Safety, Health and Welfare at Work Act 2005 

September, 2005 - Alison Fanagan Ian Moore

The Safety Health and Welfare at Work Act 2005 has come into effect today, 1 September 2005. Important issues raised by the Act include: 1. A competent person must be employed to manage safety in the workplace; 2. Hazards must be identified and risk assessments carried out which are thorough and reviewed on a regular basis, and this must be communicated to employees regularly; 3. Training has to be relevant and understood. There is also a duty on employees not to misrepresent any safety training he or she has received; 4. Extended duties on designers and manufacturers of workplaces and articles for use at work to make sure they are safe; 5. Requirements in respect of intoxicant testing procedures, and duties on employees not to turn up for work intoxicated; 6. Protection against penalisation of safety representatives and others reporting health and safety breaches or needing time off to train for this job, and provision for safety committees; 7. Directors and health and safety managers must demonstrate that safety is managed appropriately, and that the company is in compliance with its legal safety obligations, failing which they can be personally fined and imprisoned; 8. Extensive consultation requirements on employers, to ensure employees are more involved in the health and safety management of the business. Under the 2005 Act there are also new procedures for health and safety complaints, including references to Rights Commissioners and the Employment Appeals Tribunal. The penalties have been increased and the Act is drafted in such a way as to make it much easier to successfully prosecute directors and senior officers involved in health and safety management. The onus of proof is still on the employer to show that it has done all that is "reasonably practicable" (defined for the first time, and a tough standard) to prevent the offence complained of. In respect of the fines which may be imposed, it is worth noting that the previous "unlimited" fine under the 1989 Act for the successful prosecution of serious breaches will now be capped at €3 million and/or two years in jail. This is against the backdrop of the fines which have been imposed by the Courts in a number of cases over the last three years involving not only fatalities but also serious injuries. The highest fine ever imposed to date is a fine of €1million, imposed on Smurfit News Press Ltd in November 2004 relative to serious injuries suffered by two employees in separate incidents. Fines of €50,000 and more are not uncommon especially where a fatality is concerned.


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