Contents Page: NZJER, 2017, 42(2)Name
Fiona Edgar, Ian
McAndrew, Alan
Geare and PaulaO’KaneBronwyn Neal

Taylor Sizemore

Title

Occupational Health & Safety:
introduction to the collection

Health and Safety At Work Act 2015:
Intention,
ImplementationAnd
Outcomes in the Hill Country Livestock
Farming Industry
Managerial attitudes toward the Healthand Safety at Work Act (2015): An
exploratory study of the Construction
SectorFelicity Lamm, Dave
Moore, Swati Nagar; Under Pressure: OHS of Vulnerable
Erling Rasmussen and Workers in the Construction Industry
Malcolm Sargeant
Christopher Peace

The reasonably practicable test andwork health and safety-related risk
assessments

Page
Numbers
1-4

5-21

22-38

39-60

61-78

Ian McAndrew, Fiona
Edgar and Trudy
SullivanDiscipline, Dismissal, and the Demon
Drink: An Explosive Social Cocktail

79-93

Erling Rasmussen

Editorial: Employment relations and the2017 general election

94

Barry Foster and Erling The major parties: National’s andRasmussenLabour’s employment relations policies
Peter Skilling and New Zealand’s minor parties and ER
Julienne Molineaux
policy after 201795-109110-128

New Zealand Journal of Employment Relations, 42(2): 1-4

Occupational Health & Safety: introduction to the collection
FIONA EDGAR, IAN McANDREW, ALAN GEARE and PAULA O’KANE
University of Otago
At 3.44 in the afternoon of Friday November 19, 2010, an explosion in the Pike River Mine on
the West Coast of Aotearoa New Zealand’s South Island trapped 29 men underground.
Following three additional explosions over the next 10 days, police accepted that the men could
not be alive and attention turned from rescue to an unsuccessful effort at recovery. The disasterremains on the public consciousness seven years later, as families of the victims continue topress authorities for the mine to be entered and the bodies of their lost men finally recovered.
The Pike River disaster has also affected the public consciousness in another way as well. In
terms of the loss of human life, it was amongst the most costly workplace episodes in New
Zealand history. In looking for explanations, attention quickly turned to weak mine safety
regulations and inadequate mine safety inspections, which in turn led to a wider concern withthe general inadequacy of New Zealand’s Occupational Health and Safety (OHS) regime.
These inadequacies were reinforced when an earthquake hit Christchurch for the second timein February 2011, resulting in further loss of life, including many people at work. The urgency
to do something increased.
New Zealand is not alone in experiencing recent workplace tragedies, and OHS is increasingly
recognised as an important Employment Relations (ER) issue, with inherent obligations on
employers and the State to keep workers safe. In developed countries, a key contributory
element for the escalation of occupational illness, injuries and death has been the diminishingrole of unions as workers’ advocates, with neither government regulation nor employer ER
initiatives moving sufficiently or sufficiently quick to fill the void. The Pike River disaster andits aftermath served to highlight two important realities: by comparison with others, New
Zealand’s occupational accident and injury rates were high; and employers were notsufficiently attentive to or held accountable for the welfare of their workers.
Impelled by a ground swell of public opinion, change was deemed urgently necessary andemployer groups in conjunction with the State belatedly swung into action. This was evidenced
by the commissioning and development of a series of working papers and reports (e.g. The
Report of the Independent Taskforce on Workplace Health and Safety, April 2013; Wellness inthe Workplace, 2013; and Workplace Health and Safety, 2012), with this work subsequently
informing a revamping of OHS legislation. In April of 2016, the Health and Safety at WorkAct (HSWA, 2015), which is explicitly aimed at securing “the health and safety” of workplaces
and their employees came into force. A new regulatory agency, WorkSafe New Zealand, wasestablished by the HSWA.
This Act has raised a lot of questions about employers’ obligations and liabilities in the OHS
arena, and it is against this backdrop that we were delighted to be invited by the Editors of the
NZJER to convene this collection of papers on aspects of the broad and multi-faceted field ofworkplace health and safety. We see this collection as a beginning that urgently invites further
research attention to this vital area of study.

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New Zealand Journal of Employment Relations, 42(2): 1-4
Primary industries remain key drivers of the New Zealand economy and to some extent lifestyle
as well, and the first paper in our collection illustrates the difficulties of adequately regulating
for worker safety in this arena, and the complexities of regulating for worker safety across adiverse economy. Bronwyn Neal highlights peculiarities of hill country farming as an industry
from an OHS perspective, including the uncontained nature of the workplace, the involvementof family labour and the integration of workplace with lifestyle, and the long tradition of publicaccess to the privately-held terrain of the high country. Neal contends that, in the hill country
farming sector, the Act has prompted peripheral issues to become the main focus, thus
detracting attention away from the more serious risks experienced in this sector. She points toa contradiction of enforcement, engagement, and education functions of the newly-establishedState regulatory agency, WorkSafe, as undermining its effectiveness in this iconic New
Zealand industry.
Construction is another vital and high profile industry in New Zealand, both because of ageneral shortage of housing stock, particularly in Auckland, the country’s largest market, anddue to the reconstruction continuing in Christchurch and the wider Canterbury area following
the earthquakes of 2010, 2011 and subsequently. The HSWA places a lot of emphasis on
managerial commitment and worker involvement as key pillars of a rejuvenated drive foroccupational safety, and the second paper by Taylor Sizemore examines this focus in theconstruction industry. Sizemore finds commitment to improving workplace health and safety
is being addressed largely through enhanced employee involvement; however, the efficacy ofthese initiatives may be thwarted by the complacent attitudes of workers. Nonetheless, hisinterviews with construction industry managers responsible for OHS within their organisations
revealed some positive changes in the safety culture of firms in the industry and provided
reasons for optimism.
We stay in the construction industry for our third paper, but with a wholly different focus. A
special issue on OHS would not be complete without a review of worker vulnerability and thisarticle takes up this important issue. Using the catalyst of the Christchurch earthquakes andtheir subsequent impact on the construction industry, Felicity Lamm, Dave Moore, Swati
Nagar, Erling Rasmussen, and Malcolm Sargeant apply Quinlan and Bohle’s ‘Pressures,
Disorganization and Regulatory Failure’ model to probe issues pertaining to the OHS and subcontracted workers in this industry. They propose a model which recognises the interests ofmultiple stakeholders, combined with the fostering of intra-industry collaboration, as potential
mechanisms for enhancing the outcomes of this vulnerable worker group.
A cornerstone of past and current OHS legislation in New Zealand, as in a number of otherjurisdictions, is and has been the obligation on employers to take ‘reasonably practicable steps’
to ensure the safety of workers (and others). This involves the interpretation of those terms andthe application of that principle to the facts and circumstances of particular situations. As such,the obligation has been at the contentious centre of academic discourse and, of course, of many
adjudicated cases as well. Continuing with the legislative theme, our fourth paper by
Christopher Peace explores the origins of the ‘reasonably practicable test’ both in common law
and in New Zealand’s and Australia’s health and safety legislation and asks what a risk
assessment under these current legislative frameworks might look like.
For our final paper, we take a different approach and consider New Zealand’s problematic
drinking culture and its confounding impact on the workplace, examined in an exploratory
study by Ian McAndrew, Fiona Edgar and Trudy Sullivan. It is accepted that alcohol serves asometimes functional purpose as a social lubricant in many work-related and workplace3New Zealand Journal of Employment Relations, 42(2): 1-4
situations. However, research has also established the harmful effects of workers intoxicationon the job, reporting for work ‘hungover,’ or workers otherwise impacted by inappropriate
alcohol consumption by themselves, their employers, their co-workers, or others with whomthey interact in their employment. Drug and alcohol consumption are now recognised asmodern day threats to workplace health and safety. Our final paper examines one aspect of
alcohol in the workplace as an OHS danger, invoking the same employer and worker
obligations that attach to any threat to workplace safety. The focus is workplace social events,
including after-work drinks and the iconic ‘work Christmas party’; a source of so-muchpleasure and pain in so many workplaces. McAndrew et al examine a number of significant
behavioural issues that can occur at these events, including acts of physical aggression andsexual harassment, and highlight the lessons to be gleaned from this study.
In concluding this introduction, we wish to redraw attention to the broad range of issues whichfall within the gamut of OHS, noting that the breadth of topics addressed within this special
issue afford testament to this. We thank the authors for their valuable contributions, andencourage others to contribute to this vital area of regulatory and ER policy and practice.

4

New Zealand Journal of Employment Relations, 42(2): 5-21

Health and Safety at Work Act 2015: Intention, Implementation
and Outcomes in the Hill Country Livestock Farming Industry
BRONWYN NEAL*
Abstract
The recently enacted Health and Safety at Work Act 2015 applies across all New Zealandindustries. The unique workplace environment and industry culture of the hill country
livestock farming sector makes application, implementation and enforcement of the Act inthis context uniquely challenging. In contrast to other industries, hill country livestock
farming has an uncontained workplace complicated by family and public involvement.
WorkSafe, as a “fair, consistent and engaged” regulator, seeks to establish health and safety
as one of the industry’s key cornerstones, alongside lifestyle, profit and sustainability.
Results to date have been undermined by WorkSafe’s conflicting enforcement, engagement
and education functions. There is a perceived misplaced focus on enforcement of low
probability, peripheral hazards rather than the key risks that cause accidents. This paper
explains the implications of significant changes under the Act for the industry. It also
recommends legislative adaptations to address the inadequacies of the farming exception
in s 37. An alternative WorkSafe strategy that focuses on effecting compliance throughsupply chain demand and economic drivers rather than enforcement is outlined.
Key words: Health and Safety at Work Act 2015, hill country livestock farming, healthand safety, WorkSafe, workplace

Introduction
This paper is a case study on the impact of the Health and Safety at Work Act 2015
(HSWA) within the hill country livestock farming industry. This industry warrants specificconsideration because the unique culture and workplace environment makes applicationand enforcement of the Act within this context distinctly difficult. As the industry isstrongly represented in New Zealand’s workplace injury and fatality rates, WorkSafe will
not achieve key performance indicators without addressing health and safety deficiencies
within this sector. As a result, the industry is currently subject to intense enforcement andregulatory attention. The object of this article is to assess the application, enforcement andcurrent effectiveness of the Act within this industry and determine necessary modifications
to the current regime. This paper highlights relevant changes under the new Act. The*

Bronwyn Neal, LLBHONS/BCOM student at Victoria University of Wellington. This is an abridged versionof the paper submitted for LAWS489 Honours Research Essay. In grateful acknowledgement of his help andassistance, I would first and foremost like to thank my supervisor Gordon Anderson. I also acknowledge theagricultural advice of Derek Neal, Stephen Franks for initial ideas, Ayla Ronald for her practical experienceand Al McCone for providing an insight into WorkSafe

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New Zealand Journal of Employment Relations, 42(2): 5-21
imbalance between enforcement and encouragement with a particular focus on WorkSafe’s
current implementation strategy is addressed. Difficulties inherent in the legislation whenapplied to the industry are identified and legislative and strategic changes recommended.

I Background to the HSWA and WorkSafe
The loss of 29 miners in the Pike River mine tragedy on 19 November 2010 highlighted
multiple workplace health and safety issues in New Zealand (Royal Commission on the
Pike River Coal Mine Tragedy, 2012). The ensuing comprehensive response included
enacting the HSWA and forming WorkSafe New Zealand.
WorkSafe is a New Zealand Crown entity, established in 2013, to replace its predecessor
the Occupational Safety and Health Service (WorkSafe New Zealand Act 2013). WorkSafe
has a tripartite function to safeguard health and safety in New Zealand workplaces througheducation, engagement and enforcement (WorkSafe New Zealand, 2016a)

II The Industry Requires a Degree of Separate Treatment
Hill country livestock farming is an industry sector of New Zealand agriculture.
Agriculture accounts for 38 per cent of workplace fatalities since 2011 and seven per centof workplace serious harm notifications (WorkSafe New Zealand, 2016b). Researchsuggests disparity between the fatality rate and serious harm notifications is the result of
under-reporting rather than the nature of agricultural accidents (Lovelock & Cryer, 2009).
Under-reporting is likely driven by both “negation and denial of ill-health” and minimalcompensatory benefits for minor injuries (ibid: 23).
Hill country livestock farming is a unique industry with a clearly distinguishable culture of
stoicism, pragmatism and self-sufficiency. Family and work are entwined and members of
the public are frequently permitted gratuitous, often unsupervised, access to the workplace.
The work is intensely physical and highly varied, requiring skilled use of various
machinery and an acute awareness of the risks involved in unpredictable elements of theindustry, such as climate and stock handling. The whole farm is a potentially active
workplace, with some parts worked only occasionally, often in remote and isolated
conditions. This strongly contrasts to other relatively contained workplaces, such as
factories and mines, in which the traditional health and safety model is designed to operate.
Family members are often intimately involved in farm work and thereby exposed to thesame risks as workers. This complicates the formulation and implementation of workplace
health and safety initiatives because industry receptiveness is not solely determined by theeffects proposed changes have on their businesses, the impact on family lifestyle is equally
relevant. A pertinent example is WorkSafe guidance which prohibits carrying passengers
on quad bikes (WorkSafe New Zealand, 2014a). This and similar rules not only affectworkers, but also significantly constrain the traditional family-work integration.
The HSWA is drafted to apply universally across all industries and, consequently, it
inadequately addresses the specific industry culture and interaction between the workplace,6New Zealand Journal of Employment Relations, 42(2): 5-21
family and public associated with hill country livestock farming. These unique features
justify industry specific regulation and legislative adaptations.

III Key Features of the HSWA
Multiple individuals within a workplace have the capacity to influence health and safety
risks. The HSWA capitalises on this by converting potential into a positive obligation tocontrol and eliminate health and safety risks within the workplace as far as is “reasonably
practicable”. The “reasonably practicable” threshold is a known concept in New Zealandhealth and safety law because it was used to define “all practicable steps” in s 2A of the
Health and Safety in Employment Act 1992 (HSEA). While not immediately apparent fromthe s 22 definition, unlike the HSEA, the focus of the HSWA is on risks rather than hazards(McKenzie, 2016; Schmidt-McCleave & Shortall, 2016). The initially suggested definitionof “risk” was “the possibility that death, injury, or illness might occur when a person is
exposed to a hazard” (Health and Safety Reform Bill (192-2): 30). However, the SelectCommittee decided against including any definition “to encourage people to consider whatrisk means to them, in their particular circumstances” (Health and Safety Reform Bill (1922): 5).
A Duty Holders and Their Obligations
The three main duty holders under the Act are persons conducting a business or undertaking(PCBUs), workers, and others present on the workplace. This is a change in terminology
from the “employer” and “employee” categories of the HSEA (s 6). This change will affectparticular industry business structures as discussed in part three/this section.
The primary duty of care is the most onerous duty, requiring a PCBU to “ensure, so far as
is reasonably practicable, the health and safety of workers who work for the PCBU while
the workers are at work in the business or undertaking” (HSWA: s 36). A PCBU breaches
this duty by failing to ensure health and safety, irrespective of whether this failure results
in an injury or fatality (Haynes v CI & D Manufacturing Pty Ltd, 1994). The change interminology from “employee” under the HSEA to “worker” is intended to make it clearthat people who are workers, though they may not be strictly classed as employees, areowed a primary duty of care (Health and Safety Reform Bill (192-2)). Federated Farmers
notes that this resolves the status of contractors (Federated Farmers as cited in Neal, 2016).
A PCBU also owes a duty to people who are not workers to “ensure, so far as is reasonably
practicable, that the health and safety of other persons is not put at risk from work carriedout as part of the conduct of the business or undertaking” (HSWA: s 36(2)). This ismarginally more onerous than the corresponding duty under s 15 of the HSEA.
Workers and other persons at the workplace are under correlative duties to take reasonablecare concerning health and safety towards themselves, others and to comply with policies
and instructions of PCBUs.
The addition of a duty on others at the workplace ensures that everyone is compelled topartake in workplace health and safety (McKenzie, 2016). As a result, multiple individuals
7New Zealand Journal of Employment Relations, 42(2): 5-21
often owe duties in relation to the same risk. In this situation, all duty holders are required
to discharge their duties (HSWA: s 33).
B Changes Under The HSWA
The class of people obliged to discharge a duty of care has widened, penalties increased
and PCBUs are required to undertake more worker involvement. Notwithstanding thesechanges the overall intention, enforcement potential and the nature of the duties are notmaterially different under the HSWA when compared with the HSEA. As discussed below,
the noticeable increase in health and safety inspections and enforcement actions pre-dated
the HSWA coming into force and are instead the result of WorkSafe’s conception rather
than legislative reform.
1 Enforcement of the HSWA
The duties and obligations under the HSWA when compared with the HSEA are a variation
on an existing theme rather than a revolution of health and safety law. While Pike River
was the tipping point that spurred the creation of WorkSafe and an overhaul of the HSEA,
concern for New Zealand’s workplace health and safety and corresponding initiatives
predated the mining disaster (Dyson, 2005). Recent prosecutions brought under theenforcement provisions of the HSEA, such as Jones v WorkSafe New Zealand, suggest thatthe HSEA can be an effective enforcement instrument. Therefore, asserting that the HSWA
has caused increased enforcement and scrutiny of workplace health and safety confusescorrelation in timing with causation. The real cause was the establishment and funding of
WorkSafe in 2013, an organisation tasked with enforcing health and safety law whichmerely coincided with the formulation of the HSWA.
2 Penalties
Depending on the gravity of the offending, fines under the HSWA can be issued for up to$3,000,000 for companies, $600,000 for PCBUs and $300,000 for individuals (HSWA: s
47(3)). This is a significant increase from the maximum $500,000 penalty under the HSEA
(s 49(3)(b)). The purpose of significant penalties is to ensure that foregoing health andsafety compliance expenditure is not a feasible competitive advantage strategy(Independent Taskforce on Workplace Health and Safety, 2013a). While the potential fines
are significant, to put the prospect of enforcement action in perspective, “in the past two
years, on average only one in 600 visits by an inspector resulted in a fine, and just one inevery 5,000 businesses in New Zealand is prosecuted” (WorkSafe New Zealand, 2016c).
All of WorkSafe’s enforcement tools under the HSWA are discretionary, including any
action taken and penalty imposed. WorkSafe’s guiding principles in the use of thisdiscretion are “proportionality”, “transparency”, “consistency” and “accountability”(WorkSafe New Zealand, 2017). A significant change from the HSEA is that enforcement
action need not be preceded by a warning (HSEA: s 56B(1)(b)).
Minor infringements of the HSWA are likely to result in a verbal warning from WorkSafe.
More serious infringements may be addressed with either an improvement, prohibition,
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New Zealand Journal of Employment Relations, 42(2): 5-21
non-disturbance or suspension notice (HSWA: s 100). WorkSafe may agree to an
enforceable undertaking which advantageously for the duty holder “does not constitute anadmission of guilt” (HSWA: s 123). If the notices or undertakings are not complied with,WorkSafe is empowered to enforce them (HSWA: ss 119, 122, 126 and 127). People who
contravene the HSWA may be prosecuted by WorkSafe within 12 months of the offence
occurring (HSWA: ss 137, 146(1)(a)).
The HSWA also introduces the ability for private prosecutions to be brought by workers
or unions provided that WorkSafe does not intend to take enforcement action and theplaintiff has obtained leave from the District Court (s 144). Private prosecutions are likely
to be more common in other industries where workers are assisted by union funding andpractical support (Dabee, 2015).
WorkSafe’s enforcement actions are difficult to predict because policy does not define thetypes of conduct that amount to minor as opposed to serious infringements (WorkSafe New
Zealand, 2016d). To resolve this uncertainty, a clear explanation by WorkSafe of the
conduct that will result in specific enforcement measures is required. The current reportsthat outline WorkSafe’s Enforcement Decision Making Model and the principles applied
are too generally written to provide specific guidelines for the industry (WorkSafe New
Zealand, 2016e).

IV HSWA In The Context of Hill Country Livestock Farming
The following section addresses changes under the HSWA that are particularly relevant to
the hill country livestock farming industry, including the enlarged definition of the primary
duty holder, creation of the role of “officer” and application of the farming exception.
A PCBUs
Hill country livestock farms are most commonly structured as partnerships or sole trader
operations. Companies are usually the product of intergenerational succession or arise
when outside equity has been introduced.
The HSWA changes the primary duty holder from the “employer” to a PCBU and also
creates a new role of “officer” under s 18. Sole traders are relatively unaffected by thischange because they are both employers and PCBUs (HSEA: s 2(1)). In contrast, thechanges have significant implications for farming partnerships and companies because,
applying the s 16 definition of “person”, a PCBU includes “any body of persons whether
corporate or unincorporate” so where companies or partnerships are engaged in a businessor undertaking they are now under a primary duty of care.
B Officers
Where a PCBU is a partnership or a company, directors and partners are deemed “officers”
under s 18. On well-reasoned grounds, Campbell and McVeagh (2016) maintains that“director” under this section is restricted to a person actually occupying the position of
director of a company and does not include people encompassed by the extended class of
directors captured by s 126 of the Companies Act 1993.
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New Zealand Journal of Employment Relations, 42(2): 5-21

Under s 44 officers must “exercise due diligence to ensure that the PCBU complies with[their duties and obligations under the Act]”. This is an objective standard, “taking into
account (without limitation) the nature of the business or undertaking; and the position of
the officer and the nature of the responsibilities undertaken by the officer”. Specific steps
an officer must take to discharge their due diligence obligations are set out under s 44(4).
As this is a duty of due diligence, officers are required to take an active interest in the healthand safety of the business, ignorance is no excuse (Mason v Lewis, 2006; FXHT FundManagers Ltd (in liquidation) v Oberholster, 2010; Blanchett v Keshvara, 2011).
1 Trustees
An area of uncertainty is the obligations of trustees. A common industry business structure
involves leasing the family farm from a trust as part of a succession arrangement. Trustees
under this arrangement may or may not be classified as a PCBU. Campbell and McVeagh(2016: 219) argues that the role of “officer” is limited to people who are PCBUs because
the definition of “officer” requires that the person “occupy a position in relation to thebusiness”.
However, Campbell and McVeagh (2016: 220) also acknowledges “the contrary argument
is that s 18(b) refers to a position in relation to the business or undertaking, not a positionin the business itself”. On the plain wording of the section, this argument is morepersuasive. The overall theme of the Act is to extend duties to people who are able toinfluence health and safety at work (McKenzie, 2016). This purpose would be frustrated if“officer” were restricted to people who occupy a formal position in relation to a business.
Whether or not the section requires a trustee be a PCBU, they will not be classified as an“officer” unless they are “occupying a position in relation to the business or undertaking
that allows the person to exercise significant influence over the management of the businessor undertaking” (HSWA: s 18(b)). Where trustees are intimately involved in the farming
business they are more likely to meet this criteria than if they are acting in a strictly advisory
capacity. Campbell and McVeagh (2016) expects that “where the line of significant
influence will be drawn is likely to remain uncertain for a considerable period” (p.220).
Case law clarification of this issue will be well received by the industry.
C Farming Exception
Under s 37 a “PCBU who manages or controls a workplace must ensure, so far as isreasonably practicable, that the workplace, means of entering and exiting the workplace,and anything arising from the workplace are without risks to the health and safety of any
person”. Nearly the entire farm, through fencing, mustering, tractor work or other activities,
with the exclusion of unproductive zones such as fenced off bush, is a “place where work
is being carried out or is customarily carried out, for a business or undertaking; and includes
any place where a worker goes, or is likely to be while at work” (HSWA: s 20(1)). Thismeans that “workplace” under s 20 encapsulates practically the entire farm.

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New Zealand Journal of Employment Relations, 42(2): 5-21
During the select committee stage, farmers expressed concern about their potential liability
under this section when hosting community events, such as dog trials and school
fundraisers and when allowing recreationalists, such as hunters and walkers gratuitousaccess (Federated Farmers). In response, the select committee inserted s 37(3) (Health and
Safety Reform Bill (192-2)). Under s 37(3) where a PCBU is conducting a farming businessor undertaking the s 37 duty:(a) applies only in relation to the farm buildings and any structure or part of
the farm immediately surrounding the farm buildings that are necessary forthe operation of the business or undertaking:(b) does not apply in relation to –(i) the main dwelling house on the farm (if any); or(ii) any other part of the farm, unless work is being carried out in that partat the time.
When advising PCBUs on their s 37 duty, WorkSafe’s information sheet states that(WorkSafe New Zealand, 2016f):
Farmers are not responsible for the safety of people crossing a farm in nonwork areas and away from farm buildings. However, they must ensure thatwork carried out as part of the business (at any location on the farm), doesn’t
put others at risk.
This advice credits s 37 with giving farmers a blanket protection against liability for healthand safety of others on the farm unless they are in a location encompassed by narrow
definition of a farming “workplace” under s 37 (WorkSafe New Zealand, 2014b).
This is incorrect. The narrow definition of “workplace”, known as ‘the farming exception’,
only applies to s 37. Every other reference to “workplace” in the Act invokes the s 20
definition which effectively encompasses the entire farm. WorkSafe advice regarding
farmers’ duties to others at the workplace only takes s 37 into account. When s 37 is readin light of a PCBU’s obligations under ss 36 (primary duty of care), 38 (duty of PCBU whomanages or controls fixtures, fittings, or plant at workplaces) and 39 (duty of PCBU who
designs plant, substances, or structures) it is evident that farmers are under duties in respectof multiple areas and structures on the farm that are not encompassed by the narrow s 37(3)definition.
In light of ss 36, 38 and 39, a PCBU essentially owes a duty to others in respect of theentire farm. The issue would be partially resolved if the s 37(3) restricted definition of a
farming workplace were removed from the s 37 duty provision and inserted in the s 20
definition of “workplace”. There would also need to be a reference to this definition in thes 36 primary duty of care. However, this will not resolve the inherent flaws in the s 37(3)definition. It is evident from the wording of the provision that the exception intends to limit
workplace to the immediate vicinity of the farm buildings. The issue is that this intention
is executed on the assumption that farms consist of a single set of buildings in close
proximity. The definition does not allow for farms that have woolsheds and covered yards
in multiple locations around the farm. It is, therefore, unclear whether satellite buildings
11New Zealand Journal of Employment Relations, 42(2): 5-21
and their immediate surroundings are also classified as part of the “workplace” under s37(3)(a).
A superior resolution is to repeal the restricted definition of “workplace” and insert a newprovision in s 20, cross referenced to s 36, which defines a farming workplace in terms ofcommercial activities. This would more accurately address the concern that prompted theinitial insertion of s 37(3) because “workplace” would include places where farm work
occurs and areas accessed by paying public, such as walkers and hunters, but not apply toplaces where people are gratuitously granted access. This would “encourage farmers toallow walkers on their land without being unduly concerned about their liability” which isthe purpose the farming exception initially intended to fulfil (Health and Safety Reform
Bill (192-2): 8).

V Encouragement and Enforcement
WorkSafe repeatedly states in reports the importance of appearing to be a regulator who is“fair, consistent and engaged” (WorkSafe New Zealand, 2016a: 2). There is a distinct andclearly evident disjunction between how WorkSafe aspires to be perceived and how it iscurrently viewed by the industry (Brown, 2015). This derives from flaws in the structureof WorkSafe itself and general industry attitudes that oppose external regulation of healthand safety (Lovelock & Cryer, 2009).
A WorkSafe’s Dual Roles as Enforcer and Educator
The Independent Taskforce advised that culture change campaigns face less resistancewhen they are run independently of enforcement organisations (Martin Jenkins, 2013).
WorkSafe’s conflicting roles as enforcer, educator and engager are inconsistent with thisrecommendation and, as a result, stakeholders struggle to delineate when inspectors are
visiting to educate or inspecting to enforce. While recognising that “businesses value theregulator itself providing education because it helps them to understand when and why thatsame body may take enforcement action”, the negative consequences of the conflictingroles significantly outweigh this limited benefit (MBIE, 2016: 8).
The negative externalities of WorkSafe’s dual roles have caused counter-productive
industry reactions. For example, rather than approaching WorkSafe for health and safetyadvice farmers are employing ‘independent’ consultants (Wairarapa Times-Ages, 2016).
Consultants have an interest in promoting negative aspects of the HSWA which, if done,
perpetuates inaccurate understandings of health and safety reform (Farmers Weekly NZ,
2016)
Another issue with perceiving WorkSafe as an enforcer rather than an educator is that
farmers have developed a culture of liability avoidance rather than taking ownership of
their business’ health and safety as the reforms intended. This is best illustrated by the now
common practice of farmers requiring visitors to sign waivers of liability for their healthand safety. Brown (2015) noted one farmer he interviewed who “felt certain that as long as
they had a health and safety declaration signed that they would be absolved from any
12New Zealand Journal of Employment Relations, 42(2): 5-21
responsibility” (p.24). This is incorrect because provisions that “exclude, limit, or modify”
the PCBU’s duties under the HSWA are expressly prohibited by s 28 so persons cannot
contract out of the HSWA.
Further evidence of a compliance driven approach is the proliferation of detailed, written
health and safety policies. Few farmers are aware that written policies alone are insufficient
to discharge their obligations (Farmers Weekly NZ, 2015). If the policy is not enforced ordoes not provide for contingencies, the PCBU has not done all that is reasonably practicable
to ensure health and safety (Inspector Beacham v BOC Ltd, 2007).
The most effective solution is to separate WorkSafe’s enforcement and education functions
so that WorkSafe advisors are both ostensibly and actually independent. Practical
implications may mean that a total severance between the two functions is unrealistic but
at a minimum clear separation may assist industry perception.
B Enforcement – Prosecution and Fines
Limited enforcement of the HSEA led to low levels of compliance, illustrating thatenforcement is a necessary part of ensuring health and safety changes under the HSWA
occur (Independent Taskforce on Workplace Health and Safety, 2013). Where enforcement
action is pursued it is essential to garnering support from the industry that it is perceived
as proportionate and reasonable. As the Taskforce for health and safety culture change
explained (Martin Jenkins, 2013: 30):
There is a need to create positive motivations to focus on health and safety inthe workplace, rather than presenting as (burdensome) compliance. A
campaign must work from where people are currently in their views andbehaviours, and address the choices and decisions which need to change – it is
not simply about making people feel bad about their actions, and should not beperceived as telling them what to do. Using messages that focus on thepossibility of positive change as opposed to using shock value to highlight theconsequences of non-compliance may assist this.
WorkSafe’s actions in enforcing the HSWA can serve to establish their credibility as a fair,consistent and engaged regulator. The opportunity to cultivate industry acceptance ofincreased health and safety regulation through cultural change may be irrevocably harmed
if WorkSafe takes a hard line towards enforcement at the expense of education initiatives
during the early stages of implementation of the HSWA. Caution is required to ensure that
pursuing a small percentage of change resisters does not alienate the target group.
Where prosecution is commenced, it is essential that WorkSafe publicise reasons forpursuing enforcement in the relevant situation. This can add weight to evidencing
WorkSafe’s stated aspirations as a fair, consistent and engaged regulator. Published court
summaries on WorkSafe’s website set out the fines, reasons for pursuing the case andsafety lessons learned. The clarity of this message would be improved if the summaries
were more widely publicised.
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New Zealand Journal of Employment Relations, 42(2): 5-21

Clarity of reasons for pursuing enforcement action is particularly important whencontroversial cases attract widespread media attention. This was an issue in Jones v
WorkSafe New Zealand. The message in the rural community was that the farmers had been
fined an excessive amount for not wearing helmets on farm quad bikes (Brown, 2015). It
was not widely known that the defendants had been issued multiple warnings before
WorkSafe decided to prosecute (Jones v WorkSafe New Zealand, 2015).
Proportionality of penalties is equally essential in garnering industry support for increased
health and safety regulation. In Jones v WorkSafe New Zealand the District Court finedHolmes $15,000 and Carlson and Jones $20,000 each. Although on appeal the fines werereduced to $12,000 each, the fines were manifestly excessive. A motorcyclist who fails tosecurely fasten or wear a helmet on the road and is liable for a maximum $1000 if the fineis challenged and upheld (Land Transport (Offences and Penalties) Regulations 1999, sch
1 cl 7.12(1)). In principle, this fine may represent multiple breaches but it is 12 per cent of
the fines for not wearing helmets on a farm quad bike. The magnitude of the fine may beconsidered especially disproportionate given that the requirement to wear a helmet is not
expressly legislated.
C Encouragement - Economic and Social Motivators
The Independent Taskforce on Health and Safety was critical of New Zealanders’ “highlevel of tolerance for risk, and negative perceptions of health and safety” which is the resultof “kiwi stoicism, deference to authority, laid-back complacency and suspicion of red tape”(Independent Taskforce on Workplace Health & Safety, 2013b: 12). This is particularlyreflective of hill country livestock farming.
Though no farmer intentionally seeks to get injured at work, health and safety is not seen
as a key cornerstone of the industry. The industry has been generally resistant to health andsafety reform (Mazengarb’s Employment Law (NZ), 2016). Brown (2014) concluded frominterviews that the industry “demonstrated almost a failure to understand the need forchange”, noting a “strong feeling for the use of common sense, and many times the question
was raised as to why there couldn’t be an expectation on others to use it” (p.26). There isa lack of acknowledgement that “common sense” is gained through experience by those
who are brought up in the industry.
Despite resistance to health and safety regulation, strict implementation and enforcementof the HSWA is neither the most efficient nor the most effective approach to achieve healthand safety aspirations. The three key drivers of family farming operations are lifestyle,profit and sustainability. The challenge for reform initiatives is to establish health andsafety as the fourth driver.
The Taskforce on Culture Change explained that “a positive business case needs to be
developed for good health and safety, breaking the perception that there is a trade-off
between health and safety and productivity and profit” (Martin Jenkins, 2013: 31). This is14

New Zealand Journal of Employment Relations, 42(2): 5-21
particularly important in an industry where farmers are generally too pragmatic to see thepurpose compliance for compliance’s sake.
Marketing health and safety as a growth and income assistor will help to counter theperception that compliance is a costly hindrance. Rather than encouraging compliance withhealth and safety to avoid negative enforcement consequences, emphasis should be placedon how reduced risks will lead to higher productivity and profits. For example, adopting
technology such as dagging machines reduces strain, chance of injury, increases efficiency
and minimises stress on sheep. An increased focus on highlighting these positive effects ofhealth and safety compliance will improve industry response to proposed changes.
Where media campaigns are used to promote health and safety, use of defensibly accurate
information is essential. The Advertising Standards Authority (ASA) recently requested
that WorkSafe remove television advertisements which were found to be misleading andincorrect (Advertising Standards Authority Appeal Board, 2016). The ASA held that“taking into account the important safety message in the advertisement, it did not reach thethreshold to, unjustifiably, play on fear” (ibid: 1). This is inconsistent with being a fair,consistent and engaged regulator.
Economic motivators can also be implemented within the supply chain. ACC are offering
reduced premiums in exchange for evidence of sound health and safety systems. WorkSafe
is encouraging meat processors to undertake health and safety audits of suppliers similar
to the chemical, animal welfare and environmental quality assurance requirements alreadyput in place by industry meat processors (for example: Silver Fern Farms, 2013; AFFCONew Zealand, 2015; ANZCO Foods).
Supply chain demand will necessitate compliance. The effectiveness of meat processor
health and safety audits cannot be understated. Market access is essential to farming
business, if that access is restricted by health and safety requirements the set standards will
be met.
Social pressure is another effective and efficient means of implementing a culture change.
WorkSafe is currently “leveraging off roadshows, field days, industry forums,
presentations and assessments” (MBIE, 2016: 9). They are also cultivating social pressure
through partnerships with key industry stakeholders such as Agriculture Women’sDevelopment Trust and Taratahi. Targeted farmers are being educated through these
initiatives and it is anticipated that by being industry insiders they will have a strong
influence on the rest of the maturing workforce.

