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10 2005

Safety, Health and Welfare at Work Act 2005

PART 4

Safety Representatives and Safety Consultation

Safety representatives.

25. —(1) Without prejudice to section 26 , employees may, from time to time, select and appoint from amongst their number at their place of work a representative (in this Act referred to as a “safety representative”) or, by agreement with their employer, more than one safety representative, to represent them at the place of work in consultation with their employer on matters related to safety, health and welfare at the place of work.

(2) A safety representative may—

(a) inspect the whole or any part of the place of work—

(i) subject to subsection (3), after giving reasonable notice to the employer, or

(ii) immediately, in the event of an accident, dangerous occurrence or imminent danger or risk to the safety, health and welfare of any person,

(b) investigate accidents and dangerous occurrences provided that he or she does not interfere with or obstruct the performance of any statutory obligation required to be performed by any person under any of the relevant statutory provisions,

(c) after the giving of reasonable notice to the employer, investigate complaints relating to safety, health and welfare at work made by any employee whom he or she represents,

(d) accompany an inspector who is carrying out an inspection of the place of work under section 64 other than an inspection for the purpose of investigating an accident or dangerous occurrence,

(e) at the discretion of the inspector concerned, accompany an inspector who is carrying out an inspection under section 64 for the purpose of investigating an accident or dangerous occurrence,

(f) at the discretion of the inspector concerned, where an employee is interviewed by an inspector with respect to an accident or dangerous occurrence at a place of work, attend the interview where the employee so requests,

(g) make representations to the employer on any matter relating to safety, health and welfare at the place of work,

(h) make oral or written representations to inspectors on matters relating to safety, health and welfare at the place of work, including the investigation of accidents or dangerous occurrences,

(i) receive advice and information from inspectors on matters relating to safety, health and welfare at the place of work, or

(j) consult and liaise on matters relating to safety, health and welfare at work with any other safety representatives who may be appointed in the undertaking concerned, whether or not those safety representatives work in the same place of work, in different places of work under the control of the employer or at different times at the place of work.

(3) The employer and the safety representative shall, having regard to the nature and extent of the hazards in the place of work, agree the frequency or schedule of inspections which may be carried out under subsection (2)(a)(i), which agreement shall not be unreasonably withheld by the employer.

(4) Every employer shall consider any representations made to him or her by the safety representative in relation to the matters specified in this section or any other matter relating to the safety, health and welfare at work of his or her employees and, so far as is reasonably practicable, take any action that he or she considers necessary or appropriate with regard to those representations.

(5) An employer shall give to a safety representative such time off from his or her work as is reasonable having regard to all the circumstances, without loss of remuneration, to enable the safety representative—

(a) to acquire, on an ongoing basis, the knowledge and training necessary to discharge his or her functions as a safety representative, and

(b) to discharge those functions.

(6) Where an inspector attends at a place of work for the purpose of carrying out an inspection under section 64 , the employer shall inform the safety representative that the inspection is taking place.

Consultation and participation of employees, safety committees.

26. —(1) Every employer shall, for the purpose of promoting and developing measures to ensure the safety, health and welfare at work of his or her employees and ascertaining the effectiveness of those measures—

(a) consult his or her employees for the purpose of making and maintaining arrangements which will enable the employer and his or her employees to co-operate effectively for those purposes,

(b) in accordance with the arrangements referred to in paragraph (a), consult with his or her employees, their safety representatives or both, as appropriate, in advance and in good time regarding—

(i) any measure proposed to be taken in the place of work which may substantially affect the safety, health and welfare of those employees, including measures to be taken under the relevant statutory provisions,

(ii) the designation of employees under section 11 ,

(iii) activities arising from or related to the protection from and the prevention of risks to safety, health and welfare at work,

(iv) the hazard identification and the risk assessment to be carried out under section 19 ,

(v) the preparation of a safety statement under section 20 ,

(vi) the information to be provided to employees under section 9 ,

(vii) the information required to be kept or notified to the Authority in respect of accidents and dangerous occurrences referred to in section 8 (2)(k),

(viii) the appointment of persons referred to in section 18 ,

(ix) the planning and organisation of the training referred to in section 10 , or

(x) the planning and introduction of new technologies particularly in relation to the consequences of the choice of equipment and working conditions and the working environment for the safety, health and welfare of employees.

