management, organisation and the systems of work necessary to achieve those goals.

• The responsibilities and roles of employers, the self-employed, employees and others.

• The enforcement procedures needed to ensure that the goals are met.

The 2005 Act. A Summary.

• PART 1

• Preliminary and General Section

• PART 2

• GENERAL DUTIES

• Chapter 1: General Duties of Employer

• Chapter 2: General Duties of Employee and Persons in Control of Places of Work

• Chapter 3: General Duties of Other Persons

• PART 3• Protective and Preventive Measures• 18. Protective and Preventive

Measures.• 19. Hazard identification and risk

assessment.• 20. Safety statement.• 21. Duty of employers to co-operate.• 22. Health surveillance.• 23. Medical fitness to work.• 24. Joint safety and health

agreements.• PART 4• Safety Representatives and Safety

Consultation

• PART 5• The Authority• Chapter 1: The Authority• Chapter 2: Staff of Authority• PART 6• Regulations, Codes of Practice

and Enforcement• Chapter 1: Regulations and

Codes of Practice.• Chapter 2: Enforcement• Chapter 3: Obtaining and

Disclosure of Information• PART 7• Offences and Penalties• PART 8• Miscellaneous

• SCHEDULE 1• Associated Statutory Provisions• SCHEDULE 2• Existing Enactments• SCHEDULE 3• General Principles of Prevention• SCHEDULE 4• Safety Committees• SCHEDULE 5• The Authority• SCHEDULE 6• The Chief Executive• SCHEDULE 7• Regulations

SECTION 3 - EMPLOYERS DUTIES Employers are primarily

responsible for creating and maintaining a safe and healthy workplace.

• An employer’s duties include:• Managing and conducting all work activities so as to

ensure the SHW of people at work (including the prevention of improper conduct or behaviour).

• Designing, providing and maintaining a safe place of work that has safe access and egress, and uses plant and equipment that is safe and without risk to health.

• Prevention of risks from the use of any article or substance, or from exposure to physical agents, noise, vibration and ionising or other radiations.

• Planning, organising, performing, maintaining and, where appropriate, revising systems of work that are safe and without risk to health.

• Providing and maintaining welfare facilities for employees at the workplace.

• Providing information, instruction, training and supervision regarding SHW to employees, which must be in a form, manner etc. that they are likely to understand.

• Cooperating with other employers who share the workplace so as to ensure that SHW measures apply to all employees and providing employees with all SHW info.

• Providing appropriate protective equipment and clothing to the employees (and at no cost to the employees).

• Appointing competent persons to specifically advise on compliance with SHWW laws.

• Preventing risks to other people at the place of work.• Ensuring that reportable accidents and dangerous

occurrences are reported to the HSA.

Employee duties

• Employees are obliged to:• Take reasonable care for their own safety, health and

welfare, and that of others who may be affected by their actions or omissions;

• Co-operate with their employer in relation to compliance with statutory requirements under this and other safety laws;

• To use protective equipment, clothing or other means for securing safety, health and welfare;

• To respect protective clothing and equipment provided for securing the safety, health or welfare of persons arising out of work activities;

• To report to the employer or immediate supervisor, without delay, any defects in the workplace, plant, equipment or systems of work which may lead to danger.

SECTION 4 - WORKERS DUTIES

• Employees (including full or part-time, permanent or temporary, regardless of any employment or contractual arrangement they may have) also have duties under the Act. They must:

• Comply with relevant laws and protect their own safety and health, as well as the safety and health of anyone who may be affected by their acts or omissions at work.

• Ensure that they are not under the influence of any intoxicant to the extent that they could be a danger to themselves or others while at work.

• Cooperate with their employer with regard to safety, health and welfare at work.

• Not engage in any improper conduct that could endanger their safety or health or that of anyone else.

• Participate in safety and health training offered by their employer.• Make proper use of all machinery, tools, substances, etc. and of all

personal protective equipment provided for use at work.• Report any defects in the place of work, equipment, etc. which might

endanger safety and health.

SAFETY, HEALTH AND WELFARE ATWORK (GENERAL APPLICATION)

REGULATIONS, 1993• Key provisions• The Regulations are split into the following:• Part I Interpretation and general• Part II General health & safety provisions• Part III Workplace design• Part IV Use of work equipment• Part V Provision of personal protective equipment• Part VI Manual handling of loads• Part VII Work with display screen equipment• Part VIII Electricity• Part IX First-aid• Part X Notification of accidents and dangerous occurrences

• Implementation of European “Six Pack” regulations.

