Parliamentary debates: Wednesday, 1 July 2026

09:00

Thank you, Madam Chair, and thank you to the Minister for Workplace Relations and Safety for her fulsome answers last night. It was good to hear some of the rationale, but before we leave clause 4, I do have a couple of questions that I want to ask, and it does go back to just asking a further follow-up on the answer that the Minister gave about ACC last night, because as I said, one of my amendments does bring ACC into it because of what we’ve heard around the potential of the rising costs.

The Minister last night said that ACC gave advice or made comment on the bill but didn’t give any costed figures. I know that that was something that we tried to get ACC to come to the Education and Workforce Committee on, but I think that got voted down, that recommendation, which I am surprised about because I think we need to hear more fulsome replies or comment around the potential of this. I really want to have an understanding of why we didn’t get some sort of costings from ACC and whether that was because they weren’t asked because we weren’t able to ask that in select committee or whether that was just an oversight. It does concern me that we don’t know that information. That’s, as I say, just in follow-up to last night. There is another question I do want to ask about this—not about ACC but about this clause—after that. I’ll leave it at that. Thank you.

09:02

Thank you, Madam Chair. Just also following on from yesterday regarding clause 4, I haven’t received a response from the Minister for Workplace Relations and Safety regarding the shift, in terms of only having one main focus. The Minister did kind of clarify the difference between the purpose and the duty, but I do want to check with the Minister, because when something does happen, looking from a perspective of statutory interpretation, the purpose clause is what sets the tone for the entire Act. If it were challenged on whether a person conducting a business or undertaking has fulfilled their obligation, any lawyer will be drawing on the purpose clause. I want to check, from a statutory interpretation perspective, if the Minister has considered the tangible effect of not having the remainder of new section 3(2)(a) to (h), inserted by clause 4, as all being part of that same purpose. I want to check with the Minister on that. I have an amendment, which is 8.00.01, which sort of combines all of these purposes into one, into a broader purpose, and that way all of these purposes, both in terms of new section 3(1) and also 3(2), are considered on equal footing, which means more fulsome cover when it comes to health and safety.

The other thing I want to check with the Minister, if the Minister would be interested—and these are my amendments: 8.00.02; 8.00.03—is around the fact that in all of the work we’ve done with WorkSafe and in terms of the scrutinies, one of the things we consistently see is the disproportionate impact and injury ratio when it comes to Māori. I wondered: how is the Minister planning, through the purposes, to address some of that, and would be prudent for us to include Te Tiriti o Waitangi as a part of the main purpose of this bill, either as part of the main purpose under new section 3(1) or as a following purpose under new section 3(2)? Is that something that the Minister would consider?

I think, finally, I want to draw the Minister’s attention to my amendment 8.00.04, and I have further questions on this, which pertain to a later part of Part 1. Fundamentally, we see certain obligations under the International Labour Organization conventions, specifically conventions 155 and 187, which are mentioned in some of our trade agreements in particular—and I will be discussing more about trade agreements when we’re looking at the approved code of practice. I want to check with the Minister if it is also wise, under the purpose section, which sets the tone for the bill, that we should include our obligation, or to give effect to New Zealand’s obligation, under the International Labour Organization conventions, including but obviously not limited to conventions 155 and 187.

09:05

Before we leave this particular clause, I do want to just talk to the fact that this is the first time in the bill, in this clause, that the terminology of classifying risks as critical risks comes up. It comes up, can I just say—I’ll just read out—in clause 4, clause 7, 9, 11, 11A, 13, 14, 15, 16, 17, 18, 19, 20, 32A, 33, 36, 37, 38, and in Schedule 2. I just want to mention it here because, as I say, it is the first time that it comes up in the bill. I don’t want to confuse what I’m saying here with the definition of “critical risk”, which comes up in a different clause later on, or how you work out the definition, but I do want to talk about how the bill proposes to classify risks as critical risks or non-critical and create different responsibilities on persons conducting a business or undertaking according to which category of a risk they fall into.

What we heard during the Education and Workforce Committee—and some of this has come up after select committee, which is why I’m asking it now. I’ve had people that have come in who are working tirelessly in the health and safety at work area who have said this would be extremely complicated and expensive for business to administer while also delivering worse health and safety outcomes around their responsibilities of categorising that risk. My question for the Minister for Workplace Relations and Safety is: has that been given enough consideration—from what I’m hearing business tell me since select committee—as to how complicated that is going to be? Why is that justification there, and how are businesses going to be supported in identifying that critical and non-critical risk? Again, I don’t want to get into the classification or the definition so much, because that does come in a later clause, and I would like to talk about that in the later clause. But I would like to just ask at this stage about support that businesses might or might not get, and also why that justification of that terminology has been used at this particular point.

09:08

Thank you, Madam Chair. Firstly, in regards to Jan Tinetti’s first point regarding clause 4 and ACC, I do note this picks up on some of the comments I was making last night: that my officials advised me that it’s not possible to cost the net impact of the changes, in the same way it wasn’t possible to cost the net impact of the changes for the 2015 Act, which is why it didn’t exist then and it doesn’t exist now, because potential costs of the health and safety system depend on business behaviour, individuals, ACC performance, and the health sector performance, amongst a wider range of variables. Health and safety doesn’t act completely in a silo, but neither does ACC, and so we would actually expect a focus on the most serious risks to reduce costs from harm.

To the contribution from Lawrence Xu-Nan in regard to clause 4, he queried why we had a main principal purpose and then subsequent purposes. Look, there is one main purpose, and additional purposes. The benefit of this is that it provides a clear hierarchy to aid interpretation for anybody looking to follow the law, including the interpretation of the broader prospective principles of new section 3(3). This is clearer than the current law, because there are many aspects to the purpose with no hierarchy. That kind of follows on, then, into his later contribution, talking about his tabled amendment wishing to combine all the purposes rather than having a hierarchy. I wouldn’t be supporting that, because the tabled amendment would return the Act to the current mix of purposes that we already have, and the desire here is to prioritise risks, which means setting out that “critical risk” is the main purpose and then there are subsequent purposes of the Health and Safety Act that follow from there.

The other query he had is: should the Treaty of Waitangi only be in the purpose? No is the simple answer—in part, because the overall goal of the Health and Safety at Work Act is to reduce risk of workplace harm in general. It’s not specifying any particular race or actually any need for the Treaty. It’s talking about the drivers of high injury rates—which are high for Māori, but that’s not because people are Māori; it’s because the industries that many Māori work in are harmful, and so addressing critical risks will address the level of harm for Māori people. You don’t need the Treaty to do that. You can also just reduce risk by focusing on critical risk in industry where Māori are working, which are higher-risk areas. That will also reduce risk for people who are from Pasifika, ethnic communities, and other Kiwi communities. We don’t actually need a Treaty of Waitangi clause in order to reduce harm for Māori workers.

09:12

Thank you, Madam Chair. Thank you for those responses, Minister; I do appreciate them. I think the point of clarification around my amendment is that Te Tiriti o Waitangi does in fact benefit everyone. I think the tangible manifestation of that is that we’ll see a more equitable approach when it comes to health and safety for all, but what we’re seeing right now is that it hasn’t actually happened. I’m not sure—I’m looking at the regulatory impact statement, as well as what has come through select committee—whether that is something that could be achieved by having just one simple main purpose, but I guess we’ll see once the bill gets implemented.

Noting that other people may still have questions on clause 4, I want to move on to clauses 7 and 8. I want to start with clause 8, and this is something that a lot of submitters in particular had a lot of concerns about. I wasn’t a part of the select committee for this particular bill. Even though I’m a permanent member of the Education and Workforce Committee, I didn’t partake in the consideration. One of the things that jumps out at me when I’m looking at the definition, for example, for “small PCBU” over here—two things, and I’ll seek the Minister for Workplace Relations and Safety’s clarification. One of them is: what was the rationale behind a small persons conducting a business or undertaking (PCBU) having fewer than 20 workers? For example, I would understand when we’re looking at small PCBUs, particularly if you’re looking at family businesses of, let’s say, fewer than three workers or even five workers—that makes sense. Twenty workers is actually quite—though possibly not to the size of Meta or Apple—a sizeable company, and it’s actually quite a lot. About 25 percent of our businesses here in Aotearoa would be captured by that, so one-quarter would be captured by that. I want to check with the Minister: why is it 20 workers, and is it appropriate to cut out 25 percent of our businesses so, that way, they don’t have to fulfil certain requirements? That is my first question.

My second question on this, and I do have some follow-up questions on this clause, is around the concern, possibly, around the nine-month mark. There have also been submissions stating that certain industries, particularly some of the seasonal industries, will be able to manipulate or stack it in a way by having more staff for three months of the year during those peak seasons and fewer for that rest of the nine months. Therefore, overall, under this bill, they are considered a small PCBU when in fact they are not. These also can be some of the higher-risk industries where you do see a lot of injuries, particularly when it comes to seasonal work. I want to check with the Minister on those two questions to start off with, for clause 8. It’s clause 8(4) and the inserted new subsections (3) to (5) within that.

09:15

Thank you, Madam Chair. It’s my first time to be able to contribute to this committee stage on this bill, but I was watching last night and this morning as well, so I understand that we’re now looking at clause 7. I did have some questions for the Minister for Workplace Relations and Safety around clause 7—and I’ve tabled some amendments, and I know other colleagues have as well—focusing on the size of the persons conducting a business or undertaking (PCBU) and the impact that the size of the PCBU has on the clauses within this bill. The Minister has indicated that there is a change from the impact of the health and safety legislation on smaller businesses. I wanted to ask her if she could let us know the reason for deciding that small businesses were less dangerous than larger businesses, because that’s, essentially, what is outlined in this particular bill. Obviously, we use PCBU as a slightly larger type of organisation than just a business, so I can use either term: “small business” or “small PCBU”.

We know that a large majority of New Zealand businesses are actually small businesses and that a number of injuries are often felt when small businesses don’t have the same staffing and the same resources to be able to look at mitigating the effects of potential health and safety risks. This is a huge issue in the bill. That amendment that I have tabled would delete the definitions of “small PCBU” and “large PCBU”, and that would, essentially, give the effect of having health and safety requirements applying despite the size of the organisation which someone worked for. I have heard—and I apologise; I was not part of the select committee process into this—the Minister comment publicly that there were some changes at select committee around looking at when there’s a large PCBU and a small PCBU working side by side, which is defined in clause 7, and state that there would be some ability for the larger PCBU’s health and safety requirements to impact on the small PCBU. I wondered if she could explain that—if that is, in fact, the correct and true interpretation of that—and also the justification.

There is an outcome here, if this bill does become law, that those who work for small businesses may be more likely to be injured at work, given that they don’t have the same requirements for health and safety as larger businesses. This is quite a key point in the bill. It is specifically outlined here, in the changes in clause 7 that define what those small PCBUs and large PCBUs are. I think I won’t take my full call to ask that question, but I thought it was important that the Minister outlines if there has been some changes and the thinking behind this quite fundamental change in our health and safety system.

09:18

Thank you very much. Look, I will start firstly with Lawrence Xu-Nan’s contribution talking about the rationale for fewer than 20 workers and how we landed on 20. This threshold of 20 was advised to be used, by officials, as an accepted definition of small business that currently exists under law. It is used in the Employment Relations Act, and it has also been used in the past in the Health and Safety at Work Act. It was already a definition that had been used.

Then, to Camilla Belich’s contribution, talking about whether I believe that small businesses are less dangerous: no, I think that’s just a fundamental misunderstanding of the law that sits before us. If you’re a big business or a small business, if you have critical risks—which are actions or risks that could likely lead to death or serious injury—you have to manage those, whether you are big or small. There’s nothing in this law that says that, just because you are small, you are inherently less risky.

It is the case that, when I was developing this policy, I thought of mining as one example where it is possible that you could have some small mining operations that are inherently extremely risky. Therefore, it just doesn’t fit the member’s idea of how this bill, as designed, works, because it was intentionally designed so that small outfits like a very small mining operation could not be seen as inherently less risky. They also need to follow all the critical risks and all of the mining regulations that fall under the law. Whether you’re big or small, it’s actually to do with whether or not you have critical risks or actions or risks or harms that could lead to death or serious injury.

