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10 2005

Safety, Health and Welfare at Work Act 2005

PART 5

The Authority

Chapter 1

The Authority

Continuance in being of Authority.

32. —(1) Notwithstanding the repeal of the Act of 1989 by section 4

(a) the National Authority for Occupational Safety and Health shall continue in being and shall from the commencement of this Act be known as the Health and Safety Authority (and in this Act referred to as the “Authority”), and

(b) anything commenced but not completed before the commencement of that section by the Authority may be carried on and completed by it after such commencement as if that Act had not been repealed.

(2) Where, immediately before the commencement of section 4 , any legal proceedings are pending to which the National Authority for Occupational Safety and Health is a party, the name of the Authority shall be substituted in the proceedings for that of the National Authority for Occupational Safety and Health and the proceedings shall not abate by reason of such substitution.

(3) The Authority shall be a body corporate with perpetual succession and an official seal and with power—

(a) to sue and be sued in its corporate name, and

(b) with the consent of the Minister and the Minister for Finance, to acquire, hold and dispose of land or an interest in land, and to acquire, hold and dispose of any other property.

(4) Schedule 5 applies to the Authority.

Minister may prescribe persons to perform certain functions.

33. —(1) Subject to section 34 , the Minister, with the consent of the Minister for Finance, and after consultation with any other Minister of the Government that the Minister considers appropriate, may prescribe persons to perform such functions in lieu of the Authority in respect of the implementation of any of the relevant statutory provisions, and to the extent as may be prescribed.

(2) A person prescribed under this section shall, in accordance with any guidelines given to the person by the Authority—

(a) make adequate arrangements for the performance of functions to the extent prescribed under subsection (1),

(b) perform any other functions conferred on the person by any of the relevant statutory provisions, and

(c) furnish to the Authority an annual report in accordance with subsection (3) and such other reports and information relating to his or her functions and activities under this Act, or as prescribed, as the Authority may from time to time require.

(3) As soon as practicable but in any case not later than 2 months after the end of each year, a person prescribed under this section shall prepare and submit a report (in this section referred to as the “annual report”) to the appropriate Minister referred to in subsection (1) and to the Authority.

(4) The annual report shall be in the form that the Authority may direct and shall include—

(a) information on the performance of the person concerned of his or her functions and activities under this Act or as prescribed, and

(b) any other information that the person considers appropriate or as the Minister may require.

Functions of Authority.

34. —(1) The general functions of the Authority are—

(a) to promote, encourage and foster the prevention of accidents, dangerous occurrences and personal injury at work in accordance with the relevant statutory provisions,

(b) to promote, encourage, foster and provide education and training in the safety, health and welfare of persons at work,

(c) to encourage and foster measures promoting the safety, health and welfare of persons at work,

(d) subject to subsection (2) and section 33 , to make adequate arrangements for the enforcement of the relevant statutory provisions,

(e) to monitor, evaluate and make recommendations to the Minister regarding implementation of and compliance with—

(i) the relevant statutory provisions, and

(ii) best practice relating to safety, health and welfare at work, and the review and maintenance of relevant records by employers,

(f) to promote, encourage and foster co-operation with and between persons or bodies of persons that represent employees and employers and any other persons or bodies of persons, as appropriate, as regards the prevention of risks to safety, health and welfare at work in accordance with the relevant statutory provisions,

(g) to make any arrangements that it considers appropriate for providing information and advice on matters relating to safety, health and welfare at work,

(h) to make any arrangements that it considers appropriate to conduct, commission, promote, support and evaluate research, surveys and studies on matters relating to the functions of the Authority and for this purpose—

(i) to foster and promote contacts and the exchange of information with other persons or bodies of persons involved in safety, health and welfare at work in and outside the State, and

(ii) as it considers appropriate, to publish in the form and manner that the Authority thinks fit, results arising out of such research, studies and surveys,

(i) in accordance with section 43 , to prepare and adopt a strategy statement and to monitor its implementation,

(j) in accordance with section 44 , to prepare and adopt a work programme,

(k) to comply with any directions in writing, whether general or particular, relating to its functions, that the Minister may from time to time give to the Authority,

(l) to give to the Minister any information relating to the performance of its functions that the Minister may from time to time require, and

(m) to perform any additional functions conferred on the Authority by order under section 35 .

(2) The Authority, subject to the approval of the Minister given with the consent of the Minister for Finance, may make agreements with—

(a) any Minister of the Government, or other person, for that Minister or person to perform on behalf of the Authority (with or without payment) any of its functions, or

(b) make agreements with any Minister of the Government for the Authority to perform on behalf of that Minister (with or without payment) any functions that may appropriately be performed by the Authority in connection with its functions under this Act.

