First Previous (PART VII Special Reports and Inquiries) Next (PART IX Miscellaneous)

7 1989

SAFETY, HEALTH AND WELFARE AT WORK ACT, 1989

PART VIII

Offences, Penalties and Legal Proceedings

Offences.

48. —(1) It shall be an offence for a person—

(a) to fail to discharge a duty to which he is subject by virtue of sections 6 to 8 , 9 (1), 10 , 11 , 12 (5) to (8), 13 (1) and (5), or

(b) to contravene sections 9 (2), 12 (1) to (4), or

(c) to contravene a provision of a regulation made under section 28 .

(2) It shall be an offence for a person wilfully to prevent, obstruct, impede or delay an inspector from exercising any functions conferred on him by this Act and it shall be an offence for a person wilfully to fail to comply with a bona fide request or instruction from an inspector in the exercise of his statutory functions.

(3) It shall be an offence for a person to prevent or attempt to prevent any person from answering any question to which an inspector may by virtue of section 34 require an answer.

(4) It shall be an offence to fail to submit an improvement plan to an inspector within the time specified in a direction under section 35 or to fail to implement an improvement plan which has been approved in accordance with the said section 35 but it shall be a good defence to a prosecution under the said section 35 if it can be shown that other measures providing at least equal protection were taken.

(5) It shall be an offence for a person to contravene any requirement of an improvement notice issued in accordance with section 36 .

(6) It shall be an offence for a person to carry on activities in contravention of a prohibition notice issued in accordance with section 37 .

(7) It shall be an offence for a person wilfully to prevent, obstruct, impede or delay an officer of customs and excise in the exercise of any of the powers conferred on him by section 38 .

(8) It shall be an offence for a person to contravene any requirement imposed by a notice requiring information under section 42 .

(9) It shall be an offence for a person to use or to disclose any information in contravention of section 45 .

(10) It shall be an offence for a person intentionally to obstruct any person in the exercise of his powers under section 46 .

(11) If a person who without reasonable excuse (proof whereof shall lie on him) either fails, after having the expenses (if any) to which he is entitled tendered to him, or refuses to comply with any summons or requisition of a tribunal appointed under section 47 or otherwise prevents or impedes the tribunal in the execution of its duty, he shall be guilty of an offence.

(12) It shall be an offence for a person to make a statement which he knows to be false or recklessly to make a statement which is false where the statement is made—

(a) in purported compliance with a requirement to furnish any information imposed by or under any of the relevant statutory provisions; or

(b) for the purpose of obtaining the issue of a document under any of the relevant statutory provisions to himself or another person.

(13) It shall be an offence for a person to make a false entry intentionally in any register, book, notice or other document required by or under any of the relevant statutory provisions to be kept, served or given or, with intent to deceive, to make use of any such entry which he knows to be false.

(14) It shall be an offence for a person, with intent to deceive, to forge or use a document issued or authorised to be issued under any of the relevant statutory provisions or required for any purpose thereunder or to make or have in his possession a document so closely resembling any such document as to be calculated to deceive.

(15) It shall be an offence for a person falsely to pretend to be an inspector.

(16) Where a person is convicted of an offence under any of the relevant statutory provisions the court may, in addition to or instead of inflicting a fine, order him to take steps within a specified time for remedying the matters in respect of which the contravention occurred (and may on application extend the time so specified) and any person who fails to comply with any such order within the specified time (as extended) shall be guilty of an offence.

(17) If a person is killed, dies or suffers any personal injury, in consequence of any person who is subject to a duty by virtue of sections 6 to 11 having contravened any of the relevant statutory provisions, the latter person shall be guilty of an offence under this subsection; but

(i) the latter person shall not be guilty of an offence under this subsection if a prosecution against him in respect of the act or default by which the death or injury was caused, has been heard and dismissed before the death or injury occurred;

(ii) in the case of injury to health, the latter person shall not be guilty of an offence under this subsection unless the injury was caused directly by the contravention.

