Health and Safety (Pike River Implementation) Bill — In CommitteeText is subject to correctionHealth and Safety (Pike River Implementation) Bill — In Committee[Sitting date: 12 November 2013. Volume:694;Page:57. Text is subject to correction.]Health and Safety (Pike River Implementation) BillIn CommitteeDebate resumed from 5 November.Part 1 WorkSafe New Zealand(continued)Hon SIMON BRIDGES (Minister of Labour): Last week I was in full flight in the debate on the Health and Safety (Pike River Implementation) Bill answering some of the reasonable contributions from around the Chamber. It was a great pleasure to speak then as it is now because this is a bill that I anticipate does have multiparty support and quite rightly so given its content and given that we are all I think unified in trying to do something very good in terms of health and safety and lifting that in this country.Let me not take up more time now; I may make a contribution later. Let me just acknowledge the member Brendan Horan who came to my office with Supplementary Order Paper 371. It was a helpful contribution and we have effectively been able to amalgamate it or subsume it in the Government’s Supplementary Order Paper Supplementary Order Paper 374. It was of course to do with the entitlements of workers transferring from the Ministry of Business Innovation and Employment through to WorkSafe. So I just place on record my thanks to him for his useful contribution in that regard.DARIEN FENTON (Labour): I am going to endeavour to do my best to speak on this bill tonight. As you can hear I have somewhat of the lurgy that has been going around Parliament; however I will do my best to put my views and those of others on this very very important bill the Health and Safety (Pike River Implementation) Bill on record. It is in the context of a lot of work that has gone on and a dreadful tragedy of course which occurred some 3 years ago now and bearing in mind as we always do the loss of the lives of 29 miners—the unnecessary loss of life—and the work that came out of the inquiry of the Royal Commission on the Pike River Coalmine Tragedy. That made recommendations around how we could get on top of our appalling health and safety record and the sheer negligence that had developed in the mining industry. That is what has given rise to this bill. I also want to recognise that there has been a health and safety task force. Some of its recommendations—I think it reported back in July—have been incorporated into or have informed this bill. Also an exposure draft has been released by the Minister of Labour on a new health and safety in employment Act which is being consulted on at the moment. So there are multiple changes going on in health and safety and we also say so there should be given our disgraceful record of health and safety in this country.Part 1 helps establish the stand-alone agency called WorkSafe which was a recommendation of the Pike River coal mine commission of inquiry and also of the Independent Taskforce on Workplace Health and Safety. Both made very comprehensive reports and I think have built consensus around the need for major change in our approach to the health and safety of people at work. That is why Labour is supporting this bill has been pleased to participate in the Transport and Industrial Relations Committee process and will work constructively on other health and safety changes that are coming forward. That said I cannot go far without noting that it is a real pity that at the same time that we are really trying to tackle health and safety in New Zealand and that we are really trying to get New Zealand off the map of the worst health and safety death and injury records in the world we are changing employment law which I think will have only a detrimental effect.However turning to Part 1 the task force was particularly clear about the need for tripartite involvement. The Minister has been a little bit cute on that. He did tell theTransport and Industrial Relations Committee earlier this year that the WorkSafe board would include union representation. He actually used the “u” word which I thought was pretty brave of him because it is not in this bill. It is not in this bill anywhere. I recall that it actually made some headlines. People said: “Oh the Minister of Labour is going to have unions in this new task force—shock horror!”. But of course when you look at what is actually in the bill although there has been an amendment that has made an improvement in who is on the board of WorkSafe New Zealand it does not pick up the recommendations of the task force and does not recognise tripartism in the way that we certainly understand it and that the International Labour Organization understands it. I think that is why Andrew Little’s Supplementary Order Paper 387 has an excellent description of what should be in the bill. It should include a board of three representatives of Business New Zealand; three from the Council of Trade Unions who are the most representative organisation of workers in this country; and three appointed by the Minister to represent other interests. That would be a true tripartite board. As I said this is what the health and safety task force originally recommended.I have heard no clear reason from the Minister why he is departing from that. We had no real explanation in the select committee. We asked the officials at length to explain to us what “tripartism” means. Some of our National colleagues on the select committee had no idea and were I think a little bit outraged at the idea that the Council of Trade Unions would have some role. I recall that one of the members wanted to go to great lengths to talk about the very small number of unions that are outside of the Council of Trade Unions—why they did not get a say. Well you know they can. They can come and make submissions and so on. The point of a tripartite board like that would be that it was a genuinely independent voice for workers employers and of course the Government as well. That means there is consistent representation. There is a consistent voice.The reason that we are so strong on this is because if you look at the theme through both the Pike River commission of inquiry report and the Independent Taskforce on Workplace Health and Safety it is the fact that the worker’s voice in particular in health and safety over the last 20 years has been lost. Employee participation has become a tick-the-box exercise. It has become something that many employers control and where workers are simply afraid to stand up and have their voices heard. I think we have seen the consequences of that. I do not want to keep going over the tragedy. I would like to know from the Minister though whether he feels obliged to get on his feet to explain why he objects to the recommendation of a tripartite board. I would be interested to hear his views on that.The other thing about Part 1 that I am a bit concerned about is that the functions provided for WorkSafe in the bill are pretty much a shadow of those that were recommended by the health and safety task force. For example the agency has no power to approve codes of practice. There is no role in making or amending regulations it has no clear lead role in workplace health and safety it cannot make recommendations about the nature of funding and it has no role in the important job of fostering tripartism or working with unions. I think that that is a real shame. I think that it is a missed opportunity. There is an opportunity for us to revisit the issue of the board representation. Hopefully we would see from that tripartite leadership as we have seen on the health and safety task force and as we have seen through the business forum for health and safety as well where it has been prepared to stand for business and say: “Actually yes workers should have a formal voice through their unions and we shouldn’t be afraid of that.” So we are supporting this bill but I think that it is a shame that we cannot get this agency off on the right foot. We need to accept our history and own up to it. That exclusion of workers and workers’ organisations in health and safetyand the changes to the Health and Safety Act in Employment Act 1992 were a fundamental mistake which has ultimately led to not only the tragedies of the Pike River mine but many others—the disgraceful record that we have; the disgraceful record where we see people die or get injured every week in our workplaces.I accept that this Government is genuine and I congratulate it on the work that it has led and the Minister of Labour’s predecessor Kate Wilkinson as well. I congratulate them on that work but I think there are two things: let us understand that unless there is a genuine workers’ voice this is going to be problematical and will continue to be problematical. Let us also—please Minister—understand that the other changes that you are proposing to legislate are going to undermine the very very good work that is being done in this bill. So in Part 1 there are those two things that I have mentioned. There is plenty more to mention and I will have another call I hope.If I do not get the opportunity I did just want to mention the issue about the transfer of workers. I have not had a look at Brendan Horan’s Supplementary Order Paper 371—I am sure it is good and we will support it—actually I do not know if we will support it; I will have a look at it. But what I do not want to see is a continuation of the botch-up that we have had with health and safety inspectors in the inspectorate who where we have had this change programme have been through endless change. It was part of the problem that contributed to the Pike River mine disaster in fact where they were so under-resourced that they could not even get the travel costs to travel to inspect the mines. So let us make sure that in transferring those health and safety inspectors from the old Department of Labour—the Ministry of Business Innovation and Employment; whatever it is called these days—to the new agency that those things are taken care of as well and that there is proper resourcing and that we get up to our full complement of—ANDREW LITTLE (Labour): I just want to take a reasonably brief call on Part 1 of this bill the Health and Safety (Pike River Implementation) Bill. This is a very important part about the governance if you like of WorkSafe New Zealand the new agency that will take responsibility for workplace health and safety leadership in New Zealand. Of course we know—and there has been ample research—that good health and safety practice in the workplace also means good health and safety practice in the home and in the community more widely. Workers who are well drilled well exercised and well trained in health and safety practice in the workplace take it back into their homes and the wider community. One of the bigger claims on ACC is injuries caused by DIY. So this is a great opportunity with WorkSafe New Zealand—a dedicated agency—to get it right.It is a great opportunity to repair the mistake of 1992. The failure in New Zealand’s health and safety performance goes back to the failures in the Health and Safety in Employment Act 1992 where we did a half-pie job in reforming health and safety. We drew on the English model which had been in place—would you believe—since 1974 thinking that we would do the same thing. But of course we did our workplace health and safety reform at probably the peak of anti-unionism anti-collectivism and anti having an independent worker voice and we did the wrong thing. We had an opportunity then to not only have the open-textured law that was the Health and Safety in Employment Act which replaced the plethora of legislation that we had—the Machinery