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7 1989

SAFETY, HEALTH AND WELFARE AT WORK ACT, 1989

PART V

Enforcement

Enforcing agencies.

32. —(1) Subject to section 16 (1) (a) and (3), the Minister, with the consent of the Minister for Finance, and after consultation with any Minister of the Government as the Minister considers appropriate, may prescribe persons (including local authorities) to be enforcing agencies (which said person shall be referred to in this Act as “an enforcing agency”) in lieu of the Authority for the enforcement of such provisions of the relevant statutory provisions to such extent as may be prescribed.

(2) It shall be the duty of an enforcing agency to make adequate arrangements for the enforcement of the relevant statutory provisions to the extent that it is by regulations under subsection (1) made responsible for their enforcement and to perform that duty and any other functions conferred on it by any of the relevant statutory provisions in accordance with such guidance as the Authority may give it.

(3) It shall be the duty of every enforcing agency to furnish any reports and information relating to its functions and activities under this Act to the Authority as the Authority may, from time to time, require.

Authorisation of inspectors.

33. —(1) The Authority or an enforcing agency may authorise persons to be inspectors for the purposes of the enforcement of the relevant statutory provisions within its area of responsibility in accordance with section 16 or 32 , as the case may be, and may revoke such authorisations.

(2) An inspector shall be furnished with a certificate of authorisation and shall, if so required, when exercising or seeking to exercise any power conferred on him by any of the relevant statutory provisions, produce his certificate of authorisation or a copy of it duly authenticated by the Authority or the enforcing agency and a form of personal identification.

Powers of inspectors.

34. —(1) An inspector shall have power—

(a) to enter, inspect, examine and search at all times, any place which he has reasonable cause to believe is used as a place of work;

(b) to take with him a member of the Garda Síochána if he has reasonable cause to apprehend any serious obstruction in the execution of his duty;

(c) to take with him any other person authorised by the Authority or the relevant enforcing agency or equipment or materials required for any purpose for which the power of entry is being exercised;

(d) where he has reasonable cause to believe that at or in any place of work an offence under this Act has been or is being committed, to use reasonable force where necessary in order to enter the place of work, provided he is so authorised by a warrant of a Justice of the District Court (which such Justice is hereby authorised to issue upon reasonable grounds being given on oath);

(e) to make such examination and inquiry as may be necessary to ascertain whether the relevant statutory provisions are being complied with;

(f) to require the production of any books, registers, records (whether kept in manual form or otherwise), certificates, notices, documents, maps and plans, required to be kept pursuant to any of the relevant statutory provisions, or any other documents which it is necessary for him to see for the purposes of any examination or inquiry under this Act and to inspect, examine and copy them or require that a copy of them or of any entry therein be provided to him;

(g) to require any person whom he has reasonable cause to believe to be able to give information relevant to any examination or inquiry under this Act, to answer either alone or in the presence of any other person, as he thinks fit, such questions with respect to matters under this Act as he thinks fit to ask and sign a declaration of the truth of the answers given, provided that no one shall be required to answer any question or to give any evidence tending to incriminate himself;

(h) to direct that any place of work or part thereof and anything therein shall be left undisturbed for so long as it is reasonably necessary for the purpose of any examination or inquiry under this Act;

(i) as regards any article or substance he finds at or in a place of work, require the employer or any person he finds at the place of work or any person who appears to him to be in possession of the article or substance, to supply without payment, for test, examination or analysis sufficient samples thereof;

(j) to cause any article or substance found at or in any place of work which appears to him to have caused or to be likely to cause danger to safety or health, to be dismantled or subjected to any process or test (but not so as to damage or destroy it unless this is in the circumstances necessary for the purposes of this Act) and where an inspector proposes to exercise the power conferred by this subsection in the case of an article or substance found at or in any place of work, he shall, if so requested by a person who at the time is present at or in and has responsibilities in relation to that place of work, cause anything which is to be done by virtue of that power to be done in the presence of that person;

(k) in relation to any article or substance found at a place of work in accordance with paragraph (j) to take possession of it and detain it for so long as is necessary for all or any of the following purposes, namely—

(i) to examine or arrange for the examination of it and do to it anything which he has power to do under paragraph (j);

(ii) to ensure that it is not tampered with before the examination of it is completed;

(iii) to ensure that it is available for use as evidence in any proceedings;

(l) to take samples of the atmosphere in any place of work;

(m) to take any measurements or photographs or make any tape, electrical or other recordings which he considers necessary for the purposes of any inspection, examination or inquiry made by him under this Act;

(n) to require any person to afford him such facilities and assistance within his control or responsibilities as are reasonably necessary to enable him to exercise any of the powers conferred on him under this Act; and

(o) to exercise such other powers as may be necessary for carrying out his functions.

(2) Before exercising the power conferred by subsection (1) (j) in the case of any article or substance, an inspector shall, in so far as it is reasonably practicable to do so, consult such persons as appear to him to be appropriate for the purpose of ascertaining what dangers, if any, there may be in doing anything which he proposes to do under that power.