(18) (a) Where a person is charged with a summary offence under any of the relevant statutory provisions, he shall be entitled, upon information duly laid by him and on giving to the prosecution not less than three days notice in writing of his intention, to have any other person whom he charges as the actual offender brought before the court at the time appointed for hearing the charge (whether or not the other person is his agent or servant);

(b) if the commission of the offence is proved and the first person charged proves to the satisfaction of the court that he used all diligence to enforce the relevant statutory provisions and that the other person whom he charges as the actual offender committed the offence without his consent, connivance or wilful default, that other person shall be summarily convicted of the offence and the first person shall not be guilty of the offence, and the person convicted shall, in the discretion of the court, be also liable to pay any costs incidental to the proceedings;

(c) the prosecution shall in any case to which this subsection applies, have the right to cross-examine the first person charged if he gives evidence and any witnesses called by him in support of his charge, and to adduce rebutting evidence.

(19) (a) Where an offence under any of the relevant statutory provisions committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of any director, manager, secretary or other similar officer of the body corporate or a person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly;

(b) where the affairs of a body corporate are managed by its members, paragraph (a) shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

(20) Where an offence under any of the relevant statutory provisions is committed by reason of a failure to do something at or within a time fixed by or under any of those provisions, the offence shall be deemed to continue until that thing is done.

Penalties.

49. —(1) Subject to subsections (2), (3) and (4), a person guilty of an offence under any of the relevant statutory provisions for which no express money penalty is provided shall be liable on summary conviction thereof to a fine not exceeding £1,000.

(2) A person guilty of an offence under section 48 (1) shall be liable—

(a) on summary conviction to a fine not exceeding £1,000, or

(b) on conviction on indictment to a fine.

(3) A person guilty of an offence—

(a) under subsection (6) or (9) of section 48, or

(b) which consists of contravening any of the relevant statutory provisions by doing otherwise than under the authority of a licence issued by the Authority or any other prescribed body something for the doing of which such a licence is necessary under the relevant statutory provisions, or

(c) which consists of contravening a term of or a condition or restriction attached to any such licence as is mentioned in paragraph (b) shall be liable—

(i) on summary conviction to a fine not exceeding £1,000, or

(ii) on conviction on indictment to a fine or, at the discretion of the court, to imprisonment for a term not exceeding two years or to both such fine and such imprisonment.

(4) Nothing in this section shall be construed as creating an indictable offence in respect of regulations made under the European Communities Act, 1972.

Onus of proof.

50. —In any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a duty or requirement to do something so far as is practicable or so far as is reasonably practicable, or to use the best practicable means to do something, it shall be for the accused to prove (as the case may be) that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that there was no better practicable means than was in fact used to satisfy the duty or requirement.

Prosecution of offences, etc.

51. —(1) Subject to subsection (2), any summary offence under any of the relevant statutory provisions may be prosecuted by the Authority.

(2) Where a summary offence under any of the relevant statutory provisions consists of a contravention of a provision which is to be enforced by an enforcing agency, the offence may be prosecuted by the enforcing agency.

(3) Notwithstanding section 10 (4) of the Petty Sessions (Ireland) Act, 1851, proceedings for any offence under any of the relevant statutory provisions may be instituted at any time within one year after the date of the offence.

(4) Where—

(a) a special report on any matter to which section 46 of this Act applies is made; or

(b) a report is made by a person holding an inquiry into any matter by virtue of section 47 ; or

(c) a coroner's inquest is held concerning the death of any person whose death may have been caused by an accident which happened while he was at work or by a disease which he contracted or probably contracted at work or by an accident, act or omission which occurred in connection with the work of any person whatsoever;

and it appears from the report or, in a case falling within paragraph (c) from the proceedings at the inquest, that any of the relevant statutory provisions was contravened at a time which is material in relation to the subject matter of the report or inquest, summary proceedings against any person liable to be proceeded against in respect of the contravention may be commenced at any time within six months of the making of the report or, in a case falling within paragraph (c), within six months of the conclusion of the inquest.

Appeals from orders.

52. —Any person (including the Authority or an enforcing agency) aggrieved by an order made by the District Court on determining a complaint under this Act may appeal therefrom to a judge of the Circuit Court within whose circuit is situated the District Court in which the decision was given, and the decision of the judge of the Circuit Court on any such appeal shall be final and conclusive.

Evidence.

53. —(1) If a person is found in any place of work at any time at which work is going on, he shall, until the contrary is proved, be deemed for the purposes of this Act to have been employed in such place of work.

(2) Where any entry is required by any of the relevant statutory provisions to be made in any register or record, the entry made by an employer or on his behalf shall, as against him, be admissible as evidence of the facts therein stated, and the fact that any entry so required with respect to the observance of any of the relevant statutory provisions has not been made, shall be admissible as evidence that the provision has not been observed.