Health and Safety Reform Bill — In Committee Speaker Recalled In CommitteeText is incorporated into the Bound VolumeHealth and Safety Reform Bill — In Committee Speaker Recalled In Committee[Sitting date: 19 August 2015. Volume:707;Page:5957. Text is incorporated into the Bound Volume.]Health and Safety Reform BillIn CommitteePart 1 Health and safety at workThe CHAIRPERSON (Hon Trevor Mallard): Before I give the call I want to indicate that this is a debate on clauses 3 to 29AA and schedule 1 of the bill. I would also make the comment that it is my expectation that this will be one of the more contentious debates and I think it is generally agreed that it is one of the longer debates we are likely to have in this Parliament. Chairs of the Committee will be looking very carefully at the question of the substance of contributions that members are making and at questions of relevance and repetition. I also want to indicate to the Minister in the chair that in making decisions around the closure I at least will be looking to whether reasonable questions have been answered. Obviously we will not let repetition of questions go on for ever but questions once asked become repetitive if they are reasonably answered.Hon MICHAEL WOODHOUSE (Minister for Workplace Relations and Safety): It is my privilege to commence the Committee stage on the Health and Safety Reform Bill. I want to begin by making some introductory comments including some comments on matters that are actually in the latter part of the bill. I trust that the Chair will indulge me a little because I think that they give important context to this and I intend at the end of this intervention to table a document that will assist members in the debate on Part 3.I think that it will provide context to what I expect will be a robust and I hope reasoned and respectful Committee stage.I want to begin by acknowledging the family and friends of loved ones who have been killed or seriously injured at work including those who are present and those who are watching this bill’s progress on TV or radio disappointed that this stage did not commence yesterday. I regret that that was not the case but I want to assure the Committee that it was not due to any deliberate attempt on my part to delay. Indeed it was my strong preference to commence this stage yesterday but it is important that we get this bill absolutely right and in good shape and that all parties are satisfied before they support it.I have spoken to and corresponded with a great many people who have had loved ones killed or injured at work and I simply cannot imagine the disbelief the grief and the anger that one must feel. Through that contact one message was consistent—that is they implored us through that grief to do what we could to ensure that no one else has that experience. The Government has made a commitment to do its part and I believe that that commitment is being delivered on not just with this bill but also with the plethora of other actions that the Government has taken over the past 3 or 4 years—particularly since the Pike River mine disaster—in setting up the Royal Commission on the Pike River Coal Mine Tragedy in establishing the High Hazards Unit the Independent Taskforce on Workplace Health and Safety and the new underground mining regulationsin setting up WorkSafe New Zealand in providing significant extra investment in new resources for health and safety inspectors the health and safety charter in Christchurch to support the Canterbury rebuild and in a plethora of other things.I think that the forestry industry is a really good example of industry-led change. My predecessor Simon Bridges was very disquieted by whatwere I think 10 deaths at work in the forests in 2013. I think that the Independent Forestry Safety Review has after a slow start been enthusiastically embraced by the forestry industry. The Forestry Industry Safety Council has now been established and the results are clear. There were 10 deaths in 2013. We know one death is one too many but there has been only one in the 21 months since. I think that is consistent with a general trend toward reducing death and injury. The Construction Sector Action Plan 2010-2013 was established 2 years ago and the health and safety charter in Christchurch has led to a near-halving of serious injuries in that sector but there is more to do if we are to finish that job and deliver on the commitment tohave a New Zealand workplace that is increasingly free of death and injury. This bill is an important part of that process.Part 1 in the meanings clauses sets out the definition of a “person conducting a business or undertaking” or a PCBU. The bill increases penalties for non-compliance. It makes it absolutely clear that all participants in the workplace—managers owners directors workers—have a duty to keep themselves and others safe at work. Worker participation is absolutely an underpinning part of this legislation but there are many others.Apart from the obvious goal of increasing safety this bill actually reflects the fact that in the 22 or so years since the Health and Safety in Employment Act was passed the workplace has changed. The way in which work is delivered—the combinations of contractors self-employed and employees—has changed. In the sector that I knew well before coming to Parliament as the chief executive officer of a surgical hospital 25 years ago a hospital would do everything. It would employ the surgeons the nurses the allied health professionals the cleaners the cooks the laundry workers and the maintenance staff. Now there could be as many as 60 or 70 separate entities working in a hospital and the challenge is to make sure that everybody in that workplace understands what good health and safety means and that requires a degree of cooperation and understanding about the risks and how to mitigate them.There was very strong support for the bill at its introduction and then came the amendments to worker participation. I want to refer to a document that I will be tabling at the end of this and that goes to the commitment that I made at the second reading to define the framework that the Government will use in order to consult on what the regulation should be for high-risk small business. It was my hope that we would get to about the upper quartile of risk. We have found a consistent taxonomy and description in the Australian and New Zealand Standard Industrial Classification codes which are used by ACC to set ACC levies and we have looked at the injury rates over the past 5 years—from 2009 to 2013 I think it was—and we have included in this draft list for consultation any industry that has had a fatality rate greater than 25 per 100000 workers. Any industry with a serious injury rate above 25 per 1000 workershas been included and we have acknowledged that although the actual rate may not be that high there is the risk of a mass-casualty event in some industries. I should also add that there is the issue of occupational exposure the best example of which is exposure to asbestos and silica dust in the construction industry and for that reason although the construction industry does not meet the fatality and serious injury thresholds it will be included in this list for consultation.I have tried to be as thorough as possible but I have taken one industry out—which the press gallery may be interested to know—and that is television presentation. I was not sure why that had such a high fatality rate but then the answer was pretty obvious actually that the deaths were those of workers in the CTV Building. So for that catastrophic event which I do not think is indicative of the industry but more of the situation that industry is the one industry that we have excluded from this list for consultation.I will get to the rights and wrongs of that in the robust discussion on Part 3 I have no doubt but I want to remind the Committee that this is the last reform of our health and safety framework not of our health and safety representatives. This is about everybody participating in health and safety. In a way what we have through this list is that 75 percent of our labour force will have the right to a health and safety representative if that is asked for. The other quarter of the workforce may well do and I expect that small businesseswill say yes to it regardless of whether they are compelled to do so because either they have them or it suits them. Not having a health and safety representative may actually be the harder path for some small businesses. It certainly does not let them off the hook. I can imagine that for small businesses particularly those with workers that are disparate in the workplace—take a farm or a plumbing firm where they are driving around and working at remote places—the way actually to ensure that knowledge is shared and that skills in health and safety are high is to have a different model. This reflects that modern workplace.Labour says that it is the friend of small business. Apparently it has suddenly had an epiphany about the 90-day rule although I am not sure about that. This one opportunity to reflect the modern workplace and the modern small business with a flexible—but not watered-down expectation in my view because all the powers of the health and safety representative are still available to every worker in the workplace; the path is just a different one—warrants I think robust debate here. I stand strong in my view that this is a sensible balanced and appropriate response to the modern workplace in New Zealand. It is by no means a watering-down.I am going to require a third call perhaps Mr Chair because I want to acknowledge our support partners—ACT for its support and scrutiny and Peter Dunne and the United Future Party—for working with us to make sure that the framework for the establishment of high-risk industries was robust evidence-based and consistent and also for making sure there was a review of that. Actually I expect that because it is in secondary legislation and in regulations we will be able to amend it from time to time. But indeed I think there will be a formal review in the regulation.The Māori Party I want to acknowledge Marama Foxparticularly has worked with us very much on the tightening of the expectations around developing solid work groups and avoiding what some would say is—and I do not actually think that there is a high risk of this—the arbitrage to establish work groups that do not deliver the intent of health and safety committees and representatives and on the extension of time for the taking of a private prosecution should the regulator decide not to take one. I want to acknowledge Iain Lees-Galloway. He has a Supplementary Order Paper that does the same thing. I think there is merit in this. Indeed we have come to a place that is an extension of time in the bill as it came back from the second reading but it is not as long as Mr Lees-Galloway would have liked.I want to acknowledge the officials. I did not do so in the second reading and one of the reasons was that they wrote the speech so in typical modest fashion they wrote it and I forgot to amend it. I have not worked a group of officials harder than I did with this bill. Those who worked with me on the Veterans’ Support Bill will find that quite hard to believe. They have worked incredibly hard they have been very responsive and they have done so knowing that the product is going to result in a better health and safety environment in this country.I have said this on a number of occasions and I will finish by saying it again. We can pass all the laws rules and regulations we like but what will make the fundamental change and is making the fundamental change towards keeping people healthy and safe at work is a change in behaviour and attitudes. That behoves us all to do this and to work across business across workers and across directors—across everybody—to ensure that we achieve it.I seek leave to table a document prepared by the Ministry of Business Innovation and Employment providing guidance on high-risk industries and a list of industries that are proposed for inclusion.The CHAIRPERSON (Hon Trevor Mallard): Although I am happy to put the leave of course as a Minister you can just table it.Hon MICHAEL WOODHOUSE: Can I? In that case I table it.Document by leave laid on the Table of the House.PHIL TWYFORD (Labour—Te Atatū): Members of this Committee will be well aware that Labour opposes this bill at this point. We do so with a sense of gravity and disappointment. As the Minister for Workplace Relations and Safety said in his opening remarks there was a consensus of support behind this bill when it was first tabled. In fact a great degree of consensus existed in this House behind the first version of the bill. Outside this House the business community and the trade union movement and all manner of interest groups and commentators expressed support for what was to be a generational change in the architecture of our health and safety system in New Zealand. I do not need to remind members that the Pike River mine disaster was an epoch-changing event in New Zealand. I think it reminded everybody when the truth came out finally through particularly the Royal Commission on the Pike River Coal Mine Tragedy that that event that disaster was a damning indictment of a complete systemic failure in health and safety.I want to direct my comments in Part 1 to the purpose clause and make some general comments about Labour’s view of this bill now. We went from a feeling that there was widespread support for these changes for the new architecture for the Australian model law that offered a new template within which to build a really fit for purpose health and safety system for New Zealand today. I cannot underline enough how disappointed members on this side of the Chamber are by—I know the Minister does not like to hear that this bill has been watered down but it has been. It has been watered down. It has been substantially weakened by the carve out in the bill that effectively exempts firms with fewer than 20 employees from the requirement to allow the appointment or election of health and safety representatives when requested. It is going to carve out from the provisions in this bill more than 300000 New Zealand employees or one-quarter of the workforce perhaps.The Minister said in his opening remarks that the bill’s provisions around worker representation were going to cover 75 percent of the New Zealand workforce. Well what about the other 25 percent? Do they not deserve to be safe at work? They do not—Jonathan Young: Of course they do.PHIL TWYFORD: Well Jonathan Young the chair of the Transport and Industrial Relations Committee says “Yes of course they do.” but he is happy to stand up and vote for a bill that effectively cuts those people loose and denies them—Jonathan Young: No it doesn’t.PHIL TWYFORD: —it certainly does deny them—the right to be protected at work by effective worker representation structures in the workplace. That is and will be the nub of this debate.John Key said in the aftermath of the Pike River disaster that he was going to do everything. He said that he was going to do everything to deliver on the promise of remedying the glaring shortfalls in our health and safety system. This carve out this watering down is a betrayal of that promise. It is quite interesting that when you tally up the purpose clause in the bill against some of the commentary from the Independent Taskforce on Workplace Health and Safety you can see that in the transmission from the royal commission to the independent task force to the basic architecture of this bill there was a faithful representation of the findings and the recommendations from the task force into the purpose statement of the bill. That is why we did actually have a substantial level of agreement.SUE MORONEY (Labour): Finally—finally—after all the delays and all the backwards and forwards we are getting the opportunity to debate the Health and Safety Reform Bill in this Committee. I do want to take just a few minutes at the beginning of this call to respond to some of the issues that the Minister for Workplace Relations and Safety himself raised when he introduced the debate on Part 1 of this bill. We had delays at the Transport and Industrial Relations Committee. The bill languished in our select committee for around about 5 or 6 weeks and went nowhere and did nothing. Today we find this Supplementary Order Paper 108 put forward by the Minister with a range of amendments and changes that the select committee could have been considering while it sat idle for 5 or 6 weeks while the National Party sorted out its internal politics. It tried to sort out its divisions and its splits over this bill. People might remember that there was some stuff going on with Judith Collins and some stuff going on with Maurice Williamson and probably with some of the other MPs from the rural areas.Now we find out that the delay that the Minister spoke about that occurred over the last 24 hours turns out to be a delay so that the Government could find a tricky way of getting farms and agriculture out of having decent representation over worker health and safety in their workplaces. That is what it has turned out to be about—not anything honourable Minister. It was not something that improves this legislation or improves worker representation over health and safety. Actually National was spending that 24 hours convincing its support parties that they should support a watering-down that specifically allows agriculture not to be included in the ability for workers to require and have an elected health and safety rep at work.One-third of the deaths in this country over the last 5 years in workplaces has come from agriculture—agriculture—and that is the area that that Government has spent the last 24 hours trying to find a tricky way of actually excluding from having the best worker health and safety representation model that can possibly be put in place. That Minister is a disgrace and it is a shame. It is a shame because at the first reading of this bill the Labour Party did support this bill. The bill was based on research and evidence it was based on the recommendations from the Royal Commission on the Pike River Coal Mine Tragedy and we were pleased to see it go to the select committee. But what happened thereafter was a travesty as we watched the National Party members start to crumble. We watched their knees tremble when some of their supporters came in—The CHAIRPERSON (Hon Trevor Mallard): Order!SUE MORONEY: —and gave submissions. I raise a point of order Mr Chairperson. Can I just ask what the “Order!” was for?The CHAIRPERSON (Hon Trevor Mallard): Oh absolutely. The member will sit down. The member was clearly implying a lack of courage on the part of Government members by suggesting their knees trembled. I think the member knew she was doing it and she will cease.SUE MORONEY: Thank you and I apologise Mr Chair. It was a genuine question. I did not quite take it as that meaning. We watched what happened with the National Party members when their resolve crumbled over what they had gone into on the first reading of this bill when they saw a small number of employers come in and try to sort of rort the process and get this bill watered down. They have succeeded in doing that from the National Government’s perspective.This debate will be taken very seriously by the Labour Party. As the acting spokesperson on labour I want to make it absolutely clear that this is a complex and complicated piece of legislation. We do intend to debate the detail because that is the purpose of the Committee stage debate and because there are a number of amendments that we wish to pursue we do intend to be able to fully debate the implications. Nothing can be more serious in our view than the consequences of not getting this bill right and we do not believe that this bill is right.In front of me I have a taonga actually that was given to me last evening here in Parliament from the many families who have suffered workplace deaths in their families. They have lost loved ones in forestry in farming in Pike River and in a range of different workplaces and they wished this taonga to be present in the debating chamber when this debate took place. It may not always be in front of me—there is a lot of paperwork that goes on with this piece of legislation—but it will always be nearby.I particularly want to acknowledge the family of Lincoln Kidd who had this box made up. It reads: “In loving memory of New Zealanders killed at work.” Lincoln Kidd was killed in his workplace in December 2013. He was killed in the forestry sector. The court case for the prosecution against his employer starts on Monday and that is going to be a gruelling journey for his family as they face 3 weeks of court time listening to what I imagine will be an employer trying to absolve themselves of things that they should be held accountable for. That will be very difficult indeed.We do have an amendment coming forward in Part 1 of the bill and I do intend to take some time to speak about that. Before I talk about that I want to come back to the purpose clause which is in Part 1 and draw the Minister for Workplace Relations and Safety’s attention to clause 3(1)(b) because I think this is the crux of what the Government has not yet got right. It says: “The main purpose of this Act is to provide for a balanced framework to secure the health and safety of workers and workplaces by—… (b) providing for fair and effective workplace representation consultation co-operation and resolution of issues in relation to work health and safety;”.What we all know is that the best form of worker representation is when they elect from amongst themselves a health and safety rep if that is their wish. That is what we are asking for. We are asking for the Government to honour that because when this legislation first went to the select committee it entailed that for every single worker and now we are being reduced to arguing about who does not deserve to have access to worker representation on health and safety. That is what we are reduced to arguing about now and that should never have been the case. The Government enjoyed the support of this entire Parliament when this piece of legislation went to the select committee and it is a great shame that coming out of the select committee it no longer enjoys that support because it should have it. It has sacrificed workers in small workplaces and quite specifically those who work in our most dangerous—our most dangerous—sector of agriculture.I would like the Minister to explain how he can justify—how he can justify—that the biggest killer of workers in New Zealand is not going to be covered by the requirement for an employer to allow people to elect one of their own to represent them on health and safety. I do not think he is going to be able to convince New Zealanders that that is right and that that is going to improve our health and safety statistics because the largest driver of bad health and safety statistics is in fact agriculture and that is the area that the Government has moved to exclude from that representation.My colleague Iain Lees-Galloway the spokesperson on this area for the Labour Party on behalf of whom I am acting has put forward a very good Supplementary Order Paper Supplementary Order Paper 100 which actually promotes a change to the definition of “officer”. We want to make sure that in Part 1 there is an extension to the people who hold the primary responsibility for health and safety. They may not be the person conducting a business or undertaking (PCBU)—and that is going to be a phrase that we are going to hear over and over again in this debate—but they none the less are an officer who should have particular duties. Iain Lees-Galloway’s amendment is brought forward in order to do that.There are many many amendments that we are going to be debating through the course of the passage of this legislation. I really hope that the Government will put politics aside when it comes to addressing workplace health and safety and see its way to actually supporting some of the amendments that are made by the Labour Party. I can tell the Minister now that the Labour Party will be supporting some of the amendments that he has put forward in his Supplementary Order Papers. We will be supporting them because we will put politics aside for the sake of getting health and safety right in the workplace. We will put politics aside for that make no mistake.I want to see that coming from the other side as well. We have some very serious amendments that will make a difference. It will mean that we do have health and safety legislation that actually stands up to international scrutiny on what is correct.CLAYTON MITCHELL (NZ First): It is a great pleasure to stand on behalf of New Zealand First to talk on this bill in the Committee stage. I think we are going to have a very robust discussion and probably a bit of a marathon debate really. Goodness knows how long it is going to last because there is so much to go through and go into. Just looking at this we have got 30 Supplementary Order Papers or amendments on the Table for discussion and I am sure every single one of those will need to be debated at great length. I do acknowledge the Minister for Workplace Relations and Safety for tabling the document about the guidance on the high-risk industry definition.I would just like to start by asking a question that he may be able to provide some clarification on. I have actually called into his office but of course he is down here so it is very difficult to get an answer. It is in relation to R913 as far as high-risk industry definitions go and it is to do with amusements which I am assuming is large slides and Ferris wheels and the like which can be quite dangerous but what are “other recreation activities”? I would like a little bit of clarification on that. We are waiting to hear back from your office Minister and if you could just expedite that it would certainly help—The CHAIRPERSON (Hon Trevor Mallard): The Minister has just whispered in my ear that he will answer those as part of the relevant part—in this particular case Part 3.CLAYTON MITCHELL: Thank you. I thought I would just take the opportunity to bring it up. I appreciate that. Look I also want to make mention to the families who came from all over the country to be here to listen to this debate and be in the gallery. We give our apology that it was delayed by a day and I do believe that it was not anybody’s fault. However I was in the old Legislative Council Chamber yesterday listening with a heavy heart to those stories of those fathers mothers wives and sisters who wanted to share their stories and I certainly did have tears in my eyes along with many of the other members and people who were there. This is what makes getting this piece of legislation right so important. It is 2 years overdue—in fact it is probably 5 years overdue.Before I start talking about specific parts of the bill that we are going to be putting some Supplementary Order Papers to amend—it comes down to the Fire Service I guess and what it has created as the triangle for fire. What creates fire? To create a fire you need the oxygen you need fuel for that fire and of course you need heat—energy—to create it. If you take any one of those pieces away from that fire triangle you of course will not have a fire. Health and safety is very similar to that in so far as you need in order to get good health and safety three parts to make up solid legislation to ensure the safety of workers. The first thing is worker participation. We have got to have good engagement with those workers and those workers have to have a place where they can go to and be heard and be sure that their concerns are actually being adhered to and actioned. So that is the first thing you need.You also need a good employer who understands the importance of making sure that his workplace is a safe environment for his workers to be in and who does everything that he can to ensure that he gets this—which comes under clause 3 “Purpose”; I can see there are some questions about the purpose of this—in order to ensure that his workers get to go home. The third thing we need of course is enforcement around the legislation that has been put there.If I look at the previous legislation that this country has been run under two of those pieces were really quite lacking. In the latest Budget the honourable Minister came though and allocated $8 million for enforcement officers to ensure that those measures are upheld. If we rewind now back 5 years to the Pike River disaster if we had had adequate funding and the right resources given to the mine workers around this country—if they had had the time and the resources to actually enter into those mines and take serious note of the mishaps that were going on—then the Pike River disaster may well not have happened.I also have to say that if there was a strong robust place for the workers to go to that would also actually have negated a lot of the accidents that we have in our workplace. This new legislation does a lot of that and we as New Zealand First have some discomfort that we are opposing this bill as it stands at the moment. We would like to think that we can find a balanced middle ground if you like with some of those areas where we think that the Government has gone a little bit too far a bridge too far and some areas where it has not gone far enough.So that is what I would like to start talking about now. To reduce those fatalities in the next 5 years by 25 percent—I would like to see that that rate could be reduced even further. That is the first thing. I would like to see 100 percent safe workplaces around this country. Who would not? I do not think there is a single person in this country who would not want that.But getting to safe workplaces I would like to talk about Supplementary Order Paper 110 which we have put forward. We put it through to the Transport and Industrial Relations Committee and I was a little bit disappointed not with Labour and possibly not with the Greens because I understand their position in most things. I do not mean to be derogatory when I say to them I get you you know? I get where your position is.I was however very disappointed that despite having some positive involvement from Mr Bayly in acknowledging the concerns and seeing the sense in what we were trying to say because he is a pragmatic person. He is a person who has been involved in business—[Interruption]—and from Mr Young also in recognising and understanding my dilemma. When I talk to the vast numbers of small medium and even large businesses around the country that suffer from the lack of personal responsibility by their workers with regard to their personal protective equipment this bill could sort that out. I know the Minister himself said that there is other legislation that could actually deal with this but why put it into somebody else’s hands when we have got the opportunity here and now to fix it up by sleight of pen and to remove this? You say it will not work Minister but it will in fact work.The legislation in clause 28 says that no worker can be levied or charged for any of their personal protective equipment. We absolutely agree with that. That is common sense. If you have got to do a job you have got to have the equipment. However there should be onerous circumstances around making sure that those workers look after and protect that personal protective equipment—that they do not give it away do not sell it off and do not forget it and leave it at home. We believe that it is not unfair or unreasonable to expect a worker to be levied or charged for unfair wear or tear or loss of their personal protective equipment because at the end of the day who pays for that? Most of those costs get transferred on to the consumer so the consumer is ultimately paying. But is that about efficiencies of business? I suggest not. Hence I get back to this: how could National not support this in Government and not say: “Let’s look after this.”