Health and Safety at Work (Volunteer Associations) Amendment Bill

I move, That the Health and Safety at Work (Volunteer Associations) Amendment Bill be now read a first time. I nominate the Education and Workforce Committee to consider the bill.

The Health and Safety at Work Act 2015 came into force on 4 April 2016, so it’s coincidental that today, 4 April 2018, I address this House and its members with a proposal to amend a provision of the Act as it affects volunteer associations, to amend the section 17 definition of a PCBU—that’s a person conducting a business or undertaking—so that that definition does not include a volunteer association and does not include an association for which any person or persons are employed or engaged to carry out paid work for the association for greater than 100 hours per week.

It is also coincidental that inheriting this bill—it brought with it some measure of volunteered goodwill and fortuitous timings. I signed it off for a slot in the ballot biscuit tin on the afternoon of Wednesday, 21 February 2018. On Thursday, 22 February 2018, it was drawn at noon, and this evening I stand with this quick-draw bill and much goodwill, seeking the House and members to afford and volunteer their support to what I submit is a well-intentioned bill, less the price of overregulation and unnecessary, costly compliance.

National is committed to not only improving but refining workplace health and safety and its laws. The Health and Safety at Work Act 2015 was approximately five years in the making, as you well know, long-serving members of this House. The catalyst for the overhaul of New Zealand’s health and safety law was considered to be the Pike River mining disaster in November 2010 and the Christchurch earthquakes in September 2010 and February 2011.

The major changes introduced by the bill are the classification of a PCBU—as I’ve referred, persons that are conducting a business or undertaking; the primary duty holder. Also, a positive duty of due diligence on those in senior management roles, and a tiered, more stringent penalty regime.

Volunteer associations play an active and important part in Aotearoa New Zealand. They are diverse. Around a third of New Zealanders undertake voluntary work for an organisation, placing New Zealand consistently in the top five countries for donating our time. The latest detailed information, from a 2013 Statistics New Zealand data release on non-profit institutions (NPIs), shows that there are a total of 114,110 NPIs; 11,003 of those employ staff, and of those, 7,505 organisations employ between one to five staff, so the majority employ less than five staff. Approximately 1.3 million volunteers and 136,750 salary and wage earners work for NPIs. However, the reality of the volunteer sector is that there are diminishing numbers of volunteers, capacity, and input, and increasing demands of administrative operational tasks, regulatory compliance, and responsibilities requiring a range of volunteer associations to have to employ a person or persons usually for targeted or specialised or specific tasks.

So this simple, pragmatic change proposed by way of this bill will make it easier and less onerous for those small volunteer organisations that employ staff for not greater than 100 hours per week—an equivalent of 2.5 full-time employees—by exclusion from the definition of PCBUs; an exemption from the ambit of the bill. Volunteering New Zealand’s State of Volunteering 2016 report and its 2017 overview of the sector provides anecdotal information that volunteer associations believe that legislative requirements, particularly health and safety, are a deterrent to volunteering, slowing down the recruitment process, and costing precious time and resources. The time and cost of compliance and regulation is killing the volunteer sector in New Zealand. Red tape and paperwork doesn’t save lives; it crushes the dreams and aspirations.

As a result of the Act’s regulatory focus, there’s been a shift in the role of managers of volunteers to more administration, compliance-orientated, and less person-orientated. There’s an unwillingness of people to take on such voluntary roles, which could have a negative impact on the volunteer section in communities. So many organisations are incurring considerable expense to get advice on, and implement, health and safety compliance standards, whilst, however, accepting, of course, that all organisations, voluntary or commercial, have legal and moral duties and responsibilities of care and health and safety.

The definition of a PCBU in the Act specifically excludes volunteer associations where none of the volunteers employs any person to carry out work for the association. So a central element of the definition refers to “employs”. Consequently, a voluntary organisation that is entirely voluntary and does not have any employees is excluded from the Act. The Act also creates a primary duty of care for all PCBUs to ensure, as far as is reasonably practicable, the health and safety of their workers, of other workers, and of other people who are not put at risk by the PCBU’s activities. The Act also imposes significant penalties on PCBUs that fail to meet these obligations—up to $300,000 for an individual, $600,000 for an officer, and $3 million for an organisation.

