Nash Stuart: Health and Safety Reform Bill — In Committee Speaker Recalled In CommitteeText is incorporated into the Bound VolumeNash Stuart: Health and Safety Reform Bill — In Committee Speaker Recalled In Committee[Sitting date: 19 August 2015. Volume:707;Page:5996. Text is incorporated into the Bound Volume.]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—