SUBMISSION. Transport and Industrial Relations Select Committee. Health and Safety Reform Bill. 1 P a g e

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1 SUBMISSION to Transport and Industrial Relations Select Committee Health and Safety Reform Bill 24 April P a g e

2 1. About the Submitter The New Zealand Retailers Association ( NZRA ) is the most significant body in the country representing the interests of retailers. We represent an industry that has annual sales of $72 billion 1 and which employs 200,000 people in more than 26,000 2 outlets throughout New Zealand. Our membership includes the major supermarkets and general merchandise chains, specialised chains, traditional department stores and thousands of owner operators spread around New Zealand. Across all store types and areas we have some 5,700 members and they in turn operate some 14,000 shop fronts. We also act for a number of trade groups representing manufacturers, suppliers and retailers of plumbing materials, pets, sporting goods, jewellers and equestrian products. 2. Contact Louise Evans McDonald Government & Advisory Group Manager New Zealand Retailers Association Level 2, CMC Building 89 Courtenay Place, P O Box Wellington Ph: Fax: levans@retail.org.nz 3. Introduction 3.1 The NZRA generally supports the stated purpose of the Bill to provide a balanced framework to secure the health and safety of workers and workplaces in New Zealand. The Association acknowledges that the current legislative framework regulating workplace health and safety is no longer fit for purpose and that reform and a new direction is timely and appropriate. 3.2 We note that the Bill is part of a package of changes to the systems regulating workplace health and safety in New Zealand and that the policy framework and intention reflects the findings of the Independent Taskforce on Workplace Health and Safety and the work of the Royal Commission on the Pike River Coal Mine tragedy. There is strong support across the business community for this reform and to develop a workable framework to reduce the unacceptable risk workers in some industry sectors have faced as a result of ineffective health and safety management practices in their workplaces. 3.3 The challenge for Government in this area is to develop a regulatory framework that provides the robust and effective controls needed to manage health and safety in areas where there is significant risk to health and safety without 1 Statistics NZ Retail Trade Survey incl Retail, Food, Accommodation, Vehicle/Fuel retailing Dec 2013 Qtr 2 Statistics NZ Business Demography Feb P a g e

3 imposing unacceptable constraints and compliance costs in other areas where the risks are already well recognised and effectively managed. The retail sector includes employers across the spectrum from large corporate organisations with complex health and safety needs and the resources to manage those effectively to much smaller operators where the health and safety risk to staff and people visiting the stores is minimal and the business does not have the capacity or resources to implement and maintain safety management programmes. Any new legislation must recognise the diversity of business risk and capability and be supported by services to provide the practical help that SME s need to assess risk and implement viable controls to achieve the policy objectives of effective management of recognisable health and safety risk. 3.4 In that regard we note that much of the detail of the new system will be specified in the framework of regulations that will support the Bill and that are yet to be developed. We strongly urge the Committee to ensure that there is adequate provision made for consultation on the proposed regulations to ensure that the framework adopted is practicable and fit for purpose, particularly for the SME sector. 4. Support for the submissions made by Business New Zealand 4.1 NZRA is a member of the Associated Industries Group within Business New Zealand s and contributes to their policy formulation through that channel. We recognise the expertise that Business New Zealand has developed in the health and safety area and the value they add in legislative development by bringing together the views of the wider business sector in New Zealand. 4.2 We commend to the Select Committee the detailed submissions that Business New Zealand is developing on the Bill and support their submissions on both the policy direction and the specific provisions of the Bill. 4.3 We particularly support the point made in their interim submission that consideration must be given to the proposed nature and content of the main regulations that are yet to be announced to support the Bill. The point made that knowledge of the basic elements and thrust of the regulations is essential to an understanding of the efficacy of the Bill itself is an important consideration for the Select Committee. 5. Specific Submissions 5.1 As noted, NZRA supports the overall policy and direction of the Bill and, subject to the need for consideration of the nature and content of the regulations proposed to support the Bill, we only have a few specific submissions to make. However, in the interests of practicality and good governance in this important area, we consider that the commencement of the new legislation should be determined to ensure that adequate time is allowed for employers and workers to understand and prepare for the new requirements. 5.2 Clause 28 PCBU must not levy workers The intent of this clause to make it clear that the employer is responsible for the costs of delivering the health and 3 P a g e

