Health and Safety Reform Bill

We come now to Part 3 of the bill, which has to be the heart of the failure of the bill. It is the crucial area in which the Labour Party, which had supported the bill to the Transport and Industrial Relations Committee, is now firmly separated from the Government. The Minister for Workplace Relations and Safety, in earlier debates in the Committee, has pointed to the fact that 75 percent of the people working in New Zealand will be covered by all parts of the bill, but the 25 percent who will not be are the people whom we are considering here.

I will focus on subpart 2 of Part 3. Clause 65(3)—no health and safety reps at businesses or undertakings with fewer than 20 workers. Well, New Zealand has prided itself on being a country of small and medium enterprises, with most of them, in fact, being on the small side—that is, below 20 employees. In fact, in the area of my interests and responsibility, primary industries, the vast majority of people are in this bracket. Indeed, if you look at the statistics where most people who, unfortunately, lose their lives or are seriously injured are, most of them would be working in small to medium enterprises in the primary sector and in the area where the Government is failing to implement proper recommendations and protections.

There will be farmers out there who say: “This is wonderful. We’ve been exempted from this part of it, and we can get on with our business.”, until, of course, the occasion arises where we have a death or serious injury, which all too often happens—on a weekly if not daily basis, if we talk about injuries across the primary sectors. These are the people whom this bill must protect, because, as I said earlier in this Chamber, most legislation we pass is actually to protect a minority of people who need protection for themselves, or from others, or whatever. The vast majority of people—and this runs right through business and right through society and communities—through good luck or good management can protect themselves or protect others from themselves, or whatever. But we are dealing with legislation here that must be strong and must be focused to deal with the people who, through human nature or commercial greed or just plain ignorance, are not going to do the right thing.

I could quote you hundreds of occasions in my experience as a contract fencer, as a farmer, as a sharemilker, as a tourism operator, and as someone who has worked personally in what I would consider to be all high-risk areas—although the Government and its officials do not consider them that. The dairy industry is, apparently, not high risk. Sheep farming is not high risk.

💬 Hon Ruth Dyson: Minigolf is.

But minigolf is. I know those areas are high risk, and I say to farmers, in order to provoke and promote honest conversation when it comes to things like insurance and our practices on the farm, we are in a high-risk environment, doing high-risk things with animals and with bikes, far away from any point of contact.

Good farms now might have radio systems. They might have cellphones. But there are huge numbers of people in the rural and primary sectors who often have no communications where they work, or who are working with animals that are unpredictable. If people in here know and work with animals, they will know that most of them are unpredictable. If you have got some experience, you might be able to herd them and you might have some idea of where they go. But you can be guaranteed that in the end they are unpredictable, and the chances are that unless you have put in place protections and have seen ahead or foreseen that unpredictability, you are at risk. You are at high risk because when an incident occurs there are often not lots of other people around you, particularly if you work in a small enterprise, which is one with under 20 employees—the very classification that this Government is exempting from the same provisions that should be in place as for those with over 20 employees.

Why should those employees have lesser standards of protection than those working in a workplace of over 20 employees? It is immoral, unethical, and unfair. Call it what you like, but just because you work in an environment of less than 20 employees—

💬 Hon Ruth Dyson: Fewer.

Fewer—sorry, fewer. My English is not perfect. In an environment with fewer than 20 employees, why should you have less protection?

The issue for farmers is what this means in practice. Well, it should mean that one of the employees on that farm—and there may be only one or two or three—should have some training and should have some advice on what is good and safe practice in a farming environment.

💬 Jonathan Young: And they will.

Well, no, there is no guarantee of that at all. If you are working in an environment with over 20 employees someone would be appointed or elected and someone would have the responsibility of upskilling themselves—with the support of the company, we hope—to go and learn.

💬 Jonathan Young: They all do. Read the bill.

Oh, they all do! Yes, well, that member should go back and read the parliamentary debates of 1992.

I have heard it said by members on the other side of the Chamber that we must improve the culture. They imply that the culture among employees is not up to standard. Well, there should be a greater level of awareness. I accept that, but awareness comes from education. If someone is employed and not given the opportunity to be educated—and there are some of them here. There was one particular visitor from the UK who came over, was given a motorbike on an orchard without any education, and was killed in the first day of work. That is the kind of situation that we are trying to keep ahead of.

So the culture that the cynical MPs on that side sneer about, implying that workers do not understand safety and have got to upskill themselves—the harsh reality is that there is commercial pressure from employers or from people who are employed as foremen, or whatever, to get more for less. And, indeed, that is a good business practice, I guess—“efficiency”, it is often called. But if it is done at the expense of the standards of health and safety, then that is where we see accidents occurring, and it happens too often.

We are, in fact, implementing a piece of legislation to try to keep ahead of human nature. We are a very innovative nation—No. 8 wire, we call it—and we pride ourselves on being able to do things that no one else has thought of. That is great, but over the years we have cut corners to do that. And over the years, hundreds of thousands of workers in this country have lost their lives. I had two cousins from one family who both lost their lives in the workplace for things about which you might sit back and say: “That was silly. That was stupid.” But without proper provisions, indeed, that cover every part of every workplace, people in New Zealand taking their No. 8 wire mentality will cut corners. What we are doing in the passage of this legislation is we are trying to put in place protection for them and for others.

Part 3 divides the workers of New Zealand into those who are perhaps lucky enough to work in a large workplace of over 20 employees, and others, particularly in the primary sector, who will not have that same level of protection. The member over there said it was in the legislation. What we do not have is on-ground, active management from an individual in that small workplace who has been both upskilled and trained and been given some responsibility to try to remind their fellow workers and themselves of what should be the best practice. If you do not do that, then we as Kiwis will cut the corners, and we as Kiwis have died in our hundreds because of that.

I appreciate this opportunity to take a call on Part 3 of the Health and Safety Reform Bill. I want to very briefly respond to a question that the Minister in the chair, Michael Woodhouse, posed in his contribution on this bill last night when we were last debating this clause, before moving on to some further questions that I would like him to give some consideration to.

The question that the Minister raised was whether having elected health and safety representatives was the only way, or the best way, of achieving the objectives of this legislation. He raised, as an example, tool box meetings and whether tool box meetings could be legitimate alternatives. I can say to him that I worked in the oil and gas industry before coming to work here at Parliament, and tool box meetings were a regular part of working in that industry. They worked at least in part because there was a designated person within each team responsible for health and safety matters. So it was not an either/or; in fact, the two things went hand in hand.

The health and safety person was usually someone different from the manager who was running the tool box meetings, because it was the person who actually, if anything, went out of their way to identify the safety risks and bring them to the attention of the rest of the team. They were more able to do so than the manager of the team because they did not have all the other pressures on them that the manager in the team had. You know, the manager in the team is weighing up time constraints and all those other things that a manager of staff is going to have to consider. The health and safety person was focused on the health and safety of the team, and those two things went hand in hand. So I think that when the Minister asked whether having elected health and safety representatives was the best way or whether there were there alternatives, my answer to him is that it should not be an either/or, but, in fact, all of these things are linked and they go together.

The specific area of questioning that I want to raise with the Minister is around clause 65(3)(a) and (b), which is around this definition of a smaller employer, with 20 or fewer workers. The question that I have got is this. What can the Government do, and what will the Government do, to avoid a situation where large firms can get out of their health and safety obligations under this bill by creating a series of smaller firms to undertake particular contracts? Let us take the hypothetical example that I have been using of, say, an engineering firm. An engineering firm is out there tendering for a variety contracts—

💬 Jonathan Young: They have an obligation, no matter the size.

Jonathan Young says they will have an obligation. I would like to have that reassurance from the Minister, because there is nowhere in the bill that actually guarantees that. So what companies do—we now have the Minister of Commerce in the chair, so he will be familiar with this practice. Companies can use the practice of creating smaller companies in order to control some of the other commercial liabilities that they may have, which I am sure he could get into in great detail. But I am particularly interested in their health and safety obligations in this particular instance.

Let us say that a firm—let us call it ABC Engineering—is bidding for a variety of contracts. It sets up a subsidiary company for each of the contracts it gets, and it hires a separate workforce for each of the contracts. One of reasons it does that is that it does not then create ongoing employment obligations, so it is one way it gets around some employment obligations it may otherwise have.

💬 Alastair Scott: It is one PCBU.

Yes, it is one person conducting a business or undertaking (PCBU), but it is creating separate PCBUs. It may not be the person; it may be an entity that is conducting this. So I want to have an absolute assurance. The Minister may well give us this reassurance—that there will be a way that the Government can legally stop this from happening—but I have read these parts of the bill very carefully, and my reading of it is that there is not a way, under this bill, to stop a firm setting up a variety of subsidiary companies in order to get around the obligations that it has in this part of the bill.

I continue with my example. This is not going to be one PCBU; in fact, they can be multiple—and companies structure themselves this way all the time for a variety of other legal obligations. They try to structure their affairs to get around things, and sometimes with good reason—it is not an illegitimate practice. Sometimes there are very good, legitimate reasons why they may do this. If somebody is employed by a subsidiary company for a particular project, and only for that project, and they then move to another subsidiary company within the same umbrella organisation and that subsidiary has fewer than 20 employees, I want to be sure that they are still going to be covered by this legislation.

I have been reading the bill very carefully, and I have been getting some further advice, and I cannot see anything in the bill that actually guarantees that that is what is going to happen. Some reassurance from the Minister on this issue, I think, is very important, because it is not a trivial matter. If, in fact, this loophole can be exploited, then the rest of the provisions of the bill become almost completely redundant because almost any firm at that point can find a way of getting out of it, including a large firm in a high-risk industry. So that was the first question that I have for the Minister.

The second question for the Minister is around subcontracting arrangements. This is different. This is not a question about the principal firm involved. It is a question about when it divides up its business and subcontracts that out. Will the obligations continue to apply to separate subcontractors? Again, there are ways to get around this. Let us say a firm wins a large contract—again, we will use that as the example—and it may subcontract a whole part of that contract to a completely separate firm that has fewer than 20 employers. This is very common in a whole range of industries like the construction industry and so on. Will they be covered even if it is the large firm that has the principal contract and it is subcontracting the totality of the work for one particular contract to another firm with fewer than 20 employees? Will that be covered? I am just seeking some reassurance from the Government that, in fact, that will be the case, because if there is not a guarantee that that is going to happen, many of the other provisions in this bill become redundant. So some reassurance from the Government on that is really important.

Finally, I want to turn to clause 110, which deals with the issue of adverse conduct. These are things that a person conducting business cannot do in order to effectively discourage a worker from making complaints about their health and safety. The point that I would make about this is that these are all things at the extreme end—things like sacking somebody, or not employing them, and so on. We are talking about effecting a culture change here. In fact, the Minister mentioned the culture change, but culture can be a lot more subtle than that. I do not disagree with any of the things that are in here—I think that they are all good and they are all vitally important—but we are going to have to think. I would like to have, I guess, some further thinking from the official end about what the Government might do about this to effect the culture change around these things.

Anybody in a workplace will know that there are things that an employer, a boss, or a manager can do that are much more subtle than the more extreme measures. One of the meanings of adverse conduct, in clause 110, is dismissing or terminating contracts—well, that is at the extreme end—but there are others, and some will be quite hard. Clause 110(1)(a)(v) says: “subjects the worker to any detriment, in circumstances in which other workers employed or engaged by the person on work of that description are not or would not be subjected to such detriment;”.

“Detriment” in that case would, I think, be quite hard to define, so let us go back to the tool box meetings concept that I was talking about, with the manager at the tool box meeting. People will be doing a variety of different tasks within that team, and we all know that some tasks are more exciting and more enjoyable than others. The allocation of tasks, for example, may not fit the nature of detriment but could be one of those subtle signs in the culture within that workplace around workplace health and safety. What we have got to be sure that what we are doing in defining these things is making sure that we are going to actually achieve the culture change that the Minister has talked about, because there is absolutely no doubt that you can set a whole series of rules, but if the culture of a workplace is not right, then you are still going to have problems.

