Health and Safety in Employment Amendment Bill reported back

Consultation and public submissions have resulted in a “robust and practical” Health and Safety in Employment Amendment Bill being reported back to the House by the Transport and Industrial Relations Select Committee, Labour Minister Margaret Wilson said today.

The Bill provides the basis for a fresh approach to the management of health and safety in the workplace by amending and adding important new elements to the Health and Safety in Employment Act.

“The Select Committee has considered the Bill over an extended period and has received and heard submissions from a range of interest groups, organisations an individuals,” Margaret Wilson said. “As a result the Committee has proposed a number of amendments to the Bill that respond to concerns raised by submitters.

Margaret Wilson said there are some significant changes in relation to coverage of volunteers, and the employee participation and enforcement provisions.

An Implementation Advisory Panel comprised of union, business and industry sector representatives have also made a significant contribution to the development of the legislation. The Panel was established to provide advice to the Department of Labour on implementing the Bill, including minimising compliance costs. Additional information summarising key amendments to the Bill is attached.

Summary of key amendments to the Health and Safety in Employment Amendment Bill

Stress and Fatigue

Submitters concerns

Employers may not know about stress and yet be held liable for its effects. The source of stress may be hard to determine e.g. it may be caused by a person’s home life or other external factors. Fatigue is only one type of temporary impairment that may affect behaviour so as to create a hazard.

Select Committee recommendations

An amendment to the definition of ‘all practicable steps’ to confirm and clarify that obligations only arise in relation to any type of harm or hazard, where the person concerned ‘knows or ought reasonably to know about’ the issue in question. In relation to ‘fatigue’, an amendment to the definition of ‘hazard’ to refer to other matters that may also temporarily affect behaviour, including fatigue, drugs, alcohol and traumatic shock.

Volunteers

Submitters concerns

Concern about which employers would be covered and the extent of the duties that would be owed by those employers. Concern that the proposed coverage would result in ‘uneven’ coverage (i.e. only volunteers working for an employer would be covered). Concern that the proposed coverage could act as a barrier to the recruitment and/or employment of volunteers.

Select Committee recommendations

Limit the obligations that apply to volunteers to the Act’s core obligations as set out in sections 6-12 (general duties of employers), section 19 (employee duties) and section 25 (reporting of serious harm). Obligations under the Act regarding supervision requirements, training and employee participation should not apply. An amendment to clarify that employers and self-employed persons have duties to volunteers only when the volunteers’ work produces financial gain for the employer or self-employed person. Include a definition of ‘financial gain’, which excludes coverage of volunteers whose sole activity is collecting donations or the sale of raffle tickets. Persons in a place of work receiving on the job training or gaining work experience should not be treated as volunteers. The coverage of these persons should be dealt with separately in the Act.

Ships and Aircraft

Submitters concerns

Ships

Concern that the proposed coverage was too broad in terms of New Zealand’s international obligations. Concern that the Maritime Safety Authority (MSA) should remain the enforcement agency responsible for the maritime industry.

Aircraft

Concern that the crew aboard aircraft already have adequate health and safety protections. Concern that the Civil Aviation Authority (CAA) should administer the Act for the aviation industry.

Select Committee recommendations

An amendment that the Act applies to persons employed or engaged under New Zealand law to work on board a New Zealand ship, or a foreign ship carrying coastal cargo while the foreign ship is on demise charter to a New Zealand-based operator. A transitional provision to provide that the Director of the MSA is responsible for administering the Act for ships at sea until any designation regarding the maritime sector is made under the designated agency provisions of the Act. In relation to aircraft, the Select Committee made no specific recommendation about the administration of the Act for crew aboard aircraft. The Select Committee did however include a comment that it accepts the CAA is the most appropriate agency to administer occupational safety and health for aircrew while aircraft is in operation.

Selling or Supplying Plant for Use in a Place of Work

Submitters concerns

Concern that the clause would preclude sales of old or obsolete equipment e.g. ‘as is, where is’ sales. Concern that in a sale situation, the requirement to ensure that plant is arranged so it is safe for its intended use, was too onerous. Concern that new duties about installation were being introduced.

Select Committee recommendations

In a hire or loan situation, include an obligation to ascertain the intended use of the plant, and if the plant is to be used in a place of work, to take all practicable steps to ensure it is safe for its intended use. In a sale situation, include an obligation to take all practicable steps to ensure the plant is safe for any known intended use, or any use of that plant the person could reasonable expect. In a situation where a person agrees to install or arrange plant to be used in a place of work, that person must install or arrange the plant so that it is safe for its intended use. The section does not apply to the sale of plant, whether or not in trade, if the plant is second-hand and sold ‘as is’.

