Railway Safety Act 2005

• (3) A member of the Garda Síochána accompanying an inspector under this Part may arrest without warrant any person who obstructs or interferes with an inspector exercising a power under this Part or refuses to comply with a request or requirement of an inspector under this Part.

• (4) A person who obstructs or interferes with an inspector in exercise of any power conferred on an inspector under this Part, or who fails or refuses to comply with a request or requirement of an inspector under this Part, is guilty of an offence.

• (5) A person who wilfully gives to an inspector information which he or she knows to be false or misleading in a material respect, or makes any false or misleading statement reckless as to its truth or otherwise, is guilty of an offence.

• (6) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding €3,000 or to imprisonment for a term not exceeding 3 months or to both.

• (7) In this section, a reference to an inspector includes a reference to a tribunal of inquiry under section 64.

76. Improvement plan.

76.—(1) Where an inspector is of the opinion that an activity being or likely to be carried on by or under the control or on behalf of—

• (a) a F108[railway organisation] and the activity involves, or is likely to involve, a risk to the safety of persons, or

• (b) any other person on or near a railway and where the activity poses, or is likely to pose, a danger to the safety of persons involved in the operation of the railway or being carried on the railway,

the inspector may give a direction in writing to that F108[railway organisation] or person requiring the submission to the inspector, within a time specified in the direction of a plan (“improvement plan”) specifying the remedial action proposed to be taken to rectify the matters set down in the direction.

• (2) Where an improvement plan is submitted in accordance with subsection (1) or re-submitted under paragraph (b), an inspector shall, within 30 days, write to the F108[railway organisation] or person concerned—

• (a) stating that he or she is satisfied with the remedial action proposed to be taken, or

• (b) if he or she is not satisfied that the plan is adequate, directing that the plan be revised and re-submitted to him or her within a time specified in the direction.

• (3) An inspector may withdraw a direction under this section at any time before a date specified therein or may extend and further extend such date.

77. Improvement notice.

77.—(1) Where an inspector is of the opinion that a F109[railway organisation] or other person is contravening or has contravened or is failing to comply or has failed to comply with any of the provisions of this Act or has failed, following a direction under section 76, to submit or implement an appropriate improvement plan, the inspector may serve on that F109[railway organisation] or person a notice (“improvement notice”) in writing signed by him or her stating that he or she is of that opinion and the improvement notice shall—

• (a) specify the provision as to which the inspector is of that opinion,

• (b) give particulars of the reasons why the inspector is of that opinion,

• (c) where applicable, state that the F109[railway organisation] or person has failed to submit or implement an improvement plan, and

• (d) direct that F109[railway organisation] or person to remedy the alleged contraventions by a date specified in the notice, which shall not be earlier than the period within which an appeal can be brought under subsection (4).

• (2) An improvement notice may include directions as to the measures to be taken to remedy the alleged contraventions set out in the notice.

• (3) Where an inspector proposes to serve an improvement notice, he or she shall first notify the F109[railway organisation] or person concerned in writing of his or her intention to serve the improvement notice and the F109[railway organisation] or person in question may, within 21 days, make representations to the inspector, who shall consider them.

• (4) Where an inspector decides, having considered any representations made to him or her under subsection (3), to serve an improvement notice, a F109[railway organisation] or person which is aggrieved by such improvement notice may, within the period of 14 days beginning on the day on which the notice is served on it, appeal to the High Court against the notice and in determining the appeal the judge may—

• (a) if he or she is satisfied that in the circumstances of the case it is reasonable to do so, confirm the notice with or without modification, or

• (b) cancel the notice.

• (5) In considering an appeal against an improvement notice, the Court shall take into account the general duties of F109[railway organisation]s and others under sections 36 and 37.

• (6) A F109[railway organisation] or person who appeals against an improvement notice shall at the same time notify the Commission of the appeal and the grounds for appeal and the Commission shall be entitled to appear, be heard and adduce evidence on the hearing of the appeal.

• (7) Where an appeal against an improvement notice is taken, the notice shall take effect on the day next following the day on which the notice is confirmed on appeal or the appeal is withdrawn or on the day specified in the notice as that on which it is to come into effect, whichever is the later.

• (8) Where no appeal is taken against an improvement notice, the notice shall take effect on the expiration of the period during which such an appeal may be taken or on the day specified in the notice as that on which it is to come into effect, whichever is the later.

• (9) An inspector may withdraw an improvement notice at any time before the date specified in it under subsection (1)(d) and he or she may extend or further extend that date at any time when an appeal against the notice is not pending.

• (10) A person who fails to comply with an improvement notice shall be guilty of an offence and shall be liable—

• (a) on summary conviction, to a fine not exceeding €3,000, or

• (b) on conviction on indictment, to a fine not exceeding €300,000.