Like I said at the beginning, I have worked in the oil and gas industry, which is a high-risk industry, where there was—and, in some areas, still is—a sort of a “cut the corners” culture and mentality. I have got to say that in the oil and gas industry companies that I worked for in New Zealand—and there were several of them, and all in Mr Young’s area—the culture was, in my view, that they went out of their way to create a safe culture, starting from the minute you arrived at the gate, where they have “LTI” indicator boards—that is, lost time injuries. They were recording them, and the longer they go without them, the better the staff feel and also the more encouragement and incentives there are for the staff around that. That is great. That is the sort of practice that we want to be encouraging, so that firms are taking this seriously. They take it so seriously that they put it right up there at the front gate. When you arrive you see a board that notes lost time injuries. That is the culture we want to encourage.

It is great to rise on behalf of New Zealand First to take a call on Part 3, which is, really, the pièce de résistance of the Health and Safety Reform Bill. It is where the rubber meets the road for us, certainly. Mr Damien O’Connor raised a good point—certainly, New Zealand First’s interpretation is about the culture in Part 3, and I think the Government needs to be commended, in part, because it understands that health and safety representatives are the key to helping change that culture. So two thumbs up—well done for acknowledging that. I want to also, while giving the Government a slight piece of a “well done”, take a bit away from it and say that it has not gone far enough. Understanding that such a large percentage of New Zealand businesses are actually small and medium sized businesses, and that a large percentage of those businesses are where a lot of harm is caused, I think the threshold of having to have 20 or more workers to qualify for a health and safety representative is too high. We need to ensure that we can get that gap down a little bit. In this part New Zealand First does actually have three amendments, on Supplementary Order Paper 110, to be put in there, and we would like to have them very seriously considered for moving forward with this bill.

I will start with probably one of the most important amendments, the insertion of a proposed clause 65AA, which would have the training costs of health and safety representatives covered by the Government. Subclause (1) of that reads: “Training costs for health and safety representatives in small- or medium-sized enterprises are to be funded by the Government.” Subclause (2) of clause 65AA on our Supplementary Order Paper is: “The training costs referred to in subsection (1) include course costs, travel, and time off work to attend training.” That may actually have a significant impact with another amendment on our Supplementary Order Paper, which reduces the number of workers required to engage a health and safety representative from 20 down to 10.

The reason why we have gone with this second amendment to take it from 20 workers down to 10 is, of course, to make it as affordable as we can for those small businesses, understanding that a large number of New Zealand businesses is made up of those small businesses and that many of those businesses are hand to mouth. They are, in most cases, businesses where people have set themselves up into a business and are actually doing it as a source of income—for a job. It is not necessarily about profit; it is actually about survival. We think those costs of those health and safety representatives—course costs, the travel costs, the time away from work costs—should be covered by this Government and in this legislation. If we could get the support from the Government and our cross-benchers to support these costs being covered, then we would drag off our amendment with the reduction from 20 workers down to 10 and we would certainly be keen to support Labour with its complete and utter removal of a threshold, because we are talking about a culture change.

When questions were asked in the House of the Minister for Workplace Relations and Safety 2 weeks ago by me and others, we asked about those costs, and the Minister said that the benefit or most of the benefit lies on the employer or the person conducting the business or undertaking, and that therefore they should wear the costs. But in order for culture change to happen, one, you need education and, two, you need good leadership. As a Government that is in leadership—your sole role in governance is to lead—you should be taking that lead. Everybody will have the benefit of a health and safety regime where our numbers of deaths have been drastically reduced. If a Government can stand up and say that this is important for our workers, this is important for our employers, and this is also very important to our Government, then that is the pragmatic, solid approach that it should take to alleviate the stress.

Culture is very important because, of course, we are talking about imposing some legislation from the top down. If you do not have the buy-in from the bottom—the people who are actually being affected in their workplaces—you certainly will not have the overall blanket support for this new legislation, and it might go by the wayside. Even with the extra $8 million for labour enforcement officers out there in the workplace, you still will not have the support that is required because there will be no buy-in. Health and safety representatives are the key. They are the knights in shining armour to try to alleviate this atrocious number of workplace accidents, injuries, and deaths in New Zealand when we compare ourselves with the rest of the world—twice as many as they have in Australia and nearly four times as many as they have in parts of Europe is just unacceptable. We absolutely support this culture change.

I rise to take a call on Part 3. This, as other people have said, is where the rubber hits the road. It is the significant part of the bill that deals with worker participation, worker engagement, and health and safety reps, health and safety committees, and, as I said in one of my previous speeches, with who is in and who is out. It is in this part that we see the Government’s experience of being lobbied coming into play in the legislation. That is where we see the exemption of health and safety committees and reps for businesses with fewer than 20 workers.

I have been thinking very seriously about what engagement means and what participation means, and reflecting on the types of submissions that we received. We received many submissions to the Transport and Industrial Relations Committee on the Health and Safety Reform Bill from employers who were really, really concerned that health and safety representatives would have too much power. They talked about the fact that health and safety representatives could be vindictive or that they could use that power, basically, to shut down the plant or the operation for no good reason whatsoever. In this part of the bill there are some constraints around that.

This is quite a wide-ranging part of the bill, and I want to take several calls on this—I am just giving you notice, Mr Chairperson. I do want to take several calls on this to address some of those different aspects that are held within it. It is quite important, and also wide ranging. First off, we have got the whole issue of engagement and then, following that, we have got the issue of participation.

The bill talks about what engagement means. What I see engagement as meaning is that it is supposed to be about ensuring that workers know what is going on—that they have the opportunity to be told what is going on, but not necessarily that they get the opportunity to speak back, although that is covered a little bit further, in participation. But what I have seen from my experience as a worker and as an employer is that, frequently, telling people is not the same as engaging people.

For true participation you need to have a two-way dialogue, and that is the balance that is being talked about in the model law, in the task force, and in the recommendations from the Royal Commission on the Pike River Coal Mine Tragedy. It seems to me that one of the ways that workers can participate is by electing a health and safety representative. The fact that workplaces that have fewer than 20 workers do not have that right as a right means that that type of participation, that type of engagement, and that type of voice has actually been silenced.

I guess that goes further when you look also at health and safety committees, which are not required. A health and safety representative can ask for a health and safety committee to be set up, or in workplaces with over 20 workers, my understanding is that if more than five workers ask for a health and safety committee, then the employer—the person conducting a business or undertaking, rather—can consider it. The employer has the right to consider it, and also, the employer has the right to decline that.

I note that there is a Supplementary Order Paper from the Minister that tries to soften that a bit by saying that, actually, the workers who would be affected by that have to be told. Great—they just have to be told. They do not have to be agreed with, their request does not have to be met; they just have to be told. Actually, when you think about it, that is not really engagement either.

Today I got an email from a gentleman who had the dubious pleasure of being my boss for 7 years. He is a volunteer, and he was a volunteer then, for the Waiheke Waste Resource Trust on Waiheke Island. His name is George Blanchard. The poor man—he was my boss for 7 years, and he was a volunteer. He actually wrote to me because he was a director of our community-owned recycling, waste collection, and processing company, which uses a lot of heavy machinery.

The worksite itself, which was owned by the council, was pretty dodgy, I have to say, so health and safety was a huge issue. What he wrote to me today—and I will quote from it because it is a nice email—was: “I’ve been thinking about the way safety was organised on the”—basically—“dangerous Clean Stream Waiheke Ltd site. We had a completely unionised site with union members on the safety committee. When someone turned up in an unsafe state, it was the union rep, the health and safety rep, who asked that person to go home and not to turn up again in that state. This meant that the person knew that it was a request aimed at the safety of co-workers, and not a vindictive approach by management. This might be a good model to explore. Talley’s could learn something here, if its management was capable of such a thing.” And I am going to mention Talley’s, under parliamentary privilege—I would not dare mention them outside—basically because it has taken, and it is taking, a vindictive approach to workers who do want to have a voice or who have dared to participate in union activities. It is doing this during the breakdown of employment collective agreement negotiations.

I guess one of the things that worries me the most is the talk that we heard from some employers like Talley’s, during the select committee process, about this huge lack of trust, which, actually, I believe has filtered through into this iteration of the bill. It has changed the balance so that the employer gets to make a whole bunch of decisions, including, in places where there may be a health and safety rep, what workers that representative will cover, whom they will represent, and what work group they will represent. So, for example, if you had an employer who really did not want to meet its obligations, it could quite easily say: “Well, this representative on this large worksite will only represent this group of workers, who are the admin workers, and let’s forget about the ones in the warehouse.” It sort of defeats the purpose of having a health and safety representative if that is the way an employer is going to operate, but it does happen.

We make law for the exceptions—for the bad cases. We make law to make sure that those sorts of exploitations and bad employment practices can be controlled. But what we are seeing is a complete watering-down of the rights of workers to be able to say anything about health and safety. It does say in the bill that this is about ensuring that workers participate, but we have got a situation where the bill itself does not set up, as a right, situations where workers have that voice.

Outside this bill, in the rest of the legislation around employment relations, we have got a whole bunch of legislation that this Government introduced that silences workers even more. I will give you examples. They are things like the 90-day trial, fire-at-will law. What that does is that new workers coming on are unable to raise their voice for fear that they will not be brought on again. Look, I realise that further on in this part of the bill there are some issues around coercion and around the behaviour to try to prevent that, but we have got this happening in other parts of employment relations, and they are interconnected. If a worker cannot speak in their first 90 days at work for fear that they may be sacked for no reason, then what hope have we got of them being able to raise any issues around, say, the deep-fryer basically burning people on a regular basis, or not having any sort of protective bars to stop workers falling into it? We have come to a situation where that balance has absolutely changed.

Before I take the next call, I just want to acknowledge that a member has brought into the Chamber a casket that is normally for the carriage of ashes. If she thinks she is going to use that as a visual aid in some later speech, the rules would require her to have it out of sight until she uses it. If she is intending to use it for some other purpose, I fail to see how that is within order in the House at the moment. So I would suggest at the moment that it be taken off the desk.

💬 Sue Moroney: Can I speak to the point of order?

The CHAIRPERSON (Hon Chester Borrows): I suggest you take it down at the moment. Thank you. I can advise that currently I am seeking some guidance from the Clerk’s Office in respect of this. It has been drawn to my attention that it is causing offence in the House. The question for the Clerk’s Office is whether it is going to be seen as a visual aid or whether it is going to be dealt with as a matter of offence to the House. If it is a visual aid, it then is open to the Chairman to decide whether or not it is appropriate as a visual aid or not. That will be something that will be decided at a later time. If the member has a point to raise in respect of my comments, she may do that now.

I raise a point of order, Mr Chairperson. Tēnā koe e te Heamana; i tēnei wā tino riri rawa atu ahau i tēnei mahi e tērā mema i tēnei wā.

[Thank you, Mr Chair. Right now I am really furious at this action by that member at the moment.]

Just so the Committee is really clear, I am deeply offended on all levels possible that the House should be treated in this way and that these particular signs of death, which are tapu, should be brought into the Chamber for the purposes of a member making a political point. I urge the Chair and the Clerk to find a ruling whereby we are not subject to this deeply offensive practice.

In hoping that I get the same latitude that was afforded the Minister who just spoke, I want to clarify—and I intended to clarify this in my next call—that yesterday when I took my first call in this debate, I explained the presence of the taonga that I had in the Chamber with me. If members feel offended, I am surprised that they have not raised it with me. For clarification, I understand that some people have the misunderstanding that someone’s ashes have been brought into the Chamber. That is not the case. If that is what has caused the offence, then perhaps people could have sought some clarification. I said at the outset of the debate yesterday that I had been asked by family members of a worker killed in the forestry industry to bring this symbol from the families who had lost loved ones in workplace accidents, who had gathered in Parliament the previous day. They asked me to bring this symbolic gesture into the Chamber during the debate, and I am honouring their wishes.

