Health and Safety Reform Bill

Members, we come now to Part 5, a debate on clauses 205 to 239 and schedule 3, including the Minister’s amendments and amendments proposed by Clayton Mitchell.

Part 5 of the Health and Safety Reform Bill is rather innocuously titled “Miscellaneous provisions”. It certainly does contain miscellaneous provisions of quite a varied nature but many of them are quite substantive, and I expect there will be quite a lot of debate about a number of the clauses contained in this part.

I would like to direct my first contribution towards clause 224, “Regulations relating to worker engagement, participation, and representation”. This deals with a number of aspects of worker engagement, and the first of those is the requirements for determining a work group. Work groups are the way the employer can structure their workplace for the purposes of worker representation, and we have certainly had some discussion about the fact that health and safety representatives actually represent only the workers in their work group. It may be that an entire workplace or an entire worksite is one whole work group or it may be that the person conducting a business or undertaking (PCBU) decides to separate out different parts of the workplace or their business into different work groups. This is an important part of this piece of legislation. It is possible—and this is referred to under clause 224(a)(i)—to have work groups for workers carrying out work for two or more PCBUs.

This is a really important concept—the idea that in one workplace there may be multiple PCBUs—and it does actually make sense sometimes to structure the workplace in a fashion so that you have workers from different PCBUs in the one work group, potentially with one or more health and safety representatives representing those members of that work group. It may be that despite the fact that they come from a number of different PCBUs—a number of different employers—they might be doing similar work and their interests are shared, and it makes sense for those workers to be represented by a health and safety representative representing all of their shared interests. What clause 224 does is it allows the Governor-General, by Order in Council, to make on the recommendation of the Minister regulations relating to the requirements for determining a work group and the agreements or variations of agreements relating to the determination of work groups.

We have expressed some concern on this side of the Chamber about the nature of the agreements around work groups. We have expressed some concern about the fact that work groups could be structured in a fashion so as to limit the influence of health and safety representatives and to limit the number of people working on a worksite or for an employer who has access to a health and safety representative. So, in fact, the regulations that can be made under clause 224 are going to be very important, I think, for ensuring that there is appropriate agreement between the workers and the PCBU around the structure of those work groups. We want to have a bit more clarity around the nature of that agreement included in the law, but, obviously, this is part of the regulation-making power as well.

It will be important to get that right. We do not want to see work groups being used as a tool to limit the authority and the influence of health and safety representatives. We totally understand why it is appropriate to have work groups. It certainly will be appropriate for businesses that have work of quite a different nature to have work groups. You might have some people working in an office, and then some people working in a distribution centre, and their needs, as far as health and safety are concerned, are going to be quite different, and it makes sense to separate them into separate work groups and for them to be represented appropriately.

Again, perhaps for some of the chain stores that have a store in every city it makes sense for the health and safety representative to represent the workers in a particular store, not necessarily the workers across the whole business—so that makes sense. But the concern we had was that in the way the law was written it was possible for the small number of fringe employers—and I think some of us in this Chamber know the types of people we are talking about and the types of industries we are talking about—to use that ability to structure those work groups in a fashion that deliberately undermines health and safety representatives, because they just do not believe in health and safety representatives. So we think the regulation-making power in clause 224 is actually going to be quite important and we would like to see the Government ensure through regulation that there is genuine agreement between the workers and the PCBU about that work group structure.

Clause 224(b) relates to “prescribing matters relating to health and safety representatives, including—(i) the eligibility criteria for election as a health and safety representative: (ii) the procedure for electing or removing a health and safety representative:”. Again, this is going to be very important. If the health and safety representative system is going to work appropriately, yes, we do need people who are appropriately qualified to discharge their duties. We also need to make sure, again, that this is not used to unnecessarily limit who is able to put their name forward to be a health and safety representative. Ultimately, of course, we are talking about elected health and safety representatives who have to have the confidence of the people who are working around them, and the people working around them will know whether or not that person is likely to be able to discharge their duties well.

So the first eligibility criterion, and I think the most important eligibility criterion, is the confidence of their workmates, and that is, of course what the democratic process is all about—that the person who should be elected to that position should be someone who does have the confidence of their workmates. But, obviously, it is important that we ensure that people have the right skills and the right ability to carry out the functions of that task. As for the procedure for electing or removing a health and safety representative, in terms of electing a health and safety representative my view is that it should be over to the workers as to what process they want to use and what process they want to conduct to elect a health and safety representative.

When it comes to removing a health and safety representative, well, we have some concerns about the fact that a PCBU can now actually ask WorkSafe to remove a health and safety representative, and if WorkSafe says “No, that health and safety representative is doing their job just fine.”, then the PCBU can now refer that to the District Court. That, I believe, will definitely be used by some employers as a threat against people who put their names forward as health and safety representatives—that they will end up tied up in lengthy litigation, and they will end up in the District Court simply because those employers are ideologically opposed to health and safety representatives and they want to make life as difficult as possible.

The next regulation-making power, in clause 224(b)(iii), is “the eligibility criteria to vote for a health and safety representative:”. Again, we have to be very, very careful to make sure that this is not too restrictive. The people who should be able to vote for a health and safety representative are anybody in the work group that that health and safety representative will be representing. Representatives hold that position because they are given that mandate by the people who work around them. They should have the confidence of the people who work around them, and that should be everybody who works around them.

I do not want to see this regulation-making power being used to exclude some people from being able to elect a health and safety representative. I would like to have some assurances from the Minister in the chair, the Hon Nicky Wagner, that none of those issues that we have raised around eligibility criteria for being a health and safety representative, the eligibility criteria for electing a health and safety representative, and the way in which regulations are going to be made about the structure of work groups are going to be used to undermine the health and safety representative system and that none of those are going to be used to limit the influence and the authority of health and safety representatives. Ultimately, we as Parliament are handing that over to the Government, and we are trusting that it will get it right. We need some assurances from the Minister in the chair during the Committee stage.

