The Transport and Industrial Relations Committee has examined the Health and Safety Reform Bill and recommends by majority that it be passed with the amendments shown.

This omnibus bill seeks to reform New Zealand’s work health and safety system by creating a new Act and amending several others. Parts 1 to 5 are intended to become the Health and Safety at Work Act, to provide a new framework for ensuring the health and safety of workers and workplaces. Part 6 of the bill seeks to amend several Acts, relating variously to hazardous substances, accident compensation, and protecting employees from discrimination for raising health and safety issues.

Current health and safety legislation is based on the employee/employer relationship. The bill would broaden this to include “workers” and “persons conducting a business or undertaking” (PCBUs). The proposed definition of “worker” is somebody who “carries out work in any capacity for a PCBU”. It would include employees, contractors, trainees, those gaining work experience, and volunteers.

A PCBU would have a primary duty to ensure, so far as reasonably practicable, the health and safety of workers and others affected by its work. Workers would also have responsibilities regarding the health and safety of themselves and of those around them.

The engagement, participation, and representation of workers are central to the bill.

Clauses 25 to 27 acknowledge and clarify overlapping duties, for example among multiple contractors on a building site, or multiple suppliers.

The bill would repeal the Health and Safety in Employment Act 1992 and the Machinery Act 1950.

We understand that the proposed legislation is intended to be underpinned by regulations, approved codes of practice that provide detailed guidance, and safe work instruments.

We recognise that the changes to health and safety law proposed by this bill are many, and that businesses and workers are interested to learn of the changes and the new requirements that will be placed on them. We want New Zealanders to receive full, accurate information about the bill’s consequences for workplaces. We welcome and encourage the development of guidance and other material to accompany this legislation, and trust that it will be clear, accurate, and helpful to users. We expect that the development of regulations to accompany the bill will also help to clarify the practical implications of the obligations the bill imposes for specific industries and businesses.

We are aware that WorkSafe New Zealand has been publishing information on its website about the bill, and we encourage it to continue engaging and educating the public by this and other means. Such guidance will be particularly important for small PCBUs without dedicated health and safety staff.

We have set out below our main recommendations, and those we believe would benefit from explanation. We recommend many other amendments, including minor, technical, and consequential amendments, and improvements to drafting. Some of them look more complicated than they are, such as our recommendation to move clauses 54 to 59, which relate to authorisations, into Part 5, new subpart 1A. Most are self-explanatory.

We consulted the Regulations Review Committee on the proposed regulation-making powers in the bill, and made changes where we considered it appropriate.

In clause 2(3), we recommend making 31 October 2017 the last date on which any element of the bill could come into force. Some of the hazardous substances elements of the bill in particular may need a long lead-time, as corresponding regulations will be needed.

We also recommend amending clause 2(1)(b) and inserting clause 2(1A) to allow certain hazardous substances amendments to come into effect the day after the Royal assent is granted. These provisions would improve the review and issuing of group standards, allow the Environmental Protection Authority (EPA) to undertake its new enforcement function by prescribing certain notices, meet international obligations regarding persistent organic pollutants, improve the EPA’s method of public notification, and prevent the public disclosure of sensitive information about applications for moving hazardous substances.

We recommend removing clause 2(1)(c), so that provisions relating to the transfer of EPA employees, contracts, and information to WorkSafe would not commence immediately after the Royal assent. This transfer should occur in tandem with the transfer of workplace hazardous substance controls from the existing to a new legislative framework.

We recommend replacing clause 5 with new clauses 5 and 5A. This would make it clear that a Crown organisation could be a PCBU in its own right for the purposes of the bill. For other instruments of the Crown that are not Crown organisations or body corporates, the appropriate PCBU, for the purposes of the bill, would be the Crown itself.

We recommend changing the bill’s application to the Armed Forces. We recommend inserting clause 6(1AA), to make it clear that nothing in the bill would require or permit anything that would prejudice the defence of New Zealand; and inserting clause 6(4) to require the Chief of Defence Force to promote the purpose of the bill to the greatest extent consistent with New Zealand’s defence.