We are not going to continue this debate—[Interruption] I am on my feet. We are not going to continue this particular debate about these comments. Nothing you have said has eased my offence at what you have done or substantiates the reason why you would bring that into the Chamber. We will await the ruling. We will carry on with the debate in the meantime.

I raise a point of order, Mr Chairperson. It is just that we had a debate in the House yesterday for 4 hours and this symbol from the families was present for the entire time without causing offence. It has not been an issue. It was requested by the families, who are in the gallery. It is not what the honourable Minister of Education thinks it is; it is something significantly different. It is a symbol from the families.

Given the comments that have been made, I need to say that when I took my call I was going to express my concern over the issue. I did not know whether or not there were ashes in the box, but I have felt throughout this entire time that it feels like we are speaking at a tangi. I was going to speak, when I made my comments, in Te Reo Māori because that is how it feels to me, being in this room with that, and with the opening of this entire debate starting with the family members speaking to the death of their lost ones. I feel very uneasy about debating points of law under that heavy burden. Kia ora.

Well, members, I have been advised that the item should be treated as a visual aid. It cannot be displayed unless the member is speaking, and then it is over to the Chair as to whether or not they consider it to be appropriate as a visual aid in respect of the speech the member is giving. A visual aid, to the mind of this particular Chair, should in some way enhance or amplify the debate and must be appropriate. I will rule it inappropriate if the member seeks the call and seeks to display it during the time that she is speaking. I will give her that indication.

I raise a point of order, Mr Chairperson.

The CHAIRPERSON (Hon Chester Borrows): Well, I have made a ruling. If people want to in some way debate that ruling, then they will know that they are on shaky ground. If it is another point, then I will take Andrew Bayly’s point of order.

Sorry, Mr Chair, this is a point of clarification. Is your ruling such that if the member displays it once during one speech, that is appropriate? Or is that ruling going to be that she can continuously have it available any time that she rises to give a speech on this important bill?

I have given an indication—the member is currently within the Standing Orders. I have given an indication that my view is that if she sought to display it in the course of a speech, then I would be likely to find that inappropriate. She has not done that yet.

I raise a point of order, Mr Chairperson. Perhaps I can allay all the fears that have been expressed by the Committee. If the Government does not wish it to be displayed, it will not be.

I need to just make the point that this is Parliament; this is not the Government. This is Parliament, and it is the members of the Committee who have expressed their thoughts. I am making this ruling as the person in the Chair of this Committee; I am not in the Chair as a member of the Government. Any suggestion that this is in some way embarrassing to the Government is offensive to me. If the member intended for that to be taken from her comment, then she should withdraw and apologise.

No, that was not my intention. If Parliament does not wish it to be displayed, then it will not be.

That is Parliament’s wish.

It is regrettable that people have found the box offensive. For me, in my eyes, it is symbolic of the life and death issues that this bill relates to.

Because Part 3 is the substantive part, it is also the part that has direct impact on workers and their lives. I want firstly to make a couple of general comments, then I want to respond to and challenge some comments that were made by two Ministers relating to this bill, in Part 3, and then I want to go through and show, particularly to the Hon Peter Dunne, why I think he is wrong when he says that this bill has not been diluted.

The first comment I want to make generally is in the words of Debbie McMillan, whose husband was killed whilst working in the forestry industry. She said, speaking to this Government: “If you pass this bill, I ask you, come and explain—

The CHAIRPERSON (Hon Chester Borrows): Order! If those two members want to have a long-distance discussion, they can go to each end of one of the lobbies.

Mr Chairman, I am going to repeat myself, and I hope you do not take it off my time.

Debbie McMillan, whose husband was killed whilst working in the forestry industry, said in speaking to the Government: “If you pass this bill, I ask you, come and explain to my daughter why her dad’s death meant absolutely nothing.” When she heard the Government say it was important to keep the right balance in the legislation, she also said to the Government: “Are you saying that a certain number of deaths is acceptable as long as you have that balance?”.

The other general statement I will make is in the words of Bernie Monk, the father whose son Michael died in the Pike River tragedy. He said that the health and safety provisions in the bill should not be watered down for small businesses. He said: “One rule and one rule for everyone.” Those are the general comments that preface my comments now.

I want to challenge the comments made by Minister Dunne when he said that this bill is much stronger now and has not been watered down. I will show, through my analysis of clauses 61, 62, 63, 64, and 65, why I think the Minister is wrong. The first point I want to say, as to why he is wrong, is really using the words of Michael Woodhouse, the Minister for Workplace Relations and Safety, who last night, when he introduced this part, said that because there was general consensus for Part 1 and Part 2, and that Part 3 is the substantive part that there would be dispute on, on balance the legislation is still good legislation.

But I want to give you an example of why this part actually makes the entire legislation bad legislation. Imagine if the Minister was sitting at the table and eating a bowl of cereal, or soup or whatever, in the morning, and a fly happens to come along and plonks himself or herself into that bowl of cereal. Would you say, on balance, that that bowl of cereal is still good cereal? If you imagine that that fly had been flying about in a pigsty or in a cow paddock, would you still think, on balance, that that bowl of porridge is still good legislation? I say no. That is the argument I want to present to the Minister and to Mr Peter Dunne.

I now want to refer you to clause 61, “Duty to engage with workers”. Although the legislation uses the acronym PCBU—which is quite long and tongue-tied—let me just use the word “business” for the sake of that. In subpart 1 of Part 3 it says: “A PCBU [or business] must, so far as is reasonably practicable, engage with workers—”. If you remove the words “so far as is reasonably practicable”, the clause should say: “A business must engage with workers.” But when the Government adds on “so far as is reasonably practicable” next to “must”, it removes the strength of that word “must”. Therefore, I say to Peter Dunne and the Minister that they are wrong because the use of those two groups of words next to each other actually weakens that particular clause.

I refer the Minister to the regulatory impact statement where it reads—and I will quote it for the sake of this Committee—“small businesses and self-employed workers will need to engage more actively with health and safety requirements than they perhaps did under the [present legislation]”. The way that that clause has been worded, by using a compulsive term, “must”, and then by putting another statement, “so far as is reasonably practicable”, makes that whole clause irrelevant. So this is why you have the voices of the past or the voices of the families who came to Parliament saying that this piece of legislation has been watered down.

Let me go to clause 61(2). It says: “If the PCBU”—or business—“and the workers have agreed to procedures for engagement, the engagement must be in accordance with those procedures.” The use of the word “if” suggests that it may or may not happen. If the use of the word “if” is there, again this is an example of why this legislation is not as strong as was originally recommended. It has actually weakened it. The words that should have been there are words that require the engagement—that would insist on the engagement—but instead we have the word “if” to begin that particular clause.

I also want to look at clause 61(4)(b): “for any other person, to a fine not exceeding $100,000.” That suggests that this fine is going to prevent something from happening, but the reality is that because of the word “if” at the very top, there is no compulsion. The Government uses the huge fine of $100,000 as if that would deter some wrongdoing, but the reality is that because of the word “if” at the beginning, nothing is going to happen anyway. It is quite deceptive in that particular clause.

I turn to subclause (1) of clause 62, “Nature of engagement”. In paragraph (a) you have the words “timely manner;” and in paragraph (b) you have the words “reasonable opportunity”. I ask the Government to explain, when it put that engagement with workers in subclause (2) requires “relevant information about the matter be shared with workers in a timely manner;”—when will that be? Will it be today, tomorrow, or in a week’s time? Will it be in a month’s time, or in a year? The word that should have been there was “immediately”. If we are talking about the lives—

💬 Jonathan Young: That was a Labour amendment we accepted.

—hush—of New Zealanders, and remembering the symbol of people who have died, then we should not be waiting around. Our actions should be immediate, and because of the word “if”, which has been used consistently throughout Part 3, it suggests that nothing is going to happen, and that is a sad indictment on this particular Government.

I remind you of the words that I began with—the general words about why the public out there does not believe, because this part here is bad, that on balance you have good legislation. I remind you about the fly sitting in the porridge bowl. There are words about reasonable opportunity—that workers be given a reasonable opportunity to express their views. In the workplace we have a bicultural society but we also have a workforce that is diverse, culturally and language-wise. To expect that workers in a power situation, where some may fear the employer and may not be willing to reveal what is in their minds to an employer—giving workers reasonable opportunity could mean nothing. It could mean nothing happens, and that puts workers in danger.

We see in clause 62(2) that it says: “If the workers are represented by a health and safety representative, the engagement must involve that representative.” Again, by the use of the word “if” it suggests that there may not be health and safety representatives. What then happens to that group of workers, irrespective of whether there are 20 or fewer?

It has been suggested by some members of this Committee that Parliament is a safe environment, yet I can remember three occasions—the first was when somebody was about to jump down from the gallery here. Is this a safe environment? Yet somebody was prepared to jump down here, and I and others were sitting back here. The second one was when I had a group of workers who were locked up in the lift in the Beehive. For about 4 or 5 hours we were locked in there. The staff here did not know how to open it up; in fact, somebody else had to come in. The three women who were locked up with me in that lift were afraid and one of them got sick. We were ill-prepared for that. The third incident was my tripping over on a group of stairs, and I hurt my ankle. What I am saying is that we think this is a safe environment but nobody plans on having accidents, and therefore—

This is the first occasion I have had to talk on this bill, and I want to acknowledge the leadership of the Hon Michael Woodhouse, the chairmanship of Jonathan Young, all my co-members of the Transport and Industrial Relations Committee, the officials, and the people who submitted on the bill and provided their time rather generously. I believe that the select committee has operated in a constructive and pragmatic way in order to achieve a bill that we are proud of. However, personally, I must say that I am disappointed with some members of the Opposition who have sought to make political capital out of this bill. It is unconscionable and absolutely unnecessary. Of all the issues in this bill, covering 240 pages—

The CHAIRPERSON (Lindsay Tisch): Come to Part 3.

—I think it is important to note that we as a committee agreed on virtually all of them.

Before I turn to address some of the specific issues in this bill, I want to first circle back to this issue of culture. If you strip away all the words in this bill, what we have sought to do is to achieve a change in culture, so that in every workplace, in every business throughout all of New Zealand, everyone in that place starts to think and work safely to create the right environment to keep our people safe. So the question is: how do we bring about that cultural change?

This bill continues the requirement that the person conducting a business or undertaking (PCBU) has a primary obligation to ensure a safe working practice. That has not changed. What has changed is that in this bill we have also inserted a requirement for workers to take reasonable care in the workplace in order to keep themselves safe. Just as important, what we have asked workers to do is that in the way they are conducting themselves in the workplace they do not have any adverse impact on their colleagues. Previously the only group that was responsible was the PCBU, but, in effect, this bill introduces a triumvirate of responsibility between the PCBU, the worker, and the colleagues, and that is how we are going to bring about a cultural change.

The next issue I would like to address is whether there should be any flexibility in the way that businesses conduct their health and safety practices—specifically, this issue of firms with fewer than 20 people, which has become rather vexed and political in its engagement. I am disappointed with the misinformation on this aspect. So let us go back to history. When this bill was initially introduced into this Parliament, it borrowed heavily from the Australian model law. If you look at the industrial situation in Australia, it is dominated by large companies with a heavy union influence. This is not the case in New Zealand—97 percent of all New Zealand businesses employ fewer than 20 people.

