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Safety, Health and Welfare at Work Bill 2004 published
On the 24th June 2004 the Bill to amend and update the legislation (dating back to 1989) in the area of health and safety at work was published. When enacted, this legislation will constitute the legal framework for health and safety in the workplace for the foreseeable future.
It is a lengthy and comprehensive Bill which follows on from a review of health and safety legislation that was carried out about two years ago by the Health and Safety Authority. Some of the main provisions of the Bill include the following
On the spot fines
The Bill provides for the imposition of on the spot fines on either employers or employees for breach of the law, subject to the enactment of the relevant Regulations by the Minister.
These Regulations will set out a limited set of clearly defined situations where on the spot fines can be imposed. The fines would range from €100 to €1,000. Failure to pay could result in prosecution.
General duties of employers
The Bill restates the duties of the employer to ensure as far as reasonably practical, the safety, health and welfare of employees. The list of specific duties would include:
On the 24th June 2004 the Bill to amend and update the legislation (dating back to 1989) in the area of health and safety at work was published. When enacted, this legislation will constitute the legal framework for health and safety in the workplace for the foreseeable future.
It is a lengthy and comprehensive Bill which follows on from a review of health and safety legislation that was carried out about two years ago by the Health and Safety Authority. Some of the main provisions of the Bill include the following
On the spot fines
The Bill provides for the imposition of on the spot fines on either employers or employees for breach of the law, subject to the enactment of the relevant Regulations by the Minister.
These Regulations will set out a limited set of clearly defined situations where on the spot fines can be imposed. The fines would range from €100 to €1,000. Failure to pay could result in prosecution.
General duties of employers
The Bill restates the duties of the employer to ensure as far as reasonably practical, the safety, health and welfare of employees. The list of specific duties would include:
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Ensuring that employees are properly instructed and trained, without loss of earnings.
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Ensuring, as far as practicable, that non-employees at the place of work are not put at risk.
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Identify the hazards within the work place in what will be known as a Risk Assessment.
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Persons commissioning, procuring or constructing a place of work must appoint a competent person to ensure that construction is carried out safely and properly without risk to health and safety.
The
Bill proposes that Safety Statements identifying risks and hazards in
the workplace will have to be reviewed annually.
General duties of employees
Employees have the following legal obligations and must;
General duties of employees
Employees have the following legal obligations and must;
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Comply with the relevant health and safety legislation.
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Not be intoxicated at work and if necessary submit to the appropriate test if reasonably required by the employer (subject to the regulation of the Minister).
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Refrain from improper conduct or behaviour.
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Wear protective clothing where necessary.
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Cooperate with the employer and fellow employees.
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Do nothing to place themselves or others at risk.
Designers,
Manufacturers and Importers
The Bill provides that anyone who designs, manufactures or imports products must ensure, so far as is reasonably practicable that they are properly tested and found to be safe and that sufficient information is provided to ensure safe and proper use.
Penalties and Publication of Names
The Bill proposes that minor offences be prosecuted in the District Court. The maximum penalty on conviction would be a fine of €3,000 and/or 6 months imprisonment.
Serious offences would be prosecuted in the Circuit Court with a maximum penalty on conviction of €3 million and/or 2 years imprisonment.
The Bill provides for the publication by the Health and Safety Authority of a list of names on whom fines or other penalties have been imposed by the courts
Liability of Directors and company officers.
Directors, managers or other officers of a company that are found to have consented to or connived in the breach or to have been negligent could be separately prosecuted for the offence under this proposed legislation.
The Bill provides that anyone who designs, manufactures or imports products must ensure, so far as is reasonably practicable that they are properly tested and found to be safe and that sufficient information is provided to ensure safe and proper use.
Penalties and Publication of Names
The Bill proposes that minor offences be prosecuted in the District Court. The maximum penalty on conviction would be a fine of €3,000 and/or 6 months imprisonment.
Serious offences would be prosecuted in the Circuit Court with a maximum penalty on conviction of €3 million and/or 2 years imprisonment.
The Bill provides for the publication by the Health and Safety Authority of a list of names on whom fines or other penalties have been imposed by the courts
Liability of Directors and company officers.
Directors, managers or other officers of a company that are found to have consented to or connived in the breach or to have been negligent could be separately prosecuted for the offence under this proposed legislation.
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further information contact: Thomas Simpson at Email : tsimpson@kilroys.ie or Laurena Hughes at Email : lhughes@kilroys.ie © Kilroys Solicitors 2004 |
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Data
Protection - important guidelines issued by the Data Protection Commissioner
on "Personal Data" and "Relevant Filing Systems"
In our March 04 issue we wrote about the implications for persons making, or organisations responding to access requests for details of Personal Data of a recent decision of the English Court of Appeal in the case of Durant -v- Financial Services Authority.
