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31 2005

Railway Safety Act 2005

PART 9

Intoxicants and Persons Working on Railway Infrastructure

Commencement (Part 9).

84. —This Part comes into operation on such day or days as the Minister may appoint by order either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

Interpretation (Part 9).

85. —In this Part—

“analysis” includes any operation used in determining the presence (if any) of a drug in a specimen of blood or urine, and cognate words shall be construed accordingly;

“analysis body” means a person who, in the opinion of a railway undertaking concerned and the Commission, is competent to carry out an analysis of a sample and is independent of the railway undertaking concerned and of any other railway undertaking;

“authorised person” means a person appointed to be an authorised person under section 95 ;

“code of conduct” means the code of conduct drawn up by a railway undertaking under section 88 (1)(a) or amended under section 88 (10) and accepted by the Commission under section 88 (5);

“drug” includes all drugs whether legally obtained or otherwise;

“railway undertaking” means a railway undertaking to which this Part applies;

“safety critical task” has the meaning assigned to it in Part 10;

“safety critical worker” has the meaning assigned to it in Part 10;

“sample” means the provision of a specimen of blood or urine in accordance with sampling procedures;

“sampling procedures” means procedures established under section 88 (1) (b) or amended under section 88 (10) and accepted by the Commission under section 88 (5).

Application (Part 9).

86. —(1) This Part applies to a railway undertaking (other than a heritage railway) which operates railway infrastructure or operates trains on a railway infrastructure where such infrastructure is used, or intended to be used, wholly or partly for the carriage of members of the public or freight.

(2) This Part does not apply to a railway undertaking which operates railway infrastructure or operates trains on a railway infrastructure, where such infrastructure is used or intended to be used solely for industrial use.

(3) This Part applies to a safety critical worker.

Duties of safety critical workers and railway undertakings.

87. —(1) It is the duty of a safety critical worker and is deemed to be a term of his or her contract of employment or contract of services (whether made before or after the passing of this Act) with a railway undertaking or with a person who has a contract of services with a railway undertaking—

(a) not to perform a safety critical task while being unfit,

(b) not to make himself or herself available to perform a safety critical task by attending at work while being unfit,

(c) not to do anything that is an offence under section 97 , and

(d) to comply with the railway undertaking's code of conduct and sampling procedures.

(2) It is the duty of a railway undertaking to take reasonable steps to ensure that a safety critical worker complies with his or her duties under subsection (1).

(3) In this section, “unfit” has the meaning assigned to it in section 97 .

Codes of conduct, etc., in relation to intoxicants.

88. —(1) Subject to subsection (2), in order to fulfil its duty under section 87 (2), a railway undertaking shall, in consultation with organisations which represent the staff of its undertaking—

(a) draw up a code of conduct for safety critical workers to be observed by each of them while at work in relation to intoxicants,

(b) establish sampling procedures in relation to the provision of samples under section 89 by safety critical workers while at work or following a railway incident, and

(c) provide counselling and other assistance (in this Part referred to as “support services”) to safety critical workers on the request of such workers or in respect of such persons who fail to comply with section 87 (1) in order to assist those persons to comply with that subsection in the future.

(2) Without prejudice to the generality of subsection (1)(a), a code of conduct shall include provisions—

(a) providing for the course of action (including dismissal, termination of contract, suspension, demotion, prohibition on working at the undertaking or performing specified safety critical tasks or mandatory attendance at counselling) to be taken where a safety critical worker—

(i) has failed to comply with his or her duties under section 87 (1),

(ii) has failed, without reasonable excuse, to provide a sample under section 89 or comply with sampling procedures under this section, or

(iii) is convicted of an offence under Chapter 2 of Part 10,

and

(b) providing for procedures relating to appeals under section 90 .

(3) Without prejudice to the generality of subsection (1)(b), sampling procedures shall provide for—

(a) matters relating to the circumstances in which sampling may be undertaken under section 89 ,

(b) the caution to be given to a safety critical worker who is required under section 89 to provide a sample, as to the consequences of failing, without reasonable excuse, to give such sample,

(c) the means of sampling,

(d) the location where a sample may be taken,

(e) analysis of a sample by an analysis body,

(f) privacy in relation to sampling,

(g) procedures for the protection of the integrity of a sample,

(h) division of any specimen of blood and urine into 2 parts and provision of one part to a person being sampled,

(i) a certificate to prove the results of the analysis of a sample and presumption as to the accuracy of the results of the sample so certified, and

(j) grievance procedures in relation to sampling.

(4) A railway undertaking shall, within 6 months of the commencement of this Part or such further period, at the discretion of the Commission, being not more than 12 months from such commencement, submit to the Commission for its acceptance drafts of a code of conduct, sampling procedures and details of support services to be provided.

(5) The Commission shall issue a notification in writing accepting a code of conduct, sampling procedures or details of support services submitted under subsection (4) where the Commission is satisfied that—

(a) it is sufficient to enable the railway undertaking to discharge its duty under section 87 (2), and

(b) the undertaking has adequately consulted with organisations which represent the staff of its undertaking.

(6) Where the Commission is not satisfied with any draft code of conduct, sampling procedures or details of support services submitted to it under subsection (4), the Commission shall notify in writing the railway undertaking of its dissatisfaction and the reasons for the dissatisfaction, and the railway undertaking, on receipt of a notification under this subsection shall, before re-submitting to the Commission, within such period as may be specified to it by the Commission, the code, sampling procedures or details, take the action necessary to address the reasons stated in the notification and shall consult with organisations which represent the staff of its undertaking in relation to the said matters.

(7) On service of a notification from the Commission under subsection (6), a railway undertaking shall, within 6 months of the date of the notification, ensure that the code of conduct and sampling procedures are adopted and implemented and support services are provided.

(8) A railway undertaking shall take reasonable steps to ensure that the code of conduct, sampling procedures and details of support services provided by it and an abstract of this Part are displayed in a prominent place in the undertaking and brought to the attention of safety critical workers.

(9) A railway undertaking shall give a copy of the code of conduct, sampling procedures or details of support services provided by it to a safety critical worker upon the request of that worker.

(10) A railway undertaking may amend a code of conduct drawn up, sampling procedures or details of support services provided by it, in consultation with organisations which represent the staff of its undertaking, and subsections (4) to (9) shall apply to any such amendment or alteration with such modifications as are necessary.

(11) A railway undertaking to which this Part and section 95 apply, shall, within 3 months of the end of each year, make a report to the Commission on the implementation by it of the measures provided for in this Part and Part 10. The report shall contain such particulars as the Commission may direct.

(12) The Commission shall, within 2 months of receipt of a report under subsection (11), publish details of the report, but without giving information of a personal, confidential or prejudicial nature.

(13) The Commission shall, before publishing details of a report in accordance with subsection (12), lay a copy of those details before each House of the Oireachtas.

Sampling for drugs.

89. —(1) An authorised person may require a safety critical worker to provide a sample of blood or urine, in accordance with the sampling procedures of the railway undertaking concerned—

(a) where he or she is of the opinion, or on the request of an inspector who is of the opinion, that a safety critical worker, who is performing a safety critical task or who has made himself or herself available to perform a safety critical task by attending at work, has a drug in his or her body to such an extent that he or she is in breach of his or her duty under section 87 (1),

(b) where a railway incident occurs and he or she is of the opinion, or on the request of an inspector who is of the opinion, that—

(i) the safety critical worker concerned was performing or had performed a safety critical task on the railway infrastructure, or on the train, involved with the incident, or

(ii) the safety critical worker concerned failed to perform a safety critical task expected of him or her, on the railway infrastructure, or on a train, involved with the incident,

or

(c) for the safe operation of the undertaking, at random and in circumstances that are reasonable, where that worker is performing a safety critical task or has made himself or herself available to perform a safety critical task by attending at work.