(3) The Authority shall have all such powers as are necessary or expedient for the performance of its functions.

(4) The Authority may perform any of its functions through or by the Chief Executive or any other member of staff of the Authority duly authorised by the Authority to act in that behalf.

Conferral of additional functions on Authority.

35. —(1) The Minister may, with the consent of the Minister for Finance and after consultation with the Authority and any other Minister of the Government that he or she considers appropriate, by order—

(a) confer on the Authority any additional functions connected with the functions for the time being of the Authority that the Minister considers appropriate, subject to the conditions (if any) that may be specified in the order, and

(b) make such provision as he or she considers necessary or expedient in relation to matters ancillary to or arising out of the conferral of those additional functions.

(2) (a) The Minister may by order amend or revoke an order under this section (including an order under this subsection).

(b) An order under this subsection shall be made in the like manner, and subject to the same consent and consultations (if any) as the order that it is amending or revoking.

Establishment of subsidiaries.

36. —(1) The Authority may, without prejudice to its general responsibilities under this Act, perform any of its functions (other than those set out in section 34 (1)(d)), provide any of its services or carry on any of its activities through a subsidiary (within the meaning of the Companies Acts 1963 to 2003) which is wholly owned by the Authority and, accordingly, the Authority may, with the consent of the Minister and the Minister for Finance, for the purpose of such performance, provision or carrying on, form and register such a subsidiary.

(2) The memorandum and articles of association of a subsidiary referred to in this section shall be in the form that may be determined by the Authority with the consent of the Minister and the Minister for Finance.

(3) (a) The Minister may give to the Authority such directions in writing as he or she considers appropriate in relation to any policy, programme or activity of a subsidiary and the body concerned shall comply or, as may be appropriate, secure compliance with that direction.

(b) A direction under paragraph (a) shall not apply to any particular undertaking or person (other than a subsidiary).

(4) A direction under subsection (3) in relation to the disposal of any assets or profits of a subsidiary shall not be given without the consent of the Minister for Finance.

Membership of Authority.

37. —(1) The Authority shall consist of a chairperson and 11 ordinary members who shall be appointed by the Minister, who shall comprise the Board of the Authority.

(2) The ordinary members of the Authority shall be—

(a) 3 persons nominated by such organisations representative of employees as the Minister considers appropriate,

(b) 3 persons nominated by such organisations representative of employers as the Minister considers appropriate,

(c) 5 persons as the Minister considers appropriate which shall include one person from the Department under whose auspices the Authority operates.

(3) The Minister shall, for the purposes of paragraph 13(b) of Schedule 5, designate one of the ordinary members of the Authority to be deputy chairperson of the Authority.

(4) Notwithstanding the repeal of the Act of 1989 by section 4 , a person who is a member of the Authority immediately before the commencement of that section shall continue in office as such a member for the remainder of the term of office for which he or she was appointed, unless he or she dies or resigns from office or otherwise ceases to hold office in accordance with Schedule 5.

Advisory committees.

38. —(1) The Authority may from time to time establish advisory committees to advise it in relation to any of its functions and may determine the membership, term of office and terms of reference and regulate the procedure of any such committee.

(2) Where the Authority has appointed an advisory committee, it shall appoint one of the members of the committee as chairperson of that committee and another as deputy chairperson who shall act in the absence of the chairperson.

(3) The members of an advisory committee established under this section shall be paid by the Authority such allowances for expenses incurred by them as the Minister, with the consent of the Minister for Finance, may determine.

(4) Notwithstanding the repeal of the Act of 1989 by section 4 , a person who is a member of an advisory committee immediately before the commencement of that section shall continue in office as such a member for the remainder of the term of office for which he or she was appointed, unless he or she dies or resigns from office or otherwise ceases to hold office.

Chief Executive.

39. —(1) There shall be a chief executive officer of the Authority who shall be known and is referred to in this Act as the “Chief Executive”.

(2) The Chief Executive shall be appointed and may be removed from office in accordance with the terms and conditions of his or her appointment by the Authority with the consent of the Minister.

(3) The Authority, with the consent of the Minister and the Minister for Finance, may appoint one or more assistants to the Chief Executive who shall be known and is referred to in this Act as the “Assistant Chief Executive”.

(4) The Chief Executive shall carry on, manage and control generally the administration and business of the Authority and perform any other functions that may be conferred on him or her by this Act or as may be determined by the Authority.