On the 5th July the Data Protection Commissioner published guidelines notes on his website ("Guidelines") on two very important issues that were at the heart of the Durant case; namely what is meant by "Personal Data" and what constitutes a "Relevant Filing System" in the context of "Manual Data".
The relevant Irish legislation is the Data Protection Acts 1988 - 2003 ("the Acts").
The Acts define "Personal Data" as follows:
"Data relating to a living individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the data controller".
Recommended tests of the Data Protection Commissioner to apply in deciding what data is Personal Data.
The Guideline Notes state that a broad interpretation of the following should be applied in seeking to decide what data is Personal Data:
In our March 04 issue we wrote about the implications for persons making, or organisations responding to access requests for details of Personal Data of a recent decision of the English Court of Appeal in the case of Durant -v- Financial Services Authority.
On the 5th July the Data Protection Commissioner published guidelines notes on his website ("Guidelines") on two very important issues that were at the heart of the Durant case; namely what is meant by "Personal Data" and what constitutes a "Relevant Filing System" in the context of "Manual Data".
The relevant Irish legislation is the Data Protection Acts 1988 - 2003 ("the Acts").
The Acts define "Personal Data" as follows:
"Data relating to a living individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the data controller".
Recommended tests of the Data Protection Commissioner to apply in deciding what data is Personal Data.
The Guideline Notes state that a broad interpretation of the following should be applied in seeking to decide what data is Personal Data:
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Is the information about the individual concerned (Data Subject)?
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Is the Data Subject the focus or the main focus of the data?
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Where does the data fall in a "continuum of relevance" or proximity to that individual?
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Is the data of such a nature that it is required in order for the Data Subject to check that its use does not unlawfully infringe that individual's privacy?
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Is the data different in some respect because of the Data Subject's involvement? In other words is it generic or specific to the Data Subject. If generic then it is not Personal Data.
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The simple fact that the data can be retrieved with reference to the individual's name or identifier does not necessarily constitute such data as that individual's Personal Data.
Some
examples to expand on the Guidelines.
1. Documents authored by an employee in the course of his/her work.
Where the author is not the subject of the documents it is unlikely that the documents would constitute his/her Personal Data. That said, documents authored by an employee relating to; personnel, HR or disciplinary issues are most likely to contain Personal Data.
In our view - in looking at these guidelines - it would be prudent for all employers to regard such data as being potentially the subject of a legitimate access request from the individual employees to whom it relates.
2. E-mails sent or received in the course of the employee's work
In the view of the Data Protection Commissioner only those emails that are personal in nature could constitute Personal Data. Certain emails generated in relation to HR matters could also constitute Personal Data.
3. CCTV Images
1. Documents authored by an employee in the course of his/her work.
Where the author is not the subject of the documents it is unlikely that the documents would constitute his/her Personal Data. That said, documents authored by an employee relating to; personnel, HR or disciplinary issues are most likely to contain Personal Data.
In our view - in looking at these guidelines - it would be prudent for all employers to regard such data as being potentially the subject of a legitimate access request from the individual employees to whom it relates.
2. E-mails sent or received in the course of the employee's work
In the view of the Data Protection Commissioner only those emails that are personal in nature could constitute Personal Data. Certain emails generated in relation to HR matters could also constitute Personal Data.
3. CCTV Images
Information
in the control of the Data Controller that would allow him to identify
an individual on a CCTV image would constitute Personal Data. This information
could be a combination of the time of the recording together with a
record of the individual's transaction made at a particular location
which in turn can, for example be related to that individual's account
through their loyalty card or ATM card.
If the Data Controller does not have the information to link the CCTV image to the individual but, as part of the individual's access request, the Data Controller receives such information from that individual then the images would be regarded as Personal Data if the Data Controller can readily co-relate both sets if information.
Data
Controllers should be mindful that CCTV images that identify other individuals
cannot be disclosed without their consent and in the absence of which
these images must be blanked out when dealing with an access request.
What constitutes Manual Data and what is a Relevant Filing System?
The Acts contain the following definitions;
"Manual Data means information that is recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system."
"Relevant Filing System means any set of information relating to individuals to the extent that, although the information is not processed by means of equipment operating automatically in response to instruction given for that purpose, the set is structured, either by reference to individuals or by reference to criteria relating to individuals, in such a way that specific information relating to a particular individual is readily accessible."
The Guidelines set out a number of recommended tests that should be applied in determining if Manual Data is part of a "Relevant Filing System" within the meaning of the Acts.
What constitutes Manual Data and what is a Relevant Filing System?
The Acts contain the following definitions;
"Manual Data means information that is recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system."
"Relevant Filing System means any set of information relating to individuals to the extent that, although the information is not processed by means of equipment operating automatically in response to instruction given for that purpose, the set is structured, either by reference to individuals or by reference to criteria relating to individuals, in such a way that specific information relating to a particular individual is readily accessible."