Act the Construction Act the Boilers Lifts and Cranes Act and every other piece of industry-specific legislation you could think of. We replaced it with this open-textured legislation but what we did not do was support that with a range of other measures.One of the things we did not support it with was a commitment to genuine tripartism in the workplace. The reality is this: the people who are dying and who are beingmaimed and injured in our workplaces are not the managers and they are not the business owners; they are the frontline workers. Those ones—whether with their trade skills their certificates of completion for their on-the-job training or whether they are simply learned in the task they are required to perform—are the ones who are suffering the injuries and they need to be involved in decisions about health and safety.For that to be meaningful and indeed for that to be led we need an agency that reflects that tripartism as well. The independent voice of workers must be reflected in workplaces along with the independent voice of employers. They must all be reflected in the governance of WorkSafe New Zealand. That is about sending a signal about how we want health and safety management to be conducted in the future. But it also has a practical effect on the leadership of health and safety regulation in this country.So I urge the Minister of Labour to rethink and to consider the Supplementary Order Paper 387 that has gone up which provides for a recast board of WorkSafe New Zealand and equal representation of the social partners—workers employers and the Government.I think that if this Minister were to do that then that would send a very strong signal and would be a courageous step by a Minister who I know has a got a long political career ahead of him—probably longer than mine. I would want him to be able to look back in some years’ time and say: “I did the right thing.” It is something that goes against the natural National Party grain—that is not a criticism; that is an observation—but we would look to a Minister who took a courageous step and said “Yep. We want to really transform and change health and safety leadership and management in this country and we are going to build our structures from top to bottom to reflect that.” Changing the governance of WorkSafe New Zealand by ensuring genuine tripartism and by incorporating the social partners would do that. That would be a cause for celebration and of great admiration. Naturally we support change because the change in this bill will be positive for the workers of New Zealand. The change in that governance would add to it.CAROL BEAUMONT (Labour): It is a pleasure to rise in the Committee stage of the Health and Safety (Pike River Implementation) Bill. I want to pick up from where my colleague Andrew Little has just left off in looking at Part 1. I will consider clauses 7 8 and 9 in this contribution.The establishment of a new workplace health and safety agency WorkSafe New Zealand is something that is vital and it would be fantastic if we could agree and make changes to get something set up that is going to be world class and that is going to make a real difference. We know and we have seen firsthand in this country in recent times just how wrong things can go at work. The fact is that we want—and I am sure that is across this House—to see that we are as safe as we can be in our workplaces and that people go to work that they do their job to the best of their ability and that they come home safely. The establishment of WorkSafe New Zealand is part of that. We believe that at the moment unfortunately there is a missed opportunity to create that world-class health and safety regime.The first reason for that is looking at clause 7 around WorkSafe New Zealand’s board. That clause provides first of all for the Minister to appoint “at least 5 but not more than 9 persons as members of the board.” When the Minister does that appointing of a member to the board—and there is a question about how genuine that process will be and we can only assume that we will have Ministers taking very seriously that role of getting the best people to do the work—they are required under this legislation to ensure that WorkSafe New Zealand “has among its members persons who have collectively knowledge and experience of and capability in the following:” and then it lists a number of things.We do not think that the notion of “perspectives of workers” in paragraph (d) of clause 7(2) and of “perspectives of employers” in paragraph (da) actually goes far enough in seeking and setting up what we really need which is a tripartite board where there is genuinely equal representation and where there are leaders from the business community from relevant Government agencies and from unions—representatives of employees. Those people all need to have the ability to argue create and determine on that board—as equally valid representatives if you like—the outcomes that we need. There is plenty of evidence to show now that diverse boards—and that is not just in this area but in business generally and in community organisations—do better. Where there is not a mind-set of one group over another and where there is a range and a contest of ideas you get better outcomes. That is the real strength of having a genuinely tripartite board. It can take account of different views and different expertise members can challenge each other’s ideas and it can make better decisions because of that. So I too as Andrew Little has done would urge the Minister to rethink this provision and to make sure that we do not have these strange words about “perspectives of” and that we actually have genuine representatives of employers workers Government agencies and public sector experts. It is really important that we get that right because that is the leadership. That is the group that will determine a lot of other things.Interestingly enough in clause 8 which talks about the advisory groups it says that “WorkSafe New Zealand may establish an advisory group” and then talks about “a forum for dialogue and co-operation between the Government employers and workers on workplace health and safety matters;”. To me that sounds like a tripartite kind of group and it seems strange to me that the board—if you like the head of the organisation—does not equally have that kind of structure. I do not understand the logic of that. So I think that it is important to think about the relationship between the WorkSafe New Zealand board and the potential advisory groups that WorkSafe New Zealand can establish.The main objective of WorkSafe New Zealand which is set out in clause 9 is I think quite a strong statement actually. It states: “WorkSafe New Zealand’s main objective is to promote and contribute to securing the health and safety of workers and workplaces.” I think that that is quite a strong statement.SUE MORONEY (Labour): Thank you for giving me the opportunity to speak on the Health and Safety (Pike River Implementation) Bill. I was in fact on the Transport and Industrial Relations Committee for all of the submissions on this bill and for much of the process undertaken with this bill.Of course Labour is supporting this bill but we know that it can be improved even more particularly in Part 1 where we know the Government has departed from recommendations from the royal commission. It is really important that we ask the question of why that is. Why is it that the Government has gone out of its way to create WorkSafe New Zealand in a different format than that recommended by the royal commission? This is a very serious issue. We know the serious impacts when this goes wrong. Sadly we know it all too well recently in this country. But for the Government to depart from a recommendation of the royal commission it means that the Government quite specifically wants to challenge what the royal commission came up with. I would like the Minster in the chair the Minister of Labour to actually get up and explain to the Committee why that is because in my experience a Government does not do that for no good reason; it does it for a reason. I would like to understand the underlying agenda in setting up WorkSafe New Zealand in quite a different way than what the royal commission recommended.In particular and my colleagues have talked about this the tripartite nature of WorkSafe New Zealand was something that the royal commission thought veryimportant in terms of getting this right. Yet the Government when it brought this bill forward has failed to do that. As I said just before it quite deliberately failed to do that and it did that not only against the recommendation of the royal commission but against the advice of many of the submitters who came before our select committee who argued that they wanted to make sure that the right people representing the stakeholder groups in health and safety were on the WorkSafe New Zealand board.I am hoping that the Minister of Labour will explain why it is that instead of talking about having a workers’ representative—in other words a union representative—on the WorkSafe New Zealand board we have got this strange legal description of a person who has “perspectives of workers:” whatever that might mean. I do not know whether that has ever been tested in the court before. My guess is that it has not been. We do not know what that phrase means. It could mean anyone who has ever been in a workplace before. It could mean anyone who has ever met a worker before. It could mean the grandmother of someone who is currently in the workforce. It could mean the grandchild of someone who is currently in the workforce. We do not know in fact what that means. Yet what we do know is that the Minister has specifically and deliberately chosen to change what the royal commission recommended and to go down this path instead—this path of describing people when we really do not know who they are.At least if it said “a representative of the Council of Trade Unions” which it ought to say in my view we would know specifically exactly what we were talking about there. But we have no idea who this person is or who these people are because it says: “When appointing a member of the board the Minister must have regard to the need to ensure that WorkSafe New Zealand has among its members persons who have collectively knowledge and experience of and capability in the following: (a) public sector governance: (b) central government processes: (c) New Zealand’s workplace health and safety environment including workplace illness and occupational disease”—and then mysteriously—“(d) perspectives of workers:”—and then—“(da) perspectives of employers:”. Well what might that mean? I think that is equally as difficult to analyse.Darien Fenton: Of an employer?SUE MORONEY: Well yes I would probably understand some perspectives of employers. I do not think I would be the right person to represent them on the WorkSafe New Zealand board but I could argue that I have a knowledge of the perspectives of employers. That is because I have negotiated against them for many many years as a union organiser. But I do not think employers would want me necessarily to be their representative on the WorkSafe New Zealand board. So—Hon DAMIEN O’CONNOR (Labour—West Coast - Tasman): I apologise to my colleague Sue Moroney who was in full flight. I would like to carry on. The profound wisdom of having a worker involved in the active management of health and safety is so clear when we read through the objectives of WorkSafe New Zealand in the Health and Safety (Pike River Implementation) Bill. It is being set up to advise on the operation of the workplace make recommendations for changes to improve systems develop codes of practice and provide