?If you go to another piece of legislation—we are talking about human resourcing—again that is a cost to the business. You have got to go through the process of managing that person out or managing them up to a standard. If we put in a clause that would eliminate that issue right then and there that to us is a very pragmatic and sensible solution that will bring down the cost to the consumers. It will actually make businesses more profitable.The second point is about clause 29AA which is about insurance against fines being unlawful and which is also referred to in the Supplementary Order Paper from New Zealand First. You can get indemnity for just about anything. You can insure yourself against loss or wear and tear and so on and you pay for that. It is a user-pays system. So why does this legislation not allow for businesses to protect themselves in the event or circumstance of a serious accident so that they could actually get that indemnity? If you are a high-risk business obviously those premiums are going to be higher and that is a business decision that could be weighed up with the businesses themselves to decide whether they want to pay a premium on an annual basis or take the risk and try to tighten down that legislation. But the reality is that it is up to individuals to decide whether or not they have insurance and I think that this is another key practical step that would eliminate some of those problems.So to read out the clauses that we propose new subclause (2A) in clause 28 would say: “Despite subsection (1) a PCBU may impose a levy or charge on a worker (or permit a levy or charge to be imposed on a worker) if any personal protective equipment is persistently lost or damaged by the employee.” I do not think any employee in their right mind would think that that is unfair or unreasonable. Take personal responsibility for the things that are going to keep you safe. Then quite simply we look to completely delete clause 29AA which again does not allow any employer to insure themselves or indemnify themselves for their financial loss or cost of a potential litigation in future times. I will be speaking on most of these points today. It is going to be a marathon. My throat is probably going to get a little bit hoarse so I will have to grab some lozenges. Thank you very much.DENISE ROCHE (Green): I would like to take this call for the Greens in the Committee of the whole House on this the Health and Safety Reform Bill. In this House the biggest health and safety risk we probably face is a paper cut or maybe a burn on our ears from our cellphones—Hon Member: Headaches.DENISE ROCHE: Yes headaches—headaches from listening to bad speeches. We are in a privileged position where we are not facing danger every day like the people who work in our forests who work on our farms who work in our mines and who work in the manufacturing sector and the construction sector. It behoves us to remember that we live in a very privileged position and we have the power to make the world safer the workplace safer for so many workers—in fact all the workers of Aotearoa New Zealand. I am going to make a few general points and then I am going to get into a bit more detail and like others have said we will be debating this bill in detail.One of the points that I wanted to make and I was reminded of this before I came down to the Chamber to speak is that nearly every single New Zealander knows someone if they are not that someone who has had an injury at work or has been affected by somebody who has died at work. When you have nearly 300 people dying at work over the last 6 years and we are a small country it is inevitable that we need to face their loved ones and be able to say to them that we have done our best to make the world a safer place for them and their loved ones and that is your right that is your legacy.In my own family I remember when my dad came home when I was 10 years old. He was a shunter on the railways and he came home 10 hours late with half his hand missing. That was one of those situations where his workplace was a dangerous workplace. He knew the dangers and he took those risks every day but he was never able to play the banjo again he was off work for a year and we struggled during that time.Up in my office there is another worker an office worker who gives support to us and she told me that she is related to one of the 29 in the Pike River mine whose bodies still lie in the mines there. I wanted to say to her that I was going to do my best to make sure that after today we would have a law that would mean that those sorts of tragedies those sorts of accidents would not happen again. But as we come to debate the details of the bill I am not convinced that that is what we are going to end up with.Where the Health and Safety Reform Bill came from was the result of the Royal Commissionon the Pike River Coal Mine Tragedy and the recommendations that it made. It also came from the Independent Taskforce on Workplace Health and Safety which made recommendations and they were good recommendations. I want to just refer initially to the comment from the chair of the independent taskforce Rob Jager who put it to Parliament really that “A key challenge in addressing workplace health and safety is that it requires balancing the interests and needs of a number of participants particularly employers and workers. We are starting with a 20-year-old system that did not find that balance yet the task has become more rather than less complex over time. … In our view we have found a good balance requiring compromise by all parties that will both improve outcomes substantially and respect all parties’ needs. Make substantial changes to the balance and we will lose the vital support of some participants and significantly weaken the potential benefits.”We supported the bill that came to the House too because we could see that although it was flawed in many parts it did have its basis in the recommended Australian Model Work Health and Safety Act—the model Act. But this Government has eviscerated it and even today we come back to this Parliament to debate the details of the bill to find that some of those details have changed. If we are looking at process—just looking at process not the detail at the moment; just looking at process—this is appalling. How on earth are we supposed to make good decisions when we have not had the discussion and the debate during the select committee nor have allowed others to actually submit on what the Government is basically cobbling together at the last minute? I acknowledge your efforts Minister Woodhouse to cobble the bill together at the last minute.Where this bill falls down in Part 1—and throughout the bill—is around participation. This is what the chair of the independent task force referred to when he said that there needs to be a balance. In our view and in the view of this side that balance has been lost because the ability for workers to participate in their own health and safety is frequently stifled throughout the bill. There are a few examples. One is around the rights of workers in small to medium enterprises with 20 or fewer workers who are deemed to be in a non - high-risk workplace. These workers do not get the same rights as other workers and I think as a previous speaker commented before that affects around about 300000 workers in New Zealand. I commend the Minister for circulating an outline of what might be deemed to be high risk but that is not in the bill at this stage and is yet to be consulted on. So we have to take it on trust. Many workers when they go to work would rather rely on their workmates for health and safety than the Government because many do not trust the Government.This bill is about who is in and who is out. There are some who are in because they are in a workplace that has over 20 workers or they are out. And actually the change that the Minister wants to make there is that the person conducting a business or undertaking just has to inform that workforce that they are out. There is no consultation there is no decision making by the workers and there is no balance to allow the workers to be able to say: “We actually want a health and safety rep and a health and safety committee in our workplace.”The others who are left out of the legislation are people who work in homes for home occupiers. We are entering a situation where more and more frail people and people with disabilities are being cared for in their own homes. In the past the Government has talked about offering voucher systems so that those people become employers of the home-care workers they wish to have care for them which you know is laudable actually. It empowers those clients. However those workers would be exempted from the health and safety legislation. They are not exempted from other employment laws. They are not exempted from the Minimum Wage Act but they would be exempted from health and safety legislation purely because the work occurs in the homeowner’s own home. I cannot see a justification for that. We are already in a situation where home-care workers are exploited through their wages and they are going into a situation where they now get exploited around health and safety.I guess the other people who are left out of this situation are the workers who want to have a health and safety committee who want to elect a health and safety committee—because they do not have the right to elect a health and safety committee. It is actually the employer’s right to decide whether there will be a health and safety committee and who will be on this health and safety committee. If workers are fortunate enough to have a health and safety rep that person does not necessarily have to be on the health and safety committee either. And of course the health and safety committee does not actually get to access training as a right either. There is also the question of whom health and safety reps—presuming actually that workers will get one—get to represent. I understand that there is a Supplementary Order Paper in front of the Committee suggesting that workers should actually bless them be able to—JONATHAN YOUNG (National—New Plymouth): Can I start off in my opening remarks by giving an acknowledgment of those people in the gallery who are from Pike River. I would also like to acknowledge the family of Michael Kane who may be here as well. He was a worker who lost his life in New Plymouth.Can I just say in terms of remarks on the process that the Transport and Industrial Relations Committee worked through that this indeed is a very complex and very large piece of legislation and by and large we worked very well to progress it. There were obviously points of difference. There were points and amendments that Labour members brought to the committee that we agreed to so it has not been about politics. It has been about producing something that is workable and best for New Zealand.We know in Part 1 clause 3 when it talks about the purpose of this bill it says the “purpose of this Act is to provide for a balanced framework”. That has been the very intent and the very beginning of what it is all about. It is about having a piece of legislation that is proportionate to the risk. Out in the media world there has been a lot of misinformation. There have been people saying: “So an insurance company of people who work in an office of over 25 will have a health and safety rep”—I know that is Part 3; we are going to come to that in due course—“but a team of miners who are maybe seven or eight do not have a health and safety rep?”. There has been all of this conjecture and debate taking place out in greater New Zealand and I am just thankful that the Minister for Workplace Relations and Safety has come today and tabled that list—which he promised he would do in his second reading speech—which starts to identify the high-risk industries where there will be those mandatory health and safety reps.We have always known that that process will take place and it is not in the primary legislation because those lists need to be updated from time to time and we want to have flexibility around law-setting. Having a balanced framework is about many aspects of work life. It is about the person conducting a business or undertaking (PCBU) having their responsibilities. It is also about the worker fulfilling their responsibilities. It is also having measures in place that are proportionate to the risk.There will be companies and businesses that will have three people involved so one may be the PCBU and the others are perhaps both workers. What this bill puts in place is that every business or undertaking has a legal obligation to have engagement with its workforce and to have participation with its workforce around a health and safety regime in that workplace that protects the workers and also protects every person who comes into that workplace.So when my colleague Phil Twyford states that 25 percent of the workforce will have no health and safety around them or that they are carved out that is not correct. That is not correct.Phil Twyford: That’s not what I said Jonathan.JONATHAN YOUNG: You went on to say that in your second statement around worker representation. This bill is very strong on saying that there is an obligation upon every workplace and upon every PCBU to have a health and safety regime and understandings and procedures in place that incorporate engagement with their workforce at a very meaningful level. In fact this bill puts in the provision that if somebody contravenes this section then for an individual there is a fine not exceeding $20000 and for any other person—and when it is referring to a “person” it is talking about a company—there is a fine not exceeding $100000. Those are very strong measures. They are very strong measures to ensure that businesses put in place a health and safety regime.I am very pleased to acknowledge the work for example of the Independent Taskforce on Workplace Health and Safety which is headed by Rob Jager and represents workers right across the work spectrum—in unions as well as in high-hazard industries—which looked at a whole number and raft of measures that are incorporated in this bill. The balanced framework—because this is what this bill starts talking about a balanced framework—is a framework that is workable for New Zealanders and for New Zealand businesses. You know it is not selling out. It is not going weak at the knees but it is having a regime having legislation and having a framework of law that people can understand that they can work with that they can apply to their workplaces and that is not tick the box but encourages a whole culture change.It is not only the employers and the managers but also the workers who have a part to play. It is not just the worker representative—and I am not saying that that person is not important in the mix of things—but it is saying that every single worker has a part to play and this is the culture change that we need. This is where everybody thinks: “What is needed to keep myself safe and my workmates safe? What is it that is needed in this surrounding this situation with this industry that I am working in?”. That is what we want to encourage and that is very central to what this bill is about because it is about engagement and it is about effective participation. None of that has ever been changed. It is at the nub the very essence of this bill.I believe that when we look at this balanced framework we have got to acknowledge that there are industries that are high risk and there are industries that are not. It is not one-size-fits-all; it is what fits for that industry to make it safe for its workers and for people who come into that workplace. It is important for us to get it right.All that we have heard from the Opposition is that it is one-size-fits-all and we know that it is not. By and large we have worked I think quite constructively. There are obviously some differences but from our side I believe that we have come to a good place and I am happy to defend that position. Thank you.CHRIS HIPKINS (Labour—Rimutaka): Thank you very much Mr Chairperson for giving me this opportunity to speak for the first time on the Health and Safety Reform Bill. Can I begin by acknowledging all those who have lost loved ones in the workplace through workplace-related injuries. Can I also acknowledge all of those who have had their lives altered by injuries in the workplace and acknowledge that there are many many people who are injured in the workplace every year. The impact of those injuries goes on for some time—often long after the physical manifestations of those injuries have well healed—and I want to acknowledge all of that.I want to talk first of all about the purpose of the bill and the principles behind it and then I have got quite a few technical issues that I want to raise with the Minister for Workplace Relations and Safety to see whether we can get some answers on those. The first part of the bill that I want to talk about is under the purpose clause clause 3(1)(g) which basically states that the bill aims to provide “a framework for continuous improvement and progressively higher standards of work health and safety.” I have been visiting a number of firms in my electorate asking them about this and it would be fair to say it has certainly got businesses talking this particular debate. It has got them considering the implications of this legislation for their workplaces. I have actually been surprised by the level to which those firms are already engaging in the detail and are already preparing for this bill to be implemented. Some of the concerns that they have are not some of the ones that I might have necessarily anticipated.I visited for example an engineering firm that employs more than the 20 people mentioned. It is concerned that if the small business exemption goes through that many of its competitors—people it is competing with for contracts—are not going to be subject to this bill but it is. So its concern for example was what happens if a firm simply separates itself into a number of different firms under one umbrella in order to get around this bill. It could find itself competing with that firm and therefore it is subject to a higher standard than some of the people it is competing with.It is concerned about that and I think that is a legitimate concern so I am interested in hearing from the Minister how it will be that that will be avoided—how that kind of behaviour from firms will be avoided. It seems to me that if a firm is able to set up say a new firm—a subsidiary company for each new contract that it gets—and employs fewer than 20 employees within each of those subsidiary companies and therefore is able to get around the provisions of the bill then I think that really starts to question quite fundamentally whether this is going to achieve the goal that is set out quite clearly there in clause 3(1)(g).The second point that I want to raise is around clause 3(1)(d): “promoting the provision of advice information education and training in relation to work health and safety;”.Hon Michael Woodhouse: Which clause?CHRIS HIPKINS: Sorry where was I; clause 3(1)(d) around the promotion of advice information and so on. The feedback again that I have had from businesses in my electorate is that they want to comply with health and safety they want to provide good safe workplaces and in many cases they are going out of their way to do so.One of the firms that I visited for example had just spent $25000 getting people to come in and audit its work practices so that it can actually get a good report on whether it is doing things well. What it is concerned about is that it cannot get straight answers as to whether or not what it is doing is going to be compliant and whether in fact it is meeting the standard for making best endeavours and all of those sorts of things to ensure that it is providing a safe workplace. So I guess the question for the Minister is what leadership the Government will play in that regard through WorkSafe ACC and others and saying to employers “Yes you are actually doing the right thing.” or “No you need to shape up.” because those employers do want to comply with the bill and at the moment they are not sure that they are necessarily going to be able to and I think that is certainly is something that they would like to have answers for.I want to turn then to clause 6 which is “Application of Act to Armed Forces”. There is an exemption here for those who are on operational service within the New Zealand military. I can certainly understand that you know you are putting troops into harm’s wayin the military for example and so to some extent there are going to be health and safety risks in that. That is inherent in being involved in military service. However there are other examples that I would like to tease out more where this may create some strange behaviour.The question that I particularly have is around for example a disaster domestically within New Zealand. So if you take say the Canterbury earthquake where the military may be deployed on operational service as a result of a disaster here at home would this exemption apply there and what would the justification for applying that exemption be in that circumstance? It seems to me that you could have something like the Fire Service or the police—other forces that are operational in those things—that would have to comply with the bill and then you could end up with the military not having to comply with the bill. I would like to know a little bit more from the Minister about how that might come into being and what might happen around that.Clause 7 “Application of Act to aircraft in operation”—I worked through this one carefully and tried to get my head around what it actually means. The example that I am interested in here is aircrafts that start their operation in New Zealand but may have a continuous flight that stops off along the way. There may be two long-haul flights for example. They start in say Auckland and travel long haul to somewhere they often have a change of crew and then travel on to another destination.My reading of that clause would be that if the crew is still employed by the same employer even if the crew is domestically resident somewhere else would it be covered by this? I would expect that yes it would be covered by this but I would be concerned that there may be ways of an air operator getting around that so I would just like some clarification from the Minister on that particular part of the bill. It seems to me that if you have got a New Zealand airline—and we now have more of those operating here domestically in New Zealand than we have had previously which is a good thing—what we would want to avoid is it getting halfway through a journey and then being able to opt out of the health and safety law because it is changing crews and potentially even changing the part of the airline that is operating the aircraft at that time. So I would like to get some further clarification from the Minister on that particular one.I then move to clause 11 which basically states that this bill will not apply to “a prisoner who is carrying out work inside a prison.” I would like to hear the justification for that because again we come back to the issue where if you have got a firm that is based in a prison and is using the prison workforce—which is something that I personally believe in because I believe in having prisoners being provided with employment opportunities and upskilling opportunities through work in prison—whoever is operating that worksite may be competing to get business with a firm from outside that is not operating with a prison workforce. So why would you have the health and safety rules apply to the firm outside but not to the firm inside the wire—inside the prison?Why would you say to a prisoner who is doing exactly the same job as somebody working in the same role outside prison that they have less of a right to health and safety than somebody working outside the prison? So I would be very interested to hear the justification for that clause 11 and why it is that the Government thinks that prisoners should be exempt from this legislation when they are doing a job that is equivalent to exactly the same job that someone outside prison is doing. I do not think that there is any justification for that and I would be very very interested to hear from the Government as to whether in fact there is justification or whether this is perhaps an unintended part of this bill.Those are my first questions. I am looking forward in due course to getting some replies from the Minister to those. I have got others which I am