78. Prohibition notice.

78.—(1) Where an inspector is of the opinion that an activity being or likely to be carried on by or under the control or on behalf of—

• (a) a F110[railway organisation] and the activity involves, or is likely to involve, an immediate and substantial risk to the safety of persons, or

• (b) any other person on or near a railway and where the activity poses, or is likely to pose, an immediate and substantial danger to the safety of persons involved in the operation of the railway or being carried on the railway,

or where a F110[railway organisation] or person fails to comply with a requirement of this Act, the inspector may serve on that F110[railway organisation] or person a notice (“prohibition notice”) signed by him or her.

• (2) A prohibition notice shall—

• (a) state that the inspector is of that opinion,

• (b) specify the matters which in the inspector's opinion give or, as the case may be, are likely to give rise to the said risk,

• (c) where, in the opinion of the inspector, the matter involves or, as the case may be, will involve a contravention of any provision of this Act, specify the provision or provisions as to which the inspector is of that opinion, and give particulars of the reasons why he or she is of that opinion, and

• (d) direct that the activities to which the notice relates shall be carried on neither by nor under the control of the F110[railway organisation] or other person on which the notice is served nor by nor under the control of any other person unless the matters specified in the notice in pursuance of paragraphs (b) or (c) have been remedied.

• (3) A prohibition notice shall take effect—

• (a) if the notice so declares, immediately the notice is received by the F110[railway organisation] or person on which it is served, and

• (b) in any other case—

• (i) if no appeal is taken against the notice, on the expiration of the period during which such an appeal may be taken or on the day specified in the notice as that on which it is to come into effect, whichever is the later, or

• (ii) in case such an appeal is taken, on the day next following the day on which the notice is confirmed on appeal or the appeal is withdrawn or on the day specified in the notice as that on which it is to come into effect, whichever is the later.

• (4) The bringing of an appeal against a prohibition notice which is to take effect in accordance with subsection (3)(a) shall not have the effect of suspending the operation of the notice:

Provided, however, that 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.

• (5)
• (a) A F110[railway organisation] or other person who is aggrieved by a prohibition notice may, within the period of 7 days beginning on the day on which the notice is served on it, appeal to the High Court against the notice and in determining the appeal the judge may—

• (i) if he or she is satisfied that in the circumstances of the case it is reasonable to do so, confirm the notice with or without modification; or

• (ii) cancel the notice.

• (b) Where on the hearing of an appeal under this section a prohibition notice is confirmed, notwithstanding subsection (3) the judge by whom the appeal is heard may, on the application of the appellant, suspend the operation of the notice for such period as in the circumstances of the case he or she considers appropriate.

• (6) In considering an appeal against a prohibition notice, the Court shall take into account the general duties of F110[railway organisation]s and others under sections 36 and 37.

• (7) A F110[railway organisation] or person who appeals against a prohibition notice or who applies for a direction suspending the application of the notice shall at the same time notify the Commission of the appeal or the application and the grounds for the appeal or the application and the Commission shall be entitled to appear, be heard and adduce evidence on the hearing of the appeal or the application.

• (8) An inspector may withdraw a prohibition notice.

• (9)
• (a) Where a prohibition notice has been served and activities are carried on in contravention of the notice, the High Court may, on the application of an inspector, by order prohibit the continuance of the activities.

• (b) An application to the High Court for an order under paragraph (a) shall be by motion and the Court, when considering the matter, may make such interim or interlocutory order (if any) as it considers appropriate and the order by which an application under paragraph (a) is determined may contain such terms and conditions (if any) as to the payment of costs as the Court considers appropriate.

• (10) On the application of the F110[railway organisation] or other person concerned, an inspector shall confirm in writing if the circumstances giving rise to a prohibition notice no longer prevail or have been remedied to his or her satisfaction and if he or she so confirms, the notice shall no longer have effect.

• (11) The Commission shall, unless in its opinion it is not appropriate in a particular instance to do so, make public details of a prohibition notice, including the name of the person to whom the notice is addressed and the situation giving rise to the notice.

• (12) A person who fails to comply with a prohibition notice is guilty of an offence and is liable—

• (a) on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 3 months, or to both, or

• (b) on conviction on indictment, to a fine not exceeding €1,000,000 or imprisonment for a term not exceeding 2 years, or to both.

79. Application to High Court by Commission.

79.—(1) Where the Commission considers that the risk to the safety of persons is so serious that the operations of a railway or of particular railway infrastructure or services, or activities carried out by, or omissions of, any other person which may pose a danger to persons operating or using the railway, should be restricted or should be immediately prohibited until specified measures have been taken to reduce the risk to a reasonable level, the Commission may apply, ex parte, to the High Court for an order restricting or prohibiting such operation.

• (2) The Court may make such interim or interlocutory order as it considers appropriate.

• (3) Any such order shall have effect notwithstanding the terms of any permission given under this Act or any other enactment for the operation of the railway or part thereof or, where the order refers to an other person, the carrying out of an activity by such person.