training. All of those things rely on—pardon the pun—the coalface wisdom of people going back into health and safety systems. And for the Government to ignore that is perhaps a continuation of the stupidity and the blind arrogance that led to the 1992 legislation. I use those blunt words because I can still recall a meeting with Bill Brazil a previous mine manager who said to me in 1994: “You will rue the day”—“you” being the Government; I was a member in Opposition at the time—“that you changed that legislation to discard the wisdom of 100 years of legislation.”My colleagues have spoken eloquently on that and I will go on to what I see as a rather ironic part of Part 1 and that is in Subpart 3“Transition to WorkSafe New Zealand and consequential amendments”. That is a part that protects the terms and conditions of employment of those people who transfer from what was the Department of Labour—I guess it is the Ministry of Business Innovation and Employment—through into WorkSafe New Zealand. I applaud the provisions in here. Many many—in fact thousands of—workers in New Zealand would love to have had these provisions when they were kicked from a job into another one or when the contractor or the name of the contract changed and they saw their terms and conditions disappearing in front of them. Well the Government in its wisdom—part wisdom short wisdom temporary wisdom; I do not know—has seen fit to ensure that the people who transfer into WorkSafe New Zealand will retain the terms and conditions of their previous employment. I applaud that. Then I have gone through to work out whom that might apply to and I guess it could be a number of people. WorkSafe New Zealand should be a big organisation. If I go back to the reason for this legislation in the first place it is the Royal Commission on the Pike River Coal Mine Tragedy. There are a number of recommendations here and what we are doing tonight is progressing legislation that is part and parcel of these recommendations. As we know it was a thorough inquiry and it exposed a lot of flaws at almost every level of governance and management in the company oversight by the Government itself and a number of other areas. What it says here of course in the summary of the report is that things had got pretty bad in the mining inspectorate. It says that in fact at the time of the tragedy the Department of Labour had only two mining inspectors. It was under huge pressure. And then it goes on to say that in May 2012 the Minister of Labour announced extra funding of $37 million for health and safety administration including an increase in the number of health and safety inspectors.If we can go back to the mining industry what this Government has done in setting up the High Hazards Unit which sounds all well and good is that it now has three mining inspectors in place—three. That is up 50 percent admittedly—from two at the time of the Pike River disaster to three now. Those individuals are under pressure now. It is maybe not quite the same as it was but none the less they are under pressure. The Government made the announcement and everyone thought that we would have a huge boost in the focus on health and safety in the mining industry but it has not occurred. It has not occurred and the families of those people who lost their lives at Pike River do not feel too good about that. One of the things that they had hoped to see was a substantive increase in the focus on mine safety. Admittedly we have had a couple of mines close unfortunately under the National Government—one of them because of the Government’s own mismanagement of Solid Energy. We have seen mines close. That is unfortunate. Maybe the workload is not quite as good as it was.MAGGIE BARRY (National—North Shore): I moveThat the question be now put.The CHAIRPERSON (H V Ross Robertson): No I am going to call the honourable member Kevin Hague. He is pleading with me.KEVIN HAGUE (Green): Thank you very much Mr Chair; I appreciate your perception of my pleading because I have a number of comments to make. Back at the first reading of this bill the Health and Safety (Pike River Implementation) Bill I indicated a number of concerns about Part 1 and I want to talk about how those concerns have or have not been addressed through the select committee process and the detail of the bill that is before us right now.The first of those concerns relates to how the board of WorkSafe New Zealand is to be comprised and I speak therefore in relation to Supplementary Order Paper 387 inthe name of Andrew Little. Dave Feickert in particular is a mine safety expert. He talks about what he calls the triangle of safety and draws the attention of this House and the industry to the fact that successful mining industries—those that are safe—have this thing called the triangle of safety where there is responsibility taken for health and safety in the mine by the Government by employers and by workers. The example that we have talked about previously in other readings of this bill is in relation to inspectors. We have said that there is a role for the employers the workers and the Government in the inspection of a particular mining operation for compliance with health and safety regulations and requirements. This is the key. In the triangle of safety we expect each to take responsibility and to recognise and own responsibility for health and safety.What that means in relation to this new entity WorkSafe New Zealand which we expect to be the leader in workplace health and safety is that we want each of those entities to have a sense of ownership of that organisation. That is why the task force recommended a different model for the composition of the board of this organisation. It recommended what I would call a representative model which is the kind of structure that Andrew Little sets out in his Supplementary Order Paper. Instead the Government has chosen what I would call a reflexive model—that is a model in which the members of the board of that organisation are responsible not to organisations from employers and from workers but instead they are all responsible to the Minister—and that is antithetical to the idea of having a tripartite sense of ownership and responsibility for health and safety.I do not think that the select committee heard a single submission supporting that reflexive model. Instead we heard from both unions and from employers supporting the recommendations of the task force that the structure for the board of WorkSafe should be a representative one. If we think about it that is the democratic model actually comprising that board. The reflexive model that the Minister has used is certainly appropriate for the boards of some entities but for an entity like this which we expect to have that tripartite sense of ownership it is the wrong model. When we asked officials why it was that despite all of the submissions that we received and despite the recommendation of the task force for a representative model they had selected a reflexive one for us to have in this bill they effectively came back and said: “We just prefer it.” There were no reasons given. So I echo Sue Moroney’s call for the Minister to explain the reasons that he has chosen a reflexive model rather than a representative one.So fundamentally this part of the way the board is comprised is wrong. I have to say that I suspect that the reason that the Government has got it wrong is that it does not want the triangle of safety. The Government does not want to share responsibility to share decision making with workers and employers. [Bell rung]The CHAIRPERSON (H V Ross Robertson): I am going to hear the honourable member Kevin Hague.KEVIN HAGUE: Thank you very much Mr Chairperson; I appreciate the opportunity to speak further on this matter. What I have suspected all along is that fundamentally the royal commission was recommending a response that was a regulatory response which would involve the Government intervening more in the affairs of employers in workplaces and this is a Government that comes from a tradition that actually deregulated health and safety in the first place as my colleague the Hon Damien O’Connor has spoken about just now in the debate. I believe that this Government is allergic to the idea of regulating more in order to achieve ends in the workplace. It is allergic to the idea of greater union involvement it is allergic to the idea of sharing power and that is why I believe the Government has chosen this reflexive model.I want to talk also about clause 10 of the bill which sets out the functions of WorkSafe New Zealand. In my view and in the Green Party’s view this clause still does not go far enough. I appreciate that the clause now does pretty well reflect the recommendations from the task force. But my point is that when we now compare this list of functions which include the verbs “advise” “make recommendations” “monitor” “develop”—but not “enforce”—“provide guidance” and “promote and support” these are all words that describe the way that the Department of Labour was going about its business at the time of the Pike River disaster. If we had gone to the Department of Labour on the day before the Pike River disaster and asked its staff: “Please describe the functions that you believe your organisation has in respect of workplace health and safety.” they would have given us a list pretty much like this.The fact is that when the royal commission examined the adequacy of the Department of Labour’s role in respect of Pike River it delivered a damning verdict. It said that the model of work the approach that the Department of Labour took to that work was inadequate to actually ensure compliance with the legislation and with the regulations that existed at that time. The department’s working-alongside way of working which is pretty much the model that is outlined here in clause 10 was inimical to achievement of workplace health and safety.The basic problem that is created by deregulation is this: employers actually want to minimise cost. You maximise profit by either minimising cost or maximising sales. That is how to run a business. So when it comes to health and safety if the employer is given the option of taking a short cut and if they are given the option of not being forced to do something bad employers very often will take that option.I fear that the weasel words that are set out in clause 10—these functions in the bill that is before us now—continue to provide bad employers with the carte blanche that they need to take those short cuts and I believe that they are doing a disservice to those men lying dead in the Pike River mine and to their families and to the submissions that were made by so many New Zealanders including employers unions and workers about health and safety. I believe that we ought as a House to actually ensure that the way that WorkSafe is established in the first place is on a sound basis—on the kind of basis that can and will require employers to comply with their obligations to keep workers safe—and I do not believe that this bill achieves that.My colleague Andrew Little has also spoken about advisory boards—Hon SIMON BRIDGES (Minister of Labour): I believe the spirit of tripartism certainly is in this bill the Health and Safety (Pike River Implementation) Bill. I disagree with members of Labour and the Greens when they say that it is not. Indeed in clauses 7 and 8 of this bill it is very clear that the Minister must have regard to the perspectives of workers and of employers. I do not agree with the member Sue Moroney that there is anything at all unclear about that. Of course we also see enshrined in clause 8 the ability to establish advisory groups that are specifically in relation to