Health and Safety at Work (Health and Safety Representatives and Committees) Amendment Bill

Members, we come now to the Health and Safety at Work (Health and Safety Representatives and Committees) Amendment Bill.

Point of order, Madam Chairperson. I seek leave for all provisions to be taken as one question.

Leave is sought for that purpose. Is there any objection? There is none. The question is that Parts 1 and 2, and clauses 1 and 2 stand part.

Thank you, Madam Chair. Good to see the Minister of Agriculture in the chair, although, a bit like me, I presume he hasn’t had a lot to do with this particular piece of legislation.

Hon Damien O’Connor: Not this particular piece.

ANDREW BAYLY: Not this particular—I know he’s very knowledgeable about many things, but maybe not about the Health and Safety at Work Act.

So first question: in replacement section 62, inserted by clause 4, why is it considered that in a very small organisation that may have only two employees, or, in fact, only one—technically one—employee, why was it deemed sufficient that if that single worker believes that there should be an election of a health and safety representative, that process must occur? What was the rationale? I also understand that the issue around the riskiness of the business has been done away with, so why was it deemed that one person should be sufficient? I’m glad to see the Minister for Workplace Relations and Safety has just turned up and hopefully can illuminate.

I’m just going to give the Minister a moment to sit down. So maybe I’ll just repeat my question. So just a bit of background, Minister, while we start this bill. I just want to understand why the Minister thought fit, and it certainly is not the unanimous view of the Education and Workforce Committee, that if you had a business with, in fact, only one employee—because technically, I think that would be the case that could occur under the situation under replacement section 62, or even a business of two employees. Why the Minister thought it was appropriate that that single person could request—and I take the wording “request”, which means “compulsory”—to form or establish a health and safety representative immediately or as soon as practicable. What was the rationale behind that?

A couple of comments to the member’s question, for which I thank him. The first that I think it’s important to note is that this is not a compulsory system. It will not be the case that once this bill comes into force that every workplace with 20 or fewer employees will have to have a system of a health and safety representative or a health and safety committee. But if workers in that workplace request for there to be one, then that would be the outcome. What is the reason for that? The reason for that is twofold, effectively. One is that it is the workers themselves who face the risk of health and safety harm in their workplaces, and are, therefore, the ones who are in a good position to judge whether there is a benefit in there being a formal system of a representative or a health and safety committee.

Secondly, the overwhelming body of evidence, both within New Zealand and internationally, shows that when there is a high level of worker participation through a formal representative system, we reduce rates of harm.

I’m not quite sure the Minister for Workplace Relations and Safety actually answered my question, and maybe I’ll phrase it differently. If you have one employee, could that one employee technically request an establishment or election of one health and safety representative, and, technically, under new section 66 in clause 5, also require a health and safety committee, presumably consisting of one person? Is that technically possible under this bill?

Thank you, Madam Chair. I have no doubt that my participation in the committee of the whole House on this bill is going to lead to some flashbacks and nightmares. I’ll do my best not to sound like the grumpy drunk at the end of the bar. But as the former Minister for Workplace Relations and Safety, who passaged the Health and Safety at Work Act through in 2015, I think there is a line of questioning that I’d like to do for establishing the case that this amendment is necessary.

Why the flashbacks? Well, this was the section of the bill that led to the lampooning of said Minister in relation to worm farms and lavender growing. It was because I was trying to be helpful by issuing what was, effectively, an exposure draft on a regulation that had not been passed. Unfortunately, the unfortunate consequence of that was that probably no Minister since has ever offered draft secondary legislation in advance of the passage of a bill, lest there be that sort of ventilation, that thinking out loud may cause similar derision. I have, for the record, to state that the regulation did not contain such provisions.

But I want to start with that case for change, because the regulatory impact statement, the departmental report talks about the considerable literature that worker participation reduces injury and disease. I don’t think there is a doubt at a macro level that that would be the case. But does the Minister agree—these are the first of three questions. Firstly, can he confirm that the bulk of the research that was quoted in the regulatory impact statement was either qualitative or actually referred to worker participation in high-risk industries such as underground mining and the energy sector and the chemical industry?

