Robertson Grant: Health and Safety Reform Bill — In Committee Speaker Recalled In CommitteeText is incorporated into the Bound VolumeRobertson Grant: Health and Safety Reform Bill — In Committee Speaker Recalled In Committee[Sitting date: 19 August 2015. Volume:707;Page:6000. Text is incorporated into the Bound Volume.]GRANT ROBERTSON (Labour—Wellington Central): I see there are a number of members on this side of the Chamber who are keen to contribute further on Part 2.This is my first call on Part 2 and I want to focus specifically on Subpart 2 and clause 39 “Duty of officers”. At the risk of raising the ire of the Chair I do need to refer to clause 13A—which fortunately I am doing right at this moment—which is around the meaning of “officer” which we discussed in Part 1. This is relevant to clause 39. There is a new clause 39(1A) introduced by the Minister for Workplace Relations and Safety in his extensive Supplementary Order Paper 108 which says that “For the purposes of subsection (1) an officer of a PCBU must exercise the care diligence and skill that a reasonable officer would exercise in the same circumstances …”—and later I will go on to talk about the next bit. The question we were raising when we were debating clause 13A was that the definition of an officer is so narrow as to potentially exclude the people whom we believe will actually have the most practical role in terms of health and safety. I have a concern about new clause 39(1A) as to the fact that because we did not amend clause 13A to expand that definition of “officer” we now have the narrow definition of effectively a director—possibly a chief executive officer—type of role.We then have within new clause 39(1A) an officer of a person conducting a business or undertaking (PCBU) being asked to exercise care and diligence and that is good and “skill that a reasonable officer would exercise in the same circumstances taking into account (without limitation)”—on both hands and these are the critical paragraphs—“(a) the nature of the business or undertaking; and (b) the position of the officer and the nature of the responsibilities undertaken by the officer.” That is the very problem with the definition that we have of “officer” because if the officer is not somebody with direct responsibility or at least some level of responsibility for health and safety then under this clause it seems to me that we could say that due diligence does not extend to where it should. It all stops. We could say—I will give an example—that this person is the chief executive officer but their job description or the nature of the responsibilities they have puts them in a position far removed from where decisions about health and safety are being made.The Minister in the chair Minister Woodhouse may be able to enlighten us as to how this particular subclause comes to be here. I suspect it is because clause 39(1) is seen to be too broad—that the term “due diligence” was too wide because the definition of due diligence is also included in subclause (2). I suspect it is because it is probably seen to be too wide as to potentially put too much burden upon the people who are undertaking the role of officers of a PCBU. So that is a question for the Minister as to exactly how new clause 39(1A) has come to be here.I also note that new clause 39(1B) has been added by the Minister in his Supplementary Order Paper 108. As far as I can see that effectively lifts up what was clause 39(3) and moves it to be new clause 39(1B). This is the clause that effectively exempts members of the governing body of territorial authorities from the exercise of due diligence with regard to council-controlled organisations. That is interesting because that is the very point that we have been trying to make about the definition of the officer role. Quite clearly the bill is saying that if you are an elected member of a body—are you really responsible for the health and safety within a council-controlled organisation?So by carving out just those who are in local government I think we actually raise a much wider set of issues about who should be an officer. Why are we saying that just elected officials should be in this exemption? Should we be talking about district health boards? Should we be raising the question of district health boards which equally have elected officers? [Interruption] I am told that the issue was raised at the Transport and Industrial Relations Committee about whether or not we should be looking at all forms of elected officials within this legislation.I can understand the clause; I can see the point that is being made by it. But I do think it raises the concern that my colleague Iain Lees-Galloway had in his Supplementary Order Paper 100 about the breadth of definition of the term “officer”. I do think it is important that Subpart 2 as we go on—and I am going to come in a moment to clause 40 which my colleague Stuart Nash has already mentioned; I want to pick up a couple of those points. But it is important to note that Part 2 is a useful part of the bill in that it does go through and explain in quite some detail the way that the PCBUs will work.I do not think there is any doubt on this side of the Chamber that having clear definitions of what we used to call an employer—that is having clear definitions of what it is that a person who is undertaking a business or controlling a business does—is a really good and useful thing. I want to make that clear. But I think that in doing so we have to ensure that we are putting in place something that can in practice work. I do ask the Minister if he could help us out as to why he has lifted out elected officials in local government and not other elected officials in that regard. I am sure it is because there is—[Interruption] Yes well also it will partly be because council-controlled organisations are one step removed. But district health boards also operate commercial arms so I do think there could potentially be issues for elected officials of district health boards as well.In the last remaining part of this call I do want to move on to the remaining clauses around what happens under a PCBU. I actually want to congratulate the committee and the Minister on the fact that they have put in place issues around duties of workers. That is very important. We all know that health and safety does require parties on all sides of the agreement to be active in undertaking and understanding their duties. I think that is a useful part of this.But then we come to clause 41 “Duties of other persons at workplace”. I think that all of us know what has partly been alluded to here. Every single member of this Committee goes on a visit to a workplace and fills out that form at the door and says: “Yep I’m here and if you need to find me this is who I am and I’ve read it.” I would just caution members of Parliament and others who enter workplaces to have a look at clause 41 of the bill “Duties of other persons at workplace”. It says: “A person at a workplace … must—(a) take reasonable care for his or her own health and safety; and (b) take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and (c) comply as far as he or she is reasonably able with any reasonable instruction that is given by the PCBU to allow [them] to comply with this Act …”.That is implemented in a great variety of ways at the moment in workplaces around New Zealand and I do think it is important that all of us who go and visit workplaces understand the obligations that are being placed on the PCBUs and on the workers who are there via Part 2 of this bill. Take note that clause 41 of the bill actually does extend that out to members of the public who are essentially going there. I do think that there are a lot of caveats in this part—“reasonably able” “reasonable instruction”—and I think that some people might have considered that some of the instructions they were given when they visited certain worksites seemed a little over the top. That is because people are taking this seriously. This part of the bill will most certainly do that.I just want to briefly—because I have got only a short amount of time remaining in this call—make reference to Subpart 3 which of course relates to offences. Again I want to congratulate the drafters of this bill because having clearly stated the duties it is important to then have some sort of penalty. There is no point in having these duties in place unless there is some kind of mechanism for dealing with those who will breach them.In clause 42 we have got “reckless conduct” and the offence of failing to comply with a duty and some very very serious fines. I think it is important that we highlight those. I am here looking at clause 42(3) where committing an offence in terms of reckless conduct in respect of duties has terms of imprisonment and fines not exceeding $3000 up until fines not exceeding $3 million.Clearly we have to take this seriously. We know from the cases that have been before the courts in recent times that it is important for people to understand. I would be interested in hearing from members who were on the committee about whether there were submissions to see these fines and imprisonment terms increase because quite clearly the court cases that have been going through in recent times—particularly with regard to the forestry industry—have seen the most horrific stories. We need to ensure the fines are appropriate.