tripartism—a four-in-four dialogue and cooperation between the Government employers and workers.As I have said at the Transport and Industrial Relations Committee—and as the member Darien Fenton made clear—Ross Wilson is on the board right now. Frankly I cannot envisage a situation when there would not be someone of his calibre there. He is of course a former president of the New Zealand Council of Trade Unions like the member Andrew Little. Ross Wilson is one of the few New Zealand Council of Trade Unions presidents who has had the good sense not to try to come to this place but that is another matter. I think what is also true is that we—Sue Moroney: What other New Zealand Council of Trade Unions presidents have come here?Hon SIMON BRIDGES: Well we have heard very recently that the current one would not mind coming here. Indeed there have been some tweets on that.Sue Moroney: What other ones have come here?Hon SIMON BRIDGES: Well as I just said the current one. But what is also true is that in selecting a board I believe—and I think actually the members around this House on reflection would believe as well—that we want the best possible board. We want a board that is not just some tick-box exercise but that has the very best skills expertise and experience to drive health and safety advancement in this country.Very soon I am sure once I have gone through the appropriate process I will be announcing the final board for WorkSafe New Zealand which this bill establishes on 16 December. I think the members of this Committee will see it is a board of exceptionally high quality which does have perspectives of workers perspectives of business and perspectives of the public sector and which will do an excellent job at the end of this year and next year driving advancement and frankly a step change in health and safety in this country.CAROL BEAUMONT (Labour): When I was last speaking I had just touched on clause 9 of the Health and Safety (Pike River Implementation) Bill about WorkSafe New Zealand’s main objective. I want to explore that and then look at clause 10 “WorkSafe New Zealand’s functions”. The main objective just to reiterate I think is quite a strong one: “WorkSafe New Zealand’s main objective is to promote and contribute to securing the health and safety of workers and workplaces.” That is an absolutely critical goal which every person in this Committee could agree upon I am absolutely sure.Then it goes on in this bill to talk about the functions of WorkSafe New Zealand. They are quite broad-reaching. It is a little unclear to a number of us why these provisions are similar but not as recommended by the royal commission itself. In clause 10 from subclause (a) to subclause (m) they go through a range of different elements that WorkSafe New Zealand would have to do to deliver on that objective. It includes a range of research for example and in subclause (g) it states “promote and support research education and training on or in workplace health and safety”. I think that is vitally important.One of the things I know from my own experience is that it is quite difficult sometimes to align the statistics that we collect at the moment to be really clear on what the trends are and to be able to break things down appropriately by different demographic groups. Are there differences between men and women in particular industries in terms of their health and safety outcomes etc etc.? I think that is quite an important provision there.There are also I think a number of interesting things. In subclause (k) we have got “promote and co-ordinate the implementation of workplace health and safety initiatives by establishing partnerships or collaborating with other agencies or interested persons in a coherent efficient and effective way”. I think that again makes a great deal of sense—that there are a range of people and agencies operating in this space rather than saying that WorkSafe New Zealand will necessarily do these things all by itself; that it will collaborate with others that already have expertise and so on.Again I do really want to reiterate especially having just listened to the Minister and his explanation of clauses 7 and 8 that this broad range of functions to deliver on what is a good main objective would be so much stronger if this was driven by a board that was truly tripartite. It is such an easy thing to say that a board will have the perspective of employers or the perspective of workers. I think Sue Moroney perhaps pushing the parcel out a little in her explanation of that about who might be able to say they have perspectives of this or that—that is not the same as saying that these people will berepresentatives of bodies like the New Zealand Council of Trade Unions which is the peak organisation for workers in this country and for trade union members. It does have expertise institutional knowledge and respect which have been obtained over many years of operation. So not only do those representatives then have that background but they also have a whole structure in which to seek feedback and ideas and information that is relevant to the work of the board of WorkSafe New Zealand.I do think that the Minister still has the opportunity to do something about this and my colleague Andrew Little has a Supplementary Order Paper that would deal with this issue. If he is as clear and as committed as he says he is to ensuring that there is strong representation with people like Ross Wilson and nobody would have any question about the ability of somebody like Ross Wilson to be there as the New Zealand Council of Trade Unions representative—[Interruption] Actually that is a very good point. I had forgotten that momentarily Ms Fenton. That is true. How could that have happened—someone with that degree of knowledge and expertise and commitment? So that is good anyway. Obviously the Minister on the other hand does understand. But he could easily represent the voice of workers through an institutional arrangement with representative organisations like the New Zealand Council of Trade Unions.CHRIS AUCHINVOLE (National): I moveThat the question be now put.A party vote was called for on the questionThat the question be now put.Ayes64New Zealand National 59; Māori Party 3; ACT New Zealand 1; United Future 1.Noes55New Zealand Labour 33; Green Party 14; New Zealand First 7; Mana 1.Motion agreed to.The question was put that the amendments set out on Supplementary Order Paper 374 in the name of the Hon Simon Bridges to Part 1 be agreed to.Amendments agreed to.The question was put that the amendments set out on Supplementary Order Paper 387 in the name of Andrew Little to clause 7 be agreed to.A party vote was called for on the questionThat the amendments be agreed to.Ayes56New Zealand Labour 33; Green Party 14; New Zealand First 7; Mana 1; Independent: Horan.Noes64New Zealand National 59; Māori Party 3; ACT New Zealand 1; United Future 1.Amendments not agreed to.Part 1 as amended agreed to.Part 2 Amendments to Health and Safety in Employment Act 1992ANDREW LITTLE (Labour): This part of the Health and Safety (Pike River Implementation) Bill really goes to the guts of what lay at the bottom and was the rotten part of Pike River. It was one of the essential parts of what the Royal Commission on the Pike River Coal Mine Tragedy addressed and also the independent taskforce’s report on health and safety too—that is the engagement and the involvement of workers in decisions about health and safety. It is certainly a welcome development to see that this is now made explicit in a way that was never in the Health and Safety in EmploymentAct. In spite of the last Labour Government’s best attempts to make it more explicit and to encourage greater involvement of workers in health and safety by setting up health and safety committees and funding health and safety training for health and safety representatives clearly that still was not adequate to avoid the disaster that happened at Pike River and indeed the disasters that have happened at many workplaces around New Zealand over the last 20 years where workers have continued to be injured and maimed and in the worst cases killed. It is good to see now that there is a more comprehensive adumbration of what is expected when it comes to worker participation in health and safety.But it would be remiss of me not to say or to acknowledge that notwithstanding a clearer signal being given a more explicit signal being given about what is expected there is nevertheless because of the language used I think some equivocation in just what we can expect to see employers doing—and workers therefore doing—when it comes to health and safety. Although there is now specific provision for site health and safety representatives a site health and safety committee and the involvement of workers in health and safety it is couched in terms of workers contributing to decisions. In point of fact I do not even think that is the language. It is about ensuring that when decisions are made the perspective of employees or workers is heard. It does not go as far in my view as it should which is that workers are seen as having an equal role to play in the decision making about health and safety.Naturally there will be resource implications for employers when they are engaging with their workforces about health and safety because workers will have a view about for example the “PPE” or the personal protective equipment that is required in particular tasks. They might have a view about what is required and employers will have a different view. To give a classic example in the State sector prison officers routinely have a view about the personal protective equipment they require to do their job effectively and safely and their employer—the Department of Corrections and therefore the Government—often has a different view and it is usually a view that entails less personal protective equipment.In a truly worker-participative mode in a truly engaged model of worker participation that would be a shared decision. There would be an argument but that would be a shared decision and the employer would understand and acknowledge exactly what the risks are. They would have an obligation under this bill and indeed under the current Health and Safety in Employment Act to mitigate those risks. A decision would be taken and it would be a shared decision. That is what a truly tripartite regime looks like at the enterprise level or the organisation level if it is a nationwide organisation.I draw the Committee’s attention to that because. to the extent that this bill starts taking steps in the right direction as we acknowledged before in Part 1 and with the failure to set up a truly tripartite governance structure with the WorkSafe New Zealand board in this part we just do not get far enough when it comes to the measures required for genuine employee or worker participation and engagement in health and safety measures. That is the test by which this bill will be measured. That is the test that was set up by both the royal commission and the independent taskforce. What are we doing to ensure proper engagement so that when the decisions are made about health and safety the workforce and its insights and knowledge from the front line are truly captured? That is I think what we are looking for to make sure happens in this part.DARIEN FENTON (Labour): As my colleague Andrew Little has said Part 2 is the guts of this bill the Health and Safety (Pike River Implementation) Bill. We have debated a lot in Part 1 about the setting up of WorkSafe New Zealand which is or course a very very important part of the architecture of our health and safety systeminto the future. But Part 2 deals with changes to the Health and Safety in