Secondly, would he agree that the definition or the goal of worker participation can take a number of forms separate from a health and safety committee or a health and safety representative? And can he confirm that the existing Act requires all businesses, regardless of risk or size, to encourage worker participation regardless of whether they have a health and safety rep or committee?

And thirdly, what work has WorkSafe or the Ministry of Business, Innovation and Employment done to check compliance with that obligation in the current regime, and what was the level of compliance?

Responding to questions from both of the members who have just spoken, the first in response to Mr Bayly: the answer is that, yes, a single employee could request to be a representative in that workplace. And there could be good reasons for that. I mean, I think the member is trying to create what appears to be an absurd example, to diminish the bill. It is potentially less likely that a worker in that situation would do so, but it is possible to imagine that an employer might employ a single worker who might undertake some very hazardous work offsite, and that worker might be of the view that having the formal training of a health and safety representative—and, for example, the ability to issue provisional improvement notices—could be an effective and important thing in order to address issues. As I say, I suspect it would be much less likely in a situation where there was a single employee in that workplace, but, as I stated in my previous comments, a part of the rationale for this bill is that it is workers who are exposed to the burden of harm within workplaces, and we believe that there is a reasonable case to say that those people should have the option to choose formal representative mechanisms if they believe that is going to improve their health and safety.

I thank the Hon Michael Woodhouse for his question and reflections on the parent legislation here, and many of us do remember the brouhaha around worm farms. For members who might not have recalled that particular episode, back in 2013, 2014, when the Health and Safety at Work Act was being established by the member and the Government of that time, this was around the high-risk designation to certain workplaces.

The relevance to this piece of legislation is that high-risk workplaces below 20 can have a health and safety representative. OK, there was some media exaggeration and mischief around that particular example, but the reason why it became somewhat unstuck was that it to some degree exposed the difficulties of establishing what a high-risk occupation should be and, therefore, including or excluding certain people in terms of certain types of protection. Some people felt that it was absurd to include worm farming within that but not to include other kinds of agricultural work where people thought that there probably would be a high level of harm. And the difficulty here is: how do you actually judge that?

The member mentioned in his question certain types of what he considered to be hazardous work—underground mining, etc.—where there probably are high rates of fatalities and serious injuries compared to some other industries. But, equally, there will be other workplaces—for example, parts of the Public Service—where that sort of harm is very minimal, but there might well be other forms of harm which are actually quite high and cause health and wellbeing impacts on workers. The fundamental contention of our Government that is embedded in this bill is that it’s a little bit artificial to say that workers experiencing one kind of harm but not another should have recourse to having formal representation in the workplace through a health and safety rep or committee, and gets a bit arbitrary. And that is where the worm farming example came unstuck.

The member is right, and I think he might have possibly known the answer to some of the questions that he asked. Workers can raise concerns and participate in ways beyond and outside of the formal workplace health and safety representative or committee system. An expectation of workers being able to have their say and being engaged is embedded in the Health and Safety at Work Act, and that is a good thing. And, in many cases, particularly in small employers, I expect that might well be sufficient. As I’ve said in my previous speeches in the House on this bill, I certainly don’t expect that all workplaces below 20 will take up this route. I don’t even necessarily expect that most will. The contention of this bill is that workers in these worksites should have the same—a worker in a worksite of 18 employees should have the same ability as a worker in a worksite of 22 employees to request that level of representation.

The member asked does WorkSafe check into these matters, and whether there is appropriate worker participation on workplaces. WorkSafe does do a lot of work in this regard. They do a lot of proactive work in terms of supporting, encouraging, and educating to ensure that there is worker participation. Often, in their enforcement and support activities with employers, a part of what inspectors will do is to inquire into and encourage that there is good worker participation in those workplaces.

And the final question that the member asked was related to the nature of the research that was reflected in the regulatory impact statement and, I think, in the departmental report in answers to questions from the Education and Workforce Committee as well. I do believe that some of that was qualitative and some of it did relate to high-risk industries, but the broader suite of research is unambiguous that the more you can do to encourage worker participation, no matter what the kind of harm you are dealing with, the better results you’ll get.