What is really behind this is—and I haven’t actually read the member’s amendment in detail, but she talks about how maybe it would be simpler if we got rid of the distinction between big and small. I kind of, in some ways, agree, but I would hope that her amendment is going the other way and it’s putting big businesses into the small category so it’s just that everyone has to follow critical risks and not the other stuff. But I have a high suspicion that it goes the other way, in which case I won’t be supporting that.

In part, the reason why I didn’t extend the small business carve-out to all businesses is because I’ve heard from some of the very, very large ones who have got lots of systems and lots of money and lots of resource, as well as some of the unions, that they didn’t want change; they did actually want to manage everything down to a hot water tap. We’ve done this for the small businesses who are resource-constrained, but for the big ones, they can still manage all the risks, as they currently do under the law now.

09:21

Thank you, Madam Chair, and thank you, Minister for Workplace Relations and Safety, for your answers. When I hear those answers, I still weigh those up against the people that have, since the select committee, been coming to me. They are people like the Health and Safety Association of New Zealand and people who are volunteers who have come out of business and work in that space absolutely for no monetary reward whatsoever, but they have been working in this space for 30-plus years because they want to make a difference in health and safety and have the most appropriate qualifications and experience, both in a regulatory level and on the front-line level. They still have concerns about this particular clause, and they see that there is a two-tier system.

At the meeting that they asked to have with me last week, they said that they see that we are treating business and people differently. Now, in the departmental report and, indeed, in the legislative statement that was made for the second reading, which is the Minister’s own statement, it said that people had misunderstood the Act. But they take exception to that because they see that this particular clause—and they have gone through it with a fine-tooth comb with their legal advisers, as well—is going to create that two-tier level system. They have been in this, as I’ve said, for a long, long time. They state that they are not misunderstanding this. They have sought several legal opinions in this area, and they can see that this is going to have only negative outcomes for New Zealand because it will not meet that legal threshold of holding those smaller businesses to account.

I put it to the Minister and ask whether she is absolutely confident that this is going to stand up in the court of law—these particular clauses, clauses 7 and 8—when people who have worked in this area are getting legal advice from several different sources and saying that it is not going to meet that legal threshold. I think, for me, the crux of this whole bill is in these two clauses, which are of concern to the majority of people here because of what they are actually doing. We’ve had people sort of say, “No, that’s not what the intent is.” That doesn’t matter when it comes to the legal interpretation of what this law is trying to do. When you’ve got people that have worked in this area for quite some time saying this, I have huge concerns, and I’m wondering if the Minister does, too.

I also just want to point out that with regard to those people that have been to see me—and it’s not just that association that I’ve mentioned; it’s quite a number of people who have worked in this area for some time—I have made some amendments to clause 8 that replace the figure “20” with “1”, because they tell me that any time that you have more than one person working on the site, you have a huge health and safety issue that you have to be really cognisant of—

Yeah, like the critical risks—the ones that you have to be.

—particularly with critical risks. I say that for the member on the other side that’s calling that out over there, who obviously doesn’t understand this and hasn’t had the same discussions that the rest of us have had.

Those are my questions to the Minister. It really is about that legal threshold and the confidence that she has that this will uphold, because, essentially, that is where people are seeing the huge issues with this bill.

09:26

Thank you, Madam Chair. Look, I’m taking some of the contributions that I hadn’t quite ticked off yet. For Lawrence Xu-Nan, who inquired about the purpose of potentially having International Labour Organization conventions within the law and how it interacts with our free-trade agreements. Convention 155, which he referred to, is a high-level convention which imposes a general obligation on businesses to ensure safety as far as reasonably possible. The purpose of this law already covers those requirements.

There was also a concern about seasonal fluctuations for small persons conducting a business or undertaking (PCBUs) and the rationale behind how we landed at the 20 threshold. Ultimately, having the seasonal fluctuation for the three-month period responds to real-world situations that I heard of while we were developing the law. A good example of this would be industries such as the retail sector, who have a potential Christmas period that requires more workers, but at other times, the workforce may be actually much smaller than it would be outside the Christmas period. The businesses will be able to form a reasonable expectation of their workforce over 12 months based on their experience and knowledge of their industry.

He was also concerned whether people could manipulate the number of workers in order to be a small PCBU. Look, it was something that we had considered in terms of people being able to have employees versus contractors, etc., but the bill refers to “workers”, and so it’s not possible to manipulate this through different employment agreements. Businesses can and do change their worker numbers all the time, so if businesses do have fluctuating numbers, whether they are large or small, it really depends on the reasonable expectation of the workforce size over a financial year.

Camilla Belich also inquired about how small businesses, therefore, will go about working with large businesses, and I do want to take a little bit more time talking about this one, because I note this came up quite a lot over the last few weeks. There seems to be quite a misunderstanding that the select committee has, in fact, dealt with the issue that there were concerns raised at the time—and I also had concerns that were brought to me, and I thought about this in a lot of detail. Yes, if you’ve got areas, such as a construction worksite, where you have small businesses and you have large businesses interacting, you do want to ensure that there is a bit of simplicity on a worksite.

What has ended up happening in practice with the select committee’s changes, which I also support, is that large businesses must cooperate with others on all risks, and small businesses must cooperate with others on critical risks and may voluntarily cooperate on non-critical risks. However, businesses remain free to enter contracts requiring cooperation on all risks, and so a large PCBU, or a large business, on a worksite can continue to impose their higher standards through contracts where it is appropriate. It does actually provide much more clarity that contract law still applies above and beyond a minimum standard of law—for anybody who might be worried about overlapping duties on construction worksites—although I do note that it’s possible on other worksites as well, but that’s the main one that’s been brought to my attention. I believe that was a sensible change from the select committee.

Jan Tinetti also inquired whether I’m confident that the law would stand up in court because of clauses 6, 7, and 8. Yes, I am confident, because my officials have advised it will stand up because the clauses are quite clearly drafted. It’s my view that there are people who are opposed to the bill who are taking a more vibes-based approach to the bill than is actually written in legal drafting.

09:30

Thank you, Madam Chair. Thank you for your responses, Minister for Workplace Relations and Safety. It does clarify some of my questions, but I do want to kind of follow on. This will be my last bit on clause 8. Regarding the number for small persons conducting a business or undertaking (PCBUs), I acknowledge what the Minister said in terms of it being something that the Employment Relations Act uses and what previously, maybe, the Health and Safety at Work Act used, but I want to ask, for the Minister’s clarity. Looking at page 15 of the regulatory impact statement—and this is the one that’s dated 20 May 2025—there were four options given in those when it comes to the definitions for a small PCBU. I do correct myself: I said 25 percent of business, but, in fact, 97 percent of New Zealand businesses have fewer than 20 workers, according to the regulatory impact statement. Out of those four options—which are sole traders only, five workers, 10 workers, or 20 workers—what is the rationale for the Minister to then land on 20 out of those four options?

In terms of the Minister’s response for the nine months and then whether employers are able to stack it, she mentioned that it’s a reasonable expectation, but I also think this is where the problem is. As the legislation is drafted, a seasonal employer, let’s say, could have nine months of the year with fewer than 20 workers. My understanding is—please correct me if I’m wrong—that then they are justified as a small PCBU, which means that for the three months when they have more than 20 workers, they do not need to fulfil the additional requirement that’s appropriate for a large PCBU. For those three months, even though they have more than 20 workers, they can still, by definition, consider themselves a small PCBU. Is that the correct interpretation?

Finally, just on this bit on clause 8, I want to check a couple of the amendments I had with the Minister—and I want to acknowledge the Hon Jan Tinetti’s amendment, as well, which limits it to one, particularly for sole traders, which I think is an important one. I want to first speak to my colleague Teanau Tuiono’s tabled amendment 8.00.05, which is actually deleting this clause, because, again, from my conversations with my colleague Teanau Tuiono, his understanding from conversations with workers is that such a definition is, overall, arbitrary and doesn’t really need to be in place, whereas my tabled amendment 8.00.06, is, I guess, sort of more liberal than both the Hon Jan Tinetti’s and my colleague Teanau Tuiono’s amendments by reducing 20 to three.

I also want to check with the Minister on one of my other tabled amendments, which I thought was an interesting one. This potentially would help alleviate the concerns I have, which are about a PCBU being able to determine for themselves whether they consider themselves to be a small PCBU. That’s to do with new section 17(4) and (5), in clause 8(4), which provides that “the PCBU is a small PCBU if the PCBU reasonably expects”. I think that if we want to ensure the independence and transparency of this, rather than having the PCBUs themselves determine this, which would be a conflict of interest, it might be wise to have the designated agency—which is a defined definition under the Health and Safety at Work Act—determine that instead. My tabled amendment, which is 8.00.08, changes the word from “if the PCBU reasonably expects” to “if the designated agency reasonably expects”, and that then takes out the conflict of interest and potentially protects the PCBUs themselves.

There is just one final thing that I want to get clarity on—this is not clause 8, but the Minister has touched on it. It is the new clause 11A, inserted by the select committee, that the Minister has mentioned in terms of interacting or cooperating between a large and small PCBU. I want to just check with the Minister if that interpretation also includes where there’s a large PCBU with a lot of small PCBU subsidiaries—for example, they have different businesses, with one in Auckland, one in Wellington, and one in Christchurch, but, overall, it falls under the umbrella of a single large PCBU. Would that be also captured in new clause 11A?

09:35

Thank you, Madam Chair. I think there’s certainly a lot for us to be looking at from this committee stage. The Minister for Workplace Relations and Safety said that some of our objections amount to vibes, so I’m very happy to take the Minister through every single clause of this bill and see if that bears out with the evidence that is put before us.

I would like to put it to the Minister that she has, again and again, said that this is not undermining the health and safety regulations for small businesses, but limiting their responsibilities to critical risk does mean that they have fewer responsibilities to look at risks to health and safety which are not considered to be critical, and that would be the majority of health and safety incidents that come up in New Zealand. I would put it to the Minister that it is, in fact, correct that the health and safety responsibilities for small businesses have been lessened by this legislation and that it is, in fact, her objective under this Act to make small businesses have fewer responsibilities to keep their workers safe. That can be evidenced through the select committee process and through the clauses that we’re looking at today, which make a specific effort to look at the difference between small and large persons conducting a business or undertaking (PCBUs). I’m specifically looking at clause 8, which has the definition of a small PCBU in it, which is particularly important, because those with under 20 don’t have the responsibility to look at things that are not critical risk.

The Minister has, again—and I’ve heard her use it publicly—used the example of a hot tap as almost a ridiculous thing to be concerned about from a health and safety context. Now, I just want us to think about that for a second because burns are extremely serious. If anyone thinks about when they turn on the tap, how do they find out what the temperature is? They put their hand under it. If you have a tap that, as soon as you turn it on, is running at a level of boiling, that is actually going to burn you, and that tap is going to cause a serious injury. I’m not just talking about adults here; I’m talking about children, or anyone who turns on their tap. That is something that I’ve experienced personally within my family—taps running that hot have led to burns that have needed to have medical attention and hospitalisation.

When we look at these examples that the Minister may seek to undermine through lack of seriousness, actually, those things that may not be seen as critical risk can actually turn out to be significant injuries. When we’re looking at the definitions of critical risk, which we’ve touched on in clause 7, and when we look at the fact that smaller PCBUs don’t have the responsibility to look at critical risk, then we can see that some of those particular instances that aren’t deemed critical or particularly life-threatening—well, burns can be life-threatening, but I accept probably not in the tap situation, as it’s unlikely to be for a longer duration—can be very serious. The purpose of this bill is to actually undermine the ability for people’s health and safety be taken seriously by smaller PCBUs.

The other issue that I wanted to ask the Minister about is in relation to this definition that we’ve got in clause 8 and the fact that she is looking at limiting the number of workers to 20—and I also just want to look at the nine-month period of time. I know that my colleague has talked about the fact that it might be difficult for seasonal workers, but the issue that I wanted to raise is, in fact, around the nine-month period and the term “reasonably expects”. I think that definition is very, very loose, and it could potentially result in people who have PCBUs with more than 20 people actually being in a situation where they don’t take the high-level health and safety assessments that they are required to make currently under the law, because they, for some reason, don’t think that their PCBU will be growing to 20 within that period of time. I think that it is important to understand why there aren’t stricter criteria and where the liability will lie.