Members, I am sorry to interrupt the debate. Earlier the Committee was asked to vote on the Minister’s amendments to Part 4 set out on Supplementary Order Paper 108. I incorrectly gave the result of that vote as 67 to 44. In actual fact, it was 77 in favour and 44 against.

I stand on behalf of New Zealand First to take a call on Part 5, “Miscellaneous provisions”. We do actually have a couple of things to talk to and, in fact, we have got two amendments on Supplementary Order Paper 110.

I would just like to start by commending some of the words that the speaker previous to me, Mr Iain Lees-Galloway, has just said. He brought up the work groups as being of some concern. We spoke earlier about those work groups, the appointment of those work groups, whether there is any sort of ambiguity about how we are going to determine what those work groups are going to look like, and what they are going to consist of. We actually had an amendment on Supplementary Order Paper 110 to do that, which was, of course, an amendment to clause 66 in Part 3, but we have sort of moved on from that now. It was unfortunate that we did not get the support from Labour for that, because that would have addressed this issue about getting WorkSafe to resolve any issues as an independent arbitrator in that instance.

Now I would like to move on to what we have some concerns about and we have got two amendments on Supplementary Order Paper 110 to help amend. It relates to clause 227, “Further provisions relating to regulations”. We have had some fantastic discussions in the Transport and Industrial Relations Committee about some of this, but we have also gone out and done a lot of research with the people that this section may well and truly affect. We are talking about Federated Farmers. There is a united front there that have some concerns about this part and its provisions, and hence we have put our provision forward.

What the bill has got here under further provisions in clause 227(1) is: “Regulations made under this Act may—(aa) impose similar or additional duties on a person in relation to the same circumstances as this Act does: (a) be of general or limited application:”. The parts that concern us are subclause (1)(d), “apply differently to people of a differing age or health status, and may apply only to people of a particular age or health status:”, and subclause (1)(e), “apply differently to different classes of person, workplace, plant, structure, substance, or kind of risk:”.

The issues that this may raise are in relation to a workplace that is not considered dangerous—you know, sharemilking is not considered dangerous, nor is farming and the like—but it is where you have got a father and son or a family member going out to feed out or to make hay. As in many other cases, I was one of those young children on the farm. I used to drive the tractor for the farmer, who was, actually, a very close friend, and I used to work with his sons. This clause may well stop that from happening, if the children are under the age of 15 years old.

It may also have an effect if you consider working in a takeaway, for example. If a chip fryer was seen to be dangerous plant or equipment, which, of course, it could be because of very, very hot oil and fat, that clause may actually preclude young people from actually working in those fish and chip shops and the like. The clause goes on, and may have some implications around young people working on, goodness me, a lavender farm, or even working in a butterfly factory. I say that with a pinch of a smile, but it certainly does have some issues.

What we are proposing here is to replace clause 227(1)(d) with our amendment on Supplementary Order Paper 110, which says: “apply differently to people of a differing age, but only in respect of machinery or equipment, and may only apply to people of a particular age:”. So this “particular age” may be different to what the other ages are saying of a much younger age. And, of course, we also have in proposed new paragraph (da) that it will “apply differently to people of a differing health status or physical capability, and may apply only to people of a particular health status or physical capability:”.

We see this as being a serious issue in and around some of those workplaces, particularly in farming situations, where, of course, young family members are actually involved in the day-to-day running of that farm. It may also include those persons conducting a business or undertaking (PCBU), the workers, the bosses, the parents of young children who go and, of course, do work experience in deemed dangerous areas such as a workshop, if it is a building workshop or something of the like or somewhere where there are hazardous substances around. I do not think we should be precluding that work experience and that engagement with those young people and stop them from entering those workplaces, as I think that will have a detrimental effect in the long term.

We have another amendment on Supplementary Order Paper 110, which is to clause 227(2). This here is about well-intentioned actions, if you like. Say you have a situation where you are working on a farm and you have clocked off for the day and you are driving home and you see that one of the sheep may have escaped inadvertently. You pull over to the side of the road and with good intentions, although you are off the clock, you actually try to remedy the situation by getting that animal back into its pen or back into the place where it should be.

Under this bill at the moment, that could actually put the boss, the PCBU, and the worker—albeit they are not on the clock—in a situation of getting a fine or getting into trouble or, basically, being in breach of this condition. What we would suggest is that we would put in this proposed new subclause 227(3): “Regulations made under this Act may not hold people liable for any consequences arising from well-intentioned voluntary acts.” So in the event that there was an accident getting that stock from the road, or there was a problem with getting that stock and the worker got hurt, that would preclude the PCBU—the boss, if you like—and the worker from any legal action or any wrongdoing or being culpable in any way.

I think there is a lot of what has been put forward in this Health and Safety Reform Bill that actually does work, and I think, in general terms, it will work. However, I think that it could be done a lot better, and I think that if we could actually get some support for a number of these amendments from the Government, we would actually see happier people out there—the people who are actually working and living and breathing this. Some sensible, sound Supplementary Order Papers and amendments would actually go a long, long way.

We are disappointed that we have not got a number of our amendments supported to date. Again, here is another piece of sound, common-sense advice that we are putting forward that would actually make a huge difference in the long run to make this legislation more palatable as it goes through today. Thank you very much for your time.

To start with, I would like to talk about clause 217. This is about a funding levy. The thing that concerns me slightly is that what clause 217 basically does is set out the terms and conditions under which the Crown can actually charge an employer for WorkSafe undertaking its duties. So it is a form of user-pays, I suppose. At the moment, as we all know, employers do pay an ACC levy, and that is fair enough—

💬 Hon Member: And a tax.

And a tax. It is a form of tax; there is no doubt about that. But what we are finding at the moment, as the Minister for ACC—who is actually in the Chamber at the moment—has said, is that the ACC pot is incredibly full at the moment. So she has proudly made the announcement that she is dropping a whole lot of ACC levies—

💬 Sue Moroney: It’s too late.

