Health and Safety Reform Bill

The House is in Committee on the Health and Safety Reform Bill. When we were last debating this bill, the Committee was debating Part 4. Clayton Mitchell had the call, and he has 2 minutes remaining.

Goodness me, those 2 minutes are going to fly by, so I might need to go and seek another call on this.

Part 4 of the Health and Safety Reform Bill is a very, very important part, with only two Supplementary Order Papers on the Table: one from the Māori Party, from Marama Fox; and one, of course, from Labour, from Iain Lees-Galloway. New Zealand First will stand and support the Supplementary Order Paper initially by Iain Lees-Galloway, because, in our opinion, it does give some protection to those people who are, potentially, going to be disenfranchised if the regulators decide not to prosecute for practices. Essentially, what clause 167B does—and I am going to read it out to you here—is give an extension of 6 months after the date on which the regulator announces a decision not to prosecute, in order to go for an extension if they want to go for a private prosecution. I think that is absolutely fundamental to ensuring that true justice is actually upheld, and it is fundamentally part of what I think this bill actually stands for.

Today is a bit like Groundhog Day in so far as last week we spoke about some of the other concerns that we have with the bill, and they are relating to enforcement matters. We have noted that in Budget 2015, $8 million has been put aside for enforcement officers, and we would like to have some assurance from the Minister that these labour enforcement officers are not going to be there as revenue collectors to try somehow to ingratiate a positive surplus at the expense of small and medium sized businesses throughout the country. There are some concerns out there in business that this is, in fact, what they are going to do. Eight million dollars per annum over the next 4 years—that is $32 million—is a fair whack, and the concern of those people is to make sure that enforcement officers are not just out there slapping infringement fine after infringement fine and ticket after ticket, and so forth. [Bell rung] Look at that. Nobody jumped up, Mr Chair.

I would like to continue by talking about some of the other parts of the bill that we do actually look to support. There are some parts in this bill—I will just flick to the right page—that are to do with Part 4. Take clause 122: “Meaning of notice”. We have got “improvement notice” in clause 122(a)(i), and “prohibition notice”, “non-disturbance notice”, and “suspension notices” in subclause (a). They come with some fairly reasonable sized fines. I do have to say that if there are ongoing examples of workers, persons conducting a business or undertaking (PCBUs), or bosses not acknowledging safety concerns, they could actually be levied with those fines. It is $50,000 per person, or up to $250,000 for “any other person”, which I am assuming would be the boards or, in large organisations, the group directorships.

This bill is about showing openness, compliance, and the ability to see what is going on. Knowing what is happening within workplaces and actually having enforcement officers in there, enabling them to manage those problems in a business, is absolutely fundamental, so we do actually support parts of Part 4. I hope that there are some people ready to take a call, and I will certainly be taking some more calls as we go on later on today. I will actually restate that we do have some concerns. When you look at the fact that the Ministry of Business, Innovation and Employment has more public relations people than health and safety representatives—that needs to change as well, not only in the Ministry of Business, Innovation and Employment but also around the country, particularly in our mines and quarries, etc., throughout the country. Mr Chair, I look forward to taking another call very shortly. Thank you.

As members who have participated in the debate so far have noted, this is a very important bill, and in a bill such as this, the enforcement provisions are some of the most important parts of the bill. If we are going to have effective health and safety provisions, requirements, and obligations, then it follows that we need to have effective enforcement requirements as well.

Part 4 of the bill has prohibition notices, improvement notices, non-disturbance notices—all the paraphernalia that you would ordinarily expect and require in a bill of this type, dealing with this sort of material. What I do not see in the bill—and perhaps the Minister for Workplace Relations and Safety can answer this question when he takes a call—is what allows a small business of maybe six or a dozen employees to be distinguished from a large corporate employer, or a person conducting a business or undertaking (PCBU), as it is now to be known. What guidance is there for WorkSafe inspectors and WorkSafe staff on the way that they are to approach small and medium sized businesses, as opposed to the large corporates? I would just say that had the Minister tried harder and worked harder with parties in Parliament to deal with this issue, as it ties back into the setting of obligations and the workplace representation issues, which have been well canvassed and well debated, then it might well be that we would have had a more well-rounded approach to enforcement than what appears in the legislation at the moment.

This highlights an issue that I think is important to a lot of people: there is no point in having gilt-edged enforcement procedures—various notices; being able to resort to the Court of Appeal; giving not only WorkSafe but also private citizens, workmates, and the union that may be involved in the workplace the right to prosecute—if they are not also based on a foundation of good, effective workplace representation. The problem with some of the enforcement provisions in here is that, good as they are on paper, they will come to nothing if a WorkSafe inspector going into the workplace and dealing with an alleged transgression does not have a starting point, which is the workplace rules themselves, the workplace culture, the representation structures, and the people in the workplace involved in health and safety. To that extent, it may well be that absent some guidance about how smaller businesses are to be dealt with, what might otherwise be good enforcement measures are simply not as effective. This goes to the heart of the matter.

The reason why the Labour Party is so concerned about this legislation is that we had this opportunity to get the whole package right—to get the obligations right, to get the form of representation and the guidance about workplace culture right, and to get the enforcement provisions right as well. The sad thing is that without any movement—without any dialogue or further discussion with the Minister and his party, and, indeed, other parties—we may well end this part of the lawmaking process and come back to the third reading to see a bill that is less adequate, and certainly less effective, than it might otherwise have been if a moment had been taken to address the issues that, clearly, the Minister has been trying to address in the past few weeks.

It is vital that we get this stuff right, particularly in those industries that have the worst track records for health and safety, in those industries that have the largest number of ACC claims, and in those industries where we see the largest number of fatalities and the largest number of serious harm accidents. It is vital that we get the workplace structures, rules, and obligations right and that we get the enforcement right as well. There is no point in having the power to give improvement notices, the power for workplace inspectors to come in and give prohibition notices, the power to give non-disturbance notices, or the power to go to the District Court for enforcement orders, if the underlying foundation of those enforcement provisions is weak or if the workplace structures are non-existent, as they will invariably be in some workplaces.

I call upon the Minister once again, while we have a few hours of the Committee stage of this bill left, to think very carefully and to see that we can make these improvements if he has a willingness to do so. The last thing we need at the end of the third reading stage is a piece of legislation in which New Zealand no longer has any confidence. That is not acceptable, and I invite the Minister to tell us how effective these enforcement measures are going to be if we do not get the other provisions in the bill right.