The Guidelines set out a number of recommended tests that should be applied in determining if Manual Data is part of a "Relevant Filing System" within the meaning of the Acts.
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The Personal Data must be part of a regular filing system or set maintained by the Data Controller for the purpose of conducting its business. If the organisation concerned maintains different departments in different locations then the person making the access request must specify the subject matter and the specific department and/or location where that individual believes the file or data to be located.
- The set must be structured by reference to individual's. For example if a file is maintained with reference to an individuals name or ID number this would meet the test. If the file is not so identified but contains sub-files with such identification information and the file title indicated that it contains Personal Data then this too would meet the test.
The
data must be readily accessible, so if the files are not required for
day to day operations and are archived and retrieval would involve disproportionate
effort (including retrieval costs) then it could not be said to be readily
accessible. However if the individual making the access request can
identify particular data by file reference or date then on a reasonable
view of the matter it could be said to be readily accessible.
Access to such files must be by reference to specific criteria - so for example the data to be readily accessible cannot be located on miscellaneous files. The search criteria do not have to meet the standards required for computerised files. The more readily accessible the information is the more probable that it will meet the test of being readily accessible.
Conclusions
Employers need to be mindful of this guidance. If information is being circulated within the organisation which relates to an individual employee - especially in the context of HR or disciplinary matters such information or data could constitute that employee's Personal Data.
Employers should also bear this guidance in mind when drafting or reviewing email usage policies to ensure that these policies properly reflect the rights of employees to their privacy in respect of personal emails.
These Guidelines should also be considered in the preparation or review of any policies or procedures dealing with access requests.
Access to such files must be by reference to specific criteria - so for example the data to be readily accessible cannot be located on miscellaneous files. The search criteria do not have to meet the standards required for computerised files. The more readily accessible the information is the more probable that it will meet the test of being readily accessible.
Conclusions
Employers need to be mindful of this guidance. If information is being circulated within the organisation which relates to an individual employee - especially in the context of HR or disciplinary matters such information or data could constitute that employee's Personal Data.
Employers should also bear this guidance in mind when drafting or reviewing email usage policies to ensure that these policies properly reflect the rights of employees to their privacy in respect of personal emails.
These Guidelines should also be considered in the preparation or review of any policies or procedures dealing with access requests.
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further information contact: Patrick Ryan at Email : pryan@kilroys.ie © Kilroys Solicitors 2004 |
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Public
Procurement - EU Commission requests Ireland to review procedures for
unsuccessful tenderers.
The EU Commission recently decided to issue Ireland with a reasoned opinion for the failure by Ireland to fully comply with the requirements of Directive 89/665/EEC (Remedies Directive) on public procurement.
The Remedies Directive obliges each member state to ensure that effective remedies and means of enforcement are made available to suppliers, contractors and service providers in the Courts of the member states where these suppliers, contractors and service providers believe that they have been harmed as a consequence of a breach of the public procurement rules.
Under the existing legislation in Ireland proceedings alleging a breach of the EU Procurement Rules must be brought in the High Court. Available remedies include;
The EU Commission recently decided to issue Ireland with a reasoned opinion for the failure by Ireland to fully comply with the requirements of Directive 89/665/EEC (Remedies Directive) on public procurement.
The Remedies Directive obliges each member state to ensure that effective remedies and means of enforcement are made available to suppliers, contractors and service providers in the Courts of the member states where these suppliers, contractors and service providers believe that they have been harmed as a consequence of a breach of the public procurement rules.
Under the existing legislation in Ireland proceedings alleging a breach of the EU Procurement Rules must be brought in the High Court. Available remedies include;
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Interim Orders (Injunctions)
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Set Aside Orders
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Awards in damages
In
addition to these remedies, aggrieved parties may also bring an application
before the High Court, seeking judicial review of the decisions complained
of, which must be brought within tight timeframes.
It is the Commission's view that current Irish legislation does not fully comply with the requirement to establish review procedures permitting a decision to award a public contract to be suspended or put to one side at a point in time when the infringement complained of can still be rectified.
It is the Commission's view that current Irish legislation does not fully comply with the requirement to establish review procedures permitting a decision to award a public contract to be suspended or put to one side at a point in time when the infringement complained of can still be rectified.
The
European Court of Justice has stipulated that member states were required
to set up such review procedures. The object of this requirement is
that aggrieved tenderers should be allowed to seek to have a contracting
authorities decision suspended by way of interim measures and set aside
notwithstanding that it could maintain a claim in damages once the contract
complained of had been awarded.
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further information contact: Patrick Ryan at Email : pryan@kilroys.ie or Anthony Layng at Email : alayng@kilroys.ie © Kilroys Solicitors 2004 |
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