(3) Where under the power conferred by subsection (1) (k) an inspector takes possession of any article or substance found at or in any place of work, he shall if it is practicable for him to do so, take a sample thereof and give to a responsible person at the place of work a portion of the sample marked in a manner sufficient to identify it.

(4) (a) The Authority may designate in writing any inspector who is a registered medical practitioner as an occupational medical adviser.

(b) It shall be the duty of an occupational medical adviser, on behalf of the Authority, to receive any notice, report or certificate required by any of the relevant statutory provisions to be sent to the Authority by a registered medical practitioner.

(c) An occupational medical adviser may—

(i) invite any person who, in his opinion, either has been or may be exposed in the course of his work to any risk of bodily injury or other danger to his health; and

(ii) for the purpose of comparing with that of other persons the state of health of persons employed in different places of work or specified places of work or in different places in the same place of work, invite any person

to provide biological samples or to be examined medically, or both, at such place as he shall designate, either by him or on his behalf or by or on behalf of such other registered medical practitioner as he shall specify.

Improvement directions and plans.

35. —(1) This section applies to any activities which are being or are likely to be carried on by or under the control of any person, being activities to or in relation to which any of the relevant statutory provisions apply or will, if the activities are so carried on, apply.

(2) If, as regards any activities to which this section applies, an inspector is of the opinion that, as carried on or likely to be carried on by or under the control of the person in question, such activities involve, or are likely to involve a risk to the safety or health of persons, the inspector may serve a direction in writing on that person requesting the submission to him, within a time specified in the direction, for his approval, of an improvement plan specifying the remedial action proposed to be taken to rectify the matters set down in the direction.

(3) Where an improvement plan is submitted in accordance with subsection (2) and an inspector is not satisfied that the plan is adequate he may direct that the plan be revised and resubmitted to him within a time specified in the direction.

Improvement notice.

36. —(1) If an inspector is of the opinion that a person is contravening or has contravened any of the relevant statutory provisions, or has failed on a direction being made to him under section 35 in that behalf to submit or implement an appropriate improvement plan, the inspector may serve on that person a notice in writing signed by him (in this Act referred to as an “improvement notice”) stating that he is of that opinion and the improvement notice shall—

(a) specify the provision or provisions as to which he is of that opinion;

(b) give particulars of the reasons why he is of that opinion;

(c) where applicable, state that the person has failed to submit or implement an improvement plan; and

(d) direct that person to remedy the alleged contraventions by a date specified in the notice, which should not be earlier than the period within which an appeal can be brought under subsection (3).

(2) An improvement notice may include directions as to the measures to be taken to remedy the alleged contraventions set out in the notice.

(3) A person who is aggrieved by an improvement notice may, within the period of fourteen days beginning on the day on which the notice is served on him, appeal to a Justice of the District Court in the District Court District in which the notice was served in the prescribed manner against the notice and in determining the appeal the Justice may—

(a) if he is satisfied that in the circumstances of the case it is reasonable to do so, confirm the notice, with or without modification, or

(b) cancel the notice.

(4) A person who appeals against an improvement notice shall at the same time notify the Authority or the enforcing agency, as appropriate, of the appeal and the grounds for appeal and the Authority or the enforcing agency, as appropriate, shall be entitled to appear, be heard and adduce evidence on the hearing of the appeal.

(5) Where an appeal against an improvement notice is taken, the notice shall take effect on the day next following the day on which the notice is confirmed on appeal or the appeal is withdrawn or the day specified in the notice as that on which it is to come into effect whichever is the later.

(6) Where no appeal is taken against an improvement notice, the notice shall take effect, on the expiration of the period during which such an appeal may be taken or the day specified in the notice as that on which it is to come into effect, whichever is the later.

(7) An inspector may withdraw an improvement notice at any time before the date specified in it under subsection (1) (d) and he may extend or further extend that date at any time when an appeal against the notice is not pending.

Prohibition notice.

37. —(1) This section applies to any activities which are being or are likely to be carried on by or under the control of any person, being activities to or in relation to which any of the relevant statutory provisions apply or will, if the activities are so carried on, apply.

(2) If, as regards any activities to which this section applies, an inspector is of the opinion that, as carried on or are likely to be carried on by or under the control of the person in question, the activities involve or, as the case may be, are likely to involve, a risk of serious personal injury to persons at any place of work, the inspector may serve on that person a notice signed by him (in this Act referred to as “a prohibition notice”).

(3) A prohibition notice shall—

(a) state that the inspector is of the said opinion;

(b) specify the matters which in his opinion give or, as the case may be, are likely to give rise to the said risk;

(c) where in his opinion any of those matters involves or, as the case may be, will involve a contravention of any of the relevant statutory provisions, state that he is of that opinion, specify the provision or provisions as to which he is of that opinion, and give particulars of the reasons why he is of that opinion; and

(d) direct that the activities to which the notice relates shall be carried on neither by or under the control of the person on whom the notice is served nor by or under the control of any other person unless the matters specified in the notice in pursuance of paragraph (b) and any associated contravention of provisions so specified in pursuance of paragraph (c) have been remedied.