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New Zealand Journal of Employment Relations, 42(2): 5-21

VI Difficulties Inherent in the Legislation and Its Interpretation When
Applied To the Hill Country Livestock Farming Industry
A Approved Codes of Practice and WorkSafe Guidance
The content of WorkSafe guidance is a key reason for farmer disillusionment with the
HSWA. The HSWA sets out general duties and guidance and approved codes of practicethen detail how those duties apply to different types of workplaces and activities. The
Ministry of Business Innovation and Employment is responsible for drafting codes and
WorkSafe for guides of practice.
B Approved Codes of Practice
A Minister may approve a code of practice prepared by WorkSafe provided they aresatisfied the code was developed “by a process of consultation” between unions, employer
organisations and other persons likely to be affected (HSWA: s 222). The Act makes it
clear that, though an “approved code of practice is admissible in civil or criminal
proceedings as evidence of whether or not a duty or obligation under [the HSWA] has been
complied with”, the code is not capable of being enforced (HSWA: s 226).
C Guidance
WorkSafe guides have been admissible under the 1992 Act and are likely to remain so
under the HSWA (Jones v WorkSafe New Zealand, 2015). Under the 1992 Act, the High
Court recently held that WorkSafe guides are “aspirational” and indicate “best practice” so
are persuasive rather than determinative in the particular circumstances (ibid, 2015). It is,therefore, unclear why the Safer Farms website, run by WorkSafe, states that guides are“current industry best practice and they represent a minimum standard you are expected tomeet” (WorkSafe New Zealand, 2016g). “Best” is “of the most excellent or desirable typeor quality; most appropriate, advantageous or well advised” (Soanes & Stevenson, 2006:
127). It is an inexplicable contradiction of terms to say the guides represent best practiceand also a minimum standard. As the Court suggests, guides portray ideal health and safetysystems in an ideal environment, they do not take specific circumstances into account.
The content of WorkSafe guidance is a controversial matter in the industry. Disagreementwith specific guidelines is generally either because they are unrealistic in the industry
environment or because the industry and WorkSafe do not agree that the targeted issue isa risk. An Otago University study found that, in general, from a farmer’s perspective “aserious injury was one that killed you or seriously disabled you so you were unable to work
again […] anything less than this was minor or at least considered fairly insignificant”(Lovelock & Cryer, 2009: 20). It is necessary to find a middle-ground. Unrealistic
guidelines require amending, but where the issue is disagreement over the riskiness of the
conduct, discussion between industry and WorkSafe is required. In some situations,
imposing guidelines which are realistic but the industry disagrees upon may be warranted.

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New Zealand Journal of Employment Relations, 42(2): 5-21
WorkSafe’s legislative mandate is to “promote and contribute to a balanced framework forsecuring the health and safety of workers and workplaces” (WorkSafe New Zealand Act
2013, s 9(1)). Some unsafe practices such as young children driving quad bikes and workers
not wearing chainsaw chaps are an appropriate target for guidance. General areas thatwarrant particular focus are safe use of quad bikes, tractors and vehicles, given that 29 percent of agricultural deaths from 2013 to 26 June 2016 involved quad bikes, 21 per centtractors and 17 per cent vehicles (WorkSafe New Zealand, 2016b). However, WorkSafe
from the outset has tackled controversial activities that are not reasonably practicable to
avoid such as transporting passengers on quads.
On the matter of carrying passengers on quad bikes, WorkSafe guidance is unequivocal
and justified by manufacturers’ guidelines. These state that quad bikes are not designed tocarry passengers so allowing passengers to be carried is not ensuring health and safety as
far as is reasonably practicable (WorkSafe New Zealand, 2014a). Manufacturers’
guidelines are written conservatively to avoid liability in jurisdictions where they may beliable for personal injury. Furthermore, justifying rigid standards in relation to passengers
on the basis of manufacturers’ guidelines directly contradicts WorkSafe’s current
guidelines on roll bars which state that affixing roll bars to quad bikes is a reasonably
practicable step, despite quad bike manufacturers explicitly stating that roll bars should not
be fitted to quad bikes (WorkSafe New Zealand, 2014a; Fox, 2016).
Such rigid guidelines ignore the reality of hill country farming. A complete prohibition on
carrying passengers on quad bikes is unequivocally impractical and maintaining this rigid
guideline suggests a lack of understanding of the hill country livestock farming
environment. As Grieve (as cited in Fox, 2016) explains, it is not reasonably practicable toallow an inexperienced driver to take themselves to the back of a farm for work where an
experienced driver can, while accommodating the extra weight and reducing speed, safely
take them as a passenger. WorkSafe agricultural manager, Al McCone, acknowledges thatsometimes it may not be reasonably practicable to comply with manufacturers’ andWorkSafe’s guidelines but he says this will only be the case in very limited circumstances(ibid).
Unrealistic suggestions, such as never carrying a passenger on a quad bike, risk detractingfrom WorkSafe’s future initiatives. Guidelines would be more effective if they recognisedthat some work tasks make carrying passengers on quad bikes an unideal necessity andinstead focused on how to safely accommodate a passenger when driving.

VII

Summary

In summary, the HSWA replicates the essential duties and intentions of the HSEA.
Recasting of duty holders as PCBUs and workers clarifies previous uncertainty under the“employer” and “employee” categories of the HSEA. The addition of a duty on others on
the workplace, and due diligence obligations on officers ensures that the HSWA
completely captures all people who have an influence on health and safety.

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New Zealand Journal of Employment Relations, 42(2): 5-21
Amendment to the farming exception under s 37(3) is required. The most effective
resolution is removing the s 37(3) definition and inserting a new provision under the s 20
definition of workplace that confines the farming workplace to areas where commercial
activity is being undertaken. This will include areas accessed by paying public but not areas
accessed gratuitously. The expanse and variation of the hill country workplace andcommon desire to preserve public access justifies inserting an industry specific provision.
WorkSafe was established in 2013 following the Pike River Taskforce’s finding that OSH“lacks the capacity and capability to regulate efficiently and fairly […] this has led to aserious neglect of occupational health issues and high-hazard workplaces” (Independent
Taskforce on Workplace Health and Safety, 2013a: 28). It was the establishment of
WorkSafe as a well-resourced regulator in 2013, rather than the introduction of the HSWA
that caused the visible enforcement of health and safety in New Zealand. Lack ofenforcement of the 1992 Act meant that health and safety was not an industry focus.
WorkSafe is in a challenging position. They are seeking to implement health and safety
initiatives in an industry with an entrenched culture of stoicism and dismissal of outside
interventions. Furthermore, changes to the workplace directly affect family lifestyle.
Education initiatives by WorkSafe have been undermined by an unclear externaldelineation between the regulator’s education, engagement and enforcement branches. To
reduce this unnecessary resistance, following the Taskforce’s recommendation, a clear
separation between these three branches is required.
WorkSafe strategy requires a refocusing on high probability risks and the factors that
actually cause those risks rather than peripheral hazards. There is currently an undue focus
on enforcement rather than positive, proactive change drivers such as supply chain demandand social and economic motivators.

VIII Conclusion
In many respects, the HSWA is a re-phrasing of the HSEA, nevertheless its introduction
has generated an industry wide awareness of health and safety duties and potential
liabilities. During the initial stages of implementation, emphasis on positive motivations
for change rather than promoting the negative consequences of non-compliance is essential.
As outlined amendments to ss 20, 36 and 37 are required to address the ineffective
restriction of the farming workplace under s 37(3). Negative industry perception of
WorkSafe will be reduced when there is an actual and ostensible severance between
WorkSafe’s conflicting tripartite functions. Focusing on the primary causes of accidents
and high probability risks through education rather than enforcement will establish
WorkSafe as a credible and effective educator, engager and enforcer.

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New Zealand Journal of Employment Relations, 42(2): 5-21

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New Zealand Journal of Employment Relations, 42(2): 22-38

Managerial attitudes toward the Health and Safety at Work Act(2015): An exploratory study of the Construction Sector
TAYLOR SIZEMORE*
Abstract
The purpose of this research is to conduct an exploratory, qualitative study to examine theattitudes that managers in New Zealand’s construction industry have towards occupational
health and safety and the Health and Safety at Work Act (2015). Additionally, this study aims
to assess whether managers believe that the increases in managerial commitment and worker
involvement required by the new legislation will improve the safety culture and performancewithin the construction industry. Method: Eight semi-structured interviews were conductedwith senior or frontline managers of construction companies that were responsible foroverseeing the health and safety function within their organisations. Results: This study
suggests that the Health and Safety at Work Act (2015) has forced managers within theconstruction industry to increase their commitment and employee involvement in occupational
health and safety. Additionally it seems that the new legislation is beginning to create positivechanges to the safety culture within the industry. Conclusion: The study has helped verify thegovernment’s goal to utilise the new legislation to drive positive changes to New Zealand’s
occupational safety culture to increase national safety performance. However managers
highlight a number of barriers that may inhibit their ability to improve the safety performancewithin their organisations.
Keywords: construction; safety climate; managerial commitment; employee involvement;
safety performance

Introduction
While the majority of workers in developed countries take for granted that going to work on adaily basis does not compromise their safety (Barling, Kelloway & Loughlin, 2002), New
Zealand’s poor occupational safety statistics suggests that they should think otherwise. Every
year, thousands of New Zealanders are killed or injured at work, and between 600 and 900
people die from work-related illnesses. The financial impact of these accidents is estimated tocost the New Zealand government on average $3.5 billion per year (MBIE, 2012). The
immense human costs of these tragedies offer an equally disheartening perspective. On
average, one person per week dies from a work-related accident and 15 people die prematurely
due to occupational ill health (WorkSafe, 2016). The New Zealand government has responded
to these statistics by announcing major changes to the national occupational health and safety
legislation.
The Health and Safety at Work Act (HSWA) (2015) is part of the government’s “Working
Safer” reforms that aim to create a 25 per cent reduction in workplace deaths and injuries by2025. The government has acknowledged that changing the occupational health and safety
legislation is only the first step towards achieving this goal. A significant factor affecting its*

Taylor Sizemore, Postgraduate student, University of Otago Business School

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New Zealand Journal of Employment Relations, 42(2): 22-38
success lies in changing the safety culture within New Zealand workplaces. Results from anational survey commissioned by WorkSafe, New Zealand’s health and safety regulator,
suggests that high-risk industries house cultural characteristics that negatively affect health andsafety performance (Nielsen, 2014). Of these high-risk industries, construction has beenhighlighted as being particularly complacent about health and safety, despite its high accident
and injury rates. Between 2011 and February 2016, the construction sector contributed thesecond highest national workplace fatalities by industry (Statistics New Zealand, 2016). The
industry accounted for a total of 68 fatal accidents between 2008 and 2014, averaging at almost
10 per year. Nielsen’s (2014) study suggested that there was a general disbelief of the highaccident rates reported in construction and there was a lack of urgency to address the issue of
health and safety.
The purpose of this investigation is to examine the attitudes that managers in New Zealand’s
construction industry have towards occupational health and safety and the HSWA (2015). The
government aims to create positive shifts in New Zealand’s safety culture and performance bymaking greater levels of managerial commitment and employee involvement mandatory under
the new legislation. It is designed so that these requirements will eventually lead New
Zealanders to change their attitudes towards occupational health and safety, resulting in thepractice of safer behaviours at work. This research assesses whether the government’s desiredchanges have begun to take effect within the construction sector, and whether managers within
the industry believe that increases in managerial commitment and worker involvement requiredby the new legislation will improve the safety culture and performance.

Safety Climate and Safety Performance
Following from Schneider’s (1975) work on organisational climates, Zohar (1980) introduced
the concept of safety climate as, “a summary of molar perceptions that employees share about
their work environment,” (p.96). Typically, the term safety climate is used within the literature
to describe employees’ perceptions of the significance of safety in their work environment(Neal, Hart & Griffin, 2000; Choudhry, Fang & Mohamed, 2007). Safety climate research has
become increasingly popularised over the last three decades as an observable manifestation ofsafety culture (Mearns, Whitaker & Flin, 2003). Given that safety climate acts as a frame ofreference for the behaviours and attitudes of both groups of and individual employees, there isan argument that this will influence their accident involvement (Clarke, 2006). The assumption
is that workers in organisations that have a positive safety climate (where employees perceive
workplace safety favourably) will be less likely to participate in unsafe acts (Hofmann &Stetzer, 1996), which are precursors to workplace accidents and injuries (Reason, 1990). Thisis because climate provides guidance on suitable organisational behaviour. Therefore,
organisations with a positive safety climate will encourage behaviours that positively relate toworkplace safety, such as wearing the appropriate safety equipment. In contrast, organisations
with a more negative safety climate reinforce unsafe work behaviours (e.g. ignoring safety
procedures to increase productivity), which are related to occupational accidents and injury(Clarke, 2006). Previous studies have highlighted the connection between positive safety
climate and lower accident rates (Siu, Phillips & Leung, 2004; Clarke, 2006; Donald & Canter,
1994).

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Dimensions of Safety Climate
Zohar (1980) attempted to introduce organisational characteristics that could distinguishbetween companies with high and low accident rates. The eight dimensions of safety climate
he proposed were: successful safety training, management commitment to safety, status ofsafety officer, status of the safety committee, level of risk in the workplace, effects of safe
conduct on promotion, effect of safe conduct on social status, and effects of required work paceon safety. Later, Brown and Holmes (1986) attempted to validate Zohar’s (1980) eight safety
climate dimensions model by testing it on 10 manufacturing and production companies in the
US. The results of the questionnaires enabled them to narrow down the eight original
dimensions to just three factors: management actions, management attitudes, and employee
level of risk. DeDobbeleer and Béland (1991) provided further analysis by testing Brown andHolmes’ (1986) three-factor model of safety climate. They found strong correlations between
managerial concerns and reduced the model to just two factors: managerial commitment andworker’s involvement.
Many scholars have conducted safety climate research within the construction sector becauseof its notorious international safety record (Mohamed, 2002; Glendon & Litherland, 2001;
Choudhry, Fang, & Lingard, 2009). One study of the Hong Kong construction industry
suggested that managerial commitment and employee involvement were found to be the mostsignificant factors positively affecting safety climate and perceptual safety performance on
construction sites (Choudhry et al., 2009). Additionally, research involving 44 Australianconstruction companies suggested that the major factors influencing safety performance weremanagement and employee commitment to occupational health and safety. (Lin & Mills,
2001).

The Health and Safety at Work Act (2015)
The HSWA (2015) is New Zealand’s key piece of occupational health and safety legislation.
An important feature of the HSWA (2015) is that the number of duty holders and theirrespective responsibilities has increased from previous legislative requirements. These duties
and the penalties associated with their breach are designed to force New Zealand workplaces
to increase their safety performance by improving their safety culture (Worksafe, 2016). The
HSWA (2015) aims to drive these cultural changes by making greater levels of managerial
commitment and employee involvement mandatory under the new legislation. The duties of a‘person conducting business of undertaking’ (PCBU) and officers aim to increase managerial
commitment to occupational health and safety.
A PCBU may be a sole trader, a limited partnership, a business in the form of a limited liability
company, a partner in a partnership (if the partnership is not a limited partnership), or an entity
created by legislation, such as a university (Worksafe, 2016). Under section 36 of the HSWA
(2015) a PCBU’s primary duty of care is to ensure, so far as reasonably practical, the healthand safety of workers, and that other people are not put at risk by its work. This duty promotes
greater managerial commitment, as the PCBU and the officers in positions of authority withinthem are legally required to effectively manage health and safety within the workplaces they
control. If a PCBU breaches its primary duty of care they can face penalties of up to five years
imprisonment and a $600,000 fine (Worksafe, 2016).

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New Zealand Journal of Employment Relations, 42(2): 22-38
Under the HSWA (2015) any person that holds a position in a company that allows them toexercise significant influence of the business or undertaking is deemed an officer; therefore,
examples may include company directors, partners in a partnership, board members, or CEOs.
Section 44 of the HSWA (2015) requires officers to exercise ‘due diligence’ to make sure the
PCBU complies with all its health and safety duties (Worksafe, 2016). This keeps officers
proactive and involved in the health and safety practices within their organisation. An officer
cannot claim ignorance in regard to health and safety failures within the firm and avoid
accountability. If officers breach their duty of due diligence they may face five years
imprisonment and a $300,000 fine (Worksafe, 2016). The duties of the PCBU and officers aredesigned to make managerial commitment to occupational health and safety a legal
requirement under the HSWA (2015).

Managerial Commitment to Health and Safety
Many studies have emphasised the role that managers play in promoting safety in theworkplace (Mohamed, 2002; Jaselski, Anderson & Russell, 1996; Zohar, 1980). Heinrich(1931) was the first to state that occupational accidents are symptoms of a lack of managerial
commitment to workplace safety; he stated that 98 per cent of accidents were preventable bymanagement. Additionally, Niskanen’s (1994) findings from interviews with construction
managers and workers suggested that ‘humanware’ accounted for much of the underlying
causes of occupational accidents. ‘Humanware’ was defined as a function comprised ofleadership, fellowship, and the interaction between them. The results indicated thatmanagement commitment is responsible for the majority of the humanware problem. Anotherstudy conducted within the construction industry suggested that managerial inaction was theleading cause of construction accidents (Abdelhamid & Everett, 2000). Despite the importanceplaced in literature on managerial commitment to achieving greater safety performance and amore positive safety climate, there is often no agreement on safety roles among ownermanagers, contractors, and subcontractors on a construction site (Toole, 2002).

Worker’s Duties and Involvement
The HSWA (2015) also identifies roles that workers must play in occupational health andsafety. The term ‘workers’ in the HSWA (2015) is defined as any individual who carries out
work in any capacity for a PCBU (Worksafe, 2016). In the workplace, workers have duties totake reasonable care for their own health and safety and that of others. Additionally, workers
are required by their duty to follow any reasonable health and safety instructions given to themby the PCBU (Worksafe, 2016). If a worker fails to cooperate with any reasonable businesshealth and safety policy or procedure, they could face fines of up to $150,000. It is hoped that
this significant potential fine for breaching their duty will encourage employees to comply withnew health and safety practices as they are brought in to reflect the new law changes. The
HSWA (2015) also includes a legal requirement on PCBUs to ensure that workers are engaged
with health and safety issues that may affect them and are given the opportunity to participate
in the continuous improvement of health and safety in their workplace (Worksafe, 2016). Thisrequires the PCBU to have effective and continuous processes for workers to suggest
improvements or to raise concerns around health and safety, typically through health and safety
representatives or a health and safety committee.

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New Zealand Journal of Employment Relations, 42(2): 22-38
Workers are in direct contact with the hazardous conditions of work and, therefore, haveinsights of how management’s safety policies function in practice (Simard & Marchand, 1997).
Consequently, workers can make valuable contributions and improve the organisation’s healthand safety processes. Holding site or “tool-box” meetings is a common method of involving
workers in workplace safety management (Hinze & Raboud, 1988; Harper & Koehn, 1998).
Additionally, organisations may wish to increase worker involvement by establishing a safetycommittee. Safety committees often have members consisting of representatives of theemployer, workers, and subcontractors. These committees encourage interaction between theparties and have proven effective in discovering unsafe practices and problems (Lin & Mills,
2001). Discouraging workers from practising unsafe behaviours is a significant factor todecreasing workplace accidents, as unsafe acts of workers and co-workers are the second
leading cause of construction accidents (Abdelhamid & Everett, 2000). Despite the benefits tosafety performance that employee involvement brings, it is often overlooked or ignored bymanagement (Dawson, Clinton, Bamford & Willman, 1985).
The duties assigned to PCBUs, officers, workers and others in the workplace and the penalties
associated with their breach are designed to increase managerial commitment and employee
involvement in occupational health and safety. These two factors are targeted by the HSWA
(2015) to drive the improvements in national safety culture and safety performance. However,
it is important, before proceeding, to acknowledge several other factors identified as possibly
contributing to an organisation’s safety performance. Older workers are generally cited ashaving more positive safety attitudes and habits (Siu, Phillips, & Leong, 2003; Gyekye &Salminen, 2009). Smaller firms are generally reported as more at risk of unsafe behaviour thanlarger firms with access to more sophisticated health and safety advice (Lin & Mills, 2001;
Hinze & Raboud, 1988; Holmes, Lingard, Yesilyurt & De Munk, 2000; Wilson & Koehn,
2000). This is necessarily of concern in construction, being an industry largely populated bysmall firms. Effective training for both safe performance of tasks (Clarke, 2006; Eklöf, 2002;
Prussia, Brown & Willis, 2003), as well as training in safety topics and first aid (Stokols,
McMahan, Clitheroe & Wells, 2001), is also reported as a factor indicative of better safety
performance.

Research Purpose and Method
To reiterate, the purpose of this research is to conduct an exploratory study to examine theattitudes that managers in New Zealand’s construction industry have towards occupational
health and safety and the Health and Safety at Work Act (2015). Additionally, this paper aims
to assess whether managers believe that the increases in managerial commitment and worker
involvement required by the new legislation will improve the safety culture and performancewithin the construction industry. Eight semi-structured interviews were conducted with the
purpose of gaining a deeper understanding of the research questions:
1. How has the safety culture within the construction industry changed since theintroduction of the HSWA (2015)?
2. How has the level of managerial commitment changed since the introduction of the
HSWA (2015)?
3. How has the level of employee involvement changed since the introduction of the
HSWA (2015)?
4. What are the barriers that inhibit safe work practices within the construction sector?

26

New Zealand Journal of Employment Relations, 42(2): 22-38
The qualitative method of interviewing was chosen in order to address the research questions.
Participants involved in this study engaged in formal semi-structured interviews. These
interviews were guided by the themes within the research questions, however, there was roomfor deviation if the conversation provided unique perspectives not outlined by the set questions.
The rationale behind using semi-structured interviews lies in the fact that they are particularly
useful for exploring the participants’ attitudes (Richardson, Dohrenwend & Klein, 1965) andit can facilitate comparability by ensuring that all the questions are answered by each
respondent (Bailey, 1987). Interviews were arranged at a time and location that suited theparticipants to accommodate their busy work schedules. The interviews were conducted in aquiet environment, audio taped and later transcribed.

Sample
The eight participants in this study were selected through a purposive sampling method(Silverman, 2013). Participants were either senior or frontline managers that were responsible
for overseeing the health and safety functions within their organisations. To be eligible toparticipate in this study, the managers had to be currently operating and have had at least five
years of experience working within the construction sector to ensure they have enoughknowledge to accurately account for the differences in the occupational health and safety
environment within their organisations and industry pre and post the Health and Safety at WorkAct (2015). A mix of managers from differently sized construction companies was desired forcomparison in the results of the study. The company size categories were determined by the
number of managers and employees working within the organisation at the time of theinterviews. Small companies were classified as having between one and nine people, medium
companies having between 10 and 50, and large companies having over 100. Managers are
given a corresponding letter and number, representing their participant number and company
size. This is designed to differentiate the participant’s responses within the results section (SeeTable 1).
Table 1:
Participant 1
Participant 2
Participant 3

Small Company
S1
S2
N/A

Medium Company
M1
M2
M3

Large Company
L1
L2
L3

Data Analysis
The data for this study were collected from the audio taped interviews and transcribed foranalysis. Data analysis was carried out by hand, as there were only a small number ofparticipants within the study. The transcripts were coded by identifying emerging themes
within the data relating to the research questions guiding the study.

Results
1. How has the safety culture within the construction industry changed since theintroduction of the HSWA (2015)?
27

New Zealand Journal of Employment Relations, 42(2): 22-38

Every respondent emphasised that they had felt that the HSWA (2015) had brought changes tothe construction industry. Many highlighted that there was a greater awareness surrounding theissue of occupational health and safety.
“There have been a lot of changes. Health and safety is a lot more prevalent, five years ago it
wasn’t even thought of,” – Manager S1.
“The industry has changed a lot. Ever since I’ve been here there is a massive push for zero
harm,” – Manager L2.
One manager noted that the new legislation was a motivator to think more positively aboutoccupational health and safety.
“I personally thought health and safety was a pain in the arse, as it took too much time, but at
the start of this year I had to change my attitude and say come on, this is the way it is and I
need to push it to the guys down the line,” – Manager M2.
There was a unanimously positive response to the questions asking whether the new legislation
will create safer workplaces and whether individual attitudes around safety affect the practiceof safe work behaviour.
“Absolutely will make them safer,” – Manager M2.
“They definitely will. Wearing the proper safety gear, earmuffs, knee pads, it’ll definitely
create safer workplaces,” – Manager S1.
Participants within the study highlighted that the new legislation was improving the safety
culture within the industry.
“It’s becoming more accepted because it’s here to stay, people’s attitudes toward it aregradually getting better,” – Manager S1.
“Year by year it is getting better and better and the trend will get better due to the increased
pressure with legislation,” – Manager M2.
One participant added that cultural change would increase with health and safety enforcement.
“Worksafe have increased their staff here and around the country so I would expect that they
will be visiting the sites more regularly… Until it is enforced it will always be a battle withpeople,” – Manager M2.
2. How has the level of managerial commitment changed since the introduction of the
HSWA (2015)?
Responses from managers during the interview process suggested that the HSWA (2015) has
forced managers to drive the required health and safety changes in their organisations.
“For me in the office there’s a lot of difference in the management, control and monitoring
bits and pieces,” – Manager M1.
28

New Zealand Journal of Employment Relations, 42(2): 22-38“Senior management have been pushing down through all the management staff the health andsafety message,” – Manager M2.
“A lot of guys do it (health and safety procedures) for a couple of weeks then it stops, so it’smore management driven as much as self driven by the employees,” – Manager M3.
Additionally managers felt pressured by the threat of fines to increase their commitment tooccupational health and safety.
“From an employer’s perspective there is a lot more responsibility when you can be charged
within the Act. We probably could have gotten away with it in the past and blamed theemployee, but now everybody’s in line,” – Manager M1.
“They’re (the government) implementing it by threatening people, if they didn’t have this threatof fines people wouldn’t be doing any of the new health and safety stuff,” – Manager S1.
However, other responses during the interview process suggested that some managers might
be more committed to workplace health and safety than others. All of the small and medium
company managers reported that they were not confident in knowing their legal requirements
under the HSWA (2015). Those working in larger companies stated that the company had
provided them with all the information within the new legislation that related to their job.
“Not confident at all. I don’t think many people are. In fact I don’t know anyone that isconfident that they know all their legal obligations. That’s one of the problems,” – Manager
S1.
“I would say I was 95 per cent sure. The Act’s wording changes all the time. So I am reasonably
familiar with it, at least what is relevant to us,” – Manager L3.
“I’m fairly confident (knowing the health and safety requirements) in what I do. The company
provide all the information for us that we need to know of in terms of what the legislation is
and what not,” – Manager L1.
Additionally, the managers of the large companies indicated that they spent the most time on
health and safety per week compared to the managers of the small and medium sized
construction companies. Managers S1 and S2 indicated that they would spend one hour per
week on occupational health and safety, while managers L1, L2 and L3 indicated that theyspent over three hours on occupational health and safety.
3. How has the level of employee involvement changed since the introduction of the
HSWA (2015)?
Every manager interviewed indicated that employee involvement was very important tooccupational health and safety.
“I think the objective is to make the employee more aware of health and safety,” – Manager
L3.

29

New Zealand Journal of Employment Relations, 42(2): 22-38
All but one participant stated that the HSWA (2015) required them to increase the level of
employee involvement in their workplace health and safety processes.
“Employees are more committed now than before. We’re doing it all the time now, it’s not likesomething we do once a week, we do it all the time now,” – Manager L1.
“Definitely more now after the law change, as they’ve had to be more involved,” – Manager
L2.
Managers S1 and S2 struggled to identify forms of employee involvement in their health andsafety systems.
“On every job site now there is a hazard board where people can write up hazards. There aremeeting points in case of emergencies, fire extinguishers etc. These things are all new now
because of the changes in legislation,” – Manager S1.
The managers of medium and larger companies could identify a greater range of formal
methods of involving employees in their health and safety systems.
“We have a task analysis that we use so we identify the areas of risk before we start work. The
actual guys doing the job fill it in and work out the best way to do the job safely,” – Manager
M2.
“Employees now identify hazards daily with site checks, and a hazard identification registercompleted on site daily,” – Manager L3.
“We do a toolbox meeting every Monday with our crews on any big issues, so employees canbring up issues with health and safety,” – Manager L1.
“There is a health and safety committee with representatives from management andemployees,” – Manager L3.
Many managers related employee involvement to their level of commitment to occupational
health and safety.
“It’s got to be driven by the guys, if they don’t want to do it then it is going to be them that is
affected by it. I think it is very important for them to get it as if they don’t understand they
won’t do it,” – Manager M3.
“It’s really important, if they’re not involved there’s no point in doing it. I could give them all
the earmuffs and protective boots, but if they turn up to work and don’t use it it’s pointless,” –Manager S1.
Managers M3 and L1 identified that employee involvement was increasing because of the
HSWA (2015) and the increased duties and penalties placed on PCBUs, officers and theworkers themselves. Manager M3 states that employees are more involved because they havea duty to comply with their company’s health and safety.
“… The responsibility has moved down the chain to individuals. They are more liable for theirpart. It was always up to the boss to make sure it was done, but now there is more responsibility

30

New Zealand Journal of Employment Relations, 42(2): 22-38
on the individual as well so the more the individual is aware of that, the more it affects thechange,” – Manager M3.
“Companies are making sure that these things (employee involvement) are happening because
they (managers) are liable now,” - Manager L1.

