Ardern Jacinda: Health and Safety Reform Bill — In Committee Speaker Recalled In CommitteeText is incorporated into the Bound VolumeArdern Jacinda: Health and Safety Reform Bill — In Committee Speaker Recalled In Committee[Sitting date: 19 August 2015. Volume:707;Page:6014. Text is incorporated into the Bound Volume.]JACINDA ARDERN (Labour): It is becoming a bidding war; thank you Mr Chair. I wanted to come back in my response to Part 3 of the Health and Safety Reform Bill to the statements that the Minister for Workplace Relations and Safety made at the beginning of his contribution. He stated that the primary point that he wanted to make around Part 3 was that we need to create a culture change within workplaces—that we need every worker to feel engaged in workplace health and safety. That somehow was his rationale for why we needed to exclude a certain sector of businesses from these provisions.Yet what it is about small businesses that means that culture change will not be achieved if we have health and safety reps in them that does not apply to larger-sized businesses? Of course no one is really going to argue with culture change but the Minister’s notion that that was a rationale really does not stand. In fact if anything it felt almost contradictory to say that in the larger workplaces we see this as a conduit for creating greater workplace health and safety but we see it as a barrier for small businesses. I would be happy for the Minister to stand up and explain again if I missed the point the Minister was trying to make but I personally saw it as not really a fair and reasonable point.I do want to delve a little bit into the exemptions that sit within Part 3 because we do have an exclusion here that applies to small businesses and as has been pointed out by Jan Logie that is a significant proportion of workplaces in New Zealand—Jan Logie: It is 97.JACINDA ARDERN: Over 90 percent. In fact 41 percent of the new jobs that were created last year were created in businesses that will now be exempt from some of these provisions. I want to delve into some of the rationale for those exemptions and how they might apply.But before I do the one thing I do want to say is that in my role as small-business spokesperson for the Labour Party one of the strong messages I consistently hear—yes that was a plug Chris Bishop—when talking to small businesses is: “If you’re going to regulate us make it consistent and make it clear.”In some cases carve-outs can be unhelpful things when you have different rules applying particularly when there are penalty regimes attached—when a business that might be exempt one day employs an extra part-time worker and is not exempt the next. Sometimes that can actually do more harm than good and if the primary reason that the National Party is falling back on exemptions is to be seen as the saviour of small business I think that is pretty weak. In fact I actually think that as it stands there is no reason to give that exemption because the way that this part is structured is primarily driven by what the workers see as need. And if the workers suggest that they want reps then obviously there is a need there and if they do that within a small business that should be particularly compelling as a reason to prompt having a rep. The option exists so why create a blanket carve-out where you move away from an option to actually creating a ban? That is essentially what we see instead which seems crazy from my perspective.Coming to Part 3 clause 65(1) states: “A worker who carries out work for a business or undertaking may notify the PCBU”—the boss—“that the worker wishes 1 or more health and safety representatives to be elected to represent workers …”. OK that is the first way that you can initiate having an election of a health and safety rep: a worker initiates it. New clause 65(2) states: “A PCBU”—the boss—“may on the PCBU’s own initiative initiate the election …”. That is the second way. So basically what we are seeing is that if need is identified within that workplace there are two trigger points there that are available. But it says in new clause 65(3) that: “a PCBU is not required to initiate the election of 1 or more health and safety representatives if the work of the business or undertaking—(a) is carried out by fewer than 20 workers; and (b) is not within the scope of any … high-risk sector or industry.”Coming back to the Minister’s point if there is a culture of health and safety within a workplace that everyone has adopted and that is functioning well you are probably—[Bell rung]. Oh you said my name. Thank you. I was probably shouting over you. It is probably unlikely in that case that workers would see a need to trigger the election of a health and safety rep. On the flip side if your workplace is as small as 20 employees or fewer and you feel like you need to trigger the election of a health and safety representative that actually probably points to there being some issues in the workplace. Why would we want to exempt workers from having that right and having that ability?The Minister’s fall-back position here in new clause 65(3)(b) is that there will by regulation be a list of workplaces where that carve-out will not apply. I have some concerns here. The Minister talked about there being no correlation between health and safety representatives and workplace safety—Hon Michael Woodhouse: None that I could find. Feel free to table it.JACINDA ARDERN: —that he can find. I would be really interested if he has found any correlation between smaller workplaces being safer than larger workplaces because this is a very arbitrary line in the sand that is being drawn.The Minister has tried to counter that by saying: “Well we will carve out the ones that we think are high risk.” But how do you define that? The indication that we have had is that an indicative list of high-risk industries will be based on roughly three categories—the Minister can correct me if I am incorrect here—“businesses that carry the risk of a catastrophic event causing multiple fatalities”. What is the definition of “catastrophic”? Sudden great damage is one of the definitions. Examples that you will find if you choose to look up a dictionary which in the Committee stage I am quite in favour of is that the definition of “catastrophic” usually uses references to natural disasters—fatalities from earthquakes or things like failures of dams.These are things that actually probably are unlikely to be—well outside of a natural disaster—in a small workplace. Perhaps you might conclude that catastrophic events might occur in small mining operations. Perhaps if you work in pyrotechnics or explosives they might occur. But I think it is fair to say this is a reasonably narrow definition. The use of the word “catastrophic” would be a narrowing provision in any indicative list. If the Minister wants to find another definition in the dictionary he would be welcome to.The second category is any industry with a fatality rate greater than 25 per 100000 workers although we are excluding agriculture—Hon Michael Woodhouse: They are not over 25.JACINDA ARDERN: —but it still has a significant rate of injury and fatality—and any industry with a serious injury rate of more than 25 per 1000 workers. My concern with this is first—and absolutely right as my colleague Clare Curran points out—what is the definition of “serious injury”? If for instance we use the definitions used by the Department of Corrections it is whether or not you are hospitalised for 24 hours or more. That is significant—to be hospitalised for 24 hours or more—these days. You basically would not consider having a baby “serious” under that provision with the way that we send women packing from our hospitals.So if that definition is what we are using that also requires the recording of serious injury. I admit I do not know the area well enough to know the depth of data that we have but I would be particularly interested in what data collection there is around serious injuries in small businesses and in smaller workplaces. Do we really have a handle on some of those areas of industry? Is our data collection robust enough to really make that the provision on which we are excluding those industries?The same arguments apply I believe to health and safety committees. Again the provision there is when five or more workers in that workplace trigger that provision. If a quarter of the employees of a small business say that they need a health and safety committee you have got a big problem on your hands. That is the kind of workplace that needs the ability to have those committees. Why would we ban that as this bill does? It is wrong. The exclusion should be removed.Progress reported.Report adopted.