Some members in this Committee seem to have a very jaundiced view on how small businesses operate in New Zealand. Small businesses are very collegial and have a team environment. In fact, for these small businesses to operate in any other manner would lead to their non-survival. What we in the committee are focused on is that we want everyone—everyone—in that business to start thinking about, and working on, health and safety issues, instead of leaving it to just one individual who is appointed to take up the cudgel for everyone else in that business. So for people employing fewer than 20 people, what this bill does is introduce the possibility that they can be flexible about the way they are going to manage their health and safety environment, what policies they are going to put in place, and how they are going to monitor it.

In the absence of active engagement by the PCBU with the workers—and there is a statutory requirement in the bill and a fine of up to $100,000 if they do not—workers will still be able to follow the right set out in the very prescriptive process in schedule 1A of the bill. There is no other option for those companies that do not engage, that have greater than 20 employees, or that operate in high-risk industries. This involves the lawful appointment of health and safety reps and the lawful appointment of health and safety committees, and I totally agree that in those circumstances those arrangements should survive.

It is a privilege to speak to Part 3 of the Health and Safety Reform Bill. If you look through Part 3, you can see the remnants of what this bill could and should have been, because in amongst a little bit of the bad stuff is, actually, some good stuff. I do want to point towards clause 92—when the Chairperson resumes the Chair—which is around the provisional improvement notices. They are notices that a health and safety rep can take to the person conducting a business or undertaking (PCBU) or the boss if that health and safety rep notices a practice or something that is going on in the workplace that should not be going on. Issues are noticed to make sure that some improvements should be made.

Last night in my speeches to other parts of the bill I spoke of a gentleman called Mark Samoa from Porirua, who passed away in early January after he was in a workplace accident here in Wellington on the wharves of CentrePort. His situation was that he was putting labels on bales of pulp. He was in between the bales. Somebody else did not know he was there and, in a forklift, moved some of those bales and crushed Mark Samoa to death. If there was a health and safety rep in that situation now at CentrePort, you would hope that, because of clause 92, a provisional improvement notice would be the kind of thing that would be instigated to make sure that the practices there at CentrePort could be improved. I hope they have improved already since the time that Mr Samoa passed away. That is one of the issues that we think there is good for within Part 3, but it is, unfortunately, all held back because of clause 65(3) of the bill, which takes away the ability for all workplaces to have such a health and safety rep to instigate clause 92 and put one of these provisional improvement notices in there.

The previous Chairperson, the Hon Chester Borrows—I saw from my office, while I was watching on television—made a ruling about a visual aid that should not be shown. I acknowledge that some members of this Parliament took offence to that, and I respect that and I understand that a ruling has been made. Although we cannot show in that symbolic way the voice of the families of those who have passed away, I still think it is very important that we do make sure that the voices of the families of those people who have died at workplaces—

💬 Hon Hekia Parata: That’s right—that’s what you’re here for, not gimmicks.

If that member could give me a chance, I will do that. One of those people is Rhonda Samoa, the sister of Mark Samoa, who passed away. I think it is really important that we do get those voices in, and I was touched that Rhonda and some of her family came to Parliament on Tuesday night to voice their anger at what is being done here in Part 3. If the Chairperson will allow me, I would like to read a post that Rhonda made on my Facebook page on Tuesday night. She said that she came to Parliament and listened to “the discussion on the reform bill and heard families of loved ones lost from work place accidents, Pike River and a mother who lost her son to a Forestry incident.” She said: “It is sad I share their sentiments.” She said: “Their stories were heartbreaking.” She thanked those in this Parliament who were fighting to protect the rights of workers. She said: “Fight for the workers rights. Safety in the workplace.”

She asked the question: “What more basic right could be denied us?”. She said: “This Bill is a farce. The Govt pandering to small business employers for the vote … As the health and safety rep at my work, it’s part of my job to ensure we all adhere to safe best practice.” She said: “Somebody’s got to ‘have your back’. We lost 51 New Zealanders to workplace accidents in 2013 and after Pike River, you’d think this Government would learn.” So I am not going to take any lectures from that side of the Chamber about this side of the Chamber making this issue political, because that is a Government that held this process up in its own caucus room and in its own negotiations because it made this issue political.

When it made the promise to make workplaces safer for all New Zealanders after Pike River, most New Zealanders believed the Government. They said: “This is a good thing.” Even we said “This is a good thing.”, but in Part 3 the Government makes a lie of that promise. The Government makes a lie of that promise because it has pandered to some businesses that do not think it is right to make sure that all workers in their workplaces are safe, because it is within, I think, clause 65(3) that we are seeing the carve-out for workplaces where there are fewer than 20 employees. Our question has been why. The member who was speaking before me and the Minister in the chair last night in his opening remarks on Part 3 said “We want to encourage a culture of personal responsibility in the workplace so that each worker knows that it is their responsibility and a collective responsibility to make sure that they are safe in their workplace.” Well, I am sorry, Mr Chair and Government members; that culture already exists. Rhonda Samoa said it on my Facebook page last night: “You don’t have to create the culture because the culture already exists.”

What those people in those workplaces want is legislation that actually makes that culture law, so that when they go to their bosses they are backed up by legislation, and if they have got concerns in the workplace, this Government, this Parliament, will back them up. But, no, this piece of legislation does not do it for a large number of businesses that have fewer than 20 employees. So my question to members on the other side of the Chamber is why. Why did you change your minds from the outset, where everything was going to be comprehensive, to what you now call balanced? In the opening remarks on Part 1, the Minister said: “This is a balanced piece of legislation.” What exactly are you balancing? You are balancing the safety of people in their workplace. I hope I never have to get the phone call where one of my loved ones has had an injury or died at work.

Here in this Parliament I think we have a duty to make sure we do everything possible to make sure they are safe, and this piece of legislation, when it set out on this journey, did. But now, because of clause 65, it does not—not for every single New Zealander because the carve-out there is for those businesses with 20 or fewer employees. So my question is why. Why did it get held up in your caucus? Who on that side of the House said that we should keep it as it was? Who on that side of the House said: “Let’s change it.”? We knew that it got held up. Which smaller parties put a fly in the ointment from what this bill originally started out as to what it looks like now?

This is not the best this Parliament can do for every worker in New Zealand. It is not. Rhonda Samoa knows that. All those families who came who lost loved ones in the Pike River disaster know that. They came to this Parliament to say that this is not good enough, and I think they know. They know damn well better than me. Unless someone in this place has lost someone at work, I think those families damn well know better than all of us. So why has this changed from what it was originally to what it is now? I respect that some members on that side of the Chamber are taking some calls. Get up and tell us why. Get up and tell us why this has changed, because if you do not, no one who came to this Parliament who represent those people who have passed away is getting a decent answer from you as to how future families will not be put in that same position.

We need to be doing much better than this. We do not need any more Rhonda Samoas. She said after the court case that it took a death and a court case for her brother’s employer to get a good kick up the arse. So why are we sitting here giving her a lame-arsed solution to a problem that we need to solve to make sure our people are kept safe in the workplace? For Rhonda Samoa and all those families who have actually lost family members in the workplace, I want to hear from that side of the Chamber as to why you watered this bill down.

I raise a point of order, Mr Chairperson. At the outset of this debate—I am talking about the outset of the debate yesterday—we were given assurances by the Minister in the chair that if there were reasonable questions put to the Minister, that those questions would be addressed. What I really want to check, because the Minister in the chair now is not the Minister in charge of the bill, is whether that will still occur.

No. That is not a point of order.

💬 Sue Moroney: It won’t?

The CHAIRPERSON (Lindsay Tisch): The member will sit. When I said “No”, I meant “No, the member will sit.” The Minister in the chair will decide whether he or she wishes to answer a question. It is not for the presiding officer—the Chair—to decide whether the Minister in the chair answers questions. That is the prerogative of the Minister, and that is where it stands. Yesterday we saw the Minister in charge of the bill take five calls on Part 1, but that is not to say that Ministers in the future will take as many calls. That is their prerogative, and there is nothing in the Standing Orders or Speakers’ rulings that requires the Minister in the chair to actually answer the questions. I am going to call Jonathan Young.

💬 Sue Moroney: I raise a point of order, Mr Chairperson.

The CHAIRPERSON (Lindsay Tisch): Is this a new point of order?

💬 Sue Moroney: It is. I think you may have misunderstood what I was asking about. The direction given at the beginning of this debate was around the way in which the Chair would assess closure motions—

No, no. The member will sit. I have already answered this question. Closure motions happen when the presiding officer determines that the debate has run its full course. Whether the Minister has participated in that or not is a matter for the presiding officer to determine. I am calling Jonathan Young.

Just in response to Mr Faafoi’s question, my view, as we look at Part 3, which is headed “Engagement, worker participation, and representation”, is that there is, I think, some muddling and confusion taking place. The bill talks about workplace representation and that is the principle. A mechanism of that is a health and safety representative. The independent task force said this: “ ‘Active worker participation’ means that workers: are involved in developing, implementing and monitoring their workplaces’ health and safety systems; can participate through a range of representation mechanisms, …”—a range of representation mechanisms.

So if a person conducting a business or undertaking (PCBU), an employer, works alongside workers in their business, and they stop—it could be a tool box meeting, it could be a staff meeting—and they say “Today we are going to look at any potential hazards to what we’re going to be doing, and what do you see?”, and that worker is engaged in a dialogue and together they are identifying any potential hazards, that is workplace representation.

💬 Sue Moroney: No, it’s not. That’s not representation.

Yes, it is. [Interruption] Yes, it is. This is workplace representation. I think that members on the other side are locked into a particular form, a particular process, whereas what we understand is that in order to—as my colleague spoke about—bring a culture change, it is enabling every person who is in the workplace to have their views expressed. And they do that through that participation, through the engagement process that is very much part of this legislation.

What is being watered down through this debate is actually the onus on engagement and participation. Everybody is looking at this thing and saying that the only way it can happen—and I am not denying that it is a mechanism—is through the health and safety representative. We are not denying that, because the Minister for Workplace Relations and Safety yesterday identified that in 75 percent of the workforce—those in, I guess, organisations or companies with over 20 employees and those with under 20 in high-risk industries—employers must, if they ask to do so, have an elected health and safety representative. And so we do acknowledge that health and safety representatives can play a part in those businesses, but they are not essential in small businesses and low-risk areas for that worker engagement and participation to take place. We are just being “reasonably practicable”, which is a term that this bill has in the very essence of it.

Going back to Mr Su’a William Sio’s comments, when he questioned the term “reasonably practicable” and did not like that term—of course, that term is in present legislation. It is in the Health and Safety in Employment Act 1992. It is very much part of the way in which the workplace already operates, using those terms. “Practicable” means that which is reasonably doable, so it actually has an implication that actions need to be put in place.

When we look at this culture change, I think it is very, very important to understand that, essentially, no two businesses are the same. There will be ways and means by which one business can have a very effective health and safety regime that does not apply to another. It is the outcome that is incredibly important. What this bill offers is flexibility for firms and organisations right across this country. When we want to see complete engagement by the workforce and by organisations and businesses—

I would like to just thank the member Jonathan Young for that contribution. It is good to have a debate in the Chamber and to have some speakers from the Government actually stand up and speak—so thank you, Mr Bayly, and thank you, Mr Young, for that. I do have to say, though, Mr Bayly, that I enjoy the Transport and Industrial Relations Committee contributions that you make, and I have to say that I thought you had let yourself down a little bit in the Chamber today. I thought your comments actually undermined what you were trying to say, because you made the comment that “97 percent of New Zealand is made up of small and medium sized businesses”, and, yet, making up such a large amount of our businesses should make the Government responsible for actually going and making sure that it has got health and safety reps within those small and medium sized businesses. So I think you have actually shot yourself in the foot. It just goes to show that there is sense on that side, but you are just not coming up with solutions, real solutions that are going to affect health and safety in those workplaces.