Also, I don’t think that the fact that the select committee has said that it is possible for private organisations to enter into a contracting relationship that has higher health and safety standards than the law answers anything. Of course, private companies have very, very wide contracting power and can usually enter into contracts for whatever they like, and so I don’t accept that that means that when there are mixed sites, this issue is resolved.

09:40

Thank you, Madam Chair. While the Minister for Workplace Relations and Safety seeks some advice on the questions that we’ve proposed, I do want to now move on to clause 9. Clause 9 is probably one of the more important clauses in this bill, and this is to do with the definition of “critical risk”. Madam Chair, if you’ll indulge me, I was wondering if I can have just a few quick back and forth exchanges with the Minister, if the Minister is happy to do that. I have a few quick questions, and then we’ll get into some more of the details of the bill. This is to do with new section 22A, “Meaning of critical risk”, particularly when we’re looking at new subsection (1).

If we’re doing a quick-fire round to the Minister, the first question is: could the Minister just clarify what the Minister’s interpretation is of a risk and a hazard?

Carry on with your questions while the Minister gets advice.

OK. How the Minister responds to my questions will determine what kind of questions I’ll follow up with. So I guess my first question is: can the Minister define what is a risk and what is a hazard? My second question is: can the Minister define what is the difference between likelihood and consequence? The reason I ask those is because, as the Minister would understand, when we’re looking at a risk management matrix for health and safety, those are some of the key areas that we look at whenever we do any sort of risk analysis using such a risk matrix. That is fundamental to health and safety, whether we’re looking at safety level one or safety level two.

On the basis of those questions, one of the things that jumps out at me when we’re looking at new section 22(1)(b) is the fact that when the risk is associated with “a hazard of any kind” and that if the risk occurs—i.e., a consequence—“is likely to result in any 1 or more of the following:”—but that’s not the norm when we’re looking at a risk management matrix, because, I think, as a starting point, we look at the likelihood. The idea is that when we are determining—and if you’re looking at the risk matrix and we give a score, and the score varies depending on which jurisdiction you are based in, that particular score determines the level of intervention that is required for a workplace when you’re looking at health and safety. If you’re looking at something with a high level of likelihood of a consequence, and particularly a higher probability of a consequence as opposed to a likelihood, you give it a higher score. But, in general, using the hot water example of the previous speaker and the Minister, the consequence is there as well as the likelihood, but in those kind of cases, what you want to do in terms of any form of intervention strategy is look at elimination. You eliminate the potential hazard, then you limit or you minimise, and then you engineer and you kind of use signifiers, like if personal protective equipment is involved or if there’s nothing you can do about it. Those are some of the hierarchies you look at when you look at any form of intervention.

All of those are crucial when we are trying to understand the definition of “critical risk”. In the hot water example, if a small PCBU—person conducting a business or undertaking—for example, is not considered a critical risk, a small PCBU will have no requirement to signpost “That is hot water”, nor engineer it in a way that it needs a specific mechanism to ensure that the release of such boiling water can only be done via an engineered mechanism. That’s how it works when it when we’re looking at health and safety. I do want to check those quick questions with the Minister first, as well as what the Minister considers in terms of the example I just raised regarding the risk management matrix.

09:45

Thank you, Madam Chair. Going back to the ones that I still need to tick off, Dr Lawrence Xu-Nan, I suspect, will be having a very busy morning, standing up for the Opposition. But a little while ago, he asked why we have picked 20 as the option out of the regulatory impact statement (RIS) when there were four different definitions potentially given. It was because it was consistent with other definitions that already exist in the law, and so it would have been familiar to businesses. He mentioned the point about 97 percent of businesses in New Zealand being small businesses. However, I would also note that small persons conducting businesses or undertakings (PCBUs) employ approximately 27 percent of all employees.

He also then queried whether it would be correct that a seasonal business with fewer than 20 workers for nine months of the year would be a small PCBU. Yes, that is a correct interpretation of the law, and it aligns with the policy and Cabinet decisions to capture seasonal fluctuations in workforce sizes.

He also queried, and this is also the same query that Camilla Belich had, whether it is correct that businesses with more than 20 workers—sorry: if they had three extra months where they had more than 20 workers, can they consider themselves small? Once again, it’s to do with the thresholds. Look, if the business is in an industry where the numbers habitually fluctuate, then, yes, they would be small if it has more than 20 workers for no more than three months. But, importantly, the small business must identify and manage its critical risks, whether or not they’re big or small, which means that it puts the attention where it is needed most, which is where you’re managing the things that will do the most harm. If a business simply decides to increase their work numbers for a long term, they’ll have to reassess, and they would be a large PCBU.

Lawrence Xu-Nan also then had another query—which I guess really turns to the fact that we’re ticking all of those ones off—as to why we are leaving it to PCBUs to determine if they expect the workforce to be less than 20 for nine months, rather than an agency or some other organisation. Look, it’s simply just not practical in an economy of our size to have an agency to assess each and every PCBU with a fluctuating workforce in order for businesses to know what their duties are. That’s just a bureaucratic nightmare.

Lawrence Xu-Nan then asked: what are the differences between risks and hazards, and likelihoods and consequence? A hazard is the thing that has the potential to cause harm, the risk is the harm that can arise from the hazard, the consequence is the outcome of something happening, and the likelihood is as it sounds, which is how probable it is that the consequence will eventuate from the risk arising.

Lawrence Xu-Nan also then had another query: if a large PCBU has several subsidiaries, is it captured by clause 11A? Yes. If the PCBU shares a duty with another PCBU, it must cooperate on that duty. Where there are shared duties for critical risks, cooperation is required, whether the PCBU is small or large. PCBUs may also require cooperation in their contracting arrangements.

09:49

I move, That debate on this question now close.

Oh, it’s a bit early for that.

Thank you, Madam Chair. We’ve moved on to clause 9 now, and my colleague moved us there. I did mention right at the beginning that this is the one, when I talked about critical risk, and I said that I didn’t want to get that muddled up with the definition, and this does bring the definition of “critical risk” into this. I do have a number of amendments, and I don’t want to talk to all of them, but I actually want to talk to my colleague Camilla Belich’s amendment because I think her explanatory note sets this out really well.

It talks about the current drafting of the new section 22A(1)(b) setting a probability test of the consequences of risks, and it sets that probability at “likely”, which is an uncertain term. I know that officials have said, “Well, it’s used elsewhere in legislation.” I actually think there’s an issue there, in that so many people came into select committee and, also since select committee, very much said that people did not understand this particular term, and that is part of the issue. Just because it’s used in other parts of legislation doesn’t make it correct. Camilla Belich’s explanation talks about the fact that it may be interpreted as greater than a 50 percent chance. This requires a person conducting a business or undertaking to have the knowledge and resources to undertake such an assessment and would result in uncertainty and disputes regarding these assessments.

The first question that I’ve got for the Minister for Workplace Relations and Safety is to ask whether the Minister is concerned that so many people came to the select committee—it was many of the submitters—and said that they did not understand this particular term. In this explanatory note, and this is the second question that I want to ask, it also sets the threshold unreasonably high when the safety, health, and lives of workers are concerned. Certain categories of risk, such as musculoskeletal and psychosocial, would largely be excluded from this definition. Now, why that is of concern is that musculoskeletal and psychosocial harm make up a huge percentage of ACC claims. While I’m not saying that this is a critical risk, I am saying that this seems to be put aside from this bill and excluded from this bill. Is that the Minister’s understanding?

Does the Minister have concerns around the fact that those areas aren’t in there, and is there a thought that, in the future, we would be doing something about that so that businesses have that oversight of what is a growing area of harm in this country in the workplace, and also a growing area that ACC are having to cover? Should we be doing something about that in this bill? It seems like we’re excluding it and we’re not going down the track of actually doing something about it now. Those are the questions that I have.

09:52

Thank you, Madam Chair. I just had some questions, like my colleague, around clause 9, which we’re now up to, which is new section 22A. I did check with the Clerk before, but I wanted to signal now that in new section 22A(2)(a), there is a reference to Schedule 1A, and that actually sets out the—I’ll just go to it myself now—examples of what is defined as hazards associated with critical risk.

22.

Yes. The reason that this is relevant is you can’t really read new section 22A without looking at Schedule 1A. The complication here is partly the question, and the issue, for the Minister for Workplace Relations and Safety. So if I own a small PCBU—person conducting a business or undertaking—of, say, five people, when I’m determining my responsibilities under this amended Health and Safety at Work Act, I will have to figure out if I have a risk associated with Schedule 1A. When we flick through to that, we see that it covers—and I know that this is a very substantive part of the bill, so I will mention some of it, but I know that there will be more detailed questions on this—adventure activities, amusement devices, and general risk and workplace management.

It especially has some carve-outs in relation to work done by children, which, I have to say, was quite alarming; we’re talking about envisaging a situation where someone under the age of 15 years old is involved in the manufacturing and preparation of goods for sale, and someone under 16 is working in between the hours of 10 p.m. and 6 a.m., so a few questions around the situations that would lead to that particular situation occurring and whether that is a desirable outcome for those who are of that age.

As we’ve mentioned previously in this committee stage, we do need to take into account different levels of ability when assessing health and safety risk; we’re not always talking about fully compos mentis adults engaging in the workplace. We know that workplaces are open to every single body of every single ability and capacity, and age as well, so that is a specific thing that I think we need to look at.

In discussion with my colleagues, I think that it is going to be very difficult for us to be able to look at new section 22A without looking at Schedule 1A in detail, even though that does come in a later section. My proposal would be that we do mention that now, and then it may be that it’s relevant again to talk about that when we come to clause 30.

It is part of this debate.

Yes, thank you, Madam Chair.

This is a question, really: how is this simplifying and getting rid of what the Minister has called red and green tape, by getting a small PCBU—it might be a small start-up, or it might be someone who’s just started a company—to understand their responsibilities in relation to health and safety by first making them look, once they’ve established that they’re a small PCBU, at new section 22A, and say, “OK, so we have to look at the risks within our workplace, and the only way we can do that is we have to assess whether any of the following is likely to occur.”, and then we look at this list: a death, a notifiable injury or illness, a notifiable incident, or an occupational disease. I mean, that is a pretty huge expectation on a small business—and the Minister may want to comment on that—to know if anything that they are doing is likely to result in an occupational disease.

Then, you haven’t finished. You then have to go to see what the regulations say, and the regulations are set out in Schedule 1A, and you have to go through the entire list, which I just alluded to, in Schedule 1A, which goes through all the different hazards and the different ages that people might be able to participate in certain things, all of the different substances—whether it’s in mining or quarrying, petroleum, gas extraction, when we’re looking at pipelines. Sometimes this might be obvious, but, Minister, this is very difficult for a small business to understand, isn’t it?

09:57

Thank you very much. These two last contributions have been exceedingly enlightening—and, in part, I think, quite concerning—especially because Jan Tinetti’s contribution said that she was listening to people talking to her about how difficult and confusing and potentially more costly this will be.

I just wanted to ensure that I was raising the correct point here. The term “likely” is actually a term that is already used in risk management, in the Health and Safety at Work Act. So if she’s got experts coming through her doors saying that using the term “likely” is going to be very confusing and very costly for business, well, I’m sorry, but they can’t be experts—I certainly hope they’re not giving out expert advice to companies now, because they’re currently needing to use the word “likely” in the tests under the current law. That is exceedingly concerning. The current law is that the likelihood of the risk occurring is a factor to be taken into account when deciding what is reasonably practicable in relation to a duty. All persons conducting a business or undertaking should be familiar with this, especially experts on health and safety law.

She went on and then had further concerns about where our people don’t understand “likely”. Look, the select committee did clarify the provision, because the current “likely” test does not actually require a probability test of over 50 percent, as is claimed in Camilla Belich’s Amendment Paper. “Likely” has the ordinary meaning of being more than possible but less than certain. That is consistent with the current approach to identifying and managing risks that appear.

To summarise the contribution made by Camilla Belich—look, if she thinks that this term itself is, in fact, too confusing, then maybe she’d be in favour of simplifying the law even further in line with the ACT Party principles, and she would go even further rather than trying to make it even more complicated by putting in place new standards that would go above and beyond.