Under clause 6(2), the bill would not apply to members of the Armed Forces on operational service. We recommend amending clause 6(2)(a) to also prevent the bill applying to civilians working in support of the Armed Forces in an area of operational service. We also recommend amendment to improve the definition of “operational service” in clause 6(3).

We consider the bill should be brought into line with existing legislation that excludes members of the Armed Forces from requirements for employee engagement and participation. We recommend inserting clause 10A(1) to prevent members of the Armed Forces asking for health and safety representatives or health and safety committees under the bill. The Chief of Defence Force would be able to establish (or continue current) participation practices regarding health and safety that meet the specific requirements of the Armed Forces.

We recognise the Armed Forces’ special need for discipline with respect to carrying out orders. We also recognise that prevailing assumptions about safety cannot be applied to many tasks routinely undertaken on active service. We recommend inserting clause 10A(2), so that a worker’s right to cease unsafe work would not authorise a member of the Armed Forces to refuse to do work that they had been lawfully ordered to do.

To help protect New Zealand’s security, we recommend inserting clause 6A. Subclause (1) would give national security, national defence, and international relations priority over the requirements of the bill.

Under subclauses (2) and (3), specified provisions of the bill could be declared not to apply to, or to be modified in relation to, intelligence workers. Under subclause (4), such declarations could be made only with ministerial approval, and would be reviewable under subclause (7).

Subclause (6) would require the New Zealand intelligence community to promote the purpose of the bill to the greatest extent consistent with the maintenance of New Zealand’s defence, security, and international relations.

We recommend inserting clause 180A and Schedule 2A to provide for the secure handling of classified information in legal proceedings.

We recommend amending clause 10(1) to ensure that the legislation would apply to every operator of high-risk plant, even if the operator were not a PCBU. This would widen the bill to include operators such as volunteers.

What constitutes high-risk plant would be set out in regulations. We would like to see amusement devices such as inflatable slides included; this would mean the bill would apply even if the operator were not a PCBU.

Casual volunteers are treated differently from other employees in existing health and safety legislation; we consider this distinction should be maintained in the bill. We recommend amending clause 14, which defines “worker”, by inserting subclause (3) to differentiate “volunteer workers” from casual volunteers. Paragraph (a) would define “volunteer workers” as those who work for a PCBU with its knowledge or consent on an “ongoing and regular” basis, and whose work is integral to the business or undertaking. Paragraph (b) would exclude all volunteers from the category of worker when they were undertaking specified voluntary activities:

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  participating in fund-raising activities

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  assisting an educational institute, sports club, or recreation club with sports or recreation

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  assisting with activities for an educational institute outside its premises

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  caring for another person in the volunteer’s home.

Although casual volunteers and volunteers participating in the above activities would not be “volunteer workers” under the bill, their health and safety would be covered by a PCBU’s duty to look out for the health and safety of other people affected by the conduct of its business or undertaking under clause 30(2).

We also recommend inserting new clause 10B so that Part 3 of the bill, which deals with worker engagement, does not apply to volunteer workers. This carries over the existing exclusion of volunteers from employment participation requirements. Volunteers could still raise health and safety matters with the organisations they volunteer for.

Clause 13 excludes volunteer associations that do not employ any workers from the definition of a PCBU. We recommend changing clause 13(2) to make it clear that the exclusion would apply whether or not the volunteer association was incorporated.

In clause 12, we recommend removing subclause (a) from the definition of “hazard”, and the entire definition of “risk”. We prefer the common meanings of “risk” and “hazard”, to encourage people to consider what risk means to them, in their particular circumstances. Subclause (b) of the definition of “hazard” should be retained. This is an area where clarity has been required in the past; we want to make it clear that someone’s behaviour can constitute a hazard.