(5) The Chief Executive shall—

(a) prepare and submit to the Authority a draft strategy statement in accordance with section 43 and a draft work programme in accordance with section 44 ,

(b) provide annual and other progress reports to the Authority on the implementation of the strategy statement at such intervals as the Authority may from time to time direct,

(c) provide advice to the Authority with respect to any matter within, affecting or connected with the functions of the Authority,

(d) provide to the Authority any information, including financial information, relating to the performance of his or her functions as the Authority may from time to time require, and

(e) manage all matters relating to appointments, performance, discipline and dismissals of staff below the position of Assistant Chief Executive.

(6) Notwithstanding the repeal of the Act of 1989 by section 4 , the Chief Executive of the Authority holding office immediately before the commencement of this Act shall continue in office as Chief Executive for the remainder of the term of office for which he or she was appointed, unless he or she dies or resigns from office or otherwise ceases to hold office.

(7) Schedule 6 applies to the Chief Executive.

Consultants and advisers.

40. —(1) The Authority may, from time to time, engage consultants or advisers that it considers necessary or expedient for the performance by it of its functions.

(2) Any fees payable by the Authority to a consultant or adviser engaged under this section shall be paid by it out of moneys at its disposal and it shall have regard to guidelines issued from time to time by the Minister or the Minister for Finance.

(3) The Authority shall comply with any directions with regard to consultants or advisers engaged under this section that the Minister may give to it with the consent of the Minister for Finance.

Disclosure of certain interests by members of Authority.

41. —(1) Where at a meeting of the Authority any of the following matters arise, namely—

(a) an arrangement to which the Authority is a party or a proposed such arrangement, or

(b) a contract or other agreement with the Authority or a proposed such contract or other agreement,

then, any member of the Authority present at the meeting who has a material interest in the matter, otherwise than in his or her capacity as such a member, shall—

(i) at the meeting, in advance of any consideration of the matter, disclose to the Authority the fact of the interest and the nature of the interest,

(ii) neither influence nor seek to influence a decision relating to the matter,

(iii) absent himself or herself from any meeting or that part of the meeting during which the matter is discussed,

(iv) take no part in any deliberation of the Authority relating to the matter, and

(v) not vote on a decision relating to the matter.

(2) Where a member discloses a material interest in a matter under this section—

(a) the disclosure shall be recorded in the minutes of the meeting, and

(b) for so long as the matter is being dealt with by the meeting, the member shall not be counted in the quorum for the meeting unless the Authority otherwise determines.

(3) Where, at a meeting of the Authority, a question arises as to whether or not a course of conduct, if pursued by a member of the Authority, would be a failure by the member to comply with the requirements of subsection (1)

(a) the question may, subject to subsection (4), be determined by the chairperson of the meeting, whose decision shall be final, and

(b) where the question is so determined, particulars of the determination shall be recorded in the minutes of the meeting.

(4) Where at a meeting of the Authority, the chairperson of the meeting is the member in respect of which a question to which subsection (3) applies is to be determined, then the other members of the Authority attending the meeting shall choose one of their number to be chairperson of the meeting for the purpose of determining the question concerned.

(5) If satisfied that a member of the Authority has contravened subsection (1), the Minister may, if he or she thinks fit, remove that member from office or take any other action that the Minister considers appropriate.

(6) A person who is removed from office under subsection (5) is disqualified from membership of the Authority.

Disclosure of certain interests by members of staff of Authority.

42. —(1) Where a member of the staff (including the Chief Executive) of the Authority or a consultant, adviser or other person engaged by the Authority has a material interest, otherwise than in his or her capacity as such a member or as such a consultant, adviser or other person engaged by the Authority, in any contract, agreement or arrangement, or proposed contract, agreement or arrangement, to which the Authority is a party, that person shall—

(a) disclose to the Authority his or her interest and the nature of the interest in advance of any consideration of the matter,

(b) neither influence nor seek to influence a decision relating to the matter nor make any recommendation in relation to the contract, agreement or arrangement, and

(c) take no part in the negotiation of the contract, agreement or arrangement or in any deliberation by the Authority or staff of the Authority relating to the matter.

(2) Subsection (1) does not apply to a person as regards a contract or proposed contract of employment of that person as a member of the staff of the Authority.

(3) Where a person contravenes this section the Authority may decide on the appropriate action to be taken including alterations to the person's terms and conditions of employment or contract for services or termination of the person's contract of employment or for services.

Strategy statement.

43. —(1) At the times set out in subsection (2)(f), the Authority shall prepare and submit to the Minister for his or her approval, with or without amendment, a strategy statement for the following 3 year period.