• (4) On any application for the revocation or variation of an order made under subsection (1), the Commission shall be entitled to appear, be heard and adduce evidence.

80. Indemnification for actions in good faith.

80.—(1) Where the Commission is satisfied that a commissioner, an inspector, a member of staff of the Commission or a consultant or adviser or person engaged by the Commission under section 18, has discharged his or her duties in the exercise of a function of the Commission under this Act in a bona fide manner, it shall indemnify such commissioner, inspector or member of staff of the Commission, or consultant or adviser, or other person engaged by the Commission, against all actions or claims however arising in respect of the discharge by him or her of his or her duties, including for the avoidance of doubt, the preparation and publication of an investigation report.

• (2) In subsection (1) “report” includes a report referred to in section 60(1), a draft report referred to in section 62(1), an interim report under section 60(4) and a draft interim report, and it also includes written observations on a draft report or draft interim report and comments on any such observations as referred to in section 62.

PART 8 Railway Safety Advisory Council

81. Appointed day.

81.—The Minister shall by order appoint a day to be the appointed day for the purposes of this Part.

82. Railway Safety Advisory Council.

82.—(1) There shall be established, on the appointed day, a body to be known as, in the Irish language, An Chomhairle Sábháilteachta Iarnróid, or in the English language, the Railway Safety Advisory Council, and in this Act referred to as the “Council”, to perform the functions assigned to it under this Part.

• (2) The Council shall consist of 14 members.

• (3) Members of the Council shall comprise—

• (a) a chairperson who, in the opinion of the Minister, has appropriate experience and expertise, and is sufficiently independent from F111[railway organisation]s and from persons representing the staff of undertakings and from the Commission,

• (b) at least 4 persons representing F111[railway organisation]s, of which one will represent F111[railway organisation] s which in the opinion of the Minister are heritage railways,

• (c) at least 3 persons from organisations which represent staff of F111[railway organisation]s,

• (d) at least one person who in the opinion of the Minister represents the public interest,

• (e) at least one person representing a body established by or under statute involved in the regulation of worker safety or public safety,

• (f) at least one person from an organisation representing the interests of mobility-impaired persons, and

• (g) at least one person with particular expertise relevant to railway safety but not being a person from an organisation in paragraph (b) or (c) or from the Commission.

• (4) An organisation or person may, at its own initiative or at the request of the Minister, nominate a person to be a member of the Council, and the Minister in making an appointment under subsection (5), shall have regard, in so far as is practicable, to any nominations received by him or her under this subsection.

• (5) The Minister shall appoint persons to be members of the Council, including a person to be chairperson of the Council, and an appointment under this section shall be for such period not exceeding 3 years as may be specified by the Minister when appointing such persons, and shall be on such terms and conditions as may be determined by the Minister, with the consent of the Minister for Finance.

• (6) A member of the Council shall be paid, out of monies at the disposal of the Commission, such allowances for expenses as the Minister, with the consent of the Minister for Finance, may determine.

• (7) A member of the Council whose term of office expires by the effluxion of time shall be eligible for re-appointment.

• (8) The Minister, in appointing members of the Council shall ensure, in as far as is practicable, an equitable balance between men and women in any appointments.

• (9) The Commission shall provide all reasonable facilities and services as may be required by the Council for the carrying out of its functions.

• (10) The Council may act notwithstanding a vacancy or vacancies in its membership.

• (11) The Council may regulate, by standing orders or otherwise, its procedure and business.

• (12) The Minister shall fix the date, time and place of the first meeting of the Council and the members of the Council shall decide on the frequency of all further meetings, subject to the Council meeting at least once each year.

• (13) A member of the Council may resign from office by letter addressed to the Minister.

• (14) The Minister may remove from office a member of the Council in the following circumstances—

• (a) where, in the opinion of the Minister, he or she has become incapable through ill-health of effectively performing his or her duties,

• (b) for stated misbehaviour,

• (c) in the case of a person appointed to represent an organisation, a body or a class of persons under subsection (3), where the person is no longer such a representative, or

• (d) where his or her removal appears to the Minister to be necessary or desirable for the effective performance by the Council of its functions.

• (15) The Minister may, after consultation with the Council, make regulations on any matter which the Minister considers expedient for the purposes of this section.

• (16) A commissioner (or if membership is vacant, the deputy commissioner) may attend and be heard at meetings of the Council but may not vote on any matter being considered by the Council.

83. Functions of Council.

83.—(1) It shall be the general function of the Council to consider issues relevant to railway safety and to make recommendations, as appropriate, to the Commission or to the Minister.