Our Supplementary Order Paper 110, which we are putting through regarding clause 65AA, is to reduce those numbers of workers who have a right to engage a health and safety representative from 20 down to 10. We understand that it is a cost to those businesses and we want to make it as cost-effective and efficient as we can for businesses. However, if we get the support and we get the Government to pay for those health and safety representative courses, then we would, of course, support Labour with its Supplementary Order Paper 99, which is to remove that “under 20 workers” exemption entirely.

I just want to take note of our flag, which is New Zealand’s first way of recognising those people who have actually lost their lives—and I hope that that gives no offence to anybody in the Chamber—because, of course, this is the flag that represents all people around our wonderful country. I would also like to just take a moment to read out from the officials’ report on the Health and Safety Reform Bill. It says: “encouraging greater work involvement in health and safety matters—a proven factor in achieving better health and safety performance. All PCBUs must engage and have effective participation practices for their workers relating to health and safety matters. The Bill provides for flexibility in the types of practices that may be adopted—allowing for innovation and recognising that different practices will suit different businesses.”

I think that is fantastic. I am actually going to throw another bone to the National Party over there, and say of clause 107 in Part 3, “Health and safety representative may direct unsafe work to cease”, that this is about participation, which I think could actually have some real change in helping to change the culture within our industries around the country. So if I just turn to clause 107, it says: “Health and safety representative may direct unsafe work to cease”. What I like about it—and I have highlighted it in such a manner—is that there is a bit of tit for tat, a bit of quid pro quo, going on in this piece of legislation. It starts by saying in subclause (1): “A health and safety representative may direct a worker who is in a work group represented by the representative to cease work if the representative reasonably believes that carrying out the work would expose the worker, or any other person, to a serious risk to the worker’s or other person’s …”.

That is where we got some push-back from some of those submitters who were concerned that there was going to be some hidden agenda by health and safety representatives to shut them down and stop production from going on. What I like about this clause 107 is that it has subclause (2), which says: “The health and safety representative must not give a direction under subsection (1) unless the matter is not resolved within a reasonable time after consultation about the matter with the PCBU for whom the workers are carrying out work.” So it is a bit of a balance. Then subclause (3) goes on: “Despite subsection (2), the health and safety representative may direct the worker to cease work without carrying out that consultation if the risk is so serious and immediate or imminent that it is not reasonable to consult before giving the direction.” So there is the balance coming back the other way. It is a swinging pendulum.

To balance that out it says here in subclause (4): “The health and safety representative must carry out the consultation as soon as practicable after giving a direction under subsection (3).” My point is that there are some very good parts in this bill and New Zealand First would like to be able to support this bill. But there are some serious flaws, some under-sight, with actually making this bill work.

We have another area of concern, and we have got Supplementary Order Paper 110 on the Table to help balance that out. It is to do with clause 66, which is to do with work group determination. We have some issues, which I will talk about after I read out the clause. After clause 66(5) we would like to insert new subclause (6): “If a dispute occurs when determining 1 or more work groups, then WorkSafe, as an independent arbitrator, will determine the work groups within a workplace.” In most places you are going to have an engagement process, which Part 3 is about, where you have got participation from the worker and the PCBU—the boss and the worker, however you want to dress it up; I like the terms “boss” and “worker”, which make sense to most New Zealanders—sitting down to discuss what is going to constitute a work group. However, in a situation where you have got a large organisation—you have got subcontractors working on the floor; you have got people who are full-time equivalents in the business—if they cannot come up with a sound solution to what is going to constitute that work group and how many people are going to constitute that work space, then we need to have the ability to go to an independent arbitrator to actually determine what is going to constitute that work group.

New Zealand First has thought about that and we have put this subclause in there, which we again hope gets support on the floor to ensure that there is no ambiguity around what course of action you can take if you come up against the problem where a discussion has got no end to it—it is going round and round. We do not believe that the PCBU—the boss of the organisation—should be forced to do something that they would otherwise not think is fair and reasonable or reasonable and practicable. Conversely, if the shoe is on the other foot and the workers are feeling the same way, we need to have that engagement from WorkSafe, as an independent arbitrator, to allow that to happen.

Again, I want to go back to our new clause 65AA in Part 3, which we see as fundamental to help the ever-increasing cost of compliance in workplaces around this country, particularly in small and medium sized businesses, to ensure that if you want a real bottom-up engagement, the change of culture is going to come from those health and safety representatives. Let us not make the barrier to that become a cost issue. This is where this Government needs to step up and say: “We’ll do it. Leave it to us. We’ll cover the cost.” There should be absolutely no person in this country without the ability to get health and safety training. Again, if you are a work group or a law firm and there are only three of you in that firm, what would be wrong in sitting around the table and saying: “Would you like to go and do the health and safety course? It would be great to have a representative.”? And then to do that and to know that you are going to be better off for it. Again, you can pass that information on to even family members who might not be on the law side of things but who might be in some aspect of work. Real training from the bottom up is absolutely the key to getting this new legislation to work.

The engagement process that we talked about earlier on in Part 1, which New Zealand First brings to the Table, is a three-pronged spear where you have got to have participation from the workers, you have got to have engagement and an understanding from the PCBU, from the employer, as well as making sure that the legislation is funded adequately to ensure that labour enforcement has got the right tools in the tool box to ensure that these practices are actually taking place in all of those workplaces.

I would just like to finish off by saying how good it was yesterday to have the Hon Michael Woodhouse having this good engagement with us and to hear his comments. I would like to ask about what is going to constitute hazardous implements. We need to get some sort of clarity about high-risk plants—that is what I am trying to think of. That is going to come up later on because we are concerned about high-risk plants. If they are going to involve commercial kitchens, it will have some serious implications later on. I will talk to that when it comes up in Part 4. Thank you.

I appreciate the opportunity to make another speech in this part of the debate. I would like to refer to clause 65. If one were to listen to Mr Young over there, who chaired the Transport and Industrial Relations Committee—and I appreciate his fairness and his objectives in this legislation—and if we were to take a principled approach, much of what he said would probably be true. But the problem is that the Government has intervened and made arbitrary changes to areas that might have been considered by most people to be fair and balanced and uniform and standard.

I go to clause 65, which talks about the election of health and safety representatives, which was clearly an objective and a necessary requirement established both by the select committee in the original legislation and again in the bill as reported back from the select committee. So it is a vital component of health and safety in the workplace moving forward. Then clause 65(3) says that a person conducting a business or undertaking (PCBU) “is not required to initiate the election of 1 or more health and safety representatives, if the work of the business or undertaking—(a) is carried out by fewer than 20 workers;”. I have spoken about this before. The next subclause, 65(3)(b), as proposed by Supplementary Order Paper 108, says it “is not within the scope of any high-risk sector or industry prescribed by regulations for the purposes of this section.”

This is where it all falls apart, and it is really quite strange. This is from a party that has always considered itself to be the champion of farmers and the rural sector—the party that criticises us on this side of the Chamber from time to time because there are not a whole lot of farmers. It is absolutely unbelievable to think that a party of so-called farmers’ advocates can come up with arbitrary definitions that say that cat breeding, pet breeding, snake farming, and worm farming are high risk in agriculture, yet sheep, cattle, and dairy farming are not.

It begs the question: how could those members have arrived at this? Can I just go back and explain, because this is not being flippant; the wider public and employers across this country will be asking this. All of them are being expected to step up—to step up and offer a safer regime of health and safety. For some, it might cost some money and it might require training of their employees; for others, it will not. The one thing that I learnt as the Minister when we implemented the ban on smoking in bars was that all that the industry requested of us was fairness across the board—fairness to ensure that the objectives of the Government were going to be implemented on everyone. But, no—what we have here is the most bizarre and ridiculous demarcation, which is almost impossible to understand. So the question is: why?

Well, let us be clear here. In my view, it was a debate within the National caucus, and it was about the farmers versus the others—actually, the farmers are getting to distrust John Key. They do not like him because he is a trader. So the farming sector actually went to Judith Collins. The farming sector went to Judith Collins and asked for an intervention to try to head this off. The problem is that Judith Collins and those people do not understand. So, somehow, the people who were pushing back on this legislation and who were trying to make it easier for the farmers got sucked into believing that worm farming is more risky than dairy farming. That can be the only explanation as to why we have this bizarre situation being implemented across agriculture, where worm farming is more risky than dairy farming as an occupation, a profession, and a business.

I have not been a worm farmer, I must confess. There may be dangers. Actually, I asked Mr Williamson to please get up and explain why it is that a worm farm is more risky than a dairy farm. I can give you a long list of tasks on a dairy farm that are risky. Call them “high risk” or not, I do not know; I just accepted them as risky, and when I had employees I managed the risks accordingly. But we are moving up, and I accept, and most people in agriculture accept, that we have to step up, as we have in environmental management—

I firstly want to say how distanced the previous member, Damien O’Connor, is from the practical reality of New Zealand farming when under Part 3 of the Health and Safety Reform Bill he maintains a position that he thinks we need to have safety committees for most of our farms that employ only two or three people. That just shows how impractical and out of touch the Labour Party is with farming life in New Zealand.

The reason I want to make a brief call on this part is to express my disappointment at the churlish attack by the Labour Party members in this debate, under the privilege of Parliament, on the Talley family and their group of companies. To say that their safety record was bad and was poor, and the way in which Labour targeted them, in my view, is unfair, wrong, and unsubstantiated. I, as a local member of Parliament for the constituency of Tasman and, more recently, as the member of Parliament for Nelson, have had 25 years of involvement and engagement with that family. There have been many issues on which I have disagreed with that family—

💬 Sue Moroney: How much have they donated?

—and for the record, for that member who has actually just alleged issues of donations, actually there have been no donations of substance of the declarable form to me. I ask the same question of Mr Damien O’Connor. He should talk to his colleague there, because that is the sort of outrageous allegation that you get from Sue Moroney without her dealing with the facts. What I have done is I have visited over a dozen of Talley’s factories. I have spent a week on a deep-sea fishing boat of that company. For members opposite to get up in this Chamber and say that that firm has no regard for health and safety is untrue, unfair, and, in my view, spiteful. In my view—and I have met many of the health and safety supervisors for that company—it works very hard to make its workplaces safe. I challenge the member who has made those allegations. How many of those fishing boats has she gone out on? How many of those factories has she visited? Or does she just sit, from the protection of her parliamentary office, wearing her union cloth-cap and her Labour Party glasses, and throw allegations around in this Parliament about the important issues in Part 3? I challenge her: how many of those 18 plants has she visited?

💬 Sue Moroney: If you’d give me a call, I could explain.

Just answer the question: how many have you visited? I suspect none at all.

It is true that the Talley’s business has had tragic accidents, but I put this to the Committee: tell me any business that employs more than 5,000 people in this country that has not. I take the Department of Conservation, for example. Actually, the Department of Conservation employs fewer than half the number of people that Talley’s have, and it too has had tragic accidents, including in the term of the previous Labour Government. Why have those members not targeted it? Why have they just targeted Talley’s? It is unfair and it is wrong. Where it is contradictory—where it is contradictory—is this: we know that we have got challenges in regions like mine to create jobs. I know of no family in New Zealand that provides as many jobs in regional New Zealand as Talley’s, and you cannot stand in this Parliament and say that you stand up for regions and employment unless you are prepared to stand up for some of the businesses that provide employment in regional New Zealand. I would also point out that in the fishing industry, a large number of New Zealand’s fishing companies employ foreign boats. Actually, Talley’s—

The CHAIRPERSON (Lindsay Tisch): Order! This is not a general debate. I will ask the member to come back to the content of Part 3.

The content of Part 3 is about employment representatives, and in that debate scurrilous allegations were made by the Labour Party members against one of the biggest employers—

💬 Sue Moroney: I raise a point of order, Mr Chairperson. There were no allegations against any employers made by Labour Party members in the Part 3 debate.