sure we will get to as the debate progresses.CATHERINE DELAHUNTY (Green): Tēnā koe Mr Chair. Tēnā koutou e te Whare Pāremata and also greetings to all who have experienced the reality of workplace un-safety. I would just like to acknowledge the people who spoke in Parliament last night about their experiences. Bernie Monk said to me: “We didn’t want memorials and tears; we wanted action.” and those words are ringing in my ears. He said that he had said this to the Prime Minister of New Zealand and he has not had it so it was a very powerful moment for me personally to hear that directly from Bernie. I would also like to acknowledge my friend—he is one of the reasons I came to Parliament—Mr Joe Harawira who is also in Parliament at the moment. He along with his many many colleagues from around Aotearoa has had incredible experience of workplace lack of safety and he is still fighting—and I am not convinced that Part 1 of the Health and Safety Reform Bill will address this—for ACC recognition of his being poisoned in the workplace. So these people have had an amazing experience. I toured the country with them on a tour called the People Poisoned Daily Tour in the early 2000s and they got a designated doctor whom they have since lost because the Government is no longer funding that. So I just want to mihi to Joe Harawira today and say that many of us will keep fighting for the fact that workplace safety is not just about large workplaces and not just about current issues; it is also about historical unfinished business.It is not just about the obvious dangers. There are many forms of health and safety that people are unaware of in what might appear on the surface to be safe workplaces. If you are talking about farms if you are talking about forestry and if you are talking about the timber industry and the mills people suffer not only from terrible accidents and from the refusal of the employer to understand those very obvious risks but also because they do not always understand the chemicals they are dealing with. That is what happened to Joe and that is what happened to his many many friends and family because the chemical that they were exposed to has intergenerational effects. It has the effect of impacting on the worker their partner and their kids intergenerationally. I have seen cases of people with holes in their heart and the lists of miscarriages and the terrible cancers and the diabetes that come when workplaces do not take safety seriously. I am not convinced yet that this “Tolstoyan novel” that we have before us is actually going to address what has happened to the sawmill workers of the Bay of Plenty and of Aotearoa. I am not satisfied yet and neither can they be.I want to go to Part 1 and in clause 3 “Purpose” subclause (1)(a) states: “protecting workers and other persons against harm to their health safety and welfare by eliminating or minimising risks arising from work”—that presumably means everybody—“or from prescribed high-risk plant;” which is obviously going to be debated later. “Work” does not exclude workers in the home. “Work” does not mean not in all forms of agriculture. “Work” does not exclude prisoners. “Work” means work and a worker is someone who is doing the work not somebody whom you decide is not actually entitled to protection because they do not fit into a category—it is about when people are working. So I am at a loss to see how anybody could be excluded from this. This is not about one size fits all—that is an incredibly disrespectful way to talk about everybody’s right to be included in health and safety legislation. I cannot think of anybody in any circumstance at work who should not be protected. A small workplace of fewer than 20 on the farm or off the farm a large timber mill a small site—everybody is at work. Prisoners work. Everybody works and this bill does not protect them because you cannot fulfil clause 3(1)(a) without making a better job of clause 3(1)(b).Clause 3(1)(b) states: “providing for fair and effective workplace representation consultation co-operation and resolution of issues …” but that cannot be achieved if workers cannot select a health and safety committee their own representative and all of the other things that go with that. The whole reason that we had the Pike River disaster was that Peter Whittall would not listen to the workers. It was not a bunch of workers refusing to put on their safety gear; it was methane every day day after day—methane methane no ladder methane. There was a room full of complaints. Read Rebecca Macfie’s book—read the book. Those workers complained every single day that they were at risk and what happened? A big fat nothing and they died—a big fat nothing and they died. And what is happening to the sawmill workers is a slow creeping death and I am not exaggerating. You talk to them and find out whether I am exaggerating. It is a slow creeping death because they still cannot get recognition of the danger of the chemical to which they were exposed even though it was banned in 1980. So we have got a lot of work to do and this bill unfortunately for all its merits—for which we have tried to support it—does not fully do that work. It actually excludes some critical issues particularly the issue of protecting workers.I was at the Transport and Industrial Relations Committee one day—and I do not claim to have anything like the knowledge of those of you who went right through this particularly my colleague Denise Roche but I was there—when somebody on the select committee said: “Oh do we have to use the word ‘worker’?”. I found that very revealing. I think it symbolised for me the problem. The ideological problem of the Government is that it does not understand that participation is not equity. Participation is not justice. Calling everybody the same thing will not result in protection from tragedies like Pike River. If you are a forestry worker on the Napier-Taupō road you are the one at risk—not your boss not the contractor not the shareholder. The reality in the workplace is that the most effective way to achieve health and safety is to empower the workers so that they can actually get their issues through collectively so that they can be heard as issues of mutual responsibility because of course it is about mutual responsibility but you cannot achieve that with power inequity.Jonathan Young: A workplace of two people?CATHERINE DELAHUNTY: Two people of unequal power Mr Young and that is the word that no one wants to talk about. I have been a worker and I have been an employer and I know the feeling—I know it because I am an employer right now in this House of an executive assistant. I have more power than my worker and therefore there have to be checks and balances. This is not balanced if the health and safety legislation does not allow for the health and safety committee. We absolutely need the workers to be able to identify the risks as well as the good employers who already want to do that.We cannot sit by after what has happened in this country what we have seen these people go through—the people who came to testify yesterday. We cannot sit by and say: “Hey we’re all in this together now. We’ve had the experience of Pike River and the forestry deaths and the sawmill workers are still dying of the poison but actually we are all just going to be good now because we have got a bill that says it is all about everybody.” I do not think those people who experienced this—the sawmill workers who fought for more than 20 years to get basic justice for what has happened to them and their families—are particularly romantic about legislation. They are not romantic about Parliament. They are not romantic about participation. What they want is justice and justice requires the law to regulate to create power equity. If we are not prepared to do that we should just say so. Call it something else but it is not comprehensive health and safety; it is health and safety based on the idea of cooperation when there is a power imbalance.I know that there are many many details in the bill and there are many alleged checks and balances but there is not going to be safety for the people I came to Parliament to represent if we do not improve this bill—and today is the last day. Denise Roche and others have put up Supplementary Order Papers; Iain Lees-Galloway has put up Supplementary Order Papers. The Government has put up Supplementary Order Papers but our analysis is they are not really changing things profoundly; they are basically continuing business-as-usual. Tweaks are not what it is needed. What we are looking for is to hear that shift in the consciousness and heart of the Government. We are waiting for that shift that “Aha!” moment where Government members get that it is about equity and that safety comes from making sure that power is balanced—not that balance is balanced; this is not a circus act. This is about balancing power and then we will get safety. And then we would be delighted to support all the other positive things in that bill. We would be delighted to but until such time as that is there we cannot.We are very disappointed because we were hoping the work overnight by the Māori Party on the Supplementary Order Papers would result in changing some of the fundamentals. The families last night talked about coming here for justice. Their stories are simple and painful and cannot be minimised and cannot be overlooked. So we will keep standing up for that until the last minute of this bill because nobody should go to work and experience the risk of this kind of creeping—or immediate—health and safety destruction. I urge people to go to talk to Joe Harawira.Hon MICHAEL WOODHOUSE (Minister for Workplace Relations and Safety): I want to thank all members who have spoken so far on Part 1 of the bill. We are now diving into the detail. There are about half a dozen questions that have been asked in respect of specific clauses in the bill and I would like to address them in order starting with clause 28 as raised by Mr Mitchell.Clause 28 is something that he did discuss in his second reading speech if I recall. I am not likely to change his mind on whether or not the bill should be amended but I will say that the bill is framed in a way that prevents the risk that a worker however careless in forgetting or damaging or destroying personal protective equipment is then put in a situation where he or she has to make a decision about whether to be levied or do without. That is not a situation I think that anyone in this Committee would agree is satisfactory. The remedies that are available to the business are around firstly the disciplinary and performance management processes that are available under the Employment Relations Act. It could potentially with the agreement of the worker involve some kind of deduction from wages for negligence or gross negligence but it should never result in the withholding of or the failure of the employer or the employee to replace personal protective equipment that is required to keep an employee safe.In respect of clause 29AA “Insurance against fines unlawful” this is a longstanding convention. It is in the existing law as I understand it and actually exists in other parts of commercial law where it is not appropriate or lawful to contract out of obligations in law. An employer as I understand it can insure against the costs of litigation. So if the regulator takes a prosecution against a person conducting a business or undertaking (PCBU) for failure to take practicable steps to keep one safe it is as I understand it quite lawful to insure against the costs of that prosecution. But if a fine is levied by the courts it is not lawful and indeed it would be set aside and fined for an employer to insure against the fine that would be imposed. The reason is quite obvious: that simply takes away any of the skin in the game that a PCBU would have for their failure to take practicable steps.I want to move on to the three things that were raised by Mr Hipkins starting with clause 3(1)(d). He raises I think matters not only of law but of practice and I want to start with the guidance that he thinks should be appropriate. I agree and so did the Independent Taskforce on Workplace Health and Safety. I am going to go a little more into what the task force said about this in Part 3 when we talk about worker participation but the task force recommended that consistent with modern regulatory practice the new agency that is now WorkSafe New Zealand should have a wide range of functions specified and those functions should include monitoring the system and providing rules “ACoPs” or approved codes of practice and guidance to provide certainty and promote and support education and advice. As a country of small business that is going to be a very important component of the work that WorkSafe New Zealand is already doing and will continue to do when the law is passed.I was fascinated at the issue of a small business that had been told by an auditor to spend tens of thousands of dollars on an audit to comply with new legislation. I am concerned that some health and safety consultants are generating a climate of fear in order to create business. I had a meeting in Sarah Dowie’s electorate in Invercargill at the start of the year a very good meeting with the Southland Chamber of Commerce and the first question I was asked—he was a farmer—was: “Minister I’ve been told by my health and safety consultant that I have to spend $10000 on an audit to comply with the new legislation. I’ve got to do all these things and fill in all these forms. What do you have to say about that?”. I said quite simply: “Get another health and safety consultant or go and do it yourself. Use the guidance notes and the approved codes of practice that WorkSafe has and the Safer Farms documentation that is available right now because that should be sufficient.” This bill when passed does not constitute a great melee of red tape in which small businesses will be wrapped. I have to finish by saying that actually good health and safety consultants have a very important part to play in this environment but I think we need to be a bit careful of snake oil sales reps.As to the other matters raised by Mr Hipkins I want to talk just a little bit about clause 6 because I have in my Supplementary Order Paper 108 made some changes to the way the Act applies to the armed forces. It does go some way actually to addressing the question Mr Hipkins has raised about “operational service”. Presently “operational service” is a nomenclature if you like that has an application triggering other things not the least of which is potentially veteran support and so on. Often we are finding ourselves in the situation where Defence Force personnel are deployed into situations that might not formally constitute operational service but clearly are offshore or potentially puts them in harm’s way. So the Supplementary Order Paper will broaden that definition and define it actually as what we will now call “operational activity”. That operational activity will specifically define pre-deployment training so that say army personnel before they went to Taji would have been in Waiōuru probably training for a few weeks before they left in a live situation or as close to the situation that they would face when they got to Taji. Although the Defence Force has its own responsibilities to keep its personnel safe it is appropriate that that can be exempt from this legislation as well.The Canterbury earthquakes example I think is a very good one. The Chief of Defence Force will now have the opportunity to declare operational activity even domestically and therefore be outside the grounds of this bill. Mr Hipkins raised the question about how that works when they are lining up beside the Fire Service the ambulance service and the New Zealand Police. Indeed that is a fair question but the key to this is practicable steps—taking practicable steps. We know that those emergency services civil defence personnel and others are putting themselves in harm’s way from time to time and that it is a balanced response that reflects that risk environment.The last thing Mr Hipkins raised around clause 11 was why prisoners are exempt. Well they are not exempt from the coverage of the bill. They are exempt from Part 3 of the bill under clause 11 which is around worker participation. They have an obligation to keep themselves and others safe and the employer in that situation or the PCBU in that situation must provide them with all of the protections and education and personal protective equipment that is required. But they will not have a health and safety rating system actually. That is what clause 11 says.The last thing which was raised by Ms Roche and Catherine Delahunty is around domestic workers. It was portrayed in the intervention that this is somehow the lack of protection either for domestic workers or for the people whom they serve but the exemption is a very practical one. One could have the situation where an ACC claimant or a frail elderly person who is being washed and dressed every morning as part of their care at home could potentially be a PCBU under the definitions and actually have responsibilities that I do not think are appropriate for them to have. So clause 13 the definition of a PCBU specifically exempts them and I think that is a protection.Others delivering services like that as Mr Hague would definitely know are subject to other obligations under the Code of Health and Disability Consumers’ Rights and the workers themselves have obligations and protections. But I do not think it is appropriate for those people in that situation to have the onerous obligations of this bill.The CHAIRPERSON (Lindsay Tisch): Just before we carry on the speeches to date have been quite wide ranging. The scene was set earlier by the Minister and that was fine. There have been many generalities. I would ask now for members to come back specifically to the clauses in Part 1 so that we can now get into the real substance of what Part 1 is about. I am going to call the Hon Damien O’Connor.Hon DAMIEN O’CONNOR (Labour—West Coast - Tasman): I guess it is a responsibility not an honour to speak on Part 1 of this bill. I would like to go back and I appreciate your advice Mr Chair. I want to keep to Part 1 of the bill. It is around the reasons for the whole development of this bill and the issue I guess of small or large workplaces. Obviously they are defined in Part 1 as the armed forces intelligence and security agencies and aircraft—all places that are generally quite large places with quite a number of workers. Can I just go back to what has been the driver of this bill and it has been mentioned on occasion of course. Pike River Coal a large workplace has been seen as the primary driver—the place of a shocking disaster that gave rise to a new awareness around health and safety.I have to go back a couple of years from that to a small workplace to one where there was a maximum of six employees and indeed only two workers in a mine. An accident occurred and one of the workers Robert McGowan was killed. I raise this because I do not think his name or the agony that his wife has had to go through over those years has been mentioned. I can remember as if it were yesterday his wife coming up to me in the street in Greymouth on the day after the Pike River disaster and saying to me: “I told you so—I told you so.”What had happened as a result of that terrible accident in a small workplace in a mine—a small high-hazard workplace like a farm I guess—was that Robert McGowan had lost his life. An investigation was carried out and indeed there were queries of the mining industry. The conclusion of the Department of Labour’s investigation was that it was only the small workplaces that were risky and the larger workplaces were indeed well run well regimented and had everything in place. But incidents like that and I have to say subsequent ones in areas other than mining but in high-risk places have often been in small environments and small workplaces where people have suffered terrible tragedies.Part 1 covers health and safety at work. I guess I am trying to define workplaces and exclusive economic zones and in keeping in line with the tight nature of our debate I welcome the opportunity to expand on that later on. I think the definitions are in areas that we in Labour are challenging. The compromise that the Minister—not the compromise; he does not say that. The Government does not say that; we say that. The balance I guess that the Government has claimed as being achieved through changing the definitions in the bill in our view is very very dangerous and will inevitably lead to fatalities.I hold before you a book Tragedy at Pike River Mine: How and why 29 men died which I am just starting to read. It has been out for a little while. It has in here quotes from Hansard. It has quotes from debates in this House. I say to members in this House that as we go through this piece of legislation be very careful of what you say. Be very careful of what you say because people will read what we have said in this House. If we have been obviously compromised in our thinking and in our advocacy then the public in the future will have every right to come back and say to us as MPs that we were irresponsible.Some things are obvious. Some things need to be carried through in Parliament. For whatever reason—political expediency wheeling and dealing negotiation balance; call it what you like—if we proceed with Part 1 or Part 2 or Part 3 or whatever of this piece of legislation and it does not provide proper protection by way of legislation we cannot hold the hand of every worker in every workplace in the country. We understand that. But legislation has to be comprehensive enough to try to protect often the minority of people who do not have the skills have not been given the training or do not have the awareness. Those are the people—CLAYTON MITCHELL (NZ First): I do appreciate the call yet again in this marathon debate that we are having. I do also acknowledge and very much appreciate the words of the honourable Minister because it is great that we have got this engagement this opportunity. I hear his discussion with regard to clause 28 not levying workers. I really would like you to reconsider that Minister. Let me just give you two examples of how this modification in clause 28 will have a positive impact on businesses around the country.When I was around talking to the meat workers we had a chance to have a serious conversation with regard to senior management and the new definition of a person conducting a business or undertaking (PCBU) as they would be under this new legislation. They employ some 300-odd workers in this place yet they find that at least 30 percent—30 percent—of their workers on a daily basis come in because they have left their safety goggles at home: “Oh goodness me! I’ve left them at home.” So they get handed another pair. They say: “Oh goodness me! I’ve left my hard hat at home and my high-vis jacket.” So they give them another one. They have got stocks and stocks and stocks of this stuff because they go out like cannon fodder to their employees.The point is that the employer is not going to send the worker home and say “Sorry you can’t work today until you go and get your other one back.” because of course that is going to slow down production. So they hand them over another pair of glasses at $15. If there was a levy that could be placed on that worker to say “Look I’m going to give you that. I’m going to take you down for $15 for a pair of safety goggles. Make sure you bring them back tomorrow or replace your other ones.”—that is the sort of simple practicality that this legislation will allow.You talked about not being able to levy these workers or charge them but consider a different scenario a not-so-practical scenario where we have got a workplace where there is a tree-felling gang going around and clear felling a section. If the lumberjack forgets his chaps and his hard hat and safety goggles there is clearly not a resource or a four-wheel drive that hosts all the gear that they need. They simply cannot go to work that day. So what we are saying is that it is not a matter of the worker not being able to work; in a situation like that they cannot come to work. It is unsafe and no worker—or no employee or employer PCBU or worker—will allow themselves to get themselves into a situation where that would happen.So practically we are just simply saying that in the event of staff members showing up regularly—ridiculously—without their personal protective equipment we as employers should be able to sensibly say: “I’m going to charge you for that and bring it back in tomorrow.” Any employer where you have got a staff uniform required that might not be personal protective equipment you would surely say to that staff member: “You haven’t got your shirt on today. Here’s another one. Either bring it back washed and cleaned and ready tomorrow or we’re going to charge you for your staff uniform.” It is the same thing and any worker and any employer has the ability to do that with a uniform yet this is part of a uniform and you are unable to do it.I think the Government is missing the point. It is a simple common-sense practical solution to a problem that has just been transferred into something else and we would love to see the Government support that because it would make a huge difference to the businesses that are forking out millions of dollars on personal protective equipment with absolutely no recourse for staff because there is no comeback on it.I would also like to bring your attention to your response—and I acknowledge that; I think it is fantastic—around not being able to put insurance against fines or for anything unlawful. Insuring yourself I think is quite important. One of the things that this bill may have an effect on an unintended consequence if you will is around people seconding themselves to boards. In a council-controlled organisation where you have got councillors who are obviously protected under this legislation from having any legality of onerous—as soon as they get seconded on to a council-controlled organisation they all of a sudden become legally culpable for any mishaps in that workplace. Let us be honest. Some of these council-controlled organisations that are around the country operating in Auckland Tauranga Rotorua and Wellington even are quite large and quite onerous. You are going to have a push back from the communities of people who want to take on that responsibility because there are going to be some very far-reaching obligations for them legally morally and so on. The ability for that person on the board to not be able to insure themselves I find a little bit absurd. Just to finish off on this clause which covers off a lot of what I have got to say too—GRANT ROBERTSON (Labour—Wellington Central): I too as other colleagues have said am honoured and feel a sense of responsibility in taking my first call in this debate on Part 1 of the Health and Safety Reform Bill. In this call I want to cover off three main things. I want to cover off clause 3(1)(b) and also clause 3(1)(d) and then talk specifically also—if I do not do it in this call then in a subsequent call—to Iain Lees-Galloway’s Supplementary Order Paper 100 and particularly the amendment to clauses 13A and 13B.The reason I want to start on the purpose clause—clause 3 and then in specific detail clause 3(1)(b)—is that in many ways this is the tragedy of this bill. When you read the purpose clause I think that most New Zealanders would look at that clause and say that that is what we want. That is exactly what we want in terms of protecting the health and safety of our workers. It is why the bill was supported across the House in its earlier stages. As you work through clause 3(1) the notion of “(a) protecting workers and other persons against harm to their health safety and welfare by eliminating or minimising risks”—that is what people want—“arising from work or from prescribed high-risk plant;” I will return to this point in a minute. But clause 3(1)(b) particularly which is “providing for fair and effective workplace representation consultation co-operation and resolution of issues in relation to work health and safety;” is exactly what people wanted in response to the tragedy of Pike River. That