Third Readings

on behalf of the Minister for Workplace Relations and Safety: I move, That the Health and Safety at Work Bill, the Accident Compensation Amendment Bill, the Hazardous Substances and New Organisms Amendment Bill, the Employment Relations Amendment Bill (No 2), and the WorkSafe New Zealand Amendment Bill be now read a third time. The Government is committed to improving health and safety at work. This legislation is an important part of that commitment and will play a major role in helping us to meet our target of reducing New Zealand’s workplace death toll by 25 percent by 2020. But robust and effective legislation is only one part of this. We all need to change how we see our involvement in and responsibility for work health and safety to truly have a lasting shift in our safety culture.

The legislation delivers a system that gets the balance right, focusing effort on what matters by ensuring critical risks are managed while reinforcing proportionality. What businesses have to do depends on what is reasonably practical, given their risk and their level of control. The legislation recognises the complexity of modern working arrangements, made up of diverse workforces. Moving away from the narrow employer-employee focus, this legislation ensures that everyone, irrespective of their roles within the workplace, has an appropriate level of obligation to make sure their health and safety and that of others is not adversely affected by the work.

This begins with the person conducting a business or undertaking (PCBU), who must do what they reasonably can to help keep their workers and others affected by their work safe and healthy. In practice, duties can overlap and PCBUs need to work together, doing what they can within what they are able to influence and control, to take action that is reasonable and proportionate to the risks. This does not mean duplication of effort. Collaborative approaches will act to improve health and safety and have high potential to drive improvements in productivity.

Separate from the PCBU’s duties, officers of a PCBU must exercise due diligence, taking reasonable steps to ensure their PCBU complies with their duties and obligations. Unlike the current law, officers cannot be made liable for their PCBU’s failure. Rather, officers are liable only where they fail to perform their own due diligence duties. The legislation makes it clear that officers will be people holding specific positions, such as company directors and those who have a senior governance role, allowing them to exercise significant influence over the management of the business. This is appropriate. One of the key changes this legislation will help to bring about is a positive health and safety culture. It is those senior leaders who have the real ability to influence the health and safety direction of an organisation, and they should. Officers can ensure the PCBU proactively manages and addresses health and safety and how the business operates.

The legislation also takes into account the officers’ roles and responsibilities in the business when determining the extent of their duties. Workers and other persons at the workplace also have duties. They will be required to take a reasonable degree of responsibility for their own health and safety and ensure that they do not adversely affect the health and safety of others.

Changes have been made to the legislation to ensure that volunteering, which plays a large and important role in our communities, is not negatively affected. The change means the coverage of volunteers will remain as it is under the current law. Yet the legislation continues to ensure appropriate protection for everyone, including volunteers, from the risks associated with the work of a PCBU. Community-purpose volunteer associations that do not employ anyone will continue to be excluded as a PCBU under the legislation. As under the present law, volunteer organisations that do employ people will have duties to those workers and in relation to the work that the organisation does. A distinction between volunteer workers and other casual workers has also been made, yet this does not mean that casual volunteers are not covered by the legislation. PCBUs have an enforceable duty to ensure, so far as is reasonably practicable, that no one is put at risk from the work of the business. This includes casual volunteers.

The revised legislation also provides greater certainty for parties that manage large areas of land so that they continue to provide public access, ensuring recreational and leisure pursuits can continue on as they always have. Under the legislation, a “workplace” is defined as a place where work is being undertaken or usually takes place, including “where a worker goes, or is likely to be, while at work.” This makes it clear that places are not necessarily workplaces all the time.

There has been much comment during the Committee of the whole House stage about changes made to the worker representation aspects of the legislation. Having health and safety representatives or committees was never mandatory. Workers had to first request them. Rather, what has always been and remains central to the legislation’s approach is that all PCBUs, irrespective of size or risk, have worker engagement and participation duties. All PCBUs must engage with their workers and must have effective, ongoing participation practices. This ensures flexibility and innovation. Businesses and workers are free to have practices that work for them. The legislation does not exclude small businesses that are not high risk from having to engage and have worker participation practices. Also, despite some reports to the contrary, it does not exclude these businesses from the main duties. These duties will continue to apply to all PCBUs. Part of a PCBU’s duty is to engage with workers on the development of worker participation practices so that all workers will be able to express their views and contribute to the establishment of their worker participation practices. An issue resolution mechanism also applies, and the regulator can still be contacted with any concerns.

I would like to thank members of the Transport and Industrial Relations Committee who considered this legislation, as well as those who submitted on it. Overall, the changes to the legislation have acted to clarify how the legislation works, providing an effective legislative framework in which everyone can recognise that they have part to play in responsibility for health and safety at work. Regulations and guidance are also an important element of this, and will ensure that a robust and effective system exists. I commend this legislation to the House.

After all the conjecture, after all the debate, after all the commentary, and after all the work that has gone into this legislation, the Government has gone out with a whimper, and that whimper was Paul Goldsmith. It is no surprise at all that the Government has put up that junior Minister to come and read out a speech prepared for him at the third reading of these bills because in the hands of Michael Woodhouse the legislation arising from the Health and Safety Reform Bill has gone from being a once-in-a-generation opportunity to rectify New Zealand’s appalling rate of death and injury at work to being a debacle, a farce, a shambles, and an embarrassment for the Government.

Before the Minister for Workplace Relations and Safety got his hands on this legislation, before the National MPs on the Transport and Industrial Relations Committee got their hands on this legislation, it was a good piece of legislation. It was based on evidence. It was based on international best practice. It was based on the recommendations of the Royal Commission on the Pike River Coal Mine Tragedy. It was based on the recommendations of the Government’s own Independent Taskforce on Workplace Health and Safety, and it was based on Australian health and safety law, which is has been working well for 10 years. It was based on things that work. It contained things that work. It was a piece of legislation that could have led the culture change that New Zealand so desperately needs, because with or without Pike River it was becoming screamingly obvious that National’s ideology of deregulation was failing New Zealand workers and it was killing New Zealand workers.