(2) A strategy statement shall—

(a) specify the key objectives, outputs and related strategies (including the use of resources) of the Authority,

(b) have regard to the need to ensure the most beneficial, effective and efficient use of the Authority's resources,

(c) except for the first strategy statement, include a review of the outcomes and effectiveness of the preceding strategy statement,

(d) specify the manner in which the Authority proposes to assess its performance in respect of the objectives referred to in paragraph (a), taking account of relevant performance indicators (financial and non-financial),

(e) be prepared in the form and manner that the Minister may from time to time direct,

(f) be prepared and submitted to the Minister not later than—

(i) in the case of the first strategy statement, 4 months after the coming into operation of section 32 , and

(ii) in the case of each subsequent strategy statement, the third anniversary of the date of submission of the preceding strategy statement,

and

(g) include any other matters that the Minister may from time to time direct.

(3) When preparing the strategy statement, the Authority may consult such persons or bodies of persons that it considers appropriate.

(4) A strategy statement is deemed to be adopted when it is approved by the Minister.

(5) As soon as practicable after a strategy statement has been approved, the Minister shall cause a copy of the strategy statement to be laid before each House of the Oireachtas and the strategy statement shall be published in the form and manner that the Authority considers appropriate.

Work programme of Authority.

44. —(1) The Authority shall prepare and submit to the Minister for his or her approval with or without amendment, at least 2 months before the commencement of each year, a work programme relating to the discharge of its functions, including—

(a) having regard to the strategy statement, the objectives of the Authority for that year and its strategy for achieving those objectives,

(b) the priorities of the Authority for that year, having regard to those objectives and its available resources, and

(c) any other matters that the Minister may from time to time specify when issuing directions or guidelines under subsection (2).

(2) The Minister may, from time to time, issue directions or guidelines to the Authority concerning the preparation of the work programme and the Authority shall comply with those directions and prepare the work programme in accordance with those guidelines.

(3) A work programme is deemed to be adopted when it is approved by the Minister.

Grants to Authority.

45. —(1) In each year there may be paid to the Authority out of moneys provided by the Oireachtas a grant or grants of such amount or amounts as the Minister, with the consent of the Minister for Finance, determines for the purposes of expenditure by the Authority in performing its functions.

(2) The Authority may with the consent of the Minister and the Minister for Finance invest money in such manner as it thinks fit.

(3) The Authority may, subject to sections 46 and 47, with the prior consent of the Minister and the Minister for Finance, seek and accept moneys from any source and subject to any conditions that the Minister may approve of, from time to time.

Power to borrow.

46. —The Authority may, for the purpose of providing for current or capital expenditure, from time to time, borrow money (whether on the security of the assets of the Authority or otherwise), including money in a currency other than the currency of the State, subject to the consent of the Minister and the Minister for Finance and to the conditions they may determine.

Fees for services, etc.

47. —(1) Subject to the approval of the Minister and the Minister for Finance, the Authority may—

(a) determine the amount of such fees as it considers appropriate in consideration of—

(i) the performance by the Authority of its functions,

(ii) the provision by it of services (other than a service consisting of the provision of advice to the Minister or another Minister of the Government), and

(iii) the carrying on by it of activities,

(b) provide for the payment of different fees or for the exemption from the payment of fees or for the waiver, remission or refund (in whole or in part) of fees in different circumstances or classes of circumstances or for different cases or classes of cases,

(c) sell, for such prices as it considers appropriate, anything produced, published, approved or developed by, or in co-operation with, the Authority, and

(d) enter into contracts upon such terms and conditions as it considers appropriate (including terms and conditions relating to payments to the Authority) for the further development and commercial exploitation of anything produced, published or developed by the Authority,

and shall record receipts from such fees, sales or payments as income.

(2) The Authority shall make available on request, free of charge, details of fees determined under this section.

(3) Fees, prices and payments referred to in subsection (1) in respect of functions performed, services provided, activities carried on or things sold, shall not, save with the prior approval of the Minister, be less than the cost of the performance of the function, the provision of the service, the carrying on of the activity or the production, publication or development of the thing, as the case may be.

(4) The Authority may recover any amount due and owing to it under subsection (1) from the person by whom it is payable as a simple contract debt in any court of competent jurisdiction.

(5) The Public Offices Fees Act 1879 does not apply to fees charged in accordance with this section.

Accounts and audits.

48. —(1) The Authority shall keep in such form as may be approved of by the Minister, with the consent of the Minister for Finance, and in respect of each year all proper and usual accounts or other records, including an income and expenditure account, a cash flow statement and a balance sheet, of—

(a) all income received and expenditure by the Authority in performing its functions under this Act,

(b) the sources of the income and the subject matter of the expenditure, and

(c) the property, assets and liabilities of the Authority.