is exactly what people wanted in response to the huge death toll that we saw in industries like forestry. That is what was required in terms of a return from the tragic consequences of deregulation in health and safety.Standing up here today I do not want to make this about a party political statistic because I do think there was a genuine desire in the establishment of the working groups and the expert groups that went into this legislation to give meaning to clause 3. I think that is what people intended. There was a shared understanding across different Governments that the deregulation around health and safety had gone too far. That was a shared responsibility in this Parliament and the process that went into establishing the purpose of this bill under clause 3 was a good process because it took all of us back to what the purpose of health and safety law should be. That includes those core elements of clause 3: the principal elements of the protection of workers; the ability to provide for effective representation; and the ability for good quality advice information education and training to be available.They are the core bedrocks and what disappoints me so much in taking this call is that as we work our way through Part 1 we begin to see the undermining of that purpose clause. I think the majority of employers strongly support the notion of robust health and safety legislation. We know that. It happened as this was developed. Large employer groups are coming forward and saying: “We support this. We support clause 3(1)(b) because we do need more effective worker representation.” That is why it is so disappointing that when we fast-forward in this to clause 13 we start to see the unravelling of what we want here.So clause 13 in terms of the meaning of a person conducting a business or undertaking (PCBU) is a good and positive development. It is a clearer clause to describe something that did not really work in terms of talking about an employer. It did not really give a full meaning of what that is. Saying that a PCBU is a person conducting a business alone or with others whether it is for profit or not is important. It has given us a nice broad definition. But then in clause 13A we start to see the unravelling of that by the narrowness of the definition around the meaning of an officer. Iain Lees-Galloway’s Supplementary Order Paper 100 goes straight to this.The bill tells us that officers can be held responsible for health and safety practices including those with overall management responsibility but it critically leaves out those who have management responsibilities specifically for health and safety. It is my view and the Minister may choose to take a call on this that when you read clause 13A as it currently stands—and obviously subclause (a)(i) covers off the position of a director—as you read through I think that the only people who are going to fall under this are effectively chief executive officers of the company or those at that level.Hon Michael Woodhouse: Directors.GRANT ROBERTSON: I did say that—I said directors and chief executive officers. What it does not do is capture what I suggest would be the situation in a large number of firms where the officer is in fact somebody else. You see this in a range of firms. It might actually be a chief operating officer in some firms who actually within their ambit covers health and safety. In some firms—in good firms—it is often somebody with a senior role in health and safety. We are starting to see more of that in firms that are taking this seriously.We should be encouraging that. We should actually be saying that we want the definition of “officer” in clause 13A to be a positive thing—that we want to encourage companies that have those sorts of positions to be developed. Ultimately if we do not do that and if we leave the definition as it is today I think we will actually fail the purpose clause of the bill.If we go back to clause 3 what we see there is that we are failing clause 3(1)(a) because what we are not doing is providing an adequate definition to minimise and eliminate risk. What we are certainly not doing is dealing with clause 3(1)(b) in terms of fair and effective representation consultation and cooperation. We will not get the level of cooperation that we need in order to ensure the high standards of health and safety that I do believe members around this Chamber want if we narrow down within the definition of a PCBU whom we regard as an officer.As I said this is really the beginning of the unravelling and we will come to this a little more when we look at the definition of high-risk industries and when we look at how we decide whether or not an organisation requires workplace health and safety representatives but fundamentally it starts to unravel here. It is certainly my view in terms of clause 3(1)(c)—I do want to come back to that—“encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices and assisting PCBUs and workers to achieve a healthier and safer working environment”.Every piece of literature that you will now read about what makes for a successful workplace will tell you that it is built on engagement between employers and workers. If you look at an organisation like Air New Zealand which has had huge problems in the past in terms of the way its industrial relations and health and safety has worked it is now on a new path because it has taken a different approach to this. It has actually adopted the words of clause 3(1)(c) in part in the charter that it is now working towards. That is how you get good quality health and safety. You do not get good quality health and safety by saying it is simply the responsibility of the director or the chief executive officer. The risk of clause 13A as it currently reads is that it effectively creates that tier and only that tier of people who have the responsibility.If we want high-functioning workplaces that minimise and eliminate the risks that arise from work we will get that only when we start to understand the different roles of people within an organisation. That means both the workers and also in this case—I would say the employer but I will use the terminology in the bill—thePCBU.So I am calling upon all parties to support Iain Lees-Galloway’s Supplementary Order Paper 100—in fact all of the elements of Supplementary Order Paper 100; but under this part the replacement of clause 13A. The specific amendment he wants to make is that in clause 13A(b) he wants to insert a new paragraph (ba) so it says: “includes any person occupying a position in relation to the business or undertaking that allows the person to exercise significant influence over the health and safety practices of the businesses or undertaking;”. That means moving it beyond a director and beyond a chief executive officer to the people who will actually provide the responsibility for health and safety.JAMI-LEE ROSS (Junior Whip—National): I move That the question be now put.KRIS FAAFOI (Labour—Mana): It is a pleasure to take a call on Part 1 of the Health and Safety Reform Bill. Can I thank the Minister in the chair Michael Woodhouse for answering a number of questions that were posed to him from this side of the Chamber. There was one question that Chris Hipkins posed that the Minister may have forgotten or did not address in his earlier statement and that I am certainly interested in too and that is where businesses are of a size whereby they may or may not be caught—where they have either under 20 or over 20 employees.There is concern I guess—and I have had it from one business owner—as to whether they may or may not be caught and that other business units that may be of a size of say 32 employees may break into two separate business units so they are not caught by this legislation. It is something that I have certainly spoken to one business in the building and construction sector about. That local business takes health and safety very seriously and wants to make sure that it adheres to any health and safety regulations but it also wants to make sure that any other business that is competing with it cannot necessarily game the system by separating into two business units so they are not caught by this legislation.I guess that if there is any safeguard or response that the Government may have then I would certainly be interested in hearing from the Minister on that. I think Chris Hipkins brought that up as part of clause 3(1)(d) and so if the Minister does have a response to that it would be very useful.I also want to move us to a different clause clause 17 and that is the meaning of what is reasonable and practicable. I guess this is what you would expect under this piece of legislation that a good employer or a good workplace would do to take measures to mitigate any risks especially in high-risk units for workplaces in order to prevent any injury or harm to their employees. Clause 17 talks about the availability and suitability of ways to eliminate or minimise the risk and 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 the risk.I think this is a pretty key piece of this legislation because for those firms that have not done this kind of work there have been in many cases deaths and injuries in their workplaces. I do want to acknowledge the family of Mark Samoa who was a worker at CentrePort on the waterfront here in Wellington who was killed at his workplacein January 2013. When the High Court made its decision in the prosecution of CentrePort for his death it said that CentrePort had failed to have a procedure for the interaction between the pedestrians and the forklift that dropped the bales I believe that crushed Mr Samoa at his workplace. The judge found that because CentrePort failed to have such a procedure for this work it also failed to train supervise implement monitor and communicate the procedureto its staff.I believe that this piece of legislation does give more safeguards to workers. It does put the onus on employers to make sure that this kind of thing does not happen again. But as has been said by many people on this side of the Chamber we believe that that right should be available to all workers—not just to workers in a business unit of a certain size but to all workers—regardless of whether they work for a company that has a staff of under 20 or over 20. I think this is something that the families of those victims seriously want to have looked at. There was a very frank comment from Rhonda Samoa the sister of Mark Samoa. When the verdict was given in that High Court case she said: “I know human error was involved here but there were not enough measures in place to protect against that.”She went on to say: “Unfortunately it’s taken [a court case] to give [CentrePort] a good [kick] up the arse.”On this side of the Chamber we are asking that the Government seriously think about this so that we do not have to have another High Court case and that we do not have to have more deaths and that businesses such as CentrePort in this case get the kick up the arse that Rhonda Samoa suggested that that company needed just to keep her brother safe in his workplace.Clause 17 talks about the kinds of protections and reasonable steps that a company should take—JAMI-LEE ROSS (Junior Whip—National): I move That the question be now put.The CHAIRPERSON (Lindsay Tisch): Yes we have had fair coverage of Part 1 so the question is that the question be now put.Sue Moroney: Oh point of order—The CHAIRPERSON (Lindsay Tisch): No I am ruling. The question is that the question be now put—Sue Moroney: Point of order—The CHAIRPERSON (Lindsay Tisch): The Committee makes the decision as to whether it accepts it or not. It is in your hands. So the question is that the question be now put.A party vote was called for on the question That the question be now put.Ayes 63New Zealand National 59; Māori Party 2; ACT New Zealand 1; United Future 1.Noes 58New Zealand Labour 32; Green Party 14; New Zealand First 12.Motion agreed to.SUE MORONEY (Labour): I raise a point of order Mr Chairperson. I want to raise a point of order about your ruling to accept the closure motion when there were a number of speakers who had not taken a call on Part 1.The CHAIRPERSON (Lindsay Tisch): The member will sit. I have listened for the last hour. The previous presiding officer listened for 55 minutes. We have had 23 calls in that time. The member herself has had calls. I have listened intently to the debate. It was a decision of the Committee as a whole to vote on a closure motion. I put that to the Committee and the Committee has decided. So we are now moving through the process.Sue Moroney: Point of order—The CHAIRPERSON (Lindsay Tisch): No I have ruled on it. If you are relitigating my ruling that is a very serious matter. Is this a new point of order?SUE MORONEY (Labour): I move That the Speaker be recalled to give a ruling on this matter.Motion agreed to.House resumed.Speaker RecalledThe CHAIRPERSON (Lindsay Tisch): Mr Speaker you have been recalled by a member of the Opposition on the basis that I accepted a closure motion when there were other speakers who wished to be heard. The Committee made the decision to accept the closure motion; I only put it. The Committee as a whole makes that decision not the presiding officer or the Chairperson at the time.On Part 1 we have had 23 calls. It has been quite a wide-ranging debate and in fact after 1 hour and 10 minutes I made it clear that we should then move back to the specifics of the clauses in Part 1. I noted at that stage that the speeches up until that stage had set the scene and that was fair because the Minister for Workplace Relations and Safety had done so in his opening comments. It had been a general discussion of workplace safety and that was accepted and I accepted that as well. But following that when I made the decision then to focus on the quite narrow context of Part 1 we allowed that debate then to continue.Up until the first closure motion every member who wanted a call had received a call because I have a list. It was only when the closure motion was actually moved by a Government member that other members decided to go for the call. In my notes here every member who wanted a call up until the first closure motion actually had received a call. So on that basis I believed there to have been fair and wide-ranging comments. They had been done in good humour and they had canvassed the points of Part 1. I was prepared to put the motion and of course the Committee decided to accept the closure motion. Subsequent to that of course you have been recalled.SUE MORONEY (Labour): Mr Speaker I did ask that you be recalled. I felt that for the reasons I am about to set out the Chair’s decision to accept a closure motion was premature. At the time we had six Labour members on their feet seeking the call when the closure motion was taken some of whom had not spoken on Part 1 yet. I was amongst those. Yes I have spoken on Part 1 and as the acting spokesperson I would expect to have a good opportunity to speak on Part 1 of the bill which does include the purpose clause of a very dense bill—a bill that is very complex.The acceptance of a closure motion is about the content of the part and Part 1 is an extensive part. There are many parts that have yet to be debated. The member Kris Faafoi who was on his feet immediately prior to the closure motion being accepted was debating clause 17 which had not been raised before by any other speaker. At the outset of this debate we had been given an undertaking by the Chair that if there were reasonable questions being asked of the Minister the Chair would ensure that closure motions were not accepted in order to allow those questions to be answered by the Minister. My colleague Kris Faafoi in his contribution did in fact ask for a question that had been asked earlier in the debate but that he felt had not been responded to to be addressed by the Minister and we would like to have that opportunity.I would also like to note that we have heard from Denise Roche from the Green Party who has put forward amendments on this part. She has had the opportunity to take one call. In that one call she indicated that she wanted to speak further to one of her amendments and she did not get the opportunity to do so.I would like to point out that there were Labour members who were on their feet seeking the call before and after the closure motions that the Chair referred to but they did not get the opportunity to actually take those calls.Mr SPEAKER: Can I just ask the member how many times she was called and had the opportunity to speak.SUE MORONEY (Labour): I have had two 5-minute calls consecutively.CLAYTON MITCHELL (NZ First): I have had three calls and I was intending on taking another call. I did actually rise to my feet the time before time was called but I was looking at the clock thinking that I would leave it until we got back from the dinner break. I did have some more questions for the Minister for Workplace Relations and Safety about clause 10 that have not been brought up yet and I also would like to have one more opportunity to speak to Part 1.The CHAIRPERSON (Lindsay Tisch): Just in response to Sue Moroney’s comments about questions to the Minister the Minister for Workplace Relations and Safety has been very receptive in answering questions. In fact the Minister took five calls which is virtually unheard of for a Minister in part by part debate. I think by answering those questions he allayed many of the fears. So for the member to say that there were additional questions for the Minister—they actually had not come up during the course of the debate. The Minister took those calls and adequately answered those questions. So that was one of the reasons I made the decision to accept the closure motion.KRIS FAAFOI (Labour—Mana): Just in response to that my question to the Minister for Workplace Relations and Safety was a recasting of a question that my colleague Chris Hipkins put to the Minister while he was in the chair. I do acknowledge that the Minister acknowledged nearly all of the questions. It is just the one that I asked and Mr Hipkins asked that we did not think was addressed.Mr SPEAKER: I thank all members for their contributions. Whilst in my office doing other work I have been watching the debate. I have not listened intently to every part of it. I want to congratulate all members who have taken part in the debate on the solemn nature with which their contributions have been delivered. We are dealing with a particularly important issue and I certainly want to see Parliament have plenty of time to debate the issue. I also acknowledge the point just made by Lindsay Tisch. I have seen many sensible questions being put to the Minister for Workplace Relations and Safety and I commend the Minister for the way he has then tried to answer those questions to the best of his ability answering them in a very fulsome way.I want to refer members to a number of Speakers’ rulings on pages 70 and 71 that in essence conclude that the person best placed to judge when to allow a closure motion to be put is indeed the person who is chairing the Committee—in this case my Assistant Speaker Lindsay Tisch. He has done that. It is then for the Committee to subsequently decide whether the closure motion is accepted. The presiding officer simply allows the question to be put; the determination is then made by this Committee itself. I am not absolutely sure whether that vote has been taken.The CHAIRPERSON (Lindsay Tisch): It has been taken.Mr SPEAKER: It has been taken and I then assume it has been accepted in which case that is the final matter in this case.Sue Moroney: Point of order.Mr SPEAKER: No. Does the member want to question the decision?Sue Moroney: I raise a point of order Mr Speaker. It is not to question the decision but just to point out that I attempted to take a point of order prior to the vote being taken and that was not allowed by the Chair.Mr SPEAKER: That does not change the ruling I have just given. I return the House to Committee.In CommitteeDebate resumed.Part 1 Health and safety at work (continued)The CHAIRPERSON (Lindsay Tisch): The House is in Committee. The closure has been accepted and the vote is about to commence. We will continue on Part 1—this is the vote on Part 1.The question was put that the amendments set out on Supplementary Order Paper 108 in the name of the Hon Michael Woodhouse to Part 1 be agreed to.A party vote was called for on the question That the amendments be agreed to.Ayes 63New Zealand National 59; Māori Party 2; ACT New Zealand 1; United Future 1.Noes 58New Zealand Labour 32; Green Party 14; New Zealand First 12.Amendments agreed to.The question was put that the amendments set out on Supplementary Order Paper 105 in the name of Denise Roche to Part 1 be agreed to.A party vote was called for on the question That the amendments be agreed to.Ayes 48New Zealand Labour 32; Green Party 14; Māori Party 2.Noes 73New Zealand National 59; New Zealand First 12; ACT New Zealand 1; United Future 1.Amendments not agreed to.The question was put that the amendment set out on Supplementary Order Paper 100 in the name of Iain Lees-Galloway to clause 13A be agreed to.A party vote was called for on the question That the amendment be agreed to.Ayes 60New Zealand Labour 32; Green Party 14; New Zealand First 12; Māori Party 2.Noes 61New Zealand National 59; ACT New Zealand 1; United Future 1.Amendment not agreed to.The question was put that the amendment set out on Supplementary Order Paper 110 in the name of Clayton Mitchell to clause 28 be agreed to.A party vote was called for on the question That the amendment be agreed to.Ayes 12New Zealand First 12.Noes 109New Zealand National 59; New Zealand Labour 32; Green Party 14; Māori Party 2; ACT New Zealand 1; United Future 1.Amendment not agreed to.The question was put that the amendment set out on Supplementary Order Paper 110 in the name of Clayton Mitchell to clause 29AA be agreed to.A party vote was called for on the question That the amendment be agreed to.Ayes 12New Zealand First 12.Noes 109New Zealand National 59; New Zealand Labour 32; Green Party 14; Māori Party 2; ACT New Zealand 1; United Future 1.Amendment not agreed to.A party vote was called for on the question That Part 1 as amended be agreed to.Ayes 63New Zealand National 59; Māori Party 2; ACT New Zealand 1; United Future 1.Noes 58New Zealand Labour 32; Green Party 14; New Zealand First 12.Part 1 as amended agreed to.Part 2 Health and safety dutiesHon RUTH DYSON (Labour—Port Hills): I am—I suppose “pleased” is the wrong word given the gravity of the issues that we are discussing in this legislation but it is a good responsibility to be able to contribute to this debate on the Health and Safety Reform Bill. I was in the Chamber prior to the dinner adjournment and I want to make a couple of comments about the responses of the Minister for Workplace Relations and Safety which were commented on at the time by the presiding officer. I just say that even though I disagree with the Minister and where he and his caucus have got to on this I really appreciated the fact that he actually listened to the comments that members made and responded—not always in a way that we would agree with—as that is quite different from a number of his colleagues who are really dismissive and arrogant. I think it indicates a little bit of the respect that this issue deserves. I want to commend the Minister for that.I held the position of Minister of Labour for some time and I think it is one of the heaviest weights of responsibility when you think that laws that you are passing could determine whether a person who goes to work in the morning comes home safely or is never seen alive again. That is a huge responsibility and one that this Parliament should and I hope will over the coming hours of debate on this legislation really put an effort into.I am really saddened that the internal debate in the National caucus has left us in the position that we have particularly concerning the relevant portions of Part 2. From my perspective there are a lot of things that we could disagree on but if we talk about international best practice and how we might actually make people safe at work regardless of how big their workplace is or what sort of industry it is I would really have assumed that this might be an issue that the whole of Parliament could agree on. But it is really—not entirely but in some substantial part—the issues that are raised in Part 2 that have contributed to what seems to have been a pretty fractious discussion in the National caucus and we have ended up with a really watered-down version of what was originally intended by the previous Minister the Hon Simon Bridges.Before I return to the specific provisions in Part 2 I just want to acknowledge a friend—a man I admired greatly—who was a member of the Lyttelton fire brigade and a maritime worker who was killed in Lyttelton Port of Christchurch not very long ago. The court case in relation to his death has recently been heard and Lyttelton Port Co. pleaded guilty to causing his death. There is no celebration in that. I think it made the process easier for the family; it certainly made it easier for his workmates to find out what had happened so that we can all learn from it so it never happens again. But nothing will take away the fact that our community particularly the strong Lyttelton community does not have the joy of Brad Fletcher being part of that community any more. So I want to pay tribute to him and the work that he did on the waterfront and I hope that nobody else ever dies in our port.The five subparts in Part 2 really go to the heart of the thinking about how much responsibility should be carried by one individual and how much should be shared if there are different employers. Lyttelton Port is a good example actually. You have the port company but there are lots of contractors working there lots of different arrangements and obviously ships coming in from overseas. There is a mire of responsibilities that you could allocate depending on the activity of the person. That is what this part seeks to do. I did not sit on the Transport and Industrial Relations Committee tragically but I have looked at a number of the provisions. For example there is the duty of person conducting a business or undertaking (PCBU)—new language we have in New Zealand now as a result of this bill—who manages or controls the workplace where you have more than one obvious employer. This is not a standard workplace but one where you have got more than one PCBU. In clause 32(2)(a) and (b) there is a note that talks about the comparison with the Model Work Health and Safety Act in Australia.I am really keen to learn—this is the only chance we will have during the Committee stage—from members who were on the select committee or from the Minister how our workplaces compare with Australia. I know for example that we have far more small workplaces small businesses in New Zealand than they do in Australia but I am not sure whether they have the same comparability where we have more than one employer on a worksite and whether this actually works. For me the last thing I want to see this legislation do—and I am anxious about it because it has got new terminology it has got shared responsibilities and it has got I think an onus of proof that will tend some towards litigation rather than taking responsibility. That is the last environment that we should be creating if our aim is to make our workplaces safe.What we should be doing in attempting to make our workplaces safe is ask how we get everyone on the same page. How do we ensure that the worker on their first day through to the person who has been there for 50 years and about to get a gold watch and any person who is in a responsible position—whether it is a manager or the boss; the owner company director is not risk averse? To not say “I do not want to end up in court or with a big bill for something.” but to say: “We will create a culture where people work in a collaborative way and a positive way to create an environment that is safe for everyone.”