Compare New Zealand with any other developed market economy, and our rate of death and injury at work is appalling. It is shameful, and that is why the Government had to act. It introduced legislation that honoured the Pike River 29 and their families and all other workers who have needlessly lost their lives at work. That is what this legislation should be remembered for—a step change and an opportunity to acknowledge that for too many years we have been doing it wrong and we have been killing too many people. Instead it will be remembered for declaring that worm farming and lavender growing are high-risk industries, while sheep, beef, and dairy farming—which kill more workers every year than any other industry—and industries like building demolition are going to be defined as low risk. That absolutely undermines this legislation.

This legislation has no credibility in the public’s mind. It has no credibility in employers’ minds. People are utterly confused about what this legislation will do because the Government’s messaging has been muddled. It has had its own MPs out there fearmongering about what the impacts on business would be. People like Maurice Williamson, Judith Collins, and Chester Borrows have gone out into the public and actively undermined this legislation and actively undermined Michael Woodhouse. So employers and the public have no faith in this legislation. The Government has done an appalling job of working with employers to help them understand the implications of this bill for them. That is a result of rampant fearmongering from the Government. That is why we have got schools saying that they are going to rip up their playgrounds and stop sending their children on school camps, because this Government has failed to get alongside employers and help them to understand what this legislation is all about.

What the Government has done instead is that it has gutted some of the most important provisions in this legislation. We know why, and the numbers that we released today tell us quite clearly what this is about. If there had been just five more serious injuries on farms per year, then farming would have been defined as high risk. In other words, when the Minister went looking for where he should draw the line about what is a high-risk industry and low-risk industry, he drew it in just the right place to exclude farming.

💬 Hon David Parker: Don’t farms under-report?

Indeed. Farms do under-report. We know that WorkSafe has told us repeatedly that the rate of injuries on farms is dramatically under-reported. So, actually, if we knew the true figures, farming would clearly be high risk. There is no need for this ludicrous definition of what is a high-risk and what is a low-risk industry. This is a fix from a National Party that has been bent over by the farming lobby. It should never have had to include this.

The simple answer is this: let every worker in New Zealand have access to health and safety representatives if they want them. There is nothing onerous about this for businesses. If small businesses have good health and safety systems, if they are working with their employees, and if they have regular conversations about health and safety, it is highly unlikely that those workers in those businesses are going to put their hands up and ask for health and safety reps. But so what if they do, because having a health and safety representative is not an onerous thing. A health and safety representative is not someone in a high-vis vest with a clipboard, like some in the National Party would like to believe. A health and safety representative is a worker who has specific, mandated responsibilities for health and safety. Their everyday job is to be an employee or a worker in that business, doing that business, knowing that business—knowing it inside out and knowing what the risks are and being able to identify those and to work with their employer to improve the health and safety systems in their workplace. What is so onerous about that? Why is it that this became the flashpoint for this legislation? Why is it that that Government listens to the employers who do not want to change, who do not want to improve practices, and who do not want to kill and maim fewer people in their workplaces? Why did it listen to them? Why has this become the flashpoint for this legislation? Why has the National Government and the Minister, Michael Woodhouse, allowed this legislation to be so undermined over such a ridiculous issue?

The simple fact is this: we should trust employers and workers to be able to figure out what works best for them. If having health and safety representatives is what works best for them, then we should say: “Go for it. You can have them. You can ask for them, even if you’re in a small business.” But, instead, that choice has been taken away from people working in small businesses by the so-called party of choice, the National Party. It does not get it. Improving health and safety, improving workers’ rights, and improving pay and conditions for working people just is not in the National Party’s DNA. So when push came to shove and a call had to be made, was it going to support working people or was it going to support fringe employers who do not have an interest in health and safety for their workers? The choice was easy for that Government; it went with the rogue employers, not the working people and not the mainstream employers who came and submitted to the Transport and Industrial Relations Committee and said the legislation was in good shape as it was.

This is a mess that never had to happen. We had good legislation. It could have been made better and more robust at the select committee, but, instead, because the National Government has pandered to special interests, this legislation has been undermined, the public has no faith in it, and the public has no faith in the Minister, Michael Woodhouse, or in this Government to secure working people’s rights, to keep them safe at work, and to deal with New Zealand’s appalling rate of death and injury at work. The National MPs should hang their heads in shame.

I am pleased to point out that even in this past year we have seen some dramatic improvements in the severe injury and loss of life in some of the industries that we would consider to be particularly high risk. One of those is forestry. We have also seen a significant reduction in workplace injury and fatalities in the area of agriculture. All of that goes to show us that even discussion around this subject has created a change of thinking and a change of practice, which is, essentially, what the legislation arising from the Health and Safety Reform Bill is about: to change the way people think. It is not just about ticking boxes; it is about changing people’s attitudes, their behaviours, and their interactions. When I talked to the Business Leaders’ Health and Safety Forum executive, when they wanted to know where the bill was, of course I could not tell them, because it was with the Transport and Industrial Relations Committee, but they conveyed to me that their bottom line, the issue that they felt was incredibly important, was worker engagement and participation. We have lost the message of that in this big debate just around health and safety reps.

I know that health and safety reps are important. I am not denying that. When we have workplaces that have over 20 people, the complexity of relationships and information and engagement tends to show us that having somebody coordinate is going to be beneficial. When there are high-risk industries with higher complexities and difficulties around managing the health and safety regime and issues, then that person is going to be beneficial. But there are businesses and workplaces and there are sole traders where that position does need to be there in order to develop and have a successful and effective health and safety regime. It is important for us to understand that the most important element of this new regime is worker participation. It is the top-down, bottom-up engagement between persons conducting a business or undertaking and the workforce, and anybody who enters that workforce, that ensures that across the board there is engagement, understanding, discussion, decisions, and the identifying of hazards and risks. That is the most important thing.

When the previous speaker, Iain Lees-Galloway, said that the bill that came to the select committee back in March 2014—quite some time ago—was in great shape, well, I would probably disagree with that. I know that the issue that Labour has been particularly activated on is the issue around health and safety representatives. That is only one particular area of amendment this legislation has seen from the original piece of legislation. I, like many members of this House, have seen bills come to this place where, especially in the second reading, we have seen a commentary of all the changes attached to the bill. Most of those commentaries run for five or six pages; the commentary on this bill ran to 30 pages—30 pages of amendments and change. One of those amendments was around health and safety representation for those businesses with fewer than 20 employees that are low risk. So I would say that this bill came to this Parliament—yes, and it was embraced and there is a strong commitment to it—quite raw. We needed the process of receiving many submissions—and over 105 oral submitters came to the select committee—over the space of probably a year, because there was an election between the process of receiving this bill into the House and now this third reading. We listened to people. We did not always agree, and certainly across the House we have not always agreed, but there has been a lot that we have agreed on. There has been a lot that we have talked about and discussed, I believe, in good faith. We have adopted amendments into the legislation from the Opposition. It has not been political—

💬 Sue Moroney: That’s not true.