Thank you, Mr Chair, and thank you to the Minister in the chair, Michael Wood, for those answers. Nobody disagrees that worker participation is both necessary and appropriate in managing risk in the workplace, but the Minister’s own words talk about how certain aspects of worker participation that don’t involve a health and safety rep or committee—he said he suspects might be sufficient, which is consistent with the kind of high-level rhetoric that we’ve had about this change, but what I’m trying to do is establish the case on a quantitative basis.

Now, we’ve had this legislation in place for seven years, one month, and 27 days. I remember the day vividly, 4 April 2016, when it came into effect—happened to be the same day that the Panama Papers were released, and I also was Minister of Revenue at the time, so I was a bit busy. But I don’t think that’s sufficient now, Minister, because we have had more than seven years to assess whether the businesses and the workplaces of those who do not have health and safety reps and committees have had a poorer outcome with respect to injury and disease than those who do.

The regulatory impact statement at page 10 points out that the elected health and safety reps and health and safety committees—26 percent of businesses with fewer than five staff already have them; they’re probably high-risk industries. Of those 48 percent, 6 to 9 percent have a health and safety rep; they may well be high-risk industries. But I want to know if there’s been any analysis undertaken to model the rates of injury or occupational disease stratified for these differences. So if there were fewer than 20 at a low risk with no health and safety rep or committee, fewer than 20 of high risk—well, they’re going to have a health and safety committee—more than 20 of low risk that don’t have a health and safety committee because they’re not absolutely required to; they’re only required to if it’s asked for. Even high-risk industries of more than 20 don’t—oh, actually, high-risk industries of more than 20 do have to have them, I think, regardless of whether they’re asked for.

But we’ve got these stratified populations where, over seven years, we should be able to see whether or not the injury profiles of the staff that work in these PCBUs are different. Similarly, we should also see whether there are ones that have low risk and small numbers who nevertheless do have a rep and a committee—what are their injury rates?

Throughout this whole process, since the Government campaigned on this in 2017, I haven’t seen a single case that establishes that there are differences according to this, and the risk we run is that the nearly 105,000 small businesses that are not currently subject to this regime because they’re low risk and small and who could—well, will—be subject to the regime and could well have these committees and reps are going to benefit from them. If the Minister can establish that case, I’ll back down. I’ll go quiet. But in the meantime, all we are hearing is lofty rhetoric without the substantive case for burdening small businesses, who are already burdened, with a higher level of compliance than they were six years ago. I want to know whether or not there’s any benefit to it.

Thank you, Mr Chair. Minister, just following in line with the previous speakers, I just really need clarification for myself, and I’ll give you an example. My daughter works in a cafe. There are four employees in the cafe: a couple of baristas, a chef, and a waitress. If one of those employees decides that they want a health and safety rep and a committee, is that enough for the owner to establish one—to force the owner to establish one? One of those people who work there is actually the owner. Is the owner a health and safety rep?

Thank you, Mr Chair. Given that we’re all revealing ourselves tonight, I think I’m the—

DEPUTY SPEAKER: I hope you’re speaking metaphorically, Mr Bayly.

ANDREW BAYLY: —yes, yes, Mr Chair—only one left on the committee that actually passed the original legislation. So whilst I haven’t been involved in this particular—and I was a freshly minted MP, actually, and at the time I owned a business that actually was a very large worm composting business. Actually, during the process of the original bill, I put it through the lens of what it would be to be a person conducting a business or undertaking that involved lots of heavy machinery. That was the lens I actually assessed it at. The Minister Michael Wood’s statement saying that this is about making sure we’ve got safe health and safety practices at work—no one disputes that at all, and in fact that was the original intent of the legislation. But the Minister used the word “absurdity”, and I think it is absurd that one worker—and I take Chris Baillie’s comment just there: does that or does that not include the owner or owners? Potentially, under this bill, one employee could say, “I want to see in place a health and safety representative.” Of course, that would have to be them, I assume, but they could then, under new section 66—inserted by clause 5—also request a committee be set up of one person. That seems absurd, and I think the Minister has confirmed that.