Reporting and Notification Obligations

Submitters concerns

Concern that the requirements under the Act to notify the Occupational Safety and Health Service (OSH) of accidents and serious harm incidents, do not apply to principals or self-employed persons.

Select Committee recommendations

Place recording and notification obligations as set out in the Act, on self-employed persons and principals.

Employee Participation

Submitters concerns

Concerns about the apparent prescriptive nature of the provisions, confusion about extent of the obligations, the seeming lack of recognition of existing systems and the role and place of the election provisions. Concerns about the cost of complying with the new provisions, particularly the leave provisions.

Select Committee recommendations

Clarify the meaning of employee participation by a purpose statement to explain that employee participation in health and safety matters is to fully inform, not usurp management decision-making. In certain circumstances, limit the number of employees to whom the employee participation provisions apply (those who work more than 180 hours in a calendar year). Provide guidance in the Act itself on the meaning of ‘reasonable opportunities’. Clarify that the requirement to develop a system can be met by putting forward an existing system for agreement. This is to ensure the clause accommodates current employee participation arrangements. To improve readability and clarity, retain the core obligations of the employee participation provisions in the main body of the Act and place the remaining detailed provisions in a Schedule to the Act. In relation to electing health and safety representatives, include requirements that such persons work sufficiently regularly and for such duration as to enable them to carry out their functions effectively. In relation to paid leave days for health and safety training, include an amendment to cap the employer obligation to allow leave in any one year by a formula similar to that in the employee relations education leave provisions of the Employment Relations Act. Introduce a concept of work-related groupings when considering health and safety committee coverage. Limit employee membership of health and safety committees to five.

Right to refuse work likely to cause serious harm

Submitters concerns

In relation to the right to refuse work likely to cause serious harm, concerns about employees involved in inherently dangerous activities e.g. police and fire fighters, and that some employees may be open to hindsight actions.

Select Committee recommendations

An amendment introducing a clear process that once an employee forms an initial belief to stop work, he or she must then discuss the matter with his or her employer and may only continue with the refusal to stop work based on reasonable grounds. “Reasonable grounds” includes being advised by a health and safety representative that the work the employee is required to perform, is likely to cause the employee serious harm.

Compliance Orders

Select Committee recommendations

Allow an inspector or any other person to apply to the Employment Relations Authority for a compliance order for a breach of the employee participation provisions. This amendment will ensure that where the parties cannot reach agreement on an employee participation matter, they have access to an appropriate mechanism to help achieve compliance.

Increase to Fine Levels (Offences Likely to Cause Serious Harm and other Offences)

Submitters concerns

Concerns about the possibility of false claims in order to receive an award of money by the Courts. Concern about the inability of employers, particularly small employers to pay higher fines.

Select Committee recommendations

An amendment to make specific reference to the provisions of the Sentencing Act 2002 and to key sentencing criteria for offences under the Act, including the relevance of the financial circumstances of the offender. The Select Committee noted that the provisions of the recently passed Sentencing Act 2002, make it clear that the financial circumstances of the offender must be taken into account when the Court orders an offender to pay reparation or a fine. In addition, the Sentencing Act no longer allows proportions of fines to be directly paid to victims. A separate sentence of reparation can be made by the Court based on demonstrable loss or damage to the victim.

Infringement Offences

Submitters concerns

The perceived inflexibility of the proposed regime. The importance of OSH applying the regime consistently.

Select Committee recommendations

Include discretion for inspectors as to the amount of the fee imposed Remove the distinction between ‘body corporate’ and ‘individual’ Provide for a range of fees (with $100 increments) from a minimum of $100 to a maximum of $3,000 with specified factors for the inspector to take into account, e.g. level of actual harm, potential harm, size of business, financial circumstances, safety record Retain the failure to ‘systematically identify hazards’ as a separate infringement fee range, in $100 increments from $800 to $4,000 Ensure the inspector has the power to cancel an infringement notice.

For a full copy of the Select Committee’s report go to http:// http://www.clerk.parliament.govt.nz/ggi-bin/select-reports or contact the Clerk of the Transport and Industrial Relations Committee on (04) 471 9527.

For a more complete summary of the recommended amendments go to: http:// http://www.osh.dol.govt.nz

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