We recommend amending the definition of “officer” in clause 12, and moving it into new clause 13A to improve the structure of the bill. The designation “officer” should be confined to people in very senior governance roles, such as directors and chief executives. Subclause (b) of the definition as introduced includes those who make decisions affecting the whole or a substantial part of a PCBU’s business; we recommend narrowing this to those in positions that allow them to “exercise significant influence over the management of the business or undertaking”. We also recommend inserting clause 13A(d) to make it clear that those who merely advise or make recommendations would not themselves be officers.

Experts engaged to advise a PCBU on health and safety issues would not be considered officers of the PCBU in question. They might, however, themselves be a PCBU with duties under the bill, and specifically under clauses 30(1)(b) and 30(2). We note that there would also usually be a contractual relationship between a PCBU and such an adviser, and in that case, the PCBU would have contractual remedies for any poor advice.

For the sake of clarity, we recommend inserting a definition of “personal protective equipment” into clause 12, and using the phrase where appropriate.

In clause 14, we recommend replacing the word “person” with “individual” to make it clear that a “worker” would always be a natural person, rather than a corporation or a group of people. We also recommend inserting into clause 12 a definition of “person” that would include corporations and groups of people as well as individuals.

Clause 18 defines “notifiable injury or illness”. In clause 18(1), we recommend amending paragraph (a) to make it clear that “immediate treatment” would not include first aid. Under paragraphs (b) and (c) respectively, an injury or illness would be notifiable if the worker required either hospitalisation for immediate treatment, or medical treatment within 48 hours of exposure to a substance. We recommend amending these paragraphs by adding the words “or would usually require” after the word “requires”, so that the paragraphs would apply whether or not the person was actually admitted to hospital or given medical treatment. This would mean that the illness or injury remained notifiable even if a worker refused treatment, or was too far away for hospitalisation, for example on a ship at sea.

We also recommend amending clause 18(1)(d) so that infections must be serious to be notifiable. We recommend deleting clause 18(1)(e) and referring instead to occupational zoonoses (diseases carried by animals) in clause 18(1)(d). We expect details on zoonoses to be published in guidance to accompany the bill.

In clause 19, we recommend narrowing the meaning of “notifiable incidents” to those that are uncontrolled or unplanned. This avoids inadvertently including activities that form part of the normal work of a business or undertaking.

We recommend amending clauses 20 and 215 to make it clear that a matter required to be notified must have arisen from work.

Clause 28 prohibits PCBUs from levying or charging a worker for health and safety arrangements. The PCBU must ensure that the appropriate equipment is available and worn, and the worker would have duties under clause 40 to wear it. However, clause 28(3) would exclude arrangements where a worker buys their own protective gear and is reimbursed by the PCBU. To ensure that such arrangements could continue, we recommend removing clause 28(3).

We recommend moving (and renumbering, and in some cases, renaming) clauses 22 to 27 (which set out key principles relating to health and safety duties) from Part 1 to Part 2, bringing them closer to other provisions about such duties. We note that clauses 26 and 27 would still apply to the duties of PCBUs set out in Part 3 (worker engagement, participation, and representation).

Clause 26—which would become new clause 29D—would apply in situations where there was more than one duty holder; it would require each duty holder to discharge their duty to the extent to which they have the capacity to influence or control the matter. We recommend changing the phrase “capacity to influence or control” to “ability to influence and control”, to limit consideration of the duty holder’s influence and control to the actions that they would in practice be able to take.

Clause 27—which would become new clause 29E—would require people with overlapping duties to consult, co-operate and co-ordinate to ensure the overlapping duties were discharged. We recommend making it clear in new clause 29E that this duty would apply only to PCBUs and not to other duty-holders. We consider that PCBUs are best placed to discharge this duty so as to ensure good health and safety outcomes.

We recommend amending the definition of “workplace” in clause 15 to include places where work is “being” carried out (for example, on a power pole), or is “customarily” carried out (for example, a workshop). This would make it clear that a workplace does not remain a workplace indefinitely, once work has been carried out there.