The CHAIRPERSON (Lindsay Tisch): No. Look, these are debating points.

Mr Chairperson—

Sorry. The member’s time has expired.

Tēnā koutou katoa. He mihi nui ki a koutou. It is great to take my first call on Part 3, which seems like a fairly substantial part of this extremely complex piece of legislation, and I really do pity both employers and workers in trying to figure out how we went from where we were to where we are. It is a bit of a dog’s breakfast, as they say on the farm.

I am just quite interested to talk a little bit about farms. If you are going to start talking personal credibility and experience to talk about anything, I worked on farms for 10 years, often in sheds with fewer than 20 people. We had injuries and accidents. There was no union representation. There was not automatically a great participation by employers and employees. What I saw there was that there were variations. Some farmers are fantastic and have amazing communication with both contract workers, like we were, and with permanent workers. It is like a family. There might be two or three of you, but it is absolutely like you are all family.

That is what I feel the honourable Jonathan Young was talking about, as if that is what is the norm, but I also worked on farms where we slept in sheds that had no windows. That was our accommodation. We were not treated the way I would expect people to be treated. I am not saying it was necessarily unsafe, but given the nature of the sheep industry, people did have accidents.

I think it is incredibly romantic and naive to talk about participation as if participation equals representation and as if they are actually the same thing and all we need to do in workplaces of under 20 people is to talk about participation. It absolutely denies that sometimes the smaller the workplace, the greater the risk. It is pretty simple, and the New Zealand Council of Trade Unions research—which has not been conducted in this country because it has not been done here, but it has been done in Australia and America—says that there are far greater rates of fatality and injury in smaller workplaces. Obviously, that would include sheep and beef farms. I must admit, I have never visited a cat farm or a snake farm. I have had a worm farm—it was pretty dangerous.

Actually, on the farm, and in any small business of under 20, the human dynamic needs to be protected through good health and safety regulation, because sometimes the more intense and small the operation, the more potent and dangerous the power issues become. People are far less organised, they do not necessarily have anyone to represent them, and they are not necessarily, when it is one to one, capable of representing themselves without the backup of the law against somebody who does not want to treat their farm workers particularly well. We have had story after story in the media about what has happened to farm workers, and I bet a lot of them were in workplaces of fewer than 20.

So the argument that is in Part 3—I think it was Damien O’Connor who talked about clause 65(3)(a) being one of the key things. He is absolutely correct. You cannot say that because there are under 20 workers there is less need. Size, gentlemen, does count, and it counts all the way through to the smallest. What is important is that everybody gets representation and that everybody gets protection. The way that we do that is by acknowledging that the Health and Safety in Employment Act was designed to deal not with the happy family, the mature employer, or the fabulously participatory justice-based workplace, but where things have gone wrong.

The whole point, the reason we are standing here, and the reason it does sometimes feel like a tangi is that it is. People have died, and they have died because of the assumptions that words like “culture change”, “participation”, and “engagement” do not need to be backed up everywhere with the absolute rights of workers to be able to have health and safety committees and proper representation. So what I want to say about Part 3 is that—

Tuatahi kei te hiahia au ki te kōrero i roto i Te Reo Māori, ā, tēnā koe. E tika, tēnei te wā tuatahi e tū ake au ki te mihi ki tēnei o ngā kaupapa i runga i te taumahatanga o ngā mate kua haere, nā reira, ki a au nei i roto i tēnei Whāre e tika me mihi atu ki a rātau i runga i te mea kai konei te whānau, kai konei te whānau ki te whakarongo ki ngā taupatupatu, ngā tautohetohe i roto i Te Whare. Koirā te take e taumaha ki a au te tiro atu ki te pouaka, te taonga, me kī nei. Ēhara i te mea he kino te taonga ēngari i runga i te mate, he taumaha ki a au te taupatupatu ki runga i tētahi tohu mate. Nā reira, he pai ki a au, he pai ake i nāianei te karawhiu i ngā kōrero nā reira, ki a koutou te whānau e noho nei, nei te mihi atu ki a koutou i runga i ngā taumahatanga. Kua tau te wairua mō tēnei mate ki runga i a koutou. Kia ora mai tātau.

[Firstly, I want to speak in the Māori language; thank you. To be proper, this is the first time I have stood to acknowledge this one of the matters in regard to the seriousness of the deaths that have occurred, and so, to me, in this House it is apt that I pay a tribute to them because the family is here. They are here in the House to listen to the debates and arguments. And that is why it is difficult for me to look at the container—the treasured container, shall we say. It is not as though the treasured item is bad, but if the reason is based on death, it is difficult for me to argue on a symbolism of death. However, I am at ease and fine now to express sentiments, and so to you, the family seated there, I acknowledge you in regard to the difficulties; spiritually I am at ease with this death upon you; my appreciation to us all.]

Thank you for the opportunity to take my first call. The reason I wanted to take a call on Part 3 is that I want to assure New Zealanders, and those who are watching, and our families, that we care. Because we support the changes in the Health and Safety Reform Bill does not mean we do not care about workers. People have presumed that if we are supporting this piece of legislation, then we are disrespecting those who have passed, that we are disrespecting those who work hard, and that is not the case. It is not the case, because I firmly believe that despite the fact that we do have issues with parts of this part, specifically, and the next part as well we are struggling with, trying to challenge, and working with the Minister for Workplace Relations and Safety to try to make some changes to strengthen it, as much as we are able. We know that without our vote the bill will still go through, but we wanted to take the opportunity to highlight the issues of concern and to work with the Minister. We are grateful for the opportunity to do that.

The concern we have is about workers, workers’ rights, and workers’ safety—the things that are talked about here—hence the reason we have put Supplementary Order Paper 107 forward. When we spoke with the Minister about that it was about “How do you know what you do not know? If you are a worker from another country, working here in New Zealand, or even if you are just a worker who is young and coming into the workforce very new, how do you know what you do not know about safety regulations? If nobody has told you, how do you know that you can challenge? How do you know that you can ask to have a safety officer? How do you know those things?” One of our concerns, which is not even in this bill, is about ensuring that there is multi-language advertising and that multi-language workers’ facilitators can go out and speak with people. If there was a health and safety officer in a workplace, they would have the ability to do that. So part of our conversation was to ensure that, despite what is said in the bill, workers’ rights are articulated and that people know they can ask. That is one of the things we were concerned about.

The other was the ability for a worker to engage in the process of forming a work group. We have put a Supplementary Order Paper forward to try to strengthen that, so that workers’ issues can be discussed. If an employer goes against that, then what are they thinking? We have heard all the cases of where that happens, and, unfortunately, as Catherine Delahunty has pointed out, the worst-case scenario is always the case that comes up. In my heart I believe in people. I believe that their intent is to do good by other people, but systems need to be put in place that support people when others do not know what is going on, when they are not sure about their safety, when they do not know who it is they are supposed to go to. So the system is what we are putting in place. We are trying to put in place a system that will protect their rights. We are trying to ensure that through this legislation they will be safe, and we will not have family members never coming home at the end of the day.

In my own family, my extended family, we have suffered the deaths of family members who have not come home at the end of the working day. We know death far too much. We are too familiar with the tangi, and that is why, in debating this bill, it feels like a tangi. I find that difficult to work with. But we want to assure whānau that our position is a unique position. We do have this independent voice, and we have challenged the Minister. To his credit, he has released a list of high-risk industries. It does not go far enough, but it is still up for consultation. We would like to see those areas of agriculture put in there. I accept that, yes, we are going to have a look at the quad bike farming accidents. But most of my family members work in labouring industries, on farms, and in agriculture. I am concerned for them, just like everybody else is concerned for their family members. Sometimes it is not even the fact of accidents while they are at work. What about when they are getting to work? They are picking up the gang at 4.30 in the morning and driving for 2 hours before they even start work. They shear 400 sheep in a day and then drive for 2 hours, home again. They then spend 2 hours cleaning their gear. That happens day in, day in, and day in. What about when they are driving? Who is looking after their health and safety? Are they at work while they are driving and dropping people off?

People in this country are burdening themselves with long hours at work, to try to make a dollar, to try to earn enough coin to put bread on the table. That is why things happen and slip-ups happen. The Supplementary Order Paper that we have put forward gives the ability to try to strengthen that area, so that workers can have more say, and the employer must take note of that. It may not go far enough, but it is a concession and we are grateful for that concession. We think there should be more. We anticipate the ability to have a greater conversation around those high-risk industries. This is not the end of the process, but the beginning of it, and we have been given an assurance by the Minister that that will happen. Yes, we will be supporting these things through because we have had the opportunity and because I actually fundamentally believe that to not support this piece of legislation will mean we go back to the old one, and that did nothing to save our family members. That old piece of legislation did not save people from dying. That old piece of legislation did not save people from those harmful accidents. We can do more, we should do more, but I am going to be supporting this bill through today. Hopefully, these amendments, some more of the amendments that we will talk about, and some more pressure going forward from this point will strengthen the bill even further in the coming times. Thank you.

I want to talk today, in the context of Part 3—in particular, clause 65(3)—about Tom Sewell, who was a 21-year-old British backpacker who came to New Zealand. He actually came on a working holiday visa. He found his way to the Bay of Plenty region, where he got a job working on a kiwifruit orchard. On his very first day he died in a quad bike accident. He did not have a helmet. He had no training. He had nobody supporting him on that first day. His family in Britain remain, today, bemused by the fact that this could happen in a country like New Zealand. For anyone who thinks that this is just about the sheer tragedy of somebody like Tom Sewell and his family, it is also about our international reputation. Websites have been devoted to what has happened to people like Tom Sewell who have come to New Zealand—their families expecting that they would be looked after, their families expecting that someone who came to work, to ride a machine like a quad bike, would be given at least some training. It did not happen.

Under clause 65(3) of this bill, if Tom Sewell’s equivalent comes to New Zealand, there will not need to be a workplace health and safety representative appointed. They are excluded. They are not here. They are not deemed to be at high risk. That is wrong—that is wrong. It is wrong in the memory of people like Tom Sewell and it is wrong in the memory of the 37 other people who have died in quad bike accidents over the last few years. Just because that orchard falls outside the Minister’s definition of what a high-risk workplace is, it is not good enough. We owe it to everyone who goes to work in this country—whether they are someone here on a working holiday visa on their first day at work, or someone who has been a miner on the West Coast for 40 years, going to work again day after day. We owe it to every single one of those people that when they go to work, we have done everything that we can to ensure their safety. If we pass this part in the form it is in now, we cannot answer that question. We cannot say that we have done everything we could have if we pass clause 65(3).

I do want to acknowledge Marama Fox. I know the Māori Party supports Supplementary Order Paper 99 in Iain Lees-Galloway’s name to delete that clause, and I thank the party for that support. But for us, what this means is that if this goes through as it is now, we cannot support this bill. I reject the notion that it is somehow or other a dichotomy between what is here right now and the old legislation, because it is not. The pathway this legislation was going down was one where this whole Parliament would have supported it. We had large employers, small employers, worker organisations, and the families of those who had had loved ones die all supporting the pathway that we were going down.

Then the Government comes along, and now we have got a situation where this part of the law is no longer about risk to workers; it is about political risk. That is wrong. It is about the political risk to the National Party from its supporters. There can be no other way of explaining the extraordinary definitions of “high-risk” that now fall outside the scope of clause 65 of this bill. There is no way of explaining why you would exclude sheep, poultry, and cattle farming but include alpaca farming, bird breeding, cat breeding, crocodile farming, worm farming—it is ridiculous. If it was not so tragic, it would be hilarious. This is a farce. Do you realise that a high-risk industry, according to this Minister, is curtain installation but demolishing a building is not? I am not very good at putting up curtains, and actually it is probably quite high-risk when I do it, but that should not be in a list of high-risk industries.