—it is far too late—for a number of employers. But what we have here, under clause 217, is the opportunity for the Minister to actually raise those levies once again. But the thing is that this is going to be collected by ACC, and there are a number of terms and conditions under which this can be brought in.

Let me talk about clause 217(7)(a). What this is about is certain Crown costs. What can happen is that the Minister can determine that a levy is charged, it says here, for “certain Crown costs” and may determine “WorkSafe carrying out its functions under any enactment:”. What I would like to know is whether, in fact, this is going to be mandatory and whether this is going to be put in place, because the way that it is worded in this legislation is that it is. What it says is: “WorkSafe carrying out its functions under any enactment:”, and the way that I read that—you know, we all want a great WorkSafe. We all want an engaged WorkSafe and we absolutely require a number of inspectors to be out there making sure that businesses, companies, and employers are meeting their statutory obligations—that is a given. But the way this reads is that the employers are going to be charged for this.

It also says that “the Crown administering”—this is another condition under which the levy can be imposed; we are talking about paragraph (c)—“the relevant health and safety legislation:”, and also for “collecting the funding levy”. So you can charge people a funding levy for collecting the funding levy, and, in fact, what can happen is that ACC can then charge WorkSafe for the fact that it has collected the levy itself.

So what I see here, under clause 217, is a much greater level of compliance cost that is going to be loaded on to the employer. What I would really like to know from the Minister in the chair is whether this is something that would be nice to have—let us see what happens with the cost, let us see whether it blows out, or let us see whether the legislation is actually meeting its statutory requirement, and, if it is, that is fine and away we go—or whether there is going to be any more money in an appropriation to actually bolster the number of WorkSafe staff to allow WorkSafe to carry out its statutory obligations, or whether, in fact, this is actually going to be implemented the day after or the month after this bill is enacted into legislation.

I would also like to know, because I cannot see it here—and that does not mean it is not here; maybe I am missing something—the level of the levy that is proposed to be charged. Is it going to be a similar sort of levy as the WorkSafe levy? For high-risk industries, for example, are we going to see employers actually paying double what they pay at the moment? I would suggest that for some employers, if you go and double the WorkSafe levy that they pay as part of the ACC requirements at the moment, that could actually be quite onerous. We all understand the reasons for health and safety in the workplace, and that is a given—we do not want to see men and women injured. However, if you are going to increase it by a significant amount, then I think that the people of New Zealand, the employers and the employees, probably need to know the level at which this is going to be increased, if, in fact, it is going to be increased. So there are a whole lot of unknowns around this that would require a level of clarification.

Another clause I would like to talk about is clause 211, “Health and Safety at Work Strategy”. What clause 211(1) says is that “The Minister must publish a strategy, called the Health and Safety at Work Strategy, that sets out the Government’s overall direction in improving the health and safety of workers.” But the thing that surprises me a little bit here—I am not too sure why the change was made—is that in clause 211(3) it did say that “The Minister must make reasonable efforts to publish the first strategy within 12 months …”, but that was amended to “24 months”.

What we are talking about here is obviously a very important piece of legislation, but I am wondering why the Transport and Industrial Relations Committee saw fit, or someone saw fit, to double it from 12 months to 24 months, because even though it does state in the legislation here that this strategy must be undertaken in consultation with WorkSafe—actually, it says in clause 211(6) “(a) with regulatory agencies; and (b) with other persons who have an interest in work health and safety in New Zealand …”—so it is obviously going to be a highly consultative process, which it should be. I would have thought that this process would probably be under way at the moment—you would hope it would be—because you would hope that a Government would have an overarching strategy for this to start with, but I am not too sure as to why it is going to take 24 months. I wonder, if that is the case, whether this legislation sort of operates in a little bit of a vacuum—not too much, because it is quite a prescriptive piece of legislation. But I am not too sure why it was moved from 12 months to 24 months.

The other thing also is that when I see these words in clause 211(3): “The Minister must make reasonable efforts to publish the first strategy …” or the term “reasonable efforts”, I wonder whether that is just a little bit of an out to mean that the Minister does not actually have to do it within 24 months; he or she can push it out to 30 months or 36 months, or to whatever they want. What I would really have liked to see there is: “The Minister must publish the first strategy within 24 months.”, and not with the little bit of wiggle room that exists, because I would have thought that 24 months is enough time to consult with those who have a really important part to say in this and to get it around the country and develop a strategy—most important.

The other thing also is that it says here in clause 211(7)—and, again, I am dealing with semantics, but, you know, this is what the Committee stage is about—that the Minister must present the strategy to the House as soon as is practicable. And those are the terms in the bill: “after the strategy, amendment, or replacement”—because the Minister can amend and replace at any time—“has been published or made under this section.” Again, the words “as soon as practicable” give a little bit of wiggle room for the Minister to decide whether it is going to be a week, a month, or 2 months. Again, what I would have liked to see, because it is quite a prescriptive piece of legislation, is something that said “within 5 working days”, “within 5 sitting days”, or “within a month after receiving it”, just so there is a level of certainty there, so that we know that when the Minister has completed the strategy and when he or she has done all the consultation, there is a definite time frame within which this strategy is then presented to Parliament for us to look at, for us to go to the workers and employers with, and for us to let them know what the Government is actually talking about.

Those are the only two clauses at this stage that I have questions about. I just think, especially around the funding levy and clause 217, that there are a number of unknowns there that I think if we were to have a couple of answers for, it might just clarify the position for employers and for employees. Thank you very much.

I rise to take a call on Part 5, which I think the previous speaker, Stuart Nash, said is fairly innocuously titled “Miscellaneous Provisions”, and, you know, there are quite a lot of other matters in here. The one that strikes me as quite interesting is the one around the regulations. The regulations start, I think, quite a way back in the bill, and cover an enormous amount, actually. The bill starts with the regulations in clause 221. But the one that I was wanting to focus on, for the discussion that I want to add to this part of the proceeding, is around the regulations that are specified under clause 224, “Regulations relating to worker engagement, participation, and representation”.