4 safety system, including the provision of protective equipment and clothing, is generally supported but the clause does require amendment to have regard to agreed terms and conditions in employment agreements that make provision or payment of an allowance or reimbursement to allow workers to make a personal choice of equipment such as safety footwear. Our preference is for the clause to allow employers and workers to agree on arrangements for the supply of personal protective clothing and equipment, however, if the provision is to proceed as provided for in Clause 28, the Bill should make it clear that the legislation overrides and makes null and void any pre-existing provision in an employment agreement providing for payment of such allowances or reimbursement of costs if the employee opts to purchase their own equipment or clothing. 5.3 Clause 53 Duty to preserve sites As currently written this provision will be difficult to comply with in situations where the site is in an area where customers and members of the public require reasonable access, for example on the floor of a retail store or in a shopping mall if there is any undue delay in having the site inspected by an inspector. The requirement is subject to the test of reasonable practicality. We consider that it should also be subject to a requirement that the regulator discharges its inspection functions in a timely manner. 5.4 Part 3 Engagement, worker participation and representation the overall policy direction of this Part to ensure that there is active participation by workers in the operation of the Health and Safety programme within an enterprise is generally supported, but further consideration needs to be given to the practicality of those provisions in all workplaces, particularly in the SME sector where the working relationships between staff and management are close and formality is not always appropriate. The Bill needs to give due recognition to the different cultures that apply in different worksites and the fact that a more informal approach to the participation process may achieve a better outcome than the prescriptive approach in the Bill. For example: Clause 65 Request for election of health and safety representative as currently written it only requires one employee to initiate the process for such an election. In the smaller enterprises typical in the retail sector this provision may allow one disgruntled employee to initiate a process that is both time consuming and difficult for the PCBU and where the result may not make any material difference to health and safety performance. It would be more practicable to make this requirement subject to a minimum size for the enterprise. Clause 80 Requirement to allow health and safety representatives to attend training At present this requirement is not subject to any limit of reasonableness or a requirement for the time off to be provided subject to the operating requirements of the business. The current legislation provides for an allocation of leave based on the number of employees the representative is responsible for. Inclusion of that formula and a requirement for applications for release for training to be made subject to the needs of the business will reduce the grounds for dispute and disharmony within the workplace. 4 P a g e

5 Clause 89 Functions of Health and Safety Committees We note that the functions of Health and Safety Committees and the functions of Health and Safety Representatives overlap in a number of areas and there is scope for confusion and possible conflict. We recommend that this overlap is addressed to ensure that the respective responsibilities of the two functions are clearly stated. 5.5 Clause 92 Provisional improvement notices - We note that this clause allows a health and safety representative to issue a provisional improvement notice to any person that the representative believes is contravening or likely to contravene a provision of the Act or regulations. This provision appears to be designed to ensure that any contravention of the required standards can be addressed without delay or undue process. While that intention is laudable, it has the capacity to cause dispute and disharmony in the workplace and we strongly recommend that any such notice is issued to the officer of the PCBU or the person who has delegated responsibility for management of the site. 5.6 Clause 234 Safe Work Instrument This term is not defined in the Bill and its purpose is unclear. A definition should be provided. 6. Conclusion The Association generally supports the proposed legislation and, subject to the specific submissions noted above, recommends that the Bill proceeds. There is some distance to go to ensure that the new legislation provides the comprehensive and practical framework for the management of workplace health and safety across all sectors in New Zealand and NZRA is willing to contribute to the work required to achieve this outcome. It is important that the time required to get that framework right is taken and in particular that adequate time is given for consultation on the framework of regulations that will underpin the Bill. We wish to appear to speak to our submissions. New Zealand Retailers Association 24 April P a g e