I’d also just make the point that I do struggle to see how the Labour Party does take itself seriously some days when—

That’s unnecessary.

No, it’s not unnecessary, and I’ll give you an example, because, last night, we heard about how the Labour Party was so grateful that John Key and Michael Woodhouse had put in place this law. At the time, they opposed this law, and they—I think, looking at some of the contributions from back when that law was done over a decade ago—kind of alluded to the fact that they wished that the law would go further and would be stronger. But, well, guess what! They had two terms in Government, and they did nothing on health and safety, so I don’t understand how we can take them seriously on health and safety.

I know Jan Tinetti, in her contribution at the second reading, said, “Oh, but we did do something. We put in place some basic drafting on a plant and structure regulation.” I’m sorry, but that Government put it on pause, and they didn’t even bother to pass that one, so, look, it’s just a bit ridiculous, really.

We’ll stick to this bill.

Yeah, sorry, Madam Chair—I’m getting a bit exercised here, but I’ll end my contribution there. Thank you.

10:01

Thank you, Madam Chair. I just wanted to seek your guidance, Madam Chair: based on the Minister for Workplace Relations and Safety’s last contribution, are we allowed to extend the scope of our conversation and questions to the health and safety over the last 20 years or over the last 15 years? Is that something that we are able to expand the scope on?

You’re able to do it, but I probably would end the debate quite quickly.

Yeah—thank you, Madam Chair. I do appreciate the Minister for Workplace Relations and Safety for responding to my questions so thoroughly. That is appreciated.

I do have follow-up questions on clause 9, new section 22A. Following on from what the Minister responded to regarding new subsection (1)(b), I want to now look at some of the sub criteria within (1)(b). Madam Chair, I’m also signalling to you that while new Schedule 1A technically sits under clause 31, I believe, which is still Part 1, we’re actually going to discuss new Schedule 1A now, because it’s most relevant to this new section 22A of this debate.

Yeah, it is part of this debate.

Yeah. I just want to check with the Minister—number one: under the criteria, when we’re looking at new subparagraphs (1)(b)(i) to (iv), is that an exhaustive list, or is that open to anything, or are those examples of what would be considered a risk that is associated with a hazard of any kind? The reason I say that is because, potentially, again, there are other things that could be, also, a part of this. That’s my first question—are new subparagraphs (i) to (iv) an exhaustive list?

My second one is around new subparagraph (iv), which I think is probably one of the more concerning ones, which is “an occupational disease listed in Schedule 2 of the Accident Compensation Act 2001.” I’m concerned about that, because Schedule 2 of the Accident Compensation Act (AC Act) is not an exhaustive list. In fact, a lot of what is considered occupational disease is left out of that, and I think my colleague Mike Davidson can speak to some of that as our ACC spokesperson.

My recommendation is—and I’m speaking on behalf of my colleague Teanau Tuiono and his amendment 8.00.13—that, rather than limiting it to those listed in Schedule 2 of the AC Act, we just delete “listed in Schedule 2 of the Accident Compensation Act” and just say “an occupational disease”. Would the Minister be open to that amendment, which actually simply broadens the scope but, also, covers additional occupational diseases that could—that should, rightfully—fall under the definition of a “critical risk”?

I want to now move on to some of the things we’re discussing, which is in new Schedule 1A, which is also, technically, the list that is described that falls under the description or definition of a “critical risk”. We do have a few amendments for new Schedule 1A, but I want to speak to one first at this stage, because the previous speaker, Camilla Belich, mentioned the general risk and workplace management, specifically relating to the Health and Safety at Work (General Risk and Workplace Management) Regulations 2016. This is on page 22. Apologies, Madam Chair, there are no clause numbers for new Schedule 1A—

Yeah, the schedules make a little difference to the conversation.

Yeah. With that, while it’s good that they’re in there, I think some of the things that are missing from that, which is important to possibly also include under this general section, are around—let me just quickly find it—“Any personal injury caused by work-related gradual process, disease, or infection”. This is drawing from, but not limited to, the current section 30 of the Accident Compensation Act, since we’re talking about the AC Act. This is something that is already identified as already reasonably nuanced within the main body of the Accident Compensation Act. Essentially, it is “any personal injury caused by work-related gradual process, disease, or infection, such as suffered by a person, caused by gradual process disease or infection, or caused by circumstances described in section 32 of the Accident Compensation Act”. This is my colleague Teanau Tuiono’s amendment at 8.00.33. I want to check with the Minister if the Minister would consider expanding the scope of that.

10:06

Thank you, Madam Chair. In response to Camilla Belich’s contribution about simplification and how that would be achieved, under the current law, a small business has to identify all their risks and management, and the definition of critical risks under this law would guide the persons conducting a business or undertaking (PCBUs) to identify the risks that caused the most harm. The schedule at the back provides immediate clarity on what is already regulated, which avoids duplication or reinterpretation of the existing rules. New Schedule 1A is designed to provide certainty to PCBUs, which the new Schedule 1A criteria apply to, and this relates to regulations that PCBUs need to comply with, and be aware of. Despite the amendment for the catch-all test, it is already expected that a PCBU understands the risks, including potential outcomes that arise from their business. It shouldn’t be complicated for people, because it’s what the law already expects.

There was a query about matters relating to children listed in new Schedule 1A. There was an assumption being made by the member that children were being excluded from needing to be managed in these critical risks, but talking with my officials, the reason for that is that young people are excluded from doing that work, and it is already part of the law that young people can’t do some of those tasks. That’s why she may have misinterpreted that form of exclusion.

Lawrence Xu-Nan had a query about new section 22B(1)(b) and whether or not it was an exhaustive list. Yes—officials advise that this covers the most significant risks.

Jan Tinetti had a query about why the critical risk does not specifically include psychosocial harm or musculoskeletal harm. Actually, the Education and Workforce Committee did make a change to clarify how psychosocial harm may be a factor in critical risk. If a workplace has a hazard, such as inherently traumatic work, then there is risk of harm to workers’ mental health in the workplace that involves things like driving at high speeds for emergency services personnel. The mental harm would be assessed as likely to cause serious physical harm and would be a critical risk. For musculoskeletal harm, it would be a critical risk if a workplace has a hazard likely to cause broken bones or other severe injury. Less serious musculoskeletal harm—such as a sprain, I guess—would not be a critical risk, but it doesn’t mean to say that musculoskeletal harm is completely not in a critical risk definition.

Lawrence Xu-Nan also then had a query about whether or not I’d agree that critical risks include occupational diseases. Without reference to the Accident Compensation Act Schedule 2, no, it’s appropriate that the ACC system decides on what is an occupational disease. The diseases included in Schedule 2 are the diseases overwhelmingly proven to be caused by work, and so that list is regularly reviewed.

10:10

Thank you, Madam Chair. I just wanted to respond to something that the Minister for Workplace Relations and Safety brought into the debate, which was whether or not the Labour Party can be taken seriously on health and safety. I was interested in her comments around the fact that we have the gall to object to the fact that she’s watering down health and safety laws, and her point seemed to be that we didn’t support the Act when it came in in the first place. I was interested in that, and I looked back and I wondered, why was it that the Labour Party at that stage did take that decision to not support that Act, and very interestingly, it was because the National Government had decided to exempt small businesses. I stand here very proud of a very consistent line from this party to say that every worker in New Zealand—small business, big business—should be entitled to be safe and healthy at work.

Thank you to the Minister for allowing me that opportunity to clarify that. We’ve decided we’re going to talk about new Schedule 1A, inserted by Schedule 2, now, and there’s a lot in here, and I do have some very specific questions for the Minister around new Schedule 1A. I know that, behind new Schedule 1A, there are a number of different regulations that I have had a brief look at and have tried to kind of answer any pre-emptive questions that I might have by looking at some of these regulations, but I do have some additional questions that I haven’t been able to clarify.

I wanted to start with the adventure activities and the definitions. Here, we’ve got a definition of “amusement devices”, which I’ve looked up in the regulations and I see are, generally, kind of like your Easter show type of situation, is what I’ve managed to ascertain from reading that. But I wanted to understand from the Minister, when we’re talking about the critical risk hazards—and this is really important, because if what you’re doing as part of your small business does not fall within this schedule, then it’s likely to be excluded from the definition of “critical risk”, so it is important that we have clarity over what’s included and what’s not.

In this first bit around adventure activities, from my reading, a lot of it is based around mechanical hazards, big machinery, and that kind of thing. I wanted to know: does this cover more of the activities that New Zealand is famous for in terms of, you know, our white water rafting activities, our outdoor pursuits—obviously, those would be considered hazardous. I don’t know if they come within this particular section or not. I’m certain that they will be covered, but I just wanted some clarification as to which section they would fall within and whether it was within that initial definition of the regulations for adventure activities.

I know that my colleague Jan Tinetti has some questions around asbestos, but I had had a look, briefly, at the regulations in relation to asbestos because, obviously, asbestos is an extremely concerning workplace hazard and, I think, something New Zealand needs to take it even more seriously than we do. When I worked in the United Kingdom, I worked with colleagues who worked extensively with people who had been exposed to asbestos, and they worked with lawyers who had claims. It was the saddest department to work in because every single one of their clients died, and they died in a horrible, horrific, terrible death that is associated with when you have mesothelioma from asbestos exposure. I want to acknowledge that asbestos exposure can be extremely serious and life-threatening. But as everyone will know—and Madam Chair, you will also know—it’s not the only airborne particle that can cause injury or occupational illness. When I looked at the definition of what was covered by the Health and Safety at Work (Asbestos) Regulations 2016, it seemed to cover a number of different types of asbestos, but it didn’t seem to cover other airborne particles and other, perhaps, things that could be inhaled at work and, therefore, cause issues with people’s lungs and breathing and those more serious conditions. I did want to know if that did go further or if, in fact, there’s another part. I assume that we wouldn’t have left out those other serious parts. I’m just aware of the time, so I’ll leave those questions.

10:15

Madam Chair, look, I’ll answer that relatively briefly. Yes, the member queried whether or not things like adventure activities covers a lot of tourism activities that happen in New Zealand, like white water rafting, etc. The answer to that is yes. In fact, there shouldn’t be any company out there that’s doing our tourism extreme sports and that’s not clear about which regulations they should be under, otherwise that’s seriously concerning. This is not actually any change, and that’s the second part to the statement about asbestos and other airborne diseases and things. New Schedule 1A, which is what we’re talking about, lists the hazards already regulated as critical risks under our regulations. This is avoiding duplication and reinterpretation of our existing rules. There is nothing necessarily new in this.

Thank you, Madam Chair. I would like to go back to new section 22A, inserted by clause 9, and then come back to the schedule, which is brought in through this too. But the Minister for Workplace Relations and Safety said before, and sort of made light of the fact that people are concerned, and have been concerned, about the “likely to result in” and that terminology. I just want to say that new section 22A comes after section 22 of the Health and Safety at Work Act, and section 22 says that the definition of “reasonably practical” includes “likelihood of the hazard or risk … occurring.” Well, that’s quite different to what’s in the new section 22A, which is, “likely to result”. I want to know why that difference is there and what that difference actually means, because we’ve gone over and over this but we’ve still got people that are confused. It’s not OK to say, “Oh, well, it’s a concern that these people are in the sector and don’t get that.”, when the terminology is different to what’s in the preceding section. I think that’s a reasonable question to ask.

I want to go back. My colleague said that I had a question, and I’m going to make this quick, around the asbestos, and her question was around other airborne particles. One of the big areas that we have been hearing a lot about over the last week while is engineered stone and, of course, silicosis. I can’t see where that is in new Schedule 1A apart from—is it covered either in the asbestos or the mining and quarrying? It sounds like it would be a bit strange for it to be in there. It is something that we’ve had lots of people ask questions about. I’m wondering whether this is where the answer for those questions is and where we can see the health and safety regs that sit around silicosis with the engineered stone sitting there. I’ll leave it at that because I know we’ve got lots of other questions, so I’d like an answer to those two.

I’m going to take a call from Mike Davidson. I’m just waiting on another sheet here, but I will note that, so far, the debate has been run by three members, and so I don’t want—I’m not saying that the member’s going to do this—new members participating and asking questions that have been asked before. If it’s something absolutely new, then I’m very happy with that from any member in the committee.