Iain Lees-Galloway has already talked about the whole issue of work groups. I want to focus my attention on clause 224(iva), which is the regulations around “specifying high-risk sectors or industries for the purposes of sections 65(3)(b) and 86A(3)(b):”. When you go back and have a look at it, what that means is that it is the regulation around the exemption of workplaces with fewer than 20 workers from having health and safety reps. That is what is covered in clause 65(3)(b), and what is covered in clause 86A(3) is the exemption for persons conducting a business or undertaking (PCBUs) with fewer than 20 workers from having a health and safety committee.

I think that this is actually what we have been talking about in the last few days, or since last Wednesday, when the Minister for Workplace Relations and Safety released his idea of what he considers to be high-risk industries and industries that are low risk. There has been an enormous amount of concern about the way some sectors have been determined at this stage to be high risk and others deemed to be low risk, and the low-risk ones, of course, under the provisions in clause 86A and clause 65, would therefore be exempt from having health and safety reps or health and safety committees. There has been concern, particularly, about agriculture. We know that agriculture is a dangerous industry, and we know this because of the number of deaths and injuries. You just have to say “quad bike” and you immediately evoke all the accidents that have happened on farms with quad bikes over the last 5 years—and there have been heaps. And yet agricultural places where they use quad bikes—dairy farming, cattle farming, sheep farming—are deemed to be low-risk industries.

You have got to think about how these regulations get made. It does say, I guess, further on under clause 226 that there is to be consultation. However, this just talks about how the Minister must not recommend making any regulations under some of the previous sections “without first consulting persons and organisations that the Minister considers appropriate,”. This sounds well and good, but, actually, it goes on to say in subclause (3) of that clause that “A failure to comply with this section does not affect the validity…”. I would really like to hear from the Minister, who says that he is going to consult around the regulations that will be determining what are high-risk industries and what are low-risk industries. But in the meantime he has kind of skewed it a bit by saying: “We’re using these criteria to determine it, and we’ve decided that worm farming is a high-risk industry. And we’re determining that alpaca farming is a low-risk industry and cattle farming is a low-risk industry, but butterfly breeding and cat breeding are all high-risk sectors.” It just does not make sense.

But I get back to that duty to consult, which is outlined in clause 226. When it talks about what the Minister will consult on—even though he does not have to consult, because it does not invalidate the regulations that will be made as a result—one of the things that it says the Minister will consult on is clause 221, which talks about the welfare of workers. It has got quite a lot in it, actually, but it does actually—yes, it is in clause 221, “Regulations relating to health and safety”. In clause 226, “Consultation requirements for making certain regulations”, it also specifically says that some of those things that the Minister will consult on are around regulations on accommodation. I went on a bit about accommodation for workers as part of their remuneration packages in a previous part that we were discussing last week, but I do note that the Minister does not have to consult about what is adequate housing for people, but there is the ability to have that regulated for.

This part seems to me to be the yeah, nah part: “Yeah, we’ll do that, but, nah, we don’t have to.” Yes, we will have health and safety reps in some industries, but not in the ones that we think are low risk, despite the fact that everybody else thinks they are high risk. And we will consult if we feel like it, but not consulting does not make it invalid. So it is a yeah, nah kind of situation. It worries me that there are these kinds of “get out of jail free” clauses consistently through parts of the bill. I think that when we do look at regulations there does have to be excellent consultation, and if we are looking at changing health and safety culture then that consultation has to be widespread. It has to be with more than the employers. It has to be with more than just the industry peak bodies. This is where workplace representatives or health and safety committees could have been really useful, particularly in the high-risk categories—the ones that are actually high-risk industries—because that is where you can get real consultation, get the real solutions about what is happening on the job, and start to make part of the culture change in the workplace.

So we are a bit concerned about this whole thing about how you develop regulations, how you do not, and exactly what we will have in them, because those are the powers that are handed to the Minister and are not necessarily in the body of this legislation that we are discussing now. That concerns me as well, because it seems to me that we should actually rely on a wider range of viewpoints to get to a place where we do create good workplace health and safety culture.

I think that is all I will contribute at the moment. Thanks.

I am pleased to have an opportunity to rise and speak to Part 5 of the Health and Safety Reform Bill. The part that I really want to focus on for my contribution is clause 212, which is about workplace injury prevention. [Interruption] Yes, I know that the Hon Ruth Dyson has got an equally important and different contribution to make around that same point. I am going to stick to the issue that we debated at the Transport and Industrial Relations Committee around this part.

We were given some assurances by officials that I want to make sure of, and I guess I want to ask the Minister in the chair, the Hon Nicky Wagner, to make sure that it is also her understanding of the assurances that we were given. This was exploring the issue around workplace injury prevention programmes, which have to be provided by both WorkSafe and ACC. Currently, my understanding is that what we have in the Accident Compensation Act, which clause 212 refers to, is a provision that requires the expenditure of the money that is put aside for workplace injury prevention programmes to be used in a way where they demonstrate that those workplace injury prevention programmes would result in a reduction in levy rates or expenditure. In fact, the wording in the Act is that a reduction in levy rates or expenditure is expected.

What I raised at the select committee was the concern that, in fact, some really good workplace injury prevention programmes would, by the nature of being successful, sometimes increase levy rates. I am just going to have to back-pedal a little bit and explain to people about how ACC levy rates are set. They are set in a manner where if an industry or a sector has a large number of injuries or accidents or workplace deaths, then it will have a higher ACC levy, and if it has a lower rate of notifications of injuries or deaths or accidents, then it has a lower levy. So it would seem intuitive that workplace injury prevention programmes would bring the accident rate down, and bring the death rate down, and would, therefore, lower the levies.