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New Zealand Journal of Employment Relations, 42(2): 22-38
4. What are the barriers that inhibit safe work practices within the construction sector?
A lack of safety knowledge was a prominent barrier identified by managers that inhibited safe
work practices.
“The way to reduce the risks is by education. I guess this is our roles as managers,” – Manager
M1.
“I think education is a big thing, they just think if they fall down they’ll be fine,” – Manager
M3.
In contrast, both managers of the small construction companies identified that their own safetyknowledge, rather than the safety knowledge of their employees, was a barrier to safer work
practices within their company.
“They say you have to fill out these hazard forms and don’t tell you what’s right and what’s
wrong, how much you’ve got to do. There’s no specific guideline of what you’ve got to do.
There are a lot of grey areas,” – Manager S1.
“They (the government) should sit down and say come here and I’ll explain it to you. There’s
nothing like that. They say go look it up on the net and read it, who’s going to read a five
thousand page thing?” – Manager S2.
The managers of the small construction companies within this study both felt that there were
not any suitable avenues for them to obtain the relevant information they needed to comply
with the new legislation. Manager M3 supports the statements of both small construction
company managers, as M3 criticises the way that the government has rolled out the legislationand the lack of quality education available.
“It is the way they have brought out this legislation and they haven’t really educated us well.
I went to one seminar workshop through Worksafe, but it was the only one worth going to. The
rest lack substance and are 50 per cent education. Too much focus on selling a product thanthat of education,” - Manager M3.
Small and medium sized companies often emphasised the significance of the financial costs
involved in complying with the new legislation.
“You’ve got to be price competitive to do the work, if I add on $500 to do a job because ofhealth and safety I won’t get the job,” - Manager S1.
“Cost is especially significant… Our wages haven’t gone up to reflect all this health and safetythat we have to supply,” - Manager S2.
“The money that we have tied up in scaffolding is ridiculous… We pay $4000 a year for tool
tagging alone, as well as other associated costs for health and safety so it is built into our
prices,” – Manager M3.
It is interesting to note that manager M3 acknowledges the greater costs involved withcomplying with the new health and safety legislation and states that their prices for jobs have32New Zealand Journal of Employment Relations, 42(2): 22-38
increased to reflect this. However both manger S1 and S2 are reluctant to increase their prices
to remain competitive in the market.
Aside from the direct financial costs, many managers also explained that complying with the
new health and safety requirements also cost them in time.
“Cost is a massive one, as you’ve got guys not out there working and attending training
courses. They’re in classes learning stuff as opposed to out there earning money for thecompany,” – Manager L2.
In addition to competing on cost, the participants in this study noted that the competitive natureof the market also forced them to keep to strict time schedules to complete jobs. Many
managers in larger companies identified that these tight timeframes were a barrier to safety
performance and safe work behaviours.
“When I first started, you’d go to a job site and just start doing the job straight away. Now
there’s a lot of paperwork involved in a lot of the work now, before you even start. That’s the
major difference. It’s a time consuming thing,” – Manager L1.
“The main problem is keeping the work up to the same speed while implementing the safety
requirements of the company,” – Manager L2.
However Manager M2 offered a differing opinion.
“I think a lot of people think they haven’t got time to do health and safety. If you keep things
tidy and do the checks at the start of the day it will keep it safer and actually speed up the jobin the end,” – Manager M2.
Every manager that mentioned age as a barrier to workplace health and safety performance
identified that it is predominantly the older workers within their organisation that hold negative
attitudes towards the new safety reforms.
“There is a greater awareness that things have changed, but a lot of older people especiallythink it’s a load of rubbish,” – Manager L3.
“The older guys don’t want anything to do with it,” – Manager M3.
Additionally, two managers highlighted the direct link between the negative attitudes held by
the older workforce and their occupational ill health and accident rates.
“It’s the older generation who have that mindset of, “she’ll be right, let’s just do it, it’s only
gonna take us ten minutes.” We have found that these are the guys that are getting injured andhurt,” – Manager L1.
“The older guys have got through the years without injury, in saying that… That one [pointing
to a workmate] has industrial deafness and the other has a stuffed back,” – Manager M3.
The respondents emphasised that the younger workers within their organisation have beenquick to adapt to the new ways of working under the HSWA (2015).

33

New Zealand Journal of Employment Relations, 42(2): 22-38“The younger guys have picked it up and run with it there is a couple there that are smart
enough to see what it can do, but the others are doing it because we are telling them to do it,”– Manager M3.
“It’s the newer breed of guys who are buying into health and safety,” – Manager L1.
One respondent highlighted that the older members of the workforce had a lot of power within
their organisation over younger workers. Therefore, their negative attitudes towards health andsafety was identified as a barrier to greater safety performance, as they had greater potential toinfluence younger workers to adopt their way of thinking.
“The tough man attitude is definitely a barrier. A lot of the guys are intimidated by the older
guys. The younger guys who start working with you they will do what an authority figure will
say to you. You know, an older guy says to you, “Pick up the asphalt, naah don’t worry about
your gloves,” that tends to happen,” – Manager L1.

Discussion and Concluding Remarks
The results from this study suggest that the HSWA (2015) has forced managers in theconstruction sector to be more proactive and drive the required health and safety changes within
their organisation. Respondents often emphasised that the threat of fines due to duty breaches
were a key motivator in increasing their commitment to occupational health and safety.
Additionally, the findings also suggest that the HSWA (2015) has encouraged managers toincrease the level of employee involvement in occupational health and safety practices within
their organisations. Every participant indicated that employee involvement is a key driver ofsafety performance. Seven of the eight participants in this study recognised that the HSWA
(2015) required them to increase the level of employee involvement in their workplace healthand safety processes.
Every participant identified barriers that inhibit safe work practices within the construction
sector and their own organisations. The results from this study dispute the literature’s claimthat older workers exhibit more positive attitudes towards occupational health and safety thantheir younger counterparts. Five of the eight participants identified that older workers and their
negative attitudes towards health and safety was a significant barrier to positive safety
performance within their organisation. In contrast, these same managers reported it has been
the younger members of their workforce that have been quick to adapt to the changes underthe HSWA (2015).
The findings of this study parallel previous literature, in that participants indicated that a lackof safety knowledge and education was a barrier to achieving greater safety performance within
the construction industry. Managers identified that increasing the level of safety knowledge
throughout the industry would contribute to improving occupational health and safety statistics.
However, some managers have identified that it is currently difficult to access the relevant
information they needed to comply with the new legislation.
Participants often mentioned that the HSWA (2015) has increased the financial costs to thebusiness, as it requires them to have more advanced health and safety systems and provide theiremployees with greater safety equipment and training. These costs may be a significant barrier
to many managers, as every participant in the study stated that they are operating in highly34

New Zealand Journal of Employment Relations, 42(2): 22-38
competitive, price sensitive markets. Therefore, the added costs that the HSWA (2015)
demands from managers may affect their motivation to comply, as they are currently reluctant
to increase their job prices in what is a competitive industry. Many managers stated thatcomplying with the HSWA (2015) also cost them in time, in a market where keeping to stricttime schedules to complete jobs was paramount. Managers in larger companies, in particular,
identified these tight timeframes as a barrier to safety performance and safety work behaviours,
as it motivated workers to cut corners on health and safety to speed up the completion of jobs.
Lastly, this study supports findings from previous literature suggesting that company size may
be a factor affecting health and safety performance and motivation. The managers of the small
and medium sized companies reported that they were not confident in knowing their legal
requirements under the HSWA (2015). This is contrasted with the responses from the managers
from the large construction companies, all of whom reported that they were confident inknowing their legal requirements. Additionally, large company managers stated that ensuring
their employees had adequate safety knowledge was one of their biggest barriers preventing
greater health and safety performance. Managers from the small companies mentioned thatsafety knowledge was a barrier, but they emphasised that it was their lack of knowledge thatwas the greatest barrier. These results suggest that larger company managers have been more
motivated to gain a better understanding of the HSWA (2015). This increased motivation frommanagers of the larger construction companies was shown in other aspects than safetyknowledge. For instance, the large company managers indicated that they spent more time per
week on health and safety than their small manager counterparts. Moreover, they could also
identify a greater range of formal methods of involving employees in their health and safetysystems.
This study aimed to contribute to the existing occupational health and safety literature byexamining the attitudes of managers within New Zealand’s construction industry towards
workplace health and safety and the Health and Safety at Work Act (2015). Due to time
restraints and word limits, this study has been restricted to eight interview participants.
Therefore, this small sample size is not reflective of the entire industry. However this
exploratory study may provide insights for future quantitative studies and other occupational
health and safety research.

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New Zealand Journal of Employment Relations, 42(2): 39-60

Under Pressure: OHS of Vulnerable Workers in the Construction
Industry
FELICITY LAMM*, DAVE MOORE**, SWATI NAGAR***, ERLINGRASMUSSEN**** and MALCOLM, SARGEANT*****
Abstract
The New Zealand construction industry provides a good illustration of the changing nature ofwork and the impact this has had on the occupational health and safety (OHS) of sub-contracted
construction workers. In particular, we examine the vulnerability of workers in the context ofthe construction industry post-2010 Canterbury earthquakes. In doing so, we apply Quinlan
and Bohle’s (2004; 2009) ‘Pressures, Disorganization and Regulatory Failure’ (PDR) model toframe the changing nature and organisation of work and the impact this has had on the OHS of
sub-contracted construction workers. Finally, we discuss what can be done going forward interms of creating a more effective regulatory regime and a safer and healthier industry.
Key words: occupational health and safety, vulnerable workers, construction industry, thechanging nature of work.

Introduction
In the past four decades, there have been profound global changes to the organisation of work
(James, 2006; Standing, 2009; Quinlan, 2014). Large organisations in particular have pursued
more flexible employment and working arrangements as a way of either shedding theiremployment obligations by outsourcing work to small, often less regulated companies or byhaving a largely precariously employed workforce who compete for fewer and fewer jobs
(Quinlan & Wright, 2008; Weil, 2014). Outsourcing has also created complex chains ofsuppliers, distributors and contractors, and has shifted the risk onto a burgeoning casualised
workforce who are forever chasing diminishing employment opportunities (Weil, 2014;
Lamare, Lamm, McDonnell, & White, 2015). The cumulative result has been declining wages,
eroding benefits, inadequate health and safety conditions, and an ever widening income
inequality (Wilkinson & Pickett, 2009). The construction industry, with its increasing use ofcontracted labour, epitomises the changes to working arrangements that we see across manyother industries. The construction industry is notorious for its short-term contracts, complex
sub-contracting chains and informal employment practices; all of which leave workers open to
exploitation (Lingard, Cooke & Blismas, 2009). Moreover, over half of all construction
businesses in OECD (Organisation for Economic Co-operation and Development) countries
are small firms employing fewer than 10 employees, (OECD, 2008) in which a large percentageof the employees are contingent, migrant workers (OECD, 2009). Compared to other*

Ass Prof Felicity Lamm, Centre for OHS Research AUT
Dr Dave Moore, Centre for OHS Research AUT***
Dr Swati Nagar, Centre for OHS Research AUT****
Prof Erling Rasmussen, Department of Management, AUT*****
Prof Malcolm Sargeant, Department of Leadership, Work & Organisations, Middlesex University**

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New Zealand Journal of Employment Relations, 42(2): 39-60
occupational groups, the injury, illness, and fatality rates amongst construction workers aresome of the highest in New Zealand (Workplace Safety & Health Institute, 2014; Statistics
New Zealand, 2015a).
Using Quinlan and Bohle’s (2004; 2009) ‘Pressures, Disorganization and Regulatory Failure’(PDR) model and the construction industry to frame the changing nature and organisation ofwork and the impact this has had on the OHS of sub-contracted construction workers, weconsider the issues in the wider context of the vulnerability of workers. By focusing on theconstruction industry in New Zealand, post-2010 Canterbury earthquake, we hope to shed lighton why the rates of injuries, illness and fatalities among vulnerable construction workers
remain stubbornly high. To support our arguments, we draw on government data and secondary
data located in scientist reports, and the like. Finally, we discuss what can be done going
forward in terms of creating a more effective regulatory regime and a safer and healthierindustry. In so doing, we consider (albeit briefly) recent developments in vulnerability theory(e.g. Fineman, 2008) in order to assess their applicability. However, it is necessary to first
define what we mean by “vulnerable workers” as well as commenting on the increase in thenumber of vulnerable workers and under what circumstances workers become “vulnerable”.

Rise of the Vulnerable Workers
The post-war standard form of employment began to deteriorate in many of the OECD
countries from the late 1980s onwards for a number of reasons (Quinlan, Mayhew, & Bohle,
2001; Auer, 2006; Burgess, Campbell, & May, 2008; Connelly & Gallagher, 2004;
MacEachen, Polzer, & Clarke, 2008; Kalleberg, 2009; Quinlan, 2012). Increasing
globalisation, mounting competitive pressures, and an expanded labour market created the needfor greater labour flexibility, further threatening standard employment and traditional tripartite
employment relationships (ILO, 2015). Moreover, labour force participation rates have beenfalling over recent decades, reflecting a loss of more than 37 million potential workers fromthe global labour force (ibid). It should be noted, however, that in the construction industry,labour participation fluctuates dramatically as a result of the ‘boom and bust’ nature of theindustry (Ministry of Business, Innovation and Employment, 2016a). Nonetheless, long-run
trends point to further declines, with participation rates predicted to fall significantly below 63
per cent of the global working-age population by 2030 (ILO, 2014; see Figure 1). In New
Zealand, the unemployment rate, particularly among young workers and ethnic minorities, has
crept upwards, and the participation rate has begun to slide downwards (Ministry of Business,
Innovation and Employment, 2016b). More specifically, there are pockets of structural
unemployment, a widening income and wage inequality, the rise in insecure work and thereliance on migrant labour to plug skill shortages in industries, such as construction, tourism
and hospitality (Rasmussen, Lamm, & Ravenswood, 2016). Another related trend is theprevalence of reclassifying a ‘full-time, permanent employee’ to ‘an independent contractor’or ‘casualised employee’ which has significantly altered the employment relationship as theformer status is often linked to employment benefits and entitlements not afforded to the latter(refer to Donahue, Lamare, Kotler, & Fred, 2007; Nuttall, 2011; Lamare et al., 2015).

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New Zealand Journal of Employment Relations, 42(2): 39-60
Figure 1: Global labour force participation rate: Projections vs trends, 1990-2030

Structural phenomena, such as a downturn in the economy and resultant unemployment,
weakened trade union presence and shifts in industry, and occupational employment patterns
have also created an underclass of vulnerable workers who are powerless “…to maintain
desired continuity in a threatened job situation” (Greenhalgh & Rosenblatt, 1984: 438).
However, Quinlan, et al. (2001), Evans and Gibb (2009) and Croucher, Stumbitz, Quinlan, &Vickers (2013) note that deteriorating employment conditions and wages are not new issues.
What is new is the ‘great risk shift’ that has occurred in recent years, whereby key social risks
are increasingly transferred away from governments and employers onto the individual. This,
together with corporate and public policies giving “…a greater role to market forces within theworkplace, have been key determinants in the erosion of the standard employment relationship”(Evans & Gibb, 2009: 5).
With unemployment and underemployment, there are degrees of vulnerability whereby someindividuals and groups are more exposed to exploitation than others (Sargeant & Tucker,
2009:1). Highlighting the factors that contribute to the vulnerability of workers has also beenpart of a wider discussion that includes the ILO’s Decent Work Agenda and the Living Wage
Campaigns (Anker, 2011). As noted in the ILO’s ‘Decent Work Agenda’:People throughout the world face deficits, gaps and exclusions in the form ofunemployment and underemployment, poor quality and unproductive jobs, unsafe work
and insecure income, rights which are denied, gender inequality, migrant workers whoare exploited, lack of representation and voice, and inadequate protection and solidarity
in the face of disease, disability and old age (ILO, 2006:1)
Not only have there been attempts to expose the working conditions of vulnerable workers, butthere have also been attempts to identify particular groups of vulnerable workers, as outlined
below in Table 1 (see the British Trades Union Congress’ (TUC) Commission on Vulnerable
Workers, (2007) and ILO (2012) – From Precarious Work to Decent Work).

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New Zealand Journal of Employment Relations, 42(2): 39-60
Table 1: Groups of vulnerable workers


Agency workers and other ‘atypical
workers’ (for example, casual workers andsome freelancers)
Industrial home-workers: who are often
denied even the most basic employment
rightsRecent migrants: who are more likely toface extreme discrimination, dangerous
working conditions, and a range of otherabuses – including forced labourYoung workers: who are not entitled to thesame rates of the minimum wage as others
and are more likely to face exploitation
Unpaid family workers: employed across a
range of businesses with no legal
protection at work
Informal workers: working across manyindustries, with those already facing
disadvantage the most likely to be
exploited

A great deal of the empirical work and conceptualisation on the vulnerability of workers starts
with the premise that precarious employment is at the heart of the problem (see Quinlan &Mayhew, 2001; Tucker, 2002; Fineman, 2008; Sargeant & Tucker, 2009; Standing, 2011). For
most workers, the precarious nature of their pay and conditions have eroded minimum
standards set out in collective agreements and employment law, thus creating a situation where
workers have become increasingly vulnerable. The PDR model attempts to explain the poor
OHS outcomes of precariously employed, vulnerable workers (Quinlan & Bohle, 2004: 2009).
The model, outlined in Table 2, is useful in that it organises a number of factors that have anegative impact on the OHS of precarious workers into three categories: economic and reward
pressures; disorganisation at the workplace; and regulatory failure (ibid). The first category
entails employment and income insecurity as well as intense competition for work, which inturn can contribute to a range of hazardous practices, including work intensification, working
when injured, and holding down multiple jobs (ibid).
The second category, disorganisation, concerns the lack of commitment by businesses to invest
in a stable workforce. Here, disorganisation is not simply a result of employer oversight, it is“…a characteristic feature of the relationship between contingent workers and their employers”(Quinlan & Bohle, 2004: 93). Using the PDR model to explain the how precarious employment
affects the health and safety at work, Underhill and Quinlan (2011: 399) note that:
Where workforce instability prevents the sustaining of established rules, procedures
and roles, then OHS knowledge and management systems become fractured, whilst
inter-worker communication, task co-ordination, and lines of management control are
weakened. Under-qualified, under-trained and inexperienced workers become morecommonplace. In this setting, contingent workers are less able to collectively organize
or be heard at the workplace. Use of temporary workers affects employer attitudes to
induction, training, participation in workplace committees, and other activities with
implications for safety.
Regulatory failure is the third and critical category and refers to the extent to which OHS andemployment legislation is weakened by precarious employment arrangements (Underhill &Quinlan, 2011). Quinlan and Bohle (2004) argue that employment protection and minimum
entitlements become ineffectual when vulnerable workers are less cognisant of theirentitlements and their employers are less inclined to comply. OHS regulatory inspectors also
encounter difficulties, such as identifying those with legal responsibility in multiple-employer
worksites (Quinlan and Bohle, 2004; Underhill & Quinlan, 2011).
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Table 2: Risk Categories Associated with the PDR Model
Economic &Employment Pressures
Insecure jobs (fear of losing
job)Contingent, irregular payment
Long or irregular work hours
Multiple jobholding

Disorganisation at theIndustry & Workplace
Short tenure, inexperience
Poor induction, training, andsupervision
Ineffective procedures andcommunication
Ineffective OHSMS/
inability to organize

Regulatory Failure
Poor knowledge of legal
rights, obligations
Limited access to OHS,
workers’ compensation rights
Fractured or disputed legal
obligations
Non-compliance andregulatory oversight (stretchedresources)

Source: Underhill, E. & Quinlan, M. (2011) How Precarious Employment Affects Health and Safety at Work:
The Case of Temporary Agency Workers, Industrial Relations Quarterly Review, 66(3): 397-421.

Underhill and Quinlan (2011) argue that many of the risks associated with economic pressuresand disorganisation are based upon and compounded by regulatory failure. Indeed, limited
resources allocated to OHS regulatory agencies result in a preference for ‘demonstration effect’prosecutions of large stable companies. That is, larger employers are more readily identifiable
by regulators, have more capital and reputation to protect, and are unable to ‘disappear’ when
threatened with prosecution. Conversely, smaller businesses often operate without fear ofprosecution in the knowledge they can ‘disappear’ should an employee be sufficiently severely
injured to warrant prosecution (also see Lamm, 2002). Moreover, the OHS legislation in New
Zealand, as in many other countries, exempts small businesses from having to provide
formalised employee participation systems (e.g. have elected worker representatives andestablish health and safety committees). These regulator features, together with other factors,
such as the difficulties many vulnerable workers face when raising health and safety issues
within small businesses, can compromise the OHS outcomes of these workers.
In the next two sections, we endeavour to apply Quinlan and Bohle’s (2004; 2009) PDR Modelto help understand the interrelated factors that characterise the New Zealand constructionindustry. In doing so, we hope to explore why traditional approaches to OHS are no longer
viable in protecting vulnerable workers and that new solutions and theories are necessary.

Economic and Employment Pressures in the Construction Industry
The construction industry is the fifth largest in the New Zealand economy and represents 12
per cent of the total workforce (Ministry of Business, Innovation and Employment, 2016b).
The New Zealand construction workforce itself covers a wide range of skill levels, fromlabourers and tradespeople to project managers and engineers (Ministry of Business,
Innovation and Employment, 2016c). Moreover, 97 per cent of businesses in the constructionindustry are small, employing 20 or fewer workers, with many operating as self-employed
contractors (Statistics New Zealand, 2016a). These small businesses also operate withincomplex sub-contracting environments across multiple sites (Ministry of Business, Innovationand Employment, 2016a). These facts have two important implications. First, a higher
proportion of businesses relative to employment indicates that the average business size for43New Zealand Journal of Employment Relations, 42(2): 39-60
this industry is smaller than that of other industries in the economy. In addition, as the average
size of businesses in this industry is small, it is likely that most firms lack the breadth and depthof finances and/or business acumen to invest and implement, human resource policies andpractices, such as training and development and OHS (Lamm & Walters, 2004; Lamm, 2014,
Nagar, 2015). Second, the productivity rate for the New Zealand construction industry is 30
per cent below that of Australia (Ministry of Business, Innovation and Employment, 2014;
2016c; also see Kane, (2012)). Some have argued that the significant proportion of small
construction businesses, which typically suffer from short life-cycles and are likely to be underresourced, may help to explain the industry’s relatively low productivity (New Zealand
Building and Construction Sector Productivity Taskforce 2009). Tran and Tookey (2011: 58)
in their study into labour productivity in the New Zealand construction sector noted that:
Between 1997 and 2007, the basic construction costs (material and labour) remained
stable while values of works grew at significantly higher rates. This result suggests that,in theory, NZ construction should have performed exceptionally well in terms of labour
productivity. However, productivity statistics showed that overall the performance of
NZ construction was actually decreasing. This contradiction suggests that when
extraneous factors are taken into consideration, labour productivity might have
performed much worse than we had expected.
Not only does the New Zealand construction industry have stubbornly low levels of
productivity but, as stated earlier, the industry is also is susceptible to boom and bust cycles(Chang-Richards, Wilkinson, Seville, & Brunsdon, 2012; 2013; Ministry of Business,
Innovation and Employment, 2014). It should also be noted that construction workers are thefourth lowest paid in New Zealand (Statistics New Zealand, 2015b). The industry also employsa relatively young workforce with high concentrations of Maori and Pasifika workers (ibid).
These attributes tend to increase the industry’s vulnerabilities to disturbances in social andeconomic climates (Chang-Richards, et al, 2012, 2013). As the graph below shows, there wasa dramatic downturn in employment in the construction industry prior to the Canterbury
earthquakes which lead to the shrinking number of skilled labour (Figure 2). The subsequentlabour shortage of skilled construction workers at a time of high demand post-2010 earthquakes
and the expansion of Auckland, (New Zealand’s largest city), meant that skilled labour has had
to be largely imported. This was predictable as the cyclical construction industry has always
relied on migrant labour when there has been upturn in the industry (McLeod & Maré, 2013;
Rotherham, 2016). Moreover, because the New Zealand construction industry has traditionallylost workers to Australia in search of better prospects, it has become highly dependent on
migrant workers during so-called ‘building booms’ (Ministry of Business, Innovation and
Employment, 2016b).

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New Zealand Journal of Employment Relations, 42(2): 39-60
Figure 2: Employee Migration in the Construction Industry to and from New Zealand(Source: Ministry of Business, Innovation and Employment, 2016b)

While the number of temporary migrants decreased across New Zealand in the 2010 and 2011
following the global economic crisis (see Figure 3), the numbers rebounded from the 2012
onwards with the beginning of the Canterbury rebuild and the economic recovery (ibid). Manyof the jobs, however, are temporary and the scale of precarious employment in the constructionindustry was highlighted in a recent article by Rotherham (2016: 1):
On a typical day, the country’s largest recruiter and temporary labour provider, AWF
Madison Group, has 3500 blue-collar workers out on the job. Most are Kiwis, though
the company hired 350 Filipinos for the Christchurch rebuild. Now chief executive
Simon Bennett wants to hire a further 1000 migrants by the end of 2017 to fill a shortageof skilled construction workers in Auckland. A road map of the unprecedented levelsof forecast growth in the Auckland construction industry through to 2018, when it’s
expected to peak, shows a “wall of work” that will create 32,000 extra jobs.
As stated, the number of temporary migrants working in construction in Canterbury has
accelerated and now accounts for 40 per cent of all temporary migrant construction workers in
New Zealand (Ministry of Business Innovation and Employment, 2015a). While New Zealanddata is fairly crude, it does show that the largest increase in immigrant workers has been fromthe Philippines, with almost half of the work visas granted for the Canterbury rebuild wereallocated to Filipinos, working as carpenters and joiners and painting trades workers (seeFigure 4 and 5).

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New Zealand Journal of Employment Relations, 42(2): 39-60
Figure 3: Quarterly employment and real GDP growth to March 2015

Source: Ministry of Business Innovation and Employment, (2015b)

Figure 4. Temporary migrant trends in the construction industry, Canterbury and other regions,
2008–2014 tax years

Source: Ministry of Business Innovation and Employment, (2015b)

Figure 5: Migrants in the construction industry by country of origin and tax year, Canterbury
region, 2008–2014 tax years

Source: Ministry of Business Innovation and Employment, (2015b)

Growing anecdotal evidence and media attention over the exploitation of migrant workers not
only by their employers but also by the recruitment agents and landlords, prompted the Ministryof Business, Innovation and Employment to commission a study – Vulnerable Temporary
Migrant Workers: Canterbury Construction Industry (see Searle, McLeod & Ellen-Eliza,
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New Zealand Journal of Employment Relations, 42(2): 39-60
2015). The study concluded that migrants in the Canterbury construction industry wereaffected by a variety of exploitative practices. Most commonly mentioned were:






excessive amounts of money charged by recruitment agencies in the migrant worker’s
country of origin - migrant workers hired by labour hire companies or small businesses
were also considered particularly vulnerable to exploitative practices;
contract substitution or situations where terms and conditions of a migrant’s contract were
not met;situations where migrants were subjected to practices that were not in breach of minimum
standards but were considered poor employment practices;
situations where employers were not meeting minimum employment standards; andconcern about the use of the 90-day trial when recruiting from overseas.

In another report on vulnerable workers in New Zealand, Lambert (2014: 36) uses the following
extract to illustrate how New Zealand-based recruitment and building companies operating inrebuild of Christchurch are exploiting migrant workers:
Major Holdings Limited was registered in October 2013 and went insolvent in June
2014. During its operational months, it recruited about 7 carpenters from the Philippinesand offered them a “package deal” to come to New Zealand to work. Each man paid
about $4,000 for airfares, visas, orientation and the contract with Major Holdings (andmost are in debt to Filipino lenders). Major Holdings provided overcrowded accommodation (3 men to a single room with cooking facilities), and witnesses told of
having eight (8) men staying in a converted garage. Despite these conditions, each man
paid rent of $150 per week. After the company liquidated, the men were left stranded
at the mercy of Immigration New Zealand to decide whether they would be deported asthey were in breach of their visa conditions (for not working for Major Holdings), or if
another visa would be issued to them to allow them to obtain alternative employment.
In another similar study on the exploitation of migrant construction workers in Canterbury, it
was found that there was evidence of racism (Searle et al., 2015). The most frequently reported
instances were:

in public places, where hostile or aversive racism commonly takes the form of verbal
denigration by a stranger; andin the workplace, where subtle, or symbolic racism in job seeking and career advancement
leads Asian migrants to have on average the lowest wages of any cultural grouping in New
Zealand according to the 2006 census.

As we have seen, the New Zealand construction industry, particularly in Canterbury, typifies
the primary elements of Quinlan and Bohle’s (2004; 2009) model. That is, it is characterisedby employment and income insecurity as well as intense competition for work, and a heavy
reliance on cheap vulnerable migrant labour – all of which constitute a high degree ofcomplexity. In the next section we will see how these features have contributed to a range ofhazardous practices, including work intensification, working when injured, and multiple job
holding, resulting in the construction industry having one of the highest rates of injuries andfatalities. Moreover, we assert that it is no coincidence that there is a relationship between highrates of work-related injuries and fatalities and a prevalence of exploitation of vulnerable
groups of workers.
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New Zealand Journal of Employment Relations, 42(2): 39-60

Disorganisation in the Industry
New Zealand’s injury and fatality rates are high compared to other similar countries. In a
recently published comparison of fatal occupational injury rates by Workplace Safety and
Health Institute (2014), New Zealand’s construction industry ranked ninth out of 9 countries,
with a fatal occupational injury rate of 15.3 per 100,000 person years. Australia (4.4 fatalities)
and Norway (4.4 fatalities) had the lowest rates in the construction industry. Unlike some othercountries included in the study, official ILO data for New Zealand included self-employedworkers. Given that this industry contains a high proportion of self-employed workers (over 35
per cent), Lilley, Samaranayaka, & Weiss (2013: 23) argued that, when compared withcountries that exclude self-employed workers in construction, it is likely that the magnitude of
New Zealand’s fatal occupational injury rates could be over-estimated.
Notwithstanding Lilley’s comments, the New Zealand construction industry, particularly
residential construction, still has one of the highest injury, illness and fatality rates in the
country (Statistics New Zealand, 2016b). Between 2011 and 2015 the construction industry
had the second highest number of work-related deaths (33) and recorded the second highest
number of work-related claims lodged by workers (21,300 claims) (WorkSafe Annual Report,
2016). The total number of reportable injuries in building and allied trades in New Zealand wassome 25,557. By 2013, the occupation groups with the most work-related injury claims weretrades workers (35,500 claims), compared to agriculture and fishery workers (31,200 claims)
plant and machine operators and assemblers (25,200 claims) (Statistics New Zealand, 2014).
While these statistics might be high, the real figures could be higher. A recent survey of workers
and employers suggests that a serious level of under-reporting of accidents (see Nielson, 2015).
When asked how often hazards, near misses and accidents were reported to bosses/supervisors,
only two out of 10 workers and around three out of 10 employers in the construction industry
said they believed this happened “all the time”. More disturbingly only 28 per cent of
employers said that serious harm incidents in their businesses had been reported to WorkSafe(Nielson, 2015:11). One explanation for the rise in the number of injuries and fatalities in the
New Zealand construction industry is that workloads have risen exponentially, driven by theCanterbury rebuild, along with the demand for housing and infrastructure in Auckland andremedial work relating to the weather-tightness issue (Ministry of Business, Innovation and
Employment, 2014: 24). These pressures potentially increase the risks to health and safety.
What was missing from the discourse around the OHS of Canterbury construction workers,
however, was the exposure levels to hazardous dust particles. Pressure from health officials
and the general public experiencing clouds of dust containing large quantities of silica andasbestos from fallen masonry and the liquefaction, however, resulted in WorkSafe New
Zealand commissioning a pilot study – Exposure to silica dust in the construction industry in
the Canterbury rebuild: A pilot study (Douwes, Glass, McLean, ’t Mannetje, 2015). The main
findings of the study show a lack of knowledge of the risk of silica dust, a lack of efficient dust
suppression methods, a large number of construction workers not using respiratory protection,and sampling results of silica exposure exceeded national and international workplace exposure
standards. The authors concluded that workers performing selected ‘at risk’ tasks in the New
Zealand construction industry are being exposed to levels of respirable dust and respirable
crystalline silica (RCS) exceeding national and international standards. Preliminary datasuggest that control measures currently applied may not be adequate to protect workers fromadverse respiratory effects. The authors argue that urgent action is required to reduce silica
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New Zealand Journal of Employment Relations, 42(2): 39-60
exposure in the New Zealand construction industry given the results of their study and otherinternational research (ibid).
As outlined above, the context in which Canterbury construction workers are exposed tooccupational injury and disease is complex in that the workforce is diverse and comprises a
network of supply chains across four construction areas (commercial, housing, civil andspecialist trades), including a prevalence of small and medium-size (SMEs) subcontracting
firms operating within multiple-site configurations (Ng, Cheng, & Skitmore, 2005; James,
Johnstone, Quinlan, & Walters, 2007; PricewaterhouseCoopers 2011). Managing OHS among
subcontractors can be difficult, because they are at risk of slipping through safety checks andoften fail to adopt adequate health and safety practices, or may be shielded by contracting firms
who compromise health and safety in return for completing work more quickly and profitably(Ng et. al, 2005). Further, as stated earlier, the business cycle is experienced more acutely inthe construction industry when compared to other industries and has a significant impact onfirms’ employment and OHS (Lin & Mills, 2001; Allan, Yin & Scheepbouwer, 2008). That is,when the industry experiences a boom, the industry suffers from capacity constraints, while inthe case of a bust, many workers tend to lose their jobs as firms try to cut costs, especially inareas deemed to be inconsequential (such as OHS). Also when the industry experiences a
downturn, there is a tendency to price at or below cost in order to win the contract which hasconsequences for the quality of work, employment and training and viability of businesses(Ruddock & Lopes, 2006).
The industry is also divided, with underlying tensions coalescing around the lucrative safety
training space (Sherratt; Farrell; & Noble, 2013; Bahn & Lamm, 2014). Riding on the back of
the previous and current legislation, numerous industry training providers, most of which aresmall businesses, have been launched over the past decade. Typically these organisations offer
safety training (the emphasis is on safety with little mention of health) and provide a system ofidentity cards showing the level and type of training the card holder has gained. As a result,
there is a proliferation of OHS training providers and registration schemes. Each of the large
players in the construction industry has a particular preference as to which scheme they require
all their workers and their main subcontractors to subscribe to (Bahn & Lamm, 2014). Quinlan
and Bohle (2004) argue, however, that workers in precarious employment are rarely afforded
the same benefits, such as training, compared to those workers in more stable employment
relationships. As outlined above, the construction industry and central government have failed
over the years to invest in a stable workforce and instead have contributed to the fluctuationsin the labour market by taking a just-in-time approach (see Rasmussen, 2010) which has
implications for health and safety training for all its workers. As we will see in the next section,
the employment relations and health and safety legislation has also done little to moderate theexcessive use and abuse of casual labour.