We recommend amending clauses 32 and 33, which set out the duties of PCBUs who manage or control workplaces, or fixtures, fittings, or plant at workplaces. We recommend making the language in these clauses active. The duties should apply to PCBUs who manage or control workplaces, fixtures, fittings, or plant in a practical sense, rather than PCBUs who merely have an ability to manage these things.

We also recommend inserting new subclause 1B into clause 32 to make it clear that for the purposes of subclause (1), a workplace includes farm buildings and structures necessary for the operation of the farm, and the areas immediately surrounding them, but not other parts of the farm when work is not being carried out there.

We note that some farmers deny access to recreational walkers because of concern about their liability for potential accidents. Our proposed amendment should encourage farmers to allow walkers on their land without being unduly concerned about their liability. We encourage the Walking Access Commission and WorkSafe to continue to publish information for walkers and landowners about their respective obligations in this area.

We also recommend inserting clauses 32(1A) and 33(1A), to make it clear that the duties in these clauses would not apply in respect of a person who was in the workplace for an unlawful purpose, including trespassing.

Clauses 138 and 185 (which relate to notices and inspections) refer to the person with “management or control” of the workplace. This could be the PCBU, but we would not want it to be interpreted to mean only the PCBU. We want to make sure it includes those who would be present and overseeing operations, such as a foreman on a construction site. We recommend making these clauses clearer by referring instead to the person “in charge” of the workplace.

We recommend amending clause 47 to make it clear that the limitation on liability that would apply to appointed or elected members of a local authority or a board of trustees would apply only while they were acting in that capacity. This would be useful when office holders had split responsibilities in relation to the same PCBU.

An elected local authority representative should not owe duties in relation to activities undertaken by a council-controlled organisation unless they are also an officer of that organisation. Then, they should have the officer duty when acting in their capacity as an officer of the council-controlled organisation. We recommend inserting in clause 39, new subclause (3) to make this clear.

We recommend removing clause 48 as it is not consistent with New Zealand common law, which recognises that in some cases unincorporated bodies can be prosecuted.

We recommend re-ordering clauses 51 to 53 to reflect more logically the steps in the process following a notifiable event: preserve the site; notify the event; keep records. We also recommend that the option in new clause 52(2) of notifying the regulator by fax be removed, as fax machines are no longer common.

Clause 53—which would become new clause 51—would require the preservation of a site where a notifiable event had occurred. We recommend making it clear in new clause 51(1) that the PCBU who managed or controlled the workplace would be responsible for preserving the site.

We recommend removing clause 60, which is an outline of Part 3. As it contains no duties or obligations, it could create confusion. We believe that Part 3 should focus only on the overarching duties relating to engagement, worker participation, and representation.

Clause 62 sets out what would be required from PCBUs in engaging workers. Under clause 62(1)(a), relevant information about matters relating to work health or safety would have to be shared with workers. We recommend amending subclause (1)(a) to require this information to be shared in a timely manner.

We recommend amending clause 64(1) to make it clear that the duty to have worker participation practices would apply only to workers who carried out work for the business or undertaking.

Clauses 69 to 86 and 89 to 91 set out the procedural details for health and safety representatives and committees respectively. We recommend moving clauses 69 to 76, 78 to 86, and 89 to 91 into new Schedule 1A. This would raise the prominence of the two remaining duties in Part 3—to engage and to have effective practices—as the primary obligations on PCBUs. It would also help to make it clear that representatives and committees would not be required in some cases.

We recommend moving clause 88 into Part 3, subpart 2, as new clause 86A, thus combining the subparts relating to representatives and committees.

We also recommend inserting new clauses 7A to 7D into Schedule 1, so that existing participation systems could be transitioned.

We recommend inserting clause 109(2) to require the regulator, when asked to help resolve an issue relating to the cessation of work, to assist as soon as practicable after agreeing to do so.

We recommend under Schedule 1, new clauses 7B(5) and (6), that existing health and safety representatives be required to undergo training before being allowed to issue provisional improvement notices or direct unsafe work to cease.