• (2) Without prejudice to the generality of subsection (1), the Council may make recommendations—

• (a) to the Commission in relation to—

• (i) regulations, standards, guidelines and codes of practice that are in force in relation to railway safety,

• (ii) proposals for regulations, standards, guidelines or codes of practice in relation to railway safety submitted by the Commission to the Council for consideration,

• (iii) other matters relating to railway safety other than matters relating to industrial relations, and

• (iv) any other matters related to the functions of the Commission or which the Commission submits to the Council for consideration,

• (b) to the Minister in relation to—

• (i) railway safety policy,

• (ii) the adequacy of railway safety legislation which is in force,

• (iii) proposals for legislation or regulations in relation to railway safety submitted by the Minister to the Council for consideration,

• (iv) the assignment of specific functions relating to railway safety to the Commission,

• (v) the nature and mix of expertise, skills and experience that is desirable in a candidate for appointment as a commissioner, and

• (vi) any other matter which, in the opinion of the Council, is relevant to the effective performance by the Council or by the Commission of its functions or which the Minister submits to the Council for consideration.

• (3) The Commission or the Minister, as appropriate, shall consider the recommendations of the Council given under this section.

• (4) The Council may publish recommendations given under this section.

• (5) The Commission may consult the Council on any matter relating to railway safety or to the effective performance by the Commission of its functions.

• (6) The Minister may consult the Council on any matter arising in relation to his or her functions with respect to railway safety.

• (7) The Council shall be entitled to be informed at its meetings, by the commissioner or deputy member of the Commission who stands appointed to the Council or a person appointed by him or her for the purpose, about the work of the Commission but not in relation to the detail of particular F112[safety management document]s, assessments, audits or investigations where a report has not been published.

PART 9 Intoxicants and Persons Working on Railway Infrastructure

84. 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.

85. 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 F113[railway organisation] concerned and the Commission, is competent to carry out an analysis of a sample and is independent of the F113[railway organisation] concerned and of any other F113[railway organisation];

“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 F113[railway organisation] 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;

“F113[railway organisation]” means a F113[railway organisation] 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).

86. Application (Part 9).

86.—(1) This Part applies to a F114[railway organisation] (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 F114[railway organisation] 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.

87. Duties of safety critical workers and F115[railway organisation]s.

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 F115[railway organisation] or with a person who has a contract of services with a F115[railway organisation]—

• (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 F115[railway organisation]’s code of conduct and sampling procedures.

• (2) It is the duty of a F115[railway organisation] 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.

88. 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 F116[railway organisation] 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 F116[railway organisation] 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 F116[railway organisation] 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 F116[railway organisation] of its dissatisfaction and the reasons for the dissatisfaction, and the F116[railway organisation], 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 F116[railway organisation] 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 F116[railway organisation] 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 F116[railway organisation] 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 F116[railway organisation] 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 F116[railway organisation] 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.

89. 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 F117[railway organisation] 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 F118[accident or] 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 F118[accident or] 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 F118[accident or] 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 F117[railway organisation] concerned a fee in respect of any analysis made and certificate issued by it under subsection (5).

• F119[(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 organisation for whom it was made for the purposes of an investigation by the Investigation Unit under the Regulations of 2014.]

90. Disciplinary measures.

90.—(1) Where an authorised person makes a complaint to the management of the F120[railway organisation] 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 F120[railway organisation] 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 F120[railway organisation] 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 F120[railway organisation] 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 F120[railway organisation].

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

91. 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.

PART 10 Offences by Persons Working on Railway Infrastructure

Chapter 1 Preliminary

92. Commencement, (Part 10).

92.—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.

93. Definitions, (Part 10).

93.—(1) In this Part—

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

“Bureau” means Medical Bureau of Road Safety;

“designated” means designated by a member of the Garda Síochána;

“prescribed” means prescribed in regulations made by the Minister;

“safety critical task” means a task specified in paragraph (i), (ii) or (iii) when performed in the course of the operation of a F121[railway organisation], and—

• (a) in the course of a person’s employment with the undertaking,

• (b) under a contract of services with the undertaking,

• (c) in the course of a person’s employment with a person who has a contract of services with the undertaking, or

• (d) voluntarily or otherwise,

namely—

• (i) driving a train, or in any other way controlling or affecting the movement of a train,

• (ii) controlling, affecting or managing, the movement of persons on a train, on a platform, across a level crossing, or, the boarding of, or alighting from, a train of persons, or

• (iii) working in a maintenance capacity (as defined in subsection (2)) or as a supervisor of, or look-out for, persons working in such capacity;

“safety critical worker” means a person who performs a safety critical task.

• (2) For the purposes of this Part and Part 9, a person works in the course of the operation of a F121[railway organisation] in a maintenance capacity, if his or her work in the operation involves installation, maintenance, repair, alteration or inspection of, railway infrastructure or trains, or involves coupling or uncoupling trains or performing a pre-departure examination of trains.

94. Power of Garda Síochána to enter railway property and to stop train.

94.—(1) A member of the Garda Síochána may enter railway property for the purposes of enforcing this Part.

• (2) A member of the Garda Síochána may request a F122[railway organisation] to stop a train at a convenient and safe location for the purposes of this Part.