However, in some instances, and particularly with regard to occupational disease, that can actually have the opposite effect. What I mean by that is that sometimes people do not know that the symptoms that they are suffering from are a result of an occupational disease that they may have picked up some time earlier, a long time ago at a different workplace, because they simply are unaware that those symptoms are associated with perhaps a chemical that they used to handle in a previous workplace. So a workplace injury prevention programme that actually raises awareness of occupational disease, the symptoms associated with it, and the outcomes of that may actually increase the number of claims that are put forward to deal with the outcome of that occupational disease and, therefore, could actually end up increasing the ACC levy being paid by a particular industry or sector.

As perverse a result as that may seem, I was concerned that clause 212 in Part 5 of this bill may, in fact, stop such workplace injury prevention programmes from being accepted, approved, and paid for by either ACC or WorkSafe because of what that clause says. It does say that “Section 264A of the Accident Compensation Act 2001 requires WorkSafe and ACC to, at all times, have a workplace injury prevention action plan that meets the requirements of that section.” That section, as I said before, requires that a reduction in levy rates or expenditure is expected as a result of those.

Why I raise that is that we were given assurances by officials—and I would like those assurances repeated by the Minister, for the benefit of this Committee—that although that may well be an expectation that is put on programmes that are funded by ACC, that particular provision would not be extended to the workplace injury prevention programmes provided by WorkSafe. I am debating this bill in the Committee stage, rereading clause 212, and feeling nervous all over again because it does stipulate that both ACC and WorkSafe have to have regard to that clause in the ACC legislation. I am now just as nervous as I once was that we are going to have this provision applied to WorkSafe programmes as well.

I did, though, ensure that the select committee—the select committee agreed with the issues that I was raising. We wanted to ensure, through our commentary, that we were clear in our instructions to Parliament about what our understanding was. In the commentary that has been reported back, on the consideration of this bill by the Transport and Industrial Relations Committee, there is a section that I just want to read out. I want to make sure the Committee understands what the select committee believed, from the official advice, and I would like the Minister to reiterate that we have got this right.

Under the heading “Injury prevention” in the commentary it states: “Although reduction in ACC levies is not the only driver of injury prevention programmes, we were concerned that such programmes would be constrained to only achieving reductions to levies, when some programmes should raise awareness and therefore increase the number of ACC claims being made. We were assured”—and that means by the officials—“that WorkSafe’s injury prevention programmes can continue to be funded by WorkSafe and that such funding would not be dependent on a need to achieve a reduction to ACC levies as a criteria.”

Getting an assurance on that before we vote on this part of the bill is very important. We want to make sure that the Minister’s understanding is the same as what the select committee was advised, otherwise the Labour Party will continue to have a concern that a whole range of very effective workplace injury prevention programmes would not be able to be funded either for ACC provisions or by WorkSafe provisions, and that would particularly put at risk injury prevention around occupational disease. But it would not just be occupational disease; it would be anything where raising awareness of the issue would, in fact, perhaps lead to more claims being put forward to ACC and an increase in levies or expenditure occurring by ACC.

Further on, with regard to the issue of workplace injury prevention, I do want to note that under this Government the funding for workplace injury prevention programmes fell drastically. It has somewhat been restored, but has still not been restored to the level that it was way back in 2008. I think that, in conjunction with clause 212, in Part 5 of the bill, the Government needs to give us an assurance that the funding levels will not only return to what they were way back in 2008 but, in fact, catch up with the inflationary costs that have occurred since then and catch up with the increase in workforce participation that has occurred since then, and it needs to make sure that we have workplace injury prevention programmes that are funded to a level where they make a difference. This is what the bill is about. It is about actually preventing injuries at work, where we can do that best. The reason why this bill has come about is that we have got such a lousy record when it comes to preventing injuries in the workplace, and, certainly, the Government’s cuts to funding since 2008 have not helped in that regard at all.

The other contribution I would like to make on Part 5 is with regard to the health and safety at work strategies. Again, in clause 211 in Part 5 we know that “The Minister must publish a strategy, called the Health and Safety at Work Strategy, that sets out the Government’s overall direction in improving the health and safety of workers.” I think that when that is published it is going to be very interesting to see what the Minister has to say about the level of risk on farms. Certainly, there is a lot of confusion over what the strategic view within National is on that issue. So I look forward to seeing what Government members have to say about the unforgivably high number of workplace deaths that we have in the farming industry. I hope it certainly is not explained in that strategy as being low risk, because I think every New Zealander understands that that is just simply not the case. The strategy must be developed jointly with WorkSafe, and the Minister must make reasonable efforts to publish the first strategy within 24 months after the commencement of this section.

I will go to clause 228A, which is the issue of exemptions. Not having been on the Transport and Industrial Relations Committee, I have not been privy to the discussion around this, but I am trying to think of where exemptions might occur. We have had a reference to the armed forces earlier in the body of the legislation, and there are some criteria, of course—“The regulator may exempt any person”, and, just to go back, it is exemption from compliance with regulations. So the regulations will be imposed, but the clause will allow an exemption from compliance with that. I have been trying to think through situations where that might occur, because it says in clause 228A(2)(b) that “the exemption is not inconsistent…”. So it must not be granted if “the exemption is not inconsistent with the purposes of this Act.”—that is, the exemption may be granted, but the purpose of the Act must still be complied with.

Although I have raised the issue earlier in the debate around the bill’s purpose being to provide a balanced framework, rather than an effective framework—which I would always have advocated for—the requirements and the purposes cover a fairly wide range of things, such as fair and effective workplace representation, and encouraging unions and employer organisations to take a constructive role. The question I ask of the Minister is for what purpose would we have an exemption? It is not a flippant question. It is one that I am struggling to understand because the purposes of the bill are sound. Although I may take issue with the words, I think we know what we are trying to achieve here, and to allow exemptions from compliance is somewhat of a dangerous thing. In the armed forces, I think there is some understanding of why there is an exemption. I have been an adventure tourism operator and I have been a farmer. These are both, in my view, high-risk areas, in spite of the view of the Government, but I still cannot think of areas where I would want us to deviate from the objectives and the purposes of this piece of legislation. Keeping that in mind, I would have thought that we were covered and did not need an exemption.