So the question—and it was quite a deliberate line of questioning—is that when we put the original legislation in place, we did it quite knowingly pitched at 20 or fewer employees, but we also were conscious of making sure that those industries and businesses operating in high-risk areas did have the requirement to establish them if the workers so wished. So that was a pragmatic approach. My good friend the Hon Michael Woodhouse’s questioning around what has changed and where’s the evidence—I haven’t seen evidence of that yet and eagerly await the response from the Minister.

But the question is: why was there no minimum threshold? First of all, why was it, like, that you have to have a minimum of five? Why did the Minister allow it to go to one? Why wasn’t there any consideration that it should be a majority of the workers? In many workplaces, you have difficult people, just as you have difficult people in political parties—I’m sure if I looked across at the other side there, we’d find difficult people. You might have one very difficult person who actually decides, because they can’t work with the team—Labour—to come join another party over the other side of the House. Now, we just think that those arrangements might have at least considered a majority arrangement of the employees. So you deal with the aberration, but you still have in place an arrangement where, if there is sufficient combined view or majority view that that should be the case, that should be the case, and people have no issue with that.

But this has been compounded furthermore by removing the risk element of the business, which means that, as Michael Woodhouse points out, that’s now drawn in a huge number of additional businesses, and one just must ask themselves why. I just ask the Minister: what was the logic train that got him to the position where he thought that any worker, no matter how many employees they’ve employed in that business, can initiate this process, even if all the 99 percent of other workers in that business felt that it wasn’t necessary?

I have already addressed the question about the Government’s fundamental rationale for this bill, but I’ll come at it a different way by saying that the Health and Safety at Work Act, by dint of the fact that it establishes a system of representatives and committees, recognises that this is an important measure in order to ensure that workers are able to participate and have their say and reduce risk.

Actually, if we’re asking for the question of evidence, the question would be: what was the evidence that the previous Government used to put in place an arbitrary exemption that this does not apply to workplaces with fewer than 20 employees, and the answer is that there is not one—the answer is that there is not one. The previous Government established that there was a value in having workplace health and safety representatives. During the legislative process, they arbitrarily determined to put this exemption in place, and that is what has not been justified. It is well established, and I have pointed to the fact, that there is clear evidence, both on the record and as a matter of logic, that workers being empowered to be able to raise concerns and act on them in a formal way in respect of health and safety will reduce health and safety risk.

Mr Baillie asked a question which has also been asked previously. Yes, a small group of workers can request that there be a health and safety representative. No, that does not include the owner of the business; it includes the workers within the business. In respect of a health and safety committee, under new section 66, inserted by clause 5, that must be requested by five or more workers at that workplace.

Thank you, Mr Chair. Well, the Minister ended up asking us questions, which was: what was the rationale for doing it in the first place? Well, as the Minister at that time, I’m very happy to answer him and even happier to swap seats if the Minister wishes—although I think we’d have to wait another five or six months before that happens.

But when I was sitting in the seat that he was in, explaining to a vociferous Opposition in the form of the Labour Party and the Greens, the answer was quite simple. It’s because the cost of investing in that, for a small business, was not exceeded by the benefits in reduced injury and disease—particularly when there was a legal obligation on the person conducting a business or undertaking to have an active participation of all employees in health and safety matters.

So if they opposed that, then the corollary must be that they turn that question around and tell us what information they have to demonstrate that that was wrong; that the benefits of doing this will exceed the costs. One of the dearths of information in the regulatory impact statement and the department report is that there isn’t any analysis of that that I can find.

I’ve asked the Minister tonight if it’s been done, and there’s not been an answer to that. So I’ll come at it from a different angle as well, Minister. The law, as it currently stands, required a review of the definition of high-risk sectors and industries in 2018 and then five years thereafter. So by now, we should have had one completed review of what was considered “high risk” and we’d have been probably halfway through another.

Now, what that review was required to do was exactly what I’m asking. Had the Government bothered to follow the law, it would have answered the question, and maybe it would have been able to identify whether the risk profile had changed; whether there was a correlation between that risk profile and injury and disease rates. So my question to the Minister is: was that review undertaken? If so, what were the findings of that review—because that could answer my questions—and if it wasn’t undertaken, why not?

I’m advised that there was not a review undertaken in 2018.

Hon Michael Woodhouse: Why?