10:18

Thank you, Madam Chair. I’ve got a couple of questions, and one, actually, is around clarification. The Minister for Workplace Relations and Safety earlier spoke around the psychosocial harm and the inclusion of mental health, and I just want to get clarification around this to ensure that this is treated, I guess, as more of an ongoing effect on the mental health of someone, not just as a one-off event. It talks, in the Education and Workforce Committee’s report, around an incident, such as a vehicle crash or equipment misuse, which may cause harm to mental health from that one-off event. But we know there are a lot of, I guess, workplaces where some of these incidents may not be as significant as a vehicle crash but, actually, are still, over a period of time, if they happen continually, quite significant and can cause significant mental health issues, potentially if you look at workplace culture and bullying.

We know in the construction industry they have a significantly high rate of suicide, and, potentially, we’re going to see vehicle crashes on a construction site. I just want to ensure and get clarification that through this inclusion and the words spoken in this report, ongoing issues, even if they’re slightly less significant as something like a vehicle crash, would actually contribute to mental health and would, therefore, be deemed a critical risk.

My other question is in relation to new Schedule 1A. It obviously goes through a number of different hazards associated with critical risk, and I’ve got an amendment to this. I’m speaking to my amendment dated 1 July 2026, at 08.00.32. It has listed in here a number of things like “Mining and quarrying” and “Petroleum exploration and extraction”. One of the things that I’ve noticed that is missing from this list is firefighting.

We know that firefighters, obviously, put their lives at risk when they are saving people—New Zealanders—and that comes at an extreme risk to them through exposure to carcinogens and also to extreme temperatures and environmental pollutions. What we’re finding in that industry is that it’s actually getting a lot worse because they’re not just fighting fires that are caused through natural products that are causing fires—obviously, that has been made worse by plastics, etc.—therefore they’re dealing pretty much every day with significant hazards that will, potentially, cause the risks and issues that will actually give them things like cancer, etc. We know that firefighters have a much higher rate of cancer. So I’ve got my amendment there, and I would really appreciate that being included because I think it’s a significant gap within new Schedule 1A not to acknowledge the hazards associated with firefighting.

Also, I would really appreciate getting clarification around the ability for ongoing psychosocial impacts being critical risks, rather than just one-off incidents. Thank you.

10:22

Thank you, Madam Chair. There’s been a lot of questions around new Schedule 1A and what the scope of new Schedule 1A is, and so I’ll just speak to this a little bit. New Schedule 1A does not limit the risks already managed by regulations. It simply sets out what these risks are to make it easier for businesses to assess whether they may have critical risks. If a risk is not included in new Schedule 1A, it may still be a critical risk if, under the catch-all test, the risk is likely to cause serious physical harm as listed in the text.

There’s been a few specific examples raised by Camilla Belich, Jan Tinetti, and Mike Davidson. I’d just like to say that with regard to the asbestos and other hazardous dust issue that had been raised, this specific example is covered by the hazardous substances regulations, and as far as engineered stone goes, it is not currently regulated. There is ongoing work being done on this, so it can’t be in the schedule. The catch-all test will clearly cover silica exposure, given the harms it can cause. Around firefighting and the hazards and risk, the schedule lists hazards and risks currently covered by regulations. Firefighting isn’t regulated in this way, but the catch-all tests will clearly cover firefighting.

I’m going to take a call from Camilla Belich. I’m getting very close to closure on this, and so I just want the key questions now.

10:24

Well, Madam Chair, that’s interesting, because the majority of this bill is in Part 1, and we are working through the schedule, which we haven’t finished. Then, once we—

That’s why I’m asking for your key questions.

Yeah, OK. I just would note that Part 1 is the majority of this bill and that Part 2 and Part 3 are very small.

Yeah, and I accept that, but I’m asking for Camilla Belich’s key questions that haven’t been answered.

Well, I do have some key questions that haven’t been covered at all in relation to new Schedule 1A. I’ve covered amusement devices and asbestos in new Schedule 1A in my last contributions, and Jan Tinetti has mentioned that as well, but what I want to move on to now is the general risk and workplace management.

Now, the Minister for Workplace Relations and Safety before, when I asked her around the issues around whether someone who was under 15 and under 16 was covered by this, said, “The member has misunderstood. This is about prohibiting those under that age level from doing this particular work.”, and I thought that was interesting. So I checked that with the regulations, and I found that in the general risk and workplace management regulations, there isn’t a prohibition on people doing that work if they’re under that level. In fact, the only restriction is that they shouldn’t do that work “so far as reasonably practicable.”, and that’s in section 44 of the regulations. That language is also echoed in relation to the other duties: in relation to harmful substances, they must not do it so far as reasonably practicable; they are not to work with heavy machinery, so far as reasonably practicable; and, if they’re under 15 years, they are not to ride upon certain vehicles so far as is reasonably practicable.

Now the Minister, I am assuming, will say that this is the law as it stands, but the question I have for her is this. If this is the law as set out in the regulations, as it currently stands, and when we are adding in this new schedule to the primary piece of legislation—so this is the primary piece of legislation that sits above the regulations which helped to enact that piece of legislation—we’re also mentioning that it is in the wording that is specifically written down in Schedule 2, which is what I’m asking about. The general risk and workplace management envisages a situation where these young people might be undertaking these highly risky behaviours, and it specifically sets out that when they do undertake those behaviours, that would be considered to be a critical risk.

So the question I have for the Minister is: has she taken any advice about whether her inclusion in new Schedule 1A of those people under 15 years old and under 16 years old doing these highly risky activities in primary legislation would, therefore, undermine or slightly lessen the restrictions in the Health and Safety at Work (General Risk and Workplace Management) Regulations? On my reading of this, it isn’t clear that there is a prohibition in the primary legislation, and when I read the regulations, I see that there isn’t a clear prevention for those young people doing that work, and so I do think it is an important question for the Minister to answer. Does this Government still stand by those restrictions on young people doing that work, and, if so, how does this legislation further the aim of making sure that our children are not participating in this extremely hazardous work which is envisaged by this legislation?

10:28

Thank you, Madam Chair. Look, sometimes I find some of these contributions interesting but also tiresome. Look, there is there is no change. I honestly don’t know how we could be any clearer: new Schedule 1A is not changing regulations. It’s simply a list of the regulations that already exist, and if the Labour Party was in power for six years and cared so much about this issue, you wonder why they did nothing about it. There is no change here to how children interact at work. This is the exact law that exists, with the same regulations, in a list. There is no change to those regulations, and so the short and long of that is just no.

Jan Tinetti asked: why does new section 22A use different terminology from existing section 22 with regard to “likely”? Look, the answer to this is that existing section 22 explains the meaning of “reasonably practicable”, which is the standard to which risks must be managed; new section 22A defines “critical risk”, which is quite different from section 22. It is a forward-looking assessment of what is likely to happen if a risk materialises, and this is not the same as deciding how a risk should be managed. Differences are to be expected in how likelihood would be used in these two contexts.

Mike Davidson, I understand, had a contribution about psychosocial harm over time, and the Education and Workforce Committee recommended an amendment to clarify that where a hazard in the workplace risks harm to workers’ mental health and if the harm to mental health occurs and it’s likely to cause serious physical harm, then the harm to mental health will be a critical risk that must be managed, but I do acknowledge that that had already been raised before. Look, I just take the point that there has been a number of contributions here made which are also talking about so-called experts, as well as people in the Labour Party who so-called care about health and safety law but who have serious misunderstandings of the current law, which I find quite concerning.

Dr Lawrence Xu-Nan—I’m just going to make the point that I’m just waiting on some Amendment Paper grouping.

10:30

Thank you, Madam Chair. Apologies before for taking up the full amount of time. I’ll keep my questions concise. In terms of new Schedule 1A, I do appreciate what the Minister for Workplace Relations and Safety is saying, but I want to just check. There is a list of things that would be captured by the definition of a “critical risk”, so we can also add to that particular list. I do want to address some of the amendments we have on this, and I want to particularly, let’s say, focus on my amendment, which is 8.00.31. I agree with what the Minister is saying—that psychosocial is already included. We see a new point under new section 22A, but, if anything, it doesn’t stop us from expanding on such definitions within new Schedule 1A. Within that, I just want to check if the Minister would consider including additional hazards for the education sector, which involves the expansion of psychosocial injury as workplace stress, including burnout, fatigue, anxiety, harassment, and bullying.

I also acknowledge what the Minister said in terms of musculoskeletal being a part of what could be another viable injury, but what it doesn’t capture is musculoskeletal strain and repeated strain, so I want to check with the Minister if that’s something that should be notifiable. It genuinely does affect people’s ability to work but is not currently, in my understanding, captured under the definition.

Other people may have additional questions for new Schedule 1A, but I want to check with the Minister around clause 11, new sections 25A to 25C. In both new section 25A and new section 25B, it says that a small person conducting a business or undertaking’s, or a PCBU’s, “failure to prioritise critical risk in accordance with [a previous subsection] is not an offence.” I want to check with the Minister. If they are non-compliant and there is a critical risk, why is that not an offence?

Jan Tinetti—again, I’m just looking for some honing in on—

10:33

Yes, certainly, Madam Chair. I’m looking at new section 22B, “Amendment of Schedule 1A”, but it’s not about new Schedule 1A. My colleague Camilla Belich has an amendment around making certain that when changes are made, as it currently stands there, “The Governor-General may, by Order in Council made on the recommendation of the Minister” make those amendments to the schedule. This has come through a lot, and this is an amendment that, I think, is a very, very good one, ensuring that we’ve got the voices—because it doesn’t say that in the bill as it stands at the moment—and that experts would be in there. There is a concern that the voice of people that work in the sector or the voice of health and safety - affected stakeholders would not be taken into account or might not be taken into account. This amendment changes that. I really want to know why that happened in the first place but also whether the Minister for Workplace Relations and Safety would be favourable to this amendment. It’s just ensuring that we do have the voice of affected stakeholders when we’re looking at that change in the schedule. To me, this is a good amendment that would send a sign of good faith to those people who are stakeholders, whether they be owners or workers. I’m just asking that.

10:34

Look, I’ll tie that one away quite quickly. I don’t agree with that amendment, which was the tabled amendment proposing to require consultation before the changes can be made to new Schedule 1A for hazards associated with critical risk. That is because I think there is, once again, a serious misunderstanding of what the law here is intending to do. I, once again, note my serious reservation and concern that this is simply a list of regulations that will exist under law. Adding to new Schedule 1A with a new regulation is not creating a new regulation. The regulation itself has been created, and then this power is adding it to the list of the list of regulations. It’s not as though the Minister, through this, has the power to just create a new regulation and put it into the list. The regulation will exist, and then we want to update the list to ensure that the new regulation is also captured. It’s hardly a scary provision at all. It just allows for any new regulations over time to be added to a list of regulations. There is no need for consultation on that.

10:36

Thank you, Madam Chair. I appreciate the Minister for Workplace Relations and Safety’s response on new Schedule 1A. New Schedule 1A is extensive, and there are more questions we could have asked, but I’m taking the direction from the Chair that we will move past that, and we’ll move on to some other parts of the bill. On my reading now, we’re up to around clause 10 or 11. The Minister has said, in response to my previous question, not to be alarmed, as this isn’t a major change of the law; it’s just actually listing what’s already an existing regulation. The question was, Minister: when you change primary legislation, which you are doing and you are making a list of what is included as a critical risk, how does that impact on the existing regulations? There have been a few condescending comments about lack of understanding, but I don’t, in fact, believe that that question, which is a thing around the precedence of primary legislation and its interaction with regulations, has, in fact, been answered, but I will move on.

The Minister for Workplace Relations and Safety seems very keen to answer questions around what is new in this legislation, so moving on from that schedule, the amendments to section 23 of the primary Act, which is outlined in clause 10 of the bill before us today, do make changes to the definition within the primary piece of legislation. I’m looking to the Minister to see that we’re on the same page with this. It’s changing the definition of “notifiable injury or illness”, and it’s making specific new, novel changes to the law as it currently stands, which the Minister has put before the House. I do think that there are some questions that the Minister needs to answer on that, and I would expect that she’s able to give some insight into her thinking on this, as opposed to stating that it’s the restatement of the existing law.

