Health and Safety Reform Bill

I am—I suppose “pleased” is the wrong word, given the gravity of the issues that we are discussing in this legislation, but it is a good responsibility to be able to contribute to this debate on the Health and Safety Reform Bill. I was in the Chamber prior to the dinner adjournment, and I want to make a couple of comments about the responses of the Minister for Workplace Relations and Safety, which were commented on at the time by the presiding officer. I just say that even though I disagree with the Minister and where he and his caucus have got to on this, I really appreciated the fact that he actually listened to the comments that members made and responded—not always in a way that we would agree with—as that is quite different from a number of his colleagues who are really dismissive and arrogant. I think it indicates a little bit of the respect that this issue deserves. I want to commend the Minister for that.

I held the position of Minister of Labour for some time, and I think it is one of the heaviest weights of responsibility when you think that laws that you are passing could determine whether a person who goes to work in the morning comes home safely or is never seen alive again. That is a huge responsibility and one that this Parliament should, and, I hope, will, over the coming hours of debate on this legislation really put an effort into.

I am really saddened that the internal debate in the National caucus has left us in the position that we have, particularly concerning the relevant portions of Part 2. From my perspective there are a lot of things that we could disagree on, but if we talk about international best practice and how we might actually make people safe at work, regardless of how big their workplace is or what sort of industry it is, I would really have assumed that this might be an issue that the whole of Parliament could agree on. But it is really—not entirely, but in some substantial part—the issues that are raised in Part 2 that have contributed to what seems to have been a pretty fractious discussion in the National caucus and we have ended up with a really watered-down version of what was originally intended by the previous Minister, the Hon Simon Bridges.

Before I return to the specific provisions in Part 2, I just want to acknowledge a friend—a man I admired greatly—who was a member of the Lyttelton fire brigade and a maritime worker who was killed in Lyttelton Port of Christchurch not very long ago. The court case in relation to his death has recently been heard, and Lyttelton Port Co. pleaded guilty to causing his death. There is no celebration in that. I think it made the process easier for the family; it certainly made it easier for his workmates to find out what had happened so that we can all learn from it so it never happens again. But nothing will take away the fact that our community, particularly the strong Lyttelton community, does not have the joy of Brad Fletcher being part of that community any more. So I want to pay tribute to him and the work that he did on the waterfront, and I hope that nobody else ever dies in our port.

The five subparts in Part 2 really go to the heart of the thinking about how much responsibility should be carried by one individual, and how much should be shared if there are different employers. Lyttelton Port is a good example, actually. You have the port company, but there are lots of contractors working there, lots of different arrangements, and obviously ships coming in from overseas. There is a mire of responsibilities that you could allocate depending on the activity of the person. That is what this part seeks to do. I did not sit on the Transport and Industrial Relations Committee, tragically, but I have looked at a number of the provisions. For example, there is the duty of person conducting a business or undertaking (PCBU)—new language we have in New Zealand now as a result of this bill—who manages or controls the workplace where you have more than one obvious employer. This is not a standard workplace, but one where you have got more than one PCBU. In clause 32(2)(a) and (b) there is a note that talks about the comparison with the Model Work Health and Safety Act in Australia.

I am really keen to learn—this is the only chance we will have during the Committee stage—from members who were on the select committee or from the Minister, how our workplaces compare with Australia. I know, for example, that we have far more small workplaces, small businesses, in New Zealand than they do in Australia, but I am not sure whether they have the same comparability where we have more than one employer on a worksite and whether this actually works. For me, the last thing I want to see this legislation do—and I am anxious about it because it has got new terminology, it has got shared responsibilities, and it has got, I think, an onus of proof that will tend some towards litigation rather than taking responsibility. That is the last environment that we should be creating if our aim is to make our workplaces safe.

What we should be doing in attempting to make our workplaces safe is ask how we get everyone on the same page. How do we ensure that the worker on their first day, through to the person who has been there for 50 years and about to get a gold watch, and any person who is in a responsible position—whether it is a manager or the boss; the owner, company director is not risk averse? To not say “I do not want to end up in court or with a big bill for something.”, but to say: “We will create a culture where people work in a collaborative way and a positive way to create an environment that is safe for everyone.”? This is not about doing people over. This is not about catching people out. This is an open culture. The Minister should understand this, actually, because he used to be in the health system. It is very comparable.

In my view, the sort of culture that you need to create is one where people put their hands up early to a mistake or a risk and say: “I have seen this. It should not be happening. We want to make sure it does not happen in the future.” How do you create that culture in every workplace? I do not know how this does it. I would love to think it does, but it seems to me that what we have done is create a new regime of classification—a PCBU. It does not even spell a word. What public servant was on that task? But seriously, it is a new regime that will render comparable previous court cases and policy decisions unable to be used.

As I said at the outset, I am really sad that it has come to the point where we have not got the whole of Parliament singing from the same song sheet and setting out what I think New Zealanders want us to do, which is to take the lessons that we have so tragically learnt—and not just from Pike River, but, gosh, that had to be such a blot on our thinking about the way we make our workplaces safe. If that did not make us sit up and say that we have to do things better, then I am sure that nothing would. We have a terrible record in terms of workplace safety and health in New Zealand, and I am not sure that we have got our heads around getting it right.

There are five subparts in Part 2. One is headed “Key principles relating to duties”. The second one, which I referred to earlier, is “Duties of PCBUs”. One is “Duties of officers, workers, and other persons”, one is “Offences relating to duties”, and the last is “Duties to preserve sites and notify notifiable events”. Because this part introduces so many new things to our health and safety regime, it is, for me, one of the most important, even though it might not have policy issues as substantial as those contained in other parts of the legislation. I have not even got on to the later stages yet, but I know that colleagues are keen to take calls. So if I do not get another call I will try and take another one later.

I am interested in the final five clauses Part 2—these go over two subparts—under the subheading “Other matters relating to offences”. Those clauses are headed: “Actions taken to prevent harm”; “Proof of intention not required for certain offences”; as I said earlier, “Duty to preserve sites”; “Duty to notify notifiable event”; and “Requirement to keep records”. For me, these all sound like new provisions and new standards, which we are expecting the workforce to understand and expecting employers to understand, that will set a new regime in the offences and legislation.

At the outset of Part 2 I would like to indicate to the Government and let the public know that it is our intention to vote for this part because we think that much of it makes sense. However, I just do want to let the National Party know that it was our intention to vote for Part 1, but when a Government moves to shut down the debate on a bill as important as this, on areas that we still want to debate, then you will get a No vote from the Labour Party on that basis. We asked at the outset that there be no politics on this issue, and I hope that that will be taken care of.

I do, though, want to commend the Minister for Workplace Relations and Safety for at least his part. If his party did not behave, at least the Minister did, because when we raised issues he did make a very good attempt at addressing those issues, and I hope that that will continue in this debate.

In Part 2, which spells out, mainly, the duties and the responsibilities of individuals when it comes to their responsibility towards health and safety in the workplace, sadly much of this part, even though its intention is really good, will be undermined by the Government’s decision to ensure that a whole lot of smaller workplaces do not have elected health and safety reps in those environments. I say that because even though we are going to come on to debating that substantively in the next part, it impacts on Part 2. Although these duties are well spelt out, who on earth is ever going to police this? Who on earth is ever going to be in those smaller workplaces to know whether the person conducting a business or undertaking (PCBU) is doing what the PCBU ought to do if there is no elected, trained health and safety rep in that workplace who knows what the PCBU ought to do?

As we are about to debate, this is quite complex. The obligations on each of the parties are quite complex, and unless people have been trained as health and safety reps—and that is the reason why health and safety reps need to be trained—how on earth will anyone in those dangerous workplaces like farms, which the Government has moved to exclude, know whether these duties are being undertaken? That is our misgiving about this part. We do intend to vote for it. Sadly, it is going to be let down by the decisions that the Government is going to make on other parts of this bill.

I want to spend a little bit of time just talking about the PCBU. I think it is going to be really easy for us to slip into that language and, perhaps, people listening to the debate may not understand. I think this part really does attempt to come to grips with the changing nature of the workplace, the way in which contracting out has affected health and safety, and the way in which different people are employed affects health and safety at work. And this is, I think, an honest attempt to address these issues, although I do have to say this: it worries me that we have spent all these volumes trying to describe everyone’s obligations in a very complicated and tricky type of workplace setting, when in fact I wonder whether we would be better off having some good regulation in place that actually prevented these types of structures, which do cause health and safety risks, from developing in our workplaces.

I am primarily referring to the contracting-out regime, but there are other practices in our workplaces that I think have complicated this picture, and instead of actually dealing with that we are now dealing with a very complex set of duties and obligations to try to deal with that.

So a PCBU must ensure, so far as it is reasonably practicable, the health and safety of workers who work for them while those workers are at work in the business or undertaking, and those workers whose activities in carrying out work are influenced or directed by the PCBU while the workers are carrying out the work.

I think that last sentence is important because it is an attempt to address the issue that I have just raised. You know, we used to call these people employers, actually, but sometimes they are not the direct employer, but the decisions they make influence the workplace or the ability of other workers who are not in their employment, specifically, but are impacted on by the decisions that they make. I think that the Pike River mine, sadly, demonstrated this issue really well, in a way that we do not ever want to have demonstrated to us ever again. The decisions being made by the Pike River Coal company were impacting on people who were contractors to that company, and yet they had no ability to influence that.

This part of the bill makes sure that the PCBUs have an obligation to be talking with each other and to be coordinating, and I think that is a very, very important part of it. However, I will come back to my original point. Who on earth is going to police this in small workplaces? Who on earth is going to do that? Is it going to be people from WorkSafe? I do not think so. Are they going to be on every farm? No, they are not.

💬 Jonathan Young: Well, they nearly are. That’s the problem.

Ha, ha! Jonathan Young is concerned—he thinks that they probably are. If that is a concern of the National Government, then look, the obvious solution is the one that the Labour Party is proposing, and that is to stop this nonsense of denying access to proper health and safety representation for people who work on farms and in other places that are going to be excluded by this legislation, and just do what the royal commission said at the outset. Let everyone be covered. Part of the role of an elected and trained health and safety rep is actually to police that Part 2 is happening, and that the obligations set out there are happening on all those small workplaces up and down the land, unless the Government really does think that it is going to have WorkSafe living in all these workplaces and seeing what is going on.

So PCBUs have a range of functions. They have got to “ensure, so far as is reasonably practicable,”—and that is good and sound in terms of health and safety legislation—that the provision and maintenance of the work environment is done in a way that is without risk to health and safety. They have got to ensure the provision and maintenance of safe plant and structures, the provision and maintenance of safe systems of work, and the safe use, handling, and storage of plant substances and structures. There are a range of other things, but this is all the learnings from Pike River mine.

One of the questions that I would like the Minister in the chair to give us an answer to is whether this part of the bill will address the issue that we saw happening in Pike River mine where management was actually paying large bonuses to workers to take undue haste over some construction of parts of that mine when, actually, that money would have been better off being spent on making sure that there was another access way out of that mine. That instance of workers being offered a bonus by the PCBU in order to work faster in an unsafe way—would that undermine the duties under this part? I would really like an answer to that, because I think this is where we are actually going to understand whether this bill is going to make a blind bit of difference to health and safety in our workplaces.

The meatworks that sometimes speeds up the line and does that in a way that is unsafe—would that provision stop it from doing it? I am referring to clause 30(3) in Part 2. I really want to know whether that is going to stop those sorts of practices, because that is really what we need to do. We need to make sure that those practices that are being undertaken at the moment—we know that they are being undertaken by people who, once this bill becomes an Act, will be PCBUs. Will they be able to continue those sorts of practices? Because those are the sorts of things that really do drive bad health and safety practices. They are the sorts of things that good, trained, elected health and safety reps can contest and can make sure that they do not continue happening. Unless this part actually makes sure that those things cannot continue to happen, then it will not be worth the paper that it is written on.

The PCBUs are the people who manage or control the workplace, but they are also the people who manage or control fixtures, fittings, or plant at workplaces. This part of the bill also makes it clear that more than one person can carry out the same duty. So what we envisage in this part of the bill is that there will be multiple PCBUs involved in one workplace location, and knowing that they are going to be able to coordinate with each other and that they are required to—

It is a great privilege to again be standing in the Chamber to come back and talk about Part 2, which is “Health and safety duties”. We do actually have Supplementary Order Paper 110, along with the Supplementary Order Papers from the Greens and the Minister for Workplace Relations and Safety himself. Before I go into that, I would just like to reflect with the Minister that I hope the praise we have been giving the honourable member does not go to his head, and that he still keeps this interaction going because it is very, very important. I would also like to reflect for a moment, just rewinding the clock, to get some clarity about clause 10, which, of course, is to do with those high-risk plants. If we could get some clarity, because that will come up a little bit later on, in clause 227 further down in the bill—if the Minister could give us some clarity on that, I would be very appreciative.

I do not want to keep going backwards, but for the purposes of the people back home or sitting in the gallery who do not have this magnificent piece of legislation in front of them to go through and peruse as we all have, I think it is very important to just talk for a quick second about the words “reasonably practicable”, because they do come up quite a lot. This bill does introduce the words “reasonably practicable”, and it says that businesses must do what they can reasonably do to keep workers and those others affected by work safe and healthy. So that is going to come up quite a lot.

I would also like to just take a moment to look at clause 52 in Part 2, which is “Duty to notify notifiable event”. I think that is a very commendable clause in this bill in Part 2. It is very, very simple and it is very, very plain English, but there is a duty to notify any harm being caused to your workers, and then the second part of that is clause 53, “Requirement to keep records”. Once you can measure a problem, you can then manage the problem, and I think this is a fantastic tool to enable health and safety for the future and just track where it is going and how it is going.

I take this moment also to look at some of the industries around the country that are on a decline with the number of serious events, illnesses, and deaths within their businesses. I think New Zealand Railways has had a remarkable change of direction, with about 30 percent fewer injuries in its space. That is a culture shift that has happened from the top down and the bottom up simultaneously to achieve that great result, and we would like to see that continue. Also the logging industry has had a remarkable downturn in deaths, and, again, it comes down to that bottom-up as well a top-down approach.

Primary duty of care is really what this part is all about, and so what we have got here is clause 30, and it says here: “(1) A PCBU must ensure, so far as is reasonably practicable, the health and safety of—(a) workers”. I would just also like to say that the current legislation that we have got there, I think, sums it up very, very nicely, and it does not show up anywhere in this new bill. Sections 15, 17, and 19 of the current legislation are about the duties of employers, employees, and the self-employed people. It says that every employer, employee, or a self-employed person shall take all practicable steps to ensure that no action or inaction of any person, whether it be an employer, an employee, or a self-employed person, while at work harms themselves or any other person. I think that is just absolutely fantastic. It would have been good to see that in this new bill, because I think it encapsulates everything in so far as a duty of care goes, which is what we are trying to resolve here.

I know the clock is ticking and my time is very, very short with these 5-minute sessions that we get. We do have an amendment on Supplementary Order Paper 110 that would amend clause 43. What we are proposing is, after clause 43(2), we would like to see added: “(3) A person does not commit an offence against subsection (1) if the person is a self-employed individual who is both a PCBU and a worker in a small- or medium-sized enterprise in the event of an accidental death of their spouse, de facto partner, or civil union partner who is also a PCBU and a worker in the same small- or medium-sized enterprise.” That sounds very convoluted but, quite simply, we are very concerned, again, about the unintended consequences of this bill. That amendment that New Zealand First is trying to have put in is a pragmatic solution to what we see as a potential issue that has been overlooked.

This is specifically around where—let me just use it for an example, but it will not preclude other businesses in a similar situation—you have got a farmer and his wife living together. They are directors on the farm and they are owners of the farm. They are clearly persons conducting a business or undertaking (PCBUs) and workers at the same time. In the situation where the famer goes out and has a fatal accident—and we are talking about accidents here; we are not talking about anything nefarious and horrible—under this bill, the wife, who is also a PCBU and who is responsible for her partner or husband’s death, could be up for some very, very heavy penalties, fines, and, potentially, some imprisonment. What we are trying to preclude is—the loss of a loved one is bad enough to not warrant the fact that they may lose their business or their farm as well as that.

Thinking about it, it was a very, very difficult piece of legislative amendment to propose. We have taken this to the Transport and Industrial Relations Committee and it did not get the support that it deserved, but I know that back out there in the real world, where people are concerned about their loved ones and their safety but also about the fact that if there is an accidental death that they could actually lose everything as well as their loved one—I think, to put that to the Committee, that that needs to be very heavily considered. Support for that Supplementary Order Paper would certainly be well appreciated by all those rural farmers and small business operators who want to be able to leave a legacy behind for their loved ones, if they are in fact involved in a fatality in a workplace.

There are certainly parts of Part 2 with regard to duties that we do support. To reflect on that, we do support the engagement process, the reporting process, and the record-keeping. We think that is absolutely fantastic. We do have some concerns about parts that will potentially have some very long-term and damning effects on those loved one left behind in a fatality or an accident. Thank you.

This afternoon is the first time that I have had a chance to speak on this bill. I would like to acknowledge the work and the common cause that the Committee has, which is, of course, to make sure that Kiwis come home safe from work. It is important to recognise that work, because we all have that same goal. I would also like to recognise and acknowledge the people who have been here in the gallery today and yesterday. We kill too many people in New Zealand. There are people here today who are left behind from the Pike River disaster—29 men were lost. We have to remember those who are affected not just by deaths but also by long-term injuries, and this bill goes a long way towards helping to do that.

Attitude was talked about earlier by a number of parties. This bill is not going to change attitudes. This is the framework on which we can hang our legislation. Changes in attitudes and culture have already begun. I think the Minister mentioned earlier that the forestry sector has already made large changes towards changing their attitudes and culture. In the marine industry, maritime operating safety regulations have been in place for 1 year already, and it is consulting again and is getting feedback. So, again, that is an example of an industry that is taking the lead in health and safety in its work environment. Of the other examples of industries that I was involved with prior to coming into Parliament, whether large or small, health and safety was up there at the top of the agenda, so this is nothing new. This is no new approach to health and safety; it is already out there, and this is creating a strong framework and leadership, from a legislative point of view.

Common sense has been discussed already. A reasonable, practical nature determines, or defines, what common sense should be—reasonable and practical. This part is about common shared responsibility—that is, the duties that each of the persons conducting a business or undertaking (PCBUs) or workers are involved in. I would like to highlight Supplementary Order Paper 108 and proposed new clause 29A(2), which helps to clarify that people are all responsible for each other’s health and safety. But this new clause clarifies the extent to which a person has, or would reasonably be expected to have, the ability to influence. So I think that that addresses some of the concerns that Mr Robertson talked about in the first part—that it is where one has the influence when one is a director of a company. For example, they are not going to be able to influence what is directly happening on the day on the shop floor—whether a guy is wearing his steel-cap boots or not. He cannot be held responsible for that, assuming that all of the other responsibilities that he has as a director have been fulfilled. Similarly, the worker next to the guy on the workshop floor who is not wearing his steel-cap boots has a responsibility and an obligation to perform his duty of care, and that primary duty of care for the worker is in Part 2.

The other part of Part 2 that I would like to highlight relates to the PCBU and to farm workers. I have had a lot of questions from farmers and farm workers about what their duties are as far as buildings are concerned when they have accommodation on the farm. It is clear that the farm buildings are certainly the responsibility of the PCBU—that is, when work is taking place—but the main dwelling of the house on the farm is not part of the farm infrastructure; it is outside the workplace. The only other part of a farm that would be inside the workplace is accommodation made available to a worker only when it is difficult for that worker to seek accommodation elsewhere. So imagine, perhaps, a Department of Conservation worker who is out in one of the Department of Conservation estates, or a farmer who is out in the middle of nowhere. That accommodation would be considered part of the workplace infrastructure.

As someone who has not had a lot to do with the development of the Health and Safety Reform Bill, I have got a few questions I would like clarified. The first one is about the PCBU. I just wonder whether that is what we used to call, in the old days, the b-o-s-s. Is it? If it is, I can relate this to my previous work in the Ministry of Education.

When I was working in an office in Kaitāia, we had a flat structure there, so we did not actually have any PCBUs, or b-o-s-s-e-s, in the office there. The other members who worked there—their boss was actually based in Whangarei, so I assume that their PCBU, or person conducting a business or undertaking, would be someone based in Whangarei. I was actually managed out of Wellington, so I would assume that that was where my PCBU was, but I just wonder how, in a situation like that, the PCBU actually gets to manage the health and safety of employees who are at a distance. Then, when I would come down to Wellington, I was at the bottom rung of the ladder, and my direct-report PCBU was actually the next rung, and there were about five more rungs in the ladder.

I just want to know whether all of those people are PCBUs and, if they are, who are they PCBUs of? How does the structure actually work in an organisation like a ministry? Between me, the bottom rung of the ladder, and Peter Hughes, the top rung of the ladder—are they all PCBUs? And what is the responsibility of each person?

I am sorry, but I have to harp back to Part 1. In the purpose clause, clause 3(1)(a) says that the purpose is “protecting workers and other persons against harm to their health, safety, and welfare by eliminating or minimising risks arising from work or from prescribed high-risk plant;”. Nowhere else in the bill have I seen welfare mentioned. If we go to clause 30, “Primary duty of care”, it says: “(1) A PCBU must ensure, so far as is reasonably practicable, the health and safety of—(a) workers …” and clause 30(2) says: “A PCBU must ensure, so far as is reasonably practicable, that the health and safety of other persons …”. The legislation goes on like that. It talks about the health and the safety, but nowhere else does it mention the welfare. In my mind the health is about the lack of illness, safety is about the physical safety—making sure no one is injured—and welfare, to me, talks of people’s mental state in their place of work. If it is not mentioned anywhere else, I would like to know why someone’s welfare, or their mental welfare, is not considered in the rest of the bill.

We can use an example such as the forestry worker who is working the chainsaw. We can understand about his safety there, using dangerous instruments, but his welfare—I have heard stories of the pressure being put on the people who are wielding chainsaws in forestry. They actually have to up their cut rate so that they are sawing down more trees, and that pressure is coming from the contractor. The contractor, I assume, is their PCBU, and the contractor’s pressure is coming from people higher up, such as the forest owners who want a greater return. So the forest owner is actually putting pressure on the contractor. The contractor is putting pressure on the worker. But the forest owner is divorced or removed from any responsibility for the well-being of the guy on the chainsaw, and yet that person is the one who is most at risk. How does that work, and how is responsibility put where it should be, on to the people who are putting pressure on so as to get a dividend? I would like that answered.

To use quite a topical example, the guard in a Serco-run prison who is one person looking after 50 inmates—what about his emotional welfare? Obviously, when you are one person overlooking a number of people who are gang associates, and they want you to do something that you know is illegal, and they put pressure on you to intimidate you to do things—

I rise to take a call on Part 2 of the Health and Safety Reform Bill. This is the part of the bill that talks about persons conducting a business or undertaking, or PCBUs, which is a term we are using a lot tonight. So I am sorry if anybody has just tuned in and gets to hear “PCBU” and does not know what it means. This part talks about the key principles relating to duties.

For this Part 2 I have actually got a Supplementary Order Paper, Supplementary Order Paper 105, because within this part is kind of where you see employment law and civil law and criminal law start to get mishmashed up. I refer particularly to—I think it is in my Supplementary Order Paper, actually—clause 29E, which is around the whole issue of where PCBUs are negotiating with other PCBUs on a worksite. For example, there are the port companies that have got contracting companies there. They have got other companies that are being used to potentially undercut some of their directly employed stevedores, and you have got a range of people operating who are all employers—who are all PCBUs.

There is a part in this section of the bill that talks about how PCBUs operate together. I think it is quite important that they do manage to talk together quite effectively so that the whole place develops a culture of workplace health and safety, because otherwise they can neglect their duties. They can say: “No, it wasn’t my fault that this terrible thing happened.” In fact, during the Health and Safety Reform Bill submissions we did have one organisation say that when I questioned them about the fatality rate that they had at their port. They said: “We have a clean slate.” I said “I can show you the releases about this.”, and they said: “It wasn’t us.” So we support the fact that this bill is designed to get those persons conducting a business or undertaking to talk to each other.

I guess what my Supplementary Order Paper is attempting to do is to get those PCBUs to talk together and to negotiate with each other in good faith. “Good faith” is a concept that is used in employment law, but I was told that you cannot have it—you cannot possibly have it—in this context because, basically, it relates to two commercial operations, not the employer and employee relationship. I understand that. What I wanted to see, though, was a test of that type of good faith that could operate in negotiations and information exchange between PCBUs. Essentially, what we are trying to do is set up a worksite where there are fewer risks across all the different employers or PCBUs operating there.

So what I have suggested is that in clause 29E we require that persons conducting a business or undertaking have a duty in relation to the same matter to consult, cooperate with, and coordinate activities with other PCBUs who have such a duty, so that they must deal with each other fairly, be active and constructive in discharging their duty, and not do anything to mislead or deceive the other PCBUs. I would have thought that this was fairly reasonable, and I would be interested to hear from the Minister for Workplace Relations and Safety as to why he has not adopted this very reasonable Supplementary Order Paper.

I am also interested in going through the Supplementary Order Papers that the Minister has brought to the Committee—very late, but today. One Supplementary Order Paper in particular strikes me as quite interesting. There are a couple of good ones here that we will probably be supporting, but the one that I have questions around—and the earlier speaker from the National Party started to talk about it—is this whole issue of the main dwelling house on a farm being excluded. This is in Supplementary Order Paper 108 from the Minister, which refers to clause 32(1B)(b). What that essentially says is that the main dwelling house on the farm is excluded from, basically, being a place of work. However, further on in clause 33 there is a whole section about fixtures and fittings of the plant in a workplace.

So the question I have is about a situation where the person who lives in the main dwelling does not own the farm but is employed to run the farm, and the main dwelling is substandard. It has electrical faults, it has all sorts of problems with the plumbing, and it has rotten floorboards, and it is the main dwelling. What happens then? We do have situations in this country of very, very substandard housing, and if that is part of the employment package for the person who is employed by the landowner to run the farm, and so it is part of their employment relationship, it is part of their agreement, it is part of their conditions of work—essentially, it is one of the ways that they are being remunerated, supposedly—why is that exempt from any kind of protection under the health and safety employment law, particularly when you consider that this may be a worker who is on call 24 hours a day? Why then, in this situation, is the dwelling exempt?

I would welcome the Minister’s comment about that because this is a new part of the bill that he is suggesting that we adopt now. It was not one of the things that was actually in the bill beforehand, although there was quite a lot of discussion around what is a home and what is not. I can even refer to my Supplementary Order Paper on the previous part, which is trying to remove the exemption for work that occurs in the home, which is deemed to be residential. So I have got some questions around that.

I guess the other thing that worries me in this area in this part is that it also talks about offences. Again we see the mishmash between employment law, contract law, and civil law, and there are some inequities that occur. For example, in this part, if there is reckless conduct, then that would mean that a person who was guilty of that under the Health and Safety in Employment Act would be liable for quite a large fine and/or a maximum punishment of up to 5 years’ imprisonment. Something similar under the Crimes Act—criminal law—would get a person up to 10 years in jail. So why is it OK to have that punishment for being reckless outside the workplace, but if you are reckless in the workplace, you get off a bit easier? These are some of the inconsistencies that I struggle with and I would really appreciate some explanation for them.

I agree with one of the previous speakers on this side of the Chamber who said that even though there are some very good clauses in this part of the bill, the bill is undermined by the omissions in the first part, which is around worker representation and participation and the exclusions of who is covered by the bill and who is not, particularly in those workplaces that have fewer than 20 workers, which are deemed by some sort of magic process not to be in high-risk industries. Of course, although we have had some suggestions about what they may be, we have not got them sorted out yet.

So I have got some questions and I would be very grateful to the Minister for responding to them. We do like some of the clauses that he has put forward in his Supplementary Order Paper, but I have to say—

I think there are three or four questions that have been raised by members in their interventions so far and I want to try to address them. I do want to acknowledge Kelvin Davis for his quirky use of three or four-letter acronyms and just respectfully suggest that if he does want to know what a PCBU is, rather than ask me and take up the time of the Committee, he could either read the bill or talk to one of his colleagues on the Transport and Industrial Relations Committee.

Ms Roche has raised three points. In respect of persons conducting a business or undertaking (PCBUs) operating together and the requirements of good faith, I do not think it is a question of the Minister not supporting that. My position and the Government’s position is actually that those requirements are already in the bill, written in different ways, but there is definitely an expectation and a requirement for PCBUs to work together to ensure the health and safety of everybody in that workplace: workers, managers, shoppers, patients if it is a hospital, and so on.

As to the question of the farmhouse, I think the member has conflated a couple of issues. So I will go through the first scenario, which is addressed by Supplementary Order Paper 108 with an amendment to clause 32(1B) making it absolutely clear that the farmhouse is not a place of work. In other situations that may be the case. The plumber who works from home and has the garage full of supplies, and things like that—that is appropriate. Even in respect of the farmhouse there may be a home office, or the farmer might bake muffins for the workers at lunchtime and the kitchen could be considered a farmhouse.

But for all practical purposes, I do not think the case for health and safety is enhanced by creating a very confused definition of a workplace—because farms are different. I think we accept that farms are a place of work, but they are a permanent place of residence for the families who live on them as well. For the sake of clarity, the select committee and the Government has thought it best to make it much, much cleaner and tidier to say, in respect of the farm, that those sheds where the work is carried out—the shearing-sheds, the milking sheds, the implement sheds, and so on—are always a workplace, regardless of what is going on. Other parts of the farm are a workplace when work is being done on them, but not when there is not work being done, and that has certainly eased a lot of concern about recreational use and access to farms and tracks for mountain bikers and so on, because that was certainly one of concerns that we had. The last thing we wanted was for landowners and farmers to deny access to one of the great Kiwi pastimes—that is, living and playing in the outdoors. So I think that that is a very tidy and sensible amendment.

But the member then went on to talk about accommodation and asked: “What about if the person who is running the farm doesn’t own the farm?”. Well, that goes to clause 30(4) and (5). What that basically says is that if the worker is required to live in that accommodation, then that is a place of work, and the health and safety law will apply. But if the worker has a choice between living in that accommodation or in other accommodation and makes that choice, then this bill will not apply.

The scenario is if you are down on the Auckland Islands, working for the Department of Conservation, and there is accommodation provided—and, frankly, one has no choice but to live there—then the health and safety requirements should apply. But if you are an orchard worker in Cromwell and you have got a choice to live in the A-frame accommodation on the side of the orchard or to go to the local camping ground or the backpackers, or have some other arrangement, and you make the choice to live at the place of work, then this bill will not apply. I think that is a sensible balancing of what has been going on in the workplace. I just wanted to clarify that that farmhouse scenario was actually covered by clause 30, not by clause 32.

I would like to talk about the management of risks. This is in Part 2, obviously, which starts with clause 29A. There is actually a very good book called Against the Gods: The Remarkable Story of Risk, by an author called Peter Bernstein. The reason I say it is so good is that he said that what differentiates the modern economy from those of the ancients is that the ancients did not know how to quantify risk, so they blamed anything that went wrong on the gods—it was the will of the gods. What defines our modern economy, and what has allowed the modern economy to grow, is our ability to assess risk, judge it, and make decisions based on that. We have a whole lot of mathematical tools that allow us to do this.

This legislation is necessary, and there is no doubt about that, but when I see things that say, for example, in clause 29A, that a duty is imposed on a person “(a) to eliminate risks to health and safety, so far as is reasonably practicable;”, to me that seems like a little bit of an oxymoron, to be honest. How can you eliminate risk as far as is reasonably practicable? You either eliminate it or you do what is reasonably practical to manage it. But then it goes on: “(b) if it is not reasonably practicable to eliminate risks … to minimise those risks …”. I know that legislation has got to contain wording that makes sure it is tight, but what I can see is a whole lot of court cases around this that will determine what is “reasonably practicable” and also what the elimination of risk is.

Let me give you an example. My very good friend Kelvin Davis and I visited a sawmill up north, and the sawmill owner told us about an incident where he had a young man working for him. The young man has gone through all the health and safety training. Sawmills are places where you can never eliminate risk; you can manage risk. This owner had a health and safety plan in place; it had gone through WorkSafe. What happened is that there was something called a green chain, which is a big chain that goes around a wheel. The guy had been seen by workers to put his foot into the cog and then pull it out. The workers said to this young man: “Don’t do that, mate. That is a really silly thing to do, and that will end up injuring you.”

Anyway, this guy did it again, damaged his foot quite badly, and had to go to hospital. WorkSafe came in and the sawmill owner’s lawyer said to him: “Plead guilty because it will show that the worker hadn’t taken notice of what was going on, but plead guilty—you’ll get off.” In the end, the guy got fined $100,000, and he said he was staggered because he thought that he had done everything that he possibly could to not eliminate risk but manage the risk as far as possible.

I look into clause 40, which talks about the duty of a worker. Clause 40(c) says: “comply, as far as the worker is reasonably able, with any reasonable instruction that is given by the [boss] to allow the [boss] to comply with this Act or regulations;”. So this boss—the person conducting a business or undertaking—had done everything he thought was in his power to manage and mitigate the risk, but you can never ever eliminate risk, and that is one of the concerns that I have about this bill.

Clause 35 talks about risk. The heading of clause 35 is “Duty of PCBU who manufactures plant, substances, or structures”. Clause 35(2) says: “The manufacturer must, so far as is reasonably practicable, ensure that the plant, substance, or structure is manufactured to be without risks …”. I have worked throughout my career on a number of building sites, and I have worked as an importer, and importers are covered under clause 36. Clause 38 is about the “Duty of PCBU who installs, constructs, or commissions plant or structures”. It is quite a prescriptive part, actually. But it talks about doing all of these works without risk.

In my opinion—and my experience has shown this—you can never ever eliminate risk. You can mitigate risk, you can put processes in place that allow you to manage risk, and you can ensure that workers are informed about risk so that they can identify risk and they can take their own steps to manage the risk within the workplace, but eliminating risk or staying completely without risk is not, I do not think, workable. There is a legal test that you learn in about week 1 of Legal Systems 101, and it is called the “reasonable person” test. I am going to be very, very interested to see how the courts interpret this legislation, because there is no doubt in my mind that there will be a number of cases about this. If the courts take a reasonable person test and ask what would the reasonable person have been expected to do in terms of mitigating or eliminating or managing—

Thank you for this, the first call I take on the Health and Safety Reform Bill. Like many of my colleagues have spoken about, it is actually with regret that Labour cannot support this bill. We are supporting this part—Part 2 of the bill—and I would like to genuinely thank the Minister for Workplace Relations and Safety for taking a call and answering some of the questions that were put to him in the Committee here tonight. Actually, in your answers, Minister, there were many other questions that came from those. I would welcome your taking a call to answer some further questions that arose from the information you gave us here in the Committee tonight.

You talked about the farm and when it was deemed to be a workplace, and about the recreational use exemption, so that a farm was a workplace only when it was being a workplace—when people were performing work there—and not when it was being used for recreational use. You particularly talked about mountain biking and quad biking on these spaces. But, Minister, this opened some very serious questions that we need some clarification on. For example, if someone is riding a quad bike back to a farmhouse to take a smoko break, are they deemed to be at work? Are they covered by the bill? If they are riding a quad bike for the purposes of some after-work drinks on a Friday—the workers knock off and decide to have some drinks, and people are riding around on quad bikes—is that deemed to be a workplace, and will they then be covered by the bill? One of the issues that we have is around the number of exemptions that are being put into place, and the dancing on a head of a pin around when a workplace is a workplace and whether health and safety legislation should apply. That is opening up questions. They were genuine questions and I would genuinely like an answer to them.

I also have some questions for the Minister around when it is that accommodation is deemed to be a workplace. The test the Minister outlined is when there is a choice that the employee can make about whether or not they live in that accommodation—whether there is alternative accommodation that they can take up. So if accommodation is included as part of a remuneration package, I would like the Minister to clarify whether or not accepting it is deemed to be a choice an employee can make. I would also like the Minister to clarify whether, if there are no reasonable or affordable alternatives—there may well be alternatives but they might not be deemed to be reasonably affordable—there is deemed to be choice for the worker in that instance and whether this legislation would apply to them.

This comes back to some of the fundamental problems that we have with this bill. Although we are supporting Part 2, our problem, as many of my colleagues have outlined, is the way in which this interacts with other parts of the legislation. We have these persons conducting a business or undertaking (PCBUs), or, as my colleague Kelvin Davis renamed the acronym, the b-o-s-s-e-s who are deemed to make these decisions, but we have all these exemptions. The problem that we have here is that there is no onus for there to be health and safety reps. How is this part—this part we are supporting, Part 2—going to be policed?

I would like to turn my attention to subpart 4 in Part 2, “Duties to preserve sites and notify notifiable events”, and specifically clause 51 through to 53, which are contained in this subpart of the bill, because these are very important provisions within this bill. It is absolutely critical when accidents, no matter how small, or incidents—not even accidents, but incidents—happen in a workplace that there is notification, that these are recorded, and that there is a record of these. I note that this part of the bill has all the great intentions around doing that. I support that and I welcome that, but my concern is that in businesses where there is not deemed to be the need to have workplace health safety reps we are not going to have any ability to police that. I have heard members of the Government interject—not take a call, but interject—that WorkSafe will do this. Well, I would like the Minister to also tell us whether that is his realistic expectation—that WorkSafe will be everywhere in these businesses that are exempt from the legislation, ensuring that they are being policed, and that it will be omnipresent and know whether that is occurring.

For the benefit of those who have just tuned in, we are speaking to Part 2 of the Health and Safety Reform Bill. I think there is quite a lot of common sense in this part of the bill, but that does not mean to say that we have not got a number of questions for the Minister for Workplace Relations and Safety. I do acknowledge the Minister, who, once again, in this part has taken to his feet to answer some of those questions.

Can I start at the very beginning of this part, because it does set out some of the duties and responsibilities for, I guess, people who are operating businesses. Clause 29A talks about the management of risks, and says that “A duty imposed on a person … requires the person—(a) to eliminate risks to health and safety, so far as is reasonably practicable;”. Clause 30 goes on about the primary duty of care, and says that a person conducting a business or undertaking (PCBU)—which I think, along with Parana Park, has just entered into the legendary lexicon of Parliament—“must ensure, so far as is reasonably practicable, the health and safety”—

💬 Tim Macindoe: We remember it fondly.

The member for Hamilton West will, of course, enjoy that. Clause 30 talks about the primary duty of care, and says that “A PCBU must ensure, so far as is reasonably practicable, the health and safety of—(a) workers who work for the PCBU, while the workers are at work in the business or undertaking;”.

Then can I flick forward to the next page, which is going to be the crux of my question to the Minister. It is clause 32(1B), which talks about some carve-outs for, I guess, the farming sector. It says that subclause (1) does not apply “in relation to the farm buildings and any structure or part of the farm immediately surrounding the farm buildings that are necessary for the operation of the business …”. It also does not apply in relation to the main dwelling-house on the farm or “any other part of the farm, unless work is being carried out in that part at the time.”

Those who are expecting me to start talking about why the agricultural sector should be part of this bill will be disappointed. I know we have some issues about that—[Interruption] I know. I will get on to that. I am getting to my question. Just because we are asking for the agricultural sector to be included does not mean we do not care about those who work in rural areas.

My question to the Minister is: when you are talking about carve-outs that apply to on-the-farm activity, what happens to off-the-farm activity that would be deemed work? I think the most basic example of that that I could think of, Minister, is moving stock from one part of the farm, on a public road, to another part of the farm. Who has responsibility for that? The worker is still working. They are not on the farm as such. They are moving stock from one part of the farm to another part of the farm. They are exposed to public risk. I guess the New Zealand Transport Agency would have some responsibility, but where does the responsibility lie, Minister, in terms of the PCBU for what is happening while that worker is working, moving the stock between different parts of a farm, on what we would deem public land?

I do not see anything within this piece of legislation—within this clause, anyway—that would cover that and would give the responsibility to the PCBU. We are talking only about activity on the farm. As we know, if you have been caught behind stock in a rural area, it is a public area, because we share the road with the stock. You can get frustrated, but it is the job of the workers to move the stock from one area to the next.

There may be something within this part that clarifies who has responsibility. But if the PCBU does not, then who does? I guess that is a question that I would like to pose to the Minister, because it is something that is done regularly. I am no farmer. I heard someone—

💬 Ian McKelvie: Oh, come on.

Yes, OK—OK. I heard members on the other side of the Chamber talking about the fact that they have more farmers than we do, but that does not mean we do not care about the rural community. In this instance, I do not see, for that short part of time where workers could be put at risk, who has responsibility for that. Is it the PCBU, or is it whoever is responsible for the road? Moving stock is something that I am sure happens thousands of times every day right around the country, but as far as I am reading, for this carve-out for the farming sector, I cannot see who is responsible for that. If there is something in here, maybe the Minister could take another call and explain that to us, but if not, then maybe he could look at doing something about that.

I know that there are a number of members on the other side of the Chamber who are saying that there are no farmers, or farm experience, over here, but we do, indeed, have a lot of practical on-farm experience, and we have the knowledge to ask of the Minister what this means, particularly in the area of agriculture.

Can I just go back to a point that my colleague Stuart Nash raised, and it is about clause 32. Clause 32(1) states: “… anything arising from the workplace are without risks to the health and safety of any person.” That is a fairly absolute statement. I agree with him, and probably with members on the other side of the Chamber who would say that it is almost impossible to eliminate risk. So we have that absolute statement here, but if you go back to Part 1—and it is not for me to dwell on Part 1; I know we have debated that—it says in clause 3(1) that “The main purpose of this Act is to provide for a balanced framework …”. In my view, that word “balanced” should have been changed to “effective” or “appropriate”. If we have an absolute in Part 2 about eliminating risk, then we should not have in Part 1 an implication that we balance that off against other factors like cost or “reasonably practicable”, or whatever you want to put in there. I am struggling with this, and the Minister might understand why we have this fairly absolute objective in clause 32(1).

Actually, while we were debating this bill, I received a text saying: “God, I don’t know how you put up with this.”—going on about these things. People have to understand that every word in the legislation that we pass through this House has a meaning. It has been debated, and it is absolutely essential that we get the words right. We can guarantee that down the path there will be some lawyer who, for good or bad reason, will argue the case in a court of law over a word that we have endorsed or tried to change in the House. So we will carry on here.

Can I refer to the farming provisions in here—clause 32(1B). It has been raised before by my colleagues that the provision relating to the person conducting a business or undertaking (PCBU) who is conducting a farming business or is undertaking duties owed by them, of course, “(a) applies only in relation to the farm buildings and any structure or part of the farm immediately surrounding the farm buildings that are necessary for the operation of the business or undertaking:”. It continues to say that that does not apply in relation to the main dwelling or “any other part of the farm, unless work is being carried out in that part at the time.”

There are many farms that will have stockyards out in the far reaches of the farm, and they may have been constructed well or they may not have been. The Minister may be able to clarify this. I am assuming that this provision means that if you are not working in the stockyards, no one is responsible for any danger that may be caused by the design of them or by stock that may be held in there running around. It is a point that does need to be clarified because it seems as though the onus of responsibility shifts just with the people as they move around the farm, rather than saying that the PCBU is responsible for the wider safety of the whole of the farming operation. The Minister may be able to explain that.

I go on to another part of Part 2 that has been raised before. It refers to penalties, I guess, for non-disclosure. Anyone in business today who does not understand the implications of notifying accidents and of what that might mean for your ACC rating or for a lot of other things around your business would be naive. It is very, very important to notify, but it is also a reality that if you notify every accident in your business, then your ACC rating and a lot of other things may change, and it may affect your business. So while encouraging people to notify—and, in fact, the bill expects all notifications to take place—one of the questions I ask is: are the penalties sufficient? Are the penalties in line with other provisions across the legislation?

I move, That the question be now put.

I see there are a number of members on this side of the Chamber who are keen to contribute further on Part 2.

This is my first call on Part 2, and I want to focus specifically on Subpart 2 and clause 39, “Duty of officers”. At the risk of raising the ire of the Chair, I do need to refer to clause 13A—which, fortunately, I am doing right at this moment—which is around the meaning of “officer”, which we discussed in Part 1. This is relevant to clause 39. There is a new clause 39(1A), introduced by the Minister for Workplace Relations and Safety in his extensive Supplementary Order Paper 108, which says that “For the purposes of subsection (1), an officer of a PCBU must exercise the care, diligence, and skill that a reasonable officer would exercise in the same circumstances, …”—and later I will go on to talk about the next bit. The question we were raising when we were debating clause 13A was that the definition of an officer is so narrow as to potentially exclude the people whom we believe will actually have the most practical role in terms of health and safety. I have a concern about new clause 39(1A), as to the fact that because we did not amend clause 13A to expand that definition of “officer”, we now have the narrow definition of, effectively, a director—possibly a chief executive officer—type of role.

We then have, within new clause 39(1A), an officer of a person conducting a business or undertaking (PCBU) being asked to exercise care and diligence, and that is good, and “skill that a reasonable officer would exercise in the same circumstances, taking into account (without limitation)”—on both hands, and these are the critical paragraphs—“(a) the nature of the business or undertaking; and (b) the position of the officer and the nature of the responsibilities undertaken by the officer.” That is the very problem with the definition that we have of “officer”, because if the officer is not somebody with direct responsibility or at least some level of responsibility for health and safety, then under this clause it seems to me that we could say that due diligence does not extend to where it should. It all stops. We could say—I will give an example—that this person is the chief executive officer, but their job description, or the nature of the responsibilities they have, puts them in a position far removed from where decisions about health and safety are being made.

The Minister in the chair, Minister Woodhouse, may be able to enlighten us as to how this particular subclause comes to be here. I suspect it is because clause 39(1) is seen to be too broad—that the term “due diligence” was too wide, because the definition of due diligence is also included in subclause (2). I suspect it is because it is probably seen to be too wide, as to potentially put too much burden upon the people who are undertaking the role of officers of a PCBU. So that is a question for the Minister, as to exactly how new clause 39(1A) has come to be here.

I also note that new clause 39(1B) has been added by the Minister in his Supplementary Order Paper 108. As far as I can see, that, effectively, lifts up what was clause 39(3) and moves it to be new clause 39(1B). This is the clause that, effectively, exempts members of the governing body of territorial authorities from the exercise of due diligence with regard to council-controlled organisations. That is interesting, because that is the very point that we have been trying to make about the definition of the officer role. Quite clearly, the bill is saying that if you are an elected member of a body—are you really responsible for the health and safety within a council-controlled organisation?

So by carving out just those who are in local government, I think we actually raise a much wider set of issues about who should be an officer. Why are we saying that just elected officials should be in this exemption? Should we be talking about district health boards? Should we be raising the question of district health boards, which, equally, have elected officers? [Interruption] I am told that the issue was raised at the Transport and Industrial Relations Committee about whether or not we should be looking at all forms of elected officials within this legislation.

I can understand the clause; I can see the point that is being made by it. But I do think it raises the concern that my colleague Iain Lees-Galloway had in his Supplementary Order Paper 100 about the breadth of definition of the term “officer”. I do think it is important that Subpart 2, as we go on—and I am going to come in a moment to clause 40, which my colleague Stuart Nash has already mentioned; I want to pick up a couple of those points. But it is important to note that Part 2 is a useful part of the bill, in that it does go through and explain in quite some detail the way that the PCBUs will work.

I do not think there is any doubt on this side of the Chamber that having clear definitions of what we used to call an employer—that is, having clear definitions of what it is that a person who is undertaking a business or controlling a business does—is a really good and useful thing. I want to make that clear. But I think that in doing so we have to ensure that we are putting in place something that can, in practice, work. I do ask the Minister if he could help us out as to why he has lifted out elected officials in local government and not other elected officials, in that regard. I am sure it is because there is—[Interruption] Yes, well, also it will partly be because council-controlled organisations are one step removed. But district health boards also operate commercial arms, so I do think there could potentially be issues for elected officials of district health boards as well.

In the last remaining part of this call I do want to move on to the remaining clauses around what happens under a PCBU. I actually want to congratulate the committee and the Minister on the fact that they have put in place issues around duties of workers. That is very important. We all know that health and safety does require parties on all sides of the agreement to be active in undertaking and understanding their duties. I think that is a useful part of this.

But then we come to clause 41, “Duties of other persons at workplace”. I think that all of us know what has partly been alluded to here. Every single member of this Committee goes on a visit to a workplace and fills out that form at the door, and says: “Yep, I’m here, and if you need to find me, this is who I am, and I’ve read it.” I would just caution members of Parliament and others who enter workplaces to have a look at clause 41 of the bill, “Duties of other persons at workplace”. It says: “A person at a workplace … must—(a) take reasonable care for his or her own health and safety; and (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and (c) comply, as far as he or she is reasonably able, with any reasonable instruction that is given by the PCBU to allow [them] to comply with this Act …”.

That is implemented in a great variety of ways at the moment in workplaces around New Zealand, and I do think it is important that all of us who go and visit workplaces understand the obligations that are being placed on the PCBUs and on the workers who are there, via Part 2 of this bill. Take note that clause 41 of the bill actually does extend that out to members of the public who are, essentially, going there. I do think that there are a lot of caveats in this part—“reasonably able”, “reasonable instruction”—and I think that some people might have considered that some of the instructions they were given when they visited certain worksites seemed a little over the top. That is because people are taking this seriously. This part of the bill will most certainly do that.

I just want to briefly—because I have got only a short amount of time remaining in this call—make reference to Subpart 3, which, of course, relates to offences. Again, I want to congratulate the drafters of this bill, because having clearly stated the duties, it is important to then have some sort of penalty. There is no point in having these duties in place unless there is some kind of mechanism for dealing with those who will breach them. In clause 42 we have got “reckless conduct” and the offence of failing to comply with a duty, and some very, very serious fines. I think it is important that we highlight those. I am here looking at clause 42(3), where committing an offence, in terms of reckless conduct in respect of duties, has terms of imprisonment and fines not exceeding $3,000, up until fines not exceeding $3 million.

Clearly, we have to take this seriously. We know from the cases that have been before the courts in recent times that it is important for people to understand. I would be interested in hearing from members who were on the committee about whether there were submissions to see these fines and imprisonment terms increase, because, quite clearly, the court cases that have been going through in recent times—particularly with regard to the forestry industry—have seen the most horrific stories. We need to ensure the fines are appropriate.

I move, That the question be now put.

Thank you for the opportunity. This will be my first call of many on this particular piece of legislation—absolutely. And like my colleagues said, this is such a thick piece of legislation that I would like to just go slowly, in terms of going through Part 2. Before I go into the detail, I just want to preface that when you think about the principles that underlie this particular piece of legislation, it all seems fine in terms of the principles and purposes, and you get a sense that this is about the protection of all workers. But I want to remind the Committee that last night we had a family member whose relative died as a result of a work-related accident who said: “If this is about balanced legislation, what does that really mean?”. It suggested to her that we were willing to allow a certain number of accidents to occur by the use of that terminology of “balanced legislation”.

I want to now go to Part 2. I recognise that this is about key principles relating to duties. In clause 29C it says: “A person may have more than 1 duty imposed on the person by or under this Act if the person belongs to more than 1 class of duty holder.” I want to ask: does this mean that the person who has been elected or appointed as the health and safety inspector will have other duties on top of that? That is what this suggests. I want to say that that can cause problems. I remember an uncle of mine who in the 1970s took it upon himself to rectify a situation that had occurred in the manufacturing line, where there was this big roller machine that was rolling batts. What he did was, instead of stopping the machinery—because the health and safety inspector was not present—he took it upon himself to try to push the batts through this roller. Well, the cuff of his shirt got caught up. The machine did stop—after it rolled over his right arm. That arm has been amputated. What I am saying is that it suggests that if people are going to have these duties, then there needs to be education in the workforce in terms of how those duties should be performed.

When you have a multicultural workforce—and I am not just talking about Pacific Islanders from the various five nations in the Pacific, who all speak five different languages. I am also speaking about a workforce that I came across in Nelson, who are predominantly from Asia—from the Philippines and other parts of Asia. None of this part makes reference to how we pass information on to a particular workforce who may not necessarily be aware of our signs, who may not necessarily be aware of the kinds of information that we generally take for granted and assume that by presenting it in English a person will know what those duties are.

I also want to recognise—the Committee may not be aware of this, but this country of ours takes in, on a regular basis, a certain number of Pacific workers from Samoa as a result of the Samoan quota, and from other islands in the Pacific as a result of the Pacific access category. Many of those workers come from village settings, and they are arriving for the first time into our country and may not necessarily be accustomed to the rigours of a manufacturing industry, to the rigours of a farm industry, and to the rigours of a forestry industry. They are very vulnerable to the kinds of dangers that all New Zealanders agree we are trying to stop, and which the purpose of this bill is about.

When I go through clause 29B, “Duties not transferable”, that is fine, but if that person is not around, what then happens? What I am saying is that it does not seem to be sufficient. If there is going to be one representative, and since we are saying that the pool of workers must be 20-plus, well, it seems to me that it is going to be insufficient that you have only one health and safety worker there. Clause 29D, “More than one person may have the same duty”, is fine. In clause 29E, a person—

Before I take another call, I am going to now give a warning. That was a very good second reading speech and it would have been entirely appropriate to Part 3 of the bill—[Interruption] I know the member did refer to clause 29, but, actually, the speech was about Part 3. I am going to be listening very carefully from now on.

I move, That the question be now put.

I rise to make a contribution, particularly on this Supplementary Order Paper put forward by my caucus colleague Clayton Mitchell from New Zealand First. This Supplementary Order Paper deals with clauses 28, 29AA, and 43. It absolutely staggers me to hear, indeed, that the Government is not going to support this Supplementary Order Paper.

The CHAIRPERSON (Hon Trevor Mallard): I am sorry. I did not quite hear the member. Which Supplementary Order Paper was it?

110.

The CHAIRPERSON (Hon Trevor Mallard): Supplementary Order Paper 110.

That is right. It staggers me that the Government is not going to support this Supplementary Order Paper, because in recent times we have heard so much from the Government as to how it supports farmers in particular, the dairy sector in particular, and rural and provincial New Zealand. The amendment to clause 43—adding subclause (3)—for me, coming from the Wairarapa, stands out as a provision that would seek to alleviate an unintended consequence of the legal situation being generated in the Government’s legislation. Our Supplementary Order Paper under the name of Clayton Mitchell aims to alleviate the problem created in the legislation when a person who “is a self-employed individual who is both a PCBU”—or boss—“and a worker in a small-or-medium-sized enterprise in the event of an accidental death of their spouse, de facto partner, or civil union partner who is also a PCBU and a worker in the same small-or-medium-sized enterprise.” is adversely affected.

What concerns us here is a situation where a sharemilking couple who are both owners of the business and workers in it end up in an appalling situation where one of them loses their life in an accident on the farm and the other, on top of dealing with the grief of having lost a loved one, on top of dealing with the situation of still continuing to run the business on their own, is now facing the potential of being prosecuted and charged. This particular Supplementary Order Paper seeks to alleviate that problem. The idea that you could have one spouse being held accountable for an accident and being subject to maybe 5 years in jail or a $3 million fine absolutely astonishes us. This Supplementary Order Paper seeks to overcome that problem. This Supplementary Order Paper is a common-sense, practical solution to that problem.

I cannot believe that a party that won the Government benches with rhetoric about removing red tape, supporting small businesses, and being understanding of the needs of rural and provincial New Zealand in particular, would reject that amendment. The situation I mention could apply equally to a panel-beating shop somewhere in the middle of Auckland, or a petrol station where there is a husband and wife team operating, and someone, through no fault of their own, has an accident and is injured, or dies, in the worst case, and leaves their partner to suffer the consequences—the financial loss, the stress and strain of court actions, and ending up in prison, in the worst case. So I am going to appeal on behalf of New Zealand First, alongside my colleague Clayton Mitchell, and ask the Government to reconsider its rejection of this Supplementary Order Paper. There is much more in that Supplementary Order Paper that I could speak to.

There are parts of this legislation that New Zealand First supports and considers worthy of support, and we understand the intent behind them. I am looking at clause 51, “Duty to preserve sites”; clause 52, “Duty to notify notifiable event”; and clause 53, “Requirement to keep records”. All of those things are dealing with sensible stuff aimed at mitigating and alleviating occupational health and safety issues down the line by collecting data so that people have a record and can analyse what happened and therefore take the necessary steps. We understand that, Minister.

We understand that some aspects of this bill are for things that the Government is genuinely trying to address in order to make the workplace safer for workers, but we do not believe that the consequences that I outlined earlier are actually what the Government intended. We cannot believe that, and we cannot understand why the Government would not accept our Supplementary Order Paper. We ask the Minister to reconsider that position and to support our Supplementary Order Paper, in the interests of supporting those people—what do you call them? PCBUs? I am with the Labour member; they sound like “BOSSes” to me—who are married or in de facto or civil union relationships.

I just want to say at the outset that all this talk of persons conducting a business or undertaking (PCBUs), being reasonably practicable, and all these sorts of things are important. I know that for the public who are listening it might sound awfully technical, but this is about getting the legalities right about health and safety in the workplace, and doing that in Part 2 is incredibly important. I want to cut to the chase in Part 2 and ask some serious questions of the Minister for Workplace Relations and Safety, because I think it comes down to the practicalities. I want the Minister to reflect on clause 30, which is the primary duty of care that the PCBUs must undertake.

I want to put some scenarios to him because these are the scenarios that really make a difference in the workplace. The first one is to do with clause 30(3)(c), which says that “a PCBU must ensure, so far as is reasonably practicable … (c) the provision and maintenance of safe systems of work;”. The situation I want to put to him is this: many of us believe that in the forestry industry one of the main drivers of bad health and safety practices is a system of work where the remuneration is set up so that employees get paid by the number of logs they fell rather than by the hour. It is the view of some of us—certainly it is my view—that this drives very bad health and safety practices because it means that it puts pressure on the workers to work at a faster rate than may be safe, because that is the only way that they can make a decent living.

Certainly, I believe that that was part of the story that Debbie McMillan, who is in the gallery here tonight, told me about the death of her husband, Shane Frater, when he died in a forestry accident, and that the—I think they call it “piece rate”—piece rate way of operating in the forestry industry was a main driver of bad health and safety practices. So the question I am posing to the Minister is whether a PCBU who operates that sort of system at work is compliant with that part of the bill that I just read out—clause 30(3)(c)? I would hope that the answer is no.

This is going to be a little contentious, but this is the serious nature of workplace health and safety. I would also ask the Minister whether an employer who uses another piece of legislation that has been passed quite recently by his Government and who has actually negotiated with workers that they do not take their tea break but get some payment for it instead—like the chocolate fish or the extra muffin or whatever recompense they have negotiated—is complying with this part of the bill. Can the PCBU negotiate their way out of providing a tea break or a lunch break for workers, which, in my view, is actually a fundamental piece of good workplace health and safety, and be compliant with this part of the legislation?

I am really concerned to see that the Government whips are putting closure motions while we have still got these very serious and reasonable questions on the table for the Minister to answer.

The CHAIRPERSON (Hon Trevor Mallard): Order! Closure motions have been dealt with by the Chair, and I do not want to have debate on them even before they happen. It might indicate that members are running out things to say about the bill.

It is no such indication. It is an indication that I want it taken very seriously by this Committee that there are reasonable questions on the table for the Minister to answer, which he has not had an opportunity to answer yet, and which I hope, in all seriousness, are answered by this Minister, because this is now cutting to the chase of whether this clause is going to be practicable in terms of dealing with health and safety issues.

Earlier—I think the Minister might not have been in the chair at the time—I asked some serious questions about a number of other industries and whether it would apply as well in other workplace practices. For example, in the Pike River mine, we saw—and I know this happens in lots of other workplaces—bonuses being offered to workers in order for them to undertake unsafe practices to complete projects in an unsafe way, at speed, and to be offered bonuses. In the instance of Pike River mine, what we know is that workers were offered bonuses of $10,000 if they completed a project in a certain period of time, and for every week that went by that the project was not completed they lost $2,500 of their bonus. Those sorts of practices—

I move, That the question be now put.

Yes, I think we have come to the point where the Committee can make a decision.

I raise a point of order, Mr Chairperson. At the outset of the Committee stage debate on this bill you set out very well the expectations around the debate. As part of that you talked about reasonable questions being raised with the Minister and that being taken into account in terms of accepting closure motions.

The CHAIRPERSON (Hon Trevor Mallard): Can the member come to the point of order.

Yes, so the point of order is some guidance on that, because it felt to me like there were reasonable questions that were on the table for the Minister to answer during that last debate, and I feel that it is a shame that we did not get the opportunity for the Minister to answer those. I am really just seeking some guidance on that.

What I did indicate, and I will reiterate, is that where there are reasonable questions that are asked and the Minister answers them, there will tend to be a discount as to the time that is allowed. The opposite also applies with the reasonable questions that are asked and not answered. Up until the point they become too repetitive, the debate is likely to continue. I think there is some obligation on members, when they have important questions that they want the Minister to respond to, to ask their questions generally within the first 10 minutes of their speaking time rather than after the Minister has responded. That will not always be possible, but I think that is good guidance to members.

Part 3 Engagement, worker participation, and representation