? This is not about doing people over. This is not about catching people out. This is an open culture. The Minister should understand this actually because he used to be in the health system. It is very comparable.In my view the sort of culture that you need to create is one where people put their hands up early to a mistake or a risk and say: “I have seen this. It should not be happening. We want to make sure it does not happen in the future.” How do you create that culture in every workplace? I do not know how this does it. I would love to think it does but it seems to me that what we have done is create a new regime of classification—a PCBU. It does not even spell a word. What public servant was on that task? But seriously it is a new regime that will render comparable previous court cases and policy decisions unable to be used.As I said at the outset I am really sad that it has come to the point where we have not got the whole of Parliament singing from the same song sheet and setting out what I think New Zealanders want us to do which is to take the lessons that we have so tragically learnt—and not just from Pike River but gosh that had to be such a blot on our thinking about the way we make our workplaces safe. If that did not make us sit up and say that we have to do things better then I am sure that nothing would. We have a terrible record in terms of workplace safety and health in New Zealand and I am not sure that we have got our heads around getting it right.There are five subparts in Part 2. One is headed “Key principles relating to duties”. The second one which I referred to earlier is “Duties of PCBUs”. One is “Duties of officers workers and other persons” one is “Offences relating to duties” and the last is “Duties to preserve sites and notify notifiable events”. Because this part introduces so many new things to our health and safety regime it is for me one of the most important even though it might not have policy issues as substantial as those contained in other parts of the legislation. I have not even got on to the later stages yet but I know that colleagues are keen to take calls. So if I do not get another call I will try and take another one later.I am interested in the final five clauses Part 2—these go over two subparts—under the subheading “Other matters relating to offences”. Those clauses are headed: “Actions taken to prevent harm”; “Proof of intention not required for certain offences”; as I said earlier “Duty to preserve sites”; “Duty to notify notifiable event”; and “Requirement to keep records”. For me these all sound like new provisions and new standards which we are expecting the workforce to understand and expecting employers to understand that will set a new regime in the offences and legislation.SUE MORONEY (Labour): At the outset of Part 2 I would like to indicate to the Government and let the public know that it is our intention to vote for this part because we think that much of it makes sense. However I just do want to let the National Party know that it was our intention to vote for Part 1 but when a Government moves to shut down the debate on a bill as important as this on areas that we still want to debate then you will get a No vote from the Labour Party on that basis. We asked at the outset that there be no politics on this issue and I hope that that will be taken care of.I do though want to commend the Minister for Workplace Relations and Safety for at least his part. If his party did not behave at least the Minister did because when we raised issues he did make a very good attempt at addressing those issues and I hope that that will continue in this debate.In Part 2 which spells out mainly the duties and the responsibilities of individuals when it comes to their responsibility towards health and safety in the workplace sadly much of this part even though its intention is really good will be undermined by the Government’s decision to ensure that a whole lot of smaller workplaces do not have elected health and safety reps in those environments. I say that because even though we are going to come on to debating that substantively in the next part it impacts on Part 2. Although these duties are well spelt out who on earth is ever going to police this? Who on earth is ever going to be in those smaller workplaces to know whether the person conducting a business or undertaking (PCBU) is doing what the PCBU ought to do if there is no elected trained health and safety rep in that workplace who knows what the PCBU ought to do?As we are about to debate this is quite complex. The obligations on each of the parties are quite complex and unless people have been trained as health and safety reps—and that is the reason why health and safety reps need to be trained—how on earth will anyone in those dangerous workplaces like farms which the Government has moved to exclude know whether these duties are being undertaken? That is our misgiving about this part. We do intend to vote for it. Sadly it is going to be let down by the decisions that the Government is going to make on other parts of this bill.I want to spend a little bit of time just talking about the PCBU. I think it is going to be really easy for us to slip into that language and perhaps people listening to the debate may not understand. I think this part really does attempt to come to grips with the changing nature of the workplace the way in which contracting out has affected health and safety and the way in which different people are employed affects health and safety at work. And this is I think an honest attempt to address these issues although I do have to say this: it worries me that we have spent all these volumes trying to describe everyone’s obligations in a very complicated and tricky type of workplace setting when in fact I wonder whether we would be better off having some good regulation in place that actually prevented these types of structures which do cause health and safety risks from developing in our workplaces.I am primarily referring to the contracting-out regime but there are other practices in our workplaces that I think have complicated this picture and instead of actually dealing with that we are now dealing with a very complex set of duties and obligations to try to deal with that.So a PCBU must ensure so far as it is reasonably practicable the health and safety of workers who work for them while those workers are at work in the business or undertaking and those workers whose activities in carrying out work are influenced or directed by the PCBU while the workers are carrying out the work.I think that last sentence is important because it is an attempt to address the issue that I have just raised. You know we used to call these people employers actually but sometimes they are not the direct employer but the decisions they make influence the workplace or the ability of other workers who are not in their employment specifically but are impacted on by the decisions that they make. I think that the Pike River mine sadly demonstrated this issue really well in a way that we do not ever want to have demonstrated to us ever again. The decisions being made by the Pike River Coal company were impacting on people who were contractors to that company and yet they had no ability to influence that.This part of the bill makes sure that the PCBUs have an obligation to be talking with each other and to be coordinating and I think that is a very very important part of it. However I will come back to my original point. Who on earth is going to police this in small workplaces? Who on earth is going to do that? Is it going to be people from WorkSafe? I do not think so. Are they going to be on every farm? No they are not.Jonathan Young: Well they nearly are. That’s the problem.SUE MORONEY: Ha ha! Jonathan Young is concerned—he thinks that they probably are. If that is a concern of the National Government then look the obvious solution is the one that the Labour Party is proposing and that is to stop this nonsense of denying access to proper health and safety representation for people who work on farms and in other places that are going to be excluded by this legislation and just do what the royal commission said at the outset. Let everyone be covered. Part of the role of an elected and trained health and safety rep is actually to police that Part 2 is happening and that the obligations set out there are happening on all those small workplaces up and down the land unless the Government really does think that it is going to have WorkSafe living in all these workplaces and seeing what is going on.So PCBUs have a range of functions. They have got to “ensure so far as is reasonably practicable”—and that is good and sound in terms of health and safety legislation—that the provision and maintenance of the work environment is done in a way that is without risk to health and safety. They have got to ensure the provision and maintenance of safe plant and structures the provision and maintenance of safe systems of work and the safe use handling and storage of plant substances and structures. There are a range of other things but this is all the learnings from Pike River mine.One of the questions that I would like the Minister in the chair to give us an answer to is whether this part of the bill will address the issue that we saw happening in Pike River mine where management was actually paying large bonuses to workers to take undue haste over some construction of parts of that mine when actually that money would have been better off being spent on making sure that there was another access way out of that mine. That instance of workers being offered a bonus by the PCBU in order to work faster in an unsafe way—would that undermine the duties under this part? I would really like an answer to that because I think this is where we are actually going to understand whether this bill is going to make a blind bit of difference to health and safety in our workplaces.The meatworks that sometimes speeds up the line and does that in a way that is unsafe—would that provision stop it from doing it? I am referring to clause 30(3) in Part 2. I really want to know whether that is going to stop those sorts of practices because that is really what we need to do. We need to make sure that those practices that are being undertaken at the moment—we know that they are being undertaken by people who once this bill becomes an Act will be PCBUs. Will they be able to continue those sorts of practices? Because those are the sorts of things that really do drive bad health and safety practices. They are the sorts of things that good trained elected health and safety reps can contest and can make sure that they do not continue happening. Unless this part actually makes sure that those things cannot continue to happen then it will not be worth the paper that it is written on.The PCBUs are the people who manage or control the workplace but they are also the people who manage or control fixtures fittings or plant at workplaces. This part of the bill also makes it clear that more than one person can carry out the same duty. So what we envisage in this part of the bill is that there will be multiple PCBUs involved in one workplace location and knowing that they are going to be able to coordinate with each other and that they are required to—CLAYTON MITCHELL (NZ First): It is a great privilege to again be standing in the Chamber to come back and talk about Part 2 which is “Health and safety duties”. We do actually have Supplementary Order Paper 110 along with the Supplementary Order Papers from the Greens and the Minister for Workplace Relations and Safety himself. Before I go into that I would just like to reflect with the Minister that I hope the praise we have been giving the honourable member does not go to his head and that he still keeps this interaction going because it is very very important. I would also like to reflect for a moment just rewinding the clock to get some clarity about clause 10 which of course is to do with those high-risk plants. If we could get some clarity because that will come up a little bit later on in clause 227 further down in the bill—if the Minister could give us some clarity on that I would be very appreciative.I do not want to keep going backwards but for the purposes of the people back home or sitting in the gallery who do not have this magnificent piece of legislation in front of them to go through and peruse as we all have I think it is very important to just talk for a quick second about the words “reasonably practicable” because they do come up quite a lot. This bill does introduce the words “reasonably practicable” and it says that businesses must do what they can reasonably do to keep workers and those others affected by work safe and healthy. So that is going to come up quite a lot.I would also like to just take a moment to look at clause 52 in Part 2 which is “Duty to notify notifiable event”. I think that is a very commendable clause in this bill in Part 2. It is very very simple and it is very very plain English but there is a duty to notify any harm being caused to your workers and then the second part of that is clause 53 “Requirement to keep records”. Once you can measure a problem you can then manage the problem and I think this is a fantastic tool to enable health and safety for the future and just track where it is going and how it is going.I take this moment also to look at some of the industries around the country that are on a decline with the number of serious events illnesses and deaths within their businesses. I think New Zealand Railways has had a remarkable change of direction with about 30 percent fewer injuries in its space. That is a culture shift that has happened from the top down and the bottom up simultaneously to achieve that great result and we would like to see that continue. Also the logging industry has had a remarkable downturn in deaths and again it comes down to that bottom-up as well a top-down approach.Primary duty of care is really what this part is all about and so what we have got here is clause 30 and it says here: “(1) A PCBU must ensure so far as is reasonably practicable the health and safety of—(a) workers”. I would just also like to say that the current legislation that we have got there I think sums it up very very nicely and it does not show up anywhere in this new bill. Sections 15 17 and 19 of the current legislation are about the duties of employers employees and the self-employed people. It says that every employer employee or a self-employed person shall take all practicable steps to ensure that no action or inaction of any person whether it be an employer an employee or a self-employed person while at work harms themselves or any other person. I think that is just absolutely fantastic. It would have been good to see that in this new bill because I think it encapsulates everything in so far as a duty of care goes which is what we are trying to resolve here.I know the clock is ticking and my time is very very short with these 5-minute sessions that we get. We do have an amendment on Supplementary Order Paper 110 that would amend clause 43. What we are proposing is after clause 43(2) we would like to see added: “(3) A person does not commit an offence against subsection (1) if the person is a self-employed individual who is both a PCBU and a worker in a small- or medium-sized enterprise in the event of an accidental death of their spouse de facto partner or civil union partner who is also a PCBU and a worker in the same small- or medium-sized enterprise.” That sounds very convoluted but quite simply we are very concerned again about the unintended consequences of this bill. That amendment that New Zealand First is trying to have put in is a pragmatic solution to what we see as a potential issue that has been overlooked.This is specifically around where—let me just use it for an example but it will not preclude other businesses in a similar situation—you have got a farmer and his wife living together. They are directors on the farm and they are owners of the farm. They are clearly persons conducting a business or undertaking (PCBUs) and workers at the same time. In the situation where the famer goes out and has a fatal accident—and we are talking about accidents here; we are not talking about anything nefarious and horrible—under this bill the wife who is also a PCBU and who is responsible for her partner or husband’s death could be up for some very very heavy penalties fines and potentially some imprisonment. What we are trying to preclude is—the loss of a loved one is bad enough to not warrant the fact that they may lose their business or their farm as well as that.Thinking about it it was a very very difficult piece of legislative amendment to propose. We have taken this to the Transport and Industrial Relations Committee and it did not get the support that it deserved but I know that back out there in the real world where people are concerned about their loved ones and their safety but also about the fact that if there is an accidental death that they could actually lose everything as well as their loved one—I think to put that to the Committee that that needs to be very heavily considered. Support for that Supplementary Order Paper would certainly be well appreciated by all those rural farmers and small business operators who want to be able to leave a legacy behind for their loved ones if they are in fact involved in a fatality in a workplace.There are certainly parts of Part 2 with regard to duties that we do support. To reflect on that we do support the engagement process the reporting process and the record-keeping. We think that is absolutely fantastic. We do have some concerns about parts that will potentially have some very long-term and damning effects on those loved one left behind in a fatality or an accident. Thank you.ALASTAIR SCOTT (National—Wairarapa): This afternoon is the first time that I have had a chance to speak on this bill. I would like to acknowledge the work and the common cause that the Committee has which is of course to make sure that Kiwis come home safe from work. It is important to recognise that work because we all have that same goal. I would also like to recognise and acknowledge the people who have been here in the gallery today and yesterday. We kill too many people in New Zealand. There are people here today who are left behind from the Pike River disaster—29 men were lost. We have to remember those who are affected not just by deaths but also by long-term injuries and this bill goes a long way towards helping to do that.Attitude was talked about earlier by a number of parties. This bill is not going to change attitudes. This is the framework on which we can hang our legislation. Changes in attitudes and culture have already begun. I think the Minister mentioned earlier that the forestry sector has already made large changes towards changing their attitudes and culture. In the marine industry maritime operating safety regulations have been in place for 1 year already and it is consulting again and is getting feedback. So again that is an example of an industry that is taking the lead in health and safety in its work environment. Of the other examples of industries that I was involved with prior to coming into Parliament whether large or small health and safety was up there at the top of the agenda so this is nothing new. This is no new approach to health and safety; it is already out there and this is creating a strong framework and leadership from a legislative point of view.Common sense has been discussedalready. A reasonable practical nature determines or defines what common sense should be—reasonable and practical. This part is about common shared responsibility—that is the duties that each of the persons conducting a business or undertaking (PCBUs) or workers are involved in. I would like to highlight Supplementary Order Paper 108 and proposed new clause 29A(2) which helps to clarify that people are all responsible for each other’s health and safety. But this new clause clarifies the extent to which a person has or would reasonably be expected to have the ability to influence. So I think that that addresses some of the concerns that Mr Robertson talked about in the first part—that it is where one has the influence when one is a director of a company. For example they are not going to be able to influence what is directly happening on the dayon the shop floor—whether a guy is wearing his steel-cap boots or not. He cannot be held responsible for that assuming that all of the other responsibilities that he has as a director have been fulfilled. Similarly the worker next to the guy on the workshop floor who is not wearing his steel-cap boots has a responsibility and an obligation to perform his duty of care and that primary duty of care for the worker is in Part 2.The other part of Part 2 that I would like to highlight relates to the PCBU and to farm workers. I have had a lot of questions from farmers and farm workers about what their duties are as far as buildings are concerned when they have accommodation on the farm. It is clear that the farm buildings are certainly the responsibility of the PCBU—that is when work is taking place—but the main dwelling of the house on the farm is not part of the farm infrastructure; it is outside the workplace. The only other part of a farm that would be inside the workplace is accommodation made available to a worker only when it is difficult for that worker to seek accommodation elsewhere. So imagine perhaps a Department of Conservation worker who is out in one of the Department of Conservation estates or a farmer who is out in the middle of nowhere. That accommodation would be considered part of the workplace infrastructure.KELVIN DAVIS (Labour—Te Tai Tokerau): As someone who has not had a lot to do with the development of the Health and Safety Reform Bill I have got a few questions I would like clarified. The first one is about the PCBU. I just wonder whether that is what we used to call in the old days the b-o-s-s. Is it? If it is I can relate this to my previous work in the Ministry of Education.When I was working in an office in Kaitāia we had a flat structure there so we did not actually have any PCBUs or b-o-s-s-e-s in the office there. The other members who worked there—their boss was actually based in Whangarei so I assume that their PCBU or person conducting a business or undertaking would be someone based in Whangarei. I was actually managed out of Wellington so I would assume that that was where my PCBU was but I just wonder how in a situation like that the PCBU actually gets to manage the health and safety of employees who are at a distance. Then when I would come down to Wellington I was at the bottom rung of the ladder and my direct-report PCBU was actually the next rung and there were about five more rungs in the ladder.I just want to know whether all of those people are PCBUs and if they are who are they PCBUs of? How does the structure actually work in an organisation like a ministry? Between me the bottom rung of the ladder and Peter Hughes the top rung of the ladder—are they all PCBUs? And what is the responsibility of each person?I am sorry but I have to harp back to Part 1. In the purpose clause clause 3(1)(a) says that the purpose is “protecting workers and other persons against harm to their health safety and welfare by eliminating or minimising risks arising from work or from prescribed high-risk plant;”. Nowhere else in the bill have I seen welfare mentioned. If we go to clause 30 “Primary duty of care” it says: “(1) A PCBU must ensure so far as is reasonably practicable the health and safety of—(a) workers …” and clause 30(2) says: “A PCBU must ensure so far as is reasonably practicable that the health and safety of other persons …”. The legislation goes on like that. It talks about the health and the safety but nowhere else does it mention the welfare. In my mind the health is about the lack of illness safety is about the physical safety—making sure no one is injured—and welfare to me talks of people’s mental state in their place of work. If it is not mentioned anywhere else I would like to know why someone’s welfare or their mental welfare is not considered in the rest of the bill.We can use an example such as the forestry worker who is working the chainsaw. We can understand about his safety there using dangerous instruments but his welfare—I have heard stories of the pressure being put on the people who are wielding chainsaws in forestry. They actually have to up their cut rate so that they are sawing down more trees and that pressure is coming from the contractor. The contractor I assume is their PCBU and the contractor’s pressure is coming from people higher up such as the forest owners who want a greater return. So the forest owner is actually putting pressure on the contractor. The contractor is putting pressure on the worker. But the forest owner is divorced or removed from any responsibility for the well-being of the guy on the chainsaw and yet that person is the one who is most at risk. How does that work and how is responsibility put where it should be on to the people who are putting pressure on so as to get a dividend? I would like that answered.To use quite a topical example the guard in a Serco-run prison who is one person looking after 50 inmates—what about his emotional welfare? Obviously when you are one person overlooking a number of people who are gang associates and they want you to do something that you know is illegal and they put pressure on you to intimidate you to do things—DENISE ROCHE (Green): I rise to take a call on Part 2 of the Health and Safety Reform Bill. This is the part of the bill that talks about persons conducting a business or undertaking or PCBUs which is a term we are using a lot tonight. So I am sorry if anybody has just tuned in and gets to hear “PCBU” and does not know what it means. This part talks about the key principles relating to duties.For this Part 2 I have actually got a Supplementary Order Paper Supplementary Order Paper 105 because within this part is kind of where you see employment law and civil law and criminal law start to get mishmashed up. I refer particularly to—I think it is in my Supplementary Order Paper actually—clause 29E which is around the whole issue of where PCBUs are negotiating with other PCBUs on a worksite. For example there are the port companies that have got contracting companies there. They have got other companies that are being used to potentially undercut some of their directly employed stevedores and you have got a range of people operating who are all employers—who are all PCBUs.There is a part in this section of the bill that talks about how PCBUs operate together. I think it is quite important that they do manage to talk together quite effectively so that the whole place develops a culture of workplace health and safety because otherwise they can neglect their duties. They can say: “No it wasn’t my fault that this terrible thing happened.” In fact during the Health and Safety Reform Bill submissions we did have one organisation say that when I questioned them about the fatality rate that they had at their port. They said: “We have a clean slate.” I said “I can show you the releases about this.” and they said: “It wasn’t us.” So we support the fact that this bill is designed to get those persons conducting a business or undertaking to talk to each other.I guess what my Supplementary Order Paper is attempting to do is to get those PCBUs to talk together and to negotiate with each other in good faith. “Good faith” is a concept that is used in employment law but I was told that you cannot have it—you cannot possibly have it—in this context because basically it relates to two commercial operations not the employer and employee relationship. I understand that. What I wanted to see though was a test of that type of good faith that could operate in negotiations and information exchange between PCBUs. Essentially what we are trying to do is set up a worksite where there are fewer risks across all the different employers or PCBUs operating there.So what I have suggested is that in clause 29E we require that persons conducting a business or undertaking have a duty in relation to the same matter to consult cooperate with and coordinate activities with other PCBUs who have such a duty so that they must deal with each other fairly be active and constructive in discharging their duty and not do anything to mislead or deceive the other PCBUs. I would have thought that this was fairly reasonable and I would be interested