(2) Only a medical practitioner may take a specimen of blood or be provided with a specimen of urine.

(3) It is the duty of a safety critical worker if a requirement to provide a sample is made of him or her under subsection (1), unless he or she has reasonable excuse, to provide the sample.

(4) While a safety critical worker is at a hospital as a patient, he or she shall not be required to provide a sample unless the medical practitioner in immediate charge of his or her case has been notified by an authorised person of the proposal to make the requirement and—

(a) if the requirement is then made, it shall be for the provision of a sample at the hospital, but

(b) if the medical practitioner objects, on the ground that the requirement would be prejudicial to the proper care and treatment of the patient, the requirement shall not be made.

(5) A sample provided to an authorised person under this section shall be sent by him or her to an analysis body for the purposes of analysing the sample for drugs and the analysis body shall issue a certificate to the authorised person in relation to the results of the analysis.

(6) An analysis body may charge the railway undertaking concerned a fee in respect of any analysis made and certificate issued by it under subsection (5).

(7) The results of any analysis under subsection (5) in respect of a sample taken under this section shall, at the request of the Investigation Unit, be given to it by the railway undertaking for whom it was made for the purposes of an investigation by the Unit under section 58 .

Disciplinary measures.

90. —(1) Where an authorised person makes a complaint to the management of the railway undertaking which appointed him or her that—

(a) a safety critical worker has been convicted of an offence under Chapter 2 of Part 10, or

(b) in his or her opinion, a safety critical worker has—

(i) failed to comply with his or her duty under section 87 (1),

(ii) failed without reasonable excuse to comply with his or her duty to provide a sample under section 89 , or

(iii) contravened subsection (6),

the railway undertaking concerned shall—

(c) in the case of a complaint under paragraph (a), satisfy itself as to the fact of that person's conviction, and if the code of conduct so provides, inquire at an oral disciplinary hearing into the circumstances of that conviction, and

(d) in the case of a complaint under paragraph (b), satisfy itself as to the facts and circumstances of the matter at an oral disciplinary hearing.

(2) Where, in accordance with subsection (1)(c) or (d), a railway undertaking is satisfied that a safety critical worker—

(a) has been convicted of an offence under Chapter 2 of Part 10, or

(b) has—

(i) failed to comply with his or her duty under section 87 (1),

(ii) failed without reasonable excuse, to comply with his or her duty to provide a sample under section 89 , or

(iii) contravened subsection (6),

it shall decide the course of action to be taken (including dismissal, termination of contract, suspension, demotion, prohibition on working at the undertaking or working at safety critical tasks, or mandatory attendance at counselling) in accordance with the code of conduct.

(3) A safety critical worker who is the subject of a disciplinary hearing under this section may represent himself or herself or be-represented by another person at the hearing.

(4) Where a railway undertaking imposes any sanction against a safety critical worker as a result of a hearing under this section, it shall afford the worker an opportunity, at his or her choice, to appeal to it or to such other person or persons nominated by the undertaking against the sanction.

(5) A person nominated under subsection (4) shall be independent of the undertaking and shall not be a member of its staff or connected to it or be a member of the staff of or connected to another railway undertaking.

(6) A safety critical worker shall not take or attempt to take any action with the intention of frustrating disciplinary measures under this section.

Proof of certificate of analysis.

91. —In any disciplinary hearing under section 90 or in any proceedings, a certificate, issued under section 89 (5), purporting to be signed by a person employed or engaged in the analysis of samples provided under section 89 (1) at an analysis body, stating the capacity in which the person is so employed or engaged and stating any one or more of the following, namely—

(a) that the person received the sample sent under section 89 (5) to the analysis body,

(b) that, for such period as is specified in the certificate, the person had in his or her custody the sample so sent,

(c) that the person gave to such other person as is specified in the certificate the sample so sent,

(d) that the person carried out the analysis of the sample, and

(e) the results of the analysis,

shall, unless the contrary is shown be evidence of the matters stated in the certificate.