Employment Act and employee or worker participation in health and safety in the mining sector. There are some things that I think were improved during the process of considering the bill at the Transport and Industrial Relations Committee and I want to mention those before I get to the things that I am disappointed about and want the Minister to perhaps comment on.In the bill as it was originally presented in new section 19U(2) inserted by clause 27 a person could not be elected as a mine health and safety representative unless they met the competency requirements prescribed in regulations—sounds fair enough. But submitters told us that that would provide a barrier. It would limit potential candidates for the role to those who had already received the necessary training. So the select committee has recommended that we amend the provision so that a person could be elected without the prescribed competencies but would not be allowed to exercise the functions and powers for which training is required until they have completed their training. I thought that was a very practical and sensible response to submitters’ concerns about how we actually get this operation this change happening in mines.Another change came about because of the concerns of submitters. There was concern expressed by some submitters about the potential liability of health and safety representatives. The select committee members listened to that and heard that and are recommending that health and safety representatives should have immunity for liability for any acts or omissions in good faith when exercising their functions or powers. Again I think that was a positive change.However I think the big change that has happened in Part 2 that is most disappointing is the narrowing of the application of the health and safety requirements in Part 2 from applying to all mining operations including quarrying and some types of tunnelling. We believe that that scope was appropriate. We did have submissions of course from those with vested interests—owners of mines above ground. We also had submissions from workers or workers’ representatives who represent people in quarrying operations and tunnelling operations. They had a completely different view.The bill as originally presented gave us an opportunity to do something quite advanced that would make a big change rather than focusing on just the narrow issues arising out of Pike River mine and underground coalmines. I think it is a real pity that the recommendation—obviously from the Minister of Labour—was that the scope of the legislation be narrowed. I think that what we will see—it is inevitable—at some stage in the future is that there will be a process failure and there will be a problem arising in a quarrying operation and perhaps some type of tunnelling. There will be safety failure and we will have to come back and look at this legislation again and ask why we did not take the opportunity when we had it to make sure that we were covering off those people.I see that what the submitters were saying to the Government was that it would place an unreasonable regulatory burden on quarry operators. I have heard about regulatory burdens before. I mean was it not a regulatory burden to have health and safety in Pike River mine? Was that not one of the failures—that profit actually came before health and safety? Was that not one of the lessons that we should have learnt?The Government has gone on to acknowledge that it needs better regulation for health and safety yet it does not want it in this bill and it does not want it in the form of Part 2 of the bill which is mainly around industry health and safety representatives and site health and safety representatives. But what the Ministry of Business Innovation and Employment is saying is that it intends to work with the quarry industry to develop a set of quarry-specific guidelines with a longer-term view to developing quarry-specific regulations.I hope we see that happening fairly quickly rather than in the longer term. I hope we are not in the situation of looking back at some stage and saying: “We had the opportunity while we were debating this bill as originally presented. Why did we not just leave it as it was? Why did we change it? Why did the Minister give in to the interests of some big business that was submitting to the committee at the time and cave in to their pleading that they should not be covered by this particular part of the bill?”.I want to comment too on Part 2B “Worker participation in health and safety in mining sector”. It is a very very important part of the bill and I think as other people have said that this is kind of the crux of the problem that we have had with our system in health and safety for a long time. Technically under the Health and Safety in Employment Act there is worker participation there are expectations that workplaces of a certain size have worker participation or employee participation systems. But the reality is that provided an employer could show that there was some sort of system on paper and that it ticked a few boxes the test of employee participation was met. As we have heard from colleagues who have been arguing about the set-up of the board and the importance of a genuine worker voice that applies just as much to employee participation.I share Andrew Little’s concerns about the language around this a little bit. Rather than delivering the voice of workers to help protect their health and safety it is more about delivering the needs of business to protect health and safety. So we are still in this sort of tick-the-box regime. I think there are quite a lot of things there that could have been tightened up.I hope that when we see the health and safety legislation finally presented to Parliament—I think it is supposed to be later this year—we will see some learnings from this legislation from some of the contributions that have been made around this. But I do think we are missing an opportunity. One of the things we do support of course is the role of industry health and safety inspectors in underground coalmines. We have been calling for that. The Engineering Printing and Manufacturing Union has been calling for that. We know—and colleague Damien O’Connor can attest to the fact—that these check inspectors as they are called were being called for way way back. A review was done into coalmining. There was a report recommending them. That was ditched by the then Minister Kate Wilkinson and that is a sorry part of the history of Pike River mine.However we are now in a situation where of course we are hoping that we have learnt the lessons of Pike River mine. I am hoping that we can persuade the Minister to adopt Andrew Little’s amendment to Part 2 set out on Supplementary Order Paper 388 which would expand the role of check inspectors to ensure that quarrying and tunnelling operations are included so that all mining activities that carry high health and safety risks are covered. I think this is a very sensible amendment and if the Minister of Labour will not consider it I would like to hear from him directly as to why he decided to change this bill—other than because of lobbying from big industries and big players outside the coalmining industry—when the bill as presented included quarrying and tunnelling operations.As I said Part 2 is a very very important part. There is a lot in it and I hope we get plenty of opportunities to comment. I hope my colleagues do as well. It does consider things like training of site health and safety representatives. Another good thing that I think was included by the select committee was an explicit requirement of duty on the employer to provide time off for health and safety training because that has also been a problem. There is a specific requirement on an employer to do that. And the workerparticipation system under this bill must have a provision that increases or decreases the numbers of days of paid leave for health and safety training.Hon DAMIEN O’CONNOR (Labour—West Coast - Tasman): It is not often I get up in the Chamber here and praise the Government for a piece of legislation but in Part 2 of the Health and Safety (Pike River Implementation) Bill I have to acknowledge that it is making real progress in spite of Part 1 not including as of right worker representation on the board of WorkSafe New Zealand. We have provisions in here that ensure workers are able to contribute to workplace health and safety and that is good but let us not get all teary-eyed about this and think that the Government has moved on and is all for workers. In clause 27 the bill has in new section 19ZH and later in section 19ZJ a perfect balance. It is one that protects the employer’s right to instruct workers to go and work elsewhere if part of a mine or part of a workplace is shut down for health and safety reasons. So it can instruct them to go and work somewhere else presuming of course that they have got the skills and the health and safety training. But then of course the bill has rightfully—which is why I am saying it is a balance—included protection here of site health and safety representatives in performing their functions and powers.I speak from some experience having been a shift delegate at a mine in Western Australia. I was responsible for shutting down the mine when it was too unsafe. When dust got to a point when we could not operate safely then I had to stop operations. It is not an easy job for any individual to stop operations—to intervene and say: “This is unsafe. We should stop work.” There is huge pressure not just from the employer the foreman or the leading hand but also from fellow workers who particularly if they are on a bonus system say: “Oh come on. Let’s get on with it. Look it’s OK—it’s not that unsafe.” The pressure comes from everywhere on the individual the site representative who is going to make a judgment on health and safety issues. So this provision in here does provide some protection from senior executives or from anything that might happen but you cannot actually legislate for what is peer pressure in such a workplace. That is why it is important to have very clear codes of practices and regulations of course supporting them. That is where the 1992 legislation fell down of course. There were promises of a code of practice—oh yes—and nothing eventuated.So we have as I say a balanced piece of legislation in Part 2 protecting both the employer who instructs the workers to get on and do something else if it is thought to be unsafe and the worker who intervenes to point out a danger and stop work or stop operations so that they are not unfairly or unduly discriminated against or penalised in any way.Moving on to the issue of inspectors as I said before the harsh reality of what we have learnt from Cave—sorry from Pike River. I have to say that was a Freudian slip perhaps. Cave Creek was another terrible disaster in my West Coast region where the Government had some responsibility. At Pike River we had as I say at the time of the disaster two mine inspectors. We have three now. I think any fair-minded New Zealander would say that that is not huge progress. [Interruption] Oh four sorry. There are three inspectors and there is the chief inspector of course who is basically tied to the office—Andrew Little: You’ve got to have a boss.Hon DAMIEN O’CONNOR: Yes. Sorry the Minister in the chair did correct me. There is one chief inspector and three inspectors. So while that person is tied up rightfully with the development of regulations and of codes with a huge amount of paperwork which was quite frankly inadequate 2 or 3 years ago—and I have to say that the person they have appointed is first-class. He is absolutely first-class and I