Hon MICHAEL WOOD: In respect of 2023, the Government’s response to that issue—well, it’s actually outside of the debate that we’re having in this committee, Mr Woodhouse. In respect of this bill, the way that we are responding to that issue is to remove the need the high-risk classification.

Well, the first question—the obvious question—is why did the Government break the law, because the Act required a review in 2018? I’d love to hear the Minister’s formal, proper answer to that. Secondly, going back, the Minister keeps saying that he’s answered the question. Well, actually he hasn’t. So maybe we’ll just do it in numbers. The first question—I’ve now asked for the third time—is about the issue around majority. Why did the Minister not move to a situation where a majority of the employees wanted to form one of these committees or to be a representative? And, secondly, even in the event, under section 62, in clause 4, that you have an election of health and safety representatives, who determines the number of health and safety representatives? Then I’ll come back, because we’ll do this slowly to try and get the answers we might need.

I think it is a bizarre suggestion that having a health and safety representative should be some sort of a popularity contest, in terms of whether there is a need or not. That is not the procedure which applies to workplaces of over 20, and I’m not sure why it should be the procedure that applies to workplaces under 20.

That answer could qualify as the single silliest answer I’ve heard in the committee of the whole House for quite some time.

I think I heard the Minister say that the questions that I was asking around the review were somewhat outside the scope of this debate. Actually, Minister, this is central to the debate and to the reason we’re passing this bill. I think I’ve read somewhere—and the Minister can confirm this for me; it might have been in the regulatory impact statement or one of the advices to the select committee that, no, they didn’t do—well, they didn’t say whether or not they’ve done the review, but they said that the review was redundant because we’re going to get rid of it anyway. Now, that is a terrible logic. Had they undertaken that review, the very case for this bill could have been established.

What I reckon is that what’s much more likely is that had they undertaken that review, they would have found that the system was working perfectly adequately and that there was no difference, material or otherwise, to the injury or disease rates for small, low-risk businesses that did not have a health and safety rep or committee. If that had been found, his lofty rhetoric would have been ruled redundant, and that’s why they didn’t want to do the review, because they were absolutely hell-bent on getting rid of this provision and imposing more cost and more administration on small businesses—small businesses, I might add, Minister, where the person conducting a business or undertaking, in an overwhelming proportion of them, works side by side with the workers.

It’s not as if the employer needs a health and safety rep to help him or her identify where the risks are. On the farm, in the cafe, and in the small retail organisation, they know exactly where the risks are, because they’re side by side with the workers, and they are as at risk, but they’re also obliged to ensure that every worker participates. So for the Minister to say that the questions about the review are outside the scope of the bill is utterly ridiculous. I ask—maybe for the last time—where’s the case?

Minister, I just want to come back to a point I made earlier on. The owner of the business: if they work in the business, like their employees, and if they pay themselves wages—which is the example that I gave you—are you telling me that they are not eligible to be the health and safety rep?

Yeah, I think we really are going to have to do this by the numbers tonight. So, hopefully, Minister, we will return to the 2018 issue of why the Government did not meet its legal responsibility in terms of the review of the health and safety Act.

For the second one, which was the argument around majority, the Minister’s response said that there were no such examples, even with companies employing more than 20. I understand that, but there’s lots of options, and the Minister hasn’t provided any logic chain—to use that same word I used before—as to why it is one, because, normally, in a lot of companies’ situations, you might have a rule like a certain number, or 10 percent of employees, or you might have a threshold or a majority or you might have a whole range for it. There are many options, but for some reason the Minister has decided that there’s one person who decides he or she wants to have it, and even if no one else in the business wants to do it, that one person gets their way. That means, obviously—as the Hon Michael Woodhouse referred to—that there are the costs of all that.

So it raises another issue: why wasn’t the option, if there are situations where you have a small number of employees who felt very vulnerable, that they could have the right to proper health and safety training as an option to try and deal with this? What were the other permutations? What I don’t understand is any of the logic to get to where we are, and I’m looking forward to, hopefully, getting some response from the Minister that’s meaningful.