• (3) In exercising a power under subsection (2), a member of the Garda Síochána shall take all reasonable steps to avoid disruption to the operations of the F122[railway organisation] concerned.

95. Application and authorised persons.

95.—(1) This section applies to a F123[railway organisation] (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 section does not apply to a F123[railway organisation] which operates railway infrastructure or operates trains on a railway infrastructure, where such infrastructure is used, or is intended to be used, solely for industrial use.

• (3) A F123[railway organisation] to whom this section applies shall appoint persons whom it, with the consent of the Commission, considers are suitably qualified to be authorised persons for the purpose of performing functions under this Part and Part 9, on its behalf.

• (4) An authorised person is not entitled to perform a function under this Part or Part 9 unless he or she has received training and instruction, which, in the opinion of the undertaking concerned, is such as will provide appropriate guidance to him or her in the performance of the function.

• (5) An authorised person, shall, on his or her appointment under this section, be furnished by the F123[railway organisation] concerned with a warrant of his or her appointment as an authorised person and when performing any function conferred on an authorised person under this Part or Part 9, shall if requested by any person affected, produce such warrant to that person for inspection.

• (6) A statement by an employee involved in the management of the F123[railway organisation] concerned that, a warrant of appointment as an authorised person was furnished to a particular person, and such person had received training and instruction which, in the opinion of the undertaking concerned, provided appropriate guidance to such person in the performance by him or her of a function under this Part or Part 9, shall, until the contrary is proved, be sufficient evidence in any proceedings of the fact of, the furnishing of such warrant to such person, receipt by him or her of such training and instruction, and the making of the statement by an employee so involved in the undertaking.

• (7) A warrant furnished by an undertaking under subsection (5) shall be in such form and contain such particulars as may, from time to time, be specified by the Commission.

• (8) Subject to the Fire Services Act 1981, an authorised person shall have unhampered access to a railway F124[accident or] incident site for the purposes of this Part and Part 9.

• (9) Subject to the Fire Services Act 1981, a F123[railway organisation] shall, for the purposes of this Part and Part 9, ensure that an authorised person appointed by it has unhampered access to any railway property under its management or control.

• (10) An authorised person may be referred to by the undertaking concerned by such title as it decides.

Chapter 2 Intoxicants

96. Function of the Bureau in relation to analysis under Chapter.

96.—(1) The Bureau shall perform the functions assigned to it by this Chapter.

• (2) In particular, and without prejudice to the generality of subsection (1), the Bureau shall arrange for—

• (a) the receipt and analysis of specimens of blood and urine forwarded to the Bureau under this Part and the issue of reports on such analyses,

• (b) the determination, in respect of such specimens, of the concentration of alcohol in the blood or urine and of the presence (if any) of a drug or drugs in the blood or urine, and

• (c) the issue of certificates required under this Chapter to be issued by the Bureau.

• (3) The Director shall exercise general supervision in relation to the performance by the Bureau of the functions assigned to it by or under this Chapter.

• (4) No action or other legal proceedings lie (except in the case of wilful neglect or default) against the Director or any member, officer or employee of the Bureau by reason of, or arising out of, any analysis or determination under this Part.

97. Offences involving intoxicants by persons working on railway property.

97.—(1) A safety critical worker who performs a safety critical task, or who makes himself or herself available to perform such a task by attending at work, while being unfit, is guilty of an offence.

• (2) A safety critical worker who performs a safety critical task, or who makes himself or herself available to perform such a task by attending at work, while there is present in his or her body a quantity of alcohol such that, within 3 hours after so performing that task or of attending at work, the concentration of alcohol—

• (a) in his or her blood will exceed a concentration of 80 milligrammes of alcohol per 100 millilitres of blood,

• (b) in his or her urine will exceed a concentration of 107 milligrammes of alcohol per 100 millilitres of urine, or

• (c) in his or her breath will exceed a concentration of 35 microgrammes of alcohol per 100 millilitres of breath,

is guilty of an offence.

• (3) The Minister may, by regulations, provide for other amounts, for the time being, to stand in lieu of any of the amounts of alcohol concentration specified in subsection (2)(a), (b) or (c).

• (4) A draft of every regulation proposed to be made under subsection (3) shall be laid before each House of the Oireachtas and the regulation shall not be made until a resolution approving of the draft has been passed by each such House.

• (5) In this section and in section 87, “unfit” means, in relation to a safety critical worker, being under the influence of an intoxicant to such an extent that his or her ability to perform a safety critical task, without exposing a person (including himself or herself) to danger or risk of danger, is for the time being impaired.

98. Obligation to provide specimen of breath.

98.—(1) Where an authorised person or a member of the Garda Síochána is of the opinion—

• (a) 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,

• (i) has consumed intoxicating liquor, or

• (ii) is committing or has committed an offence under section 97,

or

• (b) where a railway accident or incident occurs, that—

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

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

or at the request of an inspector who is of such opinion, he or she may make a requirement of the safety critical worker under subsection (3)(.