OHS Regulatory Failure and Vulnerable Workers
As with other similar commonwealth countries, New Zealand adopted a generalist approach to
managing OHS. During the 1970s, a number of jurisdictions acknowledged regulatory
deficiencies in the area of OHS and in response conducted their own reviews, notably the UKwith Lord Robens’ Report, Safety and Health at Work (1972). Two main features outlined in
the Robens’ Report were seen by New Zealand and other Commonwealth governments asessential to effective administration of, and long-term compliance with, OHS legislation:
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New Zealand Journal of Employment Relations, 42(2): 39-60


A single Act covering all workers, administered by a single unified inspectorate; andThe creation of a joint, self-regulatory approach where the responsibility for health andsafety is placed firmly back into the workplace, that is, the ownership of ‘duty of care forworkers’ is no longer solely with the State but instead with employers and employees. The
participation of employees is formalised via the mechanism of representation on workplace
health and safety committees.
The New Zealand Health and Safety in Employment Act, 1992, however, deviated from the
Robens’ model in that it did not stipulate the participation of employees in the decisions
affecting their health and safety; the Act made only vague reference to the involvement of
employees in health and safety issues. This was not surprising, given that the employment
legislation introduced by the right-wing National Government failed to recognise trade unions
as legitimate representative of the workers or countenance worker participation and instead
promoted the unitarist approach to work (Quinlan, Bohle & Lamm, 2010). Moreover, since
the mid-1980s, successive governments have, to a greater or lesser degree, “rolled back thestate” and directed the Department of Labour (now defunct) to focus exclusively on corelabour market functions while taking a “side-line” position to most aspects of employment,
including industrial disputes and frontline enforcement. As a result, the Department’s role
shifted from one that was primarily concerned with enforcing the regulations to a morepassive, consultant-like role, dispensing advice via a centralised call centre and often without
the necessary expertise or staff to effectively undertake their statutory duties of enforcement.

Although the Labour Coalition Government of 2000-2008 endeavoured to remedy a number of
weakness inherent the Health and Safety in Employment Act, 1992, including introducing
worker participation, enforcement deficits were not addressed until the tragic mining accident
in November, 2010. The year 2010-2011 will be known in New Zealand as annus horribilis.
Within a period of five months, New Zealand had not only experienced a major mining disaster,
killing 29 workers, 13 of whom were construction workers, but also two major earthquakes
which killed 185 people. It was the disaster at the Pike River Coal Mine that finally bought
action to address the failings of the OHS enforcement and compliance. The role that the
OHS inspectors played in the lead up to the Pike River Coal Mine disaster was seen as a pivotal
cause of the failings at the mine. Internal investigations as well as submissions made to theRoyal Commission of Inquiry and the later Independent Taskforce all highlighted the fact thatthe enforcement role of the inspectorate had been considerably reduced and that there was ageneral lack of mine safety expertise among the senior public servants as well as inadequate
legislation (Macfie, 2013).
The subsequent statute, the Health and Safety at Work Act, 2015, is designed to make senior
managers more responsible for OHS, particularly those operating in hazardous industries.
However, the final version of the OHS legislation was a pale shade of its earlier, more robust
version. It was entirely predictable that the legislative process was captured by powerfullobby groups, most notably from the agricultural and small business sector who successfullyargued that their sectors were not hazardous, in spite of all the evidence to the contrary(Rasmussen et al., 2016). In short, the campaign was very effective in that the problems andissues of the OHS law were redefined and then dismissed as unimportant. For example,
the worker representative provisions in the new Act have been considerably diluted and now
exempt non-hazardous, small businesses from any formal worker representation process. As
an editorial (New Zealand Herald, 2015) succinctly notes:

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New Zealand Journal of Employment Relations, 42(2): 39-60
The bill should not exempt small workplaces from the obligation to have a work andsafety representative if their staff request one. In its original form, it did not contain an
exemption but the National Party clearly came under intense lobbying from small
business interests while the bill was before a select committee. It emerged with an
exemption for workplaces with fewer than 20 employees, unless the industry was on its
schedule of high risk. This would be a marginal improvement on the present law, which
exempts employers of up to 30 people, but there is no good case for any exemptions. If
there was, the Government would be making it. In the absence of a compelling reason,
it can perhaps be assumed National MPs were persuaded the bill as originally drafted
would have exposed small employers to external unions, giving them a foot in theirdoor as health and safety representatives.
The question is: What does this mean for workers in the construction industry? Here Quinlan
and Bohle (2004) and Underhill and Quinlan (2011) argue that OHS and employment
legislation is weakened by precarious employment arrangements prevalent in the constructionindustry. They also argue that employment protection and minimum entitlements become
ineffectual when workers are less cognisant of their entitlements and their employers are lessinclined to comply. In spite of recent regulatory reforms in both Australia and New Zealand,
OHS regulatory inspectors still encounter difficulties, such as identifying those with legal
responsibility in multiple-employer worksites in the industry (Underhill & Quinlan, 2011;
Lamm et al., 2013). Moreover, the weak regulatory oversite, together with poor levels ofcompliance, undermine accessibility of workers’ compensation by vulnerable workers(Quinlan et al., 2010). There is a substantial evidence to show that, for a number of reasons,
there is a significant under-reporting of workers’ compensation claims among vulnerable
workers in precarious employment (Lamm, 2014).
In summary, while Quinlan and Bohle’s (2004; 2009) PDR model and other similar models,such as Sargeant and Tucker (2009), are useful as “…a means of explaining the poor OHS
outcomes experienced by precariously employed, vulnerable workers”, there is still a great deal
to be learnt regarding the context and different forms vulnerability and more importantly, what
can be done to reduce the level of vulnerability. It is argued, therefore, that it is necessary tobuild on the PDR and other models, in order to elevate current theorising to the next level.

Conclusions and a way forward
Using the Canterbury rebuild as an example of how and under what circumstances workers canbe exploited in a so-called “civilized country”, we can see that customary labour practices,
underpinned by minima standards together with traditional methods of regulatory enforcement
are ill-equipped to protect the OHS of vulnerable workers. Moreover, while the extant models
are sufficiently robust and adroit to explain the levels of complexity in an industry, likeconstruction, and to expose the hidden practices of extortion, blackmail and exploitation thatpervades the world of the vulnerable worker, we are still no closer in determining why existinglabour standards and state intervention have done little to stem the deteriorating employment
conditions and pay. More importantly, how do we advance the conceptualisation ofvulnerability? In this regard, Fineman (2008) offers a possible solution. In her essay, ‘The
Vulnerable Subject: Anchoring Equality in the Human Condition’, Fineman (2008: 19) argues
that:
51

New Zealand Journal of Employment Relations, 42(2): 39-60…we must think beyond current ideological constraints and consider the possibility ofan active state in non-authoritarian terms. This theoretical task—reconceptualising therole of the state—requires that we imagine responsive structures whereby state
involvement actually empowers a vulnerable subject.
There has been an expectation shared by unions, employers, and the general community that,in matters concerning the health and safety of workers, some state intervention throughlegislation is necessary, if only to set minimum standards and punish gross violators. The
justification for such legislation and its enforcement can be seen in several ways. First,
management may consider the safety and health of the labour it employs to be unimportant
and/or, in the face of competitive pressures, fail to provide sufficient protection for workers.
Second, workers in such circumstances are relatively powerless to protect themselves,particularly when there is a large pool of unemployed labour and unions are weak. Third,
enforcement is the mechanism by which people or organisations are held to account for theiractions or inactions (Lamm, Rasmussen & Anderson, 2013). As Fineman (2008:19) notes thestate is required to ensure that institutions and structures within its control do notinappropriately benefit or disadvantage certain members of society. She adds that:
The legislature and its actions would become the primary institutional manifestation of
the state. Its mandate would be to be responsive to vulnerability, which would result ina more nuanced sense of what constitutes equal opportunity than currently theorized—
one that is more sensitive to existing inequalities and more demanding of the state. This
imperative would be placed on the legislature and executive in the first instance: themandate to be more responsive to and reflective of vulnerability. The legislative andexecutive fulfilment of that imperative ultimately would be monitored or supervised by
the courts, looking to see if the state fulfilled its responsibility in assessing individual
equality claims.
The question is, then, what can be done going forward in terms creating a safer and healthierindustry for all workers, including vulnerable workers? Simply being able to explain thechallenges and linking them to the underperformance in OHS in the New Zealandconstruction industry does not remove the problem. Although challenging, it is imperative
to consider possible solutions that could assist the New Zealand construction industry indeveloping the appropriate OHS mechanisms to protect its most vulnerable workers.
Whilst there is minimal definitive research, it is not unreasonable to conclude that the New
Zealand construction industry is inefficient and ineffective because of two reasons (seeStatistics New Zealand, 2016b). First, the firms and the industry as a whole operate in anenvironment of conflict rather than collaboration (PriceWaterhouseCoopers, 2011; Bahn
& Lamm, 2014). Second, the industry is structured such that the traditional divide of designand construction firms, together with the hierarchy of sub-contractors and suppliers meansthat much of the knowledge on how to manage OHS strategies more efficiently is
fragmented and often not shared (Bahn & Lamm, 2014).

Given that construction projects are technologically and organisationally complex, there
is a need to manage the interests and influences of multiple project contributors, workers
52New Zealand Journal of Employment Relations, 42(2): 39-60
and stakeholders on OHS practices (Lingard, 2013). As a suggestion, an industry OHS
network similar to the Canterbury Safety Charter would provide a useful mechanism tomanage the interests of multiple stakeholders’ whilst ensuring the provision of adequate
OHS measures at firm level. The proposed industry network could facilitate greaterinteraction amongst the government, industry, and the firms on the protection of
marginalised, vulnerable workers. This intra-industry collaboration could foster morecollaboration and greater sharing of knowledge and resources on OHS practices aimed atreaching vulnerable workers. Collaboration at an industry level could also assist in creating
an operative network at a firm level. Such an operative network would allow the firms(both contractors and sub-contractors) to gather necessary resources and knowledge,
critical to maintaining appropriate OHS standards and ensuring the safety of the workers.
Such a network may also encourage the development of strong integrating mechanisms,
as in the absence of such measures, discrepancies can produce deep fractures, conflicting
interests, communication failures and a lack of clarity concerning responsibility for OHS
both for the workers and the firms (Lingard, 2013).
Furthermore, competitive tendering practices which result in most contracts being awarded
to the lowest bidder often compel businesses to drive their prices low, in an effort to cut
costs, which in turn, affects health and safety considerations (Nagar, 2015). Cost pressures
are then usually passed down to the smaller subcontractors (Weil, 2014), causing recurrent
health and safety problems (Lingard, 2013). Recognising this gap, the New Zealandgovernment and local industry bodies (such as construction strategy group and Building
Research Association of New Zealand (BRANZ)) could work together in the industry toestablish funding schemes to ease the financial burden of small construction firms. In
doing so, the financial support would perhaps help these firms in establishing a variety of
initiatives in the form of safety promotion, and training, which can be implemented topromote safety and health in the workplace. Findings outlined in Bahn and Lamm’s (2014)
report show that investment is needed at the firm level to ensure that adequate OHS
training is provided to all workers, irrespective of their employment status, at the onset of
every project. It is noted that training and induction procedures are often poorly structured
in industries such as construction (Wilkins, 2011). An appropriate level of training,
therefore, can result in a greater level of safety awareness and better OHS performance(Pearce, et al., 2007).
The highly transient and often vulnerable nature of the subcontracting workforce anddeficit of resources so characteristic of small businesses in the construction industry, tends
to complicate employment relationships which in turn causes ambiguity regarding the
responsibility for OHS (James et al., 2007; Lingard, 2013; Nagar, 2015). Added to this is
the declining trade union density, a political and legal environment that favours individualand decentralised bargaining – all of which have contributed to the lack of employee voiceover employment matters, including OHS. Within this challenging working environment,
Holland, Pyman. Cooper and Teicher (2009) and others argue that creating alternative,
wide-ranging worker participation mechanisms is critical in OHS. They note, however,that alternative worker participation mechanisms on individual and organisational-levels
is achievable only if joint consultation is embedded in organisational processes and that
there is managerial motivation for joint consultation and alternative voice channels when
dealing with OHS matters.
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New Zealand Journal of Employment Relations, 42(2): 39-60

Finally, there is clearly a need for the industry to focus on making significant improvements
to the way workers are employed and the conditions they are employed under. The industry,
supported by evidence, has identified the OHS issues but not necessarily the solutions.
Moreover, as noted in the Royal Commission on the Pike River Coal Mine Tragedy (2012),
the prevailing ethos was profit over safety. Given the points discussed in this paper, it is,therefore, suggested that improving the OHS standards and practices within the New
Zealand construction industry that takes account of the vulnerability of workers will
require deliberate, sustained attention and action from those working in government,
related industry agencies and the industry as a whole.

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The reasonably practicable test and work health and safetyrelated risk assessments
CHRISTOPHER PEACE*
Abstract
The test of “so far as is reasonably practicable” (SFAIRP) arose from the mid-1800s in
English common law to determine if a duty of care for work health and safety had been met.
It was arguably most famously summarised in the case of Edwards v National Coal Board
1949, but has since been used in the UK Health and Safety at Work Act that has, in turn,given rise to similar legislation in other jurisdictions. Internationally, the SFAIRP test has
been the subject of many common law and criminal law cases to determine if all that could
reasonably be done had, in fact, been done. However, a literature search carried out as partof wider research found no discussion of the implied requirement in the test that a risk
assessment be carried out as part of demonstrating that SFAIRP requirements had been met.
This has become of some significance in New Zealand and Australia due to the passage ofrecent legislation founded on SFAIRP.
This article addresses this gap and then reviews what a risk assessment might include. Risk
assessment processes and techniques (derived from international standards) that mightsatisfy a regulatory agency or the courts are then outlined and their use in practice isindicated from the findings of an online survey and related field work. These findings
suggest a knowledge or practice gap that may reduce the effectiveness and acceptability ofrisk assessments. Some options for closing that gap are described.
The paper concludes with a discussion of some of the implications of ineffective risk
assessments for the courts, directors, employers and workers.
Keywords: risk assessment, international standards, work health and safety legislation, thereasonably practicable principle

Background
Exploration of the effectiveness of risk assessments in informing decision makers identified
implied legal requirements for risk assessments that might satisfy judicial and statutory
interpretations of the “so far as is reasonably practicable” (SFAIRP) test in the common law
duty of care and Robens-style work health and safety legislation. This research also foundthat company legislation in New Zealand and other jurisdictions allows directors to rely on
PhD student, School of Management, Victoria Business School Orauariki, Victoria University of Wellington,
PO Box 600, Wellington 6140, New ZealandPrincipal Consultant, Risk Management Ltd, PO Box 7430, Wellington, 6242, New Zealandchris.peace@riskmgmt.co.nz*

An early draft of this paper was presented at the Victoria University of Wellington Centre for Law,
Employment and Work conference The Changing Nature of Work and Employment, on 28 and 29 November
2016.

61

New Zealand Journal of Employment Relations, 42(2): 61-78
professional or expert advice under specified circumstances, and (following recent
legislation on work health and safety (WH&S) in Australia and New Zealand) that company
officers and employers will need to consider whether they can rely on a risk assessment(Peace, Mabin, & Cordery, 2017).
Decisions from leading WH&S cases in three jurisdictions were reviewed and found tostrongly imply the requirement for a risk assessment. However, no articles discussing such
implied requirements were found in a literature search.
This paper responds to these issues as follows. It first briefly discusses the origins of thereasonably practicable test in the common law and recent New Zealand and Australian
WH&S legislation. A selection of reported cases where the reasonably practicable test has
been considered are then discussed, leading, it is argued, to the implied requirement for arisk assessment. The possible structure of such a risk assessment is then outlined before
discussing how the best available information might be gathered, in theory and in practice,
to demonstrate that a duty has been complied with so far as is reasonably practicable. The
development and effectiveness of a novel tool for stakeholder engagement during risk
assessments is described before concluding with implications for future research.

Origins of reasonably practicable and legislation
In the early 1970s, the UK government recognised the need to rationalise work health andsafety and related legislation, and regulatory agencies, and appointed a committee chaired
by Lord Robens to review the law and make recommendations. The committee reported in1972 and suggested that new legislation be based on the English common law duty of care
(Lord Robens et al., 1972). That duty requires a duty-holder to discharge their duty “so far
as is reasonably practicable”. The UK Health and Safety at Work Act (UK HSWA) became
law in 1974 with cross-party support and has remained in place without any substantial
amendment (Ford, 2002).
Since 1974, other countries have adopted the basic structure and duties of care in the UK
legislation, including the SFAIRP test for compliance. In Australia, the government has
sought to put in place a single, federal health and safety framework by developing a ModelBill (“Model Work Health and Safety Bill,” 2009) to replace sometimes conflicting Acts ineach State.
After the New Zealand Pike River disaster (Macfie, 2013) the New Zealand government
appointed a Royal Commission to enquire into the causes of the explosions and makerecommendations (Royal Commission on the Pike River Coal Mine Tragedy, 2012). The
Ministry of Business Innovation and Employment (MBIE) subsequently absorbed theregulatory functions of the Department of Labour (including the Mines Inspectorate). MBIE
commissioned a report that determined regulatory work at the mine had fallen short of agood standard, so contributing to the disaster (Shanks & Meares, 2013).
The government also appointed a taskforce to investigate and report on improvements in theregulatory framework (Independent Taskforce on Workplace Health and Safety, 2013). The
report recommended adoption of the Australian Model Bill, subsequently adapted to give a
better fit with New Zealand law and practice (published as the “Health and Safety Reform
Bill,” 2014). That Bill became law in April 2016 (renamed the “Health and Safety at Work62

New Zealand Journal of Employment Relations, 42(2): 61-78
Act,” 2015 (NZ HSWA)) and sets out a series of duties of care modified by the SFAIRP test
owed to workers and “other persons” who might be affected by workplace activities.

Reasonably practicable
English common law decisions relating to workplace injuries and cases under the UK
HSWA have often been cited in court in Australia and New Zealand. Some are outlined
below before discussing relevant Australian and New Zealand cases.
UK case law
In some cases, the meaning of the reasonably practicable test has been decided to imply arequirement for a risk assessment to be carried out before any harm occurred. The mostsignificant and commonly cited case is Edwards v National Coal Board (NCB) (1949), andis reviewed first.
The facts of the case were that Mr Edwards (a colliery timberman) was going to his
workplace along an underground travelling road in Marine Colliery, South Wales, a coalmine owned by the defendants, when he was killed by a fall of material from the side of theroad. Although some propping and lining of the road had been carried out at places where
weaknesses appeared, the point at which the accident occurred had no artificial support. The
defendants contended that it was not reasonably practicable for them to have avoided or
prevented the insecurity of the road at the point in question, there being nothing to indicate
the existence of the latent defect, and that to require them to support all roads in the minewould be to impose on them an impossible financial burden.
Evidence from the original trial suggested that propping and lining the whole mine might beunreasonable in terms of cost but that it would be reasonable to either prop or prop and line
the travelling roads and so make them safer. The court heard that “this particular travellingroad which was only 400 yards long … had, in fact, been timbered for about half its lengthand up to within 15 to 30 yards of the spot where this accident occurred.” Evidence was also
heard that the necessary timbers were available at the surface of the mine. However, themine officials seem never to have proactively considered the options of propping orpropping and lining, although they did rely on a system of inspections and the “ordinary andusual precautions”.
Damages of £948 were awarded to Mr Edwards’ widow in the original trial and confirmedin the House of Lords appeal. “Reasonably practicable” was discussed in that appeal by Lord
Asquith thus:
The onus was on the defendants to establish that it was not reasonably practicablefor them to have prevented a breach … “Reasonably practicable” is a narrower termthan physically possible and it seems to me to imply that a computation must be
made by the owner, in which the quantum of risk is placed on one scale and thesacrifice involved in the measures necessary for averting the risk (whether inmoney, time or trouble) is placed in the other; and if it be shown that there is a grossdisproportion between them – the risk being insignificant in relation to the sacrifice– the defendants discharge the onus on them. Moreover, this computation falls to
be made by the owner at a point of time anterior to the accident. The questions [the63New Zealand Journal of Employment Relations, 42(2): 61-78
employer] has to answer are: (a) What measures are necessary and sufficient toprevent any breach …? (b) Are these measures reasonably practicable? [Emphasis
added.](Asquith LJ., in Edwards -v- NCB (1949))
The measures to prevent any breach suggest the need to assess the effectiveness of current
controls and of options that might eliminate or minimise risk. The absence of evidence on
which a conscious decision had been based was of importance to Lord Asquith who wrote:
I do not think any, or any sufficient, evidence was adduced as to the relative
quantum of risk and sacrifice involved on the basis either that the mines as a whole(or that this particular roadway) should be taken as the unit – a necessary
prerequisite to any decision that the defendants have proved the necessary measuresimpracticable.
In the same case Lord Tucker argued that:
This shows that in every case it is the risk that has to be weighed against themeasures necessary to eliminate the risk. The greater the risk, no doubt, the lesswill be the weight to be given to the factor of cost (Tucker LJ., in Edwards -v- NCB(1949)).
Arguing that “a computation must be made” … “at a point of time anterior to the accident”
and “weighed” implies the need for a risk assessment that informs decisions about risk
before harm has occurred. The “quantum of risk” relates to the harm that might be caused(death, injury or ill-health) and suggests the scale of the necessary risk assessment, perhaps
including the questions suggested by Lord Asquith ((a) What measures are necessary andsufficient to prevent any breach …? (b) Are these measures reasonably practicable?).
In a 1990 appeal under the UK HSWA, the need to take into account the likelihood ofconsequences was emphasised.
For the purpose of considering whether the defendant has discharged the onus
which rests upon him to establish that it was not reasonably practicable for him, inthe circumstances, to eliminate the relevant risk, there has to be taken into account(inter alia) the likelihood of that risk eventuating. The degree of likelihood is an
important element in the equation. It follows that the effect is to bring into playforeseeability in the sense of likelihood of the incidence of the relevant risk, andthat the likelihood of such risk eventuating has to be weighed against the means,including cost, necessary to eliminate it. [Emphasis added.](Goff LJ., in Austin Rover Company v HM Inspector of Factories (1990))
An earlier common law case distinguished between what is practicable and what isreasonably practicable thus:
The test of what is [reasonably practicable] is not simply what is practicable as amatter of engineering, but it depends on the consideration, in the light of the wholecircumstances at the time of the accident and, whether the time, trouble and expenseof the precautions suggested are or are not disproportionate to the risk involved,
and also an assessment of the degree of security which of the measures suggested
64New Zealand Journal of Employment Relations, 42(2): 61-78
may be expected to afford. [Emphasis added.](Reid LJ., in Marshall vs Gotham (1954))
The phrase “in the light of the whole circumstances” again implies the need for a risk
assessment while “an assessment … of the measures” again pointed to the need to consider
controls currently in place.
In a subsequent appeal, under UK HSWA, it was decided that “reasonably practicable”
required a defendant to prove that:… it was not practicable or not reasonably practicable to do more than was in fact
done to satisfy the duty … or that there was no better practicable means than was
in fact used to satisfy the duty or requirement.
(“R v British Steel plc,” 1994)
Reaching the conclusion that “there was no better practicable means” again requires someform of enquiry into current controls or options to eliminate or minimise risk – here, it isargued, a risk assessment.
Australian case law
The meaning of “reasonably practicable” in earlier Australian legislation was considered ina Supreme Court of Victoria case where it was determined that:
The Act does not require employers to ensure that accidents never happen. It
requires them to take such steps as are practicable to provide and maintain a safe
working environment.
(Harper J., in Holmes v RE Spence & Co Pty Ltd (1992) at line 123)
Harper J considered this might done:… by taking an active, imaginative and flexible approach to potential dangers in
the knowledge that human frailty is an ever-present reality … [so] … preventing
the human factor from resulting in injury.
This might require “no more than the making of a value judgement in the light of all thefacts” based on “what was known at the relevant time” (Gaudron J., p. 53 in Slivak v Lurgi(Australia) Pty Ltd (2001) at page 53). This comment aligns with comments made by Tucker
LJ in Edwards v NCB quoted above.
A grossly inadequate risk assessment carried out by an employer was found to have led tothe death of a worker (Greenwood J., in Comcare v John Holland Pty Ltd (2016) at para 96).
The court found that “no employee or agent of John Holland Pty Ltd undertook a formal risk
assessment in relation” (emphasis added) to the planned work activity and that such a risk
assessment ought to have addressed at least 20 practical questions about the conduct of theactivity. The judgement again followed Edwards v NCB 1949 in that a risk assessment
should have preceded the fatality.

65New Zealand Journal of Employment Relations, 42(2): 61-78
In a 2016 case involving high-risk movement of vehicles in confined spaces the judge held
that: … so far as is reasonably practicable must involve the creation of strict, rigorous andcomprehensive standards which are the religiously maintained.
(Cannon J, in Director of Public Prosecutions V Toll Transport Pty Ltd (2016))
Flores-Walsh, Costa, & Lo (2017) commented that this required:… employers and other persons who conduct businesses and undertakings [to] …
identify … the competence of their risk assessment processes and the persons who
conduct assessments …
New Zealand case law
The reasonably practicable test formed part of the definition of “all practicable steps” insection 2A of the Health and Safety in Employment Act 1992, now repealed by NZ HSWA.
In an appeal by the employer against conviction, the High Court seems to have followed the
UK case R v British Steel plc (ibid), and found that the appellant had done what waspracticable by carrying out an informal risk assessment (Hansen J, in Buchanan’s Foundry
Ltd v Department of Labour (1996)). That enquiry should be “judged on the basis of what
had been known at the relevant time”.
In a more recent case, the High Court found that use of a cherry picker was a practicablestep and that the cost of hire ($480) was reasonable when the lives of workers working atheights were at risk (Venning J, in Martin Simmons Air Conditioning Services Ltd v
Department of Labour (2008)). However, use of a cherry picker had not been considered aspart of any risk assessment.
The Australian case Director of Public Prosecutions V Toll Transport Pty (ibid) was echoedin a 2016 New Zealand case which found that policies and procedures identified as necessary
as a result of a risk assessment should be maintained and subject to review (Rowe, J in
WorkSafe NZ v Rentokil Initial Ltd (2016)).
Summary
In summary, these cases from the UK, Australia and New Zealand strongly suggest that adecision about a WH&S-related risk must be preceded by a risk assessment that provides
the best available information for that decision. This will enable a duty-holder todemonstrate it had done what was reasonably practicable and was using that information to
enable monitoring of the risk for any changes in the work environment, work or workers.

Reasonably practicable in the NZ HSWA and the Model Bill
Whereas judges have previously interpreted reasonably practicable in either the common
law or statute law, the Model Bill and NZ HSWA set out the following definition.
22. Reasonably practicable
In this Act, unless the context otherwise requires, reasonably practicable, in relation
to a duty of a PCBU set out in subpart 2 of Part 2, means that which is, or was, at aparticular time, reasonably able to be done in relation to ensuring health and safety,
taking into account and weighing up all relevant matters, including:(a) the likelihood of the hazard or the risk concerned occurring; and66

New Zealand Journal of Employment Relations, 42(2): 61-78(b) the degree of harm that might result from the hazard or risk; and(c) what the person concerned knows, or ought reasonably to know, about:(i) the hazard or risk; and(ii) ways of eliminating or minimising the risk; and(d) the availability and suitability of ways to eliminate or minimise the risk; and(e) after assessing the extent of the risk and the available ways of eliminating or
minimising the risk, the cost associated with available ways of eliminating or
minimising the risk, including whether the cost is grossly disproportionate to therisk.
The legislation introduced the term “person having control of a business or undertaking”,
abbreviated in the Act as PCBU, defined as a natural person or other entity having control
of a workplace.
Specific mention of “or ought reasonably to know” in clause (c) raises the question: “Whatdoes a duty-holder have to do to discover what they ought reasonably to know?”, an issue
addressed later.
Guidance on reasonably practicable published by WorkSafe NZ (2016), the New Zealand
regulator, states that many risks might be eliminated or minimised by the use of common
controls, perhaps without the need for a full risk assessment. The guidance suggests that “ifthere isn’t a common control for a risk then you first need to evaluate the risk and the ways
to control it. Then, lastly, you would consider the costs and if they are proportionate to therisk”. WorkSafe suggests such an evaluation – a risk assessment – might include: how likely is the risk to occur
 how severe is the harm that might result from the risk
 what you know or ought reasonably to know about the risk and the waysof eliminating or minimising it the availability of the control measures, and how suitable they are for the
specific risk.
The guidance then suggests “as a final step, consider if the cost of setting up control
measures is grossly disproportionate to the risk” and that “cost is rarely an excuse for notsetting up a necessary control for a risk”. Although this guidance is for small to medium
businesses, it makes no reference to how a risk assessment might be carried out (eg, a
suitable process or suitable techniques) or form part of related workplace activities (eg,quality improvement), and how a simple cost benefit analysis might be conducted.
The factors to be considered when assessing if a WH&S-related risk has been minimised,
SFAIRP have also been described by WorkSafe NZ (2016) and the UK regulator, the Healthand Safety Executive (HSE, 2001), and are summarised in Table 1, structured to match therequirements of section 22 NZ HSWA (clause 18 of the Model Bill), and section 137 of the
NZ Companies Act 1993.

67

New Zealand Journal of Employment Relations, 42(2): 61-78

Table 1. Summary of factors affecting demonstration of SFAIRP
Sources: WorkSafe NZ (2016); HSE (1992; 2001); section 22 NZ HSWA; Lowrance (1976)

Factor(a) likelihood of thehazard (cause) or risk
occurring(b) the degree of harm(the consequences) thatmight result from thehazard or risk(c) What is known
about:(i) the hazard or risk(ii) ways of eliminatingor minimising thehazard or risk(d) the availability andsuitability of ways toeliminate or minimise
the risk(e) the cost, including
whether the cost is
grossly disproportionate

Issues to consider
What is the current state of knowledge about the likelihood of harm?
Is the likelihood continuous (chronic) or sudden (acute)?
Are there uncertainties about the likelihood of the harm?
What would be the nature and severity of the potential harm?
What is known about harm of that nature and severity?
Will harm be immediate or delayed
Is there a possibility of harm to future generations?
Is the harm reversible?
Are there uncertainties about the magnitude of the harm?
What are the expected number and range of harms arising from thehazard?
Is the harm common or dread (ie, deeply feared by some people)?
Would there be no detectable adverse effect?
Are vulnerable groups of the public exposed?
What is the current state of knowledge about the means available toeliminate or minimise the risk?
Are guidance documents on the hazard and associated risks freely
available or of restricted-access?
Is the hazard natural or man-made?
What is the exposure relative to natural background?
Is the hazard occupational or non-occupational or both?
Are the people exposed to the hazard aware of it and any potential harm it
might cause (ie, voluntary or involuntary)?
Is the hazard familiar or novel?
What could reasonably be done to discover new means to eliminate orminimise the risk?
Can the hazard (causes of risk) or potential harm (consequences) beeliminated?
Can a lesser hazard be substituted for the current hazard, so reducing therisk?
Can the hazard be isolated from people?
Can people be isolated from the hazard?
Can an engineering control be used to minimise the hazard?
Can administrative controls be implemented to minimise the risk?
If there is still a risk, would personal protective equipment be of any
benefit?
Arising from (c)(ii):
What are the current controls over the risk?
What is the effectiveness of those controls?
Who manages the controls?
Do workers and/or the public have confidence in the quality of thatmanagement?
Could emergency services cope with any incidents?
Could relatively cheap expenditure or modifications significantly reduce
risk?