Well, I have responded to the member’s question a couple of times, and the response is that workers are well placed to judge the risks that they face because they are the ones who are exposed to those risks in the workplace. If it is their view that it is appropriate and it is helpful and it might reduce risk for there to be a health and safety representative in place, then our Government, through this bill, believes it’s appropriate that they are able to request that that happens. It would be possible to set an arbitrary threshold in the way that the previous Government did in its legislation, but our Government does not believe that that’s appropriate.

OK, I’ll go back to the other question I’ve asked, and we’ll do this in twos. Who determines the number of health and safety representatives, and is it any correlation to the number of employees in the business? That’s under section 62. I’ll ask that question first. Let’s see if we get an answer on that.

All right, I’ll ask the second question. Under new section 66, inserted by clause 5, who determines how many people go on the health and safety committee? Is it the person conducting a business or undertaking? Is it the workers who nominate themselves or who they want at formation? Or is it all the employees of the business?

So same question, but two examples. Let’s see if we can get those answers. [Interruption] He doesn’t like it—very good.

CHAIRPERSON (Greg O’Connor): Andrew Bayly.

ANDREW BAYLY: Thank you, Mr Chair. Tell me, turning the logic upside down, once one person in one business decides, let’s say it’s a he, he wants to have a health and safety representative—

Hon Member: Could be a she.

ANDREW BAYLY: Yeah, could be a she, of course—and that gets established because under these absurd rules, using the Minister’s words, and that said person then leaves the business, does the health and safety requirement remain?

Most of these things will be worked out by sensible people in businesses who work together. The members who make so much of the fact that people should be able to work together in a reasonable way somehow make out the case that because there was a health and safety representative in place workers in this workplace are going to go crazy.

That is not what is going to happen. Employers and workers will work together to come to sensible arrangements around these matters. If the person who is a health and safety representative—the same thing would happen in that workplace of, say, 18 people, as happens in a workplace currently under the legislation where there are 22 people and there’s a health and safety representative in place. Nothing different will happen. There will be a new process to determine who that representative is.

So can a person conducting a business or undertaking decide to disband either the representative role or the committee role, or what is the process? Does it require all the workers of the business, some of the workers of the business, or, heaven forbid, the majority of the workers? Can you just answer that question, Minister?

Thank you, Mr Chair. I just would wonder if the Minister would really think hard about my question before about those people who own their business but pay themselves wages and work alongside other employees, because that scenario is really common, and we’re going to face it a lot.

Again, this is a situation where I think members are trying to find enormously unlikely examples to try and discredit a bill where it is highly unlikely this will occur. I suppose it is the case that if an employer who is working in the workplace in an onanistic fit of health and safety fervour decided that he wanted to be a representative to himself, then he might determine to do that. But it strikes me as something that no sane person would do.

Can I go back to my two questions, because, heaven forbid, it’s like drawing blood out of a stone tonight! Who determines the number of health and safety representatives and is there any correlation to the number of employees—I’m just trying to repeat the same question—and who decides it, is it an absolute majority, is it a majority, is it the one person, whatever? And the same question for the health and safety committee. Hopefully, the Minister for Workplace Relations and Safety can turn to his officials over there, because, hopefully, they might know the answer.

Mr Bayly, could I just state at this stage that giving yourself up to repetition is probably one of the reasons why I’ll be looking at, perhaps, some closures. So you’ve coughed up actually the same question a few times. I’m not closing the debate now, but just be aware, we are getting quite repetitive at the moment.

Thank you, Mr Chair. In light of the wording of the legislation, does the health and safety representative have to be a worker of the organisation involved?

Yes.

Thank you very much, Mr Chair. Enjoying the debate. Very interesting and important subject, obviously. I’m just curious if the Minister for Workplace Relations and Safety can talk us through the rationale for the fines that are set out in, well, what will be new, or rather, amended section 62, under clause 4, “Election of health and safety representatives”, which is, for an individual, a fine up to $5,000; for any other person, which I presume is a legal person and not an individual—an actual person—a fine of up to $25,000. And that relates to the election of health and safety representatives.

Similarly, and in fact the same amounts in both cases—individuals versus other brackets, legal persons—health and safety committees: the establishment of that that must take place in the way that’s set out. Is there a particular rationale for those dollar amounts for those fines?

And, as a related question, is there any thought to allowing those to be amended? For example, indexed to inflation—hashtag, you know, rampant inflation, cost of living crisis, etc. And if there’s some sort of rationale that the Minister can give, I think that’ll be helpful. I mean, obviously there’s always a tension. If you put something in primary legislation, then it has maximum scrutiny, versus regulation, which can be a stroke of a pen by a Government agency or, technically, a Minister advising the Governor-General, or whatever. But, on the other hand, if we’re going to set this in stone, does the Minister envisage that it might be in five or 10 years or some other period in the future that we might need to come to this House—those of us who are still here in five, 10 years—and make a change merely to update the penalty, to make that more suitable for the times in which we are then living?

The penalties that the member Chris Penk describes are simply the penalties that are in the existing Health and Safety at Work Act, bearing in mind that all that this bill is doing is, effectively, applying the same provisions across the Health and Safety at Work Act in respect of health and safety representatives to workplaces with fewer than 20 employees as currently apply to those with more than 20 employees.

Thank you, Mr Chair. I just want further clarification. I don’t think that the scenario that I talked about is that unusual. I just need to know, if one of the five employees decided that they wanted a health and safety rep, could the owner of the business, who works alongside them and pays herself wages, be appointed as the representative?

Thank you, Mr Chair. Mr Chair, I take your comments before about repetition. But I would say that I’ve got a number of questions outstanding, which the Minister for Workplace Relations and Safety hasn’t even attempted to answer. That’s a little bit of frustration and that’s why I keep asking the question.

But I’ll approach it from a different way, because he may be trying to characterise this as being vexatious and silly, but I would imagine these are the type of things that would have been traversed by the Education and Workforce Committee. I wasn’t on the select committee but there’s no doubt, with a majority of Labour members, I would have thought that they would have been eagle-eyed over this.

But the reason I’m asking these questions is that the Act comes into force on the day after which it receives Royal assent, and then it sets out in replacement section 62(2), inserted by clause 4, that if the person conducting a business or undertaking receives requests, it must—within the time described within regulations. So we’ve got some regulations. We know there are regulations coming in. When are the regulations? Presumably the things are like a disbandment of health and safety representative or committee, what the arrangements are, the process for that, and if the Minister doesn’t know the answer, which I suspect, when will those regulations be available? So current employers—we know over 100,000 additional businesses are going to be captured by this, because it seems that little thought has gone into that issue—how do they plan for it? With Labour going to ram this through in the next, probably, couple of weeks, employers are going to be pretty shortly thereafter facing the prospect of having to try and put these things into place.

So maybe another question for the Minister—hopefully, we might even get this answer—is: when will the regulations be available so employers who bear the cost of this and also the legislative liability for not doing it properly, when will those regulations be available?

There will not be new regulations. What is referred to here are the existing regulations that are in effect, in respect of health and safety representatives. Again, I note the point that all this bill is actually doing is saying that the same things apply to workplaces where there are fewer than 20 employees that already apply to every other workplace where there are more than 20 employees. For most of them, the structure is already in place.

Thank you, Mr Chair. I wonder if the Minister can speak a bit about the situation of a sole trader, which is a business of fewer than 20 persons, of course.

I suppose that might sound like a question to which the answer is obvious—which is that one person must advise oneself and elect oneself and represent oneself to oneself in these matters. But actually, I think there’s a very serious and real possibility that if you have a structure whereby you have a sole trader, and a number of contractual arrangements that might be in the nature of consultants or contractors who are very close to being in the nature of “employees” and “workers” in the way that term is used in this legislation.

By the way, I acknowledge the way the primary Act’s being amended. So I’m not suggesting to the Minister or to this committee that this bill is doing something novel in this space by having a definition of a worker that can work—so to speak—across the concepts of employee, self-employee, and contractor, etc. But I think it’s worth asking the question in relation to businesses that have fewer than 20 workers. If the number of workers is very small, such that you wouldn’t expect representation—for example, effectively a one-person business; a sole trader—but who has people who are caught by the intent of the health and safety at work legislation and to whom the person conducting a business or undertaking has responsibilities, quite rightly so; they are responsible for a safe workplace and so on, notwithstanding the nature of the employment contract or otherwise.