Health and safety is an important responsibility for all organisations, including those in the voluntary sector. However, it’s so important that concern for avoiding risk and responsibility does not stifle the activities of voluntary organisations. The amendment is simple, reasonable, and pragmatic, such that any volunteer association which cannot afford to rely on volunteer services is afforded to employ to keep the volunteer service viable, and may employ a person for no more than 100 hours per week. It is not deemed a PCBU and is exempt from the Act, but—here’s the catch—still has a legal duty of care and responsibility. Many fail to comprehend that volunteer associations which are not PCBUs—in other words, do not pay or employ staff and do not fall within the limitations of the Act—are still bound by legal principles of duty, care, obligations, and responsibilities in relation to health and safety under civil and tort law and are accountable by law, just not under the Act. So there are still general legal principles that apply and create obligations for all voluntary organisations in relation to health and safety, whether they are PCBUs or not.

So, in summary, voluntary organisations that are not covered by the Act should still, and do, actively take steps to protect the health and safety of those affected by their activities, although legal liability for the organisation and its officers is unlikely and limited by the ACC regime—yes; we do have ACC here in this country, which is a scheme that generally prevents liability for personal injury but it does not prevent claims for property damage arising from negligence. So under the ACC regime it’s not limited by that. Prudent steps to protect health and safety should still be taken, and are to be taken, in order to protect the organisation’s volunteers and users of its services, protect the organisation’s reputation and funding, limit the risk of negligence claims for property damage, and limit the risk of negligence claims for personal injury arising from gross negligence.

In conclusion, this bill is about recognising and valuing the value, recognition, and importance of the volunteer sector in Aotearoa New Zealand, heeding the concerns of voluntary organisations reliant on the goodwill of volunteer services and limited funds. This bill will—should members of this House permit and support it—permit and support our voluntary sector and volunteer associations in their ability not to be bound by the stringent and onerous conditions under the Health and Safety at Work Act. So I implore that you don’t kill this bill and that you don’t kill the goodwill and volunteer time of all of our volunteers in the sector. Kia ora.

Thank you very much. It is indeed a great pleasure to speak and provide this party’s—the Labour Party’s—perspective on the Health and Safety at Work (Volunteer Associations) Amendment Bill. I’d like to take the opportunity to acknowledge the member Harete Hipango for putting forward this bill and her good fortune in getting it pulled out of the ballot. I take her word that this is well intended. However, it is a poorly drafted bill that actually misses the point.

The framing of the opening address was to make this bill about volunteer organisations—to acknowledge the fact that volunteer organisations across the country are struggling to recruit volunteers. This is fair. I’m a volunteer myself, as I am sure many on the Opposition benches and the Government benches are. Throughout my life I have worked in many volunteer organisations, and they have all struggled to recruit people that are willing to give up their time and to volunteer their services to their community and the organisation. But the solution to that issue is not what is being proposed today.

It is simply not acceptable that we create a distinction where some workers can be exempt from the protections of health and safety in the workplace while others continue to enjoy them. It should not matter who your employer may be; you should have the same protections and provisions that the rest of us enjoy whilst you are in employment. It does not matter if you work for a small community organisation or, indeed, a large corporation; there should be no meddling from Government—or Parliament, I should say—into the protections that we enjoy in terms of health and safety. That is the fundamental point here in this Labour Party’s opposition to this bill: that no worker should go to work with less provisions and less protections than the rest of us enjoy.

What is being proposed here, in the Health and Safety at Work (Volunteer Associations) Amendment Bill, essentially, removes those employed by volunteer associations up to 100 hours a week—so, essentially, 2½ full-time equivalents—away from worker status. So I had a look at the bill. I’ve got it here. What this bill would do is create a very strange loophole in the Health and Safety at Work Act where volunteer associations and those that work for them are exempted from pretty basic provisions. If you’ll allow me, Madam Deputy Speaker, to read, I want to just point this out to the House. They’d be exempted from the primary duty of care to ensure that as far as reasonably practicable they ensure the health and safety of their workers and others—that’s section 36. They’d be exempted from a ban on levying workers for health and safety, charging them to provide protective equipment, or requiring workers to provide their own—section 27. They would be exempt from a duty to engage with workers on health and safety—section 58. It’s important to note that what is “reasonably practicable” for an organisation to do includes a consideration of all relevant matters, and that this will include the resources available to an organisation. We simply cannot allow those workers that work for these organisations to be exempt from such pretty basic provisions.