(2) Employees shall have the right to make representations to and consult their employer on matters relating to their safety, health and welfare at work, including the matters specified in subsection (1).

(3) Where, in a place of work by agreement of the employer, there is a group of persons (by whatever name known) representative of the employer and the employees that constitutes a safety committee in compliance with Schedule 4 and that exists for the purpose of consultation regarding the safety, health and welfare at work of the employees, consultation within that group of persons may, to such extent as may be agreed between the employer and his or her employees, fulfil the requirements of subsections (1) and (2).

(4) Every employer shall consider any representations made to him or her by his or her employees in relation to the matters specified in this section or any other matter relating to their safety, health or welfare at work and, so far as is reasonably practicable, take any action that he or she considers necessary or appropriate with regard to those representations.

(5) An employer shall give to employees involved in arrangements for consultation referred to in subsections (1) and (3) such time off from their duties as is reasonable having regard to all the circumstances, without loss of remuneration, to enable those employees—

(a) to acquire the knowledge and training necessary to discharge their functions under this section, and

(b) to discharge those functions.

(6) In an undertaking in which arrangements for joint decisionmaking exist involving the employer and employees, these arrangements shall include consultation in accordance with this section.

Protection against dismissal and penalisation.

27. —(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

(6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.

(7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.

Complaints to rights commissioners.

28. —(1) Without prejudice to section 27 (4), an employee may present a complaint to a rights commissioner that his or her employer has contravened section 27 .

(2) Where a complaint under subsection (1) is made, the rights commissioner shall—

(a) give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint,

(b) give a decision in writing in relation to it, and

(c) communicate the decision to the parties.

(3) A decision of a rights commissioner under subsection (2) shall do one or more of the following:

(a) declare that the complaint was or, as the case may be, was not well founded;

(b) require the employer to take a specific course of action;

(c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances.

(4) A rights commissioner shall not entertain a complaint under this section unless it is presented to him or her within the period of 6 months beginning on the date of the contravention to which the complaint relates or such further period not exceeding 6 months as the rights commissioner considers reasonable.

(5) (a) A complaint shall be presented by giving notice of it in writing to a rights commissioner and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister.

(b) A copy of a notice under paragraph (a) shall be given to the other party concerned by the rights commissioner concerned.

(6) Proceedings under this section before a rights commissioner shall be conducted otherwise than in public.

(7) A rights commissioner shall furnish the Labour Court with a copy of any decision given by the commissioner under subsection (2).

Appeals from and enforcement of decisions of rights commissioner.

29. —(1) A party concerned may appeal to the Labour Court from a decision of a rights commissioner under section 28 and, if the party does so, the Labour Court shall give the parties an opportunity to be heard by it and to present to it any evidence relevant to the appeal, shall make a determination in writing in relation to the appeal affirming, varying or setting aside the decision and shall communicate the determination to the parties.

(2) An appeal under this section shall be initiated by the party concerned, within 6 weeks of the date on which the decision to which it relates was communicated to the party, by giving written notice to the Labour Court under subsection (4) stating the intention of the party concerned to appeal against the decision.

(3) A copy of a notice under subsection (2) shall be given by the Labour Court to any other party concerned as soon as practicable after the receipt of the notice by the Labour Court.

(4) The following matters, or the procedures to be followed in relation to those matters, shall be determined by the Labour Court, namely—

(a) the initiation and the hearing by the Labour Court of appeals under this section,

(b) the times and places of hearings of such appeals,

(c) the representation of the parties to such appeals,

(d) the publication and notification of determinations of the Labour Court,

(e) the particulars to be contained in a notice under subsection (2), and

(f) any matters consequential on, or incidental to, the matters referred to in paragraphs (a) to (e).

