HEALTH AND SAFETY REFORM BILL CHANGES COSMETIC
By Richard Rudman (author)
The Health and Safety Reform Bill returned to Parliament from the Select Committee last Friday, more than 15 months after the Bill was introduced to the House.
However Workplace Relations Minister Michael Woodhouse says he still has some more changes he wants to make.
He was forced into having the Transport and Industrial Relations Select Committee revise the Bill after widespread concern within both the Cabinet and National caucus that the Bill would make life difficult for small business and farmers.
There was some speculation that that concern went as far as a threatened rebellion by some backbench MPs.
If so, the rebellion was put down cheaply. None of the changes made by the Select Committee is that significant in the overall scheme of new workplace health and safety legislation.
But the changes appear to have cost National the support of Labour, New Zealand First and the Greens for the reforms.
As a result, the Bill’s passage through the House could be a drawn-out and tortuous process.
SELECT COMMITTEE’S MAIN CHANGES
Small businesses (those with fewer than 20 workers and not in a prescribed high-risk sector or industry) need not agree to a request from workers to establish a health and safety committee or arrange the election of a health and safety representative.
High-risk sectors and industries will be specified by regulation — which leaves it open for a government to negate this change for small businesses in any sector or industry with a bad safety record.
In any case, all businesses — large or small — are required to “engage” with their workers on health and safety matters that might affect them.
Engagement includes sharing relevant information; giving workers a reasonable opportunity to express their views and raise health or safety issues, and to contribute to decision-making; taking the workers’ views into account, and advising workers of the outcomes.
In addition, all businesses must have practices that provide reasonable opportunities for their workers to participate effectively in improving health and safety on an ongoing basis.
Given these duties, exemption from the requirement for a committee or representative seems little relief for small businesses.
DOWN ON THE FARM
The rural rump of the National Party caucus will claim success in getting the Select Committee to change the impact of the Bill on farms.
The Bill now limits a farmer’s duty to manage or control a workplace to farm buildings and structures needed for farm operations, and the immediately surrounding areas.
The rest of the farm is not a workplace, except where farm work is being carried out. Thus, a farmer does not owe a health and safety duty to recreational users on farm land, unless farm work is being carried out at the time. Nor is any duty owed to a person who is on the land unlawfully.
The government says the family farmhouse will also not be part of the workplace.
Which presumably means that a farmer will not owe a health and safety duty to a stock and station agent or banker who comes to a meeting in the farm office in the farmhouse.
That’s an interesting proposition, because the Bill does not exclude other home offices from the definition of workplace. Indeed, it makes specific reference to a workplace that is, or is within, a home.
If the government is serious about safety on farms, why give the farmhouse preferential treatment?
DEFINING THE WORKPLACE
The Select Committee has amended the definition of “workplace” to include places where work is “being carried out” (up a power pole, for example) or is “customarily carried out” (for example, a workshop).
This makes it clear that a workplace does not continue to be a workplace once work has been carried out in that place.
But, perhaps demonstrating the difficulties of ad hoc amendment by committee, the definition says a workplace includes any place a worker goes or is likely to be while at work — a power pole, for example, that a worker may have to climb one day.
The introduction of the concept of PCBUs – persons controlling a business or undertaking – is a feature of the new legislation.
PCBUs have a primary duty to ensure, so far as reasonably practicable, the health and safety of workers and others affected by their work. Unfortunately, it’s not that simple. The Bill’s detailed prescription of the duties of a PCBU stretch out over more than eight pages.
In some cases — on a building site, for example — there may be several PCBUs, each with the same set of duties to its workers and other people.
The Bill originally required each PCBU to discharge its duties to the extent that it had the “capacity” to influence or control the matter. The Select Committee changed this to “ability”, which limits the requirement to actions that a PCBU could practically take.
The government will amend the Bill so that a duty holder’s obligation to manage risk is limited to doing what it is able to control and manage, and what is reasonably practicable.
People with overlapping duties will be required to consult, cooperate and coordinate to ensure that their duties are met. The Select Committee says this should apply only to PCBUs and not to other duty holders.
DUTIES OF OFFICERS
The Select Committee wants the designation of “officer” used only for people in very senior governance roles (for example, directors and chief executives).
It has narrowed the Bill’s definition to cover only those in positions that allow them “to exercise significant influence over the management of the business or undertaking”.
It excludes a person who merely advises or makes recommendations to an officer.
The government plans other amendments. It will be made clear that the extent of an officer’s duty takes into account the nature of the business, and position and responsibilities of the officer.
And a duty holder’s responsibility to manage risk will be limited to what that person can influence or control.
WHAT ABOUT THE WORKERS?
The Bill defines “workers” as those who carry out work in any capacity for a PCBU. This includes employees, contractors and subcontractors and their employees, employees of labour hire companies, trainees, people on work experience schemes, and volunteers.
This is a major change from the current legislation, which is based on the employer-employee relationship.
Under the Bill, workers have a duty to take reasonable care for their own health and safety, and for those around them.
They must comply with the PCBU’s reasonable health and safety policies and procedures, and any instructions the PCBU gives in complying with the legislation.
In contrast to the detailed duties specified for PCBUs, the Bill needs only one clause for workers’ duties — just 102 words.
The Bill provides that a “volunteer association” — one that does not employ people to carry out work for the association — is not a PCBU. It is not subject to the legislation.
However, a “volunteer worker” is covered. This is a person who carries out work for a PCBU with its knowledge or consent, on an ongoing and regular basis, and is an integral part of the business or undertaking. This would include interns and others who work on an unpaid basis.
But “casual volunteers” are excluded. They are people who help with fund-raising, sports or recreation for an educational institute or sports or recreation club, or with an educational institute’s external activities, or care for another person in the volunteer’s home.
However, the health and safety of casual volunteers is covered by a PCBU’s duty to have regard for the health and safety of other people affected by the conduct of its business or undertaking.
The government has confirmed that it will not introduce an offence of corporate manslaughter in the health and safety legislation.
The Minister in charge of the Bill, Hon Michael Woodhouse, says that it already has a serious offence or reckless conduct resulting in a worker’s death, with a fine of up to $3 million for a corporation and imprisonment of up to five years for an individual.
However, the sentencing guidance in the Bill will require a court to consider death and real or potential harm when making a sentencing decision.
Richard Rudman is author of the annual New Zealand Employment Law Guide, published by CCH New Zealand Limited and available at www.cch.co.nz.