Part IIGeneral Health and Safety Measures

Regulation 5 - General Duties of EmployerThe general provisions require that employers take account, in the management of safety and health, of changing circumstances in theirbusiness activities and to adopt the following principles:

(a) avoidance of risks;(b) evaluation of unavoidable risks;(c) combating of risks at source;(d) adaptation of the work to the individual, especially as regards

design of places of work, choice of work equipment and choice of systems of work;

(e) adaptation of the place of work to technical progress;(f) replacement of dangerous articles, substances or systems of work;(g) development of an adequate prevention policy, which takes

account of technology, organisation and the influence of other factors related to the working environment;

(h) protective measures;(i) appropriate training and instructions to employees.

Other Significant Legislation

• THE SH&W (CARCINOGENS) REGULATIONS, 1993• SH&W AT WORK (BIOLOGICAL AGENTS) REGULATIONS, 1994 AND

1998• SH&W AT WORK (CHEMICAL AGENTS) REGULATIONS, 1994 • SH&W AT WORK (NIGHT WORK AND SHIFT WORK) REGULATIONS,

2000• SH&W AT WORK (PREGNANT EMPLOYEES) REGULATIONS, 2000• SH&W AT WORK (SIGNS) REGULATIONS, 1995• SH&W AT WORK (MISCELLANEOUS WELFARE PROVISIONS)

REGULATIONS, 1995• SH&W AT WORK (CHILDREN AND YOUNG PERSONS) REGULATIONS,

1998• NOISE REGULATIONS - EC• (PROTECTION OF WORKERS, EXPOSURE TO NOISE) REGULATIONS,

1990• CONSTRUCTION REGULATIONS, 1994• FIRE SERVICES ACT, 1981

Enforcement

• The Act set up the National Authority for Occupational Safety and Health and empowered the Authority (known as the Health and Safety Authority - HSA). The HSA has a number of functions including:

• Enforcement of health and safety legislation• Information, advice and research• Promotion of health and safety• Measures at work• Issuing codes of practice• Drafting further regulations under the Act• Establishing health and safety advisory committees• Conducting accident investigations and holding tribunals

of enquiry.

HSA – Wide PowersUnder section 34 of the Act, an inspector of the HSA has the following enforcement

powers:(a) to enter, inspect, examine and search any place of work;(b) to be accompanied by a member of the Garda Síochána where … obstruction is

likely;(c) to take with him/her any other authorised person. (d) where … an offence has or is being committed, to use reasonable force where

necessary to enter a place of work, (needs warrant of a District Court judge)(e) to carry out any necessary examination and inquiry in order to ascertain if the

safety and health legislation is being complied with;(f) to require the production of any books, registers, records etc., which it is

necessary for him/her to see and to inspect, examine and copy;(g) to require persons to answer questions …under the Act (also to sign statements,

provided that no one should be required to incriminate himself/herself;)(h) to direct that any place of work …be left undisturbed for so long as it is

reasonably necessary to enable examination or inquiry under the Act;(i) to have any article or substance at any place of work …likely to cause danger, to

be dismantled or tested.(k) to take possession of any such article or substance and detain it for examination

or for use as evidence in proceedings for so long as is necessary.

Enforcement• Improvement Direction / Plan• Where the standard of health and safety at a workplace is not

satisfactory, an Inspector may request that an ‘Improvement Plan’ is submitted within a designated time period.

• This plan must detail what actions will be taken to remove the risk to health and safety. If the plan is inadequate it must be amended and resubmitted for approval.

• Improvement Notice• If an Inspector believes that a person has contravened any of the

relevant statutory provisions he/she may serve an ‘Improvement Notice’. An Improvement Notice will detail the provisions of the law that are being contravened. This notice will also specify a date by which the alleged contravention must be remedied.

• Prohibition Notice• Risk of serious personal injury. Prohibits carrying on of activities

specified in a prohibition notice.

