White noise over worm farms drowned out real workplace issues
IF you’ve been living underground, the reform of the New Zealand health and safety legislation may have escaped you. If not, you will know all about the unprecedented media focus on worm farming.
A stated purpose of the new legislation is protecting workers against harm to their health, safety, and welfare. Workers and other people should be given the highest level of protection against harm, and there is a particular focus on high-risk industries.
For some strange reason, worm farming was deemed to be such while other industries such dairy and beef farming were not.
Details of what will constitute a high-risk industry will be finalised in regulations, but are currently classified as those with potential for catastrophic risk, those with high risk of death or serious injury, and those with asbestos.
It’s unfortunate that the white noise around worm farming somewhat disguised the real issue relating to elected health and safety representatives.
The original draft bill proposing amendments to our current laws included a provision allowing staff to request representation by one or more health and safety representatives. This person would
Brian Nathan, an employment law specialist at Duncan Cotterill in Nelson, looks at changes to the health and safety legislation and their impact for employers.
have the power to make work cease if they thought it was unsafe.
But the amended bill did not have this same requirement. Instead, the new act refers to highrisk industries and sectors, and only they will need to have an elected health and safety representative, if a worker notifies the employer that they want one.
If the business is not high risk, and has fewer than 20 workers, then it does not need a health and safety representative. Hence, the fuss about worm farms being high risk (and requiring health and safety representatives) while agriculture is, apparently, not.
Some commentators have suggested that the reason behind this change is the clout that the elected representative will have, and the potential foothold this will provide to unions.
To check if this is more imagined than real, let’s look across the Tasman. In most states, the law does require a dedicated health and safety representative – irrespective of the nature of the industry. In Australia, the health and safety representative also has the power to direct a worker to cease work if they are concerned about a serious risk to health and safety.
The new act in New Zealand virtually mirrors this, but now has the addition of the high-risk industry requirement.
There have been various occasions in Australia where work has stopped. In one case this led to a four-day protest that concluded in the Australian Supreme Court, with the union being fined $1.25 million for contempt of court.
Acall to cease work can disrupt business, sometimes substantially, and the concern is that the health and safety laws could be used as de facto industrial action and to provide a way around the difficult requirements for strike action.
There have also been allegations of employers manipulating redundancy criteria to target health and safety representatives.
There are anecdotes of circumstances where large-scale projects have been locked down for days because of trivial items such as broken temporary toilets. There are, of course, also genuine cases where an unsafe practice has been a concern and maybe even a potential accident prevented.
It is worth reflecting on the findings of the taskforce following the Royal Commission on the Pike River Tragedy. It considered that a key weakness in New Zealand’s health and safety system was that the ‘‘legislative environment is confusing. Multiple pieces of legislation, blending hazard and riskmanagement specifications, fall across overlapping and ambiguous jurisdictional boundaries.’’
There is a risk that the politics of this issue have overwhelmed what was an obvious need for major change in health and safety culture in New Zealand. Compared with similar countries, our health and safety record is, quite frankly, poor. It may have been worth our politicians reflecting on the findings of the taskforce when categor-
The concern is that health and safety laws could be used as de facto industrial action.
ising worm farms as high risk, and creating arbitrary distinctions.
If your business is categorised as high risk, then you will need to have an elected health and safety representative, if this is requested by your staff. This comes into effect on April 4, 2016.
If you are in the agricultural sector and have fewer than 20 workers, then unless the regulations are drafted to reflect a more practical reality, you do not need to concern yourself with this aspect of the law, although the rest of the more onerous obligations will apply. If you are a worm farmer, you can reasonably feel frustrated.