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10 2005

Safety, Health and Welfare at Work Act 2005

PART 7

Offences and Penalties

Offences.

77. —(1) A person commits an offence where he or she—

(a) fails to discharge a duty to which he or she is subject under sections 25(4), (5) and (6), 26(1), (4), (5) and (6) and section 69 ,

(b) prevents or attempts to prevent any person from answering any question to which an inspector may require an answer under section 64 ,

(c) fails to submit an improvement plan to an inspector within the time specified in a direction under section 65 ,

(d) fails to implement an improvement plan the adequacy of which has been confirmed in accordance with section 65 ,

(e) contravenes any requirement imposed by a notice requiring information under section 72 , or

(f) prevents, obstructs, impedes or delays an officer of customs and excise in the exercise of any of the powers conferred on him or her by section 87 .

(2) A person commits an offence where he or she—

(a) fails to discharge a duty to which he or she is subject by virtue of sections 8, 9, 10, 11(1) to (4), 12, 13 and 15 to 23,

(b) contravenes section 14 ,

(c) except for the provisions of this section as they apply to this Act, contravenes the relevant statutory provisions,

(d) prevents, obstructs, impedes or delays an inspector from exercising any functions conferred on him or her by this Act,

(e) fails to comply with a bona fide request, instruction or directions from an inspector in the exercise of his or her statutory functions,

(f) where any person makes a statement to an inspector which he or she knows to be false or recklessly makes a statement which is false where the statement is made—

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

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

(g) makes 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, makes use of any such entry which he or she knows to be false,

(h) produces or causes to be produced or allows to be produced to an inspector any record which is false or misleading in any respect knowing it to be so false or misleading,

(i) forges or uses a document issued or authorised to be issued under any of the relevant statutory provisions or required for any purpose under the relevant statutory provisions with the intent to deceive, or makes or has in his or her possession a document so closely resembling any such document as to be calculated to deceive,

(j) falsely represents himself or herself to be an inspector,

(k) contravenes any requirement of an improvement notice served under section 66 , or

(l) carries on any activity in contravention of a prohibition notice served under section 67 .

(3) A person who, at any time during the period of 3 months after a notice or document is affixed under section 3 (1)(d) removes, alters, damages or defaces the notice or document without lawful authority, commits an offence.

(4) A person commits an offence if he or she—

(a) obstructs or impedes a member of the Garda Síochána in the exercise of a power conferred on him or her or by a warrant under section 64 (7),

(b) refuses to produce any record that an inspector lawfully requires him or her to produce, or

(c) gives to an inspector information that the person knows is false or misleading.

(5) It is an offence to contravene any order or orders made under section 71 .

(6) A person who, without reasonable cause, fails or refuses to comply with a requirement specified in an information notice or who in purported compliance with such a requirement furnishes information to the Authority that the person knows to be false or misleading in a material respect commits an offence.

(7) A person who contravenes section 73 commits an offence.

(8) (a) A person convicted of an offence under any of the relevant statutory provisions may, in addition to any fine that may be imposed, be ordered to take steps within a specified time to remedy 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) commits an offence.

(b) The time specified under paragraph (a) may be extended at the discretion of the court on application made by the person to whom the order is addressed.

(9) (a) Subject to paragraph (b), if a person suffers any personal injury as a consequence of the contravention of any of the relevant statutory provisions by a person on whom a duty is imposed by sections 8 to 12 inclusive and 14 to 17 inclusive, the person on whom the duty is imposed commits an offence.

(b) A person does not commit an offence under paragraph (a)

(i) if a prosecution against the person in respect of the act or default by which the personal injury was caused has been heard and dismissed before the personal injury occurred, or

(ii) in the case of personal injury excluding death, where that injury was not caused directly by the alleged contravention.

(10) (a) Without prejudice to subsection (12), where a person is charged with a summary offence under any of the relevant statutory provisions, the person is entitled, upon information duly laid by him or her and on giving to the prosecution not less than 3 days notice in writing of his or her intention, to have any other person whom he or she charges as the actual offender brought before the court at the time appointed for hearing the matter (whether or not the other person is his or her employee or agent).

(b) If the commission of the offence is proved and the first person charged proves to the satisfaction of the court that he or she used all diligence to enforce the relevant statutory provisions and that the other person whom he or she charges as the actual offender committed the offence without his or her consent, connivance or wilful default, that other person shall be summarily convicted of the offence and the first person is not 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 or she gives evidence and any witnesses called by him or her in support of his or her charge, and to adduce rebutting evidence.

(11) 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.

(12) Nothing in the relevant statutory provisions shall operate so as to afford an employer a defence in any criminal proceedings for a contravention of those provisions by reason of any act or default of—

(a) his or her employee, or

(b) a competent person appointed by the employer under section 18.

Penalties.

78. —(1) A person guilty of an offence under section 39(17)(e) of the Redundancy Payments Act 1967 as applied to this Act by section 29 (7), or 77(1) is liable on summary conviction to a fine not exceeding €3,000.

(2) A person guilty of an offence—

(a) under section 77 (2) to (8) and (9)(a),

(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, a person prescribed under section 33 , 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),

is liable—

(i) on summary conviction to a fine not exceeding €3,000 or imprisonment for a term not exceeding 6 months or both, or

(ii) on conviction on indictment to a fine not exceeding €3,000,000 or imprisonment for a term not exceeding 2 years or both.