Not as many as the Opposition would like—yes, granted. But we have certainly done that.

I would say that with the support of the officials—whom I believe did a great job, and I want to acknowledge them here today—I believe that we have worked very, very hard for the workforce and the public of New Zealand. I know we have been accused of watering down this and undermining that, but, I think, with good faith we have certainly worked our best and our hardest to get a regime that is workable, and that is going to work for every workplace and every size of company, whether they are high risk or low risk. In regard to the classifications, they are going to go out for consultation. I am sure there are going to be changes—I am sure there are going to be changes. They are not cast in iron. So for those sorts of concerns that people have—there is still opportunity for those to be reviewed. I would just like to say thank you very much to all members of the committee, to my colleagues here, and also to colleagues across the House. Thank you for the hard work that you have done in bringing this legislation to where it is now. Thank you.

When it comes to health and safety at work, when corners are cut people die. This Government is cutting corners with this law. People will die. It is as simple as that. People will die because that Government could not help itself—it could not help itself. In the face of the evidence from the royal commission, in the face of all of the hard work that had been done by its own independent task force that it had put in place, it still could not go through with putting the very best protections in place for working people. This bill in its third reading shows the National Government reverting to type—absolutely reverting to type.

When this bill came into the House for its first reading it had consensus right across Parliament. That is highly unusual, but everyone—everyone—put politics aside because we believed that we wanted to do the very best to protect people in their workplaces. So that is where we started from. But through the process National clearly decided to put politics before people. It clearly made that decision.

I was on the Transport and Industrial Relations Committee, which heard this piece of legislation. I saw the moment that politics entered the room. I saw that precise moment. In fact, I did a tweet. I did not know at the time how forward-looking that tweet was, but I tweeted something like: “Whoa, Hurricane Judith just entered our select committee room. She caused a storm, and then she walked out and calm was resumed.” That is, effectively, what it was like. That is exactly what it was like because Judith Collins, who was not actually a permanent member of the committee, came on temporarily, saw what the select committee was doing—its very good work in developing a comprehensive law around health and safety—and started attacking the Minister, started attacking the officials, and had a go at everyone in the room.

Then the next thing we know, National is starting to back-pedal on putting the very best provisions and protections forward, as recommended by the royal commission and the independent task force. We know that National has decided to put politics ahead of the safety of people at work, because it is absolutely obvious what happened next. The decision in the National caucus room was to try to remove health and safety representation for groups of workers in their workplace.

I want to spend a little bit of time just reminding people what we are talking about here. We are not talking about a business having to spend any more money employing any other person. We are not talking about a business having to get a health and safety specialist in, or a consultant in, or any of those things that businesses are actually busy doing right now because of the hash that this Government has made of that bill. We are talking about workers, if they wanted to, deciding to elect one of their own—someone already doing the job, someone already paid by the employer to do the work, who understands what goes on day in and day out in that workplace—to be elected as a health and safety representative and then for that person to get 2 days’ training so that they could understand what their role is, understand the legislation, and ensure that the workers had a voice when it came to their own health and safety in that workplace. What is so hard about that—what is so hard about that?

But here is the worst thing about this story. All the international research and evidence says that this is the real key to it: getting genuine worker participation where workers can have a voice in what goes on in their workplace. That is the key to good health and safety in the workplace. But this Government could not help itself. It could not help itself, and it got rid of it. But it did not get rid of it for everyone, so we are reduced to arguing about who is deserving of the very best protection at work and who is not. What that Government decided was that people who work in workplaces with fewer than 20 employees are not deserving of having the very best health and safety participation in their workplace. That is what it decided.

But then it made another gaffe—it made a further gaffe. The Government decided that, oh, this might look pretty bad for it, because a lot of the workplaces with fewer than 20 employees are actually in our most dangerous industries—forestry, mining, contracting-out companies, and farming. And so it decided: “Well, we won’t. We’ll make sure that the high-risk companies, no matter how many employees they have, will have to have a health and safety representative if the workers ask for one.” That is where it really started to unravel, because in the Government’s determination to make sure that its support base in the farming sector was excluded from this requirement, it went about manipulating the data and finding a figure that worked for it so that it could find a threshold that excluded farming. Well, what a shambles, because in doing that it ended up including a whole lot of areas that clearly were not very high risk at all, and excluding a whole lot of areas that were high risk.

The Government made a complete shambles of it. It is the Government’s own fault and no amount of consultation is going to fix up that problem, because what went wrong is that it put politics before people—it put politics before people. No amount of tweaking that bit of nonsense is actually going to make a blind bit of difference to the problem that exists from the outset. Everyone in every workplace—no matter what their industry, no matter what their occupation, no matter how many people are employed in that workplace, no matter in what part of New Zealand—should have the best access to health and safety in their workplace. That is what we should have learnt from the Pike River mine situation.

During the course of the debate I was criticised for daring to bring a replica urn into the Chamber while we debated the issue, because some of the members opposite believed it caused them offence. They felt offended at having a replica urn in the Chamber while we debated this issue. I acknowledge that they felt offended, but imagine the offence caused to those families who have lost their loved ones, who believed that this legislation was going to fix the problems so that no other families would go through what they had gone through. Imagine how offended they felt. Imagine how offended they felt as they sat up here in the gallery and listened and watched that Government weasel its way out of providing the best health and safety representation possible for workers in workplaces. That is genuine offence—not having to debate an issue because a replica urn is in the Chamber.

I am wearing today, as are many of us, a yellow ribbon. I hope that does not cause offence to anyone. This is the yellow ribbon that actually reminds us about the 29 men who died in the Pike River mine. I once saw the Prime Minister wearing this yellow ribbon—around the Pike River mine. I have not seen him wearing it in the last few weeks while we have been debating this issue, but he should have been, because this is a yellow ribbon that reminds us that those families want their men home. They want to bring their men home, and it is this yellow ribbon that symbolises that.

