Health and Safety Reform Bill

Before I give the call I want to indicate that this is a debate on clauses 3 to 29AA and schedule 1 of the bill. I would also make the comment that it is my expectation that this will be one of the more contentious debates, and I think it is generally agreed that it is one of the longer debates, we are likely to have in this Parliament. Chairs of the Committee will be looking very carefully at the question of the substance of contributions that members are making and at questions of relevance and repetition. I also want to indicate to the Minister in the chair that in making decisions around the closure, I at least will be looking to whether reasonable questions have been answered. Obviously, we will not let repetition of questions go on for ever, but questions once asked become repetitive if they are reasonably answered.

It is my privilege to commence the Committee stage on the Health and Safety Reform Bill. I want to begin by making some introductory comments, including some comments on matters that are actually in the latter part of the bill. I trust that the Chair will indulge me a little, because I think that they give important context to this, and I intend at the end of this intervention to table a document that will assist members in the debate on Part 3. I think that it will provide context to what I expect will be a robust, and I hope reasoned and respectful, Committee stage.

I want to begin by acknowledging the family and friends of loved ones who have been killed or seriously injured at work, including those who are present and those who are watching this bill’s progress on TV or radio, disappointed that this stage did not commence yesterday. I regret that that was not the case, but I want to assure the Committee that it was not due to any deliberate attempt on my part to delay. Indeed, it was my strong preference to commence this stage yesterday, but it is important that we get this bill absolutely right and in good shape and that all parties are satisfied before they support it.

I have spoken to and corresponded with a great many people who have had loved ones killed or injured at work, and I simply cannot imagine the disbelief, the grief, and the anger that one must feel. Through that contact, one message was consistent—that is, they implored us, through that grief, to do what we could to ensure that no one else has that experience. The Government has made a commitment to do its part, and I believe that that commitment is being delivered on, not just with this bill but also with the plethora of other actions that the Government has taken over the past 3 or 4 years—particularly since the Pike River mine disaster—in setting up the Royal Commission on the Pike River Coal Mine Tragedy, in establishing the High Hazards Unit, the Independent Taskforce on Workplace Health and Safety, and the new underground mining regulations, in setting up WorkSafe New Zealand, in providing significant extra investment in new resources for health and safety inspectors, the health and safety charter in Christchurch, to support the Canterbury rebuild, and in a plethora of other things.

I think that the forestry industry is a really good example of industry-led change. My predecessor, Simon Bridges, was very disquieted by what were, I think, 10 deaths at work in the forests in 2013. I think that the Independent Forestry Safety Review has, after a slow start, been enthusiastically embraced by the forestry industry. The Forestry Industry Safety Council has now been established, and the results are clear. There were 10 deaths in 2013. We know one death is one too many, but there has been only one in the 21 months since. I think that is consistent with a general trend toward reducing death and injury. The Construction Sector Action Plan 2010-2013 was established 2 years ago, and the health and safety charter in Christchurch has led to a near-halving of serious injuries in that sector, but there is more to do if we are to finish that job and deliver on the commitment to have a New Zealand workplace that is increasingly free of death and injury. This bill is an important part of that process.

Part 1, in the meanings clauses, sets out the definition of a “person conducting a business or undertaking”, or a PCBU. The bill increases penalties for non-compliance. It makes it absolutely clear that all participants in the workplace—managers, owners, directors, workers—have a duty to keep themselves and others safe at work. Worker participation is absolutely an underpinning part of this legislation, but there are many others.

Apart from the obvious goal of increasing safety, this bill actually reflects the fact that in the 22 or so years since the Health and Safety in Employment Act was passed, the workplace has changed. The way in which work is delivered—the combinations of contractors, self-employed, and employees—has changed. In the sector that I knew well before coming to Parliament, as the chief executive officer of a surgical hospital, 25 years ago a hospital would do everything. It would employ the surgeons, the nurses, the allied health professionals, the cleaners, the cooks, the laundry workers, and the maintenance staff. Now there could be as many as 60 or 70 separate entities working in a hospital and the challenge is to make sure that everybody in that workplace understands what good health and safety means, and that requires a degree of cooperation and understanding about the risks and how to mitigate them.

There was very strong support for the bill at its introduction, and then came the amendments to worker participation. I want to refer to a document that I will be tabling at the end of this, and that goes to the commitment that I made at the second reading to define the framework that the Government will use in order to consult on what the regulation should be for high-risk small business. It was my hope that we would get to about the upper quartile of risk. We have found a consistent taxonomy and description in the Australian and New Zealand Standard Industrial Classification codes, which are used by ACC to set ACC levies, and we have looked at the injury rates over the past 5 years—from 2009 to 2013, I think it was—and we have included in this draft list for consultation any industry that has had a fatality rate greater than 25 per 100,000 workers. Any industry with a serious injury rate above 25 per 1,000 workers has been included, and we have acknowledged that although the actual rate may not be that high, there is the risk of a mass-casualty event in some industries. I should also add that there is the issue of occupational exposure, the best example of which is exposure to asbestos and silica dust in the construction industry, and for that reason, although the construction industry does not meet the fatality and serious injury thresholds, it will be included in this list for consultation.

I have tried to be as thorough as possible, but I have taken one industry out—which the press gallery may be interested to know—and that is television presentation. I was not sure why that had such a high fatality rate, but then the answer was pretty obvious, actually, that the deaths were those of workers in the CTV Building. So for that catastrophic event, which I do not think is indicative of the industry but more of the situation, that industry is the one industry that we have excluded from this list for consultation.

I will get to the rights and wrongs of that in the robust discussion on Part 3, I have no doubt, but I want to remind the Committee that this is the last reform of our health and safety framework, not of our health and safety representatives. This is about everybody participating in health and safety. In a way, what we have, through this list, is that 75 percent of our labour force will have the right to a health and safety representative, if that is asked for. The other quarter of the workforce may well do, and I expect that small businesses will say yes to it, regardless of whether they are compelled to do so, because either they have them or it suits them. Not having a health and safety representative may actually be the harder path for some small businesses. It certainly does not let them off the hook. I can imagine that for small businesses, particularly those with workers that are disparate in the workplace—take a farm or a plumbing firm, where they are driving around and working at remote places—the way, actually, to ensure that knowledge is shared and that skills in health and safety are high is to have a different model. This reflects that modern workplace.

Labour says that it is the friend of small business. Apparently it has suddenly had an epiphany about the 90-day rule, although I am not sure about that. This one opportunity to reflect the modern workplace and the modern small business with a flexible—but not watered-down expectation, in my view, because all the powers of the health and safety representative are still available to every worker in the workplace; the path is just a different one—warrants, I think, robust debate here. I stand strong in my view that this is a sensible, balanced, and appropriate response to the modern workplace in New Zealand. It is by no means a watering-down.

I am going to require a third call perhaps, Mr Chair, because I want to acknowledge our support partners—ACT, for its support and scrutiny, and Peter Dunne and the United Future Party—for working with us to make sure that the framework for the establishment of high-risk industries was robust, evidence-based, and consistent, and also for making sure there was a review of that. Actually, I expect that because it is in secondary legislation and in regulations, we will be able to amend it from time to time. But, indeed, I think there will be a formal review in the regulation.

The Māori Party, I want to acknowledge Marama Fox particularly, has worked with us very much on the tightening of the expectations around developing solid work groups and avoiding what some would say is—and I do not actually think that there is a high risk of this—the arbitrage to establish work groups that do not deliver the intent of health and safety committees and representatives, and on the extension of time for the taking of a private prosecution, should the regulator decide not to take one. I want to acknowledge Iain Lees-Galloway. He has a Supplementary Order Paper that does the same thing. I think there is merit in this. Indeed, we have come to a place that is an extension of time in the bill as it came back from the second reading, but it is not as long as Mr Lees-Galloway would have liked.

I want to acknowledge the officials. I did not do so in the second reading, and one of the reasons was that they wrote the speech, so, in typical modest fashion, they wrote it and I forgot to amend it. I have not worked a group of officials harder than I did with this bill. Those who worked with me on the Veterans’ Support Bill will find that quite hard to believe. They have worked incredibly hard, they have been very responsive, and they have done so knowing that the product is going to result in a better health and safety environment in this country.

I have said this on a number of occasions, and I will finish by saying it again. We can pass all the laws, rules, and regulations we like, but what will make the fundamental change, and is making the fundamental change, towards keeping people healthy and safe at work is a change in behaviour and attitudes. That behoves us all to do this and to work across business, across workers, and across directors—across everybody—to ensure that we achieve it.

I seek leave to table a document prepared by the Ministry of Business, Innovation and Employment providing guidance on high-risk industries and a list of industries that are proposed for inclusion.

The CHAIRPERSON (Hon Trevor Mallard): Although I am happy to put the leave, of course, as a Minister, you can just table it.

Can I? In that case, I table it.

Document, by leave, laid on the Table of the House.