to hear from the Minister for Workplace Relations and Safety as to why he has not adopted this very reasonable Supplementary Order Paper.I am also interested in going through the Supplementary Order Papers that the Minister has brought to the Committee—very late but today. One Supplementary Order Paper in particular strikes me as quite interesting. There are a couple of good ones here that we will probably be supporting but the one that I have questions around—and the earlier speaker from the National Party started to talk about it—is this whole issue of the main dwelling house on a farm being excluded. This is in Supplementary Order Paper 108 from the Minister which refers to clause 32(1B)(b). What that essentially says is that the main dwelling house on the farm is excluded from basically being a place of work. However further on in clause 33 there is a whole section about fixtures and fittings of the plant in a workplace.So the question I have is about a situation where the person who lives in the main dwelling does not own the farm but is employed to run the farm and the main dwelling is substandard. It has electrical faults it has all sorts of problems with the plumbing and it has rotten floorboards and it is the main dwelling. What happens then? We do have situations in this country of very very substandard housing and if that is part of the employment package for the person who is employed by the landowner to run the farm and so it is part of their employment relationship it is part of their agreement it is part of their conditions of work—essentially it is one of the ways that they are being remunerated supposedly—why is that exempt from any kind of protection under the health and safety employment law particularly when you consider that this may be a worker who is on call 24 hours a day? Why then in this situation is the dwelling exempt?I would welcome the Minister’s comment about that because this is a new part of the bill that he is suggesting that we adopt now. It was not one of the things that was actually in the bill beforehand although there was quite a lot of discussion around what is a home and what is not. I can even refer to my Supplementary Order Paper on the previous part which is trying to remove the exemption for work that occurs in the home which is deemed to be residential. So I have got some questions around that.I guess the other thing that worries me in this area in this part is that it also talks about offences. Again we see the mishmash between employment law contract law and civil law and there are some inequities that occur. For example in this part if there is reckless conduct then that would mean that a person who was guilty of that under the Health and Safety in Employment Act would be liable for quite a large fine and/or a maximum punishment of up to 5 years’ imprisonment. Something similar under the Crimes Act—criminal law—would get a person up to 10 years in jail. So why is it OK to have that punishment for being reckless outside the workplace but if you are reckless in the workplace you get off a bit easier? These are some of the inconsistencies that I struggle with and I would really appreciate some explanation for them.I agree with one of the previous speakers on this side of the Chamber who said that even though there are some very good clauses in this part of the bill the bill is undermined by the omissions in the first part which is around worker representation and participation and the exclusions of who is covered by the bill and who is not particularly in those workplaces that have fewer than 20 workers which are deemed by some sort of magic process not to be in high-risk industries. Of course although we have had some suggestions about what they may be we have not got them sorted out yet.So I have got some questions and I would be very grateful to the Minister for responding to them. We do like some of the clauses that he has put forward in his Supplementary Order Paper but I have to say—Hon MICHAEL WOODHOUSE (Minister for Workplace Relations and Safety): I think there are three or four questions that have been raised by members in their interventions so far and I want to try to address them. I do want to acknowledge Kelvin Davis for his quirky use of three or four-letter acronyms and just respectfully suggest that if he does want to know what a PCBU is rather than ask me and take up the time of the Committee he could either read the bill or talk to one of his colleagues on the Transport and Industrial Relations Committee.Ms Roche has raised three points. In respect of persons conducting a business or undertaking (PCBUs) operating together and the requirements of good faith I do not think it is a question of the Minister not supporting that. My position and the Government’s position is actually that those requirements are already in the bill written in different ways but there is definitely an expectation and a requirement for PCBUs to work together to ensure the health and safety of everybody in that workplace: workers managers shoppers patients if it is a hospital and so on.As to the question of the farmhouse I think the member has conflated a couple of issues. So I will go through the first scenario which is addressed by Supplementary Order Paper 108 with an amendment to clause 32(1B) making it absolutely clear that the farmhouse is not a place of work. In other situations that may be the case. The plumber who works from home and has the garage full of supplies and things like that—that is appropriate. Even in respect of the farmhouse there may be a home office or the farmer might bake muffins for the workers at lunchtime and the kitchen could be considered a farmhouse.But for all practical purposes I do not think the case for health and safety is enhanced by creating a very confused definition of a workplace—because farms are different. I think we accept that farms are a place of work but they are a permanent place of residence for the families who live on them as well. For the sake of clarity the select committee and the Government has thought it best to make it much much cleaner and tidier to say in respect of the farm that those sheds where the work is carried out—the shearing-sheds the milking sheds the implement sheds and so on—are always a workplace regardless of what is going on. Other parts of the farm are a workplace when work is being done on them but not when there is not work being done and that has certainly eased a lot of concern about recreational use and access to farms and tracks for mountain bikers and so on because that was certainly one of concerns that we had. The last thing we wanted was for landowners and farmers to deny access to one of the great Kiwi pastimes—that is living and playing in the outdoors. So I think that that is a very tidy and sensible amendment.But the member then went on to talk about accommodation and asked: “What about if the person who is running the farm doesn’t own the farm?”. Well that goes to clause 30(4) and (5). What that basically says is that if the worker is required to live in that accommodation then that is a place of work and the health and safety law will apply. But if the worker has a choice between living in that accommodation or in other accommodation and makes that choice then this bill will not apply.The scenario is if you are down on the Auckland Islands working for the Department of Conservation and there is accommodation provided—and frankly one has no choice but to live there—then the health and safety requirements should apply. But if you are an orchard worker in Cromwell and you have got a choice to live in the A-frame accommodation on the side of the orchard or to go to the local camping ground or the backpackers or have some other arrangement and you make the choice to live at the place of work then this bill will not apply. I think that is a sensible balancing of what has been going on in the workplace. I just wanted to clarify that that farmhouse scenario was actually covered by clause 30 not by clause 32.STUART NASH (Labour—Napier):I would like to talk about the management of risks. This is in Part 2 obviously which starts with clause 29A. There is actually a very good book called Against the Gods: The Remarkable Story of Risk by an author called Peter Bernstein. The reason I say it is so good is that he said that what differentiates the modern economy from those of the ancients is that the ancients did not know how to quantify risk so they blamed anything that went wrong on the gods—it was the will of the gods. What defines our modern economy and what has allowed the modern economy to grow is our ability to assess risk judge it and make decisions based on that. We have a whole lot of mathematical tools that allow us to do this.This legislation is necessary and there is no doubt about that but when I see things that say for example in clause 29A that a duty is imposed on a person “(a) to eliminate risks to health and safety so far as is reasonably practicable;” to me that seems like a little bit of an oxymoron to be honest. How can you eliminate risk as far as is reasonably practicable? You either eliminate it or you do what is reasonably practical to manage it. But then it goes on: “(b) if it is not reasonably practicable to eliminate risks … to minimise those risks …”. I know that legislation has got to contain wording that makes sure it is tight but what I can see is a whole lot of court cases around this that will determine what is “reasonably practicable” and also what the elimination of risk is.Let me give you an example. My very good friend Kelvin Davis and I visited a sawmill up north and the sawmill owner told us about an incident where he had a young man working for him. The young man has gone through all the health and safety training. Sawmills are places where you can never eliminate risk; you can manage risk. This owner had a health and safety plan in place; it had gone through WorkSafe. What happened is that there was something called a green chain which is a big chain that goes around a wheel. The guy had been seen by workers to put his foot into the cog and then pull it out. The workers said to this young man: “Don’t do that mate. That is a really silly thing to do and that will end up injuring you.”Anyway this guy did it again damaged his foot quite badly and had to go to hospital. WorkSafe came in and the sawmill owner’s lawyer said to him: “Plead guilty because it will show that the worker hadn’t taken notice of what was going on but plead guilty—you’ll get off.” In the end the guy got fined $100000 and he said he was staggered because he thought that he had done everything that he possibly could to not eliminate risk but manage the risk as far as possible.I look into clause 40 which talks about the duty of a worker. Clause 40(c) says: “comply as far as the worker is reasonably able with any reasonable instruction that is given by the [boss] to allow the [boss] to comply with this Act or regulations;”. So this boss—the person conducting a business or undertaking—had done everything he thought was in his power to manage and mitigate the risk but you can never ever eliminate risk and that is one of the concerns that I have about this bill.Clause 35 talks about risk. The heading of clause 35 is “Duty of PCBU who manufactures plant substances or structures”. Clause 35(2) says: “The manufacturer must so far as is reasonably practicable ensure that the plant substance or structure is manufactured to be without risks …”. I have worked throughout my career on a number of building sites and I have worked as an importer and importers are covered under clause 36. Clause 38 is about the “Duty of PCBU who installs constructs or commissions plant or structures”. It is quite a prescriptive part actually. But it talks about doing all of these works without risk.In my opinion—and my experience has shown this—you can never ever eliminate risk. You can mitigate risk you can put processes in place that allow you to manage risk and you can ensure that workers are informed about risk so that they can identify risk and they can take their own steps to manage the risk within the workplace but eliminating risk or staying completely without risk is not I do not think workable. There is a legal test that you learn in about week 1 of Legal Systems 101 and it is called the “reasonable person” test. I am going to be very very interested to see how the courts interpret this legislation because there is no doubt in my mind that there will be a number of cases about this. If the courts take a reasonable person test and ask what would the reasonable person have been expected to do in terms of mitigating or eliminating or managing—Dr MEGAN WOODS (Labour—Wigram): Thank you for this the first call I take on the Health and Safety Reform Bill. Like many of my colleagues have spoken about it is actually with regret that Labour cannot support this bill. We are supporting this part—Part 2 of the bill—and I would like to genuinely thank the Minister for Workplace Relations and Safety for taking a call and answering some of the questions that were put to him in the Committee here tonight. Actually in your answers Minister there were many other questions that came from those. I would welcome your taking a call to answer some further questions that arose from the information you gave us here in the Committee tonight.You talked about the farm and when it was deemed to be a workplace and about the recreational use exemption so that a farm was a workplace only when it was being a workplace—when people were performing work there—and not when it was being used for recreational use. You particularly talked about mountain biking and quad biking on these spaces. But Minister this opened some very serious questions that we need some clarification on. For example if someone is riding a quad bike back to a farmhouse to take a smoko break are they deemed to be at work? Are they covered by the bill? If they are riding a quad bike for the purposes of some after-work drinks on a Friday—the workers knock off and decide to have some drinks and people are riding around on quad bikes—is that deemed to be a workplace and will they then be covered by the bill? One of the issues that we have is around the number of exemptions that are being put into place and the dancing on a head of a pin around when a workplace is a workplace and whether health and safety legislation should apply. That is opening up questions. They were genuine questions and I would genuinely like an answer to them.I also have some questions for the Minister around when it is that accommodation is deemed to be a workplace. The test the Minister outlined is when there is a choice that the employee can make about whether or not they live in that accommodation—whether there is alternative accommodation that they can take up. So if accommodation is included as part of a remuneration package I would like the Minister to clarify whether or not accepting it is deemed to be a choice an employee can make. I would also like the Minister to clarify whether if there are no reasonable or affordable alternatives—there may well be alternatives but they might not be deemed to be reasonably affordable—there is deemed to be choice for the worker in that instance and whether this legislation would apply to them.This comes back to some of the fundamental problems that we have with this bill. Although we are supporting Part 2 our problem as many of my colleagues have outlined is the way in which this interacts with other parts of the legislation. We have these persons conducting a business or undertaking (PCBUs) or as my colleague Kelvin Davis renamed the acronym the b-o-s-s-e-s who are deemed to make these decisions but we have all these exemptions. The problem that we have here is that there is no onus for there to be health and safety reps. How is this part—this part we are supporting Part 2—going to be policed?I would like to turn my attention to subpart 4 in Part 2 “Duties to preserve sites and notify notifiable events” and specifically clause 51 through to 53 which are contained in this subpart of the bill because these are very important provisions within this bill. It is absolutely critical when accidents no matter how small or incidents—not even accidents but incidents—happen in a workplace that there is notification that these are recorded and that there is a record of these. I note that this part of the bill has all the great intentions around doing that. I support that and I welcome that but my concern is that in businesses where there is not deemed to be the need to have workplace health safety reps we are not going to have any ability to police that. I have heard members of the Government interject—not take a call but interject—that WorkSafe will do this. Well I would like the Minister to also tell us whether that is his realistic expectation—that WorkSafe will be everywhere in these businesses that are exempt from the legislation ensuring that they are being policed and that it will be omnipresent and know whether that is occurring.KRIS FAAFOI (Labour—Mana): For the benefit of those who have just tuned in we are speaking to Part 2 of the Health and Safety Reform Bill. I think there is quite a lot of common sense in this part of the bill but that does not mean to say that we have not got a number of questions for the Minister for Workplace Relations and Safety. I do acknowledge the Minister who once again in this part has taken to his feet to answer some of those questions.Can I start at the very beginning of this part because it does set out some of the duties and responsibilities for I guess people who are operating businesses. Clause 29A talks about the management of risks and says that “A duty imposed on a person … requires the person—(a) to eliminate risks to health and safety so far as is reasonably practicable;”. Clause 30 goes on about the primary duty of care and says that a person conducting a business or undertaking (PCBU)—which I think along with Parana Park has just entered into the legendary lexicon of Parliament—“must ensure so far as is reasonably practicable the health and safety”—Tim Macindoe: We remember it fondly.KRIS FAAFOI: The member for Hamilton West will of course enjoy that. Clause 30 talks about the primary duty of care and says that “A PCBU must ensure so far as is reasonably practicable the health and safety of—(a) workers who work for the PCBU while the workers are at work in the business or undertaking;”.Then can I flick forward to the next page which is going to be the crux of my question to the Minister. It is clause 32(1B) which talks about some carve-outs for I guess the farming sector. It says that subclause (1) does not apply “in relation to the farm buildings and any structure or part of the farm immediately surrounding the farm buildings that are necessary for the operation of the business …”. It also does not apply in relation to the main dwelling-house on the farm or “any other part of the farm unless work is being carried out in that part at the time.”Those who are expecting me to start talking about why the agricultural sector should be part of this bill will be disappointed. I know we have some issues about that—[Interruption] I know. I will get on to that. I am getting to my question. Just because we are asking for the agricultural sector to be included does not mean we do not care about those who work in rural areas.My question to the Minister is: when you are talking about carve-outs that apply to on-the-farm activity what happens to off-the-farm activity that would be deemed work? I think the most basic example of that that I could think of Minister is moving stock from one part of the farm on a public road to another part of the farm. Who has responsibility for that? The worker is still working. They are not on the farm as such. They are moving stock from one part of the farm to another part of the farm. They are exposed to public risk. I guess the New Zealand Transport Agency would have some responsibility but where does the responsibility lie Minister in terms of the PCBU for what is happening while that worker is working moving the stock between different parts of a farm on what we would deem public land?I do not see anything within this piece of legislation—within this clause anyway—that would cover that and would give the responsibility to the PCBU. We are talking only about activity on the farm. As we know if you have been caught behind stock in a rural area it is a public area because we share the road with the stock. You can get frustrated but it is the job of the workers to move the stock from one area to the next.There may be something within this part that clarifies who has responsibility. But if the PCBU does not then who does? I guess that is a question that I would like to pose to the Minister because it is something that is done regularly. I am no farmer. I heard someone—Ian McKelvie: Oh come on.KRIS FAAFOI: Yes OK—OK. I heard members on the other side of the Chamber talking about the fact that they have more farmers than we do but that does not mean we do not care about the rural community. In this instance I do not see for that short part of time where workers could be put at risk who has responsibility for that. Is it the PCBU or is it whoever is responsible for the road? Moving stock is something that I am sure happens thousands of times every day right around the country but as far as I am reading for this carve-out for the farming sector I cannot see who is responsible for that. If there is something in here maybe the Minister could take another call and explain that to us but if not then maybe he could look at doing something about that.Hon DAMIEN O’CONNOR (Labour—West Coast - Tasman): I know that there are a number of members on the other side of the Chamber who are saying that there are no farmers or farm experience over here but we do indeed have a lot of practical on-farm experience and we have the knowledge to ask of the Minister what this means particularly in the area of agriculture.Can I just go back to a point that my colleague Stuart Nash raised and it is about clause 32. Clause 32(1) states: “… anything arising from the workplace are without risks to the health and safety of any person.” That is a fairly absolute statement. I agree with him and probably with members on the other side of the Chamber who would say that it is almost impossible to eliminate risk. So we have that absolute statement here but if you go back to Part 1—and it is not for me to dwell on Part 1; I know we have debated that—it says in clause 3(1) that “The main purpose of this Act is to provide for a balanced framework …”. In my view that word “balanced” should have been changed to “effective” or “appropriate”. If we have an absolute in Part 2 about eliminating risk then we should not have in Part 1 an implication that we balance that off against other factors like cost or “reasonably practicable” or whatever you want to put in there. I am struggling with this and the Minister might understand why we have this fairly absolute objective in clause 32(1).Actually while we were debating this bill I received a text saying: “God I don’t know how you put up with this.”—going on about these things. People have to understand that every word in the legislation that we pass through this House has a meaning. It has been debated and it is absolutely essential that we get the words right. We can guarantee that down the path there will be some lawyer who for good or bad reason will argue the case in a court of law over a word that we have endorsed or tried to change in the House. So we will carry on here.Can I refer to the farming provisions in here—clause 32(1B). It has been raised before by my colleagues that the provision relating to the person conducting a business or undertaking (PCBU) who is conducting a farming business or is undertaking duties owed by them of course “(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 for the operation of the business or undertaking:”. It continues to say that that does not apply in relation to the main dwelling or “any other part of the farm unless work is being carried out in that part at the time.”There are many farms that will have stockyards out in the far reaches of the farm and they may have been constructed well or they may not have been. The Minister may be able to clarify this. I am assuming that this provision means that if you are not working in the stockyards no one is responsible for any danger that may be caused by the design of them or by stock that may be held in thererunning around. It is a point that does need to be clarified because it seems as though the onus of responsibility shifts just with the people as they move around the farm rather than saying that the PCBU is responsible for the wider safety of the whole of the farming operation. The Minister may be able to explain that.I go on to another part of Part 2 that has been raised before. It refers to penalties I guess for non-disclosure. Anyone in business today who does not understand the implications of notifying accidents and of what that might mean for your ACC rating or for a lot of other things around your business would be naive. It is very very important to notify but it is also a reality that if you notify every accident in your business then your ACC rating and a lot of other things may change and it may affect your business. So while encouraging people to notify—and in fact the bill expects all notifications to take place—one of the questions I ask is: are the penalties sufficient? Are the penalties in line with other provisions across the legislation?SIMON O’CONNOR (National—Tāmaki): I move That the question be now put.GRANT ROBERTSON (Labour—Wellington Central): I see there are a number of members on this side of the Chamber who are keen to contribute further on Part 2.This is my first call on Part 2 and I want to focus specifically on Subpart 2 and clause 39 “Duty of officers”. At the risk of raising the ire of the Chair I do need to refer to clause 13A—which fortunately I am doing right at this moment—which is around the meaning of “officer” which we discussed in Part 1. This is relevant to clause 39. There is a new clause 39(1A) introduced by the Minister for Workplace Relations and Safety in his extensive Supplementary Order Paper 108 which says that “For the purposes of subsection (1) an officer of a PCBU must exercise the care diligence and skill that a reasonable officer would exercise in the same circumstances …”—and later I will go on to talk about the next bit. The question we were raising when we were debating clause 13A was that the definition of an officer is so narrow as to potentially exclude the people whom we believe will actually have the most practical role in terms of health and safety. I have a concern about new clause 39(1A) as to the fact that because we did not amend clause 13A to expand that definition of “officer” we now have the narrow definition of effectively a director—possibly a chief executive officer—type of role.We then have within new clause 39(1A) an officer of a person conducting a business or undertaking (PCBU) being asked to exercise care and diligence and that is good and “skill that a reasonable officer would exercise in the same circumstances taking into account (without limitation)”—on both hands and these are the critical paragraphs—“(a) the nature of the business or undertaking; and (b) the position of the officer and the nature of the responsibilities undertaken by the officer.” That is the very problem with the definition that we have of “officer” because if the officer is not somebody with direct responsibility or at least some level of responsibility for health and safety then under this clause it seems to me that we could say that due diligence does not extend to where it should. It all stops. We could say—I will give an example—that this person is the chief executive officer but their job description or the nature of the responsibilities they have puts them in a position far removed from where decisions about health and safety are being made.The Minister in the chair Minister Woodhouse may be able to enlighten us as to how this particular subclause comes to be here. I suspect it is because clause 39(1) is seen to be too broad—that the term “due diligence” was too wide because the definition of due