68

New Zealand Journal of Employment Relations, 42(2): 61-78
to the risk

See further discussion on “grossly disproportionate” below

NZ Companies Act
1993, section 138 and
NZ HSWA, section 44

Do workers and/or the public have confidence in the independence andquality of expert advice?
How is the risk viewed in light of prevailing professional practice?

Risk assessments
The meaning of risk ought to be the starting point for discussion of how a risk assessment
might be conducted or how that a risk assessment might be a driver for change in a process
or business activity. Conversely, the “grossly disproportionate” part of reasonably
practicable has often been discussed (including Ale, Hartford, & Slater, 2015; Aven &Abrahamsen, 2007; Fischhoff, Lichtenstein, Slovic, Derby, & Keeny, 1981; Jones-Lee &Aven, 2011; Lowrance, 1976; Thomas & Vaughan), but mostly as a standalone topic,
unrelated to the meaning of risk or the outcome of a risk assessment. Some authors draw on
the “value of a prevented fatality” (VPF) or “value of a statistical life” (VOSL) as a sourceof data for the application of techniques such as cost benefit analysis, cost effectivenessanalysis or multi-attribute utility theory.
The Model Bill and NZ HSWA do not define “risk” and so, for the purposes of this paper,the definition in the international standard, ISO31000: 2009 Risk management: principles
and guidelines)1, is used. This standard (and most other management standards published by
the International Standards Organization) define risk as the “effect of uncertainty on
objectives”, suggesting that any risk assessment must start with an understanding oforganisational objectives, including those for work health and safety, and then analyse theeffects of uncertainty on those objectives.
A range of standards and documents gives guidance on risk assessments but may be sectoror activity-specific, whereas ISO31000 states it can be applied to any risk in any
organisation. Managers and others can, therefore, use this generic standard and its
definitions to help manage risk, regardless of the consequences. This view was confirmed
by Safe Work Australia (a Federal agency established to coordinate and develop national
policy and strategies) in a guide that suggests the process for deciding what is reasonably
practicable “is consistent with guidance on risk management” (Safe Work Australia, 2011).
The causes and effects of uncertainty can then be assessed, leading to an understanding of
the risk, how effectively it is currently managed, whether it is currently acceptable and, if
not acceptable, identification of options for elimination or minimisation of the risk.
Risk assessment is defined in ISO31000 as the “overall process of risk identification, risk
analysis and risk evaluation” and risk assessment is part of the overall risk management
process – how an organisation increases the certainty that its objectives will be achieved. To
provide the best available information for a decision about risk (ISO, 2009, p. 7, principle f)a risk assessment should follow a structured process to identify and analyse possible causesof events, their consequences, the likelihood of those consequences and the effectiveness ofcurrent controls.
Once in possession of the best available information, a decision maker must then address
the “acceptable risk problem” (Fischhoff et al., 1981) to decide if a WH&S-related risk is
1(published in Australia and New Zealand as AS/NZS ISO31000: 200969

New Zealand Journal of Employment Relations, 42(2): 61-78
acceptable, tolerable or intolerable. That is: “Has this risk been minimised so far as isreasonably practicable?” as per Edwards v NCB 1949 and section 22, HSWA (section 18,
Model Bill).
Based on this ISO31000 definition and approach, risk assessments can be seen as a “precautionary” management activity that should be “game-changing” information technology(Goble & Bier, 2013), capable of informing decisions, engendering stakeholder trust indecisions, and facilitating adaptation and experimentation by decision makers and risk
managers. Risk assessments should contribute to management as a technology and help
discover and contextualise knowledge in an understandable representation, communicatedby a credible person, that aids rational decisions (Bloom, Raffaella, & Van Reenen, 2016).
Issues associated with whether the cost of a possible control is “grossly disproportionate”
may then be of less significance.
The statutory definition of reasonably practicable and WorkSafe NZ guidance includes“what the person concerned knows, or ought reasonably to know …”. It is argued that
following the above approach will help respond to this requirement, but without a formal
process and use of relevant risk techniques may miss key aspects of uncertainty.
What might be included in a “reasonably practicable” risk assessment?
If a risk has both low uncertainty and low complexity, a simple screening risk assessment
may be sufficient to show that relevant codes of practice or other well-established andapplicable guidance will either eliminate or minimise the risk (HSE, 2001; WorkSafe NZ,
2016). However, in assessments of more complex risks with WH&S-related consequences,a more detailed risk assessment may be necessary to help answer the “acceptable risk
problem”.
Fischhoff et al. (1981) concluded the “acceptable risk problem” was hard to resolve due todifficulties in agreeing on terms of reference for risk assessments, distinguishing facts andvalues, and difficulties with professional judgement. Such difficulties have been partly
addressed by ISO31000 (ibid), supported by IEC/ISO31010 (2009) Risk assessment
techniques2 and a range of technique-specific International Electrotechnical Commission(IEC) standards. Several authors have also addressed the conduct of risk assessments, andhow to avoid failures of risk assessments (Busby & Hughes, 2006; Haas, 2016; Wiedemannet al., 2013).

Techniques for use in the risk assessment process
Research into the effectiveness of risk assessments is continuing, including examination ofwhich risk assessment techniques might be used to help identify and analyse uncertainty, its
effect on objectives and to enable evaluation of analysed risks against the reasonably
practicable test. The techniques thought to be most commonly used were mapped against an
amended version of the risk management process in ISO31000 (see Figure 1) and their use
tested in an online survey.

2

Published in Australia and New Zealand as SA/NZS HB89:2013 Risk management – Guidelines on risk assessment techniques

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New Zealand Journal of Employment Relations, 42(2): 61-78
Figure 1. Risk assessment techniques in the selected processThis graphic is based on the ISO 31000 risk management process diagram. Possible risk techniques are shown in boxes with solid lines and curved
corners to indicate where they might be used. Note that some techniques can be used in several stages of the process.

Monitoring and review
Assurance mapping
Auditing
Bow-tie analysis
Risk register
Risk record card
Root cause analysis
Scenario analysis
Three lines of defence

9

Reporting and recording
10
Bow-tie analysis
Consequence/likelihood matrix
Risk register
S curves
Scenario analysis

Engagement:
2communication &consultation
Brainstorming
Checklists
Delphi techniqueFeedback from earlier
engagements
Focus groups
Interviews
Nominal group technique
Stakeholder analysis
Stakeholder engagement
matrices
Surveys
Taxonomies
Workshops

Risk assessment
Risk identification

Risk analysis* no controls* with controls
Likelihood ofconsequences

9

10

1

4
5
6

Risk evaluation

Yes

3

7

2

Engagement: communication & consultation

Establish the context* external* internal* risk management
Establish risk criteria

Monitoring & review

Quantitative risk analysis 6
Bayes nets
Bayesian statistics
Business impact analysis
Cash flow at risk
Consequence/likelihood matrix
with quantitative scales
Cost benefit analysis
Cross impact analysis
Earnings at risk
Event tree analysis
Fault tree analysis (quantitative)
FMECA
FN diagrams
Game theory
Impact consequence rating matrix
Likelihood exposure
consequences nomogram
Markov analysis
Monte Carlo analysis
Physical effects modelling
Probabilistic modelling
Risk bearing capacity
Risk factors and priorities
Statistical analysis
Stress testing
Tie line calculator
Utility theory
Value at risk

Context analysis
1
Applied research
Concept mapping
Document review
Flowcharting
Horizon scanning
Interviews
Mind mapping
PESTLE analysis
Scenario analysis
Stakeholder analysis
Surveys (online or paper-based)
SWOT analysis
Workshops including
brainstorming

Reporting andrecordingControls analysis
5
Bow-tie analysis
Brainstorming or other workshop
Business impact analysis
Cause and effects analysis
Consequence/likelihood matrix
with ranking scales
Environmental risk analysis
Fault tree analysis
Flowcharting the process
FMEA, HACCP, HAZOP
Job safety analysis
Layers of protection analysis
Management & oversight of risk
tree
PESTLE analysis
Questionnaires
Simulation exercises
Structured what-if-then analysis

Accept?
No

Risk treatment

8

Treatment option analysis
Analytical hierarchy process
8
Cost benefit analysis
Decision tree analysis
Multi-criteria analysis
Treatment effectiveness analysis

Risk identification
3
5W1H
Applied research
Bow-tie analysis
Brainstorming
Cause & effect analysis
Checklists
Concept hazard analysis
Concept safety review
Cindynic approach
Event tree analysis
Flowcharting
FMEA, HACCP, HAZOPHistorical data analysis
Incident investigation reports
Interviews
Job safety analysis
Management Oversight andRisk Tree
Mind mapping
PESTLE analysis
Questionnaires
Risk breakdown structure
Risk indicators
Risk registers (existing)
Root cause analysis (various)
Scenario analysis
Stakeholder communications
Structured what-if-then analysis
Workshops
Qualitative risk analysis
4
Bow-tie analysis
Brainstorming
Causal mapping
Cause & consequence analysis
Cause and effect analysis
Cause-consequence analysis
Consequence/likelihood matrix
Environment scanning
Environmental risk analysis
Flowcharting
FMEA, HACCP, HAZOP
Human error analysis
Impact consequence rating
matrixIshikawa or fishbone diagram
Job safety analysis
Management Oversight andRisk Tree
Mind mapping
PESTLE analysis
Root cause analysis
Scenario analysis
Simulation exercises
Risk evaluation
ALARP or SFAIRP
Risk indices
Pareto charts

7

RM techniques 2017
Published online at www.riskmgmt.co.nz
Copyright International Standards Organisation the risk management process
Copyright Risk Management Ltd 207-2017 for mapping techniques against the process71New Zealand Journal of Employment Relations, 42(2): 61-78
The numbered boxes in the diagram represent the sequence in which each stage might becarried out. Note that box 7 (bottom right corner) includes “so far as is reasonably
practicable” and the abbreviation ALARP (“as low as is reasonably practicable”) to help
ensure that UK respondents recognised it.
Before release of the survey, it was pre-tested with focus groups of risk practitioners andamended to include techniques that had been overlooked, resulting in inclusion of“professional judgement” in the survey (but not in Figure 1).
Survey results
To summarise the range of techniques used by respondents, an index for each technique wascalculated by dividing the number of selections for each risk technique by the total numberof respondents to each question. The 23 highest-ranked techniques are listed in descendingorder in Figure 2, showing that the techniques most frequently selected were: professional judgement
 workshops, including brainstorming
 consequence/likelihood matrix with ranking scales.
Figure 2. Most frequently selected risk assessment techniques

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New Zealand Journal of Employment Relations, 42(2): 61-78
More structured techniques had low scores, suggesting that many risk and safety
practitioners preferred to use their professional judgement or, perhaps, were not aware ofthose techniques. If the same is true for managers, this may be an explanation for the failureof risk assessments that might have been intended to demonstrate that WH&S-risk had beenminimised “so far as is reasonably practicable” (Gadd, Keeley, & Balmforth, 2003; Stulz,2009). The survey results (and the preceding focus groups) showed that cost benefit analysis
and multi-attribute utility theory were rarely or never mentioned by respondents astechniques to aid decisions about the cost of risk treatment and whether it might be “grossly
disproportionate to the risk”.
Many of the techniques are at least superficially the same or closely related. For example,
bow-tie analysis is based on fault tree analysis and event tree analysis and strongly resembles
cause and effect analysis (which does not identify an event), while root cause analysis (IEC,
2015) is a collection of techniques that can include fault tree analysis.
The research, therefore, suggests that risk assessors most often use their professional
judgement, regardless of any apparent need for a structured approach to demonstrate thatreasonably practicable steps have been taken to assess and then manage risk. This may be
because they are not aware of generally accepted processes or relevant techniques that canhelp provide the best available information about uncertainty in risk. Risk assessments using
professional judgement therefore may suffer from bias (Kahneman, Rosenfield, Gandhi, &Blaser, 2016; Montibeller & von Winterfeldt, 2015).

Can risk assessments be improved?
In research to date, two options for improving risk assessments have been considered.
Graphically relating techniques to process
Some practitioners may be aware of IEC/ISO31010 but not relate the techniques it describes
to the different stages in the risk management process. Error! Reference source not found.
was initially developed to aid development of the online survey but may also help
practitioners to select techniques that are relevant to their risk assessment needs and practice.
Graphical elicitation methods – flipcharts, Post-it notes and the risk canvas
Graphical methods including flowcharts, maps, charts, diagrams and visual metaphors canbe used to help elicit risk information (Bagnoli, 2009; Crilly, Blackwell, & Clarkson, 2006;
Eppler & Aeschimann, 2009). Training courses for managers and risk and safety
practitioners by the author had used flipcharts and Post-it notes as a way of using some risk
techniques, but failed to deliver consistent or reproducible results. When a series of one-day
training courses was run in 2015, contacts in the organisation suggested (M.Ward &G.Burnett, personal communication, 27 July 2015) that a large sheet of paper be used, preprinted with the risk techniques being taught, instead of “free-form” flipcharts and Post-it
notes. This was named the “Risk Canvas” and has since been developed to aid theapplication of selected risk techniques from IEC/ISO31010, within the ISO31000 risk
management process. These include stakeholder analysis, document review, PESTLE

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New Zealand Journal of Employment Relations, 42(2): 61-78
analysis, SWOT analysis, bow-tie analysis, and rating scales for risk velocity, controls
effectiveness and probability.
Anecdotal evidence suggested the first versions worked well and it has been developed toversion 2.3 (available at http://www.riskmgmt.co.nz/publications/), setting out information
to further aid engagement with stakeholders and application of techniques. Victoria
University Human Ethics Committee approval, therefore, was sought and granted to seek
anonymous feedback on the risk canvas in training courses and other settings. Use of therisk canvas will be reported when more data has been gathered but, to date, theoverwhelming response has been in favour of its use during training courses and, potentially,in real-world risk assessment workshops.
In three training courses, attendees were also asked to estimate the level of risk (extreme,
high, medium, low or negligible) in a case study before and after using the risk canvas.
Preliminary analysis of the limited data suggests that use of the risk canvas may result in
about a 25 per cent reduction in variability of the estimated level of risk; this will be further
investigated.
The risk canvas also enables linking with other techniques (including flowcharting, HAZOP,FMEA and HACCP) in workshops and will be developed to enable use of these and othertechniques. The risk canvas is, therefore, a means to aid discovery of “what the person
concerned knows, or ought reasonably to know” about a WH&S-related risk and so
discharge the implied “reasonably practicable” requirement for a risk assessment

Implications for practice
If managers and safety or risk practitioners prefer to use professional judgement rather thanstructured techniques they may be in breach of the implied requirement of “reasonably
practicable” to carry out a risk assessment before a worker or other person has been harmed.
Further, a short, recent article (Lloyd & Healy, 2017) indicates that safety and risk
practitioners who fail to conduct an effective risk assessment could be in breach of the NZ
HSWA (or, in Australia, the Model Bill). This corroborates the earlier comments by Costa,& Lo (2017) about risk assessments and risk assessors.
As noted, the implied requirement for a risk assessment, supported by guidance from
regulators, necessitates understanding the level of uncertainty about achievingorganisational, statutory and common law WH&S objectives, and should include the: degree of harm that might be caused (death, injury or ill health) likelihood of that harm controls already in place further options to eliminate or minimise the risk
 costs of the options to eliminate or minimise the risk and whether thosecosts are grossly disproportionate.
The lack of structure inherent in professional judgement may also result in failure to gather
the best available information to help decide if a WH&S-related risk has been eliminated orminimised, so far as is reasonably practicable. Use of the risk canvas has been found to74

New Zealand Journal of Employment Relations, 42(2): 61-78
provide a structured approach that engages workshop participants and helps overcome
biases.
Management training courses may not always include how to carry out a risk assessment. In
New Zealand, some 98 per cent of businesses are small or medium sized enterprises (SMEs)
whose managers may not have undergone formal safety training, an issue complicating risk
management that has been identified internationally by many authors including: Bluff (2005), who discussed at length the need for specialist support forsmall- or medium-sized businesses in Australia if they were to achievecompliance with occupational health and safety legislation
 Champoux and Brun (2015), who found that occupational health andsafety in SMEs was not well managed in Quebec Deighan, Lansdown, & Brotherton (2009), who found a low level ofoccupational health and safety activity in a sample of UK SMEs
 Legg et al. (2010), who found a low level of integration of occupational
health and safety in business systems in New Zealand SMEs.
This issue may also extend to safety and risk practitioners; an unpublished online survey of
1,438 safety practitioners in early 2016 had a 27 per cent response rate and suggested ageneral lack of training in risk assessment practice in New Zealand safety practitioners(Peace, 2016).

Implications for future researchThis paper suggests the following areas for future research.
 Analysis of court cases under the now-repealed NZ Health and Safety in
Employment Act 1992 and the HSWA to try to identify the quality andfrequency of risk assessments before the harm that led to a prosecution.
 In-depth analysis of the effectiveness and benefits of the risk canvas otherthan during training courses. This might be done by the researcher
observing, but not intervening in, use of the risk canvas.
 Investigation into professional judgement in risk assessments, as appliedby line managers and safety practitioners in New Zealand, to help identify
knowledge and practice gaps.
Contributions of this researchThis research made the following contributions.
 The requirement for a risk assessment, implied in section 22 NZ HSWA,
the Model Bill and leading cases, has been identified, explored and madeexplicit for use of other researchers and for practitioners.
 The content of a risk assessment has been explored using relevant NZ and
UK guidance.
 The high level of use of professional judgement by safety and risk
practitioners in risk assessments has been quantified.
 Two options to help improve the practice of risk assessments have beendeveloped and one has been tested in the field, showing it may be worth
pursuing.

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New Zealand Journal of Employment Relations, 42(2): 61-78

Acknowledgement
The helpful comments of an anonymous reviewer are gratefully acknowledged.
Cases cited
Austin Rover Group Ltd v HM Inspector of Factories (1990), 1 AC 619 1;
Buchanans Foundry Ltd v Department of Labour (1996), NZLR 112;
Comcare v John Holland Pty Ltd (2016), Federal Court of Australia, 501
DPP V Toll Transport Pty Ltd (2016), County Court of Victoria, VCC 1975; CR-16-01137
Edwards -v- NCB (1949), Kings Bench, All ER 743 1
Haas, C. N. (2016). Reproducible Risk Assessment. Risk Analysis, 36(10), 1829-1833.
Holmes v RE Spence & Co Pty Ltd (1992), Supreme Court, VIR 119 (VSC);
Marshall vs Gotham Co Ltd (1954), House of Lords, All ER 937 AC360;
Martin Simmons Air Conditioning Services Ltd v Department of Labour (2008), High
Court, Auckland, CRI 2007-404-249 777;
R v British Steel plc (1994), CACD 31 Dec 1994
Slivak v Lurgi (Australia) Pty Ltd (2001), High Court of Australia, Commonwealth Law
Reports
WorkSafe NZ v Rentokil Initial Limited (2016), District Court,

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78New Zealand Journal of Employment Relations, 42(2): 79-93

Discipline, Dismissal, and the Demon Drink: An Explosive Social
Cocktail
IAN MCANDREW*, FIONA EDGAR** and TRUDY SULLIVAN***
Abstract
Social drinking in the workplace forms an important part of our organisational identity.
Considered a social lubricant, alcohol has become part of New Zealand’s social fabric. In theworkplace, however, alcohol can often become the demon, responsible for behaviouralimpropriety. This over-indulgence often leads to embarrassment, but sometimes it extends tothe more severe outcomes of discipline and even dismissal. It is also increasingly a focus ofoccupational health and safety regulation. Adopting a conversational yet serious stance, ourpaper explores the views and experiences of employers and employees as they relate toworkplace social occasions. By cataloguing contemporary attitudes and profiling the pitfalls
and the problems that arise when things go wrong, our paper concludes by proposing some
sage advice for both parties.
Keywords: alcohol, employee behaviour, social norms, drinking culture, workplace policy

Introduction
What constitutes acceptable behaviour in and around the workplace is, to some considerable
extent, subject to the proverbial ‘moving goal posts,’ a set of sometimes oblique standards thatmove with changing societal mores. In the workplaces of Australia and New Zealand, that
could not be more true than it is in relation to the consumption and influence of alcohol. By
comparison, the regulations and expectations in relation to illicit drugs in the workplace are
relatively straightforward. But alcohol consumption is legal, and enjoyed moderately andreasonably by most adults in many circumstances, including often times at or around theworkplace. However, from both disciplinary and safety perspectives, there is increasing
recognition of the dangers of alcohol consumption at work or at work-related social functions.
Testament of the occupation health and safety dimension to this are the numerous
comprehensive regulatory and advisory government and extra-government outputs atinternational (cf. Management of alcohol and drug-related issues in the workplace: an ILO
code of practice (International Labour Organization, 1996)), state and national (cf. Guidance
note: alcohol and other drugs at the workplace (Western Australia Commission for
Occupational Safety and Health, 2008)), and industry levels (cf. Guidance for managing drug
and alcohol-related risks in adventure activities (New Zealand Ministry of Business,
Innovation & Employment, 2013).
First, let’s set the scene – and we do so with a person we shall refer to as Ms C. At 24, she wasa top salesperson at the most profitable outlet of a major appliance retailer, regularly pulling*

Ass Prof Dr Ian McAndrew, Department of Management, University of Otago
Dr Fiona Edgar, Department of Management, University of Otago***
Dr Trudy Sullivan, Department of Preventive and Social Medicine, University of Otago**

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New Zealand Journal of Employment Relations, 42(2): 79-93
the highest commissions and monthly bonuses. She lived at home with her parents and wasbuilding a good financial basis for the future. She was good at sales and she enjoyed her work
and, her workplace. Until the Christmas party!
To celebrate the holiday season and a good year at the store, staff organised drinks at a city pub
followed by dinner at a nearby restaurant. Management contributed $25 per head. Everyone
from the store manager to the cleaner was there. A couple of the women booked a room at acity hotel to avoid driving home to the suburbs at the end of the evening, and invited others tojoin them for “pre-drinks drinks” and Ms C went along. Later at the pub, already slipping
under the influence, Ms C patted the store manager’s behind, drawing a rebuke from the
manager’s wife. Alcohol continued to flow freely at dinner, for those who wanted it.
After dinner, Ms C and two men from the store went on to a nightclub, and eventually around
midnight presented themselves, now conspicuously drunk, at the hotel room where theircolleagues were preparing to sleep. Over the next couple of hours, Ms C had sex in the bathtubwith the assistant store manager and, on the floor beside the bed in which her colleagues were
trying to sleep, with the other man, a salesman from the store. Despite the protests of thewomen who rented the room, all three eventually passed out and spent the night. Ms C’s
recollection of events was hazy and incomplete at best.
The next day, the women who had rented the room filed complaints with store management
and an investigation was initiated. The two men resigned. Ms C was interviewed and was
sufficiently vague in her answers that she was accused of not being honest, and she was
eventually fired for sexual harassment of the colleagues who rented the room and for lying
during the investigation. She filed a grievance and won on some points, but she didn’t get her
job back or any substantial remedies, and that career path was pretty well shut down.
Ms C’s story is a true one, drawn from the annals of employment case law. Social occasions
where management and staff mix are a feature of many workplaces, and alcohol often serves
as a “social lubricant” at such events. Friday night drinks after work or even every night drinks
after work, special occasion celebrations of retirements, births, engagements, and marriages,
dinner and drinks with colleagues while away on business, socialising with prospective
customers or suppliers, and of course the long and widespread tradition of end-of-year or
holiday celebrations. It is widely believed that the guiding mechanism for employees’ drinking
behaviour (for good or for bad) at these social events are the social norms which usually
become embedded within the stories, rituals and rights of the organisation (Trice &Sonnenstuhl, 1988). As the case of Ms C demonstrates, social drinking occasions can, however,give rise to some serious safety and health issues.
In our study, we take a look at some of the prevailing social norms surrounding alcohol
consumption within New Zealand workplaces, with a view to highlighting the nature and extent
to which behavioural impropriety occurs at work-related social events. Based on thisinformation, we are then able to develop some guidelines for promoting best behaviour andpractice for both parties and, in so doing, we are hopeful that these occasions will be memorable
for all the right reasons. We see this endeavour as both timely and worthy given the recently
introduced Health and Safety at Work Act (HSWA, 2015) explicitly requires New Zealandemployers to secure “the health and safety” of their workplaces and their employees.

80New Zealand Journal of Employment Relations, 42(2): 79-93
Alcohol as a “social lubricant”
Drinking alcohol can be a source of both enjoyment and relaxation (Nesvåg & Duckert, 2017)
and there is evidence that, at the workplace level, it has some utility influencing the formationof our organisational identity (Walker & Bridgman, 2013) and as a social lubricant – alleviatingstress, enhancing relationships, and improving solidarity amongst group members (Bennett &Lehman, 1998; Trice & Sonnenstuhl, 1988; Walker & Bridgman, 2013). Social controls for
employees’ drinking behaviours are developed and transmitted via social cultural/subcultural
norms (Ames, Delaney & Janes, 1992) established at the level of the workplace, the workgroup
and/or the occupation. These norms act as the guide to proper and functional drinking
behaviours (Nesvåg & Duckert, 2017).
However, if these norms are violated, dysfunctionality problems which compromise
occupational safety and health can arise. Along with workplace social drinking norms, although
not a focus in our study, for individuals, characteristics associated with the work itself are also
thought to influence drinking behaviours. Jobs which are demanding, stressful or alienating,jobs which involve shift work, jobs which have low job performance visibility or abusive
supervision are all characteristics which have been linked to problematic employee drinking
behaviours (Trice & Sonnenstuhl, 1988).
Most New Zealand adults drink alcohol; alcohol is prominent in the New Zealand lifestyle(Walker & Bridgman, 2013). It sponsors our national game and it lubricates our social
occasions. Most drink in moderation and appropriately to the occasions, but some don’t. The
New Zealand Health Survey 2012-2013 reported that 79 per cent of New Zealanders aged 15
and over had drunk alcohol in the past year. Of these drinkers, one third drank alcohol at least
three or four times per week, half had been intoxicated at least once in the previous 12 months,
including eight per cent who reported being intoxicated at least once a week (Ministry of
Health, 2013). There are some positives here, if moderation is valued. For instance, two thirdsof drinkers drink less than weekly; half had not drunk to the point of intoxication in the past 12
months. So, many New Zealand adults are enjoying drinking alcohol appropriately and inmoderation. However, self-harm and harm caused by the drinking of others is sufficiently
widespread in New Zealand that abuse of alcohol is considered a significant social problem.
The social lubricant is too often an anti-social enabler.
A New Zealand Law Commission report issued in 2010 after an extensive inquiry identified
the following “serious harms” caused by New Zealanders’ “excessive consumption of alcohol”:“an array of criminal offences,” up to and including homicides, but prominently including
sexual assaults and domestic violence against women and children, a particular New Zealandscourge; “alcohol poisoning and accidental injury due to intoxication” sometimes causing
death; “the harmful effects on educational outcomes, workplace productivity, friendships,social life, and the financial position of households”; and “public nuisance” including litter,noise, and damage to property (New Zealand Law Commission, 2010).
The workplace is a central institution of society, in New Zealand as elsewhere, so it is to be
expected that the workplace will reflect social norms about alcohol consumption, althoughtempered somewhat to the purpose and disciplines of the place, and will also experience someof the “serious harms” attributed to alcohol consumption. Our study was designed to broadly
document the impacts of alcohol on New Zealand workplaces and the workers who populate
them. In this paper, we report on one important aspect of that broader subject, namely the
impacts of alcohol consumption in “workplace-related” social settings of the types listed in the81New Zealand Journal of Employment Relations, 42(2): 79-93
introduction above: after work drinks, celebrations of special events, dinner and drinks withcolleagues “on the road” or as a part of business dealings with customers or suppliers, andholiday social functions.

The research method
Data collection
The research design saw data collected from both primary and secondary sources. Primary data
were collected via an online questionnaire, administered by a data collection agency(ResearchNow), to a randomised sample of 230 employers, of which 218 were usable, and 850
employees, of which 813 were usable. This online questionnaire sought information about thepolicies and prevalent attitudes towards alcohol consumption at social events in respondents’
workplaces, as well as any incidences and/or examples of inappropriate behaviours observedat these occasions. In addition, respondents were asked to share, should they wish, any relevant
workplace stories pertinent to a study of this nature – these could be good, bad, funny or sad.
With regards to the latter, while no employers elected to share any workplace stories, some 187
employees did comment. It is these anecdotal data, which we believe, that affords our researchboth depth and insight into the role played by alcohol at contemporary workplace social
occasions.
In addition to the survey data, we examined the decisions of the adjudicatory bodies under New
Zealand labour market legislation – the Employment Tribunal under the Employment Contracts
Act 1991 and the Employment Relations Authority under the current Employment Relations
Act 2000. We identified from available adjudication decisions 199 cases in which the misuseof alcohol was in some causative way involved in the case; most cases were grievances alleging
unjustified dismissal from employment. Of these cases, 21 cases involved consumption of
alcohol in a “workplace-related” social setting. It is to be expected that many more cases
arising out of similar circumstances were resolved in mediation or direct exit negotiations withoffending employees, or resulted in voluntary quits, while no doubt others would have been letgo without formal adverse consequences for employees involved. Where appropriate, thesestories have been woven into our narrative.