(5) The Minister may, at the request of the Labour Court, refer a question of law arising in proceedings before it under this section to the High Court for its determination and the determination of the High Court shall be final and conclusive.

(6) A party to proceedings before the Labour Court under this section may appeal to the High Court from a determination of the Labour Court on a point of law and the determination of the High Court shall be final and conclusive.

(7) Section 39(17) of the Redundancy Payments Act 1967 shall apply in relation to proceedings before the Labour Court under this Part as it applies to matters referred to the Employment Appeals Tribunal under that section with—

(a) the substitution in that provision of references to the Labour Court for references to the Tribunal, and

(b) the substitution in paragraph (e) of that provision of “€3,000” for “£150”.

(8) Where a decision of a rights commissioner in relation to a complaint under this Act has not been carried out by the employer concerned in accordance with its terms, the time for bringing an appeal against the decision has expired and no appeal has been brought, the employee concerned may bring the complaint before the Labour Court and the Labour Court shall, without hearing the employer concerned or any evidence (other than in relation to the matters aforesaid) make a determination to the like effect as the decision.

(9) The bringing of a complaint before the Labour Court under subsection (8) shall be effected by giving to the Labour Court a written notice containing such particulars (if any) as may be determined by the Labour Court.

(10) The Labour Court shall publish, in a manner it considers appropriate, particulars of any determination made by it under paragraphs (a), (b), (c), (e) and (f) of subsection (4) (not being a determination as respects a particular appeal under this section) and subsection (9).

Enforcement of determinations of Labour Court.

30. —(1) If an employer fails to carry out in accordance with its terms a determination of the Labour Court in relation to a complaint under section 28 within 6 weeks from the date on which the determination is communicated to the parties, the Circuit Court shall, on application to it in that behalf by—

(a) the employee concerned,

(b) with the consent of the employee, any trade union of which the employee is a member, or

(c) the Minister, if the Minister considers it appropriate to make the application having regard to all the circumstances,

without hearing the employer or any evidence (other than in relation to the matters aforesaid), make an order directing the employer to carry out the determination in accordance with its terms.

(2) The reference in subsection (1) to a determination of the Labour Court is a reference to a determination in relation to which, at the end of the time for bringing an appeal against it, no appeal has been brought or, if an appeal has been brought it has been abandoned and the references to the date on which the determination is communicated to the parties shall, in a case where an appeal is abandoned, be read as references to the date of abandonment.

(3) In an order under this section providing for the payment of compensation, the Circuit Court may, if in all the circumstances it considers it appropriate to do so, direct the employer concerned to pay to the employee concerned interest on the compensation at the rate referred to in section 22 of the Courts Act 1981 , in respect of the whole or any part of the period beginning 6 weeks after the date on which the determination of the Labour Court is communicated to the parties and ending on the date of the order.

(4) An application under this section to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the employer concerned ordinarily resides or carries on any profession, business or occupation.

Evidence of failure to attend before or give evidence or produce documents to Labour Court.

31. —A document purporting to be signed by the chairperson or a vice-chairperson of the Labour Court stating that—

(a) a person named in the document was, by a notice under section 39(17) of the Redundancy Payments Act 1967 as applied to this Act by section 29 (7), required to attend before the Labour Court on a day and at a time and place specified in the document, to give evidence or produce a document,

(b) a sitting of the Labour Court was held on that day and at that time and place, and

(c) the person did not attend before the Labour Court in pursuance of the notice or, as the case may be, having so attended, refused to give evidence or refused or failed to produce the document,

shall, in a prosecution of the person under section 39(17) of the Redundancy Payments Act 1967 as applied to this Act by section 29 (7), be evidence of the matters so stated without further proof.