This Minister needs to get on his feet and tell us how it is that cattle and dairy farming, orchards, kiwifruit, that kind of thing, are not deemed high risk. If it is about saying we average it out over a year to find the figure, then that is not right. We all know that farming is a seasonal business. We need to look at the rates of death in the industries at their peak periods. There is no point in looking at it across a whole year; that is a meaningless statistic.

We know that farming—particularly cattle and dairy farming and those intensive cropping industries where there is difficult terrain—is where we see the deaths. So I urge members to support Iain Lees-Galloway’s Supplementary Order Paper 99 that actually deals with this issue and removes clause 65(3), so that we do not have this farcical and arbitrary situation of declaring the magical figure to be 20, or 25, or 30. In the end, that denies the reality of the experience that people like Tom Sewell went through. I believe strongly that, as a country, New Zealand cannot afford its reputation to continue to be tarnished by what is seen internationally as a lax attitude.

This bill does some good things. There is absolutely no doubt about that. We have talked about them in Part 1 and Part 2. But here in Part 3 we come to the nub of it. If we are going to get health and safety to be at the level we want it to be, then the role of health and safety representatives matters. Yes, let us all work together to make it practical. I agree with that. We do not want to impose impractical conditions. But if they are not conditions that involve the workers, if they are not conditions that give them the chance to be represented, to—as Marama Fox said—actually know their rights, to actually know what they are able to do, then they do not live up to the standards that we require.

In this call and perhaps another one, I want to talk also about the amendments that we are proposing in Supplementary Order Paper 100 to clause 66 of the bill. In clause 66(4) we want to add new clause 66(4)(ab): “agree the work group structure with the workers;”. This is a critical point. It is great that there will be a work group and it is great that we are building the partnerships within the workplace to ensure health and safety, but if we do not have worker representation in the establishment of those groups, we miss out on so much. People in every business I go into today talk to me about the importance of involving their workers in the way they manage their firms.

We have all heard the stories about the lean manufacturing model, about high-performance workplaces. Every single one of those now is built on the principle of engagement. It is hopeless to impose on a workforce a whole set of rules that it has had no involvement in whatsoever. It is not productive. It does not help with the bottom line and it also does not help with the health and safety of workers. So that is why clause 66 starts off—again, as so much of this legislation does—on the right path of the idea that there will be a work group that will help determine the health and safety conditions, but if we do not have in that clause that the structure of that work group is agreed with workers, then we fall down at the hurdle again.

Who knows the most about what is going to work in terms of health and safety? The workers who go in every single day do. And the tragedy of Pike River is that those workers were not listened to when they raised concerns day after day after day. When we are setting up a new structure, a better structure—and I acknowledge the Minister; this is a better structure—if we set it up without including the worker voice, without listening to the people who know the most about health and safety, then we fail. We fail to deliver on the very promise that we should have been making from day one to those who have lost loved ones in workplace accidents.

I call on the Minister to do two things. One is to stand up in this Chamber and tell us why Tom Sewell and his equivalents should not be covered by this law. This is somebody who went to work on a working holiday, on a kiwifruit orchard, to ride a quad bike on his first day, and no one gave him any support or training. He was not given a helmet. How can that be allowed to happen? Yet, under clause 65(3)of this bill, that workplace would not be deemed to be high risk and, therefore, would not have to have workplace health and safety representatives. We owe it to the families of those who have died to change clause 65 of this bill, to take out that arbitrary distinction and give to every New Zealand worker their right to a safe workplace.

We have had a lot of discussion over the last several hours on clause 65(3), as if it were the only clause in the bill. But what I would like to highlight is that this bill has clause 61, “Duty to engage with workers”. There is also an engagement required in clause 63, and in clause 64 a duty to have worker participation practices. So what I am saying is that this bill forces, in fact, persons conducting a business or undertaking (PCBU) and workers to collaborate—to work together, to engage, to communicate. This is without clause 65(3).

💬 Su’a William Sio: It does not.

That is what it says. It “must”—there are words like “must” and “will”.

💬 Su’a William Sio: Show us.

If you can read it, that is what it says.

💬 Su’a William Sio: Point it out.

“A PCBU must, so far as is reasonably practicable, engage with workers—”. That is all about collaboration and communication. It says in clause 64: “reasonable opportunities for workers who carry out work … [to undertake] on an ongoing basis.” It outlines the reasonable opportunities that allow workers to participate. So this is what has to happen. There is no option. The PCBU, whether the business is Talley’s or whether it is a farmer and wife with one worker, must discuss health and safety, just like they talk about the finances of the company. They must turn their mind to health and safety in all aspects. So this is the attitudinal change that we are trying to put across with this bill.

I can tell you that there are already companies doing it. This bill is catching up, in fact, with a lot of practice that is going on out there already. Whether they are large companies or even small companies, they talk about health and safety. In my business they talk about health and safety all the time. It is important. It is important to workers and employers. So this bill is catching up, in a lot of ways, and it is also, obviously, leading the way for those businesses that do not participate—that do not engage with their workers.

Clause 65(3) is really about practicality. As Minister Smith said earlier, do you really expect a husband and wife team on a farm to have a rep? In reality they talk about health and safety in the morning, around the tool box. That is what happens. That is reality. There is no reason to have another set of compliance rules, another box to tick, just for the sake of it. Reasonable and practical legislation should not put a burden on those small businesses. I am not talking about high-risk businesses; I am talking about small businesses, because that is what we have spoken much about over the last few hours.

So that is my point. I know we have been talking about clause 65(3) a lot, but I would like to point out the main point, and the first point, in fact, in Part 3, which is there is the duty—I repeat, the duty; the obligation, in fact—of the PCBU to engage with workers and to communicate, to engage, and to fulfil the duty that the PCBU has, which is outlined in Part 2. There is a duty for the workers to engage as well, to allow them to participate and fulfil their obligations as workers, which is also outlined in Part 2. So this exception around fewer than 20 workers is really a way for larger businesses to manage their logistics, if you like.

The danger in having a rep across small businesses, in my view, is that other workers could become complacent. They could say: “Oh, we’ve got a health and safety rep. We’re not going to consider health and safety. We’re not going to concern ourselves with the guy who doesn’t wear his safety boots. We’ll let the health and safety rep look after that.” But in a small business, that is not what happens—that is not what happens. In a small business, everyone knows everyone else. In a small business, health and safety is at the top of their mind, and that is the way it should be. As it stands, clause 65(3) is practical and reasonable.

I am very pleased to take a call. I am particularly pleased to take a call after the contribution that we have just heard from Alastair Scott, the member opposite who seemed to be saying in his contribution that the bill is fine, except for the clause that was watered down at the Transport and Industrial Relations Committee. “Except for the bad bits, this is a good piece of legislation.” seemed to be the logic that the member was going through. He tried to lead us through a number of clauses in Part 3—every clause that we could talk about except for clause 65(3), which is the one in which this Government has caved and watered down this legislation so as to make it meaningless.

I do want to talk about clause 65(3), and I also want to talk about clause 86A(3), because these are the parts of the bill in which the Government has decided that workers do not have a right to have a say in their own safety in certain businesses. This simply is not good enough. If we consider the contribution that we just heard from the member Alastair Scott, it absolutely ignored the pathway that got us to this position, which is that we had a tragedy in this country where workers died at work. I think every member in this Committee agrees that that is not something that we as legislators should tolerate.

That tragedy sparked a royal commission, and what were the findings of that royal commission? It found that workers should have a greater say in their workplace health and safety. This was the recommendation that was picked up in the legislation that was initially brought to the House. This was the recommendation that meant that we voted for this bill at its first reading. It is the inclusion of clause 65(3), and the fact that certain businesses are exempt has meant that we cannot support this because it does not follow the royal commission’s findings. It does not give workers an appropriate say in their workplace health and safety.

Government members opposite know this. The regulatory impact statement tells them what best practice around this is. It tells them that in New Zealand, when compared with other jurisdictions, there is less support for health and safety representatives and explicit protections for workers who raise health and safety issues. This is the advice that these members should be taking on board. The whole point of this is that the member Alastair Scott can point to all the other provisions that he thinks are effective and hunky-dory in Part 3 of this bill, but without having appointed health and safety representatives and health and safety committees, how is it that these provisions are going to be policed?

I have got a question for the Minister in the chair, Michael Woodhouse. What we heard from the contributing Government members who were speaking on this bill was that they seemed to be telling us it is OK because the compliance will happen through other measures. So I would like the Minister to listen and answer the question when I ask him whether he is planning to increase the number of WorkSafe inspectors who will be policing this legislation in exempted industries and in businesses with under 20 employees.

Is this something that the Minister has budgeted for in this year’s allocations? Is that something that he is going to be looking for in future Budgets? That is what Government members seem to be telling us—that, in lieu of appointing health and safety inspectors, who would be appointed if it were not for clause 65(3), there are other mechanisms to do it. Is he going to have WorkSafe inspectors camped out outside farms ready to ensure that compliance is happening? Because this is what the Government members who are taking calls seem to be implying. So I am very interested to know exactly where that is budgeted for within the Minister’s votes.

I am really interested to know whether there will be increased WorkSafe inspectors for some of these high-risk industries—for example, pine cone collecting, which will be deemed a high-risk industry. Pine cone collecting is deemed a high risk? Compare that with tree pruning or thinning in a forest, which is not high risk according to the Minister’s classifications. My colleague Grant Robertson talked about curtain installation being high risk—he said it is high risk when he does it, and I have to say that I have no—

I want to speak to an aspect of clause 65(3) as it relates to clarity around the number of workers and how a business can call itself exempt from the health and safety requirements in the legislation. In particular I want to talk about the nature of business competition and the way in which a tilted playing field, where some employers might be exempt from some requirements, means that they are given an unfair advantage in the competitive stake, at the expense of lives and of other employers who are fair employers and who want to look after their employees. The majority of employers are fair, in my experience, but in every industry there are people who are more ruthless than others, who care less about human life, and who are more likely to bend the rules in order to get financial returns. It is those people whom we are worried about the most here, in my view.

In clause 65(3) of the bill there is a lack of clarity around how those 20 workers will be counted. For example, a farm that might have five full-time employees may in peak parts of the season be employing more than a dozen contractors, it may have other workers on site who are there doing maintenance, and, if it is a seasonal harvesting activity, it may have maintenance workers on site. It may get well over the 20 employees. Is that included in this piece of legislation? It certainly is not clear within the legislation, as these changes have come in, in the last wee while.

There is another question that I am hoping the Minister might address, which was raised earlier by my colleague Chris Hipkins when the current Minister in the chair, Michael Woodhouse, was not in the chair. I suspect that the current Minister in the chair may well be able to answer this question, where his colleague Paul Goldsmith, who was filling in for him, could not. That question is about what stops those ruthless large employers who want to get around the legislation from setting up lots of smaller businesses that are no longer required to comply. So if an employer routinely has 40 people on site, what is there to stop him or her from setting up two businesses that have 15 people on site and employing the rest as contractors? Do they then no longer fall under the legislation in the way that other businesses might?

I look forward to the Minister’s response. I can hear him talking, but because I am talking at the same time I cannot quite hear his answer. When I stop talking I shall look forward to hearing his answer and understanding that. I think it is a genuine question that was raised earlier by a colleague, and it has not been answered by a Minister in the chair who has the authority and the oversight of the bill, as this Minister does.

Ultimately, if we end up with an environment that rewards employers who want to cut corners and who want to try to define their businesses differently in order to be exempt from the legislation, and if we end up in an environment where there are financial advantages to those employers who are genuinely ruthless and uncaring, it puts those employers who want to be caring and fair at a disadvantage. It is more likely to put their businesses at risk and to see their businesses go under, and their employees will then come on to the labour market to be exposed to those more ruthless employers because they have fewer choices. If the fair employers can no longer run their businesses successfully, it means the unfair employers in the workplace are able to hire more staff and take up more of those industries where those accidents and risks that have been talked about are happening.