Results
The legal framework
Employment lawyers, mediators, and adjudicators will all tell you that holiday work functions
and other “work-related” social occasions are a rich source of “business” for them. Under New
Zealand employment law, even conduct that occurs outside of normal hours and off site can beactionable by the employer, if there is a sufficient nexus to the employment.
Misconduct occurring at work sponsored social functions, whether on or off premises, willalmost always be within the jurisdiction of the employer much like any other misconduct atwork. New Zealand law also extends the employer’s jurisdiction to adverse events occurringoutside work hours and away from the workplace where the employee is involved inworkplace-related activities, for example while travelling for the employer, where there is82

New Zealand Journal of Employment Relations, 42(2): 79-93
damage to the employer’s reputation, some other material harm to the employer, or significant
damage to fellow employees or the workplace environment (Smith v Christchurch Press
Company Ltd, Hallwright v Forsyth Barr). These general principles cover all manner of afterhours and off-premises mischief that does damage to the employer’s interests, including
misconduct powered by alcohol.
The other relevant legal concept in New Zealand, as in many countries, is the employer’s
obligation under occupational health and safety laws. In New Zealand, that obligation is totake all practicable steps to provide employees with a safe workplace, and that obligation
extends to workplace-related social functions and occasions. It could be said that, to the extent
that the employer’s disciplinary reach extends to cover employees’ use of alcohol on and off
the premises, in and out of normal hours, the employer has obligations to take all practicablesteps to ensure that employee safety is not jeopardised by the availability and use of alcohol.
In essence, “good host” obligations apply to employers where alcohol is made available toemployees in their capacity as employees under the auspices of the employer.
Availability of alcohol at workplace social occasions
Seventy per cent of our 813 employee survey respondents reported that alcohol was available
at their work social functions, both on site and off site, and in most instances this was whollyor partially paid for by the employer. It is worth noting that most reported having experienced
no significant problems from the availability of alcohol at work functions. While there is someevidence that alcohol is less accepted in the workplace today than it might have been in thepast, many people still enjoy a drink in moderation and control as a part of work social events.
However, 20 per cent of our employee respondents had seen trouble, sometimes big trouble,
when staff over-indulged at work events, while 25 per cent of employer respondents also
reported having had to deal with inappropriate behaviour at work social occasions.
The data from our 218 employer respondents give an indication of the employer-endorsed
availability of alcohol at work-related social occasions. While only a minority of employers
reported having alcohol available at “working sessions”, such as staff seminars and teambuilding exercises, 70 per cent reported providing alcohol at work social functions, and asimilar percentage said this was true as well for work-related social events held away from thework premises. This did not, however, extend to travelling for work purposes, with only 21
per cent of respondent employers allowing employees to claim for alcoholic drinks while “onthe road.” Two-thirds of employer respondents reported that at least some of their employees
liked to drink together “after work,” although the frequency varied a great deal and this habit
wasn’t necessarily supported or endorsed by the employer. The most common frequencies
cited were “less than once a month” and “once a week,” 22 per cent and 16 per cent,respectively. While 36 per cent of employers reported their organisation’s unofficial attitude
towards alcohol consumption at work was one of zero tolerance, a similar number (37 per cent)reported this to be one of tolerance, with 22 per cent indicating a relaxed stance was adopted,
with a couldn’t care less stance adopted by the remaining five per cent.
Behavioural manifestations
The extant research suggests organisational drinking subcultures play a hugely influential role
in work group drinking behaviours (Bennet & Lehman, 1999). Specifically, research has foundthat drinking behaviour in organisations is often regulated by “informal social controls”, withthese having a pressurising effect, especially on new employees (Ames & Janes, 1992: 113).
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New Zealand Journal of Employment Relations, 42(2): 79-93
In our study, we found some evidence of this with one employee feeling immense pressure to
drink at social events, with the consequences for non-conformance being severe. Here is theirstory:
I left a job in local government 2 years ago … The pressure to conform through social
club events, Friday drinks, and other “special” events was immense. And because I did
not feel comfortable as a manager drinking with staff who were my direct reports, I
rarely participated. The drinking culture contributed directly to a culture of bullying
and harassment, where ultimately a few staff got together to fabricate stories against
me. I held out all the way through a personal grievance because the organisation
handled the “investigation” so badly. It turned out that senior managers had helped
orchestrate the entire situation. It took me almost a year to recover from the stress andmy earning capacity has been greatly downsized. But on the positive side, I am in amuch better place for health – both physical and mental. I think the use of alcohol isviewed in many NZ organisations as the norm. And it creates unhealthy work
relationships.
Fortunately this case was not representative of all employees however, with many making a
conscious and independently motivated decision about whether they would or would notparticipate and/or drink at work social occasions. In these cases, it was encouraging to see that,
where these choices seemingly differed from those of the majority, the individuals concerned
were not sanctioned or subject to ridicule or alienation from the rest of the group. We wonder
if this tolerance is attributable to life cycle changes, as our data also showed a number of
employees had observed within themselves a change in drinking behaviour and attitudes
towards alcohol, with these being attributed to increases in their age and responsibilities. Someeven observed these behavioural and attitudinal changes to be more widespread, with one
employee commenting:I have been in the same job for 38 years and it was a “live hard” “play hard” situation
which promoted alcohol use/abuse. It is different today without the same emphasis on
alcohol with a lot of younger co-workers seemingly more responsible in their drinking
habits.
Consistent with prior research (Walker & Bridgman, 2013), some also suggested alcohol has apositive role to play in facilitating organisational bonding, with one employee suggesting:… companies should make more effort to encourage team building and socialisingamongst employees with controlled alcohol as it builds strong relationships and teaches
people about each other by changing the environment and situations we relate to eachother in; learning about each other away from the strict refines of the stressful
workplace.
So what could go wrong at the workplace social party – well quite a lot so it happens! As wenoted above, some 20 per cent of our employee respondents and 25 per cent of our employer
respondents did report having experienced inappropriate behaviour on the part of employees
or managers as a consequence of intoxication at work-related social functions or occasions. We
catalogued and categorised the regrettable behaviours and consequences reported to us, somemore prevalent and troubling than others (see Appendix 1), and it is to this end that our
discussion now turns.

84New Zealand Journal of Employment Relations, 42(2): 79-93
At the lower end of the impropriety scale, respondents reported just foolish, sometimes
annoying behaviour. Lots of loud and unruly conduct, “getting a little crazy” and “falling down
drunk,” but sometimes going too far – doing wheelies around the work’s yard and pushing afellow employee into the swimming pool. While most of this sort of embarrassing behaviouris at the least harmful end of the scale, it does run the risk of leaving an employee with adamaged reputation; losing control is not the ideal way to make an impression. And sometimes
it can turn dangerous. One respondent reported a young intern “becoming paralytic” at an
offsite Christmas function and collapsing in a toilet cubicle, not found until the following
morning, probably lucky not to have choked to death.
Sometimes general drunken rowdiness can degenerate into more offensive incivility andrudeness. So, loudness becomes swearing and unacceptable language; falling down drunk
becomes breaking glassware, furniture, and office or restaurant fittings; loss of physical control
becomes vomiting in restaurants, offices, lifts, or over one’s colleagues; and alcohol-fuelled
recklessness can lead to everything from smoking in non-smoking facilities to driving homedrunk.
The two most damaging kinds of behaviours that surface at work functions, often putting
employment at risk, are aggression directed at fellow employees and sexual behaviour or
harassment. We received many reports of drunk party-goers directing verbal abuse at coworkers, or sometimes clients or co-workers’ family members, where those folks were invited
to the function, as they often are. But there were also a number of reports of physical assaults
occurring at work functions, usually between co-workers and usually over some work-related
matter, although there were also reports of altercations between domestic partners andoccasionally between workers and clients. One detailed story reported by a respondent involved
an altercation between a married couple at the company function that resulted in an arrest fordomestic violence. In many of the assault and verbal abuse cases reported to us, there appeared
to be a history of employment relationship problems that came to the surface in a social
situation when under the influence of too much alcohol.
In a recent New Zealand example from adjudication case files, Ms L was a manager in an earlychildhood facility, until she resigned in the face of disciplinary action and filed a constructive
dismissal grievance. There was a history of employment performance difficulties that theemployer was attempting to work through with Ms L, providing extensive counselling andtraining opportunities. But the employment relationship was also being compromised by Ms
L’s drunken behaviour, and that of her invited family and friends, at several staff social
functions held by the employer at his rural property. Eventually she abused a fellow employee,
whom she happened to encounter on the street on a Saturday night, leading to an intervention
by the employer to address her alcohol issues. Unsurprisingly however, other difficulties
overtook matters and the employment relationship ended.
Verbal and physical aggression directed by an employee towards management is a special
category of abusive behaviour that sometimes emerges at work social functions, and these cases
too, almost always have a back story. There were several such instances reported byrespondents in our study, with reports of an employee “dissing management in front of
everyone,” getting into an argument with a manager, or shouting and swearing at a manager.
In one example from New Zealand case law, Ms S had been a sales consultant for a year or so
before she was dismissed for her behaviour at a work function. There was a history of
unhappiness in her employment, Ms S claiming that she had been deprived of some85New Zealand Journal of Employment Relations, 42(2): 79-93
entitlements, and generally discriminated against and bullied. Presumably, this felt discontent
contributed to her venting under the influence of too much alcohol at a staff social club functionthat began at a leisure centre on a Saturday afternoon and moved on to a BBQ at the employer’s
home. For whatever reason, she called a fellow employee “a f--- dickhead,” commented
indelicately on the similarity between a sausage and a penis, and told the employer that she
was “a f--- bitch,” and “I hate you.” Predictably, that was pretty much the end of that
relationship.
Of course things can go in the other direction as well, with managers under the influence
abusing staff at works functions. In another New Zealand reported case, Mr C was a welder
who was assaulted by an intoxicated workshop manager at the work Christmas party, resulting
in him being off work for over a month while his injuries healed. Before returning to work heasked that he not be assigned to work under the manager who had assaulted him. He was foundunjustifiably constructively dismissed when the company denied the request and heunderstandably elected to not return to work.
The other particularly damaging type of behaviour that often surfaces at the annual Christmas
party or other work social occasion, and that featured in our respondents’ accounts, is sexual
harassment or other forms of sexual behaviour. The offenders are reported as both fellow
employees and managers, but also sometimes clients of the organisation, or spouses, otherfamily members, or friends of employees invited to the function. The behaviours reported inour study included a male employee being found drunk and naked in the work bathroom, a staff
member “flopping his wang out,” a female employee “dancing on a senior manager’s knee as
she was too drunk,” various male and female employees stripping to their underwear, “dirty
dancing,” “inappropriate hook-ups,” and “employees raunchy on the dance floor” and “people
making out.”
Mostly, however, when inhibitions were relaxed by too much alcohol, sexual harassment atwork functions was reported as inappropriate comments and unwanted attention –inappropriate jokes, unwelcome flirting, uncomfortable leering at another employee,
particularly men at women, and commenting on breast size or other body features orappearance, and groping or “cuddling” or hanging over other staff; all of which can ruin theoccasion for the person on the receiving end of the unwelcome behaviour, and can indeed have
lingering after-effects for the victim and for the environment of the workplace, and perhaps
marginalisation for the protagonist (Nesvåg & Duckert, 2017).
Consistent with these data, this was also a recurrent theme evidenced in case files. Typicallywhere an employee is being subjected to intensive and usually public sexual harassment at awork social function, it often appears to be the “beginning of the end” of the employment
relationship for the harassed employee. As the former Chief Judge of the New Zealand
Employment Court said some years ago, “sexual harassment poisons the atmosphere of theworkplace” and the work function is one workplace setting that often fosters harassment bysome when the alcohol takes hold. Another noteworthy point to be gleaned from the case datais that the largest number of cases in the New Zealand database involving sexual harassmentof colleagues under the influence of too much alcohol in work-related settings occurred whenemployees were away together on business overnight (e.g., airline workers). That perhaps
represents a relaxed setting where even the limited restraints offered by a wider audience at
staff functions are not present to inhibit inappropriate behaviour under the influence.

86New Zealand Journal of Employment Relations, 42(2): 79-93
These sorts of improprieties can and often do lead to dismissal – a fact attested to by manycases in the files of employment adjudicators. In a recent Australian case, Mr K was a teamleader in a road construction company who was dismissed for his behaviour at a work
Christmas party held off site. Over a period of about six hours, Mr K consumed 13 alcoholic
drinks on top of two drinks he had before arriving at the function. The employer relied on eight
alleged incidents of poor behaviour from Mr K on the night, including swearing at a director,
sexual harassment of a female colleague (asking about her personal life and for her phone
number), and bullying and swearing at two different female colleagues. After the formal
function had finished, some of the party-goers continued at the venue’s public bar. Mr K’s poor
behaviour continued. He kissed another female colleague and told another he would like toknow the colour of her underwear.

Concluding remarks
Alcohol is renowned for being used as a crutch at social occasions. While the popular press(see Fitzgerald, 2016) and some researchers (Friedman & Klatsky, 1993) have recognised the
problems resultant from this relationship, few have done so within the context of the workplace(exceptions include the work of Nesvåg & Duckert, 2017). Indeed, in the New Zealand context,
a review of the Alcohol Advisory Council of New Zealand’s publications, over a 10 year
period, revealed there to be “no mention of a work-alcohol link” (Walker, 2012: 26). This is
somewhat surprising given many New Zealanders share a love affair with both socialising andwith the drink. A study which intertwines these themes within the context of the workplace islong overdue. However, for such a study to be a worthwhile endeavour, it needs to be able toafford practitioners some pragmatic beneficial advice guiding them in how to best meet theneeds of the parties involved in the social occasion. These are now highlighted in the
concluding sections of our paper.
Who is responsible?
We think both parties need to assume some responsibility. The responsibility for employee
welfare resides with employer, while the responsibility for behavioural impropriety lies withthe employee. In the case of Mr K (discussed above), the dismissal was appealed and he
subsequently won his case. This was in part on the grounds that the employer had provided
unlimited alcohol and, in doing so, had breached its health and safety responsibilities to
employees, and in part on the grounds that some of the behaviour complained of occurred after
the official function, deemed to be one step removed from the employer’s reach. However,while there are lessons there for employers, the sort of behaviour documented in the cases
presented in our paper will more often than not get an employee fired – and this is exactly what
happened in the Australian case of McDaid v Future Engineering and Construction. In thisinstance, the counter view was taken by the presiding Court Judge resulting in the employee’s
dismissal being upheld.
Lessons for us all
So what lessons are to be gleaned from these experiences? For employees, the answers are
pretty clear. Know your limits and stay well within them. Even if nothing worse happens,falling down drunk is not a good look and will generally lessen most colleagues’ and managers’
impressions of you. Workplace social occasions are not the time to liquor up and take up

87New Zealand Journal of Employment Relations, 42(2): 79-93
grudges with management or that annoying colleague, or to try to impress a colleague withhow sexy you are when plastered. It can be very confounding, as one employee pointed out:
As a teenager working part time reception I found the idea of grown men drinking
alcohol at Christmas parties extremely uncomfortable and would go out of my way to
avoid them if I could. Their attitudes and speech scared me.
It can also lead to credibility issues: “I don’t respect people who get very drunk at work
functions, especially my seniors.”
For employers, the lessons begin with understanding your obligations under Health and Safety
regulations. Employers who provide or permit alcohol at work functions could be held liable
if employees or others are harmed as a result. The obligation to proactively take all practicablesteps to manage and minimise hazards and risks at the workplace extends to all relevant
alcohol-related risks and hazards. The employer’s policies in relation to alcohol should be
audited with their employment advisers or employment lawyers to ensure that they are in linewith the employer’s legal obligations and liabilities. When hosting work-endorsed social
functions, always adopt “good host” practices. Indeed, the research shows that where
employers develop responsible attitudes towards alcohol consumption, these are likely to bewell received and supported by their employees. For some employers, this is nothing new with
an employee from the education sector making the following observation:
The understanding is the food is always provided, someone remains the safe host andtaxis are provided if necessary for transport post drinking. It is a known rule that one
alcoholic drink can be purchased with an evening meal when away on work trips but
not alcohol during the standard school day of 9-3 when travelling.
And seemingly, some had modified their behaviour as a consequence of things going awry. In
responding to the exhibition of poor behaviour, one employee reported that after a workplace
event in which “inappropriate comments” were made, the next event was deemed “alcohol free
to show that it’s not necessary.”
Not all employers are so enlightened, with one employee contrastingly lamenting:
Personally I used to drink too much at home and at work parties, do somethingembarrassing or just suffer a hangover the next day. Now that I don’t drink and I reflect
back I am a little disappointed that my work supervisors, colleagues [sic] showed noconcern that I may have had a drinking problem. This relates to a previous employer
not my current employer but during that time I was aware that a younger male colleague
was offered help with his excessive drinking and no help was ever offered to me. But
also since then I have been told by people I worked with that they were concerned I
may have been drinking too much but no one ever brought the subject up with me andwhen I tried to [do] it was basically joked away and I was told I didn’t have a problem;
I was just having a good time.
In addition, employers need to be cognisant of the drinking culture which is being promoted
within their workplace. As noted at the outset of our paper, the cultural norms surrounding
alcohol consumption can have a pervasive effect on employees’ drinking behaviours (Trice &Sunnestuhl, 1988). Moreover, where these norms are permissive they can promulgate drinking
subcultures within the organisation (Ames & Janes, 1992). Where drinks are provided and paid
88New Zealand Journal of Employment Relations, 42(2): 79-93
for or at least subsidised by employers then, anecdotally, our evidence would suggest that thisserves to encourage excessive drinking and, moreover, can lead to competitive drinking
behaviours amongst groups of employees. Although this outcome is probably unintentional; it
occurs nonetheless.
So here is our concluding sage advice to employers. Although not legally obliged to do so, thefirst piece of advice is to always lead by example. Think about how your own drinking
behaviour might impact on your employees and what messages you are conveying. Second,
while an organisation’s cultural norms are often informal and unwritten, acceptable drinking
norms need to be formalised and explicitly communicated. It would be nice to think we can all
self-regulate our drinking behaviour, but the reality is this does not always happen. Workplace
drinking norms can be modified by putting in place restrictions and/or limits on alcohol
availability and consumption and, moreover, strictly adhering to these. This will send a clear
message to employees about what is and what is not acceptable behaviour at the social event.
This is particularly important in organisations where a large percentage of the workforce is
employed on a contingent basis as research suggests these workers might offer more resistanceto adhering to cultural norms (Lauver, Lester, & Lentz, 2009). Finally, research finds that
where organisations strictly enforce their alcohol policies, their employees are more receptive
to them (ibid), thus conformance should be engendered through enforcement. So, prior to thescheduling of a social event, employers should take the time to remind their workforce that thisis a work event and, thence, the usual standards of workplace behaviour apply.

References
Ames, G., Delaney, W., & Janes, C. (1992). Obstacles to effective alcohol policy in theworkplace: A case study, British Journal of Addiction, 87: 1055-1069.
Ames, G.M., & Janes, C. (1992). A cultural approach to conceptualizing alcohol and theworkplace, Alcohol Research and Health, 16(2): 112-119.
Bennett, J.B., & Lehman, W.E. (1998). Workplace drinking climate, stress, and problem
indicators: Assessing the influence of teamwork (group cohesion), Journal of Studies on
Alcohol, 59(5): 608-618.
Fitzgerald, K. (2016). 8 Reasons why socializing sober is better than socializing drunk, the fix,
addiction and recovery, straight up. Retrieved from https://www.thefix.com/8-reasons-whysocializing-sober-better-socializing-drunk.
Friedman, G., & Klatsky, A. (1993). Is alcohol good for your health?, New England Journal of
Medicine, 329: 1882-1883. doi: 10.1056/NEJM199312163292510.
International Labour Organization (1996). Management of alcohol and drug-related issues in
the workplace: an ILO code of practice. Geneva: ILO.
Lauver, K.J., Lester, S.W., & Lentz, P J. (2009). Perceptions of acceptability and enforcement:
Their relationship with employees’ behavior concerning alcohol. Journal of Leadership &Organizational Studies, 15(4): 416-428.

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Ministry of Business, Innovation & Employment. (2013). Guidance for managing drug andalcohol-relatedrisks
inadventure
activities.
Retrievedfromhttps://www.worksafe.govt.nz/worksafe/information-guidance/all-guidance-items/guidancefor-managing-drug-and-alcohol-related-risks-in-adventure-activities/managing-drug-alcoholrelated-risks-adventure-activities.pdf
Ministry of Health. (2013). New Zealand Health Survey: Annual update of key findings
2012/13. Wellington: Ministry of Health.
Nesvåg, S., & Duckert, F. (2017). Work-related drinking and processes of social integrationand marginalization in two Norwegian workplaces, Culture and Organization, 23(3): 157-176.
doi: 10.1080/14759551.2015.1021800.
New Zealand Law Commission. (2010). Alcohol in our lives: Curbing the harm. Wellington:
Author. Retrieved from http://www.austlii.edu.au/nz/other/lawreform/NZLCR/2010/114.pdf.
Trice, H.M., & Sonnenstuhl, W.J. (1988). Drinking behavior and risk factors related to thework place: Implications for research and prevention, The Journal of Applied Behavioral
Science, 24(4): 327-346.
Walker, B., & Bridgman, T. (2013). Organisational identity and alcohol use among young
employees: A case study of a professional services firm, International Journal of Drug Policy,
24(6): 597-604.
Walker, B.W. (2012). Organisational identity and alcohol use in knowledge-intensive
workplaces (Unpublished master thesis). Victoria University of Wellington, New ZealandWestern Australia Commission for Occupational Safety and Health (2008). Guidance note.
Alcohol
and
other
drugs
at
the
workplace.
Retrievedfrom
http://www.commerce.wa.gov.au/sites/default/files/atoms/files/alcohol_and_drugs_0.pdf

Cases
Ms C v Telstra Corporation Limited [2007] AIRC 679
Hallwright v Forsyth Barr [2013] NZEmpC 202, ARC 20/13
Smith v Christchurch Press Company Ltd [2001] 1 NZLR 407 (CA)McDaid v Future Engineering and Communication Pty Ltd [2016] FWC 343, Australia
Keenan v Leighton, Boral Amey NSW Pty Ltd [2015] FWC 3156, Australia

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Appendix 1. Classifications and incident of behavioural impropriety
Classification
Exhibited behavioural impropriety
Foolish behaviour
 Acting silly. Making a fool of themselves
 Silly and embarrassing behaviour
 Just being idiots and childish at a work function
 Doing “wheelies” in cars around the work’s yard
 A person pushing a wheel chaired employee too fast andflipping the wheelchair Pushing a fellow employee into a swimming pool
 People over drinking and getting a little crazy Too inebriated and making a fool of oneself
 Just general drunkenness, it’s out of worktime but it’s during
a work function with members of the team higher than yourposition so it’s not a good look
 People behaving embarrassingly and loud and unruly
 Some people getting too drunk and making fools ofthemselves, by falling over or saying things they shouldn’t
 I went to a Xmas work do for a building company we workfor (just my boss and I) and I got very drunk and fell over...nota good look!
 Loud obnoxious behaviour
 Rowdy folks have fallen and created some ruckus
 Inappropriate rowdiness, sexual stuff, silliness Heavy intoxication leading to rowdy behaviour
 Getting very loud
 Falling about the place
Incivility and rudeness

























Speaking loudly
Loud and raucous overt behaviour
Loud mouths, swearing, silliness
Inappropriate language, etc.
People speaking out of turn, being too drunk and getting
together with other workmates
People being rude, making silly comments without thinking
General drunkenness, loud talk, verbal abuse etc.
Drinking too much and behaving poorly
Some drunks who become quite loudGetting too drunk and not being able to physically function
properly
Slurring of words
Drunkenness, falling down, breaking things
Falling, swearing
Vomiting and breaking of glass
Vomiting everywhere
Being sickPublic vomiting
Over consumption and being sick at restaurants
Drinking too much and throwing up
Employee vomiting in public due to drunkenness
Vomiting in lifts
Driving drunk and getting arrested
Driving whilst under the influence91New Zealand Journal of Employment Relations, 42(2): 79-93
 Driving home after drinking
 Drunk driving
 People drinking more than allowed and being loud andobnoxious Smoking on site when a smoke free zone Empty bottles left everywhere are a H&S hazard
Aggression










































Bad mood
Verbal abuse of co-workers
Verbal abuse to other co-workers
Verbal abuse
Abusing fellow peers
Abusive behaviour towards other staff members
Jumping, arguing, aggressive behaviour
Being rude and saying rude things
Men getting loud and obnoxious
Fights and arguments
Arguments, loudness, disruptive, aggression
Verbal abuse and physical assault
Rudeness towards staff, visitors and clients
Rowdiness and some unpleasant stuff
Fights between co-workers
Physical assault
Disagreements resulting in physical injury
Use of abusive words
People getting too drunk and insulting others that results infightsDestroying furniture, being rude to work colleagues, getting
into a fightArguments over work related issues between individuals
Employees arguing over things that happened at work
Arguments over sporting incidents
Fights between partners....husband/wife, boy/girlfriend, either
workmates or partners invited to the work function
A colleague’s spouse drank too much at a work function andwas obnoxious
Anger, fighting, inappropriate remarks
Some inappropriate comments leading to fights
A couple of people had a fight after drinking
Fighting
Intimidating and threatening behaviour
Drunken aggression and fights
People getting too drunk and causing scenes
Some damage within a pub
Broken table after being danced on
Damage to equipment
Destruction of property
Damaging office furniture
Property damage
Drunk people stealing drinks
Staff got so drunk at a Christmas function, the dinner wascancelled92New Zealand Journal of Employment Relations, 42(2): 79-93
 Inciting violence in a public place – not between fellow
workers
 One guy got very loud and abusive at a work function and was
asked to leave A brawl broke out at the event; since then the official stancehas been “NO ALCOHOL”
 Impropriety directed towards Management
 Dissing management in front of everyone
 An employee got into a verbal fight with a manager
 Shouting, swearing at manager
Sexual harassment

































Sexual innuendoes
Rude comments to female staff
Sexual matters
Inappropriate comments and gestures
People getting drunk and saying inappropriate things
Inappropriate interactions with other staff
Inappropriate jokes, people being asked to leave functions
Inappropriate comments from a male worker to several female
workers – not overtly sexual but uncomfortable
Dirty dancing and flirting
Flirting with fellow staff members that didn’t like it
Being drunk, stripping down to their bras and panties at arestaurant
Someone stripped down to their underwear at a Xmas party
Senior staff leering over girls shoulders looking down tops,
commenting on breast size
Groping of females by senior male staff members“Cuddling” of other staff members when intoxicatedOne of the ladies lap-danced on a senior manager’s knee as
she was too drunk
Crude & unwelcomed comments about appearance or sexual
innuendos
Affairs start or come out in the open
Hooking up
Liaisons between colleagues where one is married
Colleagues end up going out with each other
Inappropriate hook-ups
Inappropriate sexual conduct
Employees raunchy on the dancefloor and people making out
A male staff member found naked in bathroom “playing” withhimself
Flopping his wang out at a staff member
Inappropriate behaviour towards a staff member’s husband
Inappropriate behaviour and relations
Inappropriate relationships
Sexual harassment ... male employee saying inappropriate
sexual jokes and references to female employee
The function escalated a little bit due to inappropriate remarks
made by employee towards female employees

93New Zealand Journal of Employment Relations, 42(2): 94

Employment relations and the 2017 general election.
It has been a long tradition that this Journal presents an overview of the political parties’
employment relations policies when there is a general election. This issue contains two articles
where the first article discusses the employment relations policies of the National Party and theLabour Party and the second article overviews the minor parties’ policies participating in thiselection: ACT Party, Green Party, Maori, NZ First, Mana Party, The Opportunities Party(TOP). Both articles highlight that this has been a rather unusual election campaign with a new
Prime Minister (after PM John Key’s resignation in December 2016), and, over the last month,
a new leader of the Labour Party, a leadership change in the Green Party and United Future notcontesting the election.
At the time of writing (end of August), it also promises to be an interesting campaign where
the final shape of the government will probably be decided by post-election negotiations. Thisimplies that the future employment relations policies can be influenced by the minor parties
and there are clearly considerable policy differences amongst those parties. As Skilling andMolineaux highlights, the influence of minor parties will also be determined by outcomes in
the Maori seats, the relative size of NZ First and the Green Party and whether any of the minor
parties has a ‘king-maker’ role. Similarly, the public policy gap between the major parties isobvious with the National-led governments having made many legislative changes and with
the Labour Party promoting stronger, industry-based collective bargaining. However, as Foster
and Rasmussen show, the policy gap has been narrowed by the recent reactive interventions of
the National-led government in areas, such as occupational health and safety, ‘zero hours’agreements, enhanced parental leave entitlements and pay equity and low pay in the aged-care
sector.
Finally, all parties will have to address the entrenched labour market and employment issues,
such as immigration, skill shortages, low pay and ‘living wages’, youth unemployment, pay
equity and diversity. Again, there are, as the articles show, stark public policy differences
between the parties contesting this election and this makes it a fascinating election with major
future employment relations decisions in store.
Erling Rasmussen, 22 August 201794

New Zealand Journal of Employment Relations, 42(2): 95-109

The major parties: National’s and Labour’s employment relations
policies
BARRY FOSTER* and ERLING RASMUSSEN**
Abstract
This has already been an unusual election campaign with the two major parties sporting newleaders and a growing diversity in the two parties’ employment relations policies. There seems
to be no major employment relations changes planned by the National Party and instead the
National-led government’s recent reactive legislative interventions are overviewed. The
Labour Party will support collective bargaining but its approach is short on practical details. It
also plans more interventions and funding to support low paid workers and combat youth
unemployment. An apparently dysfunctional labour market has highlighted immigration
dependency, skill shortages, limited wage movements and youth unemployment and theseissues will be confronting any new government after this general election.

Introduction
This is an election campaign where a rather dull prospect has been set alight by leadershipchanges and where the electorate will be faced with some clear choices in respect of
employment relations. Leadership changes have influenced the election campaign with Prime
Minister John Key suddenly standing down in December 2016 and with Jacinda Ardern,surprisingly, becoming the Labour Party leader in August 2017. There has been a major shift
in economic and political context since the 2014 General Election and this shift has influenced
the policy agenda and the major parties’ policy differences. Furthermore, recent public policy
announcements by the Labour Party have highlighted the public policy differences between thetwo parties. In particular, the Labour Party’s support of collective bargaining and industrybased collective agreements constitute a major difference though it is unclear how these
agreements will be implemented. Another difference is the Labour Party’s stronger focus on
low paid workers though the government’s recent reactive interventions, such as the tripartite
agreement on low paid work in age-care sector and abolishing ‘zero-hour agreements’, have
reduced the public policy difference.
Both parties are faced with a dysfunctional labour market where employers have come to rely
on immigration and short-term visa holders to plug skill and staff shortages, where wages are
not responding to a tight labour market, where youth unemployment is stubbornly high, andwhere income inequality and low productivity growth cloud the economic growth story.
Stronger government intervention is on the agenda as the National-led government has become
more reactive to public debates and the Labour Party has announced a number of interventions
to enhance labour market ‘inclusiveness’ (see Tables 1 and 3).
While there are significant public policy differences, there has also been a contest for winningthe mainstream public policy debate, including debates on economic, welfare and employment
reforms. This will cloud the policy debate as will the probable ‘kingmaker’ role of New Zealand* Barry Foster is a Lecturer in the School of Management, Massey University** Erling Rasmussen is a Professor of Work and Employment at Auckland University of Technology

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New Zealand Journal of Employment Relations, 42(2): 95-109
First. Thus, the electoral and political volatility of the current election campaign could continue
for some time.

Context and history: employment relations 2008-2017
There has been a considerable shift in the employment relations context since the 2014 General
Election. The Global Financial Crisis is now a distant memory and a construction sector boomon the back of the Christchurch earthquakes has morphed into a more widespread economic
upswing. This has created many new jobs, skill shortages are embedded in several occupations,and employers are supporting high levels of net migration. Unemployment has dropped below
five per cent and the focus has now shifted towards 300,000 jobless and how to overcome,what employers and commentators have called, a skill and attitudinal mismatch. This mismatchalready appeared before the last general election: “The usual inverse relationship, where rising
unemployment makes it easier for employers to find skilled labour, has broken down because
the skills of the unemployed no longer match the skills that employers need” (Collins, 2015: p.
A14).
As the economic upswing has continued and unemployment has fallen the skill mismatch andthe labour market’s ability to balance effectively workforce demand and supply has gained
notoriety. There is now an emphasis on how to accommodate higher economic activity levels
and, especially, dealing with social and structural issues. As detailed below, this image of an‘inefficient’ labour market has directed attention to systematic problems: slowly rising wage
levels – including the ‘living wage’ debate – skill shortages, the lop-sidedness of the Auckland
housing and labour markets, the embeddedness of youth and NEET (Not in Employment,
Education or Training) unemployment and several sectors’ reliance of short-term overseas
labour. There is also the perennial problem of low productivity growth. Regardless of who
forms the next government, these labour market problems are major obstacles to be tackled andare bound to highlight crucial public policy differences between the major parties.
The employment relations context has also witnessed considerable public policy changes andthere are now many differences between the two major parties (see Table 1 below). These
differences include several major election issues in this general election, such as immigration,
low paid work, employee participation in occupational health and safety, youth unemployment
and equality and pay equity (see below).

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Table 1. Employment Relations context: policy positions
National(Policies for Labour
Policy2017)
Social welfare benefits,
employment assistance andassistance for Youth (including
Youth NEET – Not in
Employment, Education andtraining)

Nothing on their website

Family assistance, child poverty

More funding for insulationof rental homes for low
income families
Families on benefits receive
an extra $25 per week in
2016
The Family Incomes
Package will increase the$14,000 income tax
threshold to $22,000, andthe $48,000 tax threshold to$52,000

Vocational education andtraining

Established three primaryindustry trades academies totrain more young people
with the skills they need tosucceed in the rural sector,
with 850 places available
each year, and increased
tuition subsidies for
agriculture-related tertiary
qualifications
Investing a record $10.8
billion a year into earlychildhood, primary, andsecondary school education.
Investing $359 million tokeep the best teachers inclassrooms and shareleadership and expertise
across schools.

Education & teachers

Immigration

Introduced a 3-year cap on
migrant workers for anyone
earning over $41,898 a year
or $20 per hour.

Boosting its dole forapprenticeship scheme byextending eligibility to all 18 to
24 years not earning or
learning
Give unemployed young peoplea job for six months doing workof public value, so they can gain
work experience and avoid
long-term unemployment.
Boost Working for Families in
addition to the 2017 Budget.
Introduce Best Start payment
to assist in a child’s earlyyears. Introduce a WinterEnergy Payment for people
receiving superannuation or amain benefit.
Reinstate the Independent
Earners Tax Credit

Labour’s Working Futures
Plan provides three years of
free post-school education overa person’s lifetime. It can beused for any training,

Invest an extra $4b over 4
years to deliver a modern
education system
Reinstate extra funding for
ECE centres who the majorityof the teachers are fully
registered.
Ensuring every student has apersonalised careerdevelopment plan
Introduce the KiwiBuild Visato help address the growing
shortages in skilled
tradespeople and facilitate
Labour’s KiwiBuild housing
programme.
97New Zealand Journal of Employment Relations, 42(2): 95-109
Research & development(R&D)

Taxation

Will invest $372.8 millionof new operating funding inthe second round of thegovernment’s Innovative
New Zealand programme
While possible future tax
cuts are still emphasised the2017 Budget increased tax
thresholds for low incomes,
Working for Families
benefits andaccommodation benefits.

Housing

Create special housing areas
across NZ. A $1b housing
infrastructure to accelerate
new housing. Setting up
Independent Urban
Development Authorities tospeed up housing.
Low and middle-income
couples can now apply forgovernment grants of up to$20,000 to put towards adeposit for their first home.