I am looking out—there may be in nature, of course, unforeseen circumstances, but you cannot regulate for them, in my view, or for exemptions, or maybe this is the area that the Minister wants to refer to. If there is a natural event and if it has not been possible to comply with the regulations, maybe then that would stop a prosecution from occurring or would stop an inspector from coming in and initiating that. But I would think, and hope—and it is the loophole that I guess they used in Pike River—that in unforeseen circumstances there is a plan B or a plan C or a plan D, because we should not undertake anything that would put anyone’s life at risk. We are trying to protect employees and employers—and anyone else, of course—in and around the workplace. So, I ask that question of the Minister in the chair, Nicky Wagner, and, hopefully, she can come back and answer it.

There are other provisions in here, and one of the things that I want to look at is notification. It is a very important part in clause 221(1)(d) where notifiable events—which is the right term for it, I think—are referred to in regulations “prescribing matters (including requirements) relating to notifiable events at workplaces, including—(i) regulating the taking of any action to prevent a notifiable event …”. The question I have is about how we ensure that every employer understands what a notifiable event is, and will those events be written down in regulations or will they just be covered as a general principle?

It is at the cutting edge, I guess, of implementation, of prosecution, and of the fear that some employers have. A notifiable event in one workplace—I guess, cutting your finger in an office—might be seen as a major event, but, in defence of the farmers, if you cut your finger while you are fencing it is probably not a notifiable event. I am just assuming that the regulations cover that. I have to say that I would have hoped that the regulations would allow that kind of variation—take a cut finger, say—across a number of occupations, and it would have been better to do that than to say that some occupations were simply low risk and to cover it in that way.

I think that the approach that the Government has used in this area has been absolutely wrong, and there will be people here who are interested in the farming sector and they may think they have gained a huge victory in this. I could go back—and, indeed, I have gone back—to the 1992 legislation and the debates here in the House when the National Government Ministers said that they had made great headway in achieving a balanced piece of health and safety legislation. That Government had done away, of course, with mining legislation or had assumed that a code of practice might come in, so people—probably farmers and others—saw it as a huge victory.

I have not counted up the number of people who have been killed, and I am not naive enough to think that every one of those deaths would have been prevented, but if we had taken the approach, as many other countries have done—not the one of the 1992 Government, and now of the 2015 Government, both of which were National Governments, that says that a balanced approach is necessary. Well, when it comes to people’s lives, we need better than balance. We need effective legislation that ensures that any young or old person who goes on to a farm or into a forest or who is in an office workplace is going to be safe. You do not have to go very far in terms of Google to pick up example after example of death and the failure of our systems on farms to protect workers, and a continuation of the same is not good enough.

In fact, when seatbelts were introduced in this country, there were many people who said: “Look, we can’t force this on people. We can’t ensure that everyone in a car wears a seatbelt. We’ve got to be reasonable about this.” Well, no, the law said we had to, and now we have got to the point in our culture, and our approach to car safety has improved, to the point where young children will scream if they are not in a seatbelt, and that is a great outcome. And there will be a point in the future on farms when the culture and approach to safety is one that does generate a far better outcome.

I am concerned that the compromises to achieve the so-called balance, and to maybe look at notifiable events in a slightly different way between farms and other workplaces—or, indeed, between different types of farming. A worm farm being a high-risk venture and a dairy farm being a low-risk one—the ridiculousness, the stupidity, of that is not lost on just about every single New Zealander. I come back the issue of exemptions because the Government has made an exemption for a whole class or classes of farming, which is stupid, and I am fearing that the exemptions that are wide open, through legislation—in clause 228A here—may allow the Government, because of political lobbying or anything else, to leave open other exemptions that might not protect workers in this country.

We do not want some kind of ridiculous, authoritarian regime. We do want to improve the culture, but it is absolutely essential that we take a fair approach to all employers throughout New Zealand—all employers should take on board their responsibility, as do all employees. But to leave out, as the Government has, some key areas where it is obvious—every day in the paper; I am sure that every single day in rural and provincial New Zealand, we would have a report of at least an injury and, all too often, unfortunately, a report of a death—and to make those exemptions makes a mockery of what this Parliament is trying to do. I hope that this clause here, which is, again, allowing exemptions, is not abused by the same stupidity of a Government or a regulator—

I am really pleased to contribute to Part 5, which I think is misleadingly titled “Miscellaneous provisions”. I do not mean that it is deliberately misleading, but I think it could imply that it has not got a lot in it, when, in fact, there is a huge amount of really important provisions in this part. It covers clauses 205 to 239, and although I do not want to focus most of my contribution on the last clause, I would invite members to read clause 239, “Consequential amendments”. It just says: “Amend the enactments specified in Schedule 3 as set out in that schedule.” I looked at schedule 3, and it just goes on and on and on. I am quite surprised that there has been, to the best of my knowledge—and I have been listening in the Committee to the debate—very little, if any, debate on the raft of legislation that is described in consequential amendments under clause 239 and set out in schedule 3.

Although I have referred to clause 239, and I might get back to it later, the main contribution that I would like to make is in terms of both the drafting and the content in an area that my colleague Sue Moroney quite accurately predicted, and that is in clauses 211 and 212. These are the two areas dealing with health and safety at work, including the publishing of a strategy, and workplace injury prevention.

I want to ask about the drafting first of all. I know that the Minister in the chair, the Hon Nicky Wagner, is not responsible for any of this legislation, but as she is the Minister sitting in the chair I would encourage her to get advice from her competent officials and answer some of the questions that have been raised. It is really frustrating when you do not have the responsible Minister but you do have legitimate questions that are unanswered. Sometimes Ministers just use their lack of portfolio responsibilities as an excuse, but I know that they could ask their advisers for some contributions and be of assistance to the Committee as we go through this Committee stage. This is our only opportunity as the Committee of the whole House to get answers about specific parts of the legislation that we are debating. Once we are through the Committee stage, that opportunity is lost to us.

