There is a saying that a week is a long time in politics. This last week is certainly proof of that.
The Labour-led Government is now sworn in. Ministers from Labour, NZ First and the Greens will move into the Beehive this weekend, having had their first meetings with senior public servants in the latter part of this week. Very few have previous experience in Government so the learning curve is a steep one.
Among the new Ministers is the Hon Iain Lees-Galloway as Minister of Workplace Relations and Safety, and the Hon Andrew Little as Minister responsible for Pike River Re-entry (an entirely new portfolio).
The return of a Labour-led government after a nine year hiatus has the potential to have real implications for workplace health and safety. These include potential changes to the Health and Safety at Work Act 2015 (‘HSW Act’) and the Coroners Act 2006 (‘Coroners Act’), and the initiation of a manned re-entry of the Pike River Mine.
HSW Act – worker engagement
Labour, the Greens, and NZ First all opposed the current worker engagement provisions in the HSW Act, when they were considered by Parliament at the Select Committee stage.
Currently, the HSW Act requires persons conducting a business or undertaking (‘PCBUs’, the primary duty holder under the HSW Act) to initiate the election of Health and Safety Representatives when requested by workers, but there are exceptions when this is not required. If a PCBU has fewer than 20 workers and is not within a high-risk sector or industry prescribed by regulations, the PCBU can decide not to have Health and Safety Representatives.
Labour strongly opposed this exception, and argued that having Health and Safety Representatives fosters a more proactive approach to health and safety and improves workplace relationships. Labour also argued that excluding low risk businesses with fewer than 20 workers from worker engagement requirements means 300,000 working people are put at risk and have no access to Health and Safety Representatives.
We expect the new Labour-led Government will repeal this exception, over the course of it's first term. This will likely mean that all PCBUs, regardless of their size or risk profile, will be required to elect Health and Safety Representatives when requested by workers. While some will complain about the potential bureaucratic and administrative burdens this might cause, we see it as a positive development.
Labour also opposed a number of other parts of the HSW Act, including the way work groups are determined, the limitation of industry health and safety representatives to the underground coal mining sector, the scope of the definition of officers, and the lack of training for Health and Safety Committee members. These are all areas where reform may now take place, particularly in relation to industry representatives. Nothing was singled out as a focus during the election campaign, so time will tell if changes are made.
Coroners Act – mandatory response to Coronial recommendations
When Coroners investigate and report on fatalities they regularly make recommendations to organisations and individuals, directed to ensuring changes and improvements are made to avoid future preventable deaths. These recommendations are sometimes ignored, as the Coroners Act does not require the recipients to respond, let alone implement the recommendations.
Between 2012 and 2014 the then National-led Government reviewed the Coroners Act. As part of this process, the possibility of requiring mandatory responses to Coronial recommendations was considered.
Labour favoured amending the Coroners Act to require responses, suggesting that those receiving recommendations should be obliged to respond to them, and to explain what the person or organisation proposed to do (if anything) as a consequence of them. Labour pointed to similar requirements in other jurisdictions, and argued that the considerable expense to the taxpayer in resourcing the Coronial system meant it was not unreasonable to require responses, preventing the risk that recommendations are simply lost or ignored.
The then-Government disagreed, and a mandatory response provision was not included in the Coroners Amendment Bill. Labour described the Bill as a ‘missed opportunity’ and declined to support it. Instead, Labour submitted two Supplementary Order Papers providing options as to how an appropriate mandatory response requirement might operate. Both were defeated in Parliament.
Although Labour was the only party that did not support the passing of the Coroners Amendment Bill, New Zealand First also expressed disappointment that a requirement for mandatory responses was not included. We expect that the new Government will look to amend the Coroners Act again, and to introduce a mandatory response requirement. It seems unlikely this will be a priority in the short term, so it may not happen until at least 2019.
Pike River Mine re-entry
The families of the 29 dead workers made re-entry into Pike River Mine an election issue.
National maintained that a manned re-entry into the mine was unsafe and that Solid Energy was being prudent by investigating re-entry by drones.
In August 2017, the representatives of the Pike River families signed a memorandum with Labour, United Future, the Maori Party, the Greens, and NZ First and agreed that if the Government changed:
The coalition agreement between Labour and NZ First confirms their commitment to re-entry, so steps towards the formation of this agency are likely by Christmas or early in 2018.
Time will tell how this is managed. There is a tension between the new Government’s need to respect and uphold the Health and Safety at Work Act, and the undeniable political imperative to be seen to be taking action for the families of the Pike River workers. There are also risks if political considerations mean principles are sacrificed to exempt Pike River from the health and safety standards that would otherwise apply. Delivering on the coalition parties’ promises to the families, without undermining the Health and Safety at Work Act, will be a real challenge.