Transport$267 million investment forcommuter rail in Auckland
and Wellington.
$2.6 billion election
transport package for
Auckland would include a
new highway alongside theSouthern Motorway.

Regional Development

Regional Growthprogramme, working withlocal communities todevelop and implement
economic growth Action
Plans

Reintroduce R&D tax credits

Abolish secondary tax as it
denies many New Zealanders
access to wages they need tomake ends meet.
Will ensure a progressive
taxation system that is fair,balanced, and promotes thelong-term sustainability andproductivity of the economy.
Build more affordable houses.
Crack down on speculators.
Support those in need.

Build light rail from the CBD
to Auckland Airport. This will
be part of a new light rail
network that will be built overthe next decade with routes tothe central suburbs, the airport,
and West Auckland, and will
later be extended to the North
Shore.
Allow Auckland Council tocollect a regional fuel tax tofund these investments
New Zealand’s regions have achance to thrive, beginningwith the establishment of a
new Centre of Digital
Excellence to be based in
DunedinSources: Labour Party and National Party web sites.
Besides the changing economic and employment relations contexts, there appears to have beena shift in the National Party’s willingness to address employment relations issues. While the
National Party has kept a low profile in previous general elections, it is noticeable how little
the party has addressed employment relations issues in the run up to this general election 1.
1

After this article was finished, the National Party published its policy platform on employment
relations and health and safety. See: https://www.national.org.nz/workplace_relations_safety98New Zealand Journal of Employment Relations, 42(2): 95-109
Since the National Party decided to continue with the Employment Relations Act prior to the2008 election, it has normally suggested very specific changes to improve the ‘flexibility’ of
employment processes (see Rasmussen, 2010; Rasmussen, Fletcher, & Hannam, 2014).
Besides the rather low public profile of the suggested changes to the employment protection ofhigh wage earners (see below), there is, at the time of writing, nearly a total dearth of any
specific public policy initiatives in employment relations coming from the National Party.
Instead it appears, as argued below, that either the National Party is relying on very generalsuggestions or, in practice, it has implemented a reactive public policy approach to neutralise
any politically controversial employment relations topics.
The National Party’s website talks about a clear plan to make New Zealand stronger but its
four major goals are very general and their aspirational tone makes it difficult for many votersto disagree with them.
1)

2)

3)

4)

Responsibly managing the Government’s finances by maintaining operating surpluses,
reducing crown debit, tackling welfare dependency and delivering better results forfamilies and better values for taxpayers.
Building a more competitive and productive economy through their Business Growth
Agenda with six critical areas; export markets, infrastructure, capital markets,
innovation, skilled and safe workplaces and natural resources.
Delivering better public services with specific targets, lifting student achievement
across our education system, reducing crime, delivering a better, sooner and convenient
health care, ensure welfare is there for those who need it, while helping people backinto work.
Continuing to support the rebuilding of Christchurch.

These aspirational goals will probably prompt a detailed public policy discussion if the
National Party does not secure a firm majority. This will then open for more debate about, forexample, the appropriate size of operating surpluses or whether the focus on operation
surpluses is preventing an efficient tackling of ‘welfare dependency’. As discussed below, there
are also concerns whether the National-led government has done enough to secure “skilled andsafe workplaces” or has done enough to “helping people back into work” during this election
cycle.
Besides these aspirational goals, a reactive approach of the National-led government has
become more pronounced. This reactive approach has characterised the recent major public
policy changes in employment relations. As detailed below, there have been three significant
examples of such a reactive approach – the changes to occupational health and safety, theintervention against so-called ‘zero hours agreements’, and the approach to pay equity and low
wage labour in the age-care sector.
The Pike River disaster in 2010 was a driving force behind rethinking the approach tooccupational health and safety (OHS). The Pike River explosion, together with a dismal
accident record in other sectors, put the spotlight firmly on the ineffectiveness and chronic
underfunding of OHS regulation (Lamm, Rasmussen, & Anderson, 2013; Lamm, Moore,
Nagar, Rasmussen, & Sargeant, 2017). It prompted the resignation of Kate Wilkinson as the
Minister in charge, and the establishment of a Royal Commission into the Pike River disaster.
All the recommendations from the Commission appeared accepted by the National
Government when they presented the Health and Safety Reform Bill. In particular, a new
independent regulator for OHS would be separated from the Ministry of Business, Innovationand Employment.
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The new Health and Safety in Work Act 2015 constituted a major divergence from the National
Party’s low level of regulation preference. It has increased employer responsibilities andpotential penalties and this has propelled OHS to become a major executive responsibility.
However, it has also attracted a fair amount of criticism for not going far enough (see Sissons,2016; Pashorina-Nichols, 2016; Tipples, 2015). A major issue is how effective the ‘worker
engagement’ would be (even though the Act reduced the threshold to 20 employees or more)
and another issue is the lack of focus on dangerous sectors. If a small employer is not listed on
the so-called ‘high risk’ list then they are exempt from the legislative duty of having OHS
representatives. In particular, the many small employers in agriculture is not on the ‘high risk
list’, although many fatalities have occurred in the agriculture sector (Tipples, 2015). It is also
problematic that there is no requirement to provide training for OHS committee representatives.
The changes surrounding the so-called ‘zero hours agreements’ was another demonstration that
the National Government is reacting to public opinion. The Unite Union and the Labour Party
ran a high profile campaign to eliminate these types of agreements during 2014-2015. In late2014, the Labour MP for Palmerston North, Iain Lees-Galloway, announced the tabling of a
private members bill to make ‘zero hour agreements’ unlawful. Media reports suggested that
the Government were slow in reacting to this practice but the Minister of Workplace Relations,
Michael Woodhouse, defended the government position by saying: “the government had to
examine the issue carefully before making any decisions” (Radio New Zealand, 2015). In
September 2015, the Government tabled the Employment Standards Bill, which sought,
amongst other changes, to prohibit ‘zero hours agreements’ though it did not stipulate any
minimum guaranteed hours of work. However, when the Bill was finally enacted in April 2016,
employees were to be given guaranteed hours and stronger enforcement efforts were also
included (see Table 2).
Finally, the National-led government decided to revive a tripartite approach to employment
relations as it reacted to the likelihood of a string of pay equity court cases following a Courtof Appeal decision in December 2014. The Court of Appeal decided in the so-called Terranova
case to uphold the Employment Court decision that favoured the pay equity claim of Kristine
Bartlett and the Service and Food Workers Union. Besides opening for other pay equity cases,
it also put the spotlight firmly on low pay issues in the aged-care sector; a sector where many
employers were reliant on government contracts and subsidies. In October 2015, a Joint
Working Group on Pay Equity was tasked with recommending principles for dealing with pay
equity claims under the Equal Pay Act. The Joint Working Group included employers, unions
and government representatives who presented a set of recommendations in May 2016. The
recommendations included:

A set of principles to provide guidance to employers and employees in implementing
pay equity, including criteria for considering whether a claim has merit as a pay equity
claim and high-level guidance on how pay equity rates are established.
A process for employers and employees to follow to address pay equity, which sets out
a bargaining process based on the Employment Relations Act framework.

In April 2017, the National Government announced a $2 billion pay equity settlement for
55,000 health care workers in the aged-care sector, effective from 1 July 2017. In
announcing the deal, the Minister of Health, Jonathan Coleman, thanked the unions and theindustry sector for their constructive and positive approach throughout the negotiations
over the last 12 months (Coleman, 2017). Interestingly, several representatives of
employers’ associations, who have previously opposed union claims for pay equity,
applauded the settlement and its recognition of the contributions of low paid workers.
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Likewise, many major aged-care sector employers highlighted the positive staff
implications of increased government funding in terms of recruitment, turnover and staff
morale.
As a result, the National-led government tabled the Employment (Pay Equity and Equal
Pay) Bill in July 2017. While the Bill was heralded a major step forward for low paid
workers, it has also been criticised by several unions and the Labour Party. According to
CTU Vice-President Rachel Mackintosh: “It seems that, at the very least, it would havebeen much more difficult for Kristine Bartlett and the 55,000 other care workers to haveachieved their recently won equal pay settlement had this Bill been the law” (NZCTU,
2017).
The big question is whether this settlement will have flow-on effects. Is it likely to see
claims from other employee groups, particular public sector groups, such as nurses, mental
health workers and teacher aides? Business New Zealand’s Chief Executive, Kirk Hope(2017), has suggested that this settlement could affect businesses in two ways:First, it could affect the normal process of wage bargaining, making it more
complicated because of the requirement to bargain over job comparisons, and thus
lead to more regulation and compliance for businesses.
Second, pay increases in the public sector gained through pay equity bargaining
could have a knock-on effect on wages in the private sector more generally andthereby fuel wage inflation in related sectors.

Interestingly, Hope also said: “as a result of this court decision and ensuing legislation we willcertainly have a changed industrial relations environment” (Hope 2017).
Finally, one of the few new National Party public policy initiatives has been an interesting new
employment relations Bill on employment-at-will for high wage earners in March 2017 (Jones,
2017). Initially, the Private Members Bill was under the name of Paul Goldsmith (now a
Minister for Science and Innovation and Tertiary Education, Skills and Employment) andsubsequently promoted by Coromandel MP Scott Simpson (2017) (recently appointed to
Minister of Statistics and Associate Minister of Immigration and for the Environment). The
Private Members Bill – Freedom of Contract for Higher Earners Amendment Bill – has been
through the first reading stage. Whether the Bill will reappear after the election is unclear; it
has been opposed by the Labour Party, the Green Party and New Zealand First.

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Table 2: Major employment relations policy changes 2008-2017
Legislation
Legislative purpose and details
ER Amendment Act 2008
ER Amendment Act 2010

Holidays Amendment Act 2010

ER (Film Production Work) Amendment Act
2010
ER (Secret Ballots for Strikes) Amendment Act
2012
ER Amendment Bill 2013 (implemented after
the 2014 General Election)

Minimum Wage (Starting-out Wage)
Amendment Act 2013

Health and Safety legislation

ER Amendment Act 2016 (Employment
Standards)

Introduce 90-day probation/trial period for small
businesses (one-19 employees)
Extend 90-day trial period to all organisations,
reduced union access rights, reinstatement is nolonger primary remedy in dismissal cases,change dismissal test from what a reasonable
employer ‘would’ instead of ‘could’ have done
Employers can require proof of sickness fromthe first day, allow employees to trade for cash
their fourth week of annual leave‘Hobbit’ legislation prescribes ‘contracting’ forfilm production workers
Before taking strike action, unions need to
conduct secret ballots of members
Changes good faith duty to conclude collective
bargaining, allow opting out of multi-employer
agreement bargaining, meal and refreshment
breaks can be removed, allow pay reduction forpartial strikes, changes transfer regulation (Part6A), strike notice requirements changed
Reduce starting-out wages for 16-19 years
employees to 80 per cent of adult statutory
minimum wage (applies only to 18-19 years
olds if they have been on benefit prior tostarting job)
The Health and Safety Reform Bill in March2014 extends the duty of care to all persons incontrol of a business or undertaking, worker
participation is strengthened. New enforcement
agency Worksafe NZ.
The Accident Compensation Act underwent two
amendments in 2008 and 2010. The
amendments were primarily concerned with
reducing the number of claims and associatedcosts.
Increased Parental Leave to 18 weeks. ‘Zerohours’ abolished by preventing employers
altering shifts at short notice and guaranteeing
minimum number of hours. Increasing
recording obligations (wage and hours) for
employers and more regulatory powers ofLabour Inspectors.

Source: Rasmussen et al., 2014: 24 and government websites.

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Current public policy position and election promises
At the time of writing (with one month to Election Day), The National Party has yet to publish
a detailed employment relations policy platform. As mentioned, there is not anything unusualin this approach since the National Party has downplayed its employment relations changes in
the last three general elections (see Rasmussen, 2010; Rasmussen et al., 2014). It also fits with
the intention of the National Party to ‘run on its record’, emphasising a growing economy withmany job opportunities, low unemployment and interventions in low paid sectors. After nearlya decade in power, the National Party has a well-established approach to employment relations
as can be seen from the many changes in Table 2.
However, as discussed in the previous section, the low profile of employment relations policies
can arguably be said to hide some differences compared to previous general elections.
Although employment relations changes were downplayed in previous general elections there
were significant changes proposed and subsequently implemented by the National Party. This
does not appear to be the case in this general election and, importantly, recent public policychanges appear to have been more reactive – mediating public concerns – and less in line withthe party’s mantra of ‘flexible labour markets’ and reducing restrictive legislation.
While the National Party appears reactive and devoid of new major policy reforms, this cannot
be said of the Labour Party that has announced a number of new policies over the last months,
including public policy changes influencing the wider employment relations context (see Table1). The key policy positions can be found in Table 3 though we will focus our detailed policy
discussion on three areas: supporting collective bargaining, supporting employment relations
fairness (including a lift in the income of low paid workers), and extending information andparticipation rights in occupational health and safety.
The Labour Party seeks to support collective bargaining in several ways. Bargaining rights will
be extended to all workers, including dependent contracts. Fair Pay Agreements (FPAs) arepromoted as industry-based agreements that will cover all workers in a particular industry.
While the actual implementation of the FPAs would be developed subsequently by a Labourled Government the recent tripartite aged-care settlement was heralded a possible scenario.
Thus, it is unclear when negotiations can start – whether negotiations could only start if acertain number/percentage of employees already covered, whether it would involve employers
or employer associations, whether it would involve a particular range of conditions or whether
the content of FPAs would be negotiable, and whether the government could implement FPAs
which had not been settled in employer-union negotiations.
The ‘90-day trial period’ has been controversial in previous general elections (see Rasmussen
2010; Rasmussen et al., 2014). The trial periods were promoted as having a positive
employment impact by making hiring less risky for employers. This claim was disputed in a2016 report commissioned by the Treasury (2016) that found “no evidence that the ability to
use trial periods significantly increases firms’ overall hiring; or assisted in firms hiring
disadvantaged job seekers” (Chappell & Sin, 2016). The report concluded the main benefit was“a decrease in dismissal costs for firms”. While the Government has been firm in its support ofthe ‘90-day trial period’, the Labour Party has moved from its outright opposition in previous
elections. The Labour Party position is now that ‘90-day trial period’ will no longer beabolished; instead it will be subject to prescriptive employer performance feedback and any
worker who is dismissed will have access to a free mediation service to test whether they havebeen unjustifiably dismissed.
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New Zealand Journal of Employment Relations, 42(2): 95-109
While there will be further workplace information and participation rights in respect ofoccupational health and safety under a Labour-led government, it has not been announced
whether such a government will pursue other information and participation rights throughmechanisms such as workplace councils or employee directors.
Table 3. Employment relations policy positions, August 2017
National Party
Labour Party
Policies
Collective bargaining

Collective bargaining is notdiscussed on their website

90 Day-Trial Periods

Continue 90 trial period

Enforcement of legislation

Increased powers forLabour Inspectors.
Continue ‘responsible’ rises
in statutory minimum wage.

Statutory Minimum Wage

Occupational Health & Safety

EquityIn the 2017 Budget, $36.3m
extra funding for Worksafe
was allocated over the next
four years
Rest home workers receive
increases as stipulated by
Joint Working Group on
Pay Equity.
Extended Parental Leave to
18 Weeks

Living Wage

Dismissal

No change

Best practiceIntroduce Fair Pay Agreementsthat are industry based.
Restore and improvebargaining rights for all
workers. Extend bargaining
rights to dependent
contractors.
Retain trial periods but remove
the fire-at-will provision withreferee system that is fair andsimple.
Double the number of Labour
Inspectors from 55 to 110.
Increase minimum wage to$16.50. Work toward aminimum wage of two thirds ofaverage wage. Abolish youth
rates.
Extending worker
representation to all
workplaces regardless of size
or industry
26 weeks paid parental leave.
Ensure NZ employment laws
extend to everyone working in
NZ.
Restore protections forvulnerable workers in cases ofsale or transfer of business or
proposed outsourcing.
Ensure all workers in the corepublic service are paid at least
the Living Wage.
Restore reinstatement as
primary remedy
Implement HPES byencouraging employer/unionparticipation and engagement.
Expand and enhance skill andindustry training

Source: Labour Party and National Party web sites.

104New Zealand Journal of Employment Relations, 42(2): 95-109

The labour market is not working?
Several of the recent public policy issues mentioned above – zero hours agreements, the ‘living
wage’ campaign, high net migration levels, widespread skill shortages, persistent high youth
unemployment – have often been portrayed as being part of a dysfunctional labour market. It
has become a frequent media theme that the current New Zealand labour market is behaving
in a rather unusual fashion.
New Zealand’s economy has thrown up an apparently bizarre mix of very strong jobs
growth with virtually no fall in the various unemployment rates and fall in wage
inflation. It seems to make no sense. How can an economy be growing strongly at 3.5
per cent plus and not be heating up wage inflation or lowering unemployment? The
simple answer is that almost all that jobs growth over the past two years was soaked up
by net migration of 131,188 and an increase of 28,200 in the number of people over theage of 65 who are working (Hickey, 2016: 28).
The current labour market is clearly influenced by a very high economic activity level, withthe creation of over 200,000 new jobs in this election cycle. There has also been a significant
rise in employment participation with the current 76.1 per cent of the workforce in paid
employment being over eight per cent higher than when the Global Financial Crisis struck in
2008-2009. As discussed below, immigration is bound to one of the major policy issues in thisgeneral election. The dependency on high levels of net migration, (including short-term visa
holders), is seen as a major indication of the labour market’s inability to deal with the current
level of economic activity. With skill shortages being manifest in several sectors, this has also
highlighted the importance of having a more active labour market policy and considerable
stronger investment in vocational education and training (Trevett, 2016). It has also raised theissue of wage increases which have been rather low during the current upswing (Dann, 2017a& 2017b). Besides pointing to the negative impact on wages of high levels of net migration,
the low wage rises have been seen as another indicator of a dysfunctional labour market.
The ‘future of work’ concept has caught the imagination of many commentators and the Labour
Party’s Future of Work Commission had a long-running investigation that produced a majorreport (Future of Work Commission, 2016). A core idea is that the ‘future of work’ will produce
a more fluent labour market with many non-standard/atypical employment situations and withfluent employment patterns becoming the norm for many workers (being an employee may
become less prevalent). This has prompted calls for changes to the tax system, having more
flexible welfare provisions (Fletcher, 2015) and allowing more intermittent and individualised
participation in education and vocational training (see Table 1). While there has clearly been amove towards a ‘post-industrial’ labour market, where service jobs dominate new jobs creation,
it is unclear (to us) how well this covers recent employment changes in New Zealand. It appears
there has been a very strong growth in workforce participation rates and in full-time
employment during the current economic upswing. “The New Zealand economy created
181,000 additional jobs over the past two years, with 93 per cent of these being full-time
employment and the remaining 7 per cent part-time” (Gaynor, 2017: C4). This is very different
from many other OECD countries where, for example, a recent UK labour market analysis
found that most new jobs were in part-time work or self-employment (Sentence, 2017).
A particular issue is the low productivity growth – real GDP per hour worked – associated withthe current economic upswing (Fallow, 2017). Productivity growth has been a long-term
problem and it has become a well-established fact that New Zealand has experienced a relative,
long-term decline since the 1960s. This has prompted many different ‘recipes’ or interventions
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and employment relations changes have often been highlighted as a core part of any solutions
to the productivity ‘problem’ (Haworth, 2010). As a result, the National-led government
established the New Zealand Productivity Commission in April 2011 in order to provide
analyses and advice on ways to improve productivity growth.
While the Productivity Commission seems vetted to a market-orientated approach – making
markets, sectors, industries and occupations more efficient – it appears that this is going against
the grain of the current public policy debates. This is highlighted by the reluctance of the
National-led government to implement many of the suggestions in various Productivity
Commission reports. The Productivity Commission’s inability to influence the productivity
debate can also be associated with this article’s discussion of concerns about a dysfunctional
labour market. Recent regulatory employment relations interventions and the opposition
parties’ suggestions of new regulatory interventions indicate a broader acceptance that newinterventions are necessary in combating skill shortages, youth unemployment, and low paid
work. This is a long way from the 1980s public policy beliefs of ‘trickle down’ effects of market
liberalisation. Still, it is also unclear whether this amounts to a fundamental change in public
policy, as suggested in media reports: “After decades moving away from Government
intervention, times have changed. National and Labour have different approaches but theirpolicies suggest a grudging consensus the market is failing for many people and exacerbating
inequality” (Dann, 2017c: 17).

The BIG policy issues in this election campaign
Immigration is clearly going to be a major issue in this election. This is mainly associated witha fundamental shift in the level of net migration during this electoral cycle. Prior to 2013, it
was common for net migration to oscillate in a band between plus and minus 20,000 net
migrants. In the last couple of years, net migration has been two to three times this level. While
the Labour Party has clearly stipulated that they want to reduce annual immigration bysomething like 30,000 it is probably more interesting to look at the position of New ZealandFirst (the likely ‘kingmaker’ after this election) and the changing policy position of the National
Party. New Zealand First has called on their website for a “strictly applied immigration policy”
that does not “undermine New Zealanders’ pay and conditions”. Thus, New Zealand First isaligned with the Labour Party and the Green Party on the immigration issue.
The National-led government has overseen a major influx of migrants in this election cycle
and, reacted to public concerns about the high net migration level by announcing several
interventions to curb low skilled and short-term immigration in April 2017. In particular, thegovernment introduced a three year cap on immigrant workers unless they were paid more than
$48,839 a year or $23.50 per hour. However, the Government is currently ‘fine-tuning’ thispolicy position following major pressure from business and industry groups as well as
individual employers and employees. In July, it was announced that the threshold would be
reduced to $41,859 or $20.00 per hour. While the government would like to neutralise theimmigration issue this would impact on business interests. As succinctly put by commentator
Brian Gaynor (2017: C4):
Most New Zealand business owners and managers, particularly those in the building,information technology, hospitality and horticulture sectors support the current
immigration policies. This is because they face serious labour market shortages that can
only be resolved by attracting foreign workers.
106New Zealand Journal of Employment Relations, 42(2): 95-109
Thus, immigration will be a current and future public policy focus and the debate has also
highlighted major issues surrounding vocational training and education and youth
unemployment.
The Auckland housing and labour markets have become the stuff of media and folklore
speculations, and there is no doubt that there are shortages and supply issues in public services,such as nursing and teaching. The so-called Auckland exodus of skilled labour has beenhighlighted in several articles but it is often disputed or downplayed by various government
spokespeople (for example, see Persico, 2017: A4). Likewise, calls for an ‘Auckland
allowance’ has also been stymied by ministers and government spokespeople (Editorial, 2015).
While the two major parties are taking a different approach – the National Party is keen to
downplay the labour market issues and the Labour Party is highlighting the labour market
issues – this is something that will influence the national debate beyond this general election.
Wage levels have become a continuous media story and there seems to be at least four recurrent
focal points or policy concerns: how to deal with low paid labour – including the statutory
minimum wage and the ‘living wage’ – sectoral recruitment and retention problems (with theconstruction sector hocking the headlines), the tripartite agreement on low wages and pay
equity has set a new precedence, and the ‘exodus’ from the Auckland labour market. As
discussed above, the underlying theme of these media reports is a call for more government
intervention. The tripartite agreement in the aged-care sector shows that government
intervention can be a circuit breaker and deliver significant wage rises. The Labour Party’s
support of the ‘living wage’ as well as its plan for sectoral collective bargaining indicate how
this party will address some of the wage issues. However, the entrenched wage issues willprobably need wider, more complex public policy changes as indicated by the persistentdebates about immigration, the Auckland housing and labour markets, skill shortages and youth
unemployment.

Conclusion
In a very unusual election campaign, there are many and stark policy differences between thetwo major political parties. The National Party has implemented many changes to the
Employment Relations Act that seemed to undermine the Act’s emphasis on collectivism,
power balance and mutual employer-employee trust. The National Party’s emphasis on
legislative changes to enhance labour market flexibility appears to have ended and instead there
has been several reactive interventions to overcome major employment relations issues. These
reactive interventions have had major impacts since the 2014 general election.
The election campaign has highlighted that there are many embedded employment relations
problems. The concerns about income inequality, low productivity growth and a reliance on
immigrant labour will probably last much longer than the current electoral cycle. These
concerns are associated with systematic imbalances in the labour market and it appears thatenhanced government interventions have become part of the two major parties’ public policy
positions.
There are many general statements on the political parties’ websites and their policy
announcements are also very elastic, and often relies on future announcements. Furthermore,at the time of writing, it is unlikely that the major parties will be able to govern without the
support of New Zealand First. This opens for negotiations and ‘horse trading’ following thegeneral election. Thus, the spectacular political volatility could continue for a while, thus
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New Zealand Journal of Employment Relations, 42(2): 95-109
making it unclear whether the significant public policy differences in employment relations
will be part of major public policy changes.

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New Zealand’s minor parties and ER policy after 2017
PETER SKILING* and JULIENNE MOLINEAUX**
Abstract
Since New Zealand adopted a proportional representation electoral system in 1996, neither ofthe major parties have been able to form a government without the support of one or more of
the minor parties. As such, understanding the likely trajectory of employment relations (ER)policy after this year’s election requires an understanding of the policy positions, the politicalpriorities, and the potential power of the minor parties. In this article, we provide an overview
of the positions of six minor parties contesting this year’s election who have a realistic chanceof achieving seats in parliament. September 23 is shaping up to be the most interesting andunpredictable election night for many years. Leading the polls since 2006, and comfortably
ahead of Labour just two months out from the election, many expected the National Party to
be the largest party after the 2017 election. The question, at that stage, was whether National
could form a government with their existing minor party partners, or whether they would needto rely on New Zealand First to gain a majority. Instead, Labour has been resurgent following
a change of leader on August 1, just seven weeks from election day. Labour’s resurgence has
closed the gap with National – some polls putting Labour ahead – and led to a corresponding
drop in poll ratings for the two largest minor parties, the Greens and New Zealand First. We
explore the opportunities and challenges that this uncertain and dynamic environment generates
for the minor parties.

Introduction
In our earlier review of minor parties’ employment relations positions (Skilling & Molineaux,2011; Molineaux & Skilling, 2014), we noted that predictions of policy change tend
(understandably) to focus on the positions of the major parties. In practice, however, the Mixed
Member Proportional (MMP) electoral system constrains major parties to work together witha range of partners, and legislation is not crafted at the sole discretion of the largest party, evenwhen one party holds a substantial lead over all others. In 2017, it remains the case that noparty has been able to govern alone since New Zealand began using a proportional
representation electoral system in 1996. This article, then, proceeds from the contention that aproper analysis of the prospects for ER policy after this year’s election needs to take seriously
the policy positions, power and priorities of the minor parties. Taking minor parties seriously,of course, does not imply that any particular minor party holds unlimited influence. Governing
parties have proved adept at crafting flexible arrangements with multiple partners to advancedifferent parts of their agenda. Further, smaller parties – sensitive to the accusation that they
are the tail wagging the dog – have tended to use their influence sparingly, focusing on theirareas of priority (Skilling & Molineaux, 2011).

*

Department of Management, Auckland University of Technology
Policy Observatory, Auckland University of Technology

**

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The 2017 election (scheduled for September 23) may well prove a particularly interesting one
for the minor parties. After dominating the polls for over a decade, the incumbent National
Party has been falling in the polls since the start of the year, has lost one of its support partners(United Future’s Peter Dunne), and could not form a government with its remaining support
partners ACT and the Māori Party.1 On the other side of the aisle, Labour’s dismal ratings
through July led to a change of leader on the August 1, with Jacinda Ardern replacing Andrew
Little. The change had an immediate effect, as Labour’s popularity increased from 24 per centto just over 40 per cent. While much of this increase appeared to come at the expense of theGreen Party, whose support fell from 13.4 per cent to around five per cent, the gap between
National and the Labour-Green bloc reversed, with the Labour-Green bloc ahead in early
September (James, 2017a). But the Māori Party and (more especially) the Greens are in aprecarious position: polling around the five per cent threshold, the Greens have historically
fared worse on election night than their pre-election polling numbers and run the risk of not
returning to parliament. New Zealand First’s poll support has also dropped since Ardern
became Labour leader but, along with the Māori Party – should they return to Parliament –New Zealand First are still in a potential king-maker role for after the election. While nothingis certain in politics, it appears almost certain that some of New Zealand’s minor parties willplay an important policy-making role after this year’s election, just as they have since 1996.
In this article, we analyse the ER positions of those minor parties contesting this year’s electionthat have a realistic chance of gaining representation in parliament. We conduct this exploration
by analysing their ER-relevant public statements and (where possible) their voting records
during the last parliamentary term. Beyond summarising policy positions, we discuss therelative power that each party might yield after the election, we assess the extent to which ER
policy is likely to be a high priority for them, and we note – where appropriate – any issues of
personality or history that might be relevant as they attempt to exercise influence over thepolicy-making process.

Political Context
The 2017 election takes place in the shadow of surprising results in elections in other Englishspeaking democracies. Donald Trump’s populist nationalism, built around promises to put
America first, won the 2016 presidential election in the United States, against the predictionsof most pundits. Earlier in that election cycle, Bernie Sanders, self-identifying as a democraticsocialist, performed much better than expected in the Democratic primary race eventually won
by Hilary Clinton. In the United Kingdom, the historic Brexit vote in 2016 was followed by asnap election in June 2017 intended to strengthen the majority and the mandate of Theresa
May’s Conservative Party. As events transpired, however, the Conservatives lost both theirsubstantial lead in the polls and their outright majority in the House of Commons. While thispoor result can be attributed in part to May’s own performance, it was also a result of a surge
in support for Labour leader Jeremy Corbyn, who many (including many within his own party)
had believed unelectable for his socialist commitments.
There is no necessary reason to expect major upheavals of this sort in New Zealand in 2017.
Many of the underlying performance measures of the New Zealand economy (such as
unemployment and job growth) appear positive (Statistics New Zealand, 2017). Opinion polls
1

We discuss the fate of 2008-2017 support partner United Future later in the article.

111New Zealand Journal of Employment Relations, 42(2): 110-128

from mid-August (see James, 2017b; c) suggest that more New Zealanders believe the country
to be ‘on the right track’ (59 per cent) than believe it to be on the ‘wrong track’ (33 per cent).
Significantly, however, this 59-33 result represents a less positive outlook than in December
2016 (65-24). In terms of galvanising political figures, while the country has no obvious
analogue on a policy level for Trump, Sanders or Corbyn, Labour’s remarkable resurgence inthe polls is clearly associated with the ‘Jacinda effect’ (James, 2017b). Further, New Zealand’s
proportional representation MMP electoral system provides a ready mechanism through which
voters can express dissatisfaction with the status quo. A combination of New Zealand’s
electoral system, extreme volatility in recent polls, and overseas examples of surprising“change elections”, may offer minor parties a degree of optimism.
The 2017 election sees National attempting to secure a fourth term that would be unprecedented
in the MMP-era. They are contesting the election, however, without former leader John Key,
who is considered by many to have been the party’s most potent electoral weapon, but who
resigned unexpectedly in late 2016. National’s remarkable (and remarkably consistent)
popularity since gaining office in 2008 has rested, in, part on its ability to position itself as
moderate and centrist. Indeed, some have argued that National’s (and Key’s) consistently highpopularity was achieved by the simple expedient of refusing to do anything potentiallyunpopular (No Right Turn, 2016; Godfrey, 2017): that is to say, National’s policy agenda may
have been shaped more by a keen sense of what is politically acceptable in key constituencies
than by any rigorous vision of what is right or necessary. In a 2015 speech, Bill English (thenFinance Minister, now leader) indicated that National has, since 2008, deliberately adopted amoderate approach (which he dubs “incremental radicalism”) in response to lessons learnt fromthe “crash or crash through” approach of the 1990-1999 National Government, which “failed
to build broader constituencies for [extensive and sometimes unexpected] changes”. The
party’s preferred modus operandi since 2008 has been to build “popular support for ourchanges so they will stick” (English, 2015).
In the field of ER regulation, National has, thus, not overseen rapid or radical regulatory reform.
At the policy level, there has been no full-blown return to the Employment Contracts Act era.
Indeed, National has introduced certain provisions (extensions to paid parental leave, continued
increases to the statutory minimum wage) that have favoured (some) workers. Opinions differ,
however, as to whether National’s ER record can accurately be portrayed as centrist andmoderate, or whether they have simply sought to construct a centrist-moderate image to deflectattention and criticism away from a continued, gradual erosion of workers’ rights and union
power. On this latter view, National’s self-presentation as moderate and incrementalist is
nothing more than a cynical attempt to obscure the significant changes they have overseen.
Certainly, both interpretations could be given to English’s words above. It is beyond the scopeof this paper to engage in this debate, let alone to adjudicate between the two positions; thesalient point here is that all parties contesting this year’s election need to contend with the factof National’s high approval rating, and with the perception that National has remainedmoderate and centrist.