In this bill, Minister, you have added in the examples of “fractured skull, a blood clot or bleeding in the brain” in the definition of “injury”, and there are a number of examples here, in subclause (2), in relation to eyes and, in subclauses (3) and (4), in relation to spinal injuries. All of these examples will have a bearing on how the definition of “injury” or “illness” is interpreted, and I want to ask the Minister: what advice has she taken, and if it is, in fact, further expanding the definition or limiting the definition, why has she chosen to do that in this amendment bill, and what evidence is she relying on that adding these examples to the Act will provide further clarity for those businesses wanting to understand what the meaning of “notifiable injury or illness” is? That is important because when it is notifiable, there are different processes that need to be put in place that businesses will have to go through, compared with an injury that isn’t declared to be notifiable. Also, additionally, what guidance, seeing as this is a change to the existing law, will be provided to organisations so that they are up to date with the new definitions of what is considered to be an injury or an illness?

10:40

Thank you, Madam Chair. I note that we’re moving on to a new clause, but I just wanted to tidy up some of the things from the previous clause before we move.

Lawrence Xu-Nan had a query about why it’s not an offence not to prioritise the critical risks. Look, the requirement to prioritise critical risks relates to a person conducting a business or undertaking (PCBU) performing their duties under the Act. The relevant offences remain offences about failure to comply with those duties, and they’re already in the Act.

Lawrence Xu-Nan also had a query about whether or not I’d add “musculoskeletal repeated strain” to new Schedule 1A. No. Musculoskeletal harm was not a notifiable injury. The definition of “critical risk” is based on pre-existing definitions of notifiable injuries, illnesses, and events and focuses on the most serious harms.

Camilla Belich’s queries, then, relating to clause 10 about notifiable incidents: look, these are clarifications and examples based on existing regulator practice, and these will help PCBUs know what to notify. Currently, PCBUs are unclear about what is or is not out, and that was the feedback from businesses, but this is based on regulator practice.

Madam Chair.

I’m going to take a couple of clarifying—just clarifying—questions now. I’ve noted that we’ve covered pretty much most of the clauses and the schedule.

10:41

Thank you, Madam Chair. Just in terms of clarifying, I think what I’m on to is now clause 12. One of the things I want to check with the Minister for Workplace Relations and Safety—and I’ll move through a couple of clauses, Madam Chair—is around clause 12 and a clarification around what happens when there is no ability in the current structure of clause 12 for there to be the notification of other powers or other enactments that potentially would touch on this. My colleague Teanau Tuiono has a tabled amendment, 8.00.17, which just inserts a clause that allows for the Governor-General, by Order in Council, to make recommendations to also be able to identify other enactments which this pertains to, if that is something that is either covered in the existing legislation or would be something that, potentially, additional regulatory-making powers are required for as a part of that.

I do want to move on to one further bit, because I think that’s important—and I know that my colleagues may have other questions regarding clause 21, “Section 44 amended”, around the duty of officers and due diligence. I want to just check, in terms of clause 28, around the approved codes of practice (ACOP), and this is something I signalled to the Minister and the chair previously that I would have questions around. One of the things around the ACOP is the fact that there is no real ability to review such regulations, and we’ve noted that this is not necessarily, from what I can see, secondary legislation, but any sort of sunset clause or review clause may be important. Can the Minister tell me if there is already existing consideration for a review? If not, I want to check with the Minister if the Minister would be interested in my tabled amendment 8.00.20, which just says that—

No.

Oh, I love when someone else on the opposite side throws their voice around like they’re the Minister. I would like to see if the Minister would be interested in my amendment, which just simply allows for the Minister to review an approved code of practice but limits that the approved code of practice must be reviewed at least once every five years.

10:44

I move, That debate on this question now close.

Members, we have received a large number of amendments on various clauses in this part from different members. Standing Order 315(3) and (4) provides discretion to the Chairperson to both group amendments and select amendments. Amendments may be grouped where they stand in the name of a single member, they lend themselves to being grouped, or the grouping is necessary to enable the committee’s effective consideration of the bill. In assessing what represents effective consideration, I am guided by Speaker Brownlee’s earlier ruling that the committee’s time is best spent on debating legislation rather than voting on it and that the committee should be focusing on serious amendments.

My approach, therefore, will be to group or select amendments to the extent that is reasonable and appropriate. The judgment will take into account the number of amendments that have been placed before the committee and the extent to which those amendments provide a genuine alternative policy proposal.

That said, if any party has a different position on a specific amendment—for example, it intends to vote against an amendment from a member but is otherwise supportive of that member’s amendments—then please indicate that to the Chairperson. A separate question can be put on that particular amendment.

The question is that Camilla Belich’s tabled amendments to Part 1 deleting provisions relating to critical risks be agreed to.

The question is the Camilla Belich’s tabled amendments to Part 1 deleting provisions relating to small PCBUs be agreed to.

The Hon Jan Tinetti’s seven tabled amendments to clause 4 are ruled out of order as being merely an attempt to criticise the bill.

Members, there are four amendments to clause 4, new section 3, in the name of Dr Lawrence Xu-Nan. To test the will of the committee, I will put the question on one of those amendments.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 4 replacing new section 3 be agreed to.

Members, the will of the committee having been tested, Dr Lawrence Xu-Nan’s remaining three tabled amendments to clause 4 are out of order as being inconsistent with a previous decision of the committee.

The question is that Teanau Tuiono’s tabled amendment deleting the interpretations for “large PCBU” in clause 7 and deleting clause 8 be agreed to.

The Hon Jan Tinetti’s three tabled amendments to clause 8(4) are ruled out of order as not being serious amendments.

Members, there are three amendments to clause 8 in the name of Dr Lawrence Xu-Nan. To test the will of the committee, I will put the question on one of those amendments.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 8 replacing “20 workers” in section 17 be agreed to.

Members, the will of the committee having been tested, Dr Lawrence Xu-Nan’s remaining two tabled amendments to clause 8 are out of order as being inconsistent with a previous decision of the committee.

Members, there are four amendments to clause 9, new section 22A, in the name of Teanau Tuiono. To test the will of the committee, I will put the question on one of those amendments.

The question is that Teanau Tuiono’s tabled amendment to clause 9 replacing “if likely to result” in new section 22A(1)(b) be agreed to.

Members, the will of the committee having been tested, Teanau Tuiono’s remaining three tabled amendments to clause 9 are out of order as being inconsistent with a previous decision of the committee.

Members, Camilla Belich’s tabled amendments to clauses 9, 11, and 12 lend themselves to being grouped. I will put a single question on them unless members indicate that they wish to vote separately on a specific amendment.

Yes, vote separately please.

No, I’ve asked if you indicate that you wish to vote differently on one of those amendments to the other amendments. That is—

Sorry, could you clarify?

I’m not asking to vote separately. I’m saying I will group them unless members indicate that they wish to vote separately—which means differently than you would have otherwise voted. If you intended to vote on all of those amendments in the same way, then I will group them. If there’s one specifically you were going to do differently, then you would indicate that to me now.

OK. Good to know. Thank you for the clarification.

Thank you. The question is that Camilla Belich’s tabled amendments to clauses 9, 11, and 12 be agreed to.

The Hon Jan Tinetti’s tabled amendment to clause 9 new section 22B(1) is ruled out of order as not being in the correct form of legislation.

Members, Jan Tinetti’s tabled amendments to clauses 9, 11, 21, and 28 lend themselves to being grouped. I will put a single question on them again, unless a member indicates they wish to vote separately on a specific amendment.

The question is that the Hon Jan Tinetti’s tabled amendments to clauses 9, 11, 21, and 28 be agreed to.

Members, Dr Lawrence Xu-Nan’s tabled amendments to delete provisions in clauses 10, 11, and 21 lend themselves to being grouped. I will put a single question on them unless members indicate that they wish to vote separately on a specific amendment.

The question is that Dr Lawrence Xu-Nan’s tabled amendments deleting provisions in clauses 10, 11, and 21 be agreed to.

The question is that Teanau Tuiono’s tabled amendment to clause 12, inserting new subsections (4) and (5) into section 35 be agreed to.

The question is that Teanau Tuiono’s tabled amendment deleting clause 21 be agreed to.

The question is that Teanau Tuiono’s tabled amendment to clause 28 inserting subsection (6) into new section 222A, be agreed to.

The question is that Francisco Hernandez’s tabled amendment deleting clause 3 be agreed to.

Members, there are 11 tabled amendments to clause 3 in the name of Francisco Hernandez. To test the will of the committee, I will put the question on one of those amendments.

The question is that Francisco Hernandez’s tabled amendment to clause 3 replacing new section 3(2)(a) with words commencing “to provide partial protection to workers” be agreed to.

Members, the will of the committee having been tested, Francisco Hernandez’s remaining 10 tabled amendments to clause 3 are out of order as being inconsistent with a previous decision of the committee.

The question is that Francisco Hernandez’s tabled amendments to clause 9 new section 22A(1)(a) and (b) be agreed to.

The question is that Francisco Hernandez’s tabled amendment to clause 9 replacing words in new section 22A(1) be agreed to.

The question is that Francisco Hernandez’s tabled amendments to clause 10, replacing subclauses (1) to (4), be agreed to.

11:03

Point of order, Mr Chairperson. Thank you, Mr Chair. I raise a point of order under Standing Order 315(3) and (4). The Chair of the committee previously to you offered some guidance to the committee. Firstly, I’m asking you whether that was guidance or a ruling. Mr Chair, I’d like to submit to you that on Tuesday, 12 May 2009, the House began to vote on the Auckland super-city bill. The member in charge of the bill was Rodney Hide, also an ACT Minister. The House ended its voting on that bill at 9.42 p.m. on Saturday, 16 May 2009. The reason why Standing Order 315 has been developed in the way it was was through careful negotiation between Labour and National Ministers, not only during that committee stage, where three Speaker’s rulings were given, but also in the Standing Orders review that concluded at the end of that Parliament.

This is a deeply meaningful rule which is intended to change the way that select committees and the committee of the whole House are intended to operate. In that debate, there were 8,000 amendments which were proposed by Labour and Green members. This is not the same as that case. It was important at the time because the Leader of the House, Gerry Brownlee, also made comments to media around what was appropriate to debate and what was appropriate in terms of amendments. There was much debate between the shadow Leader of the House and Minister Grant Robertson at the time as well, which played out and was useful to the development of that rule.

Mr Chair, I’m asking you to clarify whether the Chair previously to you has made a ruling which changes that carefully developed piece of ruling, which was informed by not only public scrutiny but public debate around the kinds of debate that we have in the committee stage. Is it the case that we have made a change which has not been made through a determination of the Business Committee or a Standing Orders Committee consideration of this rule, but has been made unilaterally by the Chair before you?

11:05

Well, you’ll be aware of what the Speaker commented yesterday in the House. It’s always up to the presiding officers to interpret the Standing Orders. In relation to your question, what the previous presiding officer has said is an interpretation. It’s not a new ruling; it is an interpretation under the existing Standing Order, and as far as the broader negotiations around that go, can I suggest perhaps some discussions between the party whip and the Speaker, if there is to be a looking for, I suppose, a reinterpretation—that those discussions take place. In the meantime, the rulings that you heard from the previous presiding officer are from the Chair interpreting within Standing Order 315.

11:07

Thank you, Mr Chair. I will do that and I will take that away. I’m just wanting to clarify: does the interpretation apply equally to every presiding officer, or is it that presiding officer’s view of how amendments will be dealt with?

No, it will be a continuation. Presiding officers do, obviously, discuss. We don’t operate in isolation, and the indications made by the previous presiding officer will continue in the absence of any reinterpretation of Standing Order 315. Camilla Belich.

11:08

So, Part 2?

Part 2—yes, thank you.

Thank you, Mr Chair. Part 2 is in relation to amendments to the WorkSafe New Zealand Act 2013. This is an extremely significant part of this bill. Although it appears short, it actually makes some very significant changes to the way that WorkSafe works. I just want to draw the committee’s attention to this because, previously, during the term of this Government, WorkSafe have said that they see their role very much more as an influencing role, not as New Zealand’s only regulator in relation to health and safety—and, yes, they did use the term “influencer”. This was hugely concerning at the time that this was raised, and a question to the Minister for Workplace Relations and Safety is this: it appears that this change to the WorkSafe New Zealand Act is implementing a weakening of WorkSafe, and I’ll draw the committee’s attention to the various parts of this bill that do that.