There was a once-in-a-lifetime opportunity to get this right. When I spoke at the first reading on this bill, I recalled speaking last year on a piece of legislation that this House passed that we did all agree on, I believe. It was designed to regulate the mining sector, and it has Pike River mine in the name of that Act of Parliament now. I remember standing up at the time and saying: “Please let us never forget. We’re all in agreement now, but please never let us forget that deregulation at work kills people. Never let us fall into this trap again of thinking that deregulation is a good thing in our workplaces, because it kills.” I thought at the time that I was saying to Parliament: “Look, you know, let’s not have amnesia in a decade’s time. Let’s not get it wrong as time goes on.” I am gobsmacked that, just a year later, we seem to have forgotten the lesson already. This bill could have been so good, and, sadly, the Government has trashed it.

This legislation is very good. This legislation is already leading cultural change in the street, in the workforce, and in our communities. This legislation is the step change that New Zealand has been looking for. And why is that? It is because it involves everyone. The responsibility for the health and safety of the workers is the responsibility of everyone, from the person conducting a business or undertaking (PCBU)—the boss, the officer—but, most important, it is the responsibility of the worker. That is all outlined in the legislation.

A lot of discussion has been on clause 65(3) of the Health and Safety at Work Bill, which is about the health and safety representative. That has been discussed, but I would like to reassure the Opposition that there are a lot of other clauses in this bill that should give strong assurance that the health and safety of workers is a priority.

Clause 30 makes it compulsory—these are obligations, these are not options—and obligatory to take action to ensure that the PCBU must ensure the health and safety of the worker. Clause 39 outlines the obligation of the officers to turn their minds to health and safety. Clause 40 outlines what workers must do. Workers must turn their minds to health and safety for themselves and for their co-workers. Clause 61 outlines what a PCBU must do. They must engage with workers. And clause 64 tells us what a worker must do. They must participate in the health and safety of themselves and of the workplace.

Clause 86A lets small businesses create committees, whether they are five people—it does not matter what size the business, they are able to create a health and safety committee. And there is a resolution process. If there is a rogue employer, there is a resolution process in this legislation. So I would like to reassure the House that this is a game-changing, step-changing piece of legislation. I commend it to the House.

I rise to take a call on the third reading of legislation arising from the Health and Safety Reform Bill, which, of course, has been split into five parts. I do so with a heavy heart because the reform that was so badly needed is not realised in the legislation that we will be passing today.

The starting point for this bill was that we supported it. In fact, all of us in this House supported it because we agreed that we had had 20 years of the previous regime, and there was cross-party agreement that the law needed to change. It needed to be upgraded because our statistics are pretty appalling. We have had a woeful health and safety record in this country. Just under 300 people have died on the job over the last 5 years. According to the 2013 Independent Taskforce on Workplace Health and Safety, the annual death toll is around four in every 100,000 workers, and around 500 to 800 more people die every year as a result of chronic diseases caused by the conditions of their workplace.

In addition to that, ACC receives 200,000 claims annually from workplace accidents. New Zealanders are twice as likely to die in a workplace than Australians. They are three times more likely to die in a workplace here in New Zealand than people are in the UK. The stark truth is that the citizens in those countries are safer at work than the citizens in our own country. As a result of this appalling track record, we agreed with the Government and its ambitious targets that it set in 2012 of reducing serious harm accidents and fatalities at work by 25 percent by 2020 and, as an interim measure, by 10 percent by 2016. But the question is: does this legislation deliver that? Will it deliver that? I remain totally unconvinced that it will.

Behind all these numbers are the people—the people who are sons, daughters, husbands, lovers, mothers, and dads. They are the people who went to work one day and did not come home. They are the people behind the numbers. And then there are the families of these people. In the last week or so we have met some of them. They were brave. They came here and they sat in the gallery, and their grief was palpable. Yes, sometimes it really did feel like a tangi, and rightly so, because these families came to this House to ask that the legislation that we are about to pass today be strong enough to prevent future deaths and injuries. They came with their raw grief, saying that if we could make safe and healthy workplaces, if we could make the law stronger and keep people safe at work, then their loved ones would not have died in vain. That is what they were asking for.

We heard from the Pike River families. We heard from Kath and Bernie Monk, who wanted this Government to keep at least one of its promises. The promise that they wanted it to keep in this instance was about the recommendations from the Royal Commission on the Pike River Coal Mine Tragedy, which claimed the lives of those 29 men at the Pike River mine. Both that royal commission and the 2013 Independent Taskforce on Workplace Health and Safety said that to improve health and safety culture we need businesses to show leadership, we need a strong regulator for enforcements, and, crucially, we need a system where workers are able to participate in their own health and safety systems in the workplace. This is a sound recommendation, and this last recommendation about workers’ participation is backed up by absolutely every piece of international evidence that you can find.

The main gap in this bill is that, of course, it applies to some people but not to others, to some businesses and not to others. People who work for small businesses with fewer than 20 workers do not have the right to elect a health and safety representative, let alone a health and safety committee. The thing is, workers in small businesses are 35 percent more likely to have accidents, according to the department of labour. Many of the men who died at Pike River worked for small businesses, and the department of labour figures do show that 97 percent of New Zealand’s businesses are small businesses. Some of them may be deemed to be low-risk industries, and these are the workplaces where the workers will be excluded from asking for and having their own health and safety representative.

We have this whole ridiculousness about what is a low-risk and what is a high-risk industry, with, you know, minigolf, butterfly breeding, and worm farming being high risk, and dairy farms, cattle farms, and sheep farms being low risk. In agriculture alone over the last 5 years there were 104 deaths.

There are 28,000 people working on dairy farms in this country, with most of the farms likely to have fewer than 20 employees, and these people are not entitled to elect a workmate designated to look out for their health and safety. And why is that? Because, as we were ending the select committee process, which was a very long process, and after we had heard the hundreds of submissions on this bill, National played politics. It was lobbied—or at least one of those members was lobbied—and caused a big hissy fit. It was lobbied by, I do not know—a small minority of small businesses. We do not know who it was lobbied by, but, no doubt, whoever it was was worried. They were worried about what it might potentially cost small businesses, and, I do not know, maybe they were worried about rampant militaristic unions suddenly running rampant through their doors. I do not know.

