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Posted By SteveD-M
Here's one to tax you guys for a Friday...
I am having a rather light hearted legal debate with a clients shop steward/safety rep.
The crux is in the interpretation of the Safety Representatives and Safety Committee Regulation 1977 Reg 4 (h) ...'but without prejudice to section 7 & 8 of the 1974 Act, no function given to a safety representative by this paragraph shall be construed as imposing a duty on him.'
His argument - Reg 4 (h) gives him an exemption should he give bad advice and someone becomes injured.
My argument - Reg 4 (h) does not give an exemption to the general duties of S7 & S8 of the Act and supported by Reg 14 of the Management regs. I can't think of any circumstance where a failing under S7 or R14 could be nullified by the fact that the guy is a safety rep.
Opinions? Arguments for/against?
Or is this a bit too serious for a Friday?
:)
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Posted By kevin ryder
Where does competence come into this?
it would be unfair to have reliance on advice from an uninformed person even though they have great experiential knowledge of specific work tasks, after all surely this is the role of workers safety reps, to give feedback (ie advice) on how practices are affecting the workplace
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Posted By SteveD-M
Kevin - agreed, however that is not the debate.
He is convinced that in certain circumstances he has an exemption to S7/R14 under SRSC '77 should someone become injured.
There is of course S36 to throw in as well...
:-)
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Posted By Robert K Lewis
The 7 and 8 duties relate to the safety representative as an employee. In other words he may fail as an employee in the context of these two sections and be potentially held liable for those breaches by the HSE or other enforcer.
When undertaking duties as a safety representative then the exemption applies to the SRs activities. 7 and 8 do not apply in these circumstances.
Bob
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Posted By Safe System
ahhhh the good old H&S "grey area" comes back!
I'm staying well out of this one!
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Posted By Tabs
I believe that R4(h) does what it says on the tin - it does not "impose" ... so the Rep cannot be held accountable (in his duties) for the "acts or omissions" situation.
It only applies to his role as a Rep and therefore only covers those duties of a Rep - nowhere to my memory do the Regs say that the Rep will give unqualified advice. Reg4(1) lays out the functions and although one or two may imply advice being given to management, it would remain management's duty to ensure the advice was good (taking into account competence and verification). The employer's vicarious liability would take care of the civil side, and Reg4 takes care of the criminal side.
In effect, it allows him to do nothing if he so chooses, it does not allow him to do as he pleases.
I believe the intent was to stop an employer relying on a rep to do the safety job alone.
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Posted By Raymond Rapp
Steve, agree with Tabs. The SR&SC does not impose any duty on the rep from an employer's perspective. You can delegate your responsibilities but you cannot negate them.
However, employees are still duty bound by other statutory duties, including HSWA. Nice try though.
Ray
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Posted By SteveD-M
Just had an update from the guy...
He was quoting a case a few years back where the company relied on the H&S rep (As defined in SRSC '77) for their H&S advice. His defence was R4. Which was held.
In that context yes he had a defence, the company didn't..
Thanks, what a wonderful feeling of being right for a Friday...
Have fun..
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Posted By Peter F
He maybe exempt from duties as a rep. but he will still be guilty as an employee under the relevant sections
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Posted By Ron Hunter
The Rep is an employee, therefore Sections 7 & 8 of HASAWA apply - irrespective.
What the SRSC reg means is that he has the right but not the duty, i.e.:
He may CHOOSE to conduct workplace inspections/hazard spotting exercises - or not.
The DUTY rests with the employer (Management Regs (Regulation 5) monitor, audit and review).
The description you give as a "case" would seem spurious. If the person is appointed by the employer in accordance with Regulation 7 of the Management Regulations, then his status in that Organisation and his Trades Union appointment would surely be of a secondary consideration. The duty to ensure competency of MHSWR Reg7 appointments rests squarely with the employer.
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Posted By Toe
Good Question , Tabs and Ron are spot on with their answer.
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