know that he will follow through on all the recommendations of the royal commission if he isgiven a chance. He will also implement a very robust mines inspectorate if given a chance but he has not been given the resources. He I know is too professional to go out and criticise because he is a loyal public servant in the tradition of public servants and he knows his responsibility and he will carry it out but if he does not have the resources he too is going to be hamstrung just as the two inspectors at the time of the Pike River tragedy were hamstrung. They were totally frustrated.Clause 33 inserts new section 41A “Inspectors may issue prohibition notices in relation to mining operation”. That means that if they believe it is unsafe they can issue a notice. Indeed some ask why it did not happen at Pike River. In fact some ask why it did not happen at the Spring Creek Mine. I do not think we should forget about the reality that the Government’s own State-owned enterprise was operating an underground mine not too far from Pike River as the crow flies. It was shut down for 6 months after the Pike River tragedy—6 months without a tonne of coal being brought out—because the inspectorate had not been able to instruct that mine to maintain the standards that were needed for health and safety. The question I have in all of this is that if the inspectorate does not carry through with its duties if it is unable to do so who then is accountable for any failure? I have to say that today we ask the Government why it is not owning up to accountability in some form—it might be token in fact given the terrible loss of life—for the mistakes that were made through the Government’s own agencies the Department of Labour. We have today asked why the Government has not considered it a fair and moral action to pay the families something in recognition of Government failure and in recognition of the families’ loss.So in setting up the inspectorate in Part 2 and providing inspectors and reinforcing them with the ability to close a mine if something is deemed unsafe should they fail to do so in the future—and God help them I hope they are never in that situation again—who then should be held accountable for that? The Minister dare I say it should be accountable if he or she does not find the resources to run a proper mines inspectorate. That was the case. We have got a reasonable expectation from the Pike River families right now that the Government on behalf of people should be held to account and that perhaps there should be a payment to them—not as any compensation; no one could compensate them for their loss—in recognition of responsibility and I think that the very least that could happen is that the Government should front up with that. Mr Chairman I know that we are not talking about that in Part 2 but we must ask the question that in implementing regulations and passing legislation if the bill has failed to be carried through with the intent that we have passed it with then who should pay a penalty or who should be held accountable for that? I have to say that we have seen none of that so far from the terrible failures at Pike River from the well-documented failures—Hon Judith Collins: The Minister resigned.Hon DAMIEN O’CONNOR: The Minister of Labour did resign; I accept that. Yes that Minister resigned and Ministers have apologised but accountability goes beyond that Minister and the Minister who is interjecting has not been accountable for anything. Coming back to the bill here—the Minister did tempt me Mr Chairman. Can I say that in passing the legislation if the Minister bothered to read it she would see that we are passing over to inspectors obligations and powers that we expect to be carried through and if they are not carried through—if they do not do the job that we know is needed—then who should be held to account? If the resources have not been provided from the Government then the Government should be held to account. If there is tragic loss of life what should we say to and what should we do for those families? I say that we should make a payment to them and that Minister should front up and support thatgiven that she is one on the front bench who has so far ignored that reasonable expectation.KEVIN HAGUE (Green): It is a pleasure to take my first call on Part 2 of the Health and Safety (Pike River Implementation) Bill. I want to I guess echo some of the comments of praise that others have already made in this debate around some of the provisions of Part 2. There is no question that the provisions that are set out in Part 2 represent a very substantial step forward. Perhaps in an echo of the comments I made in respect of Part 1 about the triangle of safety here in Part 2 we actually see an aspect of that triangle of safety implemented through the reintroduction of check inspectors. This means that workers employers and the Government are all playing their parts in ensuring workplace health and safety. There is no question in my mind that those provisions will result in safer underground mines.So the question then arises about the change that the Government has made to the bill to remove tunnelling and quarrying from the full coverage of the Part 2 provisions. If those full provisions result in safer underground mines there is no reason to suppose that they would not also result in safer tunnels and quarries. The question then is what the trigger factor ought to be that would result in those enhanced provisions for workplace health and safety. Our starting point is that we should be doing what we can to make every workplace as safe as it can be. The rationale that has so far been advanced by the Government for excluding tunnels and quarries from those full provisions is that those particular kinds of operations do not pose the same hazard of methane explosions that an underground coalmine does. I submit to the Chair and to the Committee that that is not an appropriate trigger provision.The Greens believe that perhaps a smarter threshold condition if we are not going to apply these provisions to all workplaces would be to include those workplaces that actually contain multiple hazards of serious harm. That threshold would capture quarries it would capture tunnels and it would capture other dangerous workplaces—like the forestry industry for example. That would seem to me to be a more sensible application of this Committee’s time and decision-making power. Rather than narrowing down those workplaces where we would apply the conditions that make for the greatest safety we should actually be looking to elaborate and figure out what other workplaces are like this in the sense that they actually contain those multiple hazards of serious harm and applying these provisions to them also.That is important because of the report of the Royal Commission on the Pike River Coal Mine Tragedy and the evidence that the royal commission heard about the kinds of factors that lead to the kinds of incident that occurred at Pike River. The royal commission made it absolutely plain that the methane explosion was just one point in a whole range of things that went wrong in the Pike River mine. The evidence that the royal commission heard from Dr Kathleen Callaghan which I have referred to previously in this Chamber sets out some of the work of Professor James Reason around human factors behind disasters—behind things going wrong. He actually talks about the multiple layers of protection and the Swiss cheese model. This model says that if there are holes in each of these layers—and there will be—then unless they line up things turn out OK. But in that Swiss cheese model if those holes do line up—and what Kathleen Callaghan said was that at Pike River there were multiple layers and multiple holes. So for example the law itself the regulations around health and safety Pike River Coal’s provisions and policies around health and safety the health and safety training for workers in that mine the actual actions of the workers and the decisions made by the board of the Pike River Coal company each represented a layer that could have provided safety for the workers and that could have eliminated risk but each of those layers had holes in it. What Kathleen Callaghan said is that in that sort ofenvironment where there are complex risks and multiple hazards it is the alignment of the holes which cannot be predicted that represents a serious hazard. We should be doing all we can to avoid that.Doing all that we can means actually applying that higher level of health and safety protection in all of the workplaces where such hazards exist. So yes sure a quarry does not have the same risk of a methane explosion but it does have as we on the Transport and Industrial Relations Committee heard the risk of very serious injuries and death and it does have those multiple workplace hazards that could be reduced or eliminated—the holes in the Swiss cheese closed—by the kinds of provisions that are in Part 2 of this bill. So why on earth should we not apply those same provisions to those other complex and dangerous workplaces in quarries and in tunnels?The fact that the Government has chosen to not do that suggests to me that the Government has failed to understand that really basic conclusion out of the royal commission report on Pike River. What it was saying was that it is not about just one thing going wrong; it is about a whole chain of failures at every level. If there is one thing out of that royal commission report that we should be doing it is to actually learn from that learn from those multiple failures and do all we can to reduce or eliminate those multiple hazards. Quarrying and tunnelling are indeed industries that have those hazards and as I have said there are many other industries also. For that reason the Green Party will be supporting Andrew Little’s Supplementary Order Paper 388. We believe that the coverage in Part 2 for quarrying and tunnelling should be returned to the bill because no good reason has been advanced for it not to be.There is a similar exclusion that now applies—or will apply—in Part 3 as a result of the Minister of Labour’s Supplementary Order Paper 374. I certainly would make the same argument in relation to Part 3—that we should be extending all of the protections that are available in this bill to all of these workplaces and that means reintroduction of tunnelling and quarrying alongside underground mining.Part 2 certainly advances the case of health and safety in parts of the sector but disappointingly it fails to grasp the opportunity that was provided in this bill and fails to honour the promise of honouring the recommendations of the Pike River royal commission report. Thank you.SUE MORONEY (Labour): Thank you for the opportunity to rise in support of Part 2 of the Health and Safety (Pike River Implementation) Bill but with reservations. I will probably speak to those reservations before I speak to the part of this—the part of this part—that I do want to fully endorse. The reservations do come hard on the heels of what Kevin Hague was just describing: the view espoused by the Government that quarries and tunnelling operations should not have the same provisions as underground mines.When I was listening to the submissions on this bill at the Transport and Industrial Relations Committee I heard some of the companies—not all of them but some of them—involved in quarrying operations and tunnelling operations come forward to say that their workplaces were not dangerous enough to need these provisions and a chill went down my spine I have got to say. I have heard underground mining companies over many years say exactly that about not needing the provisions that are actually in this part of the