The minor party landscapeThe 51st Parliament, elected in September 2014, has had 121 seats – 120 plus a one seat
overhang as a result of Peter Dunne winning the Ōhāriu electorate but not being entitled to anyseats under the party vote. National was, by some distance, the largest party after the 2014112

New Zealand Journal of Employment Relations, 42(2): 110-128

election. Its party vote of 47 per cent translated into 60 seats in the 121-seat parliament(Electoral Commission, 2014). With 61 votes required to pass legislation, National’s support
deals with ACT (1 MP), the Māori Party (2 MPs) and United Future (1 MP) provided several
possible combinations of votes to pass legislation (see Harman, 2017, for an example of howthat flexibility has been used.) This was similar to its governing arrangements in the 2008-2014
period, although the number of ACT and Māori Party MPs has decreased throughout this period(Electoral Commission, 2008; 2011; 2014; Skilling & Molineaux, 2011). In 2015, however,
the resignation of National MP, Mike Sabin, led to a by-election in the safe National seat ofNorthland. This by-election was won by New Zealand First leader, Winston Peters, changing
the make-up of parliament. National was left with only 59 seats, and needing either the Māori
Party or both ACT and United Future to pass legislation.
Two parties discussed in our 2014 survey, the Conservative Party and the Internet/MANA
grouping, failed to win seats in 2014. One new party (The Opportunities Party) has been added
to our survey this year. As expected, the Conservative Party did not win an electorate in 2014
and, despite being well-funded, it gained only 3.97 per cent of the party vote, below the five
per cent threshold for representation in parliament. The Internet/MANA umbrella party, also
well-funded, fared worse on 1.42 per cent of the party vote. With Mana leader, Hone Harawira,failing to retain the Te Tai Tokerau seat – lost to Labour’s Kelvin Davis – neither party (Internetor Mana) made it to Parliament. Since 2014, both the Conservative Party and the Internet Party
have struggled to attract public attention or poll ratings. In the expectation that they will not be
influential during or after the election campaign, they are not covered in this survey.
Also not covered in this survey is the United Future party, following the abrupt resignationfrom parliament in late August of its leader and sole MP Peter Dunne. For a short period oftime United Future was a significant minor party – winning eight seats in 2002 off the back ofa collapsed vote for National – but by 2008 it reverted to its historic norm of one seat. At eachof the previous three elections, United Future has received less than one per cent of the party
vote; in 2014, its share was 0.22 per cent. Dunne was, therefore, an overhang MP, creating an
extra seat in Parliament and a reliable vote for National’s ER programme. Following pollingthat indicated he was likely to lose his Ōhāriu seat to Labour’s Greg O’Connor (Radio New
Zealand, 2017a), Dunne announced his retirement on August 21.
Disruption to the balance of power may come from the seven Māori electorates, where the
Māori and Mana parties have formed an alliance to take on Labour. While the party vote isusually the most important vote in that it determines the overall balance of seats in parliament,
for small parties that hold electorates, the outcomes in their electorate seats are vital to theirsurvival. The Mana Party is running under its own branding, free from the Internet Party, with
Hone Harawira once again contesting the Te Tai Tokerau electorate. He has formed an electoral
accommodation with the Māori Party, who will not contest the seat. In turn, Mana will notstand candidates in the other Māori electorates (Fisher, 2017). With one exception, Labour’scandidates for the Māori seats, meanwhile, will not be standing on the party list – they have to
win electorates to get back into parliament.2 This raises the stakes for voters on the Māori roll:
you will either get a Labour MP or a Mana/Māori MP, not both. Previously, it was possible to2

The exception to this rule is the late inclusion of Kelvin Davis at number two on the list after he was named
Deputy Leader on 1 August 2017. We consider the implications of this move for Hone Harawira and the Mana
Party later.

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gain a Mana or Māori Party MP for the electorate, while the Labour candidate for the same
electorate was returned via the party list.

ER policy change since 2014
Before turning to each of the minor parties in turn, we present a schematic overview of theirbasic orientations towards ER policy. Table 1 shows the position of each party on the major
pieces of ER legislation introduced since 2014. In some cases, there are nuances that the table
glosses over. Some pieces of legislation were omnibus bills, and many parties supported some
aspects of the bill while opposing others.
Table One: Summary of ER Positions of the Minor Parties
ER policy closest

Current

ERA

Health and Safety at

Employment Standards

to which major

Number ofAmendment Act

Work Act 2015

Legislation Act 2016

party*MPs

2014

National

1

SupportSupportSupportLabour14

OpposeOpposeOpposeMaori

Labour2

OpposeSupport

OpposeNZ First

Labour12

OpposeOpposeOpposeUnitedNational

1

SupportSupportSupportLabour

-OpposeOpposeOpposeunclear

-

ACT
Party
Green
Party

FutureMana
Party**TOP* See also additional comments and caveats in the text.
** The Mana Party did not exist in parliament at the time of these bills. Its position is presumed on thebasis its voting record and public statements.

National was unable to garner enough votes to pass the 2014 Employment Relations
Amendment Bill into law before the 2014 election, due to Māori Party opposition and theforced resignation of ACT leader, John Banks, just prior to the election (see Molineaux &Skilling, 2014). The centre-right majority, re-established at the 2014 election, passed the Bill,
which was opposed by all parties except for National, ACT and United Future. It contained aseries of measures designed to enhance employer flexibility. Among other provisions, the Bill
removed the good-faith duty to conclude collective bargaining, allowed employers to opt outof multi-employer agreement bargaining, and changed the requirements around meal andrefreshment breaks, strike notices, and pay reduction for partial strikes. While Nationalpresented the Bill as offering “a flexible and fair employment relations framework”, theresponse of the various parties, and the language of Government Minister Sam Lotu-I’iga (“thisbill is about ensuring employers have the confidence to compete and expand” … [the] billincreases choice and flexibility … reduces ineffective bargaining, and … prevent[s]114New Zealand Journal of Employment Relations, 42(2): 110-128

unnecessary and protracted collective bargaining”) indicate that it was weighted towards theinterests of employers (Lotu-I’iga as cited in NZPD, 2014).
The 2015 Health and Safety at Work Act (HSWA) was the government’s response to thewidespread acceptance that New Zealand’s workplace safety regime needed significant
strengthening in the wake of the deadly explosion at the Pike River coal mine. The Pike Riverdisaster led to its own Royal Commission, and the Health and Safety at Work Bill was also
informed by the recommendations of the Independent Task Force on Workplace Health and
Safety that reported in 2013. Beginning with cross-party and widespread industry support, theBill ended up heavily opposed by Labour, the Greens, and New Zealand First, who criticised
it for weakening safety provisions (Sissons, 2016). Major points of contention included therestricted provisions for worker participation, and controversial definitions of high-risk andlow-risk industries. Critics held that the original focus on worker safety had been replaced by
National MP’s desire to placate certain industries (ibid.). The HSWB was an omnibus Bill,
resulting in dozens of votes on various clauses and SOPs. While Labour and the Greens voted
against the government on almost all occasions, the opposition of New Zealand First and the
Māori Party, while substantial, was not as total, and all parties voted with the government onsome occasions (see NZPD, 2015).
The Employment Standards Legislation Bill (ESLB) was another omnibus bill that introduceda range of changes that included extension to paid parental leave (PPL), and clarification
around the requirements surrounding so-called “zero-hour contracts.” There was generalenthusiasm around provisions for an increase in PPL to 18 weeks in Part One of the Bill: New
Zealand First’s Clayon Mitchell noted “the solidarity that I thought that all parties had withregard to … paid parental leave”; Denise Roche described this as “a step in the right direction”
towards the Green’s policy of 18 months PPL (see NZPD, 2016a). There was far lessagreement, as we shall see, on Part Two’s response to the practice of zero hour contracts:
National presented the Bill as one that “eiminates zero-hour contracts”; Labour and the Greens
held, on the other hand, that the Bill actually ‘entrenches’ such contracts in law (Lees-Galloway
as cited in NZPD, 2016a).

The ACT Party
ACT’s policy positions (including its position on ER) are informed by its classical liberal
position, expressed in a commitment to ‘personal responsibility’ (ACT, n.d.a) and to “removing
petty regulation, reducing tax burdens, fostering entrepreneurship and a culture of aspiration”(ibid.) The party posits a “trickle-down” economics, where “less tax leads to a more productive
economy with high growth and low unemployment” (ACT, n.d.b). Support for “more jobs andhigher incomes” (ACT, n.d.a) is secured in this vision not through regulation and governmentdiktat but through “more efficient government spending with lower flatter taxes and no newtaxes” (ACT, n.d.b). On almost every occasion since 2008, ACT has voted in support ofNational’s ER agenda. It has, at times, expressed frustration that National has not moved further
and faster towards a deregulated labour market: witness ACT’s argument that “National andLabour’s overly cautious economic tinkering has delivered very modest economic
performance. National, in particular, campaigns from the right just as surely as it governs fromthe left” (ACT, n.d.b). Acknowledging its limited influence, the Party has consistently voted
in support of what it sees as National’s tentative moves in the right direction.
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In terms of policy priorities, ACT’s influence and resources are limited by having only one
MP, and it has needed to make strategic decisions on where to devote its energy and attention.
Since 2014, ACT has focused on partnership (or ‘charter’) schools and ‘regulatory reform’,with Seymour being Under-Secretary to Ministers in both areas. Seymour has framed ACT’scharter school initiative – in part – as an ER issue, by presenting teacher unions as a sectoralinterest group seeking to preserve their own interests rather than as a professional bodycommitted to improving outcomes for students (Sunday Star Times, 2016). Beyond this, ER
policy is not prominent on ACT’s website or in its press releases. While it is not dealt with
explicitly, it is easy enough to infer the sort of ER settings that ACT would endorse from its
stated values.
ACT’s position does not always lead to less support for workers. During the changes to PPL
provisions in the ELSB (2016), Seymour supported additional entitlement for parents of babies“born earlier than the expected 36 weeks”. While Seymour opposed the “relentless extensionof paid parental leave, which amounts to a massive wealth transfer” on the grounds that “forthe overwhelming majority of us, having children is not an unexpected outcome”, he also
argued that “having a baby born pre-term… is an unexpected outcome” and that the state has
an “extremely important” role in “offering insurance against unexpected outcomes” (NZPD,
2016b). Regardless of one’s opinion on Seymour’s position, it is refreshing to see aphilosophical principle (that the distinction between chosen and unchosen disadvantage isrelevant in determining where compensation should be provided) coherently expressed in thedebating chamber.
Given past polling in Epsom and Prime Minister Bill English’s explicit endorsement of David
Seymour’s electorate campaign in 2017 (Patterson, 2017), Seymour is likely to hold his Epsom
seat. But polling stubbornly around or below one per cent since 2014, ACT’s party vote may
not be enough to bring additional MPs into parliament. As such, ACT matters in two ways. It
offers National, firstly and most obviously, (at least) one additional, reliable vote in parliament.
Secondly, the party’s influence derives from its ability to persuade the public and other partiesof the desirability of its position. ACT works to encourage National further towards the right,
and to extend the spectrum of perspectives articulated in the political sphere. From National’s
perspective, there is arguably a further contribution that ACT makes, where its criticisms of
National serve – paradoxically – a useful purpose, reassuring more centrist voters that National
is a moderate party, far from the extremes.

The Green Party
Besides its emphasis on environmental issues, the Green Party in New Zealand has always had
a social justice focus. Its critique of the existing labour market is predicated on its
understanding of the social world as marked by conflict, exploitation and power inequalities.
This understanding continues to be expressed in the Party’s policy documents andparliamentary speeches, which insist that the role of government is to protect workers left
vulnerable within inherently unequal employment relationships. It was also expressed, as will
be discussed below, in decisions in 2017 that led to the resignation of three Green MPs –including that of co-leader Metiria Turei – and a collapse in public support. ER-relevant
statements continue to express commitment to “full employment with dignity and a living
income”, to significant increases to wages at the bottom of the distribution (Green Party, 2011;2017a) and to improving “workplace democracy and … working peoples’ union representationand participation in the future of their work” (ibid).
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In the parliamentary debate around zero hour contracts, meanwhile, Denise Roche (as cited in
NZPD, 2016, 3 March) stated that:
Our caucus maintains a strong and unwavering opposition to legislation that enables
the exploitation of ordinary working New Zealanders … The Greens believe that weshould be making laws that support the most vulnerable in our society. In this case,those who are vulnerable are those with no guarantee of basic working hours, who aredesperate for paid work, and who are on the losing side of the power imbalance inherent
in the employment relationship.
Roche insists on the point that workers’ possession of legal rights is different, in reality, fromtheir ability to exercise those rights: “an individual, waiting at the end of the phone for a callfor some hours of work – it is not likely you are going to stand up for [your rights]”. Returning
to the underlying theme of the power inequalities, Catherine Delahunty (as cited in NZPD,
2015) notes the aversion in parliament to the very words ‘worker’ and ‘power’. ‘Power’, shesaid, is “the word that no one wants to talk about”, even though “you cannot achieve [mutual
responsibility] with power inequality”. Speaking on the issue of health and safety at work,
Delahunty states that “safety comes from making sure that power is balanced … This is aboutbalancing power, and then we will get safety”.
In important ways, then, the Greens’ stance on ER remains unchanged from previous elections.
At the same time, ER policy has not been given a particularly high priority in high-levelmessaging. At the time of writing (mid-July 2017, two months out from the election), the‘Policy’ section of the Party’s website featured 30 priorities: the only policy that was explicitly
concerned with ER (‘Equal Pay Amendment Bill) was near the bottom, at number 28 (Green
Party, 2017b). On the website’s homepage, moreover, emphasis was placed not on a standard
leftist critique of capitalism but on an aspirational vision of a flourishing future: “great water…
great families ... trustworthy and inclusive government” (Green Party, 2017c). In a key
environmental policy document, the Party stressed the long-term economic opportunities of afuture that is “cleaner, fairer, and more prosperous” (Green Party, 2015: 4, 7, 26). Social andeconomic objectives, on this logic, are not necessarily opposed to the logic of capitalism.
Rather, an inclusive society and a sustainable economy can work for the benefit of people,
planet and profit, in a “win-win for people and the planet, now and into the future” (ibid: 28).
Such statements, and the Greens’ acceptance (with Labour) of ‘Budget Responsibility Rules’(BRR) that would constrain the two parties’ capacity for public spending were interpreted as
the Party is seeking to present itself, for the purposes of electoral success, as “pragmatic” and“realistic”, rather than as “dogmatic”, and “out of touch with reality”. The most biting criticism
came from former Green MP, Sue Bradford, who argued that the BRR showed the Party“nailing their colours to the mast of neoliberal capitalism” before concluding: “this is the death
knell for the Greens as a left party in any way, shape or form. They are a party of capitalism.
They’re a party that Business New Zealand now loves” (Manhire, 2017; see also Mitchell,2017).
Criticism that the Greens were becoming a centrist, business-friendly party would not havepredicted the events of July and August 2017. Co-leader Metiria Turei made a speech on July
16 stating that she had committed welfare fraud in the early 1990s. Pointedly, she refused toapologise for the acknowledged fraud, insisting that she wanted to use her experience to starta conversation about poverty in New Zealand, and the challenges and stigma faced by welfare
recipients (Hickey, 2017; New Zealand Herald, 2017). In the face of public criticism, two
117New Zealand Journal of Employment Relations, 42(2): 110-128
senior MPs resigned from the Party list and – on August 9 – Turei herself resigned, saying that
she could not subject her family to continued public scrutiny (Hurley, 2017). The Greens’ pollratings essentially halved over the course of a month (James, 2017a; b) and one poll placed
their support at 4.3 per cent (TVNZ, 2017). Subsequently polling uncomfortably close to thefive per cent threshold, there is the danger of voters electing not to cast their vote for a party
who may not return to parliament.
If the Greens are returned to parliament, their influence in a Labour-led government will bemuch less than if their vote share had been much closer to Labour’s. Their close
accommodation with Labour (which included a memorandum of understanding signed in late
2016 formalising their intention to work together to change the government (Labour and Green
Parties, 2016) and a shared State of the Nation event in January 2017 (see Small, 2017) will
look very different if the Greens are a minor partner in a coalition that includes a more dominantLabour Party and New Zealand First. The Greens and New Zealand First have historically had
a testy public relationship: in 2005, New Zealand First leader Winston Peters only agreed to a
coalition deal with Labour on condition that the Greens did not have any Cabinet posts. In
2017, despite trading insults, both parties say they remain open to working with each other(Heron, 2017).

The Māori Party
The Māori Party was formed as a breakaway from the Labour Party in 2004, in protest at theForeshore and Seabed Act (also 2004). It has competed with some success in the Māorielectorates, although Labour has gradually won back all but one seat. The Party has not cracked
five per cent in the party vote; party vote totals have ranged from a high of 2.4 per cent in 2008
to a low of 1.3 per cent in 2014. Founding leaders Tariana Turia and Pita Sharples resigned atthe 2014 election; new co-leaders Te Ururoa Flavell and Marama Fox were elected to
Parliament as the party’s only MPs, representing the Waiariki electorate, and from the party
list, respectively.
The Māori Party has been in a confidence and supply agreement with the National-led
government since 2008 but other than confidence and supply matters, has voted against muchgovernment legislation, including some ER initiatives. The Māori Party has been described asdelivering Labour votes to National (James, 2015) and Labour Māori campaign manager,
Willie Jackson, is running the line that a vote for the Māori Party in the Māori electorates is avote for National (Newshub, 2017a). In contrast, leader Te Ururoa Flavell defends theirarrangement, saying you have to be at the top table to advance your agenda (Flavell, 2015),
suggesting they would also be open to working with a government led by the Labour Party.
Māori Party President Tukuroirangi Morgan has revealed that party members prefer an alliancewith Labour over National (Radio New Zealand, 2017b)
The Party has not used its leverage to advance ER policies, focusing its attention on other areas.
It does not have an MP on the Transport and Industrial Relations Select Committee. Generally,
the Māori Party’s ER stance is closer to Labour than National. On the Employment Relations
Amendment Bill, co-leader Marama Fox (as cited in NZPD, 2014) outlined the Party’s
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The concept that we in the Māori Party have always believed in is that innovation in
the economy should be built upon a foundation of workers’ rights and terms. It should
not be a case of either/or ... We can create future prospects of economic growth, whileat the same time adhering to conditions of employment that are socially andeconomically fair.
The Party, therefore, does not seek an overthrow of the established order so much as a fairer
balancing of power within the existing system. As Fox (ibid.) continues, “our greatest capacity
for influence is not only through speaking out and against; it can come even more persuasively
when we work together, speaking up to unite”. Still, Fox’s description of the labour market issimilar to the Greens’ in its emphasis on power inequalities and systematic vulnerability.
Speaking against Section 6A of the ERAB (concerning workers’ rights when their employer“loses a contract to a rival bidder”), Fox notes that “it is women, Māori, and ethnic minorities
who make up the majority of those [vulnerable] workers” who, having “limited bargaining
strength in the labour market … are most likely to be disadvantaged by these changes thatstrengthen employers’ rights and power”. Fox concludes that “greater protection is needed forthese workers, not less” (ibid).
Despite low polling and its small caucus, the Māori Party may be important to the National
Party’s chances of forming a new government after September 23. If National is able to increase
its vote into the high 40 per cent range, and if the Māori Party has 2 or 3 MPs, National may
be able to form a government with its existing support partners. Under this scenario, the Māori
Party would continue to exercise some influence over policy-making. This scenario, however,seems increasingly unlikely. If National does not achieve a vote share in the high 40s (i.e.
materially above its current polling level), National will need New Zealand First to form agovernment, and the Māori Party’s influence will diminish.
The Māori Party co-leader Te Ururoa Flavell is facing high profile Labour candidate Tamati
Coffey in his Waiariki seat; and the most recent polls place Flavell comfortably ahead(Newshub, 2017b). If Flavell retains the seat, any party votes above (approximately) 1.2 percent will contribute towards extra MPs. The Māori Party is heading into the 2017 election withthe goals of winning six Māori electorate seats and seven per cent of the party vote, and to holdthe balance of power after the election (Māori Party, 2017). The head-on battle with Labour inthe Māori electorates is yet to play out. While both parties will fight for votes in theseelectorates, the relationship between them has thawed following the Labour Party leadershipchange with Māori Party President Tuku Morgan describing Labour deputy leader Kelvin
Davis as, “someone who we can talk to, who we have some trust and confidence, that in theend whakapapa/genealogical ties, kinship ties mean something” (Morgan, 2017).

The MANA Movement
The Mana Movement was formed in 2011 as a breakaway from the Māori Party, over thelatter’s support for the National-led government’s Marine and Coastal Area (Takutai Moana)
Act 2011, and conflicts over the Party’s insider-outsider status more generally (Flavell, 2015).
Its sole MP, Hone Harawira, lost his Te Tai Tokerau seat to Labour’s Kelvin Davies in the2014 general election, following a coordinated campaign by opponents to unseat him, andMana’s doomed deal with the Internet Party.
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Harawira has announced that he will stand again in 2017 and has an accord with the Māori
Party, which will see the two Parties team up to defeat Labour in the Māori electorates: The
Māori Party will not stand a candidate in Te Tai Tokerau; Mana will not stand candidates in
the other Māori electorates. With no Māori Party candidate to lose votes to, Harawira has abetter chance of regaining the electorate. The initial decision of Labour’s Māori electorate MPs
to not stand on the Party list gave Te Tai Tokerau electors a stark choice: Hone Harawira or
Kelvin Davis but not both. As noted above, however, Davis’ ascendency to the Deputy
Leadership meant – under Labour Party rules – that he takes the second place on the list. As
such, Harawira immediately began arguing that by voting for him in the electorate, Te Tai
Tokerau voters could “get two MPs for the price of one”. As Harawira said, “it’s an opportunity
to ensure that we don’t just have two Tai Tokerau MPs in the House, but two Tai Tokerau MPs
on the front bench... It’s a win-win for Tai Tokerau” (Radio New Zealand, 2017c). Bothcandidates are likely to have appeal within the electorate: Harawira has deep ties in the North,and is present at events and on marae. Davis, meanwhile, has been a high profile MP for the
Labour Party.
Mana barely registers on party vote polls, and they rely on Harawira winning Te Tai Tokerau
to re-renter parliament. Even if he does, the party is unlikely to win extra seats via the party
vote. Potentially, then, the best prospect for Mana will be a one-MP party. Mana’s deal with
the Māori Party ends at the election, and if the Māori Party, again, go into coalition with
National, Mana will stay outside it. Harawira’s influence will be one of ideas, and of
encouraging the Māori Party to represent the interests of working people, both Māori and nonMāori. Mana was founded as a movement to, “bring the voice of the poor, the powerless andthe dispossessed into Parliament” (Mana Movement, n.d.a.). The Party has policies designed
to reduce the power of corporations and increase taxes on the rich. It supports full employment,“so that everyone can give back to their communities in a meaningful way with dignity” (ibid).
On ER policy, Mana says the party wants to:…ensure that all workers are well supported at work with good conditions and that all
are paid at least a living wage. For the last 30 years, workers’ real wages have gone
down while the cost of living has gone up, making many people much worse off thanever before and requiring workers to work many additional hours to make up the
difference.
It is important that all workers are able to join and participate in unions to represent
their collective interests and negotiate for decent wages and conditions of work (Mana
Movement, n.d.b.).
If elected, Harawira can be expected to be vocal in support of the poor, including the working
poor, standing against inequality, promoting higher wages and better working conditions. He
will represent one vote in the House and is unlikely to go into any formal governing
arrangement.

New Zealand First
Formed in 1993, New Zealand First’s electoral fortunes have fluctuated throughout the MMPera. Led by former National MP, Winston Peters, the Party has been in parliament since 1993,
except for the 2008-2011 period. In 2014, New Zealand First gained 8.7 per cent of the party
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vote, giving the Party 11 MPs. Subsequently, Winston Peters contested and won the 2015
Northland by-election, winning the seat off National. This increased the Party’s total MP countto 12 and reduced National’s by a crucial one vote. In both 2011 and 2014, New Zealand First’s
election night results were a significant improvement on poll results from earlier in those years.
In both instances, the Party had been polling under the five per cent threshold before theelection campaign started. It is significant, then, that polls in early September put the party oneight per cent, although even this figure represents a decline from 13 per cent support in July
(Electoral Commission, 2011; Skilling & Molineaux, 2011; James, 2017a). As noted above,
the Party has a very real chance of holding the balance of power: it may well find itself in aposition where it can decide which major party is able to form a workable government.
Labour’s recent leadership change may smooth relationships between the two parties, with new
Labour deputy leader Kelvin Davis related to, and on good terms with, New Zealand First’s
Winston Peters and Shane Jones (Moir, 2017).
We reported in 2014 that ER policy was not a top priority for New Zealand First. Since 2014,
however, the Party’s increased representation in parliament has allowed it to have a voice inparliament on ER issues: Clayton Mitchell has been a member of the Transport and Industrial
Relations Select Committee, and the Party has had the right to speak on ER legislation as it isdebated in the house. Expressing this heightened emphasis, ‘Labour and Employment’ is thesecond-listed policy area on the ‘Policies’ section of the party’s website (for comparison,‘Immigration’ is listed much further down the page) (New Zealand First, 2017a). Other
explicitly stated policies include raising “the minimum wage to $20 per hour” (New ZealandFirst, 2017b); changing “laws that allow individuals to be employed on a permanent ‘casual’basis”; and abolishing “the ‘starting out wage’ for young people” (New Zealand First, 2017c).
Peters has been a vocal champion of the Pike River families, advocating an exemption to healthand safety laws to enable the coal mine to be re-entered in a bid to recover bodies and look forevidence for a prosecution against the mine owners (New Zealand Herald, 2016). Mine re-entry
is a bottom line of confidence and supply or coalition deal (Satherley, 2017).
New Zealand First’s promise to put New Zealand interests first is expressed in a statedcommitment to protect New Zealand workers and for there to be a dramatic drop in
immigration. It promises to “train New Zealanders in areas of skill shortages, instead ofactively recruiting offshore”, to “ensure that hiring New Zealanders is a priority” and to“incentivise skilled New Zealanders to stay and work in New Zealand”. More generally, New
Zealand First rejects a hands-off approach to the labour market, favouring instead a planned
management of the national economy and society. For example, New Zealand First (2017c)
would “ensure enough workers are being trained in the area of aged care to cope with New
Zealand’s ageing population”.
New Zealand First’s immigration policy intersects with their employment relations and training
policies: funding the tertiary sector better so there is less reliance on international students;
ending student work visa rorts; ensure priority is given to upskilling and hiring New Zealanders
for jobs; and encourage skilled New Zealanders to remain in New Zealand, partly by offeringa bonding system for new graduates, which include student loan debt write-offs.
The Party has consistently voted against government moves to reduce employee and union
power (e.g. ERAA 2014), and supported higher minimum wages and longer paid parental
leave. They have argued for a 19 per cent pay loading for casual workers, a return to pre-ECA
situation whereby casual workers are compensated for lost sick leave, public holidays,
bereavement leave, health and safety representative training, jury duty, and so forth. Speaking
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in parliament, MP Darroch Ball (as cited in NZPD, 2016b) noted that, “casual workers also
have no access to personal grievance protections for unfair dismissal, and, effectively, these
are cost transfers from the employer to the worker”. The purpose of the loading was toincentivise “the employer to move the employee on to a part-time or full-time contract”,
correcting what Ball sees as an existing “systemic bias towards the employment of casual
workers”.
Peters has consistently refused to indicate whether he is more likely to support National or
Labour after the election. Commentators have listed reasons why he might prefer to go with
one party or the other, but it is unwise to offer firm predictions. New Zealand First’s ER
statements and policies align more logically with Labour and the Green Party than with
National and ACT. Indeed, since 2011 (including since 2014, as seen in Table 1), New ZealandFirst has consistently voted against National’s proposed ER amendments. It is unclear however,
how important the Party’s ER position will be in coalition negotiations: disagreement with
National’s ER position, in other words, may not be a “deal-breaker”.
Further, New Zealand First’s apparent convergence with a left bloc is not straightforward. As
well as clear differences in other policy areas, there remains a degree of distrust and personal
antipathy between Peters and the Green Party. In July, the Greens embarked on a deliberate
strategy of criticising New Zealand First, with Metiria Turei repeatedly describing some of
their policies as ‘racist’ (Trevett, 2017). Such criticisms appeared intended to stake out adistinct position for the Green Party as a way of maximising their vote. The antagonising effectof such statements may, however, have lessened with Turei’s resignation.

The Opportunities Party
The Opportunities Party, or TOP, was founded by millionaire businessman, philanthropist andpublic commentator Gareth Morgan. The Party promotes a number of policies previously
advocated by The Morgan Foundation, a charitable trust that furthers policies and actions that
reduce “the wealth disparities between people” (Morgan Foundation, 2016) and is concernedwith conservation and environmental enhancement. The Party gained registration in March2017 and will stand list and electorate candidates in the 2017 general election. Chief of Staff
and former Morgan Foundation economist Geoff Simmons ran for TOP in the Mt Albert byelection (a safe Labour seat) in February 2017, where he gained 4.56 per cent of the vote
(Electoral Commission, 2017). He is standing as the Wellington Central candidate in thegeneral election.
TOP’s purpose is to promote a radical shake-up of policies and Morgan has stated the party
would be happy operating from the cross-benches, or outside Parliament. The key aim is toinfluence policy (The Opportunities Party, n.d.a.). The Party says it is neither left nor right, andis interested in evaluating evidence before coming to a policy position.
TOP policy is framed with the concept of fairness. It believes that government needs to ensure
people have opportunities and that, at present, too many do not because New Zealand society
has become increasingly unequal. The Party has no specific ER policies, but a number of its
policies would impact on the standards of living of working people. Their policy shake-ups
include tax reform that shifts the burden of tax away from labour and onto capital, and a staged
introduction of an unconditional basic income (UBI), which would give low income workers
122New Zealand Journal of Employment Relations, 42(2): 110-128

more bargaining power with employers. TOP’s immigration policy is to encourage more New
Zealanders to be trained and hired for jobs, reduce low skilled immigration which is enabling
the suppression of wages and conditions, and cracking down on the exploitation of migrant
workers, including providing the exploited migrant an opportunity to remain in New Zealandwhilst securing other work (The Opportunities Party, n.d.b.). The Party supports the current
minimum wage regime rather than the living wage concept, with an underlying UBI and tax
reform providing the further assistance the lowest paid need to thrive (personalcommunication). In education, TOP advocates following more of a Finnish model than a US
or UK one; this includes no performance pay for teachers, and a more trust-based model thanat present (The Opportunities Party).
On the training front, the Party’s UBI forms part of a lifelong learning strategy, along withsupport for more innovation in the occupational skills and training space. There is anacceptance that new technology will disrupt existing work patterns and the best response is not
to fight these changes but to ensure people are well-placed to adapt (personal communication).
TOP has not followed ER legislation debates closely and would use the concept of fairness anda level playing field for bargaining when deciding how to vote on issues such as zero hours
contracts, rights of workers to organise, union access to workplaces and so forth. For example,
on zero hours contracts, they see the issue as one whereby employers have an obligation toguarantee work if they expect workers to make themselves available. The Party accepts that
employment relationships are not equal, with employers usually having more power (personalcommunication).
Since the introduction of MMP, no new party that has not been a breakaway from an existing
party has been able to breach the five per cent threshold. TOP has policy depth in a number ofareas (The Opportunities Party, n.d.b.), funding for policy development and dissemination, key
people who regularly front the mainstream media and social media, and attracts crowds tocommunity events. But it faces a tough challenge to achieve its aim of policy disruption. They
are currently polling below the margin of error – but above the other minnows of ACT, theMāori Party, Mana and United Future. Without the lifeline of an electorate seat, though, TOP
may head the way of other recent new political parties founded by millionaires intent on policy
influence: the Internet Party and the Conservative Party.

Conclusion
The fate of the different minor parties will be important in determining the makeup of the next
government. If ACT continues polling close to zero but David Seymour wins Epsom, his seat
will be an overhang, meaning the winning coalition needs to find an extra seat to reach amajority for any legislative support. Polls in August and September have been marked byextreme volatility, and government formation may depend on whether the Green Party and the
Māori Party make it back into Parliament. The other potentially influential minor party result
is whether election 2017 will see New Zealand First as ‘kingmaker’ (Young, 2017). The Party
refuses to state, pre-election, a preferred major party partner. While New Zealand First has ER
policy similarities with Labour, it is questionable how central policies in this field will be incoalition negotiations or in government. In this scenario, the policy position of the major party– National or Labour – leading the next government will be the main determinant of ER
changes or status quo.
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