(4) A prohibition notice shall take effect—

(a) if the notice so declares immediately the notice is received by the person on whom it is served;

(b) in any other case—

(i) if no appeal is taken against the notice, on the expiration of the period during which such an appeal may be taken or the day specified in the notice as that on which it is to come into effect, whichever is the later; or

(ii) in case such an appeal is taken, on the day next following the day on which the notice is confirmed on appeal or the appeal is withdrawn or the day specified in the notice as that on which it is to come into effect, whichever is the later.

(5) The bringing of an appeal against a prohibition notice which is to take effect in accordance with subsection (4) (a) shall not have the effect of suspending the operation of the notice; provided, however, that the appellant may apply to the Court to have the operation of the notice suspended until the appeal is disposed of and, on such application, the Court may, if it thinks proper to do so, direct that the operation of the notice be suspended until the appeal is disposed of.

(6) (a) A person who is aggrieved by a prohibition notice may, within the period of seven days beginning on the day on which the notice is served on him, appeal to a Justice of the District Court in the District Court District in which the notice was served in the prescribed manner against the notice and in determining the appeal the said Justice may—

(i) if he is satisfied that in the circumstances of the case it is reasonable to do so, confirm the notice, with or without modification; or

(ii) cancel the notice.

(b) Where on the hearing of an appeal under this section a prohibition notice is confirmed, notwithstanding subsection (4) the District Justice by whom the appeal is heard may, on the application of the appellant, suspend the operation of the notice for such period as in the circumstances of the case he considers appropriate.

(7) A person who appeals against a prohibition notice or who applies for a direction suspending the application of the notice under subsection (5) shall at the same time notify the Authority or the enforcing agency, as appropriate, of the appeal or the application and the grounds for the appeal or the application and the Authority or the enforcing agency, as appropriate, shall be entitled to appear, be heard and adduce evidence on the hearing of the appeal or the application.

(8) An inspector may revoke a prohibition notice.

(9) (a) Where a prohibition notice has been served and activities are carried on in contravention of the notice, the High Court may, on the application of an inspector, by order prohibit the continuance of the activities.

(b) An application to the High Court for an order under this subsection shall be by motion and the Court when considering the matter, may make such interim or interlocutory order (if any) as it considers appropriate and the order by which an application under this subsection is determined may contain such terms and conditions (if any) as to the payment of costs as the Court considers appropriate.

Power of officer of customs and excise to detain articles, etc.

38. —For the purpose of facilitating the exercise or performance by the Authority of any of the powers or duties exercisable by it under any of the relevant statutory provisions, an officer of customs and excise, when authorised to do so by the Revenue Commissioners at the request in writing in that behalf by the Authority, may detain any article or substance being imported for so long as is reasonably necessary for an inspector to examine it, but in any event for not any longer than 48 hours from the time when the article or substance in question is detained.

Order of High Court as to use of place of work.

39. —(1) Where the Authority or an enforcing agency considers that the risk to the safety and health of persons is so serious that the use of a place of work or part thereof should be restricted or should be immediately prohibited until specified measures have been taken to reduce the risk to a reasonable level, the Authority or an enforcing agency may apply, ex parte, to the High Court for an order restricting or prohibiting the use of the place of work or part thereof accordingly.

(2) The Court may make such interim or interlocutory order as it considers appropriate.

(3) Any such order shall have effect notwithstanding the terms of any permission given under any other enactment for the use of the place of work or part thereof.

(4) On any application for the revocation or variation of an order under subsection (1), the Authority or an enforcing agency, as appropriate, shall be entitled to be heard.

Indemnification of inspectors, etc.

40. —Where the Authority or an enforcing agency is satisfied that an inspector authorised by it, or any other member of the staff of the Authority, has discharged his duties in relation to the enforcement of the relevant statutory provisions in a bona fide manner, it shall indemnify the inspector, or such member of the staff of the Authority, against all actions or claims howsoever arising in respect of the discharge by him of his duties.

Inquiry into enforcing agency.

41. —(1) If the Authority alleges that any enforcing agency has failed to fulfil any of its functions under any of the relevant statutory provisions, the Authority may, with the consent of the Minister (which said consent shall be given only after consultation with the Minister of the Government who has responsibility for an enforcing agency which allegedly has failed to perform its functions) direct that an investigation be held into the alleged failure to act.

(2) The Authority shall appoint a competent person or persons to hold the investigation and to prepare and submit to it a report stating conclusions on the alleged failure of the enforcing agency to perform its functions.

(3) The Authority may, with the consent of the Minister, cause the whole or any part of a report made by virtue of subsection (2)

(a) to be made available to the enforcing agency in question,

(b) to be made public at such time and in such manner as it considers appropriate.

(4) It shall be the duty of an enforcing agency to co-operate with a person carrying out an inquiry under this section.