Members of this Committee will be well aware that Labour opposes this bill at this point. We do so with a sense of gravity and disappointment. As the Minister for Workplace Relations and Safety said in his opening remarks, there was a consensus of support behind this bill when it was first tabled. In fact, a great degree of consensus existed in this House behind the first version of the bill. Outside this House the business community and the trade union movement and all manner of interest groups and commentators expressed support for what was to be a generational change in the architecture of our health and safety system in New Zealand. I do not need to remind members that the Pike River mine disaster was an epoch-changing event in New Zealand. I think it reminded everybody, when the truth came out finally through, particularly, the Royal Commission on the Pike River Coal Mine Tragedy, that that event, that disaster, was a damning indictment of a complete, systemic failure in health and safety.

I want to direct my comments in Part 1 to the purpose clause and make some general comments about Labour’s view of this bill now. We went from a feeling that there was widespread support for these changes, for the new architecture, for the Australian model law that offered a new template within which to build a really fit for purpose health and safety system for New Zealand today. I cannot underline enough how disappointed members on this side of the Chamber are by—I know the Minister does not like to hear that this bill has been watered down, but it has been. It has been watered down. It has been substantially weakened by the carve out in the bill that, effectively, exempts firms with fewer than 20 employees from the requirement to allow the appointment or election of health and safety representatives when requested. It is going to carve out from the provisions in this bill more than 300,000 New Zealand employees, or one-quarter of the workforce, perhaps.

The Minister said in his opening remarks that the bill’s provisions around worker representation were going to cover 75 percent of the New Zealand workforce. Well, what about the other 25 percent? Do they not deserve to be safe at work? They do not—

💬 Jonathan Young: Of course they do.

Well, Jonathan Young, the chair of the Transport and Industrial Relations Committee, says “Yes, of course they do.”, but he is happy to stand up and vote for a bill that effectively cuts those people loose and denies them—

💬 Jonathan Young: No, it doesn’t.

—it certainly does deny them—the right to be protected at work by effective worker representation structures in the workplace. That is, and will be, the nub of this debate.

John Key said in the aftermath of the Pike River disaster that he was going to do everything. He said that he was going to do everything to deliver on the promise of remedying the glaring shortfalls in our health and safety system. This carve out, this watering down, is a betrayal of that promise. It is quite interesting that when you tally up the purpose clause in the bill against some of the commentary from the Independent Taskforce on Workplace Health and Safety, you can see that in the transmission from the royal commission to the independent task force to the basic architecture of this bill, there was a faithful representation of the findings and the recommendations from the task force into the purpose statement of the bill. That is why we did actually have a substantial level of agreement.

Finally—finally—after all the delays and all the backwards and forwards, we are getting the opportunity to debate the Health and Safety Reform Bill in this Committee. I do want to take just a few minutes at the beginning of this call to respond to some of the issues that the Minister for Workplace Relations and Safety himself raised when he introduced the debate on Part 1 of this bill. We had delays at the Transport and Industrial Relations Committee. The bill languished in our select committee for around about 5 or 6 weeks and went nowhere and did nothing. Today we find this Supplementary Order Paper 108 put forward by the Minister with a range of amendments and changes that the select committee could have been considering while it sat idle for 5 or 6 weeks while the National Party sorted out its internal politics. It tried to sort out its divisions and its splits over this bill. People might remember that there was some stuff going on with Judith Collins and some stuff going on with Maurice Williamson, and probably with some of the other MPs from the rural areas.

Now we find out that the delay that the Minister spoke about that occurred over the last 24 hours turns out to be a delay so that the Government could find a tricky way of getting farms and agriculture out of having decent representation over worker health and safety in their workplaces. That is what it has turned out to be about—not anything honourable, Minister. It was not something that improves this legislation or improves worker representation over health and safety. Actually, National was spending that 24 hours convincing its support parties that they should support a watering-down that specifically allows agriculture not to be included in the ability for workers to require and have an elected health and safety rep at work.

One-third of the deaths in this country over the last 5 years in workplaces has come from agriculture—agriculture—and that is the area that that Government has spent the last 24 hours trying to find a tricky way of actually excluding from having the best worker health and safety representation model that can possibly be put in place. That Minister is a disgrace, and it is a shame. It is a shame because at the first reading of this bill the Labour Party did support this bill. The bill was based on research and evidence, it was based on the recommendations from the Royal Commission on the Pike River Coal Mine Tragedy, and we were pleased to see it go to the select committee. But what happened thereafter was a travesty, as we watched the National Party members start to crumble. We watched their knees tremble when some of their supporters came in—

The CHAIRPERSON (Hon Trevor Mallard): Order!

—and gave submissions. I raise a point of order, Mr Chairperson. Can I just ask what the “Order!” was for?

The CHAIRPERSON (Hon Trevor Mallard): Oh, absolutely. The member will sit down. The member was clearly implying a lack of courage on the part of Government members by suggesting their knees trembled. I think the member knew she was doing it, and she will cease.

Thank you, and I apologise, Mr Chair. It was a genuine question. I did not quite take it as that meaning. We watched what happened with the National Party members when their resolve crumbled over what they had gone into on the first reading of this bill when they saw a small number of employers come in and try to sort of rort the process and get this bill watered down. They have succeeded in doing that, from the National Government’s perspective.

This debate will be taken very seriously by the Labour Party. As the acting spokesperson on labour I want to make it absolutely clear that this is a complex and complicated piece of legislation. We do intend to debate the detail, because that is the purpose of the Committee stage debate, and because there are a number of amendments that we wish to pursue we do intend to be able to fully debate the implications. Nothing can be more serious in our view than the consequences of not getting this bill right, and we do not believe that this bill is right.

In front of me I have a taonga, actually, that was given to me last evening here in Parliament from the many families who have suffered workplace deaths in their families. They have lost loved ones in forestry, in farming, in Pike River, and in a range of different workplaces, and they wished this taonga to be present in the debating chamber when this debate took place. It may not always be in front of me—there is a lot of paperwork that goes on with this piece of legislation—but it will always be nearby.

I particularly want to acknowledge the family of Lincoln Kidd, who had this box made up. It reads: “In loving memory of New Zealanders killed at work.” Lincoln Kidd was killed in his workplace in December 2013. He was killed in the forestry sector. The court case for the prosecution against his employer starts on Monday, and that is going to be a gruelling journey for his family as they face 3 weeks of court time, listening to what I imagine will be an employer trying to absolve themselves of things that they should be held accountable for. That will be very difficult indeed.

We do have an amendment coming forward in Part 1 of the bill and I do intend to take some time to speak about that. Before I talk about that I want to come back to the purpose clause, which is in Part 1, and draw the Minister for Workplace Relations and Safety’s attention to clause 3(1)(b), because I think this is the crux of what the Government has not yet got right. It says: “The main purpose of this Act is to provide for a balanced framework to secure the health and safety of workers and workplaces by—… (b) providing for fair and effective workplace representation, consultation, co-operation, and resolution of issues in relation to work health and safety;”.

What we all know is that the best form of worker representation is when they elect from amongst themselves a health and safety rep, if that is their wish. That is what we are asking for. We are asking for the Government to honour that because when this legislation first went to the select committee it entailed that for every single worker, and now we are being reduced to arguing about who does not deserve to have access to worker representation on health and safety. That is what we are reduced to arguing about now, and that should never have been the case. The Government enjoyed the support of this entire Parliament when this piece of legislation went to the select committee, and it is a great shame that coming out of the select committee it no longer enjoys that support, because it should have it. It has sacrificed workers in small workplaces and, quite specifically, those who work in our most dangerous—our most dangerous—sector of agriculture.

I would like the Minister to explain how he can justify—how he can justify—that the biggest killer of workers in New Zealand is not going to be covered by the requirement for an employer to allow people to elect one of their own to represent them on health and safety. I do not think he is going to be able to convince New Zealanders that that is right and that that is going to improve our health and safety statistics, because the largest driver of bad health and safety statistics is, in fact, agriculture, and that is the area that the Government has moved to exclude from that representation.

My colleague Iain Lees-Galloway, the spokesperson on this area for the Labour Party, on behalf of whom I am acting, has put forward a very good Supplementary Order Paper, Supplementary Order Paper 100, which actually promotes a change to the definition of “officer”. We want to make sure that in Part 1 there is an extension to the people who hold the primary responsibility for health and safety. They may not be the person conducting a business or undertaking (PCBU)—and that is going to be a phrase that we are going to hear over and over again in this debate—but they none the less are an officer who should have particular duties. Iain Lees-Galloway’s amendment is brought forward in order to do that.

There are many, many amendments that we are going to be debating through the course of the passage of this legislation. I really hope that the Government will put politics aside when it comes to addressing workplace health and safety and see its way to actually supporting some of the amendments that are made by the Labour Party. I can tell the Minister now that the Labour Party will be supporting some of the amendments that he has put forward in his Supplementary Order Papers. We will be supporting them because we will put politics aside for the sake of getting health and safety right in the workplace. We will put politics aside for that, make no mistake.

I want to see that coming from the other side as well. We have some very serious amendments that will make a difference. It will mean that we do have health and safety legislation that actually stands up to international scrutiny on what is correct.

It is a great pleasure to stand on behalf of New Zealand First to talk on this bill in the Committee stage. I think we are going to have a very robust discussion, and probably a bit of a marathon debate, really. Goodness knows how long it is going to last, because there is so much to go through and go into. Just looking at this, we have got 30 Supplementary Order Papers or amendments on the Table for discussion, and I am sure every single one of those will need to be debated at great length. I do acknowledge the Minister for Workplace Relations and Safety for tabling the document about the guidance on the high-risk industry definition.

I would just like to start by asking a question that he may be able to provide some clarification on. I have actually called into his office, but, of course, he is down here, so it is very difficult to get an answer. It is in relation to R913 as far as high-risk industry definitions go and it is to do with amusements, which I am assuming is large slides and Ferris wheels and the like, which can be quite dangerous, but what are “other recreation activities”? I would like a little bit of clarification on that. We are waiting to hear back from your office, Minister, and if you could just expedite that it would certainly help—

The CHAIRPERSON (Hon Trevor Mallard): The Minister has just whispered in my ear that he will answer those as part of the relevant part—in this particular, case Part 3.

Thank you. I thought I would just take the opportunity to bring it up. I appreciate that. Look, I also want to make mention to the families who came from all over the country to be here to listen to this debate and be in the gallery. We give our apology that it was delayed by a day, and I do believe that it was not anybody’s fault. However, I was in the old Legislative Council Chamber yesterday listening with a heavy heart to those stories of those fathers, mothers, wives, and sisters who wanted to share their stories, and I certainly did have tears in my eyes, along with many of the other members and people who were there. This is what makes getting this piece of legislation right so important. It is 2 years overdue—in fact, it is probably 5 years overdue.

Before I start talking about specific parts of the bill that we are going to be putting some Supplementary Order Papers to amend—it comes down to the Fire Service, I guess, and what it has created as the triangle for fire. What creates fire? To create a fire you need the oxygen, you need fuel for that fire, and, of course, you need heat—energy—to create it. If you take any one of those pieces away from that fire triangle, you, of course, will not have a fire. Health and safety is very similar to that in so far as you need, in order to get good health and safety, three parts to make up solid legislation to ensure the safety of workers. The first thing is worker participation. We have got to have good engagement with those workers, and those workers have to have a place where they can go to and be heard and be sure that their concerns are actually being adhered to and actioned. So that is the first thing you need.

You also need a good employer, who understands the importance of making sure that his workplace is a safe environment for his workers to be in and who does everything that he can to ensure that he gets this—which comes under clause 3, “Purpose”; I can see there are some questions about the purpose of this—in order to ensure that his workers get to go home. The third thing we need, of course, is enforcement around the legislation that has been put there.

If I look at the previous legislation that this country has been run under, two of those pieces were really quite lacking. In the latest Budget, the honourable Minister came though and allocated $8 million for enforcement officers, to ensure that those measures are upheld. If we rewind now back 5 years to the Pike River disaster, if we had had adequate funding and the right resources given to the mine workers around this country—if they had had the time and the resources to actually enter into those mines and take serious note of the mishaps that were going on—then the Pike River disaster may well not have happened.

I also have to say that if there was a strong, robust place for the workers to go to, that would also actually have negated a lot of the accidents that we have in our workplace. This new legislation does a lot of that, and we, as New Zealand First, have some discomfort that we are opposing this bill as it stands at the moment. We would like to think that we can find a balanced middle ground, if you like, with some of those areas where we think that the Government has gone a little bit too far, a bridge too far, and some areas where it has not gone far enough.

So that is what I would like to start talking about now. To reduce those fatalities in the next 5 years by 25 percent—I would like to see that that rate could be reduced even further. That is the first thing. I would like to see 100 percent safe workplaces around this country. Who would not? I do not think there is a single person in this country who would not want that.

But, getting to safe workplaces, I would like to talk about Supplementary Order Paper 110, which we have put forward. We put it through to the Transport and Industrial Relations Committee, and I was a little bit disappointed, not with Labour, and possibly not with the Greens because I understand their position in most things. I do not mean to be derogatory when I say to them, I get you, you know? I get where your position is.

I was, however, very disappointed that, despite having some positive involvement from Mr Bayly in acknowledging the concerns and seeing the sense in what we were trying to say, because he is a pragmatic person. He is a person who has been involved in business—[Interruption]—and from Mr Young also in recognising and understanding my dilemma. When I talk to the vast numbers of small, medium, and even large businesses around the country that suffer from the lack of personal responsibility by their workers with regard to their personal protective equipment, this bill could sort that out. I know the Minister himself said that there is other legislation that could actually deal with this, but why put it into somebody else’s hands when we have got the opportunity here and now to fix it up, by sleight of pen, and to remove this? You say it will not work, Minister, but it will in fact work.

The legislation in clause 28 says that no worker can be levied or charged for any of their personal protective equipment. We absolutely agree with that. That is common sense. If you have got to do a job, you have got to have the equipment. However, there should be onerous circumstances around making sure that those workers look after and protect that personal protective equipment—that they do not give it away, do not sell it off, and do not forget it and leave it at home. We believe that it is not unfair or unreasonable to expect a worker to be levied or charged for unfair wear or tear or loss of their personal protective equipment, because, at the end of the day, who pays for that? Most of those costs get transferred on to the consumer, so the consumer is ultimately paying. But is that about efficiencies of business? I suggest not. Hence I get back to this: how could National not support this in Government and not say: “Let’s look after this.”?

If you go to another piece of legislation—we are talking about human resourcing—again, that is a cost to the business. You have got to go through the process of managing that person out or managing them up to a standard. If we put in a clause that would eliminate that issue right then and there, that to us is a very pragmatic and sensible solution that will bring down the cost to the consumers. It will actually make businesses more profitable.

The second point is about clause 29AA, which is about insurance against fines being unlawful, and which is also referred to in the Supplementary Order Paper from New Zealand First. You can get indemnity for just about anything. You can insure yourself against loss or wear and tear and so on, and you pay for that. It is a user-pays system. So why does this legislation not allow for businesses to protect themselves in the event or circumstance of a serious accident, so that they could actually get that indemnity? If you are a high-risk business, obviously those premiums are going to be higher, and that is a business decision that could be weighed up with the businesses themselves to decide whether they want to pay a premium on an annual basis or take the risk and try to tighten down that legislation. But the reality is that it is up to individuals to decide whether or not they have insurance, and I think that this is another key, practical step that would eliminate some of those problems.

So to read out the clauses that we propose, new subclause (2A) in clause 28 would say: “Despite subsection (1), a PCBU may impose a levy or charge on a worker (or permit a levy or charge to be imposed on a worker) if any personal protective equipment is persistently lost or damaged by the employee.” I do not think any employee in their right mind would think that that is unfair or unreasonable. Take personal responsibility for the things that are going to keep you safe. Then, quite simply, we look to completely delete clause 29AA, which, again, does not allow any employer to insure themselves, or indemnify themselves for their financial loss or cost of a potential litigation in future times. I will be speaking on most of these points today. It is going to be a marathon. My throat is probably going to get a little bit hoarse, so I will have to grab some lozenges. Thank you very much.

I would like to take this call for the Greens in the Committee of the whole House on this, the Health and Safety Reform Bill. In this House the biggest health and safety risk we probably face is a paper cut or maybe a burn on our ears from our cellphones—

💬 Hon Member: Headaches.

Yes, headaches—headaches from listening to bad speeches. We are in a privileged position where we are not facing danger every day like the people who work in our forests, who work on our farms, who work in our mines, and who work in the manufacturing sector and the construction sector. It behoves us to remember that we live in a very privileged position and we have the power to make the world safer, the workplace safer, for so many workers—in fact, all the workers of Aotearoa New Zealand. I am going to make a few general points and then I am going to get into a bit more detail, and, like others have said, we will be debating this bill in detail.

One of the points that I wanted to make, and I was reminded of this before I came down to the Chamber to speak, is that nearly every single New Zealander knows someone, if they are not that someone, who has had an injury at work or has been affected by somebody who has died at work. When you have nearly 300 people dying at work over the last 6 years, and we are a small country, it is inevitable that we need to face their loved ones and be able to say to them that we have done our best to make the world a safer place for them and their loved ones, and that is your right, that is your legacy.

In my own family I remember when my dad came home when I was 10 years old. He was a shunter on the railways and he came home 10 hours late with half his hand missing. That was one of those situations where his workplace was a dangerous workplace. He knew the dangers and he took those risks every day, but he was never able to play the banjo again, he was off work for a year, and we struggled during that time.

Up in my office there is another worker, an office worker who gives support to us, and she told me that she is related to one of the 29 in the Pike River mine, whose bodies still lie in the mines there. I wanted to say to her that I was going to do my best to make sure that after today we would have a law that would mean that those sorts of tragedies, those sorts of accidents, would not happen again. But as we come to debate the details of the bill, I am not convinced that that is what we are going to end up with.

Where the Health and Safety Reform Bill came from was the result of the Royal Commission on the Pike River Coal Mine Tragedy and the recommendations that it made. It also came from the Independent Taskforce on Workplace Health and Safety, which made recommendations, and they were good recommendations. I want to just refer, initially, to the comment from the chair of the independent task force, Rob Jager, who put it to Parliament, really, that “A key challenge in addressing workplace health and safety is that it requires balancing the interests and needs of a number of participants, particularly employers and workers. We are starting with a 20-year-old system that did not find that balance, yet the task has become more rather than less complex over time. … In our view, we have found a good balance requiring compromise by all parties that will both improve outcomes substantially and respect all parties’ needs. Make substantial changes to the balance, and we will lose the vital support of some participants and significantly weaken the potential benefits.”

We supported the bill that came to the House too, because we could see that although it was flawed in many parts, it did have its basis in the recommended Australian Model Work Health and Safety Act—the model Act. But this Government has eviscerated it, and even today we come back to this Parliament to debate the details of the bill to find that some of those details have changed. If we are looking at process—just looking at process, not the detail, at the moment; just looking at process—this is appalling. How on earth are we supposed to make good decisions when we have not had the discussion and the debate during the select committee, nor have allowed others to actually submit on what the Government is, basically, cobbling together at the last minute? I acknowledge your efforts, Minister Woodhouse, to cobble the bill together at the last minute.

Where this bill falls down in Part 1—and throughout the bill—is around participation. This is what the chair of the independent task force referred to when he said that there needs to be a balance. In our view, and in the view of this side, that balance has been lost because the ability for workers to participate in their own health and safety is frequently stifled throughout the bill. There are a few examples. One is around the rights of workers in small to medium enterprises with 20 or fewer workers who are deemed to be in a non - high-risk workplace. These workers do not get the same rights as other workers, and I think, as a previous speaker commented before, that affects around about 300,000 workers in New Zealand. I commend the Minister for circulating an outline of what might be deemed to be high risk, but that is not in the bill at this stage and is yet to be consulted on. So we have to take it on trust. Many workers, when they go to work, would rather rely on their workmates for health and safety than the Government because many do not trust the Government.

This bill is about who is in and who is out. There are some who are in, because they are in a workplace that has over 20 workers, or they are out. And, actually, the change that the Minister wants to make there is that the person conducting a business or undertaking just has to inform that workforce that they are out. There is no consultation, there is no decision making by the workers, and there is no balance to allow the workers to be able to say: “We actually want a health and safety rep and a health and safety committee in our workplace.”

The others who are left out of the legislation are people who work in homes for home occupiers. We are entering a situation where more and more frail people and people with disabilities are being cared for in their own homes. In the past the Government has talked about offering voucher systems so that those people become employers of the home-care workers they wish to have care for them, which, you know, is laudable, actually. It empowers those clients. However, those workers would be exempted from the health and safety legislation. They are not exempted from other employment laws. They are not exempted from the Minimum Wage Act, but they would be exempted from health and safety legislation purely because the work occurs in the homeowner’s own home. I cannot see a justification for that. We are already in a situation where home-care workers are exploited through their wages, and they are going into a situation where they now get exploited around health and safety.

I guess the other people who are left out of this situation are the workers who want to have a health and safety committee, who want to elect a health and safety committee—because they do not have the right to elect a health and safety committee. It is actually the employer’s right to decide whether there will be a health and safety committee and who will be on this health and safety committee. If workers are fortunate enough to have a health and safety rep, that person does not necessarily have to be on the health and safety committee either. And, of course, the health and safety committee does not actually get to access training as a right, either. There is also the question of whom health and safety reps—presuming, actually, that workers will get one—get to represent. I understand that there is a Supplementary Order Paper in front of the Committee, suggesting that workers should actually, bless them, be able to—

Can I start off in my opening remarks by giving an acknowledgment of those people in the gallery who are from Pike River. I would also like to acknowledge the family of Michael Kane who may be here as well. He was a worker who lost his life in New Plymouth.

Can I just say, in terms of remarks on the process that the Transport and Industrial Relations Committee worked through, that this indeed is a very complex and very large piece of legislation, and, by and large, we worked very well to progress it. There were obviously points of difference. There were points and amendments that Labour members brought to the committee that we agreed to, so it has not been about politics. It has been about producing something that is workable and best for New Zealand.

We know in Part 1, clause 3, when it talks about the purpose of this bill, it says the “purpose of this Act is to provide for a balanced framework”. That has been the very intent and the very beginning of what it is all about. It is about having a piece of legislation that is proportionate to the risk. Out in the media world there has been a lot of misinformation. There have been people saying: “So an insurance company of people who work in an office of over 25 will have a health and safety rep,”—I know that is Part 3; we are going to come to that in due course—“but a team of miners who are maybe seven or eight do not have a health and safety rep?”. There has been all of this conjecture and debate taking place out in greater New Zealand, and I am just thankful that the Minister for Workplace Relations and Safety has come today and tabled that list—which he promised he would do in his second reading speech—which starts to identify the high-risk industries where there will be those mandatory health and safety reps.

We have always known that that process will take place, and it is not in the primary legislation because those lists need to be updated from time to time and we want to have flexibility around law-setting. Having a balanced framework is about many aspects of work life. It is about the person conducting a business or undertaking (PCBU) having their responsibilities. It is also about the worker fulfilling their responsibilities. It is also having measures in place that are proportionate to the risk.

There will be companies and businesses that will have three people involved, so one may be the PCBU and the others are perhaps both workers. What this bill puts in place is that every business or undertaking has a legal obligation to have engagement with its workforce and to have participation with its workforce around a health and safety regime in that workplace that protects the workers and also protects every person who comes into that workplace.

So when my colleague Phil Twyford states that 25 percent of the workforce will have no health and safety around them, or that they are carved out, that is not correct. That is not correct.

💬 Phil Twyford: That’s not what I said, Jonathan.

You went on to say that in your second statement around worker representation. This bill is very strong on saying that there is an obligation upon every workplace and upon every PCBU to have a health and safety regime and understandings and procedures in place that incorporate engagement with their workforce at a very meaningful level. In fact, this bill puts in the provision that if somebody contravenes this section, then for an individual there is a fine not exceeding $20,000, and for any other person—and when it is referring to a “person” it is talking about a company—there is a fine not exceeding $100,000. Those are very strong measures. They are very strong measures to ensure that businesses put in place a health and safety regime.

I am very pleased to acknowledge the work, for example, of the Independent Taskforce on Workplace Health and Safety, which is headed by Rob Jager and represents workers right across the work spectrum—in unions as well as in high-hazard industries—which looked at a whole number and raft of measures that are incorporated in this bill. The balanced framework—because this is what this bill starts talking about, a balanced framework—is a framework that is workable for New Zealanders and for New Zealand businesses. You know, it is not selling out. It is not going weak at the knees, but it is having a regime, having legislation, and having a framework of law that people can understand, that they can work with, that they can apply to their workplaces, and that is not tick the box, but encourages a whole culture change.

It is not only the employers and the managers but also the workers who have a part to play. It is not just the worker representative—and I am not saying that that person is not important in the mix of things—but it is saying that every single worker has a part to play, and this is the culture change that we need. This is where everybody thinks: “What is needed to keep myself safe and my workmates safe? What is it that is needed in this surrounding, this situation, with this industry that I am working in?”. That is what we want to encourage, and that is very central to what this bill is about, because it is about engagement and it is about effective participation. None of that has ever been changed. It is, at the nub, the very essence of this bill.

I believe that when we look at this balanced framework we have got to acknowledge that there are industries that are high risk and there are industries that are not. It is not one-size-fits-all; it is what fits for that industry to make it safe for its workers and for people who come into that workplace. It is important for us to get it right.

All that we have heard from the Opposition is that it is one-size-fits-all, and we know that it is not. By and large, we have worked, I think, quite constructively. There are obviously some differences, but from our side I believe that we have come to a good place, and I am happy to defend that position. Thank you.

Thank you very much, Mr Chairperson, for giving me this opportunity to speak for the first time on the Health and Safety Reform Bill. Can I begin by acknowledging all those who have lost loved ones in the workplace through workplace-related injuries. Can I also acknowledge all of those who have had their lives altered by injuries in the workplace and acknowledge that there are many, many people who are injured in the workplace every year. The impact of those injuries goes on for some time—often long after the physical manifestations of those injuries have well healed—and I want to acknowledge all of that.

I want to talk, first of all, about the purpose of the bill and the principles behind it, and then I have got quite a few technical issues that I want to raise with the Minister for Workplace Relations and Safety to see whether we can get some answers on those. The first part of the bill that I want to talk about is under the purpose clause, clause 3(1)(g), which basically states that the bill aims to provide “a framework for continuous improvement and progressively higher standards of work health and safety.” I have been visiting a number of firms in my electorate asking them about this, and it would be fair to say it has certainly got businesses talking, this particular debate. It has got them considering the implications of this legislation for their workplaces. I have actually been surprised by the level to which those firms are already engaging in the detail and are already preparing for this bill to be implemented. Some of the concerns that they have are not some of the ones that I might have necessarily anticipated.

I visited, for example, an engineering firm that employs more than the 20 people mentioned. It is concerned that if the small business exemption goes through that many of its competitors—people it is competing with for contracts—are not going to be subject to this bill, but it is. So its concern, for example, was what happens if a firm simply separates itself into a number of different firms under one umbrella in order to get around this bill. It could find itself competing with that firm, and therefore it is subject to a higher standard than some of the people it is competing with.

It is concerned about that, and I think that is a legitimate concern, so I am interested in hearing from the Minister how it will be that that will be avoided—how that kind of behaviour from firms will be avoided. It seems to me that if a firm is able to set up, say, a new firm—a subsidiary company for each new contract that it gets—and employs fewer than 20 employees within each of those subsidiary companies and therefore is able to get around the provisions of the bill, then I think that really starts to question, quite fundamentally, whether this is going to achieve the goal that is set out quite clearly there in clause 3(1)(g).

The second point that I want to raise is around clause 3(1)(d): “promoting the provision of advice, information, education, and training in relation to work health and safety;”.

💬 Hon Michael Woodhouse: Which clause?

Sorry, where was I; clause 3(1)(d) around the promotion of advice, information, and so on. The feedback, again, that I have had from businesses in my electorate is that they want to comply with health and safety, they want to provide good safe workplaces, and in many cases they are going out of their way to do so.

One of the firms that I visited, for example, had just spent $25,000 getting people to come in and audit its work practices so that it can actually get a good report on whether it is doing things well. What it is concerned about is that it cannot get straight answers as to whether or not what it is doing is going to be compliant and whether in fact it is meeting the standard for making best endeavours and all of those sorts of things to ensure that it is providing a safe workplace. So I guess the question for the Minister is what leadership the Government will play in that regard through WorkSafe, ACC, and others, and saying to employers “Yes, you are actually doing the right thing.” or “No, you need to shape up.”, because those employers do want to comply with the bill, and at the moment they are not sure that they are necessarily going to be able to, and I think that is certainly is something that they would like to have answers for.

I want to turn then to clause 6, which is “Application of Act to Armed Forces”. There is an exemption here for those who are on operational service within the New Zealand military. I can certainly understand that, you know, you are putting troops into harm’s way in the military, for example, and so to some extent there are going to be health and safety risks in that. That is inherent in being involved in military service. However, there are other examples that I would like to tease out more where this may create some strange behaviour.

The question that I particularly have is around, for example, a disaster domestically within New Zealand. So if you take, say, the Canterbury earthquake, where the military may be deployed on operational service as a result of a disaster here at home, would this exemption apply there, and what would the justification for applying that exemption be in that circumstance? It seems to me that you could have something like the Fire Service or the police—other forces that are operational in those things—that would have to comply with the bill, and then you could end up with the military not having to comply with the bill. I would like to know a little bit more from the Minister about how that might come into being and what might happen around that.

Clause 7, “Application of Act to aircraft in operation”—I worked through this one carefully and tried to get my head around what it actually means. The example that I am interested in here is aircrafts that start their operation in New Zealand but may have a continuous flight that stops off along the way. There may be two long-haul flights, for example. They start in, say, Auckland and travel long haul to somewhere, they often have a change of crew, and then travel on to another destination.

My reading of that clause would be that if the crew is still employed by the same employer, even if the crew is domestically resident somewhere else, would it be covered by this? I would expect that, yes, it would be covered by this, but I would be concerned that there may be ways of an air operator getting around that, so I would just like some clarification from the Minister on that particular part of the bill. It seems to me that if you have got a New Zealand airline—and we now have more of those operating here domestically in New Zealand than we have had previously, which is a good thing—what we would want to avoid is it getting halfway through a journey and then being able to opt out of the health and safety law because it is changing crews and, potentially, even changing the part of the airline that is operating the aircraft at that time. So I would like to get some further clarification from the Minister on that particular one.

I then move to clause 11, which basically states that this bill will not apply to “a prisoner who is carrying out work inside a prison.” I would like to hear the justification for that because, again, we come back to the issue where, if you have got a firm that is based in a prison and is using the prison workforce—which is something that I personally believe in, because I believe in having prisoners being provided with employment opportunities and upskilling opportunities through work in prison—whoever is operating that worksite may be competing to get business with a firm from outside that is not operating with a prison workforce. So why would you have the health and safety rules apply to the firm outside, but not to the firm inside the wire—inside the prison?

Why would you say to a prisoner who is doing exactly the same job as somebody working in the same role outside prison that they have less of a right to health and safety than somebody working outside the prison? So I would be very interested to hear the justification for that clause 11, and why it is that the Government thinks that prisoners should be exempt from this legislation when they are doing a job that is equivalent to exactly the same job that someone outside prison is doing. I do not think that there is any justification for that, and I would be very, very interested to hear from the Government as to whether, in fact, there is justification, or whether this is perhaps an unintended part of this bill.

Those are my first questions. I am looking forward, in due course, to getting some replies from the Minister to those. I have got others, which I am sure we will get to as the debate progresses.

Tēnā koe, Mr Chair. Tēnā koutou e te Whare Pāremata, and also greetings to all who have experienced the reality of workplace un-safety. I would just like to acknowledge the people who spoke in Parliament last night about their experiences. Bernie Monk said to me: “We didn’t want memorials and tears; we wanted action.”, and those words are ringing in my ears. He said that he had said this to the Prime Minister of New Zealand and he has not had it, so it was a very powerful moment for me, personally, to hear that directly from Bernie. I would also like to acknowledge my friend—he is one of the reasons I came to Parliament—Mr Joe Harawira, who is also in Parliament at the moment. He, along with his many, many colleagues from around Aotearoa, has had incredible experience of workplace lack of safety, and he is still fighting—and I am not convinced that Part 1 of the Health and Safety Reform Bill will address this—for ACC recognition of his being poisoned in the workplace. So these people have had an amazing experience. I toured the country with them on a tour called the People Poisoned Daily Tour in the early 2000s, and they got a designated doctor whom they have since lost because the Government is no longer funding that. So I just want to mihi to Joe Harawira today and say that many of us will keep fighting for the fact that workplace safety is not just about large workplaces and not just about current issues; it is also about historical, unfinished business.

It is not just about the obvious dangers. There are many forms of health and safety that people are unaware of in what might appear on the surface to be safe workplaces. If you are talking about farms, if you are talking about forestry, and if you are talking about the timber industry and the mills, people suffer, not only from terrible accidents and from the refusal of the employer to understand those very obvious risks but also because they do not always understand the chemicals they are dealing with. That is what happened to Joe, and that is what happened to his many, many friends and family because the chemical that they were exposed to has intergenerational effects. It has the effect of impacting on the worker, their partner, and their kids intergenerationally. I have seen cases of people with holes in their heart and the lists of miscarriages and the terrible cancers and the diabetes that come when workplaces do not take safety seriously. I am not convinced yet that this “Tolstoyan novel” that we have before us is actually going to address what has happened to the sawmill workers of the Bay of Plenty and of Aotearoa. I am not satisfied yet, and neither can they be.

I want to go to Part 1, and in clause 3, “Purpose”, subclause (1)(a) states: “protecting workers and other persons against harm to their health, safety, and welfare by eliminating or minimising risks arising from work”—that, presumably, means everybody—“or from prescribed high-risk plant;”, which is obviously going to be debated later. “Work” does not exclude workers in the home. “Work” does not mean not in all forms of agriculture. “Work” does not exclude prisoners. “Work” means work, and a worker is someone who is doing the work, not somebody whom you decide is not actually entitled to protection because they do not fit into a category—it is about when people are working. So I am at a loss to see how anybody could be excluded from this. This is not about one size fits all—that is an incredibly disrespectful way to talk about everybody’s right to be included in health and safety legislation. I cannot think of anybody in any circumstance at work who should not be protected. A small workplace of fewer than 20 on the farm or off the farm, a large timber mill, a small site—everybody is at work. Prisoners work. Everybody works, and this bill does not protect them because you cannot fulfil clause 3(1)(a) without making a better job of clause 3(1)(b).

Clause 3(1)(b) states: “providing for fair and effective workplace representation, consultation, co-operation, and resolution of issues …”, but that cannot be achieved if workers cannot select a health and safety committee, their own representative, and all of the other things that go with that. The whole reason that we had the Pike River disaster was that Peter Whittall would not listen to the workers. It was not a bunch of workers refusing to put on their safety gear; it was methane every day, day after day—methane, methane, no ladder, methane. There was a room full of complaints. Read Rebecca Macfie’s book—read the book. Those workers complained every single day that they were at risk, and what happened? A big, fat nothing, and they died—a big, fat nothing, and they died. And what is happening to the sawmill workers is a slow, creeping death, and I am not exaggerating. You talk to them and find out whether I am exaggerating. It is a slow, creeping death because they still cannot get recognition of the danger of the chemical to which they were exposed, even though it was banned in 1980. So we have got a lot of work to do, and this bill, unfortunately, for all its merits—for which we have tried to support it—does not fully do that work. It actually excludes some critical issues, particularly the issue of protecting workers.

I was at the Transport and Industrial Relations Committee one day—and I do not claim to have anything like the knowledge of those of you who went right through this, particularly my colleague Denise Roche, but I was there—when somebody on the select committee said: “Oh, do we have to use the word ‘worker’?”. I found that very revealing. I think it symbolised for me the problem. The ideological problem of the Government is that it does not understand that participation is not equity. Participation is not justice. Calling everybody the same thing will not result in protection from tragedies like Pike River. If you are a forestry worker on the Napier-Taupō road you are the one at risk—not your boss, not the contractor, not the shareholder. The reality in the workplace is that the most effective way to achieve health and safety is to empower the workers so that they can actually get their issues through collectively so that they can be heard as issues of mutual responsibility, because of course it is about mutual responsibility, but you cannot achieve that with power inequity.

💬 Jonathan Young: A workplace of two people?

Two people of unequal power, Mr Young, and that is the word that no one wants to talk about. I have been a worker and I have been an employer, and I know the feeling—I know it because I am an employer right now, in this House, of an executive assistant. I have more power than my worker and therefore there have to be checks and balances. This is not balanced if the health and safety legislation does not allow for the health and safety committee. We absolutely need the workers to be able to identify the risks, as well as the good employers who already want to do that.

We cannot sit by after what has happened in this country, what we have seen these people go through—the people who came to testify yesterday. We cannot sit by and say: “Hey, we’re all in this together now. We’ve had the experience of Pike River and the forestry deaths, and the sawmill workers are still dying of the poison, but actually we are all just going to be good now because we have got a bill that says it is all about everybody.” I do not think those people who experienced this—the sawmill workers who fought for more than 20 years to get basic justice for what has happened to them and their families—are particularly romantic about legislation. They are not romantic about Parliament. They are not romantic about participation. What they want is justice, and justice requires the law to regulate to create power equity. If we are not prepared to do that, we should just say so. Call it something else, but it is not comprehensive health and safety; it is health and safety based on the idea of cooperation when there is a power imbalance.

I know that there are many, many details in the bill and there are many alleged checks and balances, but there is not going to be safety for the people I came to Parliament to represent if we do not improve this bill—and today is the last day. Denise Roche and others have put up Supplementary Order Papers; Iain Lees-Galloway has put up Supplementary Order Papers. The Government has put up Supplementary Order Papers, but our analysis is they are not really changing things profoundly; they are basically continuing business-as-usual. Tweaks are not what it is needed. What we are looking for is to hear that shift in the consciousness and heart of the Government. We are waiting for that shift, that “Aha!” moment where Government members get that it is about equity and that safety comes from making sure that power is balanced—not that balance is balanced; this is not a circus act. This is about balancing power, and then we will get safety. And then we would be delighted to support all the other positive things in that bill. We would be delighted to, but until such time as that is there we cannot.

We are very disappointed, because we were hoping the work overnight by the Māori Party on the Supplementary Order Papers would result in changing some of the fundamentals. The families last night talked about coming here for justice. Their stories are simple and painful and cannot be minimised and cannot be overlooked. So we will keep standing up for that until the last minute of this bill, because nobody should go to work and experience the risk of this kind of creeping—or immediate—health and safety destruction. I urge people to go to talk to Joe Harawira.

I want to thank all members who have spoken so far on Part 1 of the bill. We are now diving into the detail. There are about half a dozen questions that have been asked in respect of specific clauses in the bill, and I would like to address them in order, starting with clause 28, as raised by Mr Mitchell.

Clause 28 is something that he did discuss in his second reading speech, if I recall. I am not likely to change his mind on whether or not the bill should be amended, but I will say that the bill is framed in a way that prevents the risk that a worker, however careless in forgetting or damaging or destroying personal protective equipment, is then put in a situation where he or she has to make a decision about whether to be levied or do without. That is not a situation I think that anyone in this Committee would agree is satisfactory. The remedies that are available to the business are around, firstly, the disciplinary and performance management processes that are available under the Employment Relations Act. It could, potentially, with the agreement of the worker, involve some kind of deduction from wages for negligence or gross negligence, but it should never result in the withholding of, or the failure of the employer or the employee to replace, personal protective equipment that is required to keep an employee safe.

In respect of clause 29AA, “Insurance against fines unlawful”, this is a longstanding convention. It is in the existing law, as I understand it, and actually exists in other parts of commercial law where it is not appropriate or lawful to contract out of obligations in law. An employer, as I understand it, can insure against the costs of litigation. So if the regulator takes a prosecution against a person conducting a business or undertaking (PCBU) for failure to take practicable steps to keep one safe, it is, as I understand it, quite lawful to insure against the costs of that prosecution. But if a fine is levied by the courts, it is not lawful, and, indeed, it would be set aside and fined, for an employer to insure against the fine that would be imposed. The reason is quite obvious: that simply takes away any of the skin in the game that a PCBU would have for their failure to take practicable steps.

I want to move on to the three things that were raised by Mr Hipkins, starting with clause 3(1)(d). He raises, I think, matters not only of law but of practice, and I want to start with the guidance that he thinks should be appropriate. I agree, and so did the Independent Taskforce on Workplace Health and Safety. I am going to go a little more into what the task force said about this in Part 3, when we talk about worker participation, but the task force recommended that, consistent with modern regulatory practice, the new agency that is now WorkSafe New Zealand should have a wide range of functions specified and those functions should include monitoring the system and providing rules, “ACoPs” or approved codes of practice, and guidance to provide certainty and promote and support education and advice. As a country of small business, that is going to be a very important component of the work that WorkSafe New Zealand is already doing and will continue to do when the law is passed.

I was fascinated at the issue of a small business that had been told by an auditor to spend tens of thousands of dollars on an audit to comply with new legislation. I am concerned that some health and safety consultants are generating a climate of fear in order to create business. I had a meeting in Sarah Dowie’s electorate in Invercargill at the start of the year, a very good meeting with the Southland Chamber of Commerce, and the first question I was asked—he was a farmer—was: “Minister, I’ve been told by my health and safety consultant that I have to spend $10,000 on an audit to comply with the new legislation. I’ve got to do all these things and fill in all these forms. What do you have to say about that?”. I said, quite simply: “Get another health and safety consultant, or go and do it yourself. Use the guidance notes and the approved codes of practice that WorkSafe has and the Safer Farms documentation that is available right now, because that should be sufficient.” This bill when passed does not constitute a great melee of red tape in which small businesses will be wrapped. I have to finish by saying that, actually, good health and safety consultants have a very important part to play in this environment, but I think we need to be a bit careful of snake oil sales reps.

As to the other matters raised by Mr Hipkins, I want to talk just a little bit about clause 6, because I have, in my Supplementary Order Paper 108, made some changes to the way the Act applies to the armed forces. It does go some way, actually, to addressing the question Mr Hipkins has raised about “operational service”. Presently, “operational service” is a nomenclature, if you like, that has an application triggering other things, not the least of which is, potentially, veteran support and so on. Often we are finding ourselves in the situation where Defence Force personnel are deployed into situations that might not formally constitute operational service, but clearly are offshore or potentially puts them in harm’s way. So the Supplementary Order Paper will broaden that definition and define it, actually, as what we will now call “operational activity”. That operational activity will specifically define pre-deployment training, so that, say, army personnel, before they went to Taji, would have been in Waiōuru probably, training for a few weeks before they left in a live situation or as close to the situation that they would face when they got to Taji. Although the Defence Force has its own responsibilities to keep its personnel safe, it is appropriate that that can be exempt from this legislation as well.

The Canterbury earthquakes example I think is a very good one. The Chief of Defence Force will now have the opportunity to declare operational activity, even domestically, and therefore be outside the grounds of this bill. Mr Hipkins raised the question about how that works when they are lining up beside the Fire Service, the ambulance service, and the New Zealand Police. Indeed, that is a fair question, but the key to this is practicable steps—taking practicable steps. We know that those emergency services, civil defence personnel, and others are putting themselves in harm’s way from time to time, and that it is a balanced response that reflects that risk environment.

The last thing Mr Hipkins raised around clause 11 was why prisoners are exempt. Well, they are not exempt from the coverage of the bill. They are exempt from Part 3 of the bill, under clause 11, which is around worker participation. They have an obligation to keep themselves and others safe, and the employer in that situation, or the PCBU in that situation, must provide them with all of the protections and education and personal protective equipment that is required. But they will not have a health and safety rating system, actually. That is what clause 11 says.

The last thing, which was raised by Ms Roche and Catherine Delahunty, is around domestic workers. It was portrayed in the intervention that this is somehow the lack of protection either for domestic workers or for the people whom they serve, but the exemption is a very practical one. One could have the situation where an ACC claimant or a frail elderly person who is being washed and dressed every morning, as part of their care at home, could potentially be a PCBU under the definitions and actually have responsibilities that I do not think are appropriate for them to have. So clause 13, the definition of a PCBU, specifically exempts them and I think that is a protection.

Others delivering services like that, as Mr Hague would definitely know, are subject to other obligations under the Code of Health and Disability Consumers’ Rights, and the workers themselves have obligations and protections. But I do not think it is appropriate for those people in that situation to have the onerous obligations of this bill.

Just before we carry on, the speeches to date have been quite wide ranging. The scene was set earlier by the Minister, and that was fine. There have been many generalities. I would ask now for members to come back specifically to the clauses in Part 1, so that we can now get into the real substance of what Part 1 is about. I am going to call the Hon Damien O’Connor.

I guess it is a responsibility, not an honour, to speak on Part 1 of this bill. I would like to go back, and I appreciate your advice, Mr Chair. I want to keep to Part 1 of the bill. It is around the reasons for the whole development of this bill and the issue, I guess, of small or large workplaces. Obviously they are defined in Part 1 as the armed forces, intelligence and security agencies, and aircraft—all places that are generally quite large places with quite a number of workers. Can I just go back to what has been the driver of this bill, and it has been mentioned on occasion, of course. Pike River Coal, a large workplace, has been seen as the primary driver—the place of a shocking disaster that gave rise to a new awareness around health and safety.

I have to go back a couple of years from that to a small workplace, to one where there was a maximum of six employees and indeed only two workers in a mine. An accident occurred, and one of the workers, Robert McGowan, was killed. I raise this because I do not think his name or the agony that his wife has had to go through over those years has been mentioned. I can remember as if it were yesterday his wife coming up to me in the street in Greymouth, on the day after the Pike River disaster, and saying to me: “I told you so—I told you so.”

What had happened as a result of that terrible accident in a small workplace, in a mine—a small high-hazard workplace like a farm, I guess—was that Robert McGowan had lost his life. An investigation was carried out, and, indeed, there were queries of the mining industry. The conclusion of the Department of Labour’s investigation was that it was only the small workplaces that were risky, and the larger workplaces were indeed well run, well regimented, and had everything in place. But incidents like that, and, I have to say, subsequent ones in areas other than mining but in high-risk places, have often been in small environments and small workplaces where people have suffered terrible tragedies.

Part 1 covers health and safety at work. I guess I am trying to define workplaces and exclusive economic zones, and in keeping in line with the tight nature of our debate I welcome the opportunity to expand on that later on. I think the definitions are in areas that we in Labour are challenging. The compromise that the Minister—not the compromise; he does not say that. The Government does not say that; we say that. The balance, I guess, that the Government has claimed as being achieved through changing the definitions in the bill in our view is very, very dangerous and will inevitably lead to fatalities.

I hold before you a book, Tragedy at Pike River Mine: How and why 29 men died, which I am just starting to read. It has been out for a little while. It has in here quotes from Hansard. It has quotes from debates in this House. I say to members in this House that as we go through this piece of legislation, be very careful of what you say. Be very careful of what you say because people will read what we have said in this House. If we have been obviously compromised in our thinking and in our advocacy, then the public in the future will have every right to come back and say to us as MPs that we were irresponsible.

Some things are obvious. Some things need to be carried through in Parliament. For whatever reason—political expediency, wheeling and dealing, negotiation, balance; call it what you like—if we proceed with Part 1 or Part 2 or Part 3, or whatever, of this piece of legislation and it does not provide proper protection by way of legislation, we cannot hold the hand of every worker in every workplace in the country. We understand that. But legislation has to be comprehensive enough to try to protect often the minority of people who do not have the skills, have not been given the training, or do not have the awareness. Those are the people—

I do appreciate the call yet again in this marathon debate that we are having. I do also acknowledge and very much appreciate the words of the honourable Minister, because it is great that we have got this engagement, this opportunity. I hear his discussion with regard to clause 28, not levying workers. I really would like you to reconsider that, Minister. Let me just give you two examples of how this modification in clause 28 will have a positive impact on businesses around the country.

When I was around talking to the meat workers, we had a chance to have a serious conversation with regard to senior management and the new definition of a person conducting a business or undertaking (PCBU), as they would be under this new legislation. They employ some 300-odd workers in this place, yet they find that at least 30 percent—30 percent—of their workers on a daily basis come in because they have left their safety goggles at home: “Oh, goodness me! I’ve left them at home.” So they get handed another pair. They say: “Oh, goodness me! I’ve left my hard hat at home and my high-vis jacket.” So they give them another one. They have got stocks and stocks and stocks of this stuff because they go out like cannon fodder to their employees.

The point is that the employer is not going to send the worker home and say “Sorry, you can’t work today until you go and get your other one back.”, because, of course, that is going to slow down production. So they hand them over another pair of glasses at $15. If there was a levy that could be placed on that worker to say “Look, I’m going to give you that. I’m going to take you down for $15 for a pair of safety goggles. Make sure you bring them back tomorrow, or replace your other ones.”—that is the sort of simple practicality that this legislation will allow.

You talked about not being able to levy these workers, or charge them, but consider a different scenario, a not-so-practical scenario, where we have got a workplace where there is a tree-felling gang going around and clear felling a section. If the lumberjack forgets his chaps and his hard hat and safety goggles, there is clearly not a resource or a four-wheel drive that hosts all the gear that they need. They simply cannot go to work that day. So what we are saying is that it is not a matter of the worker not being able to work; in a situation like that, they cannot come to work. It is unsafe, and no worker—or no employee or employer, PCBU, or worker—will allow themselves to get themselves into a situation where that would happen.

So, practically, we are just simply saying that in the event of staff members showing up regularly—ridiculously—without their personal protective equipment, we as employers should be able to sensibly say: “I’m going to charge you for that, and bring it back in tomorrow.” Any employer where you have got a staff uniform required that might not be personal protective equipment, you would surely say to that staff member: “You haven’t got your shirt on today. Here’s another one. Either bring it back washed and cleaned and ready tomorrow, or we’re going to charge you for your staff uniform.” It is the same thing, and any worker and any employer has the ability to do that with a uniform, yet this is part of a uniform and you are unable to do it.

I think the Government is missing the point. It is a simple, common-sense, practical solution to a problem that has just been transferred into something else, and we would love to see the Government support that because it would make a huge difference to the businesses that are forking out millions of dollars on personal protective equipment, with absolutely no recourse for staff because there is no comeback on it.

I would also like to bring your attention to your response—and I acknowledge that; I think it is fantastic—around not being able to put insurance against fines or for anything unlawful. Insuring yourself, I think, is quite important. One of the things that this bill may have an effect on, an unintended consequence, if you will, is around people seconding themselves to boards. In a council-controlled organisation, where you have got councillors who are, obviously, protected under this legislation from having any legality of onerous—as soon as they get seconded on to a council-controlled organisation, they all of a sudden become legally culpable for any mishaps in that workplace. Let us be honest. Some of these council-controlled organisations that are around the country, operating in Auckland, Tauranga, Rotorua, and Wellington, even, are quite large and quite onerous. You are going to have a push back from the communities of people who want to take on that responsibility because there are going to be some very far-reaching obligations for them legally, morally, and so on. The ability for that person on the board to not be able to insure themselves I find a little bit absurd. Just to finish off on this clause, which covers off a lot of what I have got to say too—

I too, as other colleagues have said, am honoured and feel a sense of responsibility in taking my first call in this debate on Part 1 of the Health and Safety Reform Bill. In this call I want to cover off three main things. I want to cover off clause 3(1)(b) and also clause 3(1)(d), and then talk specifically also—if I do not do it in this call, then in a subsequent call—to Iain Lees-Galloway’s Supplementary Order Paper 100, and particularly the amendment to clauses 13A and 13B.

The reason I want to start on the purpose clause—clause 3, and then in specific detail, clause 3(1)(b)—is that in many ways this is the tragedy of this bill. When you read the purpose clause, I think that most New Zealanders would look at that clause and say that that is what we want. That is exactly what we want in terms of protecting the health and safety of our workers. It is why the bill was supported across the House in its earlier stages. As you work through clause 3(1), the notion of “(a) protecting workers and other persons against harm to their health, safety, and welfare by eliminating or minimising risks”—that is what people want—“arising from work or from prescribed high-risk plant;” I will return to this point in a minute. But clause 3(1)(b) particularly, which is “providing for fair and effective workplace representation, consultation, co-operation, and resolution of issues in relation to work health and safety;”, is exactly what people wanted in response to the tragedy of Pike River. That is exactly what people wanted in response to the huge death toll that we saw in industries like forestry. That is what was required in terms of a return from the tragic consequences of deregulation in health and safety.

