Patricia King Submission to the Oireachtas Special Committee - Covid 19

19 May 2020

oireachtas patricia king

Oireachtas Special Committee Covid 19 Response - Tuesday, 19 May, 2020


Congress General Secretary Patricia King

I thank the Committee for their invitation to present here this afternoon.

As this pandemic began to emerge globally and within the early weeks, when the first cases of Covid19 were confirmed here in Ireland and Public Health measures were advised, ICTU notified the Government through the Labour, Employer, Economic Forum  (LEEF) of its intention to put forward proposals to ensure the Health and Safety of all workers in all workplaces.

ICTU based its submission on the principle that the Safety, Health and Well Being of every person is paramount, and therefore supersedes all others.  We also took the view that all Public Health advice should be adhered to without exception.

During the course of our interactions within the LEEF process, we advocated that a mandatory National Protocol be developed which would encompass a set of directive actions to which every employer, worker, contractor, customer and client had an absolute duty to strictly adhere to in order to maintain safe workplaces.

We set out a number of key principles which we believed were crucial to the delivery of a mandatory protocol capable of ensuring safe workplaces upon a return to work.

Those principles included:

  • Worker Representation, Training, Negotiated/Agreed Changes to Work Practices
  • Mandatory Compliance with all the listed Health& Safety provisions with no opt outs
  • The assignment of the HSA the responsibility to oversee the implementation of all aspects of the National Protocol including the use of their powers to inspect and order the closure of workplaces where appropriate.

In relation to workplace representation, we submitted that a workplace worker representative infrastructure be put in place across all sectors and in every workplace.  The primary purpose of this measure was to ensure that workers could be confident that their voice would be heard, that the provisions of the Protocol would be strictly adhered to, that such a representative/s could liaise directly with the HSA Inspectorate. This measure was essential given that, outside of SI 146 - which deals with some individual representative Trade Union rights - there are no provision in Irish Law which specify the right of workers to be represented.    Section 25 of the Safety, Health and Welfare Act 2005 sets out the provisions relating to such workplace representatives.   However, it confers no obligation for the appointment of such representatives.  It should also be noted that in the Construction Sector, Statutory Instrument 291 of 2013,Section 23 sub section (b) provides that: the project supervisor for the construction stage shall facilitate, where more than 20 persons are normally employed at any one time on a construction site, at any stage of the project, the appointment of a site safety representative from among the employees of the contractor or contactors undertaking the project in accordance with the procedure outlined in Schedule 6.

The National Protocol now commits to each workplace having such a role.

The inclusion of provisions for induction training for all workers and training of workplace representatives on their role and function, together with specialised training in the proper use of cleaning, storing and disposal of PPE, are in our view critical to the operation of the protocol.

It is agreed within the Protocol terms that any changes to workplace policies or work patterns will be agreed through negotiations with Trades Unions /worker representatives. The protocol is intended to be universal but does not replace existing obligations under current Health and Safety legislation. Neither does it prevent the development of further specific measures in particular sector/industries/companies, provided they reflect the principles of the protocol.

The document outlines in a very detailed way all of the safety measures required to be put in place and implemented.  This virus is very active and can cause serious personal injury  to a worker who may contract it. These measures, therefore, seek to mitigate the risk to workers and are vital to maintaining safe workplaces.  This is not a set of discretionary guidelines but a suite of mandatory directive actions with no exceptions or opt outs.

Chairman, it is not my intention to refer in detail to the health and safety provisions as set out in the document, as I am sure the committee is familiar with them.  However, I am satisfied that all the necessary expert advice from the relevant State Agencies was sought and utilised in the final output.  ICTU advocated strongly that all the necessary measures, under each safety heading, should be specified in the interests of clarity and compliance.

On the matter of Compliance and Enforcement, the Health and Safety Authority (HSA), which is the statutory body charged with ensuring that the safety, health and welfare of workers is protected in the workplace, has been assigned responsibility for  overseeing the implementation of all aspects of this National Protocol including being available to advise and train worker representatives.  They will also have powers to inspect workplaces and order their closure when appropriate.

This is reflected in the broad range of functions assigned to the Authority by section 34 of the Safety Health and Welfare at Work Act 2005 including functions to encompass the prevention of danger to workers from the spread of infectious disease.  Section 35, Subsection (1) of that Act empowers the Minister to confer additional functions on the Authority which are connected with the functions prescribed by section 34 of the Act. For the avoidance of doubt, in our view, the Minister should exercise her power under section 35(1) of the Act to expressly assign to the Authority a function to promote, foster and enforce compliance with the provisions of the Protocol.  We hope this Committee will consider making a recommendation in this regard.

Inspectors of the Authority have extensive powers of enforcement, including the power to serve a ‘prohibition notice’ on any workplace, in which activity is occurring which poses a serious risk to the health and safety of any person. The effect of a prohibition notice is to require the closure of the premises to which it relates while the danger continues.   I think it is worth considering some key points in this regard:

  • 67.—(1) Where an inspector is of the opinion that at any place of work there is occurring or is likely to occur any activity (whether by reference to any article or substance or otherwise), which involves or is likely to involve a risk of serious personal injury to any person, the inspector may serve a written notice (in this Act referred to as a “prohibition notice”) on the person who has or who may reasonably be presumed to have control over the activity concerned. 
  • (2) A prohibition notice shall—, (e) prohibit the carrying on of the activity concerned until the matters which give rise or are likely to give rise to the risk are remedied, by the inspector. 
  • (5) A prohibition notice shall take effect— (a) immediately the notice is received by the person on whom it is served. 
  • (6) The bringing of an appeal against a prohibition notice which is to take effect in accordance with subsection (5) shall not have the effect of suspending the operation of the notice but 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.

In or view this power should be exercised vigorously in respect to any workplace in which the terms of this Protocol are not being observed.

Given the very serious nature of this virus and the possible severe consequences for those who contract it, it is crucial that the implementation and enforcement powers are actively utilised.  It is therefore essential that the HSA have all the necessary resources available to them to execute a full-scale intensive workplace inspection campaign immediately.  Not to do so would undoubtedly risk lives and would be inexcusable.

As has been referred to publicly, this document is live and can be adjusted to take account of ever changing circumstances.    Aside from the deliberations of the Oversight Group appointed to oversee the implementation of the protocol, we believe there is ample opportunity for the Minister to introduce the required regulations to have this protocol established on a statutory basis and to deploy the necessary resources to the HSA to guarantee the full implementation of this protocol.

Furthermore, we would, once again, respectfully request that Members of the Oireachtas consider  bringing forward the necessary legislation to ensure workers have the right to organise and be collectively represented by the Trade Union of their choice in line with all other developed countries across the globe.