So I am hoping that the Minister in the chair may address that question about what would stop employers deliberately setting up different workplaces so as to avoid the implication in the legislation that they must employ health and safety representatives if they have more than 20 employees, how the Minister hopes that that may be addressed if it is not in the legislation, and, if it is not explicit in the legislation, how he hopes that may be policed. I think it is important that these questions are addressed. We know that if health and safety reps and committees do not meet, then the actions, for example, in subpart 5—

I move, That the question be now put.

Now I have got a dilemma. Jan Logie—even though she has had a call previously.

💬 Stuart Nash: Oh, I haven’t had one.

The CHAIRPERSON (Hon Trevor Mallard): Yes, I understand that. There are a couple there who have not.

I have previously had a call, and I appreciate having another one to make points that I have not heard contributed in this debate.

To start framing my comments in this part of the debate, I would like to just reference the fact that this is a watering down. This clause in this part of the bill waters down existing legislation. It is not just that it is not delivering on the Royal Commission on the Pike River Coal Mine Tragedy’s recommendations and the following inquiry’s recommendations for what we need to do as a country to ensure that people can come home intact and alive. It is in part actually a watering down even of our existing legislation, which is overseeing the death and maiming of so many workers, and that is completely unacceptable to us in the Green Party. What we have seen happen was an introduction of legislation that we could support, and then it seems, after some last-minute lobbying by some employers, we have seen a watering down of the legislation. I note that there is an ice sculpture in front of Parliament today representing this legislation and the watering down and the melting of that sense of protection for families and workers.

Under today’s law, any business, regardless of size, is required to have an employee participation system agreed with its workers, or if their union asks, or if the business has more than 30 workers—regardless, if it is asked. What this does is it puts a limit around 20 or more employees. We had a debate in this Chamber last night when I said that 97 percent of businesses in New Zealand have fewer than 20 workers. That was from a report released by the Ministry of Business, Innovation and Employment last year. So 97 percent of businesses in this country have fewer than 20 workers, and this legislation is setting that as the threshold. That is unacceptable.

I do want to address some of the statements that were made by a previous member from the National Party side, Alastair Scott, who was suggesting that this really is just legislation catching up with the standard practice. Well, if that is the case, how can the compliance costs be too great? If this is the standard practice for most employers, then how can the compliance costs be so great when, actually, employers, if requested at the moment, are required to have these systems in place? It is a completely weak argument, because it is watering down what we have at the moment. It seems to be actually putting in legislation to meet the needs of the lowest common denominator—the employers whom we do not want to be supporting. We know there are good employers out there. We want our legislation to back them up and to be that threshold that they can go above and be exceptional employers from, but we want the base to be their practice, not the practice of the lowest common denominator employers who are not currently listening to their workers.

We have heard some really idealistic views tonight about how for employees there is the opportunity for them to participate and tell their employers what they want. I heard from the forestry industry, which said that that exists in that industry at the moment, and said that it is happy with worker participation as it is in that industry at the moment. That is patently not acceptable when we have the level of deaths in the forestry industry that we do at the moment.

💬 Alastair Scott: Much improved in the last 24 months.

Much improved in the last 24 months!

💬 Denise Roche: Because of the campaign by the CTU and those families.

Because of the campaign, and we did not have worker participation in those death reports on the New Zealand Council of Trade Unions wall.

I also want to point out that there is a concern—and I would like to recommend Supplementary Order Papers 105 and 100 specifically, which are to address the fact that in this legislation workers can elect a health and safety rep but they cannot direct what areas of work those health and safety workers will cover. So you might elect somebody and then they will be sent to cover a completely—

I move, That the question be now put.

This is my first contribution in this debate, and we are in Part 3 of the bill. I want to address my remarks to clauses 65(3), 86A, and 120. Before I do so, given that it is my first contribution, I do want to acknowledge the family members who spoke on Tuesday night at Parliament and who are in our thoughts as we speak today, and all of the family members and friends and work colleagues of those who are listening and watching this debate at home with heavy hearts as they see what should be a very important piece of legislation, a landmark piece of legislation, being turned into a much reduced and watered-down piece of legislation.

It is incumbent on each one of us as elected representatives to do our solemn duty on this bill, the duty that we pledge when we take up office as elected members. That duty is to represent our constituents, to truly represent our constituents, and to strive for the best and fairest outcomes in law. Unfortunately, this piece of legislation does not do that and, sadly, we cannot support it.

When the Minister, Michael Woodhouse, gave his introductory remarks on Part 3, he described this as being, I think, the meat and drink of the legislation—a rather odd phrase, but I think I know what he meant—but then he proceeded to talk about nuanced approaches and sensible and balance approaches, which are really code for watering down.

I turn now to clause 65(3), and, as my colleague Megan Woods said before, this is the essence of why we are opposing this bill—because of the cap that is being put on workplaces and because of the exclusion of high-risk industries such as agriculture. Before I address that, I would just like to take issue with one of the things that the Minister did say in his introductory remarks. He said that he has been able to find no correlation between the presence of health and safety representatives in workplaces and the prevention of death and injury in workplaces, which I find an extraordinary thing to say. I just want to give an example that is a bit close to home for the Minister and me.

The example concerns Dunedin Hospital, where a work and safety representative—an elected work and safety representative in the hospital theatres—managed to have the courage to speak out publicly about the very serious issues within those theatres that were creating risk every day for the workforce and for patients in that hospital. It was her courage in speaking out publicly that managed to really crack that issue open and get some real movement in that hospital in terms of getting some of the repair work done. Clearly, there is a lot more to be done and there are a lot more issues. She was—and is—an elected health and safety representative. She is a nurse. She represents an industry that spends its whole time caring for people, and she had the courage to speak out because she knew that her position was an elected position that had some weight in law and in that workplace. The Minister’s fatuous statement around no correlation existing is, I think, one of the great travesties in the debate on this issue.

Turning to clause 65(3), the creative accounting, as I would like to call it, from the former accountant in the Minister in terms of the exclusion of agriculture as a high-risk industry is one of the most extraordinary things in this bill. To give that some context, I asked for the figures in my own region. I managed to get the figures and the descriptions for only the last 3 years for workplace fatalities in Otago and Southland, so they are since 2013. Of those 20 fatalities, 13 were from agriculture.

I would like to talk about subpart 4 of Part 3, which is clause 92 to 104. This is about provisional improvement notices. Clause 92(1) says: “This section applies if a health and safety representative reasonably believes that a person is contravening, or is likely to contravene, a provision of this Act or regulations.” There are a couple of questions here. I do not quite understand why the wording is the way it is—why there are some “mays” there instead of “musts”. To me, a “must” is a direct order, whereas a “may” is open to wiggle room.

Let me give you an example here. Clause 92(2) says: “The health and safety representative may issue a provisional improvement notice requiring the person to—(a) remedy the contravention; or (b) prevent a likely contravention from occurring;” I do not know why that does not say that the health and safety representative “must” issue a provisional improvement notice to remedy the contravention or prevent a likely contravention from occurring, because if the health and safety representative sees something that is likely to cause harm or that puts workers at risk, I would have thought that they should be under a statutory obligation to issue a provisional improvement notice.

What it does say here, if I go to clause 92(3) is: “However, the health and safety representative must not issue a provisional improvement notice to a person unless he or she has first consulted the person.” I am assuming that the reason that the consultation process is in place is natural justice. You need to ask the person: “What is going on here? Is there a genuine reason for the activity you are participating in?”. What I am very, very clear about is that this must not be seen as punitive, but rather as consultative. For example, we do not want the health and safety representative who is under statutory obligation to consult with a person to have that person almost threatened or have that person feel as if they have done something absolutely wrong, are in fear of losing their job, or are under any threat of punitive action. So it must be seen in a consultative, positive light, as opposed to a punitive light.

Then we move down to clause 93. This talks about training requirements. What it actually says here is that the health and safety representative is not allowed to issue a provisional improvement notice unless they have completed the training prescribed under the regulations. What I would have liked to see here is a clause that says that an employer must reasonably find adequate time for the health and safety representative to undertake the required training necessary to implement the regulations. Again, what I am slightly concerned about is that the health and safety representative is a position of responsibility. It does say in the legislation that that person needs the required training in order to be able to issue these notices, but what we must have, and what I believe must happen, is that in order for that health and safety representative to do a good job, then they have to be given a reasonable amount time off work—i.e., not at their own expense but at an employer’s expense—in order to undertake the level of training required to allow them to meet their statutory requirements. Because what I can see happening here, as an unintended consequence, is that a person becomes the health and safety rep, but in order to complete their requirements, then—

You will find that the training is from another part of the bill.

💬 STUART NASH: We are talking about clause 93 here. In order to undertake the requirements, they have got to take their own time off.

Then we go down to clause 95, and this is slightly puzzling here. Again, I am not too sure why. Clause 95(1) says: “A provisional improvement notice may include recommendations relating to—(a) the measures to be taken to remedy the contravention or … (b) the things or activities causing the contravention,”. I would have thought that the word “must” was a lot more appropriate here, because if the health and safety representative is issuing a provisional improvement notice, then I would have thought that it would be a requirement to issue a number of recommendations around remedying the situation and the things that are causing the contravention. But because it is a “may”, there is no statutory requirement to do that, and I would have thought that if we really wanted to make sure that things were tightened up, then we would do the “must” here.

Then we go down to clause 102—we are still talking about these provisional improvement notices. What it says here is that a person who has been issued with one of these notices or a person who has issued the notice may, within 7 working days, ask a regulator to appoint an inspector to review the notice. That is fair; I understand that. But then what it does, in clause 103—and this is where some confusion exists—is say: “The regulator must ensure that, as soon as is practicable after a request is made under section 102, an inspector”—

I move, That the question be now put.

I think that we have come to the time where we have had pretty close to 30 Opposition calls. We have been going for getting on for 3½ hours. I think we did have some purported questions from a couple of recent speakers, but not quite the interest to see whether there is going to be a reply, and I think the last speech was elegant but circular. Therefore, I think I am now at the point where the Committee can make a decision.

The first question we come to is the Minister’s amendments to Part 3 set out on Supplementary Order Paper 108. The question is that this amendment be agreed to. Those who are of that opinion will say Aye, of the contrary opinion will say No. A party vote is called for.

I raise a point of order, Mr Chairperson. Could I just clarify that you said “amendment”—the singular?

Yes, sorry—the amendments set out. As I stated the question, I said the amendments set out to Part 3 as set out on Supplementary Order Paper 108.

The question was put that the amendments set out on Supplementary Order Paper 108 in the name of the Hon Michael Woodhouse to Part 3 be agreed to.

We now come to Iain Lees-Galloway’s amendments—

💬 Clayton Mitchell: I raise a point of order, Mr Chairperson. There seems to be an issue with the location of Iain Lees-Galloway’s amendments on his Supplementary Order Paper 99. Clause 65AA, which is Clayton Mitchell’s amendment, should be inserted prior to that one going through. We actually approached the Labour benches twice yesterday to confirm that that was going to be the case, and those members said that they were going to flip that round for us. We have the support of Labour, I believe, for that to happen.

I am willing, on advice, to accept the reordering of the taking of the question, so I will put Clayton Mitchell’s amendment first.

The question was put that the amendment set out on Supplementary Order Paper 110 in the name of Clayton Mitchell to insert new clause 65AA be agreed to.

We now come again to Iain Lees-Galloway’s amendments to clauses 65 and 86A set out on Supplementary Order Paper 99. I am going to rule those amendments out of order because they are inconsistent with the decision that the Committee made in agreeing to the Minister’s amendments.

The question was put that the amendment set out on Supplementary Order Paper 110 in the name of Clayton Mitchell to clause 65 be agreed to.