First of all, at clause 34, it inserts a new section 10(1), which sets out the purpose of WorkSafe—so this is all new law. At new section 10(1), it outlines what WorkSafe’s function is. Now, if you read that, you’ll see that it does appear to be mainly providing guidance and advice and recommending codes of practice and instruments, and monitoring. There is only one mention of enforcement of compliance with relevant health and safety regulation, and that is not on its own limb.

Additionally, in subclause (3), there is a repeal to the original Act, and that is in relation to section 10(c), (e), (ea), and (f). For the committee’s benefit, I’ve brought those particular parts up. The bits that are being deleted are: “(c) monitor and enforce compliance with relevant health and safety legislation:”; “(e) develop codes of practice:”—although there is some mention of codes of practice in the new section; then “(ea) develop safe work instruments”—I’m just checking to see if that is covered under the new definition, and it appears that that one is; and then (f), if we look at (f), it’s to “provide guidance, advice, and information on work health and safety to—(i) persons who have duties … and (ii) the public:”.

My question to the Minister is: is she choosing to reorganise the purpose of WorkSafe or is she weakening the powers of WorkSafe? On a provisional read of that provision, it does appear that the focus of WorkSafe is not to be a strong health and safety regulator that can hold those with duties to account; it is instead to weaken the purpose of WorkSafe to providing guidance, to influencing workplaces, and to not being the strong health and safety regulator we need.

Now, the Minister will need no reminding, and I hope the committee doesn’t either, that New Zealand has terrible statistics internationally in relation to workplace health and safety. We are behind the UK, we are behind Australia—and it is not a small amount; it is either double or treble the number of workplace accidents that we hear. There’s something not working with our workplace health and safety laws when we have those numbers of people being injured compared to jurisdictions that we compare ourselves to.

This bill does not strengthen workplace health and safety in the way that it would need to in order to bring those statistics down, and my concern around the amendments to the WorkSafe Act is that this is further weakening their jurisdiction. They’ve told us that that’s their intention—to weaken it. What I’m asking the Minister is: is it her intention, through the passage of this legislation, through passing these clauses in Part 2, to actually make WorkSafe more of a guidance model and less of a regulator?

11:12

Thank you, Mr Chair. To the main query that was within that contribution about does this weaken WorkSafe, the answer to this is no. I believe we are strengthening WorkSafe with these changes. We are strengthening WorkSafe by prioritising this new list of main functions and other functions. It makes WorkSafe more focused and effective. The functions listed are all existing functions. I note the member went through a number under an assumption that they’d been deleted, but, in fact, they’re actually there as main functions, but they are now prioritised so WorkSafe knows what to focus on.

The four main functions are: “to provide guidance, advice, and information on compliance with relevant health and safety legislation”—seems quite legitimate; “to develop, review, and recommend codes of practice”—once again, very legitimate; “to develop safe work instruments”—core business; “to monitor and enforce compliance with relevant health and safety legislation”. They’re all very core and what you would expect the regulator to be doing—to be providing guidance while at the same time also monitoring and enforcing compliance. No functions have been removed in these changes; they have been prioritised. There is only one new function, which is supporting businesses to comply.

11:14

Thank you, Mr Chair. I’ve got a couple of questions about this, and clause 34 of Part 2 is where my questions are based. The first one is: why is WorkSafe’s main function—why is number one—not helping reduce workplace injuries and the rate of that and fatalities over time? Surely that has to be the number one role of WorkSafe. I know the Minister has talked about what my colleague brought up, but it just seems unbelievable that we would not put that as number one.

But number two of my questions actually has come up during and after select committee, and it is something that I would like to look at a little bit more closely from the Minister. It seems to be, from people that have been through the Pike River tragedy, that there was a conflict of interest at the time—and that has been borne out in the royal commission report that came through—seen from the Department of Labour in the handling of Pike River. Where it was inspecting and advising Pike River management, that was seen as a conflict. Now, the new functions as they’re being outlined here by WorkSafe seem to be the same. We’ve got the role as consultant and giving advice and the role of the regulator, so like the policeman, and that seems to be the same conflict.

I want assurance from the Minister of how that perceived or real conflict is being managed or will be managed, but also how that can be a barrier to businesses who are seeking advice on health and safety issues and how smaller businesses, when they see the regulator and the adviser being one and the same, would be unlikely or may be unlikely to get the advice from the regulator because of what the Minister has called the “fear” of the regulator. How will they be able to do that when they’ve already got that conflict, whether it’s perceived or real, that sits there between both the regulator and the adviser?

Two questions, one regarding are we going back to a pre - Pike River, and was that the intent, and the second one is around the businesses seeing that perceived or real conflict between that, and how would they be able to access that knowing that conflict exists.

11:17

Thank you, Mr Chair. I do want to start by touching on clause 33 or discussing clause 33 in terms of the changes to WorkSafe. I do want to acknowledge both Camilla Belich and the Hon Jan Tinetti’s earlier questions.

I guess, before I talk about the main objective and objectives and the prioritisation that we see here in clause 33, I want to check with the Minister whether there was any advice or any sort of discussions by the Minister or by the officials around comparing what we have here and Australia’s system, noting that Australia has, in some ways, better stats or better outcomes for their workers, proportionately. But Australia has two separate systems: they’ve got Safe Work Australia and WorkSafe Australia. One does the policy and one is the regulator. I want to check with the Minister that we don’t have that system, yet what I’m seeing here, like the previous speaker said, is shifting some of that more towards the policy side and, potentially, less emphasis on the regulatory side. I could be wrong—I would be keen to hear from the Minister. But my question is: what sort of conversations or has any work been done on how things are being done in Australia—whether that is being used to map what are some of the changes here?

In terms of clause 33, one of the concerns that we have is around the idea that they’re prioritising just critical risk. Now, I would assume that when it comes to WorkSafe, they are about injury prevention in general. That’s from what we heard in scrutiny week, and that’s one of their core mandates—if we are doing any review of Estimates week. But then by shifting it to critical risk only, are they now deprioritising other workplace injuries? That is going to be a concern because of the fact that—we discussed this as a concern that ACC has, that what you’re going to be seeing is more workplace injuries that may not be critical risk that still would put a burden on our ACC system.

The two questions for clause 33 are: how would WorkSafe prioritise critical risks while not deprioritising injuries in general, and what is WorkSafe’s mandate now when it comes to workplace injury prevention?

11:20

Thank you. I’m happy to take a couple of these contributions. Look, Jan Tinetti had a query about why reducing harm isn’t one of WorkSafe’s functions. The answer to this is that harm reduction is already covered in the purposes and objectives of the Act and WorkSafe. It’s not a function at the moment. WorkSafe’s guidance will help persons conducting a business or undertaking needing advice.

I see this as WorkSafe going back to how it performed when it was first established. However, when we were doing the roadshows, what became really apparent was people saying that there had been a shift in WorkSafe that was not a helpful shift, and that they had moved more to being policemen. There were a lot of people who were quite fearful of asking WorkSafe for help. However, that was not the case when it was first established. This change will help elevate those four main functions to be of equal importance. I believe this will also be very helpful to people, but it’s not the case that developing guidance has never been a function of WorkSafe, while at the same time needing to monitor and enforce compliance.

I think that also then goes to the query from Lawrence Xu-Nan. Our health and safety law is based on the Australian model of the law, so our regulator’s objective, functions, and powers are equivalent to the Australian jurisdiction’s. It’s been the case since day dot of WorkSafe that they are providing guidance while at the same time monitoring enforcement.

11:22

Thank you for that, Minister. That’s very interesting. What the Minister has then just clarified is that, in fact, we are shifting—because, like the Minister said, people might be fearful of WorkSafe from a regulatory perspective—more towards a policy perspective. But if we look at the Australian model I mentioned, Australia has two separate agencies—one for policy and one for regulations. If we had such a system, that makes sense; but if we are having one system where we’re only going to be mainly prioritising policy but not the regulations part, then what we are seeing is a complete reduction or weakening of the regulatory function in Aotearoa New Zealand, which is not the case in Australia.

In fact, Safe Work Australia as a regulatory body is incredibly stringent and powerful, particularly in certain states. In Western Australia for example, they are very strict, as well as in Victoria. I understand that we don’t have a state/federal divide here in Aotearoa New Zealand, but those two separate bodies function very separately. If we had a bill here where WorkSafe was, essentially, split into two different agencies, that would potentially make sense, but that’s not the case. I want to check with the Minister, then, if that’s an accurate representation of what is happening here—in which case, having one agency and deprioritising regulations is a bit of a concern.

I do want to move on to clause 34 though. I take the point of the Hon Jan Tinetti around this, where, now, you’re looking at the main functions, and I do acknowledge what the Minister has said. One of the things that did jump out at me is what is currently listed in section 10 of the WorkSafe New Zealand Act. In section 10, currently, is a whole list. Basically, the Minister pulled out four of them and said, “These are now your four main functions; the rest are all secondary”. That’s what we see in clause 34(1), (2), and (3).

One of the things that I found was quite interesting and that I want to check with the Minister—I have a tabled amendment on this, lodged at 8.00.24 a.m.—is that, in section 10(g) of the WorkSafe New Zealand Act, it says that WorkSafe is only promoting and supporting the likes of research, education, and all of those. For me, promoting and supporting does not mean they themselves do it. Is WorkSafe themselves actively also doing research and also conducting education? It doesn’t seem to be clear within the current WorkSafe New Zealand Act 2013.

Because we are amending section 10 anyway, I think it’s also important for us to look at the functions as a whole from that Act, which is open to amendment. My amendment for section 10(g) is to replace “promote and support” with “promote, support, and conduct”, just to say that WorkSafe might be doing all three. I want to check with the Minister if the Minister would be interested in that amendment.

11:25

I’m happy to take this contribution. Look, no, I won’t be supporting that amendment, but I thank the member for asking. To some extent, there is a split already in New Zealand in that we have a policy shop, being the Ministry of Business, Innovation and Employment (MBIE), as opposed to having policy coming directly out of WorkSafe. We have policy, and then we have WorkSafe that does the guidance and enforcement, but the guidance and enforcement has been there since the start.

In terms of that contribution around whether we need them to be doing even more research: in some ways, that is even MBIE’s role, but I’d be surprised if they didn’t do a little bit of it if they wanted to. However, I don’t see that as a main function. This whole purpose here is about aligning it with the Health and Safety at Work Act. If we’re focusing on critical risks and trying to simplify the law within the Health and Safety at Work Act, it does make sense then to have correlating changes to the WorkSafe New Zealand Act, where, of course, there’ll be a need for guidance and enforcement.

These are not big changes. The functions of WorkSafe are there in the law; we’re simply, like we’re doing with critical risks, prioritising what people need to focus on, and here, for WorkSafe, given that they have such a range of functions, we’re making sure that they need to prioritise guidance, developing codes of practice, developing safe work instruments, and monitoring and enforcing compliance.

Just a general reminder for members: when they’re approaching the Table to pick up papers, could they be aware of what’s happening in the Chamber and not get in the way—particularly during this part where a Minister and a member may be having an interaction. It’s just committee management.

Mr Chair, I very deliberately waited until the member had ceased speaking so that I could come. So when am I to get the papers?

This is a general observation, not directed at any particular member—

Should I crawl along the floor?

—just the timing of it. The member might just like to sit and calm down.

11:28

Thank you, Mr Chair. I do want to just have a quick follow-up with the Minister. Thank you, Minister, for your response. Just one quick one. What we’re seeing is that the Ministry of Business, Innovation and Employment is in charge of the policy, and, now, WorkSafe is also doing some of the research and policy and very little in terms of the regulatory function. I think, in that case, other than the four main functions that the Minister has identified, can I interpret it that clause 34(d), amending section 10, “to monitor and enforce compliance”, specifically only that one is fulfilling the regulatory function of WorkSafe now, under the main functions?