I would like to speak specifically to Supplementary Order Paper 101, which is in my name, and Supplementary Order Paper 107, which is the name of Marama Fox. They both seek to amend clause 167B, which is found in Part 4 of the Health and Safety Reform Bill. They make important amendments to the limitation period for bringing a private prosecution. They have been proposed by the two of us because of the interaction of the various clauses relating to limitation periods for prosecution—that is, clause 167 and clause 167A through to clause 167C.

It is a bit of a technical loophole, but it is an important one for the Committee to address, because the way that those various clauses interact means that WorkSafe has, essentially, 2 years in which to bring a prosecution. So if WorkSafe determines that there has been a breach of the Health and Safety Reform Bill and that it may meet the criteria for bringing a prosecution, it has got 2 years to decide whether or not to bring that prosecution. At the same time, those who are wishing potentially to bring a private prosecution in the event that WorkSafe decides not to prosecute also have a 2-year limitation. Actually, WorkSafe initially has 12 months in which to bring its prosecution, but it can apply for up to an additional 12 months.

If WorkSafe takes just the 12 months that it is ordinarily able to take under clause 167 and if it decides after that 12 months that it is not going to take a prosecution, then anybody wishing to take a private prosecution has 12 months in which to take that prosecution. That is perfectly acceptable. We are certainly very comfortable with that. However, if WorkSafe applies for and receives an additional 12 months and then takes the full 12 months and decides not to prosecute, then there is no time remaining for anybody to take a private prosecution. It may be rare for this to occur, and it may be unlikely for this to occur, but it is certainly possible for this to happen under the legislation as it is written. WorkSafe could decide not to prosecute and nobody else would have the right to prosecute either.

What I have proposed under Supplementary Order Paper 101 is for there to be a 6-month extension, so that from the point that WorkSafe decides not to prosecute, there would be a 6-month window in which a private prosecution could be taken. I took this proposal to members around the House, one of whom was Marama Fox, on behalf of the Māori Party, and I understand that as a result—Marama Fox certainly indicated that the Māori Party could support that proposal from the Labour Party—of negotiations with that Government party, perhaps because the National Party could not bring itself to support a Labour amendment, the Māori Party has proposed a 3-month extension. I think that that is a little short, to be honest. I think that 6 months gives a fair window for a private prosecution to be brought, but, certainly, introducing a 3-month window is an improvement on the situation that we have right now.

Private prosecutions are actually incredibly important. They are an important check on the regulator. We have had two important examples recently of where WorkSafe and its predecessor organisations decided not to prosecute and the Council of Trade Unions decided that it would take a private prosecution. That was an important step, because in two cases that the courts have actually decided on recently, the private prosecution brought by the Council of Trade Unions was successful. In fact, it was with incredible ease that the prosecution was successful. It was with so much ease that there is a considerable question mark hanging over the decision of the regulator not to pursue prosecution. It was an important check on the regulator, saying, actually, that these were two important cases where the regulator ought to have pursued prosecution. Whether the regulator thought that it was unlikely that it would get a decision in its favour or whether it thought it was going to be too costly—I do not know what drove the decision not to prosecute. Clearly, the ease with which the Council of Trade Unions got successful prosecutions should give WorkSafe pause for thought.

In my view, that is the system working. We need to have that check on the regulator to actually be able to expose those instances where the regulator, frankly, gets it wrong, and it gives it an opportunity to learn from it so that in future, when it has the decision in front of it about whether or not to prosecute, it will be able to look back on the results of those private prosecutions and perhaps pursue a different course of action. It would be a shame if we found ourselves in the situation that is currently possible, with the clauses drafted in the fashion that they are, that a private prosecution could not be taken.

Just recently, we had the case of loader driver Charles Finlay, who in 2013 was crushed to death by a log while he was working in the dark. WorkSafe investigated but said that it could not find enough evidence of wrongdoing to prosecute the 45-year-old’s employer, M&A Cross Ltd. But M&A Cross Ltd actually pleaded guilty. That was how easy it was to get a prosecution. When the New Zealand Council of Trade Unions took a private prosecution, the employer actually pleaded guilty immediately. So I think that is a clear demonstration that WorkSafe got that one wrong. Also, Puketi Logging, the employer of 19 year-old forestry worker Eramiha Pairama, was found guilty of a charge under the Health and Safety in Employment Act relating to his death in 2013. The employer was found to have failed to take all practicable steps to provide its employee with a safe working environment, and, particularly, to ensure that he was not exposed to the dangers of work while being expected to manage on his own. These are two important cases that the Council of Trade Unions has taken and has been successful with.

We on this side of the House see this ability to take private prosecutions as an absolutely vital component of the overall system. Obviously, the regulator, WorkSafe, plays an important role in enforcing the law, but we also have to have the ability—especially for the likes of the unions—to be able to play our part in enforcing the law as well. When WorkSafe fails in its duty or just makes a wrong call—I am not saying that there is any dereliction of duty on the part of WorkSafe; just a decision that turned out in the long run to be the wrong one—there should be the ability for the Council of Trade Unions, or anyone else for that matter, to take a private prosecution.

I strongly urge members to support my amendment. I think the 6-month window is a more appropriate approach to take, but, certainly, my understanding is that the Government plans to support the amendment in the name of Marama Fox. I am glad that by proposing the 6-month window, we have been able to manoeuvre the Government into supporting a 3-month window, which is certainly an improvement on the current situation. It is a shame that we were unable to settle this in the Transport and Industrial Relations Committee. I thought, for a period of time, that this was going to be settled there, but unfortunately it was rejected by the MPs. I do urge members to support preferably my Supplementary Order Paper but certainly Marama Fox’s Supplementary Order Paper on this matter.

I am grateful that I have the opportunity to take a call because very shortly I am due in another select committee to debate some very hefty issues about the Rugby World Cup, but this has far more gravitas. So I am pleased to be here today, specifically to talk about Supplementary Order Paper 107 in regard to Part 4 and clause 167.

Mr Lees-Galloway has articulated the technicalities of the issue correctly. If WorkSafe is investigating an accident or a tragedy, as the case may be, it has 12 months in which to produce its report and make a decision about whether it will take a prosecution or take action against the employer. It can apply to have a further 12 months, and, in that case, as has been articulated, a family will not be able to take a private prosecution because their time to do so will have run out. We have been working with the Minister for Workplace Relations and Safety over a number of things that we have been trying to get through, and this is one of them. So Supplementary Order Paper 107 is intended to give families an extension of 3 months—a 3-month window in which to lodge their claim.