diligence is also included in subclause (2). I suspect it is because it is probably seen to be too wide as to potentially put too much burden upon the people who are undertaking the role of officers of a PCBU. So that is a question for the Minister as to exactly how new clause 39(1A) has come to be here.I also note that new clause 39(1B) has been added by the Minister in his Supplementary Order Paper 108. As far as I can see that effectively lifts up what was clause 39(3) and moves it to be new clause 39(1B). This is the clause that effectively exempts members of the governing body of territorial authorities from the exercise of due diligence with regard to council-controlled organisations. That is interesting because that is the very point that we have been trying to make about the definition of the officer role. Quite clearly the bill is saying that if you are an elected member of a body—are you really responsible for the health and safety within a council-controlled organisation?So by carving out just those who are in local government I think we actually raise a much wider set of issues about who should be an officer. Why are we saying that just elected officials should be in this exemption? Should we be talking about district health boards? Should we be raising the question of district health boards which equally have elected officers? [Interruption] I am told that the issue was raised at the Transport and Industrial Relations Committee about whether or not we should be looking at all forms of elected officials within this legislation.I can understand the clause; I can see the point that is being made by it. But I do think it raises the concern that my colleague Iain Lees-Galloway had in his Supplementary Order Paper 100 about the breadth of definition of the term “officer”. I do think it is important that Subpart 2 as we go on—and I am going to come in a moment to clause 40 which my colleague Stuart Nash has already mentioned; I want to pick up a couple of those points. But it is important to note that Part 2 is a useful part of the bill in that it does go through and explain in quite some detail the way that the PCBUs will work.I do not think there is any doubt on this side of the Chamber that having clear definitions of what we used to call an employer—that is having clear definitions of what it is that a person who is undertaking a business or controlling a business does—is a really good and useful thing. I want to make that clear. But I think that in doing so we have to ensure that we are putting in place something that can in practice work. I do ask the Minister if he could help us out as to why he has lifted out elected officials in local government and not other elected officials in that regard. I am sure it is because there is—[Interruption] Yes well also it will partly be because council-controlled organisations are one step removed. But district health boards also operate commercial arms so I do think there could potentially be issues for elected officials of district health boards as well.In the last remaining part of this call I do want to move on to the remaining clauses around what happens under a PCBU. I actually want to congratulate the committee and the Minister on the fact that they have put in place issues around duties of workers. That is very important. We all know that health and safety does require parties on all sides of the agreement to be active in undertaking and understanding their duties. I think that is a useful part of this.But then we come to clause 41 “Duties of other persons at workplace”. I think that all of us know what has partly been alluded to here. Every single member of this Committee goes on a visit to a workplace and fills out that form at the door and says: “Yep I’m here and if you need to find me this is who I am and I’ve read it.” I would just caution members of Parliament and others who enter workplaces to have a look at clause 41 of the bill “Duties of other persons at workplace”. It says: “A person at a workplace … must—(a) take reasonable care for his or her own health and safety; and (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and (c) comply as far as he or she is reasonably able with any reasonable instruction that is given by the PCBU to allow [them] to comply with this Act …”.That is implemented in a great variety of ways at the moment in workplaces around New Zealand and I do think it is important that all of us who go and visit workplaces understand the obligations that are being placed on the PCBUs and on the workers who are there via Part 2 of this bill. Take note that clause 41 of the bill actually does extend that out to members of the public who are essentially going there. I do think that there are a lot of caveats in this part—“reasonably able” “reasonable instruction”—and I think that some people might have considered that some of the instructions they were given when they visited certain worksites seemed a little over the top. That is because people are taking this seriously. This part of the bill will most certainly do that.I just want to briefly—because I have got only a short amount of time remaining in this call—make reference to Subpart 3 which of course relates to offences. Again I want to congratulate the drafters of this bill because having clearly stated the duties it is important to then have some sort of penalty. There is no point in having these duties in place unless there is some kind of mechanism for dealing with those who will breach them.In clause 42 we have got “reckless conduct” and the offence of failing to comply with a duty and some very very serious fines. I think it is important that we highlight those. I am here looking at clause 42(3) where committing an offence in terms of reckless conduct in respect of duties has terms of imprisonment and fines not exceeding $3000 up until fines not exceeding $3 million.Clearly we have to take this seriously. We know from the cases that have been before the courts in recent times that it is important for people to understand. I would be interested in hearing from members who were on the committee about whether there were submissions to see these fines and imprisonment terms increase because quite clearly the court cases that have been going through in recent times—particularly with regard to the forestry industry—have seen the most horrific stories. We need to ensure the fines are appropriate.JAMI-LEE ROSS (Junior Whip—National): I move That the question be now put.Su’a WILLIAM SIO (Labour—Māngere): Thank you for the opportunity. This will be my first call of many on this particular piece of legislation—absolutely. And like my colleagues said this is such a thick piece of legislation that I would like to just go slowly in terms of going through Part 2. Before I go into the detail I just want to preface that when you think about the principles that underlie this particular piece of legislation it all seems fine in terms of the principles and purposes and you get a sense that this is about the protection of all workers. But I want to remind the Committee that last night we had a family member whose relative died as a result of a work-related accident who said: “If this is about balanced legislation what does that really mean?”.It suggested to her that we were willing to allow a certain number of accidents to occur by the use of that terminology of “balanced legislation”.I want to now go to Part 2. I recognise that this is about key principles relating to duties. In clause 29C it says: “A person may have more than 1 duty imposed on the person by or under this Act if the person belongs to more than 1 class of duty holder.” I want to ask: does this mean that the person who has been elected or appointed as the health and safety inspector will have other duties on top of that? That is what this suggests. I want to say that that can cause problems. I remember an uncle of mine who in the 1970s took it upon himself to rectify a situation that had occurred in the manufacturing line where there was this big roller machine that was rolling batts. What he did was instead of stopping the machinery—because the health and safety inspector was not present—he took it upon himself to try to push the batts through this roller. Well the cuff of his shirt got caught up. The machine did stop—after it rolled over his right arm. That arm has been amputated. What I am saying is that it suggests that if people are going to have these duties then there needs to be education in the workforce in terms of how those duties should be performed.When you have a multicultural workforce—and I am not just talking about Pacific Islanders from the various five nations in the Pacific who all speak five different languages. I am also speaking about a workforce that I came across in Nelson who are predominantly from Asia—from the Philippines and other parts of Asia. None of this part makes reference to how we pass information on to a particular workforce who may not necessarily be aware of our signs who may not necessarily be aware of the kinds of information that we generally take for granted and assume that by presenting it in English a person will know what those duties are.I also want to recognise—the Committee may not be aware of this but this country of ours takes in on a regular basis a certain number of Pacific workers from Samoa as a result of the Samoan quota and from other islands in the Pacific as a result of the Pacific access category.Many of those workers come from village settings and they are arriving for the first time into our country and may not necessarily be accustomed to the rigours of a manufacturing industry to the rigours of a farm industry and to the rigours of a forestry industry. They are very vulnerable to the kinds of dangers that all New Zealanders agree we are trying to stop and which the purpose of this bill is about.When I go through clause 29B “Duties not transferable” that is fine but if that person is not around what then happens? What I am saying is that it does not seem to be sufficient. If there is going to be one representative and since we are saying that the pool of workers must be 20-plus well it seems to me that it is going to be insufficient that you have only one health and safety worker there. Clause 29D “More than one person may have the same duty” is fine. In clause 29E a person—The CHAIRPERSON (Hon Trevor Mallard): Before I take another call I am going to now give a warning. That was a very good second reading speech and it would have been entirely appropriate to Part 3 of the bill—[Interruption] I know the member did refer to clause 29 but actually the speech was about Part 3. I am going to be listening very carefully from now on.JAMI-LEE ROSS (Junior Whip—National): I move That the question be now put.RON MARK (Deputy Leader—NZ First): I rise to make a contribution particularly on this Supplementary Order Paper put forward by my caucus colleague Clayton Mitchell from New Zealand First. This Supplementary Order Paper deals with clauses 28 29AA and 43. It absolutely staggers me to hear indeed that the Government is not going to support this Supplementary Order Paper.The CHAIRPERSON (Hon Trevor Mallard): I am sorry. I did not quite hear the member. Which Supplementary Order Paper was it?RON MARK: 110.The CHAIRPERSON (Hon Trevor Mallard): Supplementary Order Paper 110.RON MARK: That is right. It staggers me that the Government is not going to support this Supplementary Order Paper because in recent times we have heard so much from the Government as to how it supports farmers in particular the dairy sector in particular and rural and provincial New Zealand. The amendment to clause 43—adding subclause (3)—for me coming from the Wairarapa stands out as a provision that would seek to alleviate an unintended consequence of the legal situation being generated in the Government’s legislation. Our Supplementary Order Paper under the name of Clayton Mitchell aims to alleviate the problem created in the legislation when a person who “is a self-employed individual who is both a PCBU”—or boss—“and a worker in a small-or-medium-sized enterprise in the event of an accidental death of their spouse de facto partner or civil union partner who is also a PCBU and a worker in the same small-or-medium-sized enterprise.” is adversely affected.What concerns us here is a situation where a sharemilking couple who are both owners of the business and workers in it end up in an appalling situation where one of them loses their life in an accident on the farm and the other on top of dealing with the grief of having lost a loved one on top of dealing with the situation of still continuing to run the business on their own is now facing the potential of being prosecuted and charged. This particular Supplementary Order Paper seeks to alleviate that problem. The idea that you could have one spouse being held accountable for an accident and being subject to maybe 5 years in jail or a $3 million fine absolutely astonishes us. This Supplementary Order Paper seeks to overcome that problem. This Supplementary Order Paper is a common-sense practical solution to that problem.I cannot believe that a party that won the Government benches with rhetoric about removing red tape supporting small businesses and being understanding of the needs of rural and provincial New Zealand in particular would reject that amendment. The situation I mention could apply equally to a panel-beating shop somewhere in the middle of Auckland or a petrol station where there is a husband and wife team operating and someone through no fault of their own has an accident and is injured or dies in the worst case and leaves their partner to suffer the consequences—the financial loss the stress and strain of court actions and ending up in prison in the worst case. So I am going to appeal on behalf of New Zealand First alongside my colleague Clayton Mitchell and ask the Government to reconsider its rejection of this Supplementary Order Paper. There is much more in that Supplementary Order Paper that I could speak to.There are parts of this legislation that New Zealand First supports and considers worthy of support and we understand the intent behind them. I am looking at clause 51 “Duty to preserve sites”; clause 52 “Duty to notify notifiable event”; and clause 53 “Requirement to keep records”. All of those things are dealing with sensible stuff aimed at mitigating and alleviating occupational health and safety issues down the line by collecting data so that people have a record and can analyse what happened and therefore take the necessary steps. We understand that Minister.We understand that some aspects of this bill are for things that the Government is genuinely trying to address in order to make the workplace safer for workers but we do not believe that the consequences that I outlined earlier are actually what the Government intended. We cannot believe that and we cannot understand why the Government would not accept our Supplementary Order Paper. We ask the Minister to reconsider that position and to support our Supplementary Order Paper in the interests of supporting those people—what do you call them? PCBUs? I am with the Labour member; they sound like “BOSSes” to me—who are married or in de facto or civil union relationships.SUE MORONEY (Labour): I just want to say at the outset that all this talk of persons conducting a business or undertaking (PCBUs) being reasonably practicable and all these sorts of things are important. I know that for the public who are listening it might sound awfully technical but this is about getting the legalities right about health and safety in the workplace and doing that in Part 2 is incredibly important. I want to cut to the chase in Part 2 and ask some serious questions of the Minister for Workplace Relations and Safety because I think it comes down to the practicalities. I want the Minister to reflect on clause 30 which is the primary duty of care that the PCBUs must undertake.I want to put some scenarios to him because these are the scenarios that really make a difference in the workplace. The first one is to do with clause 30(3)(c) which says that “a PCBU must ensure so far as is reasonably practicable … (c) the provision and maintenance of safe systems of work;”. The situation I want to put to him is this: many of us believe that in the forestry industry one of the main drivers of bad health and safety practices is a system of work where the remuneration is set up so that employees get paid by the number of logs they fell rather than by the hour. It is the view of some of us—certainly it is my view—that this drives very bad health and safety practices because it means that it puts pressure on the workers to work at a faster rate than may be safe because that is the only way that they can make a decent living.Certainly I believe that that was part of the story that Debbie McMillan who is in the gallery here tonight told me about the death of her husband Shane Frater when he died in a forestry accident and that the—I think they call it “piece rate”—piece rate way of operating in the forestry industry was a main driver of bad health and safety practices. So the question I am posing to the Minister is whether a PCBU who operates that sort of system at work is compliant with that part of the bill that I just read out—clause 30(3)(c)? I would hope that the answer is no.This is going to be a little contentious but this is the serious nature of workplace health and safety. I would also ask the Minister whether an employer who uses another piece of legislation that has been passed quite recently by his Government and who has actually negotiated with workers that they do not take their tea break but get some payment for it instead—like the chocolate fish or the extra muffin or whatever recompense they have negotiated—is complying with this part of the bill. Can the PCBU negotiate their way out of providing a tea break or a lunch break for workers which in my view is actually a fundamental piece of goodworkplacehealth and safety and be compliant with this part of the legislation?I am really concerned to see that the Government whips are putting closure motions while we have still got these very serious and reasonable questions on the table for the Minister to answer.The CHAIRPERSON (Hon Trevor Mallard): Order! Closure motions have been dealt with by the Chair and I do not want to have debate on them even before they happen. It might indicate that members are running out things to say about the bill.SUE MORONEY: It is no such indication. It is an indication that I want it taken very seriously by this Committee that there are reasonable questions on the table for the Minister to answer which he has not had an opportunity to answer yet and which I hope in all seriousness are answered by this Minister because this is now cutting to the chase of whether this clause is going to be practicable in terms of dealing with health and safety issues.Earlier—I think the Minister might not have been in the chair at the time—I asked some serious questions about a number of other industries and whether it would apply as well in other workplace practices. For example in the Pike River mine we saw—and I know this happens in lots of other workplaces—bonuses being offered to workers in order for them to undertake unsafe practices to complete projects in an unsafe way at speed and to be offered bonuses. In the instance of Pike River mine what we know is that workers were offered bonuses of $10000 if they completed a project in a certain period of time and for every week that went by that the project was not completed they lost $2500 of their bonus. Those sorts of practices—BRETT HUDSON (National): I move That the question be now put.The CHAIRPERSON (Hon Trevor Mallard): Yes I think we have come to the point where the Committee can make a decision.A party vote was called for on the question That the question be now put.Ayes 63New Zealand National 59; Māori Party 2; ACT New Zealand 1; United Future 1.Noes 58New Zealand Labour 32; Green Party 14; New Zealand First 12.Motion agreed to.The question was put that the amendments set out on Supplementary Order Paper 108 in the name of the Hon Michael Woodhouse to Part 2 be agreed to.Amendments agreed to.The question was put that the amendment set out on Supplementary Order Paper 105 in the name of Denise Roche to clause 29E be agreed to.A party vote was called for on the question That the amendment be agreed to.Ayes 48New Zealand Labour 32; Green Party 14; Māori Party 2.Noes 73New Zealand National 59; New Zealand First 12; ACT New Zealand 1; United Future 1.Amendment not agreed to.The question was put that the amendment set out on Supplementary Order Paper 110 in the name of Clayton Mitchell to clause 43 be agreed to.A party vote was called for on the question That the amendment be agreed to.Ayes 12New Zealand First 12.Noes 109New Zealand National 59; New Zealand Labour 32; Green Party 14; Māori Party 2; ACT New Zealand 1; United Future 1.Amendment not agreed to.A party vote was called for on the questionThat Part 2 as amended be agreed.Ayes 109New Zealand National 59; New Zealand Labour 32; Green Party 14; Māori Party 2; ACT New Zealand 1; United Future 1.Noes 12New Zealand First 12.Part 2 as amended agreed to.SUE MORONEY (Labour): I raise a point of order Mr Chairperson. At the outset of the Committee stage debate on this bill you set out very well the expectations around the debate. As part of that you talked about reasonable questions being raised with the Minister and that being taken into account in terms of accepting closure motions.The CHAIRPERSON (Hon Trevor Mallard): Can the member come to the point of order.SUE MORONEY: Yes so the point of order is some guidance on that because it felt to me like there were reasonable questions that were on the table for the Minister to answer during that last debate and I feel that it is a shame that we did not get the opportunity for the Minister to answer those. I am really just seeking some guidance on that.The CHAIRPERSON (Hon Trevor Mallard): What I did indicate and I will reiterate is that where there are reasonable questions that are asked and the Minister answers them there will tend to be a discount as to the time that is allowed. The opposite also applies with the reasonable questions that are asked and not answered. Up until the point they become too repetitive the debate is likely to continue. I think there is some obligation on members when they have important questions that they want the Minister to respond to to ask their questions generally within the first 10 minutes of their speaking time rather than after the Minister has responded. That will not always be possible but I think that is good guidance to members.Part 3 Engagement worker participation and representationHon MICHAEL WOODHOUSE (Minister for Workplace Relations and Safety): We come to what is really the meat and drink of the bill. I get the feeling that Parts 1 and 2 were the curtain-raiser to what is the main event and the reason that Opposition parties are so opposed to the bill. I certainly have appreciated the robust but respectful interventions so far and I trust that they will continue through Part 3. I have reasonable expectations about the degree to which we are able to create an epiphany and unity around the Chamber by the end of the night but we will give it a go. I want to start by referencing—Hon Ruth Dyson: Do a rousing version of “Kumbaya”.Hon MICHAEL WOODHOUSE: That is right. I want to reference the Independent Taskforce on Workplace Health and Safety report because it has been quoted quite a bit particularly in the context of worker representation. I have said publicly that I have been disappointed at the misrepresentation of the Government’s position in this regard. I stand by that and I want to explain why.It is very clear to me that there is a disassociation between health and safety participation and health and safety representation. They are two quite discrete things but very often in the public narrative they have been conflated. I just want to quote the task force report at paragraph 234 235 and 236: “We consider that there needs to be a major ‘mind-shift’ in New Zealand society and in workplaces. This ‘mind-shift’ needs not only to lead to more opportunities for worker participation but also to set an expectation that everyone in the workplace is responsible for workplace health and safety.” It went on to say: “… the Taskforce considers it is important that each workplace is able to identify the approach to worker participation that is appropriate to its circumstances. Case study research commissioned by the Taskforce reinforced that worker participation arrangements are varied and ‘how they work in practice is somewhat different from that envisaged by the legislation’. While a one-size-fits-all approach to effective worker participation is not appropriate PCBUs do need to ensure that they have effective systems for worker participation …”.It did go on in another part of the report to say that health and safety representation also needed to be beefed up and I accept that. I believe this bill does that. What we have is the task force saying three things: worker representation needs to be beefed up; worker participation needs to be across the board; and crucially there is not a one-size-fits-all approach to this. I think that point is the crucial point when it comes to arguing about the merits or otherwise of the mandatory requirement to have health and safety representation superimposed on what we agree is the mandatory requirement to have worker participation.This is fundamental to the approach of what I believe is a sensible and balanced approach to where the Government has landed in this bill. We will argue the merits of that through Part 3. I do want to—and I will attempt to do this as gently as possible because I have tried very hard in the data that I have explored to find a correlation between the presence of a health and safety rep in the workplace and the incidence of serious injury and death in the workplace and I cannot. I am not saying for a moment that health and safety representatives are not important—in fact quite the opposite. But what that says to me is that there are many other factors at play in determining whether practicable steps are being taken in a workplace to keep people safe and whether all workers are participating in that health and safety process.I have reflected a lot on this and in a previous life as a chartered accountant giving business advice to small businesses one of the things that I observed in those businesses was that often somebody gets to be the go-to guy. They become the health and safety rep and it is that guy’s responsibility. Indeed it is a bit of a cop out. This was redressed by the Independent Taskforce on Workplace Health and Safety report. It is really important to me that that not be the case because worker participation is the most important change that we need to make in bringing about the culture change that is necessary in our workplaces. I firmly believe that for many organisations if they do not have the right culture settings just having a health and safety rep is the easy path.You know what the harder path is going to be I suspect? I think the harder path is going to be when a small business that is not in the classification of high risk says “You know what the health and safety rep is not the right model for us. We’re going to have another way of engaging all of our workers in health and safety.” whether it is going to be weekly tool box meetings whether it is going to be a connected online health and safety app—because remember a lot of these sort of plumbing firms or construction firms or whatever they are out and about. They are not in an office. They are all over the town sometimes and getting together and understanding where the hazards are what the risks are and how to manage them is not a one-size-fits-all approach.All of that said the purpose of this is not to diminish the important role of health and safety reps. They are very important but they are not the only way to deliver effective health and safety participation and that culture. So this framework has been very clear that the majority of workers in New Zealand—more than three-quarters—will be in organisations where when the staff ask for a health and safety