We recommend inserting clause 92(5) to require health and safety representatives to give their PCBU a copy of any provisional improvement notice they issue.

We recommend amending clause 139 to require notices such as improvement notices or prohibition notices to be displayed “as soon as practicable” rather than “as soon as possible” because the display of a notice is not so urgent as to require it to be given the highest possible priority. We also recommend inserting clause 139A to allow (but not require) inspectors to put up notices at the workplace where they considered this was advisable, such as places where the risk is imminent and notification is urgently required, or where it is not certain that the person to whom the notice is issued can or will display it as required.

We recommend amending clause 310(3), which would amend the functions of WorkSafe under the WorkSafe New Zealand Act 2013, to require WorkSafe’s published information to include information about its approach to enforcement and its performance standards for its investigation process. We recommend corresponding changes to clause 206, which sets out the proposed functions of regulators other than WorkSafe.

We recommend removing clause 164(2). It is unnecessary, as the Summary Proceedings Act 1957 governs proceedings when an infringement notice is issued.

In clause 211(3), we recommend extending to 24 months the period by which the Minister must aim to publish the first Health and Safety at Work Strategy. This is a more workable timeframe for all parties, considering that in the same period those involved would also be adjusting to the new legislative regime. Too short a timeframe would risk diverting resources from the implementation of the bill.

We believe the bill’s maximum fines for offences against regulations should be aligned better with those in other safety regimes, such as the maritime and civil aviation sectors. In clause 221(1)(q) we recommend increasing from $30,000 to $50,000 the maximum fine for an offence created by regulation. In clause 221(1)(s), we recommend reducing the maximum infringement fee from $20,000 to $12,000. In Schedule 1, clauses 2(2) and 3(2), we recommend reducing the maximum fine from $250,000 to $50,000.

We recommend removing clause 148(4) and amending clause 170, to allow the regulator to keep prosecution costs. The removal of clause 148(4) would also allow the regulator to keep any costs awarded for monitoring compliance with an enforceable undertaking.

We recommend amending clause 227(1), which contains general provisions relating to regulations, so that it applies to all regulations made under the bill. We recommend inserting clause 227(1)(aa), to make it clear that regulations may specify similar or additional duties to those in the bill, and clauses 227(1)(e) and (f), to allow flexibility in the way regulations are formulated.

We recommend amending Schedule 1 by inserting clause 2(1A) so that various regulations may be amended if necessary, and may continue to operate until revoked.

In Schedule 2, which relates to the mining sector, we recommend inserting several clauses and amending others. Our changes would make it clearer how the legislation would apply to the mining sector. In relation to transitional provisions for mining, we recommend amending Schedule 1, clause 9.

We recommend amending clause 244, which would insert new section 174A into the Accident Compensation Act 2001. New section 174A(3) would allow the Accident Compensation Corporation to charge fees for participation in workplace incentive programmes (the fees and charges being set in regulations). Incentive programmes would be optional for businesses. Increasing the flexibility of funding would allow more flexible programme design.

We recommend amending Schedule 4, which would insert new Schedule 1AA, containing transitional and savings provisions, into the Accident Compensation Act 2001. Among other things, we recommend extending to 30 June 2019 the date on which the clauses in Schedule 1AA would be repealed. This would ensure the continuation of incentive programmes started before the commencement of the schedule.

We recommend a number of changes to clause 253, which would amend the interpretation section of the Hazardous Substances and New Organisms Act 1996. These changes are intended to reduce ambiguity in definitions relating to hazardous substances.

We recommend removing clause 256 and amending clause 290 so that the process for making decisions about hazardous substances would remain in regulations rather than being moved into tertiary legislation in the form of EPA notices.

We recommend inserting clause 258A to amend requirements relating to the EPA’s register of applications received, to include all applications for hazardous substance and new organism approval, including pending and withdrawn applications. New subclause (4) would allow the authority to withhold from the register information about transhipment applications that could pose a risk to national safety and security.