• (2) Without prejudice to subsection (1), a member of the Garda Síochána or an authorised person may, for the safe operation of a F126[railway organisation], at random and in circumstances that are reasonable, make a requirement under subsection (3) of 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.

• (3) A member of the Garda Síochána or an authorised person, may, in the circumstances referred to in subsection (1) or (2), require a safety critical worker—

• (a) to provide, or to accompany him or her to a place (including a vehicle) at or in the vicinity of the railway infrastructure concerned and there require the worker to provide, by exhaling into an apparatus for indicating the presence of alcohol in the breath, a specimen of his or her breath, or

• (b) where the authorised person or member does not have such apparatus with him or her, to remain (for not more than one hour), at an appropriate place on the railway infrastructure concerned or at the scene of the accident or incident, in his or her presence or in the presence of another authorised person or member of the Garda Síochána until such an apparatus becomes available to him or her and the authorised person or member may then require the worker, to provide by exhaling into such an apparatus, a specimen of his or her breath.

• (4) Where an authorised person 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 consumed intoxicating liquor, or is committing or has committed an offence under section 97, and where a member of the Garda Síochána is not present, the authorised person shall require the safety critical worker concerned to remain (for not more than one hour), as the case may be, at an appropriate place on the railway infrastructure concerned or at the scene of the accident or incident, in his or her presence or in the presence of another authorised person, pending the arrival of a member.

• (5) A member of the Garda Síochána or an authorised person making a requirement under subsection (3) may indicate the manner in which the safety critical worker is to comply with the requirement.

• (6) A safety critical worker who refuses or fails, to comply immediately with a requirement under this section, or to comply immediately with such a requirement in a manner indicated by a member of the Garda Síochána or an authorised person, is guilty of an offence.

• (7) In a prosecution for an offence under this Chapter, it shall be presumed, until the contrary is shown, that an apparatus provided by a member of the Garda Síochána or an authorised person for the purpose of enabling a person to provide a specimen of breath under this section is an apparatus for indicating the presence of alcohol in the breath.

99. Arrest without warrant.

99.—(1) A member of the Garda Síochána may arrest a safety critical worker without warrant if he or she has reasonable cause to suspect that that worker is committing or has committed an offence under section 97 or 98.

• (2) For the purpose of arresting a safety critical worker under subsection (1), where a member of the Garda Síochána has reasonable cause to suspect that the worker is committing or has committed an offence under section 97 or 98, the member may enter (if need be by force) any place where that worker is or where the member, with reasonable cause, suspects him or her to be.

100. Obligation to provide specimen following arrest.

100.—(1) Where a safety critical worker is arrested under section 99, a member of the Garda Síochána may, at a Garda Síochána station, at his or her discretion, do either or both of the following:

• (a) require the worker to provide, by exhaling into an apparatus for determining the concentration of alcohol in the breath, 2 specimens of his or her breath and may indicate the manner in which he or she is to comply with the requirement,

• (b) require the worker either—

• (i) to permit a designated medical practitioner to take from the worker a specimen of his or her blood, or

• (ii) at the option of the worker, to provide for the designated medical practitioner a specimen of his or her urine.

• (2) If the medical practitioner referred to in subsection (1)(b) states in writing that he or she is unwilling, on medical grounds, to take from the safety critical worker a specimen of the worker's blood or be provided by the worker with a specimen of the worker's urine, the member may make a requirement of the worker under subsection (1)(b) in relation to the specimen other than that to which the first requirement related.

• (3) Subject to section 108, a person who refuses or fails to comply immediately with a requirement under subsection (1)(a) is guilty of an offence.

• (4) Subject to section 108, a person who, following a requirement under subsection (1)(b)—

• (a) refuses or fails to comply with the requirement, or

• (b) refuses or fails to comply with a requirement of a designated medical practitioner in relation to the taking under that subsection of a specimen of blood or the provision under that subsection of a specimen of urine,

is guilty of an offence.

• (5) In a prosecution for an offence under this Chapter it shall be presumed, until the contrary is shown, that an apparatus provided by a member of the Garda Síochána for the purpose of enabling a person to provide 2 specimens of breath pursuant to this section is an apparatus for determining the concentration of alcohol in the breath.

101. Obligation to provide blood or urine specimen while in hospital.

101.—(1) Where a railway F127[accident or] incident occurs in consequence of which a safety critical worker is injured, or claims or appears to have been injured, and is admitted to, or attends at, a hospital and a member of the Garda Síochána is of opinion that, at the time of the F127[accident or] incident—

• (a) the worker was working on the railway infrastructure or on a train involved in the F127[accident or] incident, and

• (b) the worker had consumed an intoxicant,

then the member may, in the hospital, require the worker either—

• (i) to permit a designated medical practitioner to take from the worker a specimen of his or her blood, or

• (ii) at the option of the worker, to provide for the designated medical practitioner a specimen of his or her urine.

