Woodhouse Michael: Health and Safety Reform Bill — In Committee Speaker Recalled In CommitteeText is incorporated into the Bound VolumeWoodhouse Michael: Health and Safety Reform Bill — In Committee Speaker Recalled In Committee[Sitting date: 19 August 2015. Volume:707;Page:5974. Text is incorporated into the Bound Volume.]Hon MICHAEL WOODHOUSE (Minister for Workplace Relations and Safety): I want to thank all members who have spoken so far on Part 1 of the bill. We are now diving into the detail. There are about half a dozen questions that have been asked in respect of specific clauses in the bill and I would like to address them in order starting with clause 28 as raised by Mr Mitchell.Clause 28 is something that he did discuss in his second reading speech if I recall. I am not likely to change his mind on whether or not the bill should be amended but I will say that the bill is framed in a way that prevents the risk that a worker however careless in forgetting or damaging or destroying personal protective equipment is then put in a situation where he or she has to make a decision about whether to be levied or do without. That is not a situation I think that anyone in this Committee would agree is satisfactory. The remedies that are available to the business are around firstly the disciplinary and performance management processes that are available under the Employment Relations Act. It could potentially with the agreement of the worker involve some kind of deduction from wages for negligence or gross negligence but it should never result in the withholding of or the failure of the employer or the employee to replace personal protective equipment that is required to keep an employee safe.In respect of clause 29AA “Insurance against fines unlawful” this is a longstanding convention. It is in the existing law as I understand it and actually exists in other parts of commercial law where it is not appropriate or lawful to contract out of obligations in law. An employer as I understand it can insure against the costs of litigation. So if the regulator takes a prosecution against a person conducting a business or undertaking (PCBU) for failure to take practicable steps to keep one safe it is as I understand it quite lawful to insure against the costs of that prosecution. But if a fine is levied by the courts it is not lawful and indeed it would be set aside and fined for an employer to insure against the fine that would be imposed. The reason is quite obvious: that simply takes away any of the skin in the game that a PCBU would have for their failure to take practicable steps.I want to move on to the three things that were raised by Mr Hipkins starting with clause 3(1)(d). He raises I think matters not only of law but of practice and I want to start with the guidance that he thinks should be appropriate. I agree and so did the Independent Taskforce on Workplace Health and Safety. I am going to go a little more into what the task force said about this in Part 3 when we talk about worker participation but the task force recommended that consistent with modern regulatory practice the new agency that is now WorkSafe New Zealand should have a wide range of functions specified and those functions should include monitoring the system and providing rules “ACoPs” or approved codes of practice and guidance to provide certainty and promote and support education and advice. As a country of small business that is going to be a very important component of the work that WorkSafe New Zealand is already doing and will continue to do when the law is passed.I was fascinated at the issue of a small business that had been told by an auditor to spend tens of thousands of dollars on an audit to comply with new legislation. I am concerned that some health and safety consultants are generating a climate of fear in order to create business. I had a meeting in Sarah Dowie’s electorate in Invercargill at the start of the year a very good meeting with the Southland Chamber of Commerce and the first question I was asked—he was a farmer—was: “Minister I’ve been told by my health and safety consultant that I have to spend $10000 on an audit to comply with the new legislation. I’ve got to do all these things and fill in all these forms. What do you have to say about that?”. I said quite simply: “Get another health and safety consultant or go and do it yourself. Use the guidance notes and the approved codes of practice that WorkSafe has and the Safer Farms documentation that is available right now because that should be sufficient.” This bill when passed does not constitute a great melee of red tape in which small businesses will be wrapped. I have to finish by saying that actually good health and safety consultants have a very important part to play in this environment but I think we need to be a bit careful of snake oil sales reps.As to the other matters raised by Mr Hipkins I want to talk just a little bit about clause 6 because I have in my Supplementary Order Paper 108 made some changes to the way the Act applies to the armed forces. It does go some way actually to addressing the question Mr Hipkins has raised about “operational service”. Presently “operational service” is a nomenclature if you like that has an application triggering other things not the least of which is potentially veteran support and so on. Often we are finding ourselves in the situation where Defence Force personnel are deployed into situations that might not formally constitute operational service but clearly are offshore or potentially puts them in harm’s way. So the Supplementary Order Paper will broaden that definition and define it actually as what we will now call “operational activity”. That operational activity will specifically define pre-deployment training so that say army personnel before they went to Taji would have been in Waiōuru probably training for a few weeks before they left in a live situation or as close to the situation that they would face when they got to Taji. Although the Defence Force has its own responsibilities to keep its personnel safe it is appropriate that that can be exempt from this legislation as well.The Canterbury earthquakes example I think is a very good one. The Chief of Defence Force will now have the opportunity to declare operational activity even domestically and therefore be outside the grounds of this bill. Mr Hipkins raised the question about how that works when they are lining up beside the Fire Service the ambulance service and the New Zealand Police. Indeed that is a fair question but the key to this is practicable steps—taking practicable steps. We know that those emergency services civil defence personnel and others are putting themselves in harm’s way from time to time and that it is a balanced response that reflects that risk environment.The last thing Mr Hipkins raised around clause 11 was why prisoners are exempt. Well they are not exempt from the coverage of the bill. They are exempt from Part 3 of the bill under clause 11 which is around worker participation. They have an obligation to keep themselves and others safe and the employer in that situation or the PCBU in that situation must provide them with all of the protections and education and personal protective equipment that is required. But they will not have a health and safety rating system actually. That is what clause 11 says.The last thing which was raised by Ms Roche and Catherine Delahunty is around domestic workers. It was portrayed in the intervention that this is somehow the lack of protection either for domestic workers or for the people whom they serve but the exemption is a very practical one. One could have the situation where an ACC claimant or a frail elderly person who is being washed and dressed every morning as part of their care at home could potentially be a PCBU under the definitions and actually have responsibilities that I do not think are appropriate for them to have. So clause 13 the definition of a PCBU specifically exempts them and I think that is a protection.Others delivering services like that as Mr Hague would definitely know are subject to other obligations under the Code of Health and Disability Consumers’ Rights and the workers themselves have obligations and protections. But I do not think it is appropriate for those people in that situation to have the onerous obligations of this bill.