So I would like to ask, in terms of the drafting precedents, about clause 212, “Workplace injury prevention”. That clause describes two provisions—section 264A and section 264B—of an entirely different piece of legislation, the Accident Compensation Act 2001, and how that legislation “requires WorkSafe and ACC to, at all times, have a workplace injury prevention action plan that meets the requirements of that section.” I do not recall other legislation in which provisions are contained that just say “another Act has this in it”. It does not have any legislative requirements pertaining to the Health and Safety Reform Bill; it just refers to what is in another Act, and I want to know about the drafting precedents of that. We have been told that it is not consistent with modern drafting practice to refer to other bits of legislation that may be relevant, and, to me, this seems to be inconsistent with that advice, which I have heard discussed in the Chamber previously. So that is my first question—not about the content, but about the drafting, and what I think is unusual and not in keeping with parliamentary practice in 2015.

The next point that I want to raise is actually more specifically about the policy and the intent in clauses 211 and 212. Let us start with clause 211. It is titled: “Health and Safety at Work Strategy”, and it says in subclause (2): “The strategy must be developed jointly with WorkSafe.” It does not say who it is jointly developed between. One may assume that it refers to the Minister for Workplace Relations and Safety, but nowhere in this clause is the Minister required to develop a strategy. The Minister is just required to “publish a strategy”, and I think that leaves it up to the goodwill of the Minister to actually develop a strategy jointly with WorkSafe, if that is the intention. It may be jointly with ACC, or it may be jointly with any number of people, but it is not at all clear what clause 211(2) means in terms of who the parties to the development of the strategy are.

The Minister should, in my view, lead the development of a strategy. I am surprised that after 7 long years the Government has not worked out that we used to have a workplace health and safety strategy. It was a robust strategy. It set a framework of action for Government departments and agencies. I do not know what has happened to it. The Minister probably did not know it was in existence, because this seems to be the first ever time that attention has been focused on the need for a strategic framework for Government departments and agencies to work to.

I am concerned about subclause (4), which says: “The Minister may amend or replace the strategy at any time.” To me, that gives the Minister powers that I think may not necessarily be abused but that I think are not representative of the need for collaboration and understanding and commitment to the implementation of a strategy. Having a unilateral ability to amend or replace a strategy is not the way to get buy-in from employers and workers in New Zealand for the successful implementation of a strategy. If we have learnt one thing through this Committee process—and, listening to some of the contributions from the other side, sometimes I wonder whether there were lessons learnt—it is the need for people to understand and buy into and then commit to the implementation of ensuring that our workplaces are safe.

I just want to turn my attention now to the provisions of injury prevention that are outlined in clause 211(5)(b), which is ACC’s injury prevention priorities, and, again, I refer to clause 212. I want to tell the Committee of the whole House a little story about what I think were two excellent injury prevention programmes. One is directly related to the provisions in this legislation, and one is not, but I want to tell the Committee the story of it anyway, if I may. The reason I say they were excellent injury prevention programmes is that they were independently peer reviewed in a robust fashion and were found to be excellent.

The first programme was an older persons’ fall prevention strategy. It was led by good organisations throughout our country, sometimes Presbyterian Support and sometimes Age Concern. It was a very simple programme, which, of course, was designed to reduce the number of falls by older people. Otago University’s injury prevention research unit peer reviewed it and said that it was excellent. It was simple, it was accessible, it was free, and it was reducing the number of falls in New Zealand that older people had inflicted upon themselves. I think that sounds like a really good idea. When an older person falls and breaks their hip, they die a lot earlier than if they had not fallen and broken their hip. We know that is a fact. So if we can prevent falls that hurt people, cost the health system, and cause earlier deaths than otherwise would have occurred, we should do it and we should put Government money into it. One of the first actions of the incoming National Government in 2008 was to cut the funding for that programme.

Another programme that had exactly the same outcome—that is, excellent injury prevention outcomes but funding cuts—was the health and safety training. It went to three levels—introduction level, second level, and third level—and was developed jointly between the then Department of Labour occupational health and safety experts and ACC. Workers from all over New Zealand were able to go to those courses and learn about making their workplace safer, not just for themselves but for other people, and then go back to their workplace and pass on that knowledge. That is a great driver of a change in the culture of New Zealand’s workforce, and that is what we need. We need better education and better understanding, and leadership to drive a change of culture that will reduce the number of injuries.

Again, one of the first actions of the incoming National Government in 2008 was to cut the funding for those programmes. So they are no longer available, despite clause 212 describing workplace injury prevention and explaining the requirement for WorkSafe and ACC to have, at all times, a workplace injury prevention action plan.

I would like to talk specifically to clause 229, “Approval of codes of practice”. I am assuming that a code of practice is a series of points that together basically lay out a blueprint to keep workers safe. If we took, say, an industry such as the meatworks or the freezing works—and I think in particular of the freezing works up north. Within that freezing works there are a number of different roles from administrative roles to people out in the stockyards, to people who actually give a beast the lethal stun, and through to the butchers, the people who skin it, the boners, and everything. So there will be different roles within a single industry, and I am wondering whether the Minister in the chair, the Hon Nicky Wagner, could answer the question: do each of those particular roles have different codes of practice to ensure that those workers are kept safe?

I see that it says in clause 229(1) that “The Minister may—(a) approve a code of practice developed by the regulator for the purposes of this Act; and (b) amend or revoke an approved code of practice.”, but the Minister may approve or revoke or amend only if he or she is satisfied that it has been amended or revoked or developed “by a process that involved consultation between—(a) unions; and (b) employer organisations;”. I think of the particular freezing works up north where the employer organisation absolutely hates unions, and it is absolutely opposed to anything the unions do. It does not want to listen. If there is any form of negotiation, it just likes to walk away from those negotiations and basically leave the unions and the employees dangling. So that is just one point there that the Minister may approve, if there has been consultation.

However, if we move to clauses 229(5) and 229(6), basically the Minister is then able to make amendments without any consultation. It is basically saying that if a code of practice “corresponds, or substantially corresponds, to a code of practice…”, then “The following may be approved by the Minister without carrying out the consultation required …”. I would like to know what “substantially corresponds with” means. Are we talking about 99 percent? Is that a substantial corresponding? Or 95 percent, or 80 percent? Is it just a majority? So what does a code of practice that substantially corresponds to another code of practice actually mean?

The Minister is able to make any minor or technical amendments to an approved code of practice on his or her own undertaking, and, yet that code of practice, as I have said earlier, needs to be developed in consultation with unions and employers. So to me it is a bit disjointed that in one case there needs to be consultation around the development, the approval, the amending, or the revoking of a code of practice, but on the other hand, further on in that same clause, the Minister is able to make, basically, unilateral decisions around that code of practice.

Clause 229(6) says: “If the Minister approves any amendment in accordance with subsection (5)(b), the regulator must make reasonable efforts to notify any affected persons or their representatives of the amendment.” But that is after the fact, while I believe that there should have been discussion, dialogue, or consultation before the fact, before the Minister makes those changes. As I have said, I believe that those two subclauses in clause 229 are a bit disjointed, a bit out of sync there. It would be good if the Minister could just clarify exactly why it is that in one instance the Minister must listen to consultation between the—

I am speaking to the proposed amendments to the Health and Safety Reform Bill and, in particular, to elements on Supplementary Order Paper 108. I just want to run us through a line in there that I hope, when this legislation is implemented, the Government actually takes note of and acts on. I ask the Minister in the chair whether the Government will actually get in and look at the issues of pesticides and worker safety around pesticides.

I will start with clause 215(2) in Part 5, which says: “The medical officer of health must, as soon as practicable after receiving the notification,—… (b) provide the regulator with the following information: (i) the name of the person who suffers or suffered from the notifiable disease or injury caused by the hazardous substance;”—just think pesticides. I am referring to this because, in 2009, Massey University showed that there was a big increase in leukaemia among horticulture workers. Women, in particular, had, I think, a 3.4 times incidence compared with the general public due to their work exposure. That was in 2009, just after this Government got in, but I see nothing happening about that.

Just sort of rolling on through, in clause 217 there is the issue around the funding levy. It did concern me, when I heard the debate on the different risk level between worm farming and other agriculture, about what the motivation was around some agriculture, and I think in this instance of dairying and beef not being included in the risk level that I would have thought was appropriate. There is a high, high use of pesticides, including herbicides such as glyphosate, which the World Health Organization has just said is a probable carcinogen. When are we going to get those lines of inquiry to see what is happening and to see why we are getting such a high incidence of cancers in our communities, and when will we then look at the workers?

The CHAIRPERSON (Lindsay Tisch): Order! The member must—

Sorry—I said “you”, did I?

The CHAIRPERSON (Lindsay Tisch): No, no, the member—just sit, please. I am on my feet. The member will sit, please. We are not talking about what other inquiries there may be in terms of hazardous substances and glyphosate, or whatever. You can mention it, but just stick to the content of the bill.

Thank you, Mr Chair. Yes, so I am looking at the funding levies and hoping that we will see some changes to ensure that the appropriate level of levy is there, relative to the risk that is in that workplace, and the workplace, as I say, needs to be considering those pesticides and herbicides that we are finding out more and more about.

In clause 218C, it says: “(1) A person must not use plant or substance at a workplace if—… (b) the plant or substance or its design is not authorised in accordance with regulations.” We need to be ensuring, and the Minister will have a major role in ensuring, that the regulations are appropriate to that risk. That includes, obviously, safety gear and the rest.

Under the regulations, in clause 221(1)(e)(i), we have “regulating the storage, tracking, and handling of plant, substances, or structures:”—so it is the handling of those substances and the tracking of them. The reason I bring that up is that I am thinking that through this bill it might be that the Government does track the level of use and the volumes of use of some of these substances that will be a risk to the workers and the communities near the operation.

Popping over into clause 221(1)(e)(iii), it says “regulating the examination, testing, analysis,” and so on. Testing in this country seems to be lacking as well, and I am hoping, again, that we will actually see some improvements through this bill when it is passed.

Under clause 222, “Regulations relating to hazardous substances”, in particular—and I will go straight down to paragraph (a)(v), which says “for substances with toxic properties,—”. Then it says, in paragraph (g), “prescribing systems for tracking hazardous substances, including requirements that—… (ii) the quantity of the substances be recorded:”. We have no record of the amount of pesticide being used in our workplaces, in our fields, in our farms, and in our forests, and yet we have a large amount of disease and illness that, more and more, is being connected with that.

So my point is that when this bill, no doubt, goes through—albeit our opposition to so many aspects of it—there is a great opportunity for the Minister to be ensuring that it is used in its fullness to protect our workers and communities from the pesticides in there. As I say, the science is there. We know the risk is there, and, unfortunately, a lot of what we have been calling PCBUs, or persons conducting a business or undertaking, are allowing staff to be putting out chemicals that they would not put out themselves—it suits them not to do it themselves. And, of course, we need to be educating those staff and workers, and making sure that the regulations are here to support that, to make sure that the right gear is being used.

But, ultimately, we need to be doing the tracking that Part 5 allows for, which is the measuring of volumes that are being used. We need to be really respecting our workers, the people in agriculture and horticulture and forestry, and ensuring that they are not actually being exposed to these chemicals, which we know are affecting them. I want to see through this legislation that those chemicals are being measured, that illness is being reported by the medical officers, as this legislation can allow for, and that we are starting to analyse what is going on in those workplaces. Thank you.

I move, That the question be now put.