Standing up here today, I do not want to make this about a party political statistic, because I do think there was a genuine desire in the establishment of the working groups and the expert groups that went into this legislation to give meaning to clause 3. I think that is what people intended. There was a shared understanding across different Governments that the deregulation around health and safety had gone too far. That was a shared responsibility in this Parliament, and the process that went into establishing the purpose of this bill, under clause 3, was a good process because it took all of us back to what the purpose of health and safety law should be. That includes those core elements of clause 3: the principal elements of the protection of workers; the ability to provide for effective representation; and the ability for good quality advice, information, education, and training to be available.

They are the core bedrocks, and what disappoints me so much in taking this call is that as we work our way through Part 1 we begin to see the undermining of that purpose clause. I think the majority of employers strongly support the notion of robust health and safety legislation. We know that. It happened as this was developed. Large employer groups are coming forward and saying: “We support this. We support clause 3(1)(b) because we do need more effective worker representation.” That is why it is so disappointing that when we fast-forward in this to clause 13, we start to see the unravelling of what we want here.

So clause 13, in terms of the meaning of a person conducting a business or undertaking (PCBU), is a good and positive development. It is a clearer clause to describe something that did not really work, in terms of talking about an employer. It did not really give a full meaning of what that is. Saying that a PCBU is a person conducting a business alone or with others, whether it is for profit or not, is important. It has given us a nice, broad definition. But then in clause 13A we start to see the unravelling of that, by the narrowness of the definition around the meaning of an officer. Iain Lees-Galloway’s Supplementary Order Paper 100 goes straight to this.

The bill tells us that officers can be held responsible for health and safety practices, including those with overall management responsibility, but it critically leaves out those who have management responsibilities specifically for health and safety. It is my view, and the Minister may choose to take a call on this, that when you read clause 13A as it currently stands—and obviously subclause (a)(i) covers off the position of a director—as you read through, I think that the only people who are going to fall under this are, effectively, chief executive officers of the company or those at that level.

💬 Hon Michael Woodhouse: Directors.

I did say that—I said directors and chief executive officers. What it does not do is capture what I suggest would be the situation in a large number of firms where the officer is in fact somebody else. You see this in a range of firms. It might actually be a chief operating officer in some firms, who actually, within their ambit, covers health and safety. In some firms—in good firms—it is often somebody with a senior role in health and safety. We are starting to see more of that in firms that are taking this seriously.

We should be encouraging that. We should actually be saying that we want the definition of “officer” in clause 13A to be a positive thing—that we want to encourage companies that have those sorts of positions to be developed. Ultimately, if we do not do that, and if we leave the definition as it is today, I think we will actually fail the purpose clause of the bill.

If we go back to clause 3, what we see there is that we are failing clause 3(1)(a), because what we are not doing is providing an adequate definition to minimise and eliminate risk. What we are certainly not doing is dealing with clause 3(1)(b), in terms of fair and effective representation, consultation, and cooperation. We will not get the level of cooperation that we need in order to ensure the high standards of health and safety that I do believe members around this Chamber want, if we narrow down within the definition of a PCBU, whom we regard as an officer.

As I said, this is really the beginning of the unravelling, and we will come to this a little more when we look at the definition of high-risk industries and when we look at how we decide whether or not an organisation requires workplace health and safety representatives, but, fundamentally, it starts to unravel here. It is certainly my view in terms of clause 3(1)(c)—I do want to come back to that—“encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting PCBUs and workers to achieve a healthier and safer working environment”.

Every piece of literature that you will now read about what makes for a successful workplace will tell you that it is built on engagement between employers and workers. If you look at an organisation like Air New Zealand, which has had huge problems in the past in terms of the way its industrial relations and health and safety has worked, it is now on a new path because it has taken a different approach to this. It has actually adopted the words of clause 3(1)(c), in part, in the charter that it is now working towards. That is how you get good quality health and safety. You do not get good quality health and safety by saying it is simply the responsibility of the director or the chief executive officer. The risk of clause 13A as it currently reads is that it effectively creates that tier, and only that tier, of people who have the responsibility.

If we want high-functioning workplaces that minimise and eliminate the risks that arise from work, we will get that only when we start to understand the different roles of people within an organisation. That means both the workers and also in this case—I would say the employer, but I will use the terminology in the bill—the PCBU.

So I am calling upon all parties to support Iain Lees-Galloway’s Supplementary Order Paper 100—in fact, all of the elements of Supplementary Order Paper 100; but under this part, the replacement of clause 13A. The specific amendment he wants to make is that in clause 13A(b) he wants to insert a new paragraph (ba), so it says: “includes any person occupying a position in relation to the business or undertaking that allows the person to exercise significant influence over the health and safety practices of the businesses or undertaking;”. That means moving it beyond a director and beyond a chief executive officer, to the people who will actually provide the responsibility for health and safety.

I move, That the question be now put.

It is a pleasure to take a call on Part 1 of the Health and Safety Reform Bill. Can I thank the Minister in the chair, Michael Woodhouse, for answering a number of questions that were posed to him from this side of the Chamber. There was one question that Chris Hipkins posed that the Minister may have forgotten or did not address in his earlier statement and that I am certainly interested in too, and that is where businesses are of a size whereby they may or may not be caught—where they have either under 20 or over 20 employees.

There is concern, I guess—and I have had it from one business owner—as to whether they may or may not be caught, and that other business units that may be of a size of, say, 32 employees may break into two separate business units, so they are not caught by this legislation. It is something that I have certainly spoken to one business in the building and construction sector about. That local business takes health and safety very seriously and wants to make sure that it adheres to any health and safety regulations, but it also wants to make sure that any other business that is competing with it cannot necessarily game the system by separating into two business units so they are not caught by this legislation.

I guess that if there is any safeguard or response that the Government may have, then I would certainly be interested in hearing from the Minister on that. I think Chris Hipkins brought that up as part of clause 3(1)(d), and so, if the Minister does have a response to that, it would be very useful.

I also want to move us to a different clause, clause 17, and that is the meaning of what is reasonable and practicable. I guess this is what you would expect, under this piece of legislation, that a good employer or a good workplace would do to take measures to mitigate any risks, especially in high-risk units, for workplaces, in order to prevent any injury or harm to their employees. Clause 17 talks about the availability and suitability of ways to eliminate or minimise the risk, and, after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

I think this is a pretty key piece of this legislation because for those firms that have not done this kind of work, there have been, in many cases, deaths and injuries in their workplaces. I do want to acknowledge the family of Mark Samoa, who was a worker at CentrePort on the waterfront here in Wellington, who was killed at his workplace in January 2013. When the High Court made its decision in the prosecution of CentrePort for his death, it said that CentrePort had failed to have a procedure for the interaction between the pedestrians and the forklift that dropped the bales, I believe, that crushed Mr Samoa at his workplace. The judge found that because CentrePort failed to have such a procedure for this work, it also failed to train, supervise, implement, monitor, and communicate the procedure to its staff.

I believe that this piece of legislation does give more safeguards to workers. It does put the onus on employers to make sure that this kind of thing does not happen again. But, as has been said by many people on this side of the Chamber, we believe that that right should be available to all workers—not just to workers in a business unit of a certain size, but to all workers—regardless of whether they work for a company that has a staff of under 20 or over 20. I think this is something that the families of those victims seriously want to have looked at. There was a very frank comment from Rhonda Samoa, the sister of Mark Samoa. When the verdict was given in that High Court case, she said: “I know human error was involved here, but there were not enough measures in place to protect against that.” She went on to say: “Unfortunately it’s taken [a court case] to give [CentrePort] a good [kick] up the arse.”

On this side of the Chamber we are asking that the Government seriously think about this, so that we do not have to have another High Court case, and that we do not have to have more deaths, and that businesses, such as CentrePort in this case, get the kick up the arse that Rhonda Samoa suggested that that company needed, just to keep her brother safe in his workplace.

Clause 17 talks about the kinds of protections and reasonable steps that a company should take—

I move, That the question be now put.

Yes, we have had fair coverage of Part 1, so the question is that the question be now put.

💬 Sue Moroney: Oh, point of order—

The CHAIRPERSON (Lindsay Tisch): No, I am ruling. The question is that the question be now put—

💬 Sue Moroney: Point of order—

The CHAIRPERSON (Lindsay Tisch): The Committee makes the decision as to whether it accepts it or not. It is in your hands. So the question is that the question be now put.

I raise a point of order, Mr Chairperson. I want to raise a point of order about your ruling to accept the closure motion when there were a number of speakers who had not taken a call on Part 1.

The member will sit. I have listened for the last hour. The previous presiding officer listened for 55 minutes. We have had 23 calls in that time. The member herself has had calls. I have listened intently to the debate. It was a decision of the Committee as a whole to vote on a closure motion. I put that to the Committee, and the Committee has decided. So we are now moving through the process.

💬 Sue Moroney: Point of order—

The CHAIRPERSON (Lindsay Tisch): No, I have ruled on it. If you are relitigating my ruling, that is a very serious matter. Is this a new point of order?

I move, That the Speaker be recalled to give a ruling on this matter.

Motion agreed to.

House resumed.

Speaker Recalled