HSA Inspections 2002• A - Agriculture, Hunting and Forestry 856 • B - Fishing 11 • C - Mining and Quarrying 439 • D - Manufacturing 1757 • E - Electricity/gas/water 54 • F- Construction 4615 • G - Wholesale/Retail trade; repair of• motor vehicles, personal and household goods 654 • H - Hotels/Restaurants 127 • I - Transport, Storage, Communication 1077 • J - Financial Intermediation 30 • K - Real Estate, Renting, Business 333 • L - Public Admin./Defence 265 • M - Education 103 • N - Health/Social Work 129 • O - Community/Social/ Personal Services 253 • P - Private households with employed persons 1 • Totals 10,704

The General Application Regulations

• Safety and Health management. • Risk Assessment. • Emergency Procedures.• Workplace Conditions and Facilities. • Work Equipment. • First Aid. • Electricity. • Manual Handling. • Working with VDUs. • Personal Protective Equipment.

Part V - Personal ProtectiveEquipment (PPE)

• Regulation 21 - Duties of Employers• These Regulations define personal protective equipment

(PPE) as all equipment worn or held for protection. It does not include ordinary working clothes or uniforms. Where an employer is unable to protect employees by technical means or by changing the organisation of work, then, as a last resort, PPE must be used.

• An employer must make an assessment of• the need for and suitability of the PPE based on:• The risks present in the workplace;• Existing conditions of work;• Ergonomic, physical and health factors; and• The correct fitting of such PPE even after adjustments.

• Regulation 22 - Assessment of Personal Protective Equipment• An employer must periodically make an assessment of the need for and

suitability of the PPE based on the risks present in the workplace.• Regulation 23 - Conditions of Use and Compatibility• The requirements set out under Regulation 23 must be done before any

PPE is chosen. Regulation 23 stipulates that the employer is obliged to determine the conditions of use, in particular the period for which PPE is worn, on the basis of:

• The seriousness of the risk,• The frequency of exposure to the risk,• The characteristics of the workstation of each worker, and• The adequacy of the PPE.• Regulation 24 - Maintenance and Replacement• Every employer has a duty to ensure that any PPE provided under

Regulation 21 is maintained at all times in good working order and in a satisfactorily hygienic condition.

• Regulation 25 - Personal Use• This regulation states that: n an employer must ensure that the use of an

item of personal protective equipment provided by him under Regulation 21 is normally confined to one employee

• Regulation 26 - Information, Training and• Instruction• Employees must be trained and instructed to use the PPE and informed

about the risks it is designed to protect against.

SAFETY, HEALTH AND WELFARE ATWORK (CHEMICAL AGENTS)

REGULATIONS, 1994

• Duties of Employer• There is a duty on employers to prevent, or failing that, to control the

exposure of employees to chemical agents at work. This should be done by:

• replacing the chemical agent with a less hazardous chemical agent;• limiting the use of the chemical agents;• limiting the number of employees exposed;• use of engineering controls;• protective measures including safe working practices;• collective protective measures;• personal protective measures;• hygiene measures;• use of warning and safety signs;• a general or limited ban on the chemical agent where other means

cannot ensure protection.

Clonleigh Co-Operative Society (On Indictment)

• Clonleigh Co-operative Society, Castlefin, Co. Donegal, was fined €750 at Letterkenny Circuit Court on 10 February 2004 having pleaded guilty to the following charge:

• Section 12 of the Safety, Health and Welfare at Work Act 1989

• The case arose from a fatal incident in which an operative died from injuries sustained when he was struck by a reversing teleporter loader.

ESB

• The ESB of 27, Lower Fitzwilliam Street, Dublin 2, was fined a total of €3,400 at Skibereen District Court on 19 July 2004, having been found guilty of the following charges:

• _ Section 7(1) of the Safety, Health and Welfare at Work Act 1989 (two counts);

• _ Section 8(2) of the Safety, Health and Welfare at Work Act 1989.

• The trial related to a fatal accident in which an employee of Mr Mc Sweeney, a contractor, was fatally injured by electrocution whilst topping trees close to live 20kv power lines. The contractor was engaged by the ESB to cut the trees. The employees of the contractor were not trained in the use of chainsaws, tree climbing and emergency rescue. This case is currently the subject matter of an Appeal.

• Emerald Salvage & Recycling Ltd, trading as Emerald Transport

• Emerald Salvage Recycling, Carrowgubbadagh, Ballisodare, Co. Sligo, was fined a total of €2,000 at Swinford District Court, having been found guilty of the following charges:

• Regulation 10(f) 11(a) 12(1)(a) 13(a)(ii) of the Carriage of Dangerous Goods by Road Regulations 2001;

• The trial arose as a result of a routine checkpoint where a vehicle was stopped and a number of infringements were found.

Commissioner of Public Works (On Indictment)

• Commissioner of Public Works, 51 St Stephens Green, Dublin 2, was fined a total of €10,000 at Trim Circuit Court on 27 October 2004 having pleaded guilty to the following charges;

• Regulation 3 of the Safety, Health and Welfare at Work (Construction) Regulations 2001.

• The trial arose following the fatal accident of an employee of the defendant who suffered carbon monoxide poisoning from an unventilated container (see also Ivernagh Security Services Ltd, trading as J.B Security)

Galway County Council

• Galway County Council was fined a total of €1,500 at Galway District Court on 24 May 2004, having pleaded guilty to the following charges:

• _ Regulation 3(1) of the Safety, Health and Welfare at Work (Construction) Regulations 2001

• _ Regulation 52(1) of the Safety, Health and Welfare at Work (Construction) Regulations 2001

• _ Regulation 58(3)(c) of the Safety, Health and Welfare at Work (Construction) Regulations 2001

• The trial arose when two workers were injured when they fell from an aluminium tower scaffold when it fell over. The ladder had been used to extend the height of the working platform and the one outrigger in use at the place of work had not been repositioned after the tower was moved and taken into use.

Examiner Publications (Cork) Ltd

• Examiner Publications (Cork) Ltd of Academy Street, Cork, was fined a total of €1,500 at Cork District

• Court on 21 April 2004 having pleaded guilty to the following charge:

• _ Section 22(1) of the Factories Act 1995.• The trial arose following an accident in which an

employee suffered an injury to the top section of an index finger when his hand came in contact with a belt and pulley drive on a paper stacking and binding machine.

Ipodec Ireland Ltd (On Indictment)

Ipodec Ireland Ltd of Foregehill, Kinsale Road, Co. Cork, was fined a total of €60,000 at Cork Circuit Criminal Court on 20 October 2004, having pleaded guilty to the following charges:

_ Section 17(1) of the Safety, Health and Welfare at Work (General Application) Regulations 1993;

54_ Section 6(2)(c) of the Safety, Health and Welfare at Work

Act 1989;_ Section 6 (2)(d) of the Safety, Health and Welfare at

Work Act 1989.The trial arose when a vehicle reversed into a disabled

employee in a wheel chair. The yard foreman was off site at the time

Weyerhauser Europe Ltd

• Weyerhauser Europe Ltd, Redmondstown, Clonmel, Co. Tipperary, was fined a total of €2,000 at Clonmel District Court on 27 April 2004, having been found guilty of the following charges:

• Section 6(1) of the Safety, Health and Welfare at Work Act 1989;

• Regulation 20 (1) of the Safety, Health and Welfare at Work (General Application) Regulations 1993.

• The trial arose following an accident in which an employee was requested to clean the inside of a bag filter. The employee had to stand on a screw feeder as part of the process. It started to rotate and his feet became entangled in the screw.

Paul Harrison, trading as Tastymacs

• Paul Harrison The Quay, Ballina, Co. Mayo, was fined a total of €800 at Ballina District Court on 23 March 2004, having been found guilty of the following charges:

• _ Section 6 (1) of the Safety, Health and Welfare at Work Act 1989;

• _ Section 12 of the Safety, Health and Welfare at Work Act 1989.

• The trial arose as a result of a gas explosion in a fast food restaurant. Four propane gas cylinders had been stored inside the building. Three of these were attached to a regulator device. The rubber seals of two of these were found to be faulty. Lighting a match for the gas fryers provided the ignition source.

Webdale Ltd, trading as Mactech Industrial Pyrotechnics

• Webdale Ltd of Belford Business Park, Belford, was fined a total of €4,500 at Ballyshannon District Court on 15 October 2004, having been found guilty of the following charges:

• _ Regulation 15(1) of the Safety, Health and Welfare at Work (Construction) Regulations 2001;

• _ Regulation 35(3)(b) of the Safety, Health and Welfare at Work (Construction) Regulations 2001;

• _ Section 7(1) of the Safety, Health and Welfare at Work Act 1989.

• The trial arose after an explosion occurred on a construction site. No warning had be given to local residents as to the nature of the site operation and no provision was made to evacuate them from their houses.