bill. Mining companies have for many years said that they should not have a check inspector regime. Of course they are not called check inspectors in this part of the bill but essentially that type of role is what is in Part 2 of this bill. I think we call them “industry safety representatives” in this legislation. But to hear the same arguments come out of the mouths of employers from quarries and tunnelling operations which are very dangerous—slightly different hazards but none the less hazardous operations—was chilling because I am sorry to say that I have heard it allbefore. Those pleas were ignored at this country’s peril. I do not want to ever witness that again but I suspect we may well do.We heard from Ray Bianchi from the Northern Amalgamated Workers Union which represents most of the employees who work in quarries and in tunnelling operations. In much more colourful language than I can use in this debating chamber he described just how dangerous quarries are when explosives are being used to move big mountains of rock—of course a hazardous type of situation. As Kevin Hague has just said the complexities of hazards in those sorts of environments should not be underestimated because it is the nature of the holes in the Swiss cheese lining up that brings about these terrible terrible disasters. We know now—well actually we knew before but we know it in our hearts now—that if we do not mitigate the risks at every level of those types of operations then we are inviting disaster and we are inviting the sort of tragedy that the people of the West Coast have endured.I am supporting Andrew Little’s Supplementary Order Paper 388 which brings back into this legislation tunnelling and quarry operations so that workers in those areas have the same degree of protections as those working in underground mines. I fear that if we do not do this—if we do not return to what the original drafted legislation said in this regard—we will make the same mistakes that were made that led to the Pike River mine disaster. So I want to urge all members of Parliament to think very carefully because their vote will be recorded on Supplementary Order Paper 388 and they will be held to account for any disasters that follow in my view. I will feel very pleased that my vote will be recorded in favour of returning tunnelling and quarrying back into this legislation.Before I came into Parliament my job—the thing I got paid to do for a living—was to train health and safety representatives at work. I am very very pleased to see now in Part 2 a full regime that will actually mandate health and safety representatives in the workplace in the way they ought to be. I encourage the Government to take what it has written in this piece of legislation and extrapolate that out to all workplaces in New Zealand because this does truly reflect the representative nature as it should have been.SIMON O’CONNOR (National—Tāmaki): I moveThat the question be now put.CAROL BEAUMONT (Labour): There are many positive elements in this part Part 2 of the Health and Safety (Pike River Implementation) Bill. Certainly from my previous roles with the Council of Trade Unions and for a while on the Workplace Health and Safety Council I can see that there are significant improvements. As my colleague Sue Moroney just mentioned as she was finishing her contribution many of the elements are things that we do want to see across all industries and all workplaces.There are a few elements in Part 2B inserted by clause 27 that I particularly want to comment on. Part 2B “Worker participation in health and safety in mining sector” has some strong wording in its purpose. That is what I think is really positive about this whole part. The purpose of Part 2B is: “to require the participation of mine workers in processes relating to health and safety in a mining operation so that—(a) all persons with relevant knowledge and expertise can help make the mining operations healthy and safe; and (b) when making decisions that affect mine workers and their work a mine operator has information from mine workers who face the health and safety issues in practice.”That is fundamentally important. That is saying that the people who do the job know best how to do it safely and that therefore they need to be part of making the operation safe and healthy. I think that is a really good strong statement. Of course this worker participation in this part has both the industry level representatives also known as check inspectors and the site health and safety representatives. There are provisions around both.Again some of the particular elements I thought were worthy of note because I do think they are positive. One is the requirement in section 19Q(1) to have: “a documented worker participation system that provides reasonable opportunities for the mine workers to participate effectively in ongoing processes for the improvement of health and safety in the mining operation.” Subsection (4) actually goes on to say: “If a site health and safety committee or a site health and safety representative makes a recommendation regarding health and safety in a mining operation the mine operator must either adopt the proposal or provide a written statement to the site health and safety committee or site health and safety representative setting out the reasons for not adopting the proposal.” That is pretty robust because in the event that something is not done and that is put in writing and then harm actually occurs there is a very clear record and really some culpability there. I think that that is positive.Throughout there are a number of provisions that are really positive. Again another one that I feel the need to mention is section 19RA which deals with training of site health and safety representatives. Subsection (3) states that “ a worker participation system must ensure that every site health and safety representative who is an employee has sufficient paid leave to attend training reasonably required to attain the competency requirements …” for their role. Again they are very clear positive statements.Particularly of concern to me in the past has been rehabilitation of harmed workers. I think this has been picked up well in section 19V with the provision in paragraph (f): “to promote the interests of mine workers who have been harmed at work including in relation to arrangements for harmed workers’ rehabilitation and return to work.” This is often a very very difficult area. As we speak now there are many people out there who have been hurt at work and really struggle in this space. They struggle in terms of opportunities for rehabilitation and a return to work. It is an area where there is not necessarily the degree of support and representation required so the fact that that is explicitly stated in that form seems to me again to be a very positive element.One of the things that I do think is important is the reintroduction of the check inspectors. As others have said this really is about beefing up provisions and having in place representatives who are not associated with a particular site but gain industry-wide experience and expertise and have some quite significant powers.JAMI-LEE ROSS (Junior Whip—National): I moveThat the question be now put.A party vote was called for on the questionThat the question be now put.Ayes64New Zealand National 59; Māori Party 3; ACT New Zealand 1; United Future 1.Noes54New Zealand Labour 33; Green Party 12; New Zealand First 7; Mana 1; Independent: Horan.Motion agreed to.The question was put that the amendment set out on Supplementary Order Paper 374 in the name of the Hon Simon Bridges to Part 2 be agreed to.Amendment agreed to.The question was put that the amendment set out on Supplementary Order Paper 388 in the name of Andrew Little to clause 27 be agreed to.A party vote was called for on the questionThat the amendment be agreed to.Ayes53New Zealand Labour 33; Green Party 11; New Zealand First 7; Mana 1; Independent: Horan.Noes64New Zealand National 59; Māori Party 3; ACT New Zealand 1; United Future 1.Amendment not agreed to.Part 2 as amended agreed to.Part 3 Mines RescueThe CHAIRPERSON (Lindsay Tisch): We now move to Part 3 and this is debate on clauses 40 to 56 and schedule 4.ANDREW LITTLE (Labour): Part 3 covers the new role and I think the more clearly defined role of the Mines Rescue Trust which has for a long time played a very important role in the mining industry. It has provided the training and the ready response force if you like for mines and mine disasters or mine incidents around the country. It is a very dedicated team. There is a core staff of only a handful of people. Working miners are taken off the job and provided with comprehensive training and they are available to be deployed to mine incidents whether on the West Coast or in the Waikato or in other places where there is mining going on.One of the things that came out of the Pike River disaster—and I certainly know this from when I was down there at the time with my union hat on—was that there was in the initial stages great concern about who was controlling the Pike River incident and whether or not the expertise of the Mines Rescue Trust was being properly deployed. This is no criticism because we can make observations and judgment in hindsight but the reality is that in the early days as that tragedy unfolded the police reaction to the Mines Rescue Trust was that they thought it was some sort of little society like some little sort of sports group or something that just happened to rock on up with these well-equipped well-trained mining folk ready to go into the mine. The trust was given frankly short shrift. This was commented on by the royal commission which said that the Mines Rescue outfit must be given a proper statutory definition—even though it had its own Act beforehand it must be given a proper statutory definition including of its duties and powers—and this bill now goes some way towards doing that.The Minister of Labour’s Supplementary Order Paper 374 provides some extra provision about what happens with an incident. So it provides for the appointment of an incident controller and it provides for WorkSafe New Zealand to establish an emergency protocol. All of this is good stuff but I want to draw the Committee’s attention to something that I think is a problem in it. It was a problem that was addressed specifically by the royal commission—I know that it was the subject of submissions by various parties to it—and it is about the decision making during the course of the incident.There was a very great sense of frustration during the first week or 10 days of the Pike River event when those people from the various emergency services and the Mines Rescue Trust gathered at the mine site to make decisions but were prevented from doing so because the police at least and possibly even the Fire Service insisted on sending decisions back to Wellington to be made rather than making them at the site. The Department of Labour was the other one too or what was known then as the Department of Labour. It got heavily involved in the decisions but that slowed things down.My concern is that the proposed clause 54B on Supplementary Order Paper 374 provides in subclause (4) of that new clause for the incident controller to “consult other relevant persons or agencies including the persons and agencies described” earlier in the clause and that includes the Fire Service the police and anybody else. I draw the Committee’s attention to the comment made by the royal commission in its report about the decision making at the time. It talked on page 350 of volume 2 of the report about planning activities that must include risk assessment but it went on to say this: “Reviews of risk