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

(4) Where a person is convicted of an offence under the relevant statutory provisions in proceedings brought by the Authority or a prescribed person under section 33 , the court shall, unless it is satisfied that there are special and substantial reasons for not so doing, order the person to pay to the Authority or the prescribed person under section 33 the costs and expenses measured by the court, incurred by the Authority or the prescribed person under section 33 in relation to the investigation, detection and prosecution of the offence including costs and expenses incurred in the taking of samples, the carrying out of tests, examinations and analyses and in respect of the remuneration and other expenses of employees of or consultants and advisers engaged by the Authority or the prescribed person under section 33 , as the case may be.

Provisions regarding certain offences.

79. —(1) If an inspector has reasonable grounds for believing that a person is committing or has committed a prescribed offence under the relevant statutory provisions, he or she may serve the person with a notice in the prescribed form stating that—

(a) the person is alleged to have committed the offence, and

(b) a prosecution in respect of the alleged offence will not be instituted during the period specified in the notice and, if the payment specified in the notice is made during that period, no prosecution in respect of the alleged offence will be instituted.

(2) A person on whom a notice is served under subsection (1) may, during the period of 21 days beginning on the day of the notice, make to the Authority or to a person prescribed under section 33 , as appropriate, at the address specified in the notice a payment not exceeding €1,000 as may be prescribed.

(3) Where a notice is served under subsection (1)

(a) the Authority or a person prescribed under section 33 , as specified in the notice, may receive the payment, issue a receipt for it and retain the money so paid, and any payment so received shall not be recoverable in any circumstance by the person who made it, and

(b) a prosecution in respect of the alleged offence shall not be instituted in the period specified in the notice, and if the payment so specified is made during that period, no prosecution in respect of the alleged offence shall be instituted.

(4) In a prosecution for an offence under this Act the onus of proving that a payment pursuant to a notice under this section has been made shall lie on the accused.

Liability of directors and officers of undertakings.

80. —(1) Where an offence under any of the relevant statutory provisions has been committed by an undertaking and the doing of the acts that constituted the offence has been authorised, or consented to by, or is attributable to connivance or neglect on the part of, a person, being a director, manager or other similar officer of the undertaking, or a person who purports to act in any such capacity, that person as well as the undertaking shall be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(2) Where a person is proceeded against as aforesaid for such an offence and it is proved that, at the material time, he or she was a director of the undertaking concerned or a person employed by it whose duties included making decisions that, to a significant extent, could have affected the management of the undertaking, or a person who purported to act in any such capacity, it shall be presumed, until the contrary is proved, that the doing of the acts by the undertaking which constituted the commission by it of the offence concerned under any of the relevant statutory provisions was authorised, consented to or attributable to connivance or neglect on the part of that person.

(3) Where the affairs of a body corporate are managed by its members, subsections (1) and (2) shall apply in relation to the acts or defaults of a member in connection with his or her functions of management as if he or she were a director of the body corporate.

Onus of proof.

81. —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.

82. —(1) Subject to subsection (2), summary proceedings in relation to an offence under any of the relevant statutory provisions may be brought and prosecuted by the Authority.

(2) Summary proceedings in relation to an offence under any of the relevant statutory provisions may be brought and prosecuted by a person prescribed under section 33 whose function it is, in accordance with any of the relevant statutory provisions, to enforce the provision concerned.

(3) Notwithstanding section 10(4) of the Petty Sessions (Ireland) Act 1851, but without prejudice to subsection (4), summary proceedings for an offence under any of the relevant statutory provisions may be instituted at any time within 12 months from the date on which the offence was committed.

(4) Where a special report on any matter to which section 70 applies is made and it appears from the report that any of the relevant statutory provisions was contravened at a time which is material in relation to the subject matter of the report, summary proceedings against any person liable to be proceeded against in respect of the contravention may be instituted at any time within 6 months of the making of the report or 12 months after the date of the contravention, whichever is the later.

Appeals from orders.

83. —Any person (including the Authority or a person prescribed under section 33 ) 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.

84. —(1) If a person is found to be carrying on a work activity in any place of work at any time at which work is being carried on, he or she shall, until the contrary is proved, be deemed for the purposes of this Act to have been employed in that place of work either by the person who has or who may reasonably be presumed to have overall control over the work activity concerned or by another employer carrying on work activities in that place of work.

(2) Where any entry is required by any of the relevant statutory provisions to be made in any record, the entry made by an employer or on behalf of an employer shall, as against the employer, 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.

(3) In any proceedings under this Act a copy record may be given in evidence and shall be prima facie evidence of the facts stated in it, if the court is satisfied as to the reliability of the system used to make the copy record and the original entry on which it was based.

Publication of names of certain persons.

85. —(1) The Authority may from time to time compile a list of names and addresses and the description of business or other activity of every person—

(a) on whom a fine or other penalty was imposed by a court under any of the relevant statutory provisions,

(b) on whom a prohibition notice was served under section 67 , or

(c) in respect of whom an interim or interlocutory order was made under section 71 .

(2) The Authority may at any time cause any list referred to in subsection (1) to be published in such manner as it considers appropriate.

(3) Any list referred to in subsection (1) shall specify in respect of each person named in the list such particulars, as the Authority thinks fit, of—

(a) the matter occasioning any fine, penalty, notice or order, as the case may be, imposed on the person, and

(b) any fine, penalty, notice or order occasioned by the matter referred to in paragraph (a).