Thank you, Mr Chair. Very quickly, when I’ve gone through this with people in recent times, this particular clause—clause 34, I’m talking about, of Part 2—there’s been a question about what that means for the structural changes in WorkSafe itself. Certainly, I have had some information this week that says there’s been some disestablishment of some teams in WorkSafe which are critical teams to working with some pretty gnarly issues that we have. I’m talking about—and I hope I don’t offend anybody by saying this—things like suicide that have been caused from workplace harm.

It seems to me that if that information is correct and those teams are being disestablished, we’ve got some issues, because we’ve still got huge issues and terrible statistics in that area and other areas. I want to know what this particular change—because I think that’s only fair for people who are asking this question, too—will mean for what the structural change of WorkSafe will look like now and the changes that have been now and in the last few months, but also going forward, and what future changes we would expect to see.

11:30

Happy to take both of these contributions. Look, in terms of Lawrence Xu-Nan’s question about, does this mean that there is only one regulatory function for WorkSafe, being the compliance part? No, I think that’s just a misunderstanding of being a regulator. Regulators have multiple roles, and so it’s not the fact that regulatory response is only the stick. Sometimes, regulators actually have multiple functions, and you can look across regulators all across Government. I think David Seymour pointed out there was nearly over 260 of them. Most of them have multiple roles. It’s not just to enforce compliance. There are other elements to it as well. For WorkSafe, this simply clarifies which functions are central to the regulator’s core role, but it’s not saying that there’s only one role within WorkSafe. In fact, it’s talking about that there’s multiple regulatory functions within that regulator.

To the second contribution of Jan Tinetti. Look, suicide is a very, very important issue in this country, and one that we shouldn’t make light of at all. However, the difficulty with the member raising it here is to try and figure out what the specific interaction of that with this law is, because she’s really talking about having heard of some potential operational change within WorkSafe. Now, I would suggest that that is better suited as a question to the chief executive of WorkSafe, potentially at the next hearing where the chief executive would be present, as I don’t actually have an effect on the operational side of WorkSafe as opposed to the law and the legal effect of the legislation, which is what we are actually talking about today, so I don’t want to get into that more operational side.

11:32

Very quickly then, and I am talking about the legislation, and surely that has been thought about by the Minister for Workplace Relations and Safety. What potential—and the Minister must have had those conversations as you’re developing this legislation—changes would you see in the structure and the work of WorkSafe as a result of this legislation? This legislation deliberately makes a change to the functions of WorkSafe, so I’m trying to get an understanding of what that would look like, and it is a question that is being asked. I totally agree that there is an operational component to that, but at the same time, as Ministers, and as a Minister, there must have been a discussion about what that would look like or could look like.

11:33

Thank you, Mr Chair. Just a very quick question from me. Thank you, Minister. I was mainly referring to the new main functions. I understand there are also additional functions that WorkSafe will have in terms of the regulatory aspects. Can I just check, from me, with these new main functions from WorkSafe, how would that then interact with the existing action plans and the prioritisation within WorkSafe as an organisation? Would you expect WorkSafe to also be, I guess, restructuring or reprioritising, to a certain extent, based on this? Is that something WorkSafe has already done and this just happens to line up with what they’re doing? Or does the Minister for Workplace Relations and Safety expect some new changes within WorkSafe?

11:34

Thank you, Mr Chair. Just in relation to Part 2, what is the Minister for Workplace Relations and Safety’s view around the responsibility that she has, as the Minister responsible for WorkSafe, for providing direction to WorkSafe in terms of the way that they implement their operational directions? Obviously, there are changes here to the primary piece of legislation that directs WorkSafe and everything that they do, and I’ve heard the Minister say that how they implement that is operational. How is she going to be holding them to account given these changes which seek to change their priorities? What is the Minister’s role in implementing this piece of legislation and how will she hold WorkSafe to account?

11:35

Happy to take this. Look, I think there’s a potential difference of opinion in how legislation and the debate around this is supposed to take place as opposed to the Minister’s day-to-day interactions with the chief executive of a regulatory agency. What I’m doing here today is changing the law, and to Camilla Belich, Jan Tinetti, and Lawrence Xu-Nan’s query about how this affects operations: that is set out in things like the statements of performance expectations and the Minister’s letters of expectations, which we revise yearly and we do our ongoing analysis of, and I have monthly meetings with the chair of the board as well as the chief executive of WorkSafe. But the operational side itself I see as sitting somewhat at length of what the specific debate is today, which is about simply, in these clauses 32 to 34, reprioritising some of the current functions of WorkSafe so that we are prioritising the providing guidance, developing approved codes of practice, developing safe work instruments, and monitoring and enforcing compliance. We’re not going into the day-to-day operations of WorkSafe as an agency, and those things are mainly dealt with through the select committee processes.

11:36

Thank you, Mr Chair. With due respect to the Minister for Workplace Relations and Safety, I understand that the Minister is not in charge of the day-to-day operations of WorkSafe, but the policy intent that the Minister would have would affect the operations of WorkSafe. I’m not asking whether the Minister understands the nuance of the operations of WorkSafe, but more like—this is something that has been signalled for a while. We have a regulatory impact statement dated to 2015. In the conversations that the Minister had with WorkSafe, has the Minister given indication, through the changes in this bill, that there are some ministerial expectations of changes within WorkSafe that now need to align with the new prioritisation and the main functions that is now detailed, as opposed to one long list, now you’ve got four main ones? Has that come up?

11:37

I’ll tidy this off, but I might start repeating myself ad nauseam. That is changed through the appropriations structure that has also taken place in Budget 2026 with changes to the appropriations and the fact that we have, now, buckets of funds as opposed to just one appropriation in general which splits out money being given to guidance as well as money given to compliance, and there are different funds structures there, and that will be how I monitor that going forward.

But also, yes, I have had ongoing conversations with the chief executive and senior leadership at WorkSafe in terms of, how do we gear up for legislative change? That is already under way with guidance being produced, ready to go out the door as soon as the legislation takes effect, if not earlier. But there have also been ongoing conversations since my 2024 roadshow about how we ensure that WorkSafe is currently meeting the Minister’s expectations external to what the legislation itself says, that they should be more proactive in providing guidance. WorkSafe has done, over the last year, quite a long process of stripping old guidance documents that are no longer relevant from the website, changing how people can actually go and talk to WorkSafe about their queries. We have far too many different ways of getting in touch with WorkSafe and we’re streamlining that. There’s a lot of operational stuff that sits outside of the legislation that happens in terms of the operations. But this law that we are debating today does not touch, I don’t believe, a lot on that. I believe that is mainly through the letters of expectations and the statements of performance expectations.

11:39

Minister, when the first reading of this bill passed, you made a public comment to state that the bill will require WorkSafe to move from an approach of accepting everyone to address every possible risk towards one which WorkSafe provides guidance on critical risks. How does that statement work with the general objectives of the primary piece of legislation to create healthier and safer workplaces? Is this change to require workplaces to only focus on critical risks, which I appreciate is stated in her public statements on the bill? How is that consistent with the purpose of the Health and Safety at Work Act? Because it appears, on the face of it, to be the opposite.

11:40

I’m happy to take that. It also, in part, talks, I think, to the difficulty—that came from Lawrence Xu-Nan’s contribution—where the regulator can actually have multiple functions. Camilla Belich’s question there was: is this requiring WorkSafe to only focus on critical risks? No, because the four main functions it talks about are things like developing, reviewing, and recommending codes of practice, developing safe work instruments—safe work instruments are not necessarily a function of the critical risks under here; they’re a separate thing in and of themselves—and monitoring and enforcing compliance with the relevant health and safety legislation. Now, we acknowledge that there is a prioritisation of critical risks, but to the members original point of wanting everybody to focus on all risks all the time, WorkSafe still has to manage the non-critical risks for the large organisations as well. So, no, it’s not the case that WorkSafe is only focusing on critical risks, because if they focused only on critical risks, it wouldn’t focus on the risks that the large businesses have to monitor as well.

Camilla Belich’s tabled amendments to Part 2 deleting provisions relating to critical risk are ruled out of order as being inconsistent with a previous decision of the committee.

The question is that the Hon Jan Tinetti’s tabled amendment to clause 34(1), new section 10(1), be agreed to.

Thanks for your patience, members. We’re just accommodating some later amendments here.

The question is that Francisco Hernandez’s tabled amendment to delete clause 33(2) be agreed to.

Francisco Hernandez’s tabled amendment replacing clause 33(b) is out of order as not being in the correct form of legislation.

The question is that Teanau Tuiono’s tabled amendments deleting provisions in clauses 33 and 34 be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendments to clause 34 be agreed to.

Members, there are four amendments in the name of Francisco Hernandez proposing to replace clause 34(3). To test the will of the committee, I will put the question on one of those amendments.

The question is that Francisco Hernandez’s tabled amendment to clause 34(3) repealing section 10(e), (ea), and (f) be agreed to.

The will of the committee having been tested, Francisco Hernandez’s remaining three tabled amendments to clause 34(3) are out of order as being inconsistent with a previous decision of the committee.

Members, before I come to Part 3, you will note the discussion around the decisions to group amendments. The quid pro quo of that will be, as you’ll note that the Speaker said yesterday, that time is better spent on debate than on voting, and that will be a consideration of the Chair when considering a closure motion.

11:48

Thank you, Mr Chair. When we look at Part 3, we see the impact of the changes that the Government is making to the health and safety system in New Zealand, and I have some specific questions around the general risk and the workplace management regulations and the impact that the Minister intends that these have on New Zealand workplaces. I’ll start first with clause 36. Clause 36 affects the regulation. That’s a general regulation to provide information, supervision, training, and instruction. At the moment, this is a general regulation that applies to all workplaces, and it talks about making sure that a worker who carries out any work of any kind and uses plant or equipment of any kind or deals with a substance of any kind is trained to ensure that they don’t cause risk in the workplace.

The effect of clause 36 is to state that that is only in relation to critical risk. So my question to the Minister is: what is her intention and what is her purpose of removing the duty to provide information, supervision, and training, and limiting it to critical risk? What is the likely impact on a persons conducting a business or undertaking of 20 and under due to this change that she’s put in place in regulation 9?

I do have a number of questions; I don’t know if the Minister is ready to answer that now, but I do have some questions in relation to the other clauses, which are similar. I’ll take it that—I’ll move those questions now unless the Minister is ready to respond.

11:50

Look, I think this should knock off quite a few of the contributions that will come from here. But in essence, these amendments in clauses 36 to 38 give effect to the small person conducting a business or undertaking (PCBU) critical risk limitation that is set out in clause 11, new section 25A(1)(a)(ii). It is clarifying that the duties apply to small PCBUs only, in relation to critical risks.

11:51

Thank you to the Minister for answering that question so quickly. However, I’m not sure if it was sufficiently addressed in terms of the information I was wanting to obtain from the answer. I do understand and I think the committee understands that on the clear reading of this, there is a carve-out—and I use that language because it’s the language that the Minister has used publicly in relation to small businesses—in relation to small businesses that only, now, have to deal with critical risk. That’s understood. The question that I have in relation to training is: what is the impact that there is likely to be on workplaces in New Zealand for those small workplaces?

Another question that I have, which is similar and which might help illuminate the type of response that I’m looking to get, is that, if we look at clause 37 and we look at the general duty of a person conducting a business or undertaking (PCBU) to provide personal protective equipment, and we see that—I’ve got that in front of me now—in regulation 15 of the general risk and workplace management regulations. Now, that clause states that personal protective equipment must be given to workers unless it’s already been provided by another PCBU, and it has fines in there. So this is a very specific question too. The fines that a PCBU would attract if they do not provide personal protective equipment would be $10,000 and $50,000 for an individual or another person, presumably a company. My question to the Minister, again, is: what is her expectation, in terms of change of behaviour, that implementing this specific regulation that, as the Minister stated herself, carves out small businesses from this regulation? What can New Zealand workers expect? It appears to me that the Minister is removing, literally, personal protective equipment or the requirement to provide such apart from in the most risky situations.

These are very practical questions. I don’t feel the question in relation to clause 36 has been answered yet. On clause 37—I understand the critical risk; we’ve been over that—I want to know what the practical implication for New Zealand workers of these changes is.

11:53

Thank you. Yes, look, I’m happy to give this one a go here. Look, in terms of the question originