The government’s Health and Safety Reform Bill should have been the legislation that kept John Key’s promise after the Pike River disaster to fix health and safety.
Instead it became a political football for National’s internal factions and a target for some of New Zealand’s worst employers.
What came out after the politicking behind closed doors falls well short of what was promised and actually rolls back some of the current health and safety rights New Zealand workers are protected by.
The big issues Labour has with the bill are:
The carve out of businesses that employ under 20 workers from being required to have health and safety representatives.
Requiring employers to have to agree with workers on the formation and size of work groups.
Allowing employers to petition worksafe to remove health and safety reps, and to legally challenge worksafe if they fail to do so.
No extension of time after the regulator decides not to prosecute for a private prosecution.
We are asking other parties to back our changes to fix this law. The amendments Labour proposes are:
1. The carve out of businesses that employ under 20 workers.
If we can have clauses 65(3) and 86(A) 3 deleted from the Bill as it passes through its stages then we will have defeated that proposal.
2. Employers to have to agree with workers on the formation and size of work groups
Clause 66 requires the employer to create a work group if Health and Safety reps are elected. However it does not outline the structure of how this will be set up. Nor does it provide for agreement to be reached with the workers on their proposal and structuring of the work groups.
3. Employer requests to Work Safe for the removal of an H&S Representative
Clause 19 Schedule 1 allows employers to request Work Safe to remove an H&S Rep and then to appeal to the District Court if Work Safe refuses.
4. Six month extension of time limit after decision of the regulator not to prosecute.
This allows for time for preparing a case for bringing private prosecution after the expiry of regulator requirement to bring prosecutions within a two year time limit.
Our position in detail:
Labour strongly supported the Bill as it was introduced to Parliament. It was based on sound international evidence, a law that is working well in Australia and the recommendations of two New Zealand reports - the Royal Commission on the Pike River Coal Mine Tragedy and the Independent Taskforce on Health and Safety. It was an overdue reversal of the ideology of deregulation that is the driver of New Zealand’s extremely poor workplace health and safety record that sees more people killed and injured at work per capita in New Zealand than in any other comparable nation.
It is regrettable that poor communication of the bill’s intentions and content by the Government has resulted in rampant fear mongering about what its impact will be on businesses. Concern amongst the business community has been fuelled by Government MPs repeating untrue stories about the implementation of health and safety law by WorkSafe officials and misleading statements about the potential impact of the new law. An inexplicable delay in reporting the bill back to the House has only caused further consternation amongst business people and working people alike who desire certainty about their obligations under the new law.
Significant changes have been made to the bill at select committee. Many of these are based on anecdotal assertions, a lack of appreciation for evidence and outright fearmongering by a minority of employers who hold exceptionally negative opinions of the people who work for them. The changes substantially water down the bill. As a result the bill is considerably less aligned with evidence and best practice. The changes amount to a massive blow to the prospect of high quality health and safety reform.
Mainstream businesses have expressed their support for improved health and safety regulation and for the bill as it was introduced. The majority of employers value health and safety. Legislation must ensure that those who do not can be held to account and encouraged to change their practices. Good employers should not have to compete with businesses prepared to cut corners on health and safety. Sadly, the changes made to appease those who submitted against making necessary reform seriously undermine efforts to encourage positive change.
Health and Safety Representatives
Studies overwhelmingly demonstrate that elected health and safety representatives not only improve workplace health and safety, they improve workplace relationships and foster a more proactive approach to health and safety. It is noteworthy that the most forthright opposition to health and safety representatives came from employers and representatives of industries with some of the poorest safety records. Labour is opposed to any exclusion from the requirement to hold an election for health and safety representatives if requested by workers. The proposed exclusion for businesses with fewer than 20 workers excludes over 300,000 working people from the option to access to one of the most effective ways they can make themselves safer at work.
The select committee has made changes to the way in which workgroups are determined that grant ultimate authority to the PCBU to determine the structure of workgroups. When combined with the limitation on health and safety representatives to only represent workers in their workgroup, this creates an opportunity for the PCBU to structure their workplace in such a way that deliberately limits the influence of health and safety representatives and denies workers an elected representative. This could be overcome by requiring workgroups to be structured in a way that is agreed by both the PCBU and the workers.
Request to Remove Health and Safety Representative
The bill as introduced contains provisions for WorkSafe to remove a Health and Safety Representative if it considers that person has failed to satisfactorily discharge their duties. The representative may appeal such a decision to the District Court. The select committee has added the ability for a PCBU to request the removal of a Health and Safety Representative and to appeal a decision by WorkSafe not to remove them. This represents a gross lack of appreciation for the inherent imbalance of power between the PCBU and workers. The added provisions are likely to be used by employers who do not value elected health and safety representatives to punish those who challenge management decisions by exposing them to lengthy and expensive legal action and to deter people from standing for the role.
Industry Health and Safety Representatives
The Bill allows for the appointment of Industry Health and Safety Representatives by a Union or other group of workers in the underground coal mining industry to represent their interests across their industry. They have particular powers and are required to have considerable training and experience working in the industry. The Independent Taskforce on Health and Safety recommended that industry health and safety representatives operate in quarries and tunnelling operations but that proposal has been repeatedly dismissed by the Government. Recent tragedies at quarries demonstrate that failing to implement the taskforce recommendations was a grievous error. We strongly urge the Government to consider expanding the industry health and safety representative model not only to quarrying and tunnelling operations but also to other high risk, isolated workplaces with small numbers of workers on site. This should include, but not be limited to, farming, forestry, fishing and construction. The admission by WorkSafe that the number of quarries in New Zealand is unknown and that an unknown number of them are operated without proper certification demonstrates the challenges that WorkSafe will have in effectively enforcing this law and the value of having trained and experienced support from those working within high-risk industries.
Definition of Officer
The meaning of officer of a PCBU has been watered down in this bill to the point that few if any senior office holders other than a Chief Executive will carry the responsibilities that come with being defined as an officer. This is disappointing because evidence supports encouraging senior management to lead the health and safety agenda in their workplace. Leadership from management is critical to positive safety outcomes.
The Bill allows for private prosecutions in the event that WorkSafe decides not to prosecute for offences under the new Act. The ability to take such prosecutions is an important check on the Government regulator. Previous cases are rare but have been successful, demonstrating that WorkSafe (and formerly the Department of Labour) does not always make the right call on whether or not to prosecute. However the interaction of the limitation periods for prosecutions brought by WorkSafe and those brought by persons other than the regulator creates a small but real possibility that there could be no time left for a private prosecution to be brought in the event that WorkSafe takes a full two years to decide not to prosecute. Extending the limitation period for private prosecutions to 6 months after WorkSafe decides not to prosecute would overcome this issue.
Engagement with Workers
Under the Bill, workers must be given a reasonable opportunity to express their views, raise issues and contribute to the decision-making process in relation to a health and safety matter. We recommend that, for clarification, the Bill state that workers are also given the opportunity to seek any advice they need to appropriately address the matter. This is particularly important in workplaces that do not have trained health and safety representatives where workers may need to seek further advice.
Training for Health and Safety Committee Members
The Bill does not provide for training of Health and Safety Committee members. Training is vital if members are to be effective in discharging their responsibilities. The role of committee member is distinct from the role of Health and Safety Representative so training would need to be specific to the functions and duties of committee membership.