But the thing is, the existing law, the law that we have had for the last 20 years, the Health and Safety in Employment Act, had already empowered people in small businesses to elect a health and safety representative if they wanted to. And guess what? The sky did not fall in; there was no opening of the floodgates. So those businesses that lobbied the Government’s politicians—I really have to ask them why. What were they trying to hide?

Where worker participation is outlined in this legislation, essentially it is participation on the boss’s terms, and I predict that this legislation will not deliver the change needed in the culture around health and safety—that change from a “she’ll be right” attitude to one where health and safety is front and centre of the minds of every worker in that workplace. Given the climate that we have here at the moment—where some people feel lucky even to have a job, where they will not rock the boat because they may lose their job within 90 days for no reason at all, or have their hours cut or even be rostered off—workers in this environment are unlikely to raise a health and safety issue on their own terms because, essentially, they need to raise it with the boss’s approval. When the Greens get the levers of Government, we are going to roll back these changes so that there is true democracy at work and workers can raise health and safety issues without fear of punishment.

Finally, one of the key roles of Parliament in a modern democracy is to be the arbiter between competing interests in society. In doing this, a Parliament must carefully consider these interests and must ultimately be guided—we have to be guided—by ethics and morality, and there is no morality in depriving some citizens of the best protection for their health and not ensuring their safety at work. No ethical basis exists for that. The nurses in our hospitals, our cleaners, our caretakers, the fishers who brave the seas to bring the food back to our plates, and the foresters who harvest the wood so that we can build our houses deserve much better, and with this legislation we have failed them.

Today I have removed my yellow ribbon, which I have been wearing for a week, and put on a blue ribbon—partially because it is a bit of a sad day, I think, for New Zealand, with this legislation arising from the Health and Safety Reform Bill about to be passed in the House, given the numbers that the Government has in support to put this through. Also, it is partly to acknowledge the importance of being aware of prostate cancer. We are wearing the ribbons a little bit early to think ahead and, to avoid a Freudian slip, I think it is important to go for those annual check-ups and make sure you keep yourself safe. It is a very sad day.

The Transport and Industrial Relations Committee—I have really enjoyed the last 11 months working with a number of colleagues. It was great that Judith Collins removed herself and went to another select committee. I thought that we got more work done and it was far more productive. But I think many times we left that chamber and those discussions a little bit bewildered and confused—and certainly I was—about the lack of common sense that the Government was showing, a little bit of ignorance perhaps, around what constitutes health and safety.

I have heard from only a few members in the Committee of the whole House with regard to what makes up New Zealand’s workforce. Mr Bailey, I think you summed it up beautifully when you said that 97 percent of New Zealand business is actually made up of small and medium sized businesses. That works out to be around about one-third of the entire workforce of people employed in New Zealand who are employed in those small and medium sized businesses—30 percent. The reality is that 30 percent of people under this new legislation will not have any new safety conditions imposed on them, and there will be no ground-up culture change within those businesses to actually help those businesses look after their workers.

In actual fact, if we look at the existing bill as it sits at the moment, had we gone back and had the foresight to adjust and change that legislation, we would actually see that it needed some serious tidying and titivating, and the reality is that we would get better engagement from workers, and we obviously need some better funding to ensure that we have those health and safety inspectors. I think that this Government has sold itself short. It is a yeah, yeah, nah kind of new piece of legislation. It is same-same but different in the reality of things.

Mr Ian Lees-Galloway, I have to say it was a very, very powerful speech and I absolutely support where the Labour Party has been, although I would have to give you a bit of a smack and say that the reality is that you are talking about harm minimisation in the workplace—

The ASSISTANT SPEAKER (Hon Trevor Mallard): Order! Suggesting that you might give me a smack is probably not a good idea. It has got a bit of history.

I do apologise, Mr Assistant Speaker. I was of course talking metaphorically, and I certainly was not referring to you, Mr Assistant Speaker. The reality is, though, that there was an opportunity for the Labour Party members to stand up and support one of our amendments—a very powerful amendment—which was to reduce the numbers of workers required in a workplace in order to get engagement for a health and safety representative. There was an opportunity to reduce that from 20 workers down to 10 workers, which would have had a massive impact on those small and medium sized businesses and would have actually got it down to only 10 percent of the working population who would not have been eligible for a health and safety representative. Yet there was no noise—there was no noise from this side of the House or from the Greens to support that balanced situation.

Then again, I would like to commend Labour for its support of our amendment in relation to getting the Government to front-foot the cost of health and safety representatives. We in New Zealand First understand that the right way to get proper engagement and a culture shift from the bottom up is to have those health and safety representatives. But there is an ever-increasing cost of running these small businesses that I think we could have avoided by simply getting the Government to fund the cost of the courses for health and safety representatives and by covering the travel and the fair and reasonable costs associated with their training. In fact that is a minor cost, but front-footing it would make a huge difference.

The intention of this legislation is to reduce the amount of fatalities—work-related fatalities—and harm in workplaces by 25 percent over the next 5 years. But why not by 40 percent; why not by 60 percent; why not by 100 percent? Why can we sell ourselves so short and be so short-sighted as to actually not think about what would make a real difference to all workplaces in this country, and set the bar so low that we think only 25 percent could be actually achieved? At the same time, we could achieve those much lower fatalities in our workplace. It does not have to be at the expense and the cost of small and medium sized businesses, which will be feeling the extra cost of compliance and the squeeze on them.

Let me run you through another one of our amendments on Supplementary Order Paper 110. This would amend clause 28 to remedy the issue around personal protective equipment. Under current legislation and under this new legislation, no levy can be imposed on a worker for their personal protective equipment. Again, we absolutely commend that. They should not have to cover the cost of their personal protective equipment. But, again, we say: what about personal responsibility? What about putting an amendment in to ensure that those workers look after that equipment? That is not too onerous—to expect a worker to look after their safety goggles, hats, work boots, and high-vis jackets, and if they do not, a small levy or charge to be imposed to cover the cost of that personal protective equipment. But no, the National Government did not support our amendment. It was gone into the ether, and that, I think, will come back in spades against this Government with this new legislation.