• (2) If the medical practitioner referred to in subsection (1) states in writing that he or she is unwilling, on medical grounds, to take from the safety critical worker a specimen of the worker's blood under subsection (1)(i) or be provided by the worker with the specimen of the worker's urine under subsection (1)(ii), the member may make a requirement of the worker under subsection (1) in relation to the specimen other than that to which the first requirement related.

• (3) Subject to section 108, a person who, following a requirement under subsection (1)—

• (a) refuses or fails to comply with the requirement, or

• (b) refuses or fails to comply with a requirement of a designated medical practitioner in relation to the taking under that subsection of a specimen of blood or the provision under that subsection of a specimen of urine,

is guilty of an offence.

• (4) Notwithstanding subsection (2), it is not an offence for a person to refuse or fail to comply with a requirement under subsection (1) where, following his or her admission to, or attendance at, a hospital, the person comes under the care of a medical practitioner and the medical practitioner refuses, on medical grounds, to permit the taking or provision of the specimen concerned.

102. Detention of intoxicated persons where a danger to themselves or others.

102.—Where a safety critical worker is at a Garda Síochána station having been arrested under section 99, section 16 of the Road Traffic Act 1994 applies and references in that section to subsection (1) of that section are to be read as including references to this section.

103. Procedure following provision of breath specimen under section 100.

103.—(1) Where, consequent on a requirement under section 100 of him or her, a safety critical worker provides 2 specimens of his or her breath and the apparatus referred to in that section determines the concentration of alcohol in each specimen, in case the apparatus determines that each specimen has—

• (a) the same concentration of alcohol, either specimen, or

• (b) a different concentration of alcohol, the specimen with the lower concentration of alcohol,

shall be taken into account for the purposes of section 97(2) and the other specimen shall be disregarded.

• (2) Where the apparatus referred to in section 100 determines that in respect of the specimen of breath to be taken into account the safety critical worker may have contravened section 97(2) he or she shall be supplied immediately by a member of the Garda Síochána with 2 identical statements, automatically produced by the apparatus in the prescribed form and duly completed by the member in the prescribed manner, stating the concentration of alcohol in the said specimen determined by the apparatus.

• (3) On receipt of the statements, the safety critical worker shall on being requested so to do by the member—

• (a) immediately acknowledge such receipt by placing his or her signature on each statement, and

• (b) return either of the statements to the member.

• (4) A person who refuses or fails to comply with subsection (3) is guilty of an offence and is liable on summary conviction to a fine not exceeding €1,000 or to imprisonment for a term not exceeding 1 month, or to both.

• (5) Section 107(1) applies to a statement under this section as respects which there has been a failure to comply with subsection (3)(a) as it applies to a duly completed statement under this section.

104. Procedure to be followed relating to specimens taken or provided.

104.—(1) Where under this Chapter a designated medical practitioner has taken a specimen of blood from a safety critical worker or has been provided by the worker with a specimen of his or her urine, the medical practitioner shall divide the specimen into 2 parts, place each part in a container which he or she shall immediately seal and complete the form prescribed for the purposes of this section.

• (2) Where a specimen of blood or urine of a safety critical worker has been divided into 2 parts pursuant to subsection (1), a member of the Garda Síochána shall offer to the worker one of the sealed containers together with a statement in writing indicating that he or she may retain either of the containers.

• (3) As soon as practicable after subsection (2) has been complied with, a member of the Garda Síochána shall cause to be forwarded to the Bureau the completed form referred to in subsection (1), together with the relevant sealed container or, where the safety critical worker has declined to retain one of the sealed containers, both relevant sealed containers.

• (4) In a prosecution for an offence under section 97 it shall be presumed, until the contrary is shown, that subsections (1) to (3) have been complied with.

105. Procedure at Bureau regarding specimens.

105.—(1) As soon as practicable after it has received a specimen forwarded to it under section 104, the Bureau shall analyse the specimen and determine the concentration of alcohol or (as may be appropriate) the presence of a drug or drugs in the specimen.

• (2) Where the Bureau receives 2 specimens of blood so forwarded together in relation to the same safety critical worker or 2 specimens of urine so forwarded together in relation to the same worker, it shall be sufficient compliance with subsection (1) for the Bureau to make an analysis of and determination in relation to one of the 2 specimens of blood or (as may be appropriate) one of the 2 specimens of urine.

• (3) As soon as practicable after compliance with subsection (1), the Bureau shall forward to the Garda Síochána station from which the specimen analysed was forwarded a completed certificate in the prescribed form for the purpose of this section and shall forward a copy of the completed certificate to the safety critical worker who is named on the relevant form under section 104 as the person from whom the specimen was taken or who provided it.

• (4) In a prosecution for an offence under section 97, it shall be presumed, until the contrary is shown, that subsections (1) to (3) have been complied with.

