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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



Safeguard Magazine

Taskforce’s challenge

The Independent Taskforce on Workplace Health and Safety’s report came out in May. PETER BATEMAN summarises it and goes looking for some reaction.

Scrap the HSE Act and replace it with the new Australian statute. Urgently create up to date guidance material by cutting and pasting from that which already exists across the Tasman and further afield. Change from a hazard-based approach to one revolving around risk. Get very serious about the health side of the equation – and about genuine worker participation.

Ensure the Government’s own state agencies become shining exemplars of best practice in OHS. Create a dedicated OHS agency to actively coordinate everything, including ACC’s workplace injury prevention budget.

Oh, and fundamentally shift New Zealand’s cultural acceptance of risk.

The much anticipated report from the Independent Taskforce on Workplace Health and Safety is nothing if not ambitious. Taskforce members could have adopted a play-it-safe approach, advocating changes here and there but not challenging the overall system of how health and safety works – or, more pointedly, doesn’t work – in this country.

Instead they have chosen a root-and-branch deconstruction of the system in order to propose rebuilding it from the ground up. Almost the only thing which survives their assault intact is the concept of performance-based non-prescriptive legislation based on the Robens report of 1972.

The taskforce says there is no silver bullet to fix New Zealand’s poor level of OHS performance, and that only if each one of its recommendations is acted upon will there be any chance of achieving the Government’s stated goal of reducing fatalities by 25% by 2020.

But the Taskforce is more ambitious than that. Its vision is that ten years by now – by 2023 – our OHS performance will be recognised as among the best in the world.

Labour minister Simon Bridges has noted the Government is already well along the path of creating a stand-alone dedicated OHS agency by the end of this year, and that the Government will respond to the rest of the Taskforce’s recommendations in July.

The task force divides up its recommendations into three groups, or “levers”: accountability levers, motivating levers, and knowledge levers.

Accountability levers

These revolve around the legislative framework and include:

  • • 
    A new workplace health and safety Crown agency with a clear identity and brand;
  • • 
    The agency to have a governance board including worker, employer and Maori representation;
  • • 
    The agency to have primary responsibility for workplace harm prevention (to clarify overlaps with ACC, Maritime NZ, CAA and the Police);
  • • 
    Replace the HSE Act with new legislation based on Australia’s Model Law because this is the most up-to-date interpretation of the Robens ideal;
  • • 
    Clarify the duties of all involved in workplaces by adopting the Australian “persons conducting a business or undertaking” approach, and extend these duties to those in governance roles;
  • • 
    Set specific obligations for employers to support worker participation, including more powers for safety reps and more protection for workers who raise OHS concerns;
  • • 
    Develop guidelines and other material explicitly outlining how worker participation should occur;
  • • 
    Transfer regulation of hazardous substance use in workplaces from the HSNO Act to the proposed new OHS legislation;
  • • 
    ACC funding for workplace injury prevention to be overseen by the new Crown OHS agency;
  • • 
    Establish an occupational health unit within the new agency with responsibility for strategy and operational activities;
  • • 
    Strengthen the regulatory regime for major hazard facilities.

Motivating levers

These are a mixture of carrot, stick and big-picture social change:

  • • 
    Government to develop a public OHS awareness programme to change NZ’s culture of tolerance of poor practice;
  • • 
    Government to ensure its own ministries, departments and SOEs serve as models of operational OHS excellence;
  • • 
    Government procurement policies to drive good OHS practice through the supply chain;
  • • 
    The standard impact analysis of any proposed new policy to include OHS impact;
  • • 
    Extend existing manslaughter offence to corporations and revise the corporate liability framework (but no new offence of corporate manslaughter);
  • • 
    Implement a levy regime that acknowledges lead as well as lag indicators to reward or penalise performance and is linked to an OHS rating scheme for business.

Knowledge levers

These cover the kind of guidance material and raw data required to support good practice:

  • • 
    New agency to prioritise tripartite development of regulations, approved codes of practice and guidance material to clarify expectations, particularly for small businesses;
  • • 
    Establish within the new agency a research, evaluation and monitoring function to collect and publish accurate data and commission research;
  • • 
    New agency to lead development of an OHS professionals alliance, with a registration system potentially in place by 2018;
  • • 
    Embed OHS into the national education and training framework;
  • • 
    Focus the new agency’s enforcement activity on harm prevention and root cause analysis, and extend the role of TAIC so that it can investigate a broader range of workplace incidents.

Download the summary and full versions of the Taskforce’s report at hstaskforce.govt.nz

Michael Tooma

is a partner in the Sydney office of law firm Norton Rose where he specialises in occupational health and safety

The Taskforce recommendations on “motivating levers” is thought-leading and a tremendous contribution to the work of health and safety regulation. The drive for Government leadership on work health and safety and creating incentives for better safety performance will propel New Zealand as a future leader in the regulation of work health and safety.

While there are many aspects of the Australian laws that are beneficial, New Zealand needs to avoid the trap of blindly following the Australian model. There are many aspects of the new work health and safety laws that are proving difficult to implement in practice, particularly in the practical implementation of primary duty holder – “person conducting a business or undertaking”– and the expanded definition of worker. Both are good ideas badly executed. New Zealand should learn from Australia’s mistakes in that regard.

The worker participation regime in Australia in particular has proven to be ineffective. It is a compliance burden without commensurate tangible benefits. It is one of those things that sounds good in theory but rarely works in practice. Real engagement of workers is required and there is an opportunity for innovation in that respect.

Ross Wilson

Lawyer, president of the NZCTU from 1999-2007, and a member of the Advisory Council on Occupational Safety and Health (ACOSH) from 1985-1990

The Independent Taskforce Report doesn’t pull any punches.

Noting that “the HSE Act in the early 1990s may be seen as an object lesson in how not to implement legislation”, the Report catalogues the current weaknesses of the system in detail and recommends a wide range of measures to address them.

Essentially it is saying that the Robens model of collaboration between employers, unions and the regulator is sound, but we need a new regulatory framework, a new regulator and new leadership and attitudes.

The Taskforce Chair, Rob Jager, emphasises that its recommendations are a package: “The Government must adopt the full range of recommendations … if we are to deliver the outcomes that all working New Zealanders deserve.”

The Taskforce recommendations are much closer to the model proposed by ACOSH 25 years ago. The new Crown agent model for the regulator constituted on a tripartite basis, the strong support for regulatory and code of practice guidance, and strengthened worker participation, all reflect the ACOSH model.

Recommending a new agency is no surprise, particularly following the Pike River Royal Commission criticism and after MBIE’s independent investigation found the Department of Labour’s performance “dysfunctional and ineffectual”. The new agency faces a major challenge.

The Taskforce also notes the DoL’s “failure to engage with unions” and emphasises that tripartism is fundamental. The wide range of recommendations to strengthen the powers and support for workplace health and safety representatives will be essential to achieving the new participatory workplace culture.

The recommendation to adopt the Australian Occupational Safety and Health Model Law is a good move, both in taking advantage of the excellent work of (mainly) Australian academics in developing this 21st century version of the Robens model, but also in aligning our standards and practice with the Australian jurisdictions. It is also in the spirit of CER.

The Taskforce also rightly emphasises the importance of leadership, and the recommendations to strengthen accountability and motivation of Government and private sector leadership, particularly at Board level, along with an increased range of penalties and enforcement tools, will send the right signals.

There are a couple of areas where I have reservations. The proposal for a “partnership” relationship on injury prevention between the new agency and ACC is something which the DoL and ACC have failed to achieve over many years. Perhaps a more realistic approach might be to clearly define the respective, but contributory, roles of these two agencies, with the new agency focusing on the regulatory standards and their enforcement, and ACC taking responsibility for developing incentive systems which work fairly, and for promoting best practice.