Again, when I look down at the number of amendments that we have suggested—I would like to just go through those. The amendment to remove clause 29AA—currently this will have a massive effect. Clause 29AA absolutely removes the right of an employer—or a PCBU, if you want to use your acronyms—to actually protect themself on a financial basis. The reality is that if you are going to be seconded on to a board, where you might have 200 or 300, 500 or 600 staff—

The ASSISTANT SPEAKER (Hon Trevor Mallard): Order!

Mr Assistant Speaker, I apologise.

The ASSISTANT SPEAKER (Hon Trevor Mallard): Yes. The member has been here for some time now, and I think he has just got to get out of that habit of bringing the Speaker into the debate.

Thank you, Mr Assistant Speaker. I shall refrain from that term. The reality is, if you can—you nearly got me again, I tell you. I can see you. Right. To remove clause 29AA would make a huge difference, by making it possible to indemnify a board member who sits on a board. To have that clause there now makes it very difficult for, and very onerous on, people taking on those responsibilities of large organisations like council-controlled organisations. That, I think, should not be in this legislation, and it is one of the things that makes it very difficult for us.

In fact, we were so close to supporting this. We thought that if we could get to the point where some of these amendments were agreed to by the Government, we would actually be 100 percent behind this bill, but we might as well be a million miles away. We are so far away because we have missed out on so many of the positives that we could change.

The next clause that I come to is clause 43. This is going to largely affect all of those spouses—husbands and wives—and partners in a farming situation. In the situation where a husband is out on the farm and has an accidental death and loses his life—it might be because of a quad bike or it might be because of a tractor; we do not want to go into the details—under this new legislation, the wife, as a person conducting a business or undertaking (PCBU) and as a worker, will be legally culpable and could be up for some very hefty fines. Ultimately, this legislation could leave the spouse without a farm, as well as be left without a husband. This is one of the very important unintended consequences of this bill that we tried to remove by amending clause 43.

Then we go down the page on Supplementary Order Paper 110 to the insertion of clause 65AA, which we have spoken about. Clause 65AA was to cover the training costs. We said that if there were going to be no costs incurred on the employer, then we would support there being no limit on when there can be engagement with a representative, and had it got through we would have supported Labour in terms of 100 percent engagement.

Clauses 65 and 66 are about the work groups. This is a minor amendment. In a situation where you have a disagreement between a worker and the boss, and they cannot decide what is going to constitute a work group, we have simply said it would make sense to get an independent arbitrator in to actually determine what that work group is going to be, and that arbitrator would be WorkSafe.

Just to finish off, I would like to say that we are also very concerned about the unintended consequences of well-intentioned voluntary acts. Say you have got a farmer. He has just finished off for the day. He has clocked out and he is heading home, and on the way home he sees some animals on the side of the road, and he wants to get them back into a pen. In the event of an accident occurring with the stock running on to the road and causing an accident, or vice versa, we want to protect those small businesses and those farms. Unfortunately, we cannot support this legislation in the way it sits in the House today.

It is my pleasure to take this very short call on the health and safety reform legislation. This legislation, when it is, hopefully, passed, is the framework for a step change in health and safety. The principles of the bills mean that everyone needs to engage in health and safety, promoting a top-down, bottom-up approach to integrate health and safety into their businesses. But this is in balance. It is acknowledged that there is not one size that fits all, that there are different types of organisations out there, and that health and safety needs to fit each business. In saying that, we want a step change, and we have put in place WorkSafe to work with these businesses so that they will put health and safety measures in place. But we do not want this legislation to be overly bureaucratic, either. We want innovation to continue and we want productivity to continue, but we want the step change.

To end with, I just want to acknowledge the Transport and Industrial Relations Committee, especially the Government members on this side of the House. We have had to sit here and listen to attacks in respect of our commitment to health and safety and in respect of our compassion and our motivation towards health and safety, and I want to say to the left that you do not know us. You do not know what has gone on in our lives, and we are committed.

The ASSISTANT SPEAKER (Hon Trevor Mallard): If the member will resume her seat—I think she has been in the House for as long as Clayton Mitchell has, and she should know that she should not bring the Speaker into the debate.

My apologies, Mr Assistant Speaker. I want to say that we—the Government members of the Transport and Industrial Relations Committee and the Government MPs on this side of the House—are committed to health and safety, committed to balanced legislation, and committed to health and safety moving forward in this country. With that, I commend these bills to the House.

Over the past 5 years I have stood often in this House to speak about the tragedy of Pike River and the reasons for it. I have laid the blame, fair and square, on the error of deregulation from the 1990s—the withdrawal of the State from ensuring worker health and safety, the dismantling of the underground coalmining regulations, and the abolition of the check inspectors. The Green Party has worked tirelessly to expose this systemic failure, the reasons for it, and we have worked to find solutions. We take some significant credit for the High Hazards Unit, for the royal commission of inquiry, for the independent taskforce, for the re-regulation of underground coalmining, and for the return of check inspectors. It is scandalous that it took all this time and the deaths of 29 men in the Pike River mine for these changes to occur. All of the Governments since the 1990s, I am sure, now must feel some sense of discomfort, even shame, that it has taken that long. None of those changes would have come naturally to this Government. It is against its political nature. It has made those changes only because it judged that it was politically not viable not to do so.

But the years have passed, and now we find that the legislation that is intended to overhaul the health and safety legislation, which underpins all of those things, comes back to the House for its final reading in diluted form. I do not know whether that dilution has occurred because the National Party’s donors and sponsors objected to the legislation in its original form. I do not know whether the reason was, instead, that there was a resurgence of the neo-liberal members of the National Party caucus. But what I do know is that the issue that we should be focused on in this House is not the worm farming and the minigolf—a farcical situation created by the National Party trying to carve out an exemption for its mates. Instead, what we should be focused on is the fact that the legislation that is being passed today in this third reading—

The ASSISTANT SPEAKER (Hon Trevor Mallard): Sorry, I am going to interrupt the member. It is a longstanding series of Speakers’ rulings that have indicated that members cannot allege that bills have been changed to please parties’ donors. The member has done that, and I ask him to withdraw that comment.

