Safety, Health and Welfare at Work Act 2005

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Interpretation.

2.—(1) In this Act, unless the context otherwise requires—

“accident” means an accident arising out of or in the course of employment which, in the case of a person carrying out work, results in personal injury;

“Act of 1989” means the Safety, Health and Welfare at Work Act 1989 ;

“advisory committee” means an advisory committee established under section 38 ;

“approved” means approved in writing for the time being by the Authority or conforming with a specification in writing by the Authority;

“article” means—

(a) any plant, machine, machinery, appliance, apparatus, tool or any other work equipment for use or operation (whether exclusively or not) by persons at work,

(b) any article designed for use as a component in, part of or to control any such plant, machine, machinery, appliance, apparatus, work equipment, tool or any other work equipment, and

(c) any other product used by persons at work;

“associated statutory provisions” means the provisions of the Acts specified in Schedule 1 and any statutory instruments made under those Acts for the time being in force;

“Authority” means the Health and Safety Authority;

“cash flow statement” means, in relation to a year, an account showing the derivation of all moneys received by the Authority during that year and the purposes to which they were applied;

“code of practice” means a code of practice prepared and published or, as the case may be, approved of, by the Authority in accordance with section 60 ;

“competent person” shall be read in accordance with subsection (2);

“confidential information” includes—

(a) information that is expressed by the Authority or an advisory committee, as the case may be, to be confidential either as regards particular information or as regards information of a particular class or description, and

(b) proposals of a commercial nature or tenders submitted to the Authority by contractors, consultants or any other person;

“construction work” means the carrying out of any building, civil engineering or engineering construction work, as may be prescribed;

“contract of employment” means a contract of employment or service or apprenticeship, whether the contract is express or implied and, if express, whether it is oral or in writing;

“dangerous occurrence” means an occurrence arising from work activities in a place of work that causes or results in—

(a) the collapse, overturning, failure, explosion, bursting, electrical short circuit discharge or overload, or malfunction of any work equipment,

(b) the collapse or partial collapse of any building or structure under construction or in use as a place of work,

(c) the uncontrolled or accidental release, the escape or the ignition of any substance,

(d) a fire involving any substance, or

(e) any unintentional ignition or explosion of explosives,

as may be prescribed;

“director” includes a person in accordance with whose directions or instructions the directors of the undertaking concerned are accustomed to act but does not include such a person if the directors are accustomed to so act by reason only that they do so on advice given by the person in a professional capacity;

“employee” means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and includes a fixed-term employee and a temporary employee and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer;

“employer”, in relation to an employee—

(a) means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment,

(b) includes a person (other than an employee of that person) under whose control and direction an employee works, and

(c) includes where appropriate, the successor of the employer or an associated employer of the employer;

“enactment” includes any instrument made under an enactment.

“existing enactments” means—

(a) the enactments specified in Part 1 of Schedule 2 and any instruments made under those enactments for the time being in force, and

(b) the regulations made under the European Communities Act 1972 for the time being in force specified in Part 2 of Schedule 2 ;

“fixed-term employee” means an employee whose employment is governed by a contract of employment for a fixed-term or for a specified purpose, being a purpose of a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment;

“health surveillance” means the periodic review, for the purpose of protecting health and preventing occupationally related disease, of the health of employees, so that any adverse variations in their health that may be related to working conditions are identified as early as possible;

“improvement notice” means a notice served under section 66 ;

“improvement plan” means a plan required to be submitted under section 65 ;

“inspector” means a person authorised under section 62 by the Authority or by a person prescribed under section 33 ;

“intoxicant” includes alcohol and drugs and any combination of drugs or of drugs and alcohol;

“joint safety and health agreement” shall be read in accordance with section 24 ;

“material interest” has the meaning assigned by section 2 (3) of the Ethics in Public Office Act 1995 ;

“micro-organism” includes any microscopic biological entity which is capable of replication;

“Minister” means the Minister for Enterprise, Trade and Employment;

“penalisation” has the meaning assigned to it by section 27 and cognate words shall be read accordingly;

“personal injury” includes—

(a) any injury, disease, disability, occupational illness or any impairment of physical or mental condition, or

(b) any death,

that is attributable to work;

“place of work” includes any, or any part of any, place (whether or not within or forming part of a building or structure), land or other location at, in, upon or near which, work is carried on whether occasionally or otherwise and in particular includes—

(a) in relation to an extractive industry including exploration activity, the whole area intended to house workstations to which employees have access for the purpose of their work relating to the immediate and ancillary activities and installations of, as appropriate—

(i) the surface or, as the case may be, underground extractive industry, including overburden dumps and other tips and any accommodation that is provided and, in the case of the underground extractive industry, any working area,

(ii) the extractive industry through drilling onshore including any accommodation that is provided, and

(iii) the extractive industry through drilling offshore, including any accommodation that is provided,

(b) a tent, trailer, temporary structure or movable structure, and

(c) a vehicle, vessel or aircraft;

“prescribed” means prescribed—

(a) by regulations made by the Minister under this Act (other than in the case of sections 66 (7), 67 (7) and 72 (3), and

(b) in the case of sections 66 (7), 67 (7) and 72 (3) by rules made by the Minister for Justice, Equality and Law Reform in consultation with the Minister,

and cognate words shall be read accordingly;

“prohibition notice” means a notice served under section 67 ;

“reasonably practicable” has the meaning assigned by subsection (6);

“recognised trade unions and staff associations” means trade unions and staff associations recognised by the Authority for the purposes of negotiations concerned with the remuneration, conditions of employment or working conditions of its employees;

“record” includes any memorandum, book, report, statement, register, plan, chart, map, drawing, specification, diagram, pictorial or graphic work or other document, any photograph, film or recording (whether of sound or images or both), any form in which data (within the meaning of the Data Protection Acts 1988 and 2003) are held, any form (including machine-readable form) or thing in which information is held or stored manually, mechanically or electronically, and anything that is a part or copy, in any form, of any of, or any combination of, the foregoing;

“registered medical practitioner” means a person whose name is entered in the General Register of Medical Practitioners;

“relevant statutory provisions” means existing enactments and this Act and any instrument made under this Act for the time being in force;

“risk assessment” shall be read in accordance with section 19 ;

“safety representative” means a person selected and appointed under section 25 as a safety representative;

“safety statement” shall be read in accordance with section 20 ;

“self-employed person” means a person who works for profit or gain otherwise than under a contract of employment, whether or not the person employs other persons;

“share fisherman” has the meaning assigned by subsection (3)(c);

“special report” means a report made under section 70 ;

“strategy statement” means the strategy statement of the Authority prepared and adopted under section 43 ;

“substance” includes any natural or artificial substance, preparation or agent in solid or liquid form or in the form of a gas or vapour or as a micro-organism;

“superannuation benefits” means a pension, gratuity or other allowance payable on resignation, retirement or death;

“temporary employee” means an employee who is assigned by a temporary employment business to work for and under the control of another undertaking availing of the employee's services;

“temporary employment business” means a business, including an employment agency within the meaning of the Employment Agency Act 1971 , which provides temporary employees to other undertakings availing of the services of those employees;

“trade union” means a trade union which is the holder of a negotiation licence under Part II of the Trade Union Act 1941 ;

“undertaking” means a person being an individual, a body corporate or an unincorporated body of persons engaged in the production, supply or distribution of goods or the provision of a service (whether carried on by him or her for profit or not);

“use” includes—

(a) in the case of an article, the manufacture, supply, operation, setting, repair, cleaning and maintenance of the article, and

(b) in the case of a substance, the manufacture, process, operation, storage, treatment, mixing, packing, conveyance, supply, handling, filling or emptying, loading and unloading of the substance;

“vessel” means a waterborne craft of any type, whether self-propelled or not, and includes an air cushion craft and any structure in or on water or on water and attached to land;

“work programme” means the work programme of the Authority prepared and adopted under section 44 .

(2) (a) For the purposes of the relevant statutory provisions, a person is deemed to be a competent person where, having regard to the task he or she is required to perform and taking account of the size or hazards (or both of them) of the undertaking or establishment in which he or she undertakes work, the person possesses sufficient training, experience and knowledge appropriate to the nature of the work to be undertaken.

(b) Account shall be taken, as appropriate, for the purposes of paragraph (a) of the framework of qualifications referred to in the Qualifications (Education and Training) Act 1999 .

(3) In this Act references, in relation to an employer, to an employee shall be read as references to an employee employed by that employer, and for the purposes of this Act—

(a) a person holding office under, or in the service of, the State (including a civil servant within the meaning of the Civil Service Regulation Act 1956 ) is deemed to be an employee employed by the State or Government, as the case may be,

(b) an officer or servant of a harbour authority, the Health Service Executive or a vocational educational committee is deemed to be an employee employed by the harbour authority, the Health Service Executive or vocational education committee, as the case may be, and

(c) a share fisherman is deemed to be an employee of the owner or skipper, as the case may be, of a fishing vessel whom he or she accompanies on board the fishing vessel, as a member of the crew, to engage in fishing where he or she is remunerated by a share in the catch or the profits or the gross earnings of the working of the vessel.

(4) For the purposes of the relevant statutory provisions, where an individual agrees with a person who is carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 , and is acting in the course of that business to do or perform personally any work or service for another person (whether or not the latter person is a party to the contract and whether or not the latter person pays the wages or salary of the individual in respect of the work or service), then the latter person shall be deemed to be the individual's employer for the purposes of the relevant statutory provisions.

(5) For the purposes of the relevant statutory provisions, a person who is training for employment or receiving work experience, other than when present at a course of study in a university, school or college, shall be deemed to be an employee of the person whose undertaking (whether carried on by him or her for profit or not) is for the time being the immediate provider to that person of training or work experience, and “employee”, “employer” and cognate words and expressions shall be read accordingly.

(6) For the purposes of the relevant statutory provisions, “reasonably practicable”, in relation to the duties of an employer, means that an employer has exercised all due care by putting in place the necessary protective and preventive measures, having identified the hazards and assessed the risks to safety and health likely to result in accidents or injury to health at the place of work concerned and where the putting in place of any further measures is grossly disproportionate having regard to the unusual, unforeseeable and exceptional nature of any circumstance or occurrence that may result in an accident at work or injury to health at that place of work.

(7) References in the relevant statutory provisions to a risk assessment or safety statement shall be read as including references to an amended risk assessment or amended safety statement, as the case may be.

(8) A financial year of the Authority shall be a period of 12 months ending on 31 December in any year and for the purposes of sections 45 and 48 the period commencing on the coming into operation of section 45 and ending on the following 31 December is deemed to be a financial year of the Authority.

(9) In this Act—

(a) a reference to a Part, section or Schedule is a reference to a Part or section of, or Schedule to, this Act, unless it is indicated that a reference to some other enactment is intended,

(b) a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that a reference to some other provision is intended,

(c) a reference to any enactment shall be read as a reference to that enactment as amended by or under any other enactment, including this Act,

(d) a reference to a statutory instrument or to Regulations shall be read as a reference to that instrument as amended, adapted or to Regulations extended by any other statutory instrument, and

(e) a reference to the performance of functions includes, with respect to powers and duties, a reference to the exercise of powers and the carrying out of duties.

(10) A word or expression that is used in this Act and is also used in Council Directive 89/391/EEC of 12 June 1989 or Council Directive 91/383/EEC of 25 June 1991 has, unless the contrary intention appears, the same meaning in this Act that it has in those Directives.