(2) Accounts kept in pursuance of this section shall be submitted not later than 3 months after the end of the year to which they relate by the Authority to the Comptroller and Auditor General for audit and, after the audit—

(a) a copy of the accounts, statement and balance sheet and of any other accounts kept under this section as the Minister, after consultation with the Minister for Finance, may direct, and

(b) a copy of the report of the Comptroller and Auditor General on the accounts,

shall, within one month of receipt by the Authority of the report referred to in paragraph (b), be presented to the Minister.

(3) The Minister shall cause a copy of the accounts and the auditor's report referred to in subsection (2) to be laid before each House of the Oireachtas.

Attendance before Committee of Public Accounts.

49. —(1) The Chief Executive shall, whenever required in writing to do so by the Committee of Dáil Éireann established under the Standing Orders of Dáil Éireann to examine and report to Dáil Éireann on the appropriation accounts and reports of the Comptroller and Auditor General, give evidence to that Committee on—

(a) the regularity and propriety of the transactions recorded or required to be recorded in any book or other record of account subject to audit by the Comptroller and Auditor General that the Authority is required to prepare under this Act,

(b) the economy and efficiency of the Authority in the use of its resources,

(c) the systems, procedures and practices employed by the Authority for the purpose of evaluating the effectiveness of its operations, and

(d) any matter affecting the Authority referred to in a special report of the Comptroller and Auditor General under section 11(2) of the Comptroller and Auditor General (Amendment) Act 1993 or in any other report of the Comptroller and Auditor General (in so far as it relates to a matter specified in paragraph (a), (b) or (c)) that is laid before Dáil Éireann.

(2) In the performance of his or her duties under this section and section 50 , the Chief Executive shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such a policy.

(3) For the purposes of sections 46, 47, 48 and this section, “Authority” shall include any subsidiary or subsidiaries of the Authority.

Attendance before other committees of Houses of the Oireachtas.

50. —(1) In this section “Committee” means a Committee appointed by either House of the Oireachtas or jointly by both Houses of the Oireachtas, other than—

(a) the Committee referred to in section 49 ,

(b) the Committee on Members' Interests of Dáil Éireann, or

(c) the Committee on Members' Interests of Seanad Éireann,

or a subcommittee of such a Committee.

(2) Subject to subsection (3), the Chief Executive shall, at the request in writing of a Committee, attend before it to account for the general administration of the Authority as may be required by the Committee.

(3) The Chief Executive shall not be required to account to a Committee for any matter which is or has been or may at a future time be the subject of proceedings before a court or tribunal in the State.

(4) Where the Chief Executive is of the opinion that a matter in respect of which the Chief Executive is requested to account to a Committee is a matter to which subsection (3) applies, he or she shall inform the Committee of that opinion and the reasons for the opinion and, unless the information is conveyed to the Committee at a time when the Chief Executive is before it, the information shall be so conveyed in writing.

(5) Where the Chief Executive has informed a Committee of his or her opinion in accordance with subsection (4) and the Committee does not withdraw the request referred to in subsection (2) in so far as it relates to a matter the subject of that opinion—

(a) the Chief Executive may, not later than 21 days after being informed by the Committee of its decision not to do so, apply to the High Court in a summary manner for determination of the question whether the matter is one to which subsection (3) applies, or

(b) the chairperson of the Committee may, on behalf of the Committee, make such an application,

and the High Court shall determine the matter.

(6) Pending the determination of an application under subsection (5), the Chief Executive shall not attend before the Committee to account for the matter the subject of the application.

(7) If the High Court determines that the matter concerned is one to which subsection (3) applies, the Committee shall withdraw the request referred to in subsection (2), but if the High Court determines that subsection (3) does not apply, the Chief Executive shall attend before the Committee to account for the matter.

Reports and information to the Minister.

51. —(1) As soon as practicable, but in any case not later than 3 months after the end of each year, the Authority shall prepare and submit a report (in this section referred to as the “annual report”) to the Minister and the Minister shall cause copies of the annual report to be laid before each House of the Oireachtas.

(2) The annual report shall be in the form that the Minister may direct and shall include—

(a) information on the performance of the Authority's functions during the year to which the report relates having regard to the strategy statement and work programme of the Authority,

(b) information on the performance of any agreement under section 34 (2),

(c) information in relation to any annual report furnished to the Authority under section 33 (3), and

(d) any other information that the Authority considers appropriate or that the Minister may require.

(3) The Authority—

(a) may, as it considers appropriate, make any other reports to the Minister relating to its functions, and

(b) shall publish its annual report.