Overall the Taskforce has provided a sound prescription for starting afresh and building a new system. It will require bipartisan support. We can’t afford a repeat of the hysterical opposition to the 2002 amendments to the HSE Act, which were much more modest than what the Taskforce is proposing. Hopefully the tragedy of Pike River has taught us a lesson.

Paul Jarvie

Manager of occupational health and safety with EMA (Northern)

Member of the Workplace Health and Safety Council

I welcome the taskforce’s recommendations. We at EMA have been lobbying for many of them for years.

The proposed new Crown agency is very welcome. New Zealand is too small to maintain a plethora of agencies undertaking injury prevention activities. We will be looking for this single agency to coordinate resources, create efficiencies and above all take a collaborative and consistent approach for employers and employees.

The recommendations also propose new health and safety law. We have reservations over the suggestion that parts of the Australian legislation be adopted here. While that may save time in drafting, legislation designed for Australia’s employment scene and national culture cannot be simply cut and pasted for the New Zealand work environment. We accept some of the Australian sections, but even those need rewording to reflect our conditions.

For example, blind faith is placed in the system of OHS representatives communicating with staff and management to prevent accidents and injury. We have trained some 70,000 people in this system since 2003, and nothing has changed.

It’s clear responsibility for employee engagement in these systems must be held at governance level of a business, with employers and employees having the room to develop systems that work for them in their individual businesses. EMA supports more training for line and senior managers to work with employees and their reps within their workplaces. We also support the recommendation that OHS practitioners become better trained and registered, as in Australia and the UK, to give employers confidence when they engage such specialists.

The emphasis on occupational health is welcome as this is an area that has systematically declined since the HSE Act came into effect in 1993, so the prospect of a specialist unit for this within the new agency is a breath of fresh air. But it must be resourced with occupational medical specialists along with hygienists, engineers and others across industrial sectors to eliminate exposures at source. The EMA has advocated for the establishment of regional industrial occupational health clinics to form part of such a unit.

The recommendation to extend existing manslaughter law to enable its use in workplace fatalities will not likely come to anything. Overseas jurisdictions have failed in trying to use such a mechanism. The existing HSE Act includes a range of yet unused options for really serious offences and director liabilities for health and safety breaches are part of the current discussion.

Darien Fenton – Labour Party spokesperson for labour issues

There’s been no argument from politicians, business or unions against the Taskforce report.

It’s hard to disagree because we all know something has to change. Labour supported the work of the Taskforce because it largely accorded with our policy going into the 2011 election, when we promised we would establish a commission of inquiry into health and safety.

The Taskforce has done a great job in bringing the issues together into a comprehensive, hard-hitting document that any government or political party would be foolish to ignore. It confirmed for me what many of us have known for years: the reason our health and safety toll is so bad stems from labour market and health and safety deregulation going back decades.

Yes, we can point to other things, such as the “she’ll be right” culture in New Zealand, weak regulation, and the lack of enforcement. But the essential lack of worker voice in health and safety has its roots in the liberalisation of the 80s and 90s.

I want to see the recommendations implemented without delay. I could quibble over some of the details. I worry about how precarious workers and an increasingly fragmented labour market can be brought together in a determined effort to save the lives of New Zealand workers. I think reducing death and injury in some of our most dangerous industries like forestry will take special attention.

But what is pleasing about the report is the consensus we have at last reached in New Zealand – that going home safe to one’s family at the end of the working day is the right of every New Zealander.

The taskforce report emphasises the importance of worker participation in health and safety, a separate regulator, and a tripartite approach using the combined effort of unions, business and government.

But the government’s recently tabled Employment Relations Bill will work against these recommendations. More liberalisation of the labour market will not improve health and safety or strengthen the voice of workers. We should have learned by now that work rights are as important to the health and safety of workers as anything else.

A Labour-led government will implement all of the recommendations in the report. We will want to look a bit more closely of course, but in broad terms, we support its implementation without delay.

But we also will ensure that health and safety goes hand in hand with decent work and modern workplace rights.

PETER BATEMAN

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