I withdraw it. What I am saying to the House today is that the issue that we should be focused on, as a House, is the fact that the legislation that will be passed today does not honour the right of all workers to a safe workplace. That is the issue that we should be focused on.

My colleague Denise Roche has already mentioned that small workplaces, in some situations, are more risky than large ones. Members of this House will know that in smaller workplaces the personal relationships between bosses and workers often create a situation where it is not viable for workers to raise their concerns. In those small workplaces the principle that the Government members have spoken about today and throughout this debate, of worker engagement and participation, is meaningless if their right to representation on health and safety is not honoured, as it is not in this legislation.

In 2011 I listed in this House members of the Government who had been members of the House back in the 1990s when the changes to health and safety legislation that I described were passed. I can tell you that the Government members in 2011 did not appreciate me doing it. Members of the Government benches in the 1990s spoke about balance, as, indeed, Government members in this debate today and throughout have been saying. That is the balance between the rights of employers and the rights of workers.

West Coast regional councillor Peter Ewen has written a book about Pike River, which he subtitled Death by Parliament. I have a sick feeling that at some time in the future an Opposition member will be standing where I am today, reading out the names of the members on the Government benches who are passing this legislation today. Thank you.

After the period in this country’s history, only 5 years ago, when there was a sense of unity around fixing issues of health and safety that led to tragedies like the tragedy we saw at Pike River, we now find ourselves in a situation some years later where that sense of unity and sense of collaborative purpose from this Parliament has been lost. It has been lost for a very good reason. Essentially, along the way, too many compromises of politics, compromises based on interest groups, and compromises that were ultimately unnecessary and could ultimately lead to harm have all found their way into this piece of legislation, and led us as a Parliament to lose that opportunity that had been borne out of what was an extraordinary tragedy. Perhaps that is why you see the symbolism of a Parliament that gathered together to share in the grief that those families at Pike River had so many years ago, to a situation now where, when those families come to Parliament, that unity seems to have been lost.

It is a regret, therefore, for the Labour Party, that we are unable to support this legislation. And there was a point where we thought it might have been possible. We supported the bill as it was introduced into Parliament. As my colleague Iain Lees-Galloway, who has worked tirelessly on this bill along with colleagues like Sue Moroney, said, it was a bill that was based on sound international evidence. It was based on a law that had demonstrated that it could work well in places like Australia. It was based on the recommendations of two really important reports—including the Royal Commission on the Pike River Coal Mine Tragedy and the Independent Taskforce on Workplace Health and Safety. It was built out of evidence we should have listened to in this House, and evidence that could have created a pathway for us to come to a collective cross-party agreement.

And it was an overdue piece of work. Unfortunately, workplace health and safety had become an area that was somewhat demonised. You would often hear minor abuses of health and safety legislation that made it sound like health and safety had this “PC gone mad” element to it. That is wholly unfortunate, because beneath all of that, people were dying in our workplaces. I feel particularly strongly about this. I have a family member, a wonderful relative of mine whom I love dearly, who works in the forestry industry. I fear for him, and I have talked to him about this situation that we have in New Zealand. He is vehement that we need change to protect the workers in that area.

So underneath all of this perception that had been built up over the years—unfortunately, for ideological reasons—that we had gone too far in health and safety legislation, deaths were occurring. People were being harmed in our workplaces. The time had most certainly come for us, as my colleague Iain Lees-Galloway has said, to take and make use of the opportunity of a lifetime—of a generation—for this Parliament to make changes that were lasting and that would make a real difference.

We saw, though, the National Party implode over this piece of legislation. What we saw introduced changed dramatically, we lost the ability to work cross-party, and all over what? Well, we saw, for instance, exemptions put in around small businesses. As soon as you create exemptions, you create inconsistencies. You create scenarios that do not quite make sense. Even from a small-business person’s perspective, inconsistences can be as problematic as just being compliant with a law that applies to everyone. As soon as you employ that one extra person, suddenly you are in. You are up from 20 to 21 and suddenly you are included, and you need to know a whole lot of extra additional information. Well, I can tell you now, as the small-business spokesperson for Labour, I speak to a lot of industry associations, a lot of small-business representative groups. Not one of them raised the issue with me about being concerned about having to have health and safety reps—not one. Yet the National Party carved it out unnecessarily—unnecessarily, in my view.

We have got a situation where agriculture exemptions and everything that has been canvassed in this House has created a mockery, and we did not deal with corporate manslaughter—another lost opportunity. We lost sight of our purpose around this health and safety legislation, and I share the absolute disappointment of my colleagues for that lost opportunity. But, more important, I share the disappointment of the families who have experienced failed legislation.

I just want to briefly touch on a couple of the key issues in this legislation. First of all, we have introduced a triumvirate of responsibility between the person conducting a business or undertaking (PCBU), the workers, and the other co-workers in the workforce. That is a powerful combination. Secondly, what we have done is we have set in train a very prescriptive process for engagement between the PCBU and their workers, although we have provided some flexibility for small businesses. Thirdly, we have learnt from the Christchurch experience, where we have got multiple PCBUs on the one site, and we have made sure that they consult, cooperate, and coordinate their activities on that one site. Fourthly, we have listened to the issue around farming and acted in a pragmatic fashion where we have put a boundary around each of the houses on those properties, and we have introduced a new concept around customary workplace. Fifthly, we have listened to the issue around volunteers, and we have excluded them from the provisions of the bill.

And, finally, we have imposed some additional requirements on WorkSafe to make sure it is very clear and transparent about the type of investigations it undertakes and to have it report back to everyone on those investigations that it has undertaken. I commend this legislation to the House because I believe it is a good piece of legislation.

I intend to address two issues, the first being the ludicrous change at the last minute to those workplaces where employees are not entitled to a workplace representative, and the second being the inappropriate provisions relating to trials that have abrogated the civil liberties of New Zealanders in a way that has been criticised by the New Zealand Law Society.

The first point, as has been said by prior speakers—the Royal Commission on the Pike River Coal Mine Tragedy, the special consultative group that the Government set up, and overseas practice all show that having worker representatives who have a right to call for a formal process in their workplace is a fundamental ingredient of safe workplaces. We know that we have got a very poor record in New Zealand of serious injury and death, and we know that a core recommendation of the royal commission and the consultative group was that that be remedied by having workplace representatives.