There would also be an exemption on a ban requiring workers to avoid work where they do not have the required qualifications or authorisation to do that work. That is of grave concern. Because these employees would not be considered workers under the Act, they’re also exempt from, for example, duties to take reasonable care for their own health and safety or that of others, or to follow reasonable instructions relating to health and safety—section 45—and also exempted from their ability to refuse to carry out unsafe work. Let’s just consider that for a moment. A worker, regardless of whether they are employed by a large organisation or a community volunteer group, should have the ability to refuse to carry out unsafe work. But the implication of this bill, as it is written and as it is proposed, would remove that right from workers for volunteer organisations. It’s absolutely unacceptable in New Zealand in 2018 that some workers in this country can be forced to carry out unsafe work.

There is no way that the Labour Party, with our proud history of ensuring workers’ rights, can support such a bill that would take away such a right. In the original Act, the Health and Safety at Work Act 2015, a volunteer association is defined, in section 17(2), as “a group of volunteers (whether incorporated or unincorporated) working together for 1 or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out the work [of that] volunteer association.”

If we want to ensure that people have the time and the capacity and the ability to volunteer, this is not the way to go about it. The question of volunteer associations having person-conducting-a-business-or-undertaking (PCBU) duties was actually fully discussed at the select committee at the time of the health and safety at work legislation in 2015. The exclusion of volunteer associations that do not employ any workers repeated the position under the former Health and Safety in Employment Act 1992.

Now, there were submissions on the health and safety legislation with similar proposals to the current member’s bill in terms of increasing the employee threshold for volunteer associations. These were not accepted. We’ve been here before: in a bill that the previous Government brought through, which went through select committee, this exact issue was brought up, considered, and discussed by that member’s very own party. Where we’ve also been before is when we start to meddle with the exclusions around access to basic health and safety provisions. I ask members of this House—perhaps those members on my own side might remember the last time that the National Party meddled with health and safety, we ended up with the worm farm debacle.

I wonder if members in this House remember when the National Party proposed that worm farming was more dangerous than farming—than the agriculture industry. This is an absolute nonsense. There is a principle at stake here.

Hon Andrew Little: The worms bite.

KIERAN McANULTY: The worms do bite, Mr Little. You’re right. I didn’t consider that. I guess perhaps a bucket may have been tipped on somebody’s head.

But the fact is, once again, there is a principle at stake here. No one, regardless of what the job is or whom they work for, should go to their work having less protections for health and safety than anyone else. We expect a basic level of protection, and this bill takes it away. It proposes to take it away for those organisations that would hire a worker up to 2½ full-time equivalence.

I’ve been advised that WorkSafe is not aware of any particular issues with volunteer or community associations having unreasonable obligation placed on them or compliance issues with regard to their health and safety acquirements.

Life would be easier if there were no regulations. Life would be easier if there were no rules, but just because you don’t like them doesn’t mean you should remove them, because we’re talking about the health and safety of people that work for a living. It is totally unacceptable that we could even consider supporting it, even though I acknowledge it has good intentions. The implications, perhaps unintended, of this bill are not acceptable.

The fact is that the Labour Party will not be supporting this bill and will be taking every opportunity to speak, strongly opposing it. Once again, we cannot undermine the simple rights and privileges that workers have fought over generations to preserve in this country. The Labour Party once again will be standing up for those workers.

Kieran McAnulty has actually now, sort of, carved out a reputation as the filibuster king of the bills. He either speaks off the bill and has to be corrected, to be brought on to the bill, and when he does speak on the bill, he actually doesn’t read the bill. He’s gone on and on. He’s talked about—he’s waxed lyrical about a whole lot of things bar talking about the bill. So what that tells us very clearly is that he’s carved his reputation. He tried to be sympathetic and empathetic about all of the things there, but what Mr McAnulty doesn’t know—and if I was to ask him—is how many not-for-profit organisations are out there in New Zealand?

Kieran McAnulty: A few.

Hon ALFRED NGARO: 114,932. How many charitable registered trusts are there? 27,900.

Kieran McAnulty: That’s right.

Hon ALFRED NGARO: That’s right. So what’s the current contribution to GDP? 4.4 percent of the GDP, which equates to $9.4 billion. So the member can talk a lot about his experiences and what’s out there, but if he did a little bit of work, if he concentrated on the bill, he’d realise what this bill is actually trying to do. We live in a country where people are generous—and thank you, Madam Deputy Speaker.

Debate interrupted.

The House adjourned at 10 p.m.