The Prime Minister says concerns about the Health and Safety Reform Bill first surfaced round the Cabinet table. Judith Collins says it was the caucus. Regardless, those concerns have forced the Government into an embarrassing backdown. Richard Rudman, the author of the “New Zealand Employment Law Guide” argues there was no need for it to have got into this tangle in the first place.
The delayed return of the Health and Safety Reform Bill from a select committee provides an opportunity to ask whether we need this new law.
It would be too much to call it a knee-jerk reaction to the Pike River Mine Disaster, or a too quick adoption of a task force’s recommendations — but some aspects of the Bill appear not to have been thought through fully.
The Pike River Royal Commission put much of the blame for that disaster on the company’s mismanagement of health and safety, coupled with the Labour Department’s failure to police existing laws and regulations.
Indeed, the Commission said the Health and Safety in Employment Act 1992 was “generally fit for purpose”, although the legal framework for health and safety in underground mining was deficient.
It said there should be a new regulator with a sole focus on health and safety, and the mining regulations should be updated.
That’s been done.
The new WorkSafe New Zealand is now responsible for policing and enforcing workplace health and safety, and is proving more determined and more effective than the old Labour Department.
Specifically, a new High Hazards Unit aims to ensure high standards of safety in the mining, petroleum and geothermal sectors.
New regulations governing health and safety in mining came into force in 2013, requiring better hazard and risk management, increased training, stronger worker participation systems, and new emergency measures.
However, the Royal Commission did identify two aspects of the current Act for “early attention”.
WORKER PARTICIPATION RIGHTS ALREADY EXIST
First, it said the legislation on worker participation should be strengthened.
The new Bill proposes specific powers for employee health and safety representatives.
The present Act already has them.
So why change legislation to confer powers that already exist?
Wouldn’t it be better to ask why unions and, for that matter, non-union employees chose not to exercise those powers?
If they tried, and were rebuffed, why are there no cases of employees or unions seeking to enforce those rights?
Second, the Commission noted that the present legislation places general health and safety duties on employers, managers and others — but not on directors. It said that directors should have statutory responsibilities for health and safety in the workplace.
That could surely be achieved without an entire new Act and system — and without all the new terms and jargon in this Bill.
THE AUSTRALIAN MODEL
The Bill is based on the Australian Model Health and Safety Law.
That idea came from the independent task force on workplace health and safety set up by the government in 2012.
It recommended following the Australian Model Law for three main reasons.
First, it is the latest expression of the Robens approach — which dates from a 1972 United Kingdom committee that called for the replacement of prescriptive legislation and regulation, focused on specific hazards in specific industries, with principles that could be flexibly applied to the health and safety hazards faced by all employers.
But the existing Health and Safety in Employment Act is also based on the Robens approach.
It now has to be replaced because of manifest weaknesses and failures.
Perhaps we need to look more closely at the reasons for those weaknesses and failures before once again going off down the Robens road.
Second, the task force said there would be advantages for New Zealand businesses if their operations in Australia and New Zealand were covered by the same health and safety laws.
That’s an attractive argument, but loses all force because the Australians themselves are unconvinced by their own Model Law.
Only seven of the nine states and territories have implemented new laws, in each case later than originally agreed, and with significant departures from the Model Law. Two major states, Victoria and West Australia, have not yet moved to harmonise their health and safety laws with the rest of the country.
So the advantages envisaged by the task force are already nullified — and compromised further because the New Zealand Bill makes certain “necessary modifications” to the Australian Model Law.
In addition, it seems that no one has thought whether New Zealand courts and tribunals would have to look to their Australian (state and federal) counterparts for interpretations and precedents — and vice versa. After 20 years, New Zealand’s own courts have settled interpretations of most of the key terms and issues in the Health and Safety in Employment Act.
Do we really need to start again?
And do we really need to replace existing and familiar terms — such as “all practicable steps” — with new expressions — such as “reasonably practicable”? The new terms are given legislative definitions that might or might not be the same as the meanings of the existing terms, which will provide hours of enjoyment for lawyers if not for their client employers.
Third, the task force said that adopting the Australian model would allow New Zealand to adopt — and adapt for New Zealand conditions — regulations, information, educational and other support materials.
That’s a weak argument.
Such materials would surely be available whether or not New Zealand adopted the Australian Model Law.
And it might be better to look further afield.
The United Kingdom Health and Safety Executive, for example, has a long-standing reputation for the quality of its information and advisory materials.
KEEP IT SIMPLE
The introduction to the Bill claims that its “main purpose is to provide for a balanced framework to secure the health and safety of workers and workplace”.
That may well be, but it won’t achieve that objective if it its requirements are unclear or if the terms and language used lead to misunderstandings.
Unfortunately, much of our employment-related law appears to have been written by people who forget that 97% of New Zealand’s enterprises have fewer than 20 employees.
They should not be exempt from any requirement to comply with reasonable legal obligations — but lawmakers should recognise that very few small businesses have expertise in employment law or human resources management.
Ignorance of the law may well be no excuse, but not being able to understand the requirements of legislation is a sound reason for not complying.
So, to the extent that changing the law will prevent workplace injury or death — a link not explored by either the Royal Commission or the task force — simple law would be a good start.
A Health and Safety Reform Bill that has more than 300 clauses spread over six parts, plus eight schedules, is not a good start.
Richard Rudman is author of the annual New Zealand Employment Law Guide, published by CCH New Zealand Limited and available at www.cch.co.nz.
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