Clause 259 would allow the EPA to keep a register of all importers and manufacturers of hazardous substances. We recommend removing this clause, as such a register would not provide any clear benefit to the public or the EPA. The EPA would still be able to collect information on importers and manufacturers through an EPA notice.

We recommend amending clause 271 to allow reference to an international hazardous substance classification system.

We recommend amending clause 273, new section 76B(2)(a), to require the EPA to have regard to the benefits alongside costs before issuing an EPA notice.

We recommend inserting clause 275(2B), to provide that controls on hazardous substances may be set to limit the circumstances in which a substance can be used where the benefits of the restriction outweigh the adverse effects.

We recommend inserting clause 284(1B) to give the Civil Aviation Authority responsibility for enforcing controls relating to the discharge of hazardous substances in, on, and from aircraft.

We recommend further amendments to clause 284 to set out more clearly the enforcement roles of the EPA and of WorkSafe in relation to hazardous substances. Clause 284(1), new section 97(1)(a) would require WorkSafe to enforce disposal and ecotoxic controls (and equivalent conditions in group standards) in any workplace. Clause 284(2), new section 97(3)(d) would require the EPA to enforce certain matters relating to hazardous substances that are prescribed in an EPA notice. We recommend inserting clause 285C, to set out powers of entry for inspection relating to hazardous substances, and amending clause 286, to improve the offence provisions in section 109 of the Hazardous Substances and New Organisms Act.

We recommend inserting clause 287A to amend section 113 of the Hazardous Substances and New Organisms Act. New section 113(2) would allow regional councils to retain infringement fees that they collect, as territorial authorities are already allowed to do. New section 113(3) would require that all other infringement fees (those enforced by central Government agencies) be deposited in a Crown bank account.

We recommend inserting clause 289(2A) to increase the maximum hazardous substances infringement fee from $1,000 to $3,000. The current maximum is too low to deter non-compliance. Stronger deterrence is appropriate as the potential for harm can be significant.

It has been suggested that utility companies should be given access to a register established under the Dog Control Act 1996, which lists addresses where dogs are kept. We acknowledge that the risk to workers entering a property could be reduced if they knew whether or not a dog is likely to be present. However, amending the Dog Control Act is outside the scope of the bill.

The Maritime Operator Safety System (MOSS) is derived from the Maritime Transport Act 1994. It requires commercial ship operators to develop systems for managing the hazards associated with their operation. The bill sets out high-level, performance-based duties which are complementary to MOSS requirements. As there are overlaps, for example in requirements regarding identifying hazards and risks, new clause 29F (clause 23 in the bill as introduced) provides for compliance with other enactments. This would allow MOSS requirements to be considered when determining compliance with the legislation.

We understand it is intended that Maritime New Zealand continue to enforce health and safety legislation on board ships, as well as the requirements of the Maritime Transport Act. This would help to avoid duplication for ship operators. To keep it simple for them, we would expect Maritime New Zealand to keep a list of health and safety obligations that are additional to MOSS requirements.

With regret, Labour cannot continue to support this bill.

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 Workplace 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 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 claims about the implementation of health and safety law by WorkSafe officials, and questionable 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 fear-mongering 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 values 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.

The Green Party supports the overall purpose of this bill which is “to provide for a balanced framework to secure the health and safety of workers and workplaces.” There are, however, many instances where we feel that this bill, as amended, undermines that intention.

New Zealand First strongly supports the intent of the Health and Safety Reform Bill which is to reduce by 25 percent workplace fatalities and serious injury by 2020.

New Zealand First also accepts and acknowledges this legislation has been modelled on Australia’s health and safety model law. We recognise that Australia has a significantly lower record of incidents of harm in the workplace compared to New Zealand.

New Zealand First, however, cannot support this legislation in its current form as there are a number of “unintended consequences” which could create some major problems for some employers and employees if they are not properly addressed before the bill is passed.