rep they will get one. I have every confidence that of the other quartile the answer to the request for a health and safety rep as it is now will be “Yes.”But it is not a one-size cookie cutter approach to worker participation. I set out in the upper quartile of risk the principles that we will use to identify and consult on the regulation that will determine high-risk industries and the risk of a catastrophic event. We know that Pike River is driving a lot of our thinking. An industry with a fatality rate of more than 25 per 100000 workers and an industry with a serious injury rate of more than 25 per 1000 workers—with just one exception everybody above that line is in. We have added in construction on the basis that there is an occupational disease risk with asbestos and silica and I think that is appropriate albeit that I have to acknowledge that the construction industry is on a very very positive path to improving its serious injury rate. It has nearly halved in the last 5 years and we have got to acknowledge that.Most of farming is out. That has caused quite a surprise and lots of conspiracy theories about internal ructions and so on but the simple fact is yes we need to improve our health and safety performance on farms and yes there is a high number of people with serious injury and death but they are also our largest industry. So when you standardise those rates by the size of that industry and the size of the workforce it falls down the rankings and out of that top quartile. I do happen to believe that farming is one of those industries that does require a different approach because of the nature of the workplace and that the health and safety rep system may have been the easy path out anyway. One would probably see I think some farming entities taking that up but actually what I want from farming is a much much more nuanced approach to health and safety because it has to lift its game. We are going to resurrect the quad bike safety committee because that is kind of the ground zero for farming injuries and deaths and if we can fix that and if we can ease farming concerns about the regulator which actually we are on a really good path to I think we are on a much better trajectory for improving health and safety in that industry.I stand by these changes. I strongly endorse them as being the right approach and the balanced approach to effective health and safety representation and most important the culture change through worker participation that this country needs. We said it at the start and we have said it at each reading: laws and regulations are not going to make the change we need; behaviours and attitudes are and that involves every worker every person conducting a business or undertaking and every officer.SUE MORONEY (Labour):Well what a bunch of weasel words. What a bunch of weasel words from the Minister for Workplace Relations and Safety to actually try to describe what everyone knows happened in the National Party caucus when it bottled out of delivering proper health and safety systems for all workers in New Zealand. That is what has happened. That is what has happened here and there are no weasel words that will hide that because what the Government has done is it has actually decided who is worthy and who is not worthy of the most effective health and safety representation. That is what the National Government has done. The Labour Party believes that every worker no matter what industry no matter what size of workplace and no matter what location in the country they come from deserves the most effective health and safety representation if they want it.Minister you left one vital part out of your deliberation on this part of the bill: all the requirement was going to be was that if workers requested an elected health and safety representative then their employer would be required to allow them to do that. That is all that was going to be required and when the bill went to the Transport and Industrial Relations Committee that is exactly how it read. That is exactly how it read because that is what the royal commission was recommending that is what the task force was recommending and that is what every party around this debating chamber agreed with.Sadly because of the mean-spirited nature of the National Government and because of its lack of commitment to getting genuine health and safety representation right across the board it has lost the support of some of the parties in this Parliament. That is a very great shame because this should have been a non-partisan issue. The Government has managed to screw that up and make it a partisan issue because it has come to the defence of some of its backers and supporters and has actually bottled out of having this legislation with the strength it had when it first came to this Parliament.The Minister is right about one thing: this is the crux of it. This debate is the one that I think we have got to pay serious attention to because it is the part that says that for around about 25 percent of the workforce even if they want to have one of their own elected to speak on their behalf when it comes to health and safety that is not going to happen. That is the decision of this Government—25 percent of our workforce. Not just any old 25 percent of the workforce but the 25 percent of the workforce that in some instances work in the most dangerous sector in this country: agriculture. The Minister can use the figures any way he likes to try to dumb that down but the truth of the matter is that agriculture kills more people in New Zealand than any other workplace. That is a fact. Nothing that the Minister says is going to stop the New Zealand public from understanding that. They know about the quad bike deaths. They know about the unnecessary deaths of people who have been knocked over by stock. They know about the unnecessary deaths of people who have been killed by hay-bales. They know about these things and no amount of weasel words and moving the data around is going to convince people otherwise and it certainly will not convince the Labour Party otherwise.We have Supplementary Order Papers to fix this—to fix this sham of pretending that the most dangerous workplaces in New Zealand are not the ones that that Government will exempt from being required to have elected health and safety representatives in place when the workers ask for them. I want to reiterate that last part of the sentence again: when the workers ask for them. There is your flexibility Minister. If it is not going to be the most effective system then the workers are not going to want it. But that party opposite listened to the likes of Talley’s which came along with its bad health and safety records and said to the select committee that workers would demand these reps whether they were going to work or not. Talley’s said that workers were going to demand them because it thought there was a hidden agenda.There was some other secret agenda some unnamed agenda that Talley’s would not name that they convinced the National Party members was going to ruin workplace health and safety and ruin the workplace.Well I put it to the Minister again and I would like an answer to this: is this the way in which we are going to allow situations like bonus payments to happen which drive bad health and safety work practices? Is this the way in which we are going to allow the meat plant chain to be sped up against the will of the workers which causes serious harm without that being challenged by an elected health and safety representative?Here is the other part of Part 3 which in combination with this I think is very dangerous: the determination of work groups. I can see that what is going to happen is that large workplaces are going to restructure themselves so that they come under the provision of having 20 workers or fewer. If they seriously want to avoid the requirement that restructuring will start happening and I confidently predict it because we have seen it before. We have seen it before when pieces of legislation have given employers an out and lesser compliance because of the number of workers they employ. They simply restructure themselves so they fall into that and that will make New Zealand a laughing stock again in terms of our health and safety record. This is a country that has no excuse for having a bad health and safety record and yet we lead the tables that you do not want to lead internationally over workplace deaths and it is not acceptable. This part lets us down badly. The Labour Party actually voted for both of the first two parts of this bill because they made sense. This part we will be voting against. We will be absolutely opposing it because this is the part that dilutes it.Why is it that they so badly do not want to have elected health and safety representatives in those smaller workplaces and on those farms? One of the things I did before I came to this place was to train those health and safety representatives. The one thing that is going to make sure that small workplaces actually comply with this legislation is that a living breathing trained elected health and safety representative will be there to know whether this legislation is being complied with or not. If there is not an elected health and safety representative who is trained to know whether it is being complied with or not who is? Who is going to be on every single one of those dairy farms who is going to be in every corner dairy who is going to be in all of these small workplaces to know whether this has actually been complied with or not? Because it ain’t going to be WorkSafe—it ain’t going be WorkSafe unless that Minister is going to start employing a whole lot more WorkSafe officers to be in all of those workplaces all over the country. That is the value of having elected health and safety representatives. They are on the ground. They know what is happening they know what is not happening and they get trained in this legislation to know what the obligations of all the parties are—but not under this Government.Under this Government even though the workers might desperately need one of their own to be elected to speak on their behalf if they are in a small workplace with fewer than 20 employees unless it is a high-risk industry—and now farming is apparently not high risk under this Government—they are not going to be able to get their voices heard on health and safety.The Minister talks about workplace participation as though it is something that just naturally happens in the workplace. Well I put it to the Minister that the Pike River mine would have been able to comply with this part of the bill and it would have been able to say that it had workplace participation going on in health and safety because every once in a while it would meet and talk about health and safety. Every once in a while it would have meetings with its workers and preach to them about what was going to happen with health and safety. But did those workers have a voice a genuine voice in health and safety? No they did not and it has become far too painfully clear that they did not.I would challenge the Minister to tell this Committee how he is going to ensure that worker participation systems are going to be in place where there is a genuine say from the workers and not just a tool box meeting where they get told what is going to happen next—what is and what is not going to happen how they are not going to get their ventilation sorted out and how they are not going to get the emergency exit that they need in their dangerous workplace. That is exactly what happened in the Pike River mine and I believe that this is what will happen under this waffly idea of a worker participation system.JAN LOGIE (Green): I am very pleased to be able to take a call on this Health and Safety Reform Bill. It is the first call I have had an opportunity to take on this bill. After being present last night to hear the members of families who have lost people due to workplace deaths I feel the weight of responsibility in debating this issue and the privilege of being able to speak and to try to in some way convey their concerns particularly around this part of the bill. Although counter to what the Minister seems to be suggesting this is at the heart of what needs to happen. Worker engagement is essential to ensuring safe workplaces.What we see in this part is in effect a gutting of the recommendations from the Royal Commission on the Pike River Coal Mine Tragedy and The Report of the Independent Taskforce on Workplace Health and Safety which was promoting a model very similar to the Australian model of health and safety law which is big on worker participation. It has provisions for elected health and safety representatives health and safety committees training for health and safety representatives and for health and safety representatives to have powers to enforce health and safety on the job. What this bill and this part do really guts that which means that the intent of the royal commission and the pain that those families have been going through—in their own grieving as well as standing up and advocating and sharing their experiences with us as a Parliament and with the rest of the country—are to be for nothing if we pass this part of the bill as it is.We have heard from the Minister that they have considered these issues and have decided that this is balanced. Well you know the words of the family were that balance means nothing if there is going to be another death. To them balance is not worth the loss of their families. I think it was Bernie Monk who said that it will feel as if the deaths were for nothing; that there will be no legacy or resolution for their advocacy and working through of that grief if we do not ensure that there are strong provisions for all workers in this country.The fact is that a limit has been set on 20 workers in a workplace when we know that 97 percent of businesses in New Zealand have fewer than 20 workers and that is where the whole small business strategy in this country sets out that 97 percent have below 20—Hon Ruth Dyson: Just says 87.JAN LOGIE: Eighty-seven was it? Sorry—the document I read said 97 percent. Maybe the numbers have changed in recent times.Hon Michael Woodhouse: Oh 25—25.JAN LOGIE: But it is—well I think we are really quibbling to be arguing that point Minister Woodhouse and I think you are really missing the point if you are going to argue that. Then to have a separate section to say “OK well we’re going to identify the high-risk industries as the exception to that.” when we do not have that in legislation where it is going to be a debatable point outside of this Chamber is again not doing honour to the advocacy of those families.I was very privileged to sit in on some of the submissions and there were a huge number that the Transport and Industrial Relations Committee heard on this bill. We heard from I think the Forest Owners Association which was saying that it had no issue with worker participation and that it had very good worker advocacy on its sites. That was in direct conflict I think to Helen Kelly’s presentation where she talked about the reports on her office wall of forestry deaths where there was no worker voice in any of those reports.Our employers are saying “Yes we’re doing these things.”—probably according to the provisions of this bill—and yet there is no worker representation or voice when it comes to those death reports. I think it tells us something about the need to have it down clearly in legislation so that there is no ability to kind of muddy the waters and say “Yes we’re doing this we care.” when actually the overriding interest is the short-term dollar.Dr PARMJEET PARMAR (National): Thank you Mr Chair for the opportunity. This is my first call on this bill so I want to acknowledge all members on the Transport and Industrial Relations Committee. I especially want to acknowledge the Minister for Workplace Relations and Safety for his work on this bill and the select committee chairperson Jonathan Young. I also want to thank all submitters for their input and the effort they have put into helping us shape this bill.In Part 3 the amendments recommended by the majority of the select committee were thoroughly discussed in the select committee. Those recommendations were made after taking into consideration all aspects of various submissions that we received. Once this legislation goes through it is going to be applicable to all workplaces so we need to think wider. Workplace safety can be achieved by implementing safe work practices and not by adding compliance costs on businesses. Keeping safe at work is in everyone’s interest.The argument from the Opposition that worker participation is not enough is underestimating worker participation in safe work practices and health and safety. Workplace health and safety is important. No one is denying that. We have a serious rate of injuries including fatal injuries at workplaces here in New Zealand. No one is denying that either. That is why this Government is working hard and is investing significantly to reduce workplace injuries. This bill is part of that work. This bill is to update to clarify and to simplify the law to focus on high-risk areas. It is about getting the balance right. This does not mean that low-risk businesses are not required to have any health and safety regime. Low-risk businesses are required to have worker participation. They will have their routine health and safety built into their system and they are required to have safe work practices. They are not exempt from following health and safety legislation.For workplace health and safety worker engagement and participation is important and it is important to differentiate between high-risk and low-risk businesses. The amendments to worker engagement and participation are about making the bill practical for different business types. Clause 65 which is amended by inserting a new subclause (3) to make things clear for high-risk versus low-risk small businesses is the right thing to do. High-risk sectors and industries are specified by the Minister and the list of high-risk industries was based on set criteria and data looking at the rate of injury in those industries the rate of fatality in those industries and businesses with the potential for a catastrophic event to occur. It is right to do that. It is important that we differentiate between businesses that we differentiate low-risk businesses versus high-risk businesses before we go out and create more compliance costs for businesses.Any person conducting a business or undertaking with fewer than 20 workers—if that business is a low-risk - profile business—can refuse to establish a health and safety committee on the basis that they have a satisfactory system where they have worker participation practices at the workplace. It is important to have worker participation because sometimes employers do not have hands-on experience of what is happening on the floor. Workers have more experience and they can contribute more to health and safety practices. It also gives the opportunity to workers to understand how health and safety is important at the workplace how it is important to look after themselves and also important to look after their colleagues.This side of the House believes that we need to look after our businesses in the right way. We want to make sure that our businesses survive and that we are not putting any unnecessary burden on our businesses. Our target is to reduce the number of injuries so we need to target the kind of businesses where injuries are happening. There is no point in increasing compliance for businesses where there are no injuries or a low number of injuries happening. We want to encourage competition in the economy and we are saying that worker participation is going to be there. They have to follow health and safety but it is all about having health and safety reps and health and safety committees. That is the difference for small businesses—JACINDA ARDERN (Labour): It is becoming a bidding war; thank you Mr Chair. I wanted to come back in my response to Part 3 of the Health and Safety Reform Bill to the statements that the Minister for Workplace Relations and Safety made at the beginning of his contribution. He stated that the primary point that he wanted to make around Part 3 was that we need to create a culture change within workplaces—that we need every worker to feel engaged in workplace health and safety. That somehow was his rationale for why we needed to exclude a certain sector of businesses from these provisions.Yet what it is about small businesses that means that culture change will not be achieved if we have health and safety reps in them that does not apply to larger-sized businesses? Of course no one is really going to argue with culture change but the Minister’s notion that that was a rationale really does not stand. In fact if anything it felt almost contradictory to say that in the larger workplaces we see this as a conduit for creating greater workplace health and safety but we see it as a barrier for small businesses. I would be happy for the Minister to stand up and explain again if I missed the point the Minister was trying to make but I personally saw it as not really a fair and reasonable point.I do want to delve a little bit into the exemptions that sit within Part 3 because we do have an exclusion here that applies to small businesses and as has been pointed out by Jan Logie that is a significant proportion of workplaces in New Zealand—Jan Logie: It is 97.JACINDA ARDERN: Over 90 percent. In fact 41 percent of the new jobs that were created last year were created in businesses that will now be exempt from some of these provisions. I want to delve into some of the rationale for those exemptions and how they might apply.But before I do the one thing I do want to say is that in my role as small-business spokesperson for the Labour Party one of the strong messages I consistently hear—yes that was a plug Chris Bishop—when talking to small businesses is: “If you’re going to regulate us make it consistent and make it clear.”In some cases carve-outs can be unhelpful things when you have different rules applying particularly when there are penalty regimes attached—when a business that might be exempt one day employs an extra part-time worker and is not exempt the next. Sometimes that can actually do more harm than good and if the primary reason that the National Party is falling back on exemptions is to be seen as the saviour of small business I think that is pretty weak. In fact I actually think that as it stands there is no reason to give that exemption because the way that this part is structured is primarily driven by what the workers see as need. And if the workers suggest that they want reps then obviously there is a need there and if they do that within a small business that should be particularly compelling as a reason to prompt having a rep. The option exists so why create a blanket carve-out where you move away from an option to actually creating a ban? That is essentially what we see instead which seems crazy from my perspective.Coming to Part 3 clause 65(1) states: “A worker who carries out work for a business or undertaking may notify the PCBU”—the boss—“that the worker wishes 1 or more health and safety representatives to be elected to represent workers …”. OK that is the first way that you can initiate having an election of a health and safety rep: a worker initiates it. New clause 65(2) states: “A PCBU”—the boss—“may on the PCBU’s own initiative initiate the election …”. That is the second way. So basically what we are seeing is that if need is identified within that workplace there are two trigger points there that are available. But it says in new clause 65(3) that: “a PCBU is not required to initiate the election of 1 or more health and safety representatives if the work of the business or undertaking—(a) is carried out by fewer than 20 workers; and (b) is not within the scope of any … high-risk sector or industry.”Coming back to the Minister’s point if there is a culture of health and safety within a workplace that everyone has adopted and that is functioning well you are probably—[Bell rung]. Oh you said my name. Thank you. I was probably shouting over you. It is probably unlikely in that case that workers would see a need to trigger the election of a health and safety rep. On the flip side if your workplace is as small as 20 employees or fewer and you feel like you need to trigger the election of a health and safety representative that actually probably points to there being some issues in the workplace. Why would we want to exempt workers from having that right and having that ability?The Minister’s fall-back position here in new clause 65(3)(b) is that there will by regulation be a list of workplaces where that carve-out will not apply. I have some concerns here. The Minister talked about there being no correlation between health and safety representatives and workplace safety—Hon Michael Woodhouse: None that I could find. Feel free to table it.JACINDA ARDERN: —that he can find. I would be really interested if he has found any correlation between smaller workplaces being safer than larger workplaces because this is a very arbitrary line in the sand that is being drawn.The Minister has tried to counter that by saying: “Well we will carve out the ones that we think are high risk.” But how do you define that? The indication that we have had is that an indicative list of high-risk industries will be based on roughly three categories—the Minister can correct me if I am incorrect here—“businesses that carry the risk of a catastrophic event causing multiple fatalities”. What is the definition of “catastrophic”? Sudden great damage is one of the definitions. Examples that you will find if you choose to look up a dictionary which in the Committee stage I am quite in favour of is that the definition of “catastrophic” usually uses references to natural disasters—fatalities from earthquakes or things like failures of dams.These are things that actually probably are unlikely to be—well outside of a natural disaster—in a small workplace. Perhaps you might conclude that catastrophic events might occur in small mining operations. Perhaps if you work in pyrotechnics or explosives they might occur. But I think it is fair to say this is a reasonably narrow definition. The use of the word “catastrophic” would be a narrowing provision in any indicative list. If the Minister wants to find another definition in the dictionary he would be welcome to.The second category is any industry with a fatality rate greater than 25 per 100000 workers although we are excluding agriculture—Hon Michael Woodhouse: They are not over 25.JACINDA ARDERN: —but it still has a significant rate of injury and fatality—and any industry with a serious injury rate of more than 25 per 1000 workers. My concern with this is first—and absolutely right as my colleague Clare Curran points out—what is the definition of “serious injury”? If for instance we use the definitions used by the Department of Corrections it is whether or not you are hospitalised for 24 hours or more. That is significant—to be hospitalised for 24 hours or more—these days. You basically would not consider having a baby “serious” under that provision with the way that we send women packing from our hospitals.So if that definition is what we are using that also requires the recording of serious injury. I admit I do not know the area well enough to know the depth of data that we have but I would be particularly interested in what data collection there is around serious injuries in small businesses and in smaller workplaces. Do we really have a handle on some of those areas of industry? Is our data collection robust enough to really make that the provision on which we are excluding those industries?The same arguments apply I believe to health and safety committees. Again the provision there is when five or more workers in that workplace trigger that provision. If a quarter of the employees of a small business say that they need a health and safety committee you have got a big problem on your hands. That is the kind of workplace that needs the ability to have those committees. Why would we ban that as this bill does? It is wrong. The exclusion should be removed.Progress reported.Report adopted.