Given that you have got 2 years following a tragic circumstance or some sort of serious injury to investigate and to hear the findings and also to prepare yourself, we think that 3 months is actually an adequate time to lodge that claim. Six months would have been better, given a little less urgency to putting this bill through, but I suppose that a family or an individual in a private circumstance would have prepared themselves for the possibility of taking that action and would be ready to lodge it. So I feel that 3 months is actually an adequate amount of time.

In being able to do that and work with the Government, I think it is fair to say that, far from being all over the place, as has been articulated by the Labour leader, we have been very clear about what we wanted to do with this Government. We have worked with the Minister to try to strengthen parts of the legislation—in this case, Part 4—to ensure that there is some strength over the issues that we also have concerns about. We have articulated those clearly with the Minister and we have worked very well with his officials to try to see those things through. In this case, yes, it is around the extension to the time that a family member can take that claim.

I think the other thing that we have talked about that will not show up here in Part 4 is the proactive nature of WorkSafe—to encourage WorkSafe to, in fact, work more with employers and with employees about articulating exactly what their rights are and to ensure that they know where their procedures for health and safety are, where they can be found, who they can go to, and what can happen if they are unhappy with those things. I think we do not want to always have the big stick, and I am pretty sure that WorkSafe does not always want to be the big stick, at the end of a process where things are found to be disruptive, where things are found to be inadequate, or where people have been injured—or, hopefully, not—and also where people have been killed. It does not just have to be the big stick. We would rather that there was a proactive engagement with WorkSafe, with our employees, and with our workers at the shop face. Yes, we think that this bill could have been strengthened in a few places, and we have worked hard to do that.

I am happy to put Supplementary Order Paper 107 forward. I think 3 months is an adequate amount of time. I am not going to talk any longer on it—I do not think we need to labour the point. I think Mr Lees-Galloway has articulated the technicalities of the issue adequately, so I just wanted to speak and give clarity to that and give the reasons why we have decided to put up this amendment to make it 3 months if the one for 6 months is unsuccessful, but I think that would be enough time for family members to bring a private prosecution. Thank you.

I rise to take a call for the Greens on Part 4 of the Health and Safety Reform Bill. I too want to speak about Supplementary Order Paper 101 in the name of Ian Lees-Galloway and also Supplementary Order Paper 107 in the name of Marama Fox, both of which are dealing with clause 167B in Part 4 of the bill. I just want to remind the Committee that last week it was frequently quite emotional being in the Chamber, and I think that was actually a rational response to the grief that is still being felt by the forestry families and the Pike River families, who were in the gallery. The fact is that we are discussing a bill that has a huge impact on the safety and lives of families of workers, and these people were here wanting to see an improvement in the existing law. I think it was right that we gave them the due respect and treated it with the gravitas that it deserved. I am mentioning it now because it is this part of the bill, clause 167, that deals with private prosecution.

I just wanted to note that some of those families cannot be here today, but it was Selina, who is the mum of Eramiha Pairama—and is someone whom I spoke to last week—who I think had the most impact on me, really, when she spoke about wanting to see a bill that would keep people like her son safe at work. In her case, or in the case of her son, who was killed at work—a 19-year old boy who was killed at work—WorkSafe, the regulator, decided not to prosecute in that case, as we have heard, but the New Zealand Council of Trade Unions decided that it would. It has been supported by unions and, actually, by ordinary families across New Zealand so that it could take that case on.

My understanding is that under the existing health and safety laws, the regulator has a period of time—I think it is around about 6 months—in which it can decide whether to prosecute in these circumstances, as was the case with Eramiha, and it can apply for an extension. Then, when it has decided that it will not prosecute, there is only 1 month left for a private prosecution to be taken, and invariably there is a call for an extension of time. The change in the bill can be seen in some ways as a more positive step, in that it does say that WorkSafe now has up to 2 years to examine cases—severe cases, especially—and to decide whether it will take a prosecution. But, although it is giving extra time to WorkSafe, that may make it harder for the families to be able to decide whether to take a prosecution.

I do note that in the bill there is a clause that says you can go outside the time if there is fresh evidence, so there are some mitigating factors there. But I believe, and the Greens believe, we need to amend this, and we support Iain Lees-Galloway’s Supplementary Order Paper to give a 6-month period of time for families or other persons—in this case, it could well be the New Zealand Council of Trade Unions, again—to decide whether they should be taking a private prosecution. I think that is reasonable, given the amount of investigation that has to happen, and then also the work that needs to be done to get a private prosecution ready. My understanding is that 6 months is not an unreasonable expectation of the time required.

Should Iain Lees-Galloway’s Supplementary Order Paper fail, we would, of course, support Marama Fox’s Supplementary Order Paper, which basically just reduces that time to 3 months. But I have to say, in terms of it being a huge win for the Māori Party, that, no, I do not see it as a massive step in the right direction. I mean, it is a good effort, but unless the Government actually agrees to it, then I do not see that it is a huge win.

I do note that the Minister has a Supplementary Order Paper on this part as well, which I think is actually just around ensuring that people can receive notice of a prosecution or be notified that there is an action being taken, and it says that they can receive it by mail or within 7 days, and then it will be deemed that they have received it. Honestly, do we need that kind of massive amount of effort put into such a simple little thing, when there are huge gaps in this bill that really need to be addressed and that are not being addressed?

We will be supporting these parts of the bill. I want to reiterate that we do continue to have concerns and we will not be supporting the bill in its entirety. We certainly do have concerns around the offences and the inequities in the sentencing of prosecutions from offences that may have occurred with the mishmash of criminal law and employment law. But I believe that if we, as a Parliament, can agree to support Iain Lees-Galloway’s Supplementary Order Paper, then we will have got some movement. It would be really good to see that because I think, as the Leader of the Opposition has said in the last couple of days, this is a once-in-a-generation opportunity to get it right, and so far we have not.

I welcome this opportunity to contribute to the debate on Part 4. The part of the bill that I would like to speak about is different from the part that members have been talking about thus far. I would like to talk about the appointment and powers of inspectors. This is something that comes up a lot in the businesses that I have been visiting and talking to talk about health and safety. They have certainly been turning their attention to these issues.

The issue that small businesses and small to medium sized businesses are raising is the balance of power, or getting the balance right, with regard to inspectors between a punitive enforcement approach and an enabling, supportive advice type of approach. What a lot of people are raising with us is that they want to be compliant, they want to adhere to the law, and they want to do the right thing. What they actually want is some support to enable them to meet all of the obligations under the legislation.

Businesses see a positive role for inspectors coming in, pointing out the areas where businesses need to improve, and actually taking a proactive, enabling, and supporting role. However, certainly if you read this section of the bill around who the inspectors may be and what their powers may be, it certainly suggests quite a punitive approach to the role of an inspector. If we want to talk about the culture change that the Minister for Workplace Relations and Safety spoke about in earlier parts of the debate, surely the role of the inspectors can also be a positive one.

There is no doubt whatsoever that these punitive measures that are here are important and that, in fact, we want to ensure that the inspectors have the powers that are listed here, but we also want to ensure that they have the ability to play a more constructive role in providing businesses—and any organisation, in fact—with advice on how they can do better and where they can do better. I just wonder whether the Government is giving sufficient attention to getting that balance right. Does it simply see the inspectors as being that kind of last-ditch approach, saying: “Here are all the things you’re doing wrong.” and taking the prosecutions, or whatever, rather than helping to effect the culture change?

Under clause 181(1)(b), I note that the regulator may, in writing, appoint as an inspector any employee of the State services. I wonder whether the Minister could elaborate for us some practical examples of where he thinks that kind of power may be used.

The area that I am really interested in is around education, because a lot of schools are grappling with their obligations under this legislation. At the moment, the primary inspector of schooling, and early childhood education as well, is the Education Review Office. So would, for example, the Government envisage that the inspectors, or the people conducting Education Review Office visits to educational establishments, may have the powers under this legislation to also be inspectors for the purposes of the Health and Safety Reform Bill? That could have some positives and some negatives. It could change the nature of the relationship between the educational institutions and those bodies, but that could be in a positive way and also in a negative way.

I want to give the Minister an example that was raised with me specifically today, and that is around school science labs and their use of chemicals. At the moment, many schools use chemicals in their science labs, and the storage practices are quite variable. The schools actually want to comply, but there is not a heck of a lot of enforcement or a heck of a lot of advice given to schools on this. I understand it is something that the Education Review Office used to inspect but no longer does.

Therefore, would the Government envisage that being the sort of reason that clause 181(1)(b) might actually come into force? So the Education Review Office is delegated the responsibility, for example, to actually be the health and safety inspector—

The CHAIRPERSON (Hon Trevor Mallard): It is clause 181(1)(a).

Sorry, clause 181(1)(a)—under clause 181(1)(a), because they are a department, not part of the State services. I thank the Chairperson. Would the Government envisage that an Education Review Office inspector, for example, would be given that power?

Schools want to comply, but I think we would all agree that there are some significant risks involved here around the use of—I have mentioned science labs and their use of chemicals. Other examples may be workshops within schools. They have very dangerous machinery that they are using within workshops. Is that the sort of example that the Government may see being used here?

I note, as I go through, when we talk about the powers of entry and inspection, when we talk about the power to take samples and objects and other things, and when we talk about the power to deal with the cause of imminent danger, these are all powers that very much suggest that the inspectors are dealing with a case where things are already wrong and there are things that we want to stop or things that may even result in negligence or cases of prosecution, for example. But what happens when the organisation concerned, in this case a school, wants to comply and wants some proactive advice? How does the Government envisage that that would be given effect to by the inspectorate, or, in fact, does it not see the role of the inspectors as doing that at all?

I guess those are my questions to the Minister, and I will be interested in his answers in due course.

I rise to take a call on Part 4 of the Health and Safety Reform Bill. I do hope that we are going to be able to have some comprehensive debate on this part of the bill, because it is a part of the bill that, because of decisions made in earlier parts, 25 percent of our workforce will be reliant on because they will not have access, when they request it, to a health and safety rep, who could actually be taking preventative actions in their workplace. Those are the workplaces that have fewer than 20 employees and that are deemed to be low risk—places like dairy farms and beef farms—and where people are blowing up buildings and demolishing them. These are apparently the sorts of workplaces that are now going to have to rely on Part 4 of the bill, because that is the part that actually outlines what the prosecutions are, what the offences are. This is now the domain, in Part 4, of labour inspectors. That is, effectively, what Part 4 talks about. This part contains all the things that labour inspectors can do. We have gone past the parts of the bill that are more preventative and that I would say are actually more proactive ways of managing health and safety, where health and safety reps could actually make a difference in their workplaces.

I want to focus on clause 123, “Power to issue improvement notices”. I guess that I want to extrapolate this out to include the prohibition notices and the non-disturbance notices that labour inspectors can also issue. I want to ask the question of the Minister for Workplace Relations and Safety—particularly in terms of the power to issue improvement notices, noting that this is a power that only labour inspectors would have—as to how that would differ from the power that we have given health and safety reps under Part 3 to issue provisional improvement notices, and what the difference would be between those two things. I will have a go at explaining what my version is, and if I am wrong, then I would appreciate it if the Minister could rise to his feet and correct me.

My understanding is that under clause 92 in Part 3, which we have already passed, elected health and safety representatives can, if they have been trained, issue provisional improvement notices. Those provisional improvement notices can require, if the legislation has been contravened by the person conducting a business or undertaking (PCBU)—or, as some people would prefer to call them, the “BOSS”—the trained health and safety rep can issue a provisional improvement notice and require the PCBU to remedy whatever part of the legislation it is that they are contravening. They can issue one of these provisional improvement notices to prevent a likely contravention from taking place, and they can issue a provisional improvement notice to remedy the things or activities that would be causing the contravention.

The reason why I raise that is that surely it is going to be a better thing to happen in these workplaces—that a preventive measure happens—than clause 123 in Part 4, where things have got so bad that they have come to the attention of the Labour Group. I really want to—

The CHAIRPERSON (Hon Trevor Mallard): Order! I know that the member is attempting to tie this to Part 4, but extensive discussions about why Part 3 methods are better than Part 4 and relitigating the decisions that have already been taken in Part 3 are out of order when we are in discussion about Part 4.

Thank you for your guidance, Mr Chair. I am, of course, talking about the power of labour inspectors, under clause 123 in Part 4, to issue improvement notices. My question is really this—I am going to cut to the chase here—who is actually going to alert the labour inspector? Who is going to alert the labour inspector—these, I do not know; I think we have about 50 of them throughout the country, Minister? Something like that?

💬 Hon Michael Woodhouse: They are called health and safety inspectors.

Health and safety inspectors.

💬 Hon Michael Woodhouse: There are about 350 of them.

There are about 350 of them. How are they going to be on all of these dairy farms, all of these beef farms, all of these places where health and safety representatives do not exist because they are not allowed to exist, even if the workers ask for them? How are the health and safety inspectors employed by the Government going to learn of the things that are going wrong in order to get to them in time and prevent them—

I did not want to cut across my colleague. This is a very important part of the legislation. I have just read an article online that talked of a case currently before the courts, where the owner of a forestry logging company is subject to prosecution—

The CHAIRPERSON (Hon Trevor Mallard): The member is going to take care, is he not?

Absolutely—no, I will not go into the details. I think the principle is that the person involved thinks that they may be being set up as perhaps an example by a Government that has a new focus on health and safety. The point is that whatever we do in legislation and whatever we change here, the one thing that Kiwis want is fairness. So the devil is in the detail, and I know that people listening and watching may think that we are being pedantic about words and interpretations of words, but the fact is that we are trying to pass a piece of legislation that will provide not only safety and protection for all workers but also fairness for all employers. I think that that is equally the objective of the Labour Opposition, as it is of the Government.

Fairness and equity are important. When it comes to the issue of enforcement and other matters, and I am sure that it will be an issue that will be in a court of law, the question is whether the person before the court is getting a fair go or has, as has been pointed out in this debate, the decision to prosecute, which seems to be a somewhat subjective one given recent history—that is, the department decided that it could not proceed, yet the private prosecution by the New Zealand Council of Trade Unions proved not only that it could have done that but also that it could have done so successfully.

I come back to Part 4, which is about enforcement and other matters. I would just like to go to a part of the bill that did kind of strike a few chords with me, and that is the limitation period for prosecutions. Some may see it as the “get out of jail free” clause. For the families of Pike River miners, this is a particularly pertinent area, where delays in the process have, effectively, rendered their inquiry—or their desperation, I guess, for some justice—null and void because the mine manager is unlikely to be taken to court at all.

As pointed out by my colleague Iain Lees-Galloway, limitation periods are really important. It is not only with big, terrible, tragic disasters like Pike River but also with other complex cases of accidents and perhaps deaths in the workplace that there will sometimes be quite a period of investigation. This bill does say “6 months after the date on which a coroner completes and signs a certificate of findings”, so there is some acceptance here that there must be some conclusion. If you look at a major disaster, you have, I guess, a recovery period—a royal commission in the case of Pike River—and then there are decisions by Government agencies or police about whether to prosecute. I think that Supplementary Order Paper 101, put forward by my colleague is, indeed, a very necessary one, so that at the point of decision by a Government agency, it does not, effectively, eliminate the right for private prosecutions to occur. As we have seen with the involvement of the New Zealand Council of Trade Unions, those prosecutions can be quite successful.

It is not that New Zealanders want utu or revenge, but we must ensure that there is a fair process of justice all through this health and safety legislation, as I say, to ensure that, firstly, we get proper protection for the workers, because that is our first and foremost objective, and then, should an accident occur, if indeed the employer or the person conducting a business or undertaking—or the “BOSS”, as my colleague Kelvin Davis says—has done all that they can, they are not unjustifiably taken through the courts and prosecuted. At the same time, anyone who does not do what they should do should rightfully be subject to the full force of the law and all of the provisions that are laid down in this legislation.

If I may ask, just going to new clause 178 here—[Bell rung]

The CHAIRPERSON (Hon Trevor Mallard): Damien O’Connor, with a warning to keep the focus tight on Part 4.

I appreciate that, Mr Chairperson. I know they are technical, but they are far-reaching clauses—

The CHAIRPERSON (Hon Trevor Mallard): Yes, I understand that. The member has done better than some of his predecessors.

This clause is titled “State of mind of directors, employees, or agents attributed”. Although I was not part of the Transport and Industrial Relations Committee—I imagine that there are some explanations and that maybe the Minister in the chair, Craig Foss, can explain these things—it is a little bit confusing here because it says: “in any civil proceedings under this Act”. It goes on to say: “it is necessary to establish the state of mind of that individual, it is sufficient to show that an employee or agent of the individual acting within the scope of his, her, or its actual or apparent authority,”. It then goes on to say: “In this section, state of mind, in relation to a person, includes the knowledge, intention, opinion, belief, or purpose of the person and the person’s reasons for that intention,”.

In summary—and I am not trying to be flippant—this is quite a subjective clause, in my view, and clarification will be needed to ensure that when applying it, any agency that is implementing the law does so in a fair and unbiased way. I am not sure whether this applies directly to a situation on a farm, but if you are looking at states of mind, I can assure you that farmers—particularly dairy farmers—who in the middle of spring are facing the dilemmas that they are at the moment will not be in what we may otherwise say is a balanced and sound state of mind. They are under pressure. They are under huge pressure, and I am not sure who is going to be the judge of whether they are in a sound state of mind when making decisions regarding workplace safety. It comes right back to a question that I asked, and, again, I am not being flippant, that in the case of farms—high risk, low risk, or whatever—does state of mind and the definition as laid down in new clause 178(3) leave the door open for subjective and, I guess, variable interpretations, which may mean that some farmers are going to get prosecuted or be subject to prosecution and others are not, depending on how stressed they are.

The absence of any workplace representative in a farm environment because of the Government’s changes may make huge changes and differences to that application there. I am assuming that if you have someone in a workplace who is an employee who has been delegated or appointed—or, indeed, has been elected—as the workplace health and safety representative, as an employee they will probably have less stress than the business owner. In the case of a farmer, as I said, at this time they will be very, very stressed. So the issue of how someone—a court of law or, ultimately, a judge—determines “state of mind, in relation to a person, [including] the knowledge, intention, opinion, belief, or purpose of the person and the person’s reasons for that intention, opinion, belief, or purpose.” is quite confusing when read out like that, but it is a clause in this bill that needs clarification.

Can I just go back to say that we believe, as I say, that every clause in this part of the bill needs to be clear in order to protect employers, and the protections for the employees are through other provisions of the bill that ensure representation and that ensure the right classification. So, those aside, this is about a fair go for employers. There will be people out there who think that the Opposition is seeking to protect only the employees. That is not the case. We have to have fair, effective, implementable, and reasonable workplace health and safety here, but it must be effective. My reading of this clause is that that does leave the door open for what is a very subjective question, which the Minister can answer, of state of mind and of who the person is who is going to be assessing that. Is it, indeed, a psychiatrist, or will it just be the implementing officer or the enforcement officer—or, indeed, will it be the employee?

It is my pleasure to speak to Part 4 of this bill, on the enforcement provisions. These are worthy and necessary provisions, which are set out in Subpart 1,“Enforcement measures”; Subpart 2, “Remedial action”; Subpart 3, “Civil proceedings for non-compliance with notices”; and Subpart 4, “Enforceable undertakings”. And then it goes on to talk about reviews and appeals. All of this is the mechanical side of the enforcement of health and safety in the workplace, and because of the changes in this bill, it relies predominantly on the role of the inspectors. I think that I heard Sue Moroney say before that we have 50 inspectors.

💬 Sue Moroney: Oh, I think the Minister said 350.

💬 Iain Lees-Galloway: 300.

We have 300 or 350 inspectors. That is covering the workforce across the entire countryside. So for Part 4 of this bill to work, you have to have the inspectors who are out there being able, for example, to note a contravention, so that they can remedy it, or to note a dangerous situation, so that they can issue a prohibition notice. But that will not work unless the people who work in the workplace itself are there making sure from hour to hour, day to day, and week to week that the conditions in the workplace are safe. That is why this chance-of-a-lifetime piece of legislation has been undermined and destroyed by the Government, because it has taken away the fundamental role of the people who would otherwise enforce health and safety on the ground. We know that having health and safety representatives works. We have had them in the legislation before. This bill was going to bring those health and safety representatives to cover a much wider cross-section of the industry, and for reasons of bowing to pressure from narrow, self-interested groups that are guilty of contraventions of health and safety in the workplace, this legislation is not going to work.

Part 4 is very worthy, but it will not work, and it has not worked overseas. What the international experience has been in Australia, in the United Kingdom, and in other places is that health and safety legislation works when you have got good enforcement, when you have got responsible employers, and when you have got employees participating in the day-to-day safety of the workplace. It is a case of three legs to a stool. This is one leg of the stool, but without that third leg and without the people who are working on health and safety in the workplace, who are now excluded from the most dangerous parts of the workplace, which is the dairy farms, the cattle farms and the sheep farms—but not the worm farms; the worm farms will have the ability to have health and safety people working on the ground—without the people on the ground, without them working in cooperation with the employees, and without the ability of a union to come in and say “This is not safe, and somebody will lose their life.”, somebody will be maimed for life. We have got one of the worst records in the world. It does not work if you are relying on just the mechanical provisions in this part of the bill.

You have to have the active engagement of your workforce. So I want to ask the Minister in the chair, Craig Foss, if he is following the proceedings, why it is that we are not backing up these provisions with the active participation of people on the ground. If it is good enough for Australia to do across the Tasman, if it is good enough for the British to do, and if it is good enough in most other advanced Western countries to have a system that will actually work, why has the New Zealand Government gutted this piece of legislation? I have been listening to this debate, either in the Chamber or in my room, for the hours that it has been going on, and I have heard no explanation from any Minister in the chair as to why the Government has decided to gut the legislation.

We supported this legislation as it was introduced. This legislation as it was introduced was a response to the royal commission following the Pike River disaster. That was good legislation. It was legislation that followed the rulings of the Independent Taskforce on Workplace Health and Safety. I want to know from the Minister, who is sitting in the chair without comment, why it is that you set up a task force, that you pay for a royal commission, that when there is a disaster like the Pike River disaster you pretend to be absolutely concerned and say that you will do everything possible so that it never happens again, and then 2 years on it is all forgotten? Two years on, the meaningful changes that would have occurred in this legislation have been ripped out of the legislation and we are left with just the mechanics of it.

I do not believe that the inspectorate can do the job by itself. I do not believe that there are enough inspectors. I do not believe that they are being given the support, and I do not believe that this legislation is going to make any meaningful change, which is necessary when we see a disaster of the proportions of Pike River. There are 29 people still entombed in the grave of that coal mine. The country came together. I was down there on the West Coast. The Prime Minister was down there. Other MPs were down there. Damien O’Connor was working down there. We came together and we said: “This is appalling. This is a totally unnecessary loss of life, and we must do something to prevent it from happening again.” This bill was born out of the task force and out of the royal commission, but the Government wobbled at the knees when it came back in and a handful of small business people and farmers said: “We can’t have this. It’s going to be awkward.”

We must have this if human life is to have the sanctity that the House should be according it. It does not matter how much we have got in this part of the bill in terms of prohibition orders, non-disturbance orders, and inspectors if we do not have the three parts of what is required to keep our people safe in the workforce and to make sure that when the men and the women in the workforce work there during the day, they are going to come home safe at night. I do not think it was too much to ask. In fact, I think that you would have got a consensus of opinion across the floor of this Chamber if this bill were doing the right thing.

So, yes, we will speak in favour of the particular provisions in Part 4, but, no, we do not believe that they are sufficient or adequate to actually make a difference. What everybody who has done research in this area has advised the House, what the task force has advised the House, and what the royal commission has advised the House, this Government has decided to withdraw from the bill. I would like the Minister in the chair to not sit there silently. I would like him to take the next call and to get up and say how these provisions will make a difference without the most important change, which his own Government introduced when it brought the bill to this House and said should happen. I would also like to know, since we have gutted this bill because of private discussions between the National Government and some of its supporters, why those discussions were not taken back to the select committee and why there has not been justification for the changes that have been made. This is serious legislation. There is no topic for this House to consider that is more serious than maintaining the health, safety, and well-being of New Zealand men and women in the workforce. Yet we are reduced now to looking at a partial bill.

I do want to speak, however, in favour of Supplementary Order Paper 101, in the name of Iain Lees-Galloway. We have found that WorkSafe New Zealand has often not taken prosecutions but that when taken privately by the Council of Trade Unions, those prosecutions have succeeded. Private prosecutions are critically important, and there needs to be at least 6 months between a decision by WorkSafe New Zealand to not prosecute and for individuals such as the Council of Trade Unions to put together a case to take to court—again, to protect men and women in the workforce. Six months is a reasonable period of time. I know that Marama Fox has got Supplementary Order Paper 107, through which the Government is looking to find a compromise of 3 months. It is not enough.

Part 4 does deal with enforcement in particular, and other matters. As colleagues have said, enforcement is just one component of this legislation. Enforcement is what happens when the other aspects have failed, really. It is what happens when the proactive efforts to work alongside employers to build good health and safety practices, when the efforts of workers and their representatives—when they are allowed to have them—to build good health and safety systems and to build a good relationship with the employer, fall down. That is when enforcement has to happen.

Actually, I do want to walk through some of the enforcement options that are available to the health and safety inspectors, because what we often hear—particularly from the farming community, which seems to be most vocal about this—is that the only time employers see WorkSafe New Zealand is when they show up to issue them with one of the enforcement notices that are available to them under this legislation: an improvement notice, a prohibition notice, a non-disturbance notice, or a suspension notice.

Of course, that is not how we want WorkSafe to operate. We want WorkSafe to be in there, alongside the employers—particularly in those high-risk and isolated industries like farming, like forestry, like fishing—actually out there working alongside them to get good practice in place before they have to show up with the big sticks that are available to them here in Part 4. But that comes down to a variety of things. One of them is actually ensuring that WorkSafe has the people on the ground and has the resources available to it to be proactive. If WorkSafe is under-resourced, then of course the only time it is going to show up is after something has gone wrong, to issue one of these notices.

Nevertheless, there is a sliding scale in this legislation. I think it is important for people to understand that there is actually a sliding scale, and that even when you get into these matters of enforcement you are not immediately being slapped with fines. You are not immediately being slapped with notices requiring you to stop what you are doing—depending on the nature of the breach.

But the first thing is improvement notices. Improvement notices can be given by an inspector who believes that a person is contravening a provision of this legislation or regulations, or is likely to contravene this legislation or its associated regulations. It requires the person to remedy the contravention and to remedy the things or activities causing the contravention or likely to cause a contravention. In other words, it says to the person conducting a business or undertaking (PCBU): “Look, this is going wrong. This is a breach, or is likely to cause a breach, of the Act. We want you to sort it out, and we’re going to give you time to sort it out.” In fact, it is a requirement of this legislation. It is a requirement of clause 124, in fact, that the improvement notice gives the PCBU a period of time to sort out whatever is going wrong. It is only if, after that period of time, they have not sorted things out, that they then become liable for the fines associated with non-compliance, which are laid out in clause 125.

So the first option for a health and safety inspector who sees something going wrong is not to go directly to fines, is not to go directly to prosecution; it is to actually say to the PCBU that they need to fix this, here is the opportunity to fix it, here in fact are some recommendations for how you can fix it, and here is how long you have, and we will be back after that period of time to come and see how you are doing. If WorkSafe is doing its job properly, of course, it will also work alongside the employer to support them to sort the issue out.

The next option that is available is a prohibition notice. This actually says that the employer has to stop an aspect of the work, so this is an advance on the position of the improvement notice. This says that actually you are doing something so serious that you need to stop that right now—stop now, and only once you have sorted it out can that particular aspect of the workplace start working again. [Bell rung]

The CHAIRPERSON (Hon Chester Borrows): I will call Iain Lees-Galloway.

Thank you, Mr Chairman—I would hate to have been cut off at that point.

The next option is to issue a prohibition notice. That actually says you have got to stop what you are doing. But, then again, if you stop that work, sort the issue out, and the inspector comes back and can see that the issue has been sorted out, then work can start again. So it is not about going immediately to the big stick, but this Part 4 is about enforcement. What we would say on this side of the Chamber is that actually preventative measures should have started well before we get anywhere near any of these notices, whether it be a prohibition notice, whether it be a non-disturbance notice, or even a suspension notice. That is where the health and safety representatives can be really important. We do have only 300 health and safety inspectors. That might sound like a large number; it still does not meet the International Labour Organization guidelines for how many health and safety inspectors we should have.

And, let us face it, the New Zealand economy—we have heard a number of times from the Minister, in fact, how agriculture is the largest employer of people in New Zealand. What we have with agriculture is a large number of workplaces with, usually, small numbers of workers in quite isolated situations. It is the same with forestry, the same with fishing—some of our highest risk industries, the ones that kill and maim more people than any other industries, are often the hardest to reach. And this is the challenge for the inspectors. If they are to carry out their duties under Part 4 of this legislation, they have to be in many places at the same time. And that is the value of having people within the workforce who are trained and mandated to actually be the eyes and ears for WorkSafe, so that some of that preventative work can be done before we need to get to this point of issuing improvement notices, prohibition notices, or non-disturbance notices.

So although this particular part is about enforcement, we just see it as—I think Phil Goff said it is one leg on the three-legged stool. This leg is reasonably robust. Putting to one side the Supplementary Order Paper that I have put up around the issue of private prohibitions, otherwise we are reasonably comfortable with this part, but it is undermined by the failings in other parts of the legislation. But even with the enforcement in this, there is still an opportunity for PCBUs who have perhaps fallen foul of this part of the bill, who have not met their obligations under this bill, to rectify that well before they get anywhere near fines, well before they get anywhere near court proceedings.

I think that is an important point to make. There has been a lot of myth-making about what this legislation does. There is a lot of concern. There is a lot of fear out there amongst some of those industries, particularly those high-risk industries, that the first time they see a WorkSafe vehicle driving up their driveway they are about to be slapped with a fine. That should not be the case. The case should be that WorkSafe arrives on the farm, at the forest, or at the fishing vessel—or at any other workplace, for that matter—well before they get to this point. But even if WorkSafe does come on the farm and sees a breach of the legislation, there is ample opportunity for the employer to rectify the things that are going wrong, well before they risk being fined or being prosecuted.

I do not think that is well enough understood. I think that is a failing of the Government in its communication around this legislation that it has allowed that fearmongering to occur. It has allowed that concern to grow and grow and grow, particularly amongst small employers, that they are at risk of being slapped with very large fines and will not have the opportunity to put things right. That is simply wrong, and I would like the Government to say that a lot more loudly than it has been.

I move, That the question be now put.

Thank you, Mr Chair—I am really pleased you have given me the opportunity to speak on Part 4 of the Health and Safety Reform Bill because there is a very specific issue that I would like to raise with the Minister in the chair, the Hon Craig Foss. We would really appreciate some feedback on this important issue because it has been raised by the Law Society and as yet I have not heard it debated in this Parliament. As my colleague Iain Lees-Galloway mentioned, broadly speaking, Part 4 relates to enforcement provisions. Clause 180A of Part 4, “Proceedings involving classified security information” states “Schedule 2A contains provisions that apply in civil and criminal proceedings that involve classified security information.” So that takes us directly to schedule 2A, and that is what I would like to speak to in my contribution.

Schedule 2A relates to “Provisions relating to classified security information”. I think it is important to point out that this schedule, as I understand and as pointed out by the Law Society, was not present in the bill—it is contained in Supplementary Order Paper 108, which is obviously substantive—at the time that the bill was introduced to the House. By virtue of that, that means, as I understand, it would not have been subjected to any New Zealand Bill of Rights Act vet, as a bill upon introduction usually is subjected to. That means we have not had full consideration as to the broad, sweeping nature of this schedule, and certainly that is the point that the Law Society has made. It has not been the subject of a New Zealand Bill of Rights Act vet. Officials, as I understand, have had this issue raised with them directly by the Law Society. The response that Government advisers gave back to the society was that it was their view that these provisions were narrow. I want to test that view with the Committee.

It states in schedule 2A “Application of this schedule” that “(1) This schedule applies to any criminal or civil proceedings (including public law and judicial review proceedings) that relate to the administration or enforcement of this Act, if—(a) all parties to the proceedings have access to classified security information that is to be produced or referred to in the proceedings; or (b) the defendant in proceedings intends to produce or refer to classified security information.” So what classified security information is and how it is defined is very important for the purposes of this legislation. According to the Law Society, its view is that the definition is very wide. The definition is stated in clause 3 of schedule 2, “Meaning of classified security information”. It states: “(1) In this schedule, classified security information means information—(aa) that is relevant to proceedings that relate to the administration or enforcement of this Act; and (a) that is held by a specified agency;”—and I believe with specified agencies we are talking security, intelligence, or law enforcement, New Zealand Defence Force, the Government Communications Security Bureau, New Zealand Police, or the New Zealand Security Intelligence Service. It continues: “and (b) that the head of the specified agency certifies in writing [that it] cannot be disclosed except to the extent provided in clause 4 because, in the opinion of the head of the specified agency,—(i) the information is of a kind specified in subclause (2); and (ii) disclosure of the information would be disclosure of a kind specified in subclause (3).”

Then, when you go on to those, they basically say that—it is very hard to explain schedules—what is considered classified secure information is basically determined by the agencies that hold that information. They basically have the power to write to the court and say: “We don’t believe this information should be disclosed, because we determine”—they determine—“that it fits the criteria of this bill. It might lead to identification of a source of information. It might, if disclosed, give away the functions of security or intelligence. It might prejudice the security or defence of New Zealand or international relations. It might prejudice the entrusting of information to the Government of New Zealand on the basis of confidence. It might prejudice the maintenance of the law.” In writing, that all sounds fairly robust, but if you are actually allowing those agencies to determine that for themselves, then that potentially becomes problematic. As the Law Society has pointed out, it has advised the Minister specifically—

It is my pleasure to take a call in the Committee stage on Part 4 of the Health and Safety Reform Bill. I have been trying to find a clause in the bill that I could actually speak to that no one else has addressed, and I actually have a serious question for the Minister in the chair, the Hon Nicky Wagner. It relates to clause 169, “Sentencing criteria”. I read in subclause (2)(e): “the degree of departure from prevailing standards in the person’s sector or industry as an aggravating factor;”. The reason I have brought that up is that I have been trying to find out what these prevailing standards are, so if the Minister could provide me with a definition of what prevailing standards are, I would really appreciate it.

The reason I would really appreciate that is that I want to acknowledge that WorkSafe put out a publication in April this year. It is titled Health and Safety Attitudes and Behaviours in the New Zealand Workforce: A Survey of Workers and Employers. It is a qualitative analysis, and it really focuses on the agricultural sector—so it is an agricultural report. The reason I really want to ask about the definition of prevailing standards is some of the findings in this report. What we know is that every year almost 100 people die in workplaces across New Zealand, and 94 percent of the people who die are men. They die in high-risk industries like forestry, construction, manufacturing, fishing, and the agricultural sector. The interesting analysis for me is that when I look at the characteristics of these industries, the report says that they are driven by pride and they are driven by masculinity and it is in a hierarchical context, people are under pressure, and it is becoming increasingly diverse.

But the other thing specifically in the agricultural space is that those people are independent and isolated, so we are talking about a group of people who, in some regards, have—and I will quote again from this report, which says that: “Health and Safety is considered important but something that can get in the way of day-to-day farming. Unpredictability of agricultural work may foster a fatalistic attitude”. So the people who work in the agricultural sector actually have an attitude that things just happen that cannot be changed. I think that, actually, the whole intention and focus of this legislation is to change things, and it is to make sure that 100 people a year—mostly men—are not dying in the workplace. When we are faced with these attitudes of the people who work in these industries themselves, I guess I am now highlighting that the prevailing standard or attitude within a sector is actually this one of a fatalistic idea of the work space. And, actually, the whole reason we want somebody in power to be a health and safety representative is so we can change these attitudes.

How are we going to change the attitudes of a sector where we know that many of them are dying? That is what I want to know, because if this piece of legislation is not going to be part of changing those attitudes, attitudes that are actually killing people—they are killing husbands, they are killing fathers, they are killing grandfathers, and they are killing brothers. No one has really talked about the gender implications of this piece of legislation. This legislation is about our men, which is why we saw the women come here, crying and holding their husband’s photos. Families have been wrecked, and I just do not understand what is happening, given where this legislation came from.

That is my question to the Minister in the chair: what is going to happen, then, if the prevailing standard or attitude in these sectors means that it is OK for people to die? How is WorkSafe actually going to change that outcome? Are we going to tolerate it and say: “Hey, it’s OK. We’re OK with 100 people dying every year because, you know, the people who work in the sector have got this fatalistic attitude that some of them are just going to die.” Is that acceptable? What this legislation actually says is: “Yes, it is. It is acceptable. We as a country accept that 100 people”—

I move, That the question be now put.