assessments should not go through several layers of bureaucracy as occurred at Pike River.” What was happening during the course of the Pike River incident was that every time people thought they should do something or a particular proposal was put forward about a course of action that would be taken there was then a risk assessment that had to be carried out on it. It was those risk assessments and the decisions that were being taken that were sent off to Wellington to the Police National Headquarters and the head office of the Department of Labour. That slowed things right down.So on that basis I am putting forward an amendment that adds a proviso to subclause (4) of the proposed new clause 54B. It allows the incident controller to consult—as they should do and indeed that did happen at Pike River—but adds “providing that such consultation does not impede the incident controller in making decisions in a timely and efficient way”. What is important of course as an incident like this unfolds is that decisions do have to get taken and we do not want the obligation to consult the other parties most of which will themselves have personnel at the incident to be sort of ankle-tapped by the fact that they are referring to their various head offices and taking risk assessments. I think that in one case one of the agencies involved was taking legal advice as this was all unfolding so there was a law office involved and giving advice as well. All of that slowed things down.I know from talking to some of the Australian experts who were giving advice from Australia in the early stages and who then came over to do what they call gagging the mine—filling it up with gas to put out the fire—that a lot of those folks were saying how difficult it was to get some very important decisions taken because everything seemed to be referred off to other places and parts of the country. So I say that I hope the Minister in the chair the Minister of Labour takes that on board and if necessary talks to the officials to make sure that in enacting this provision we do not impede future incident controllers in the way that those in charge of the Pike River incident clearly were impeded from taking decisions in a more timely and effective manner.We know that there was this model of crisis incident management that the emergency services at Pike River were following. It was untested and untried in an incident as big and as significant as Pike River. It has been developed. There has been debriefing by the agencies involved in that. This legislation once enacted will allow WorkSafe New Zealand to undertake much closer oversight of the development of those protocols. That is a good thing.Like many things in this bill there are some very good things but we do not want to sink the ship for a ha’p’orth of tar as they say on ships and elsewhere. We do not want to ruin what is a very good set of provisions by glossing over what I think is perhaps a minor oversight taken from reflection about the Pike River incident itself. So I urge the Minister either to consider that very carefully or to at least rise and take a call to explain to us and assure the Committee that this proposed new clause 54B will not impede good-quality effective and timely decision-making in an incident such as Pike River. After all as we know from that experience and indeed from many others time is usually of the essence.Once decision makers are empowered to make decisions and once the agencies are all there we do not want them to be obstructed by the need to hang about and wait for all their hangers-on and others who all want their 5 cents’ worth when that may not be necessary for the effective conduct and controlling of an incident such as this. So once again I urge the Minister to think carefully about it and to make sure that this good legislation—this new legislation that charts a new path forward when it comes to disasters in mines and potentially in other places in the future—is not let down by a provision that could obstruct good-quality decision-making.The CHAIRPERSON (Lindsay Tisch): I call the Hon Damien O’Connor.Hon DAMIEN O’CONNOR (Labour—West Coast - Tasman): No options Mr Chairman! Thank you very much. I appreciate that. Twenty years and 1 week Mr Chairman thank you. Can I just say that we have to welcome into the House the major amendment to or the replacement of the 1992 legislation. That is what we are doing here. The Minister of Labour was probably still in nappies when the legislation came into being in 1992 I would suggest. So it is important that he take note and understand what the environment was when the legislation the Mines Rescue Trust Act was passed in 1992.It was an environment where the Government was determined to suppress grassroots worker representation across the board. As we have seen of course the Health and Safety in Employment Act was totally inappropriate for the mine health and safety regime. Indeed in spite of the Mines Rescue Trust Act providing support for the organisation through the years when the heat really came on and when the Act needed to be tested it failed.What we are doing here is putting in place the proper provisions as recommended by the Royal Commission on the Pike River Coal Mine Tragedy to give both authority and responsibility to the mines rescue organisation. I was fortunate enough to be invited along to the opening of the new facility the base for the Mines Rescue Trust which indeed is referred to in the legislation It has been opened up at Rapahoe just north of Rūnanga and will form a very well-resourced base for mines and emergency rescue training for not only underground miners but also tunnellers and people who up and down the country are putting themselves into high-risk situations.Can I follow on from my colleague Mr Little who referred to perhaps one of the most frustrating things that occurred in the aftermath of the initial Pike River explosion and that was the frustration of the miners who volunteered to be part of the mines rescue organisation. They train and they pride themselves on having the highest levels of skills and knowledge in underground mining and rescue conditions. They were blocked from participating in any kind of rescue by what they saw as a bunch of shinybums sitting up here in Wellington—people sitting here in Wellington in their little offices making decisions about what was best for the minute-by-minute operations that were occurring at the Pike River mine. That frustration should never be allowed to be repeated—never.The hesitation the ignorance the bad decision-making that occurred here in Wellington—sometimes for political reasons but for whatever reasons they were wrong—blocked the wisdom the experience and the commitment of those people on the ground. I do not know whether it was safe or unsafe to try any re-entry or to take any action. It is not for me to make the judgment. But the fact that those people involved in the mines rescue operation were blocked from any real participation was a frustration that I am sure will be spelt out in the book that has just been launched. I have started to read it but I have not had time to get through it. I know that it was a constant constant frustration.I did smile however when massive—of course—media arrived in Greymouth and wanted half-daily updates I guess from those people who were leading the rescue at thetime. People knew of Trevor Watts and Miles Cutbush and Glen down there—they are I guess the heart and soul of Mines Rescue Trust. They knew that Trevor was involved or was asked for opinions. Of course there came the obvious need for someone who knew about the situation to front the media.By this time there were a whole lot of flash uniforms there were a whole lot of flash politicians and there were a whole lot of flash people fronting the media and Trevor was the one who had to do it. There was some trepidation and uncertainty about how it would happen and in true West Coast style—and I was so proud to be a West Coaster on that day—he fronted what was very hungry pack of media and he looked straight down the camera and told them exactly as it was. There were no highfaluting terms or ideas or anything—he just told them as it was.That is the way the members of the Mines Rescue Trust operate. They are not there for the glory. They are there to support their mates who work day to day in a risky environment and from time to time will need help—hopefully never again at the level that was needed at Pike River. But there are incidents that occur. These people train to get their mates out and I trust them over any shinybum sitting in Wellington to make the judgment on the right thing to do in a mine incident. And what we have to do—Hon Judith Collins: They said they didn’t want to go in.Hon DAMIEN O’CONNOR: There is one of them sitting over there—classic.Can I say that these people need respect. This piece of legislation gives them autonomy and I guess the authority to get on and do what they do best and that is to rescue people to help people who are in need and to train people so that they have the skills to work in this environment. This is a good part of this bill and I welcome the Government’s commitment to implement one of the recommendations of the Royal Commission on the Pike River Coal Mine Tragedy and that is to upgrade the authority and organisation of the Mines Rescue Trust.JAMI-LEE ROSS (Junior Whip—National): I moveThat the question be now put.Motion agreed to.The question was put that the following amendment in the name of Andrew Little to the proposed amendment set out on Supplementary Order Paper 374 in the name of the Hon Simon Bridges to insert new clause 54B be agreed to:insert in subsection (4) “providing that such consultation does not impede the incident controller in making decisions in a timely and efficient way” after “the incident controller must consult other relevant persons or agencies including the persons and agencies described in subsection (3)(c).”A party vote was called for on the questionThat the amendment to the amendment be agreed to.Ayes53New Zealand Labour 33; Green Party 11; New Zealand First 7; Independent: Horan; Mana 1.Noes64New Zealand National 59; Māori Party 3; ACT New Zealand 1; United Future 1.Amendment to the amendment not agreed to.Amendments agreed to.The question was put that the amendments set out on Supplementary Order Paper 374 in the name of the Hon Simon Bridges to Part 3 be agreed to.Part 3 as amended agreed to.Schedule 1The question was put that the amendments set out on Supplementary Order Paper 374 in the name of the Hon Simon Bridges to schedule 1 be agreed to.Amendments agreed to.Schedule 1 as amended agreed to.Schedule 2The question was put that the amendment set out on Supplementary Order Paper 374 in the name of the Hon Simon Bridges to schedule 2 be agreed to.Amendment agreed to.Schedule 2 as amended agreed to.Schedule 3agreed to.Schedule 4The question was put that the amendments set out on Supplementary Order Paper 374 in the name of the Hon Simon Bridges to schedule 4 be agreed to.Amendments agreed to.Schedule 4 as amended agreed to.Clauses 1 and 2The question was put that the amendment set out on Supplementary Order Paper 374 in the name of the Hon Simon Bridges to clause 1 be agreed to.Amendment agreed to.Clause 1 as amended agreed to.The question was put that the amendment set out on Supplementary Order Paper 374 in the name of the Hon Simon Bridges to clause 2 be agreed to.Amendment agreed to.Clause 2 as amended agreed to.The Committee divided the bill into the WorkSafe New Zealand Bill the Health and Safety in Employment Amendment Bill and the Mines Rescue Bill pursuant to Supplementary Order Paper 375.Bill to be reported with amendment presently.