Just grateful if the Minister can explain to the House how in that kind of situation, he would envisage—relative to the idea that such a small workplace on paper will have these additional obligations?

Under the legislation, someone who was a contractor to that small business would, in effect, be another person conducting a business or undertaking; they would not be a worker for whom the provisions of health and safety representatives’ rights applied.

Thank you, Mr Chair. Look, if I was consulting on Māori land legislation and proposing change, then I would consult with Māori land owners, and I’m just wanting to know from the Minister whether or not there were any small businesses, and, if there were, how many small businesses were consulted with prior to undertaking the development of this bill.

To some degree, the Labour Party consulted with 5 million people when it put this in its manifesto and campaigned on it at the election. We then engaged in formal consultation with the peak bodies, being the Council of Trade Unions and Business New Zealand. Of course, Business New Zealand do an excellent job as the peak body in representing the views of businesses, small and large. They gave their views, and then there has been a full select committee process which has received representations from a range of people, including small businesses.

Thank you, Mr Chair. I understand from the Minister that these two operative sections—62 and 66—in clauses 4 and 5 come into force, and, obviously, we remove the high-liability, high-risk businesses. But, from what I understand, he said before that there are no further changes to the regulations. So presumably, then, if that is the case, it’s quite easy to answer my question, which is: if a health and safety committee gets set up at the behest of one person, even if it’s in a 19-person firm, what is the procedure for it to be disbanded if either that person leaves or other members—is there a formal process to enable it to be formally disbanded? And what is the role of the person conducting a business or undertaking in that process, and can they, of their own volition or own initiation, actually disband the committee if there is little interest shown by workers?

Thank you very much, Mr Chair. If I can just develop a theme begun by my colleague and friend Tama Potaka, in relation to consultation—and I accept the Minister’s answer, of course, that the legislation we have in front of us is a result of Labour having made those undertakings in its manifesto commitment ahead of the last election. Given that we are so close to the next election, then, I wonder if the Minister would contemplate that the commencement date should be not “the day after which it receives the Royal assent”—in these dying days of the current parliamentary term, and indeed the dying days of this current Government—but actually to make the Act come into force sometime after 14 October, to allow the democratic—

Hon Scott Simpson: Mandate.

CHRIS PENK: —mandate, to which he refers in a positive way for him and his side, in terms of having brought it in, given that it might be that other parties who may or may not form Government following 14 October might have a different view, and maybe we’ll be back to someone whose name is very much like the Hon Michael Wood, but with the addition of a “-house” in this House! So I look forward to the thoughts of the Minister in terms of how we might justify this—and, actually, on a very serious note, the importance of certainty in this space. So I’d be grateful for the comments of the Minister on the commencement date, in that light.

Thank you to the member—a very good use of a minute 25—and the member’s question there. The member Chris Penk is, in the House, as I look around, maybe with one exception, probably more constitutionally minded than virtually anyone else, and constitutionally trained than anyone else in the Chamber at the current moment. So I am sure he will be aware that the Government continues to govern up until the time of the election, and that most Governments continue to do that and pass legislation in that period. The democratic process will have its way after that.

In respect of Mr Bayly’s question around whether there are measures around the disbanding of health and safety committees, no there are not. Again, I note that that is not something—a situation—created by this bill. I’m referring here to the overall architecture of the Health and Safety at Work Act, which, of course, was put into effect by the previous Government. Ultimately, if there are no workers who want to be on a health and safety committee, there will not be a health and safety committee.

I move, That the question be now put.

Thank you very much, Mr Chair. It’s possibly my final question, but I can’t resist the temptation, as the Minister has taken us down—or allowed me to take the committee down the path of democratic mandate and so on.

Is the Minister aware that his bill includes the phrase, “triggering an election”, and I wonder if the Minister would consider, at this late stage, the committee of the whole House stage, broadening the definition of “triggering an election”? I almost said “Tigger-ing an election”, which would be a Winnie-the-Pooh reference, and an entirely different matter, even for this bear of little brain. So I’m grateful for the Minister’s comments on that.

If I had that power through this legislation, I would be very interested in doing so, if for no other reason than seeing how Parmjeet Parmar does in Pakuranga.