106. Frustrating prosecution.

106.—(1) A safety critical worker shall not take or attempt to take any action (including consumption of alcohol but excluding a refusal or failure to comply with a requirement under section 100) with the intention of frustrating a prosecution under section 97.

• (2) A person who contravenes subsection (1) is guilty of an offence.

• (3) Where, on the hearing of a charge for an offence under section 97, the court is satisfied that any action taken by the defendant (including consumption of alcohol but excluding a refusal or failure to provide a specimen of his or her breath or urine or to permit the taking of a specimen of his or her blood) was taken with the intention of frustrating a prosecution under that section, the court may find him or her guilty of an offence under subsection (2).

107. Evidence in proceedings under this Chapter.

107.—(1) A duly completed statement purporting to have been supplied under section 103(2) is, until the contrary is shown, sufficient evidence in any proceedings under this Chapter, of the facts stated therein, without proof of any signature on it or that the signatory was the proper person to sign it, and shall, until the contrary is shown, be sufficient evidence of compliance by the member of the Garda Síochána concerned with the requirements imposed on him or her by or under this Chapter prior to and in connection with the supply by him or her under section 103(2) of such statement.

• (2) A duly completed form under section 104(1) is, until the contrary is shown, sufficient evidence in any proceedings under this Chapter of the facts stated therein, without proof of any signature on it or that the signatory was the proper person to sign it, and shall, until the contrary is shown, be sufficient evidence of compliance by the designated medical practitioner concerned with the requirements imposed on him or her by or under this Chapter.

• (3) A certificate expressed to have been issued under section 105 is, until the contrary is shown, sufficient evidence in any proceedings under this Part of the facts stated therein, without proof of any signature on it or that the signatory was the proper person to sign it, and shall, until the contrary is shown, be sufficient evidence of compliance by the Bureau with the requirements imposed on it by or under this Chapter.

• (4) In a prosecution for an offence under section 97, it shall be presumed, until the contrary is shown, that each of the following persons is a designated medical practitioner—

• (a) a person who by virtue of powers conferred on him or her by this Part took from another person a specimen of that other person's blood or was provided by another person with a specimen of that other person's urine,

• (b) a person for whom, following a requirement under section 100(1) or 101(1) to permit the taking by him or her of a specimen of blood, there was a refusal or failure to give such permission or to comply with a requirement of his or her in relation to the taking of such a specimen,

• (c) a person for whom, following a requirement under section 100(1) or 101(1) to provide for him or her a specimen of urine, there was a refusal or failure to provide such a specimen or to comply with a requirement of his or her in relation to the provision of such a specimen.

• (5) Where, pursuant to section 100 or 101 a designated medical practitioner states in writing that he or she is unwilling, on medical grounds, to take from a person a specimen of his or her blood or be provided by him or her with a specimen of his or her urine, the statement signed by the medical practitioner is, in any proceedings under this Part, sufficient evidence, until the contrary is shown, of the facts stated therein, without proof of any signature on it or that the signatory was the proper person to sign it.

108. Defences.

108.—(1) In a prosecution of a safety critical worker for an offence under section 100 for refusing or failing to comply with a requirement to provide 2 specimens of his or her breath, it is a defence for the defendant to satisfy the court that there was a special and substantial reason for his or her refusal or failure and that, as soon as practicable after the refusal or failure concerned, he or she complied (or offered, but was not called upon, to comply) with a requirement under the section concerned in relation to the taking of a specimen of blood or the provision of a specimen of urine.

• (2) In a prosecution of a safety critical worker for an offence under section 100 or 101 for refusing or failing to comply with a requirement to permit a designated medical practitioner to take a specimen of blood or for refusing or failing to comply with a requirement of a designated medical practitioner in relation to the taking of a specimen of blood, it is a defence for the defendant to satisfy the court that there was a special and substantial reason for his or her refusal or failure and that, as soon as practicable after the refusal or failure concerned, he or she complied (or offered, but was not called upon, to comply) with a requirement under the section concerned in relation to the provision of a specimen of urine.

• (3) Notwithstanding subsections (1) and (2), evidence may be given at the hearing of a charge of an offence under section 97 that the defendant refused or failed to comply with a requirement to provide 2 specimens of his or her breath, or that the defendant refused or failed to comply with a requirement to permit the taking of a specimen of his or her blood or to comply with a requirement of a designated medical practitioner in relation to the taking of a specimen of blood, as the case may be.

• (4) It is not a defence for a person charged with an offence under section 97 to show that, in relation to the facts alleged to constitute the offence, an analysis or determination under this Chapter, has not been carried out or that he or she has not been requested under section 98 to provide a specimen of his or her breath.

109. Penalties.

109.—A person guilty of an offence under this Chapter (other than section 103(4)) is liable on summary conviction to a fine not exceeding €5,000 or to imprisonment for a term not exceeding 6 months, or to both.

Chapter 3 Carelessly or dangerously working or working while unfit, on railway