What are the media saying about the contortions that the National Party has put itself through? I want to read from today’s Dominion Post: “All workplaces, irrespective of their size and the industry they are in, should be entitled to ask for a health and safety rep.” Then they talk about the 20-person staff limit and the current definitions of what is high and low risk. They say: “There’s no logic to it and some of the defences of the exemption for dairy, beef, and cattle farmers have been ludicrous.” As my colleague Iain Lees-Galloway has already pointed out, the definition seems to be constructed deliberately so as to leave out dairy farming and cattle farming, and we know from evidence that I think is incontrovertible—no one has disagreed with it—that even those statistics are under-representative of the true rate of accidents on farms. So even if you take that into account, their ludicrous definition would be breached.

Then the idea that these farms are some sort of hayseed, unsophisticated, small enterprise is just wrong. These are multimillion-dollar enterprises. Dairy farms—the cows would be 750 kilograms, three-quarters of a tonne, the weight of a small car. As others have noted, no doubt, we have many quad bike accidents. We have electricity, electric fences, the means of powering those fences, electric boom gates to move the cattle along, large irrigators—there is a lot of dangerous equipment on a farm. And we have itinerant workers, and seasonal workers who are inexperienced, coming to these risks every year. A lot of the staff are working in workplaces where the owner of the farm is not there. It is quite often a sharemilker or another contractor who is conducting the farming operation. These are large, multimillion-dollar organisations with high risks, and there is really no case for them to be exempted. I think that is a woeful mistake in respect of this legislation. I am not going to say any more than that, because I think those issues have been well covered by others.

I do want to address in some detail the concerns of the Law Society, which I think have been somewhat brushed aside, in respect of the process that was introduced at the Transport and Industrial Relations Committee. We know that in respect of legislation that comes before this House, if there is something that infringes, or potentially infringes, civil liberties, the Attorney-General has to, under the New Zealand Bill of Rights Act, produce an assessment of it—the New Zealand Bill of Rights Act vet. That does not happen in respect of the changes that are made at the select committee or in Supplementary Order Papers that are tabled in the House during the Committee stage.

In this case, very late in the process, the Government, at the select committee, after submissions had been called for and had closed, introduced some changes in respect of the way in which trials would be conducted where there was classified security information involved. The Law Society was not told about it. The Council for Civil Liberties was not told about it. They were surprised when they found out about it. There was no mention of it in the second reading speech from the Minister for Workplace Relations and Safety. There was no mention of it by anyone in the third reading speeches today. There is a scant, two-line reference to it in the select committee report back, and it does not actually describe the nature of what has been done. The Law Society wrote a letter to the Minister on 21 August complaining about it. The society noted that this was, in its opinion, a breach of the New Zealand Bill of Rights Act.

I want to remind the House that the Act, at section 25, says that the minimum standards of criminal procedure include the right to a fair and public hearing by an independent and impartial court; the right to be present at the trial, and that is abrogated in some circumstances by these provisions; the right to present a defence, which is undermined by these provisions; and the right to examine the witnesses for the prosecution—all of which are absolutely basic rights set out in the New Zealand Bill of Rights Act. In addition, the Law Society points out that these provisions, which abrogate those rights, have been inserted without any public consultation, any right of submission, and no New Zealand Bill of Rights Act vet. It is true that there was a minor amendment to the wording that the Law Society had previously seen put in place by the executive, effectively, by Supplementary Order Paper just yesterday or the day before. But the effect of that is not to cure the problem.

The legislation as amended is torturous to read. I have read it 10 times. I am not sure what it means. I have spoken with Austin Forbes QC. He has read it a number of times, and he cannot make clear sense of it either. But what is clear is that the later parts of schedule 2A of the Health and Safety at Work Bill, which give instructions to the court to be able to hear certain types of evidence, without the accused and the accused’s lawyer hearing it or being present in court when it is given, have no meaning at all unless they apply sometimes.

So the Attorney-General cannot have been correct when he implied to the media—or this is what the media took from his comments—that the change meant that these were no longer problematic. It cannot be right, because those provisions sometimes apply. I know that Austin Forbes thinks that the effect of the change to new clause 1 of schedule 2A is that, effectively, where you have a proceeding that involves classified security information, although it is not saying it in that clause, the rest of that schedule applies. So it is not an exclusion of prosecutions from the rules in schedule 2A; it is just saying that it is subject to the provisions of that schedule.

The Law Society make the point that the breadth of evidence that can be covered is far too wide. If you are going to have a truncation of the normal rights to a fair trial, you should do it as narrowly as possible. I am not even convinced that it is ever necessary in respect of a prosecution under health and safety legislation. But let us assume for the moment that it is—which I do not accept—you should do it as narrowly as possible. The sort of information that comes within the definition of “classified security information” is far too wide and goes against the Law Commission’s recommendation, which says that in these cases you should really be dealing only with matters of national security, and that a distinction should be made between national security and broader notions of international relations or economic interests. I agree that we have not had the opportunity to have that discussion. This is very poor legislation.

For the Attorney-General to then criticise the Law Society and say that it was somehow misinformed and getting it wrong is, in my opinion, beyond the pale, and I do not think that the Attorney-General should have said those things. This is an inappropriate breach of the New Zealand Bill of Rights Act and of the ability of people to have a fair trial, and I do not think that we in this Parliament have properly protected that fundamental interest.

I also note that we have taken away from the court the general discretion to oversee this. If it is dealt with under the Criminal Disclosure Act 2008, the court has the ability to actually say: “Well, the police might claim that that should be confidential but we don’t agree.” That jurisdiction of the court has been ousted. It is wrong. It applies to the police, not just the SIS and the Government Communications Security Bureau. This is far too broad, it is wrong in principle, and I cannot see how it can ever be justified in respect of health and safety reform legislation.

This is great legislation, and I support it and commend it to the House. Thank you.

The question is that the Health and Safety at Work Bill be now read a third time. Those of that opinion will say Aye; of the contrary opinion will say No. [Interruption] Can I just remind members that I have to declare a result before people can ask for a party vote. The Ayes have it.