New health and safety rules relaxed for small businesses

Health and safety law reform sparked by the Pike River coalmine disaster has been reported back from Parliament's industrial relations committee and now has weakened requirements on small businesses to appoint health and safety representatives and committees.

The Labour Party announced it was withdrawing support for the bill, whose re-emergence from the parliamentary select committee review process was delayed for months while National Party MPs fielded negative feedback from small business owners and farmers, who feared the new regime would saddle them with unnecessary costs and legal obligations.

Prime Minister John Key's claim that there would be "no step backward" from the recommendations of the independent health and safety taskforce following the death of 29 miners in the Pike River coal mine in November 2010 was now a broken promise, said the president of the Council of Trade Unions, Helen Kelly.

The draft bill reported back today proposes that, on farms, the workplace be "farm buildings and structures necessary for the operation of the farm and the areas immediately surrounding them but not other parts of the farm when work is not being carried out on them."

In other words, a paddock or a farm road would be a workplace when a worker was in the paddock or using the road, but not otherwise. The amendment appears designed to deal with farmers' fears the new regime would make them liable for any harm suffered by, for example, members of the public crossing their land by permission. The proposals have never extended to health and safety obligations to trespassers.

The farmhouse will not be counted as a place of work.

In the workplace, the amended Health and Safety Reform Bill now makes it voluntary for workplaces in low-risk businesses with fewer than 20 employees to elect a health and safety representative, whereas it was previously intended that all businesses should have one. While workers in such a business could seek a vote to appoint a health and safety representative, the Person Conducting an Undertaking or Business (PCBU) – as the law defines the boss – could opt not to hold the vote.

A request in such businesses by employees for the formation of a business to form a health and safety committee could also be declined by the PCBU in a low-risk industry, although they would have to say why.

"Every organisation will have an obligation to have a worker participation requirement but there will be more flexibility in how to meet that requirement, particularly for small lower risk businesses," Workplace Relations and Safety Minister Michael Woodhouse said in a statement.

High-risk businesses will be designated by regulation.

"Officer" duties, which had previously been designed to cover a wide range of senior managers would now apply only to "individuals who have a very senior governance role in the organisation where they exercise significant influence over the management of the business."

Volunteers will not be covered by the requirements to provide safe and healthy workplaces, as at present.

The timeframe for WorkSafe NZ, the government health and safety regulator, to bring a complaint about a health and safety incident is reduced from 24 months to 12 in the amended bill. Private individuals would only be able to take a complaint if Worksafe chose not to, and the court would have to determine first that the evidence was "sufficient and that the prosecution was not an abuse of process."

Extensions to the 12-month limit would be possible but "we anticipate that extensions for the full 12 months would only be granted in very unusual cases," said the National Party MPs backing the bill.

In dissenting opinions, Labour MPs on the select committee said they could no longer support the legislation, saying "the changes substantially water down the bill" and amounted to a "massive blow to the prospect of high quality health and safety reform."

"The most forthright opposition to health and safety representatives came from employers and representatives with some of the poorest safety records.

"The proposed exclusion for businesses in low-risk sectors with fewer than 20 workers would exclude over 300,0000 working people from access to one of the most effective ways they make themselves safer at work," the Labour report on the bill said.

Further amendments limiting the way 'work groups' could be structured created "an opportunity for the PCBU to structure their workplace in such a way that deliberately limits the influence of health and safety representatives and denies workers an elected representative."

Labour also contested the bill's insertion of a right for a PCBU to request the removal of a health and safety representative and to appeal if WorkSafe declines to do so.

"This represents a gross lack of appreciation for the inherent imbalance of power between PCBU and workers," Labour MPs said. "The added provisions are likely to be used by employees who do not value elected health and safety representatives to punish those who challenge management decisions by exposing them to lengthy and expensive legal action and to deter people from standing for the role."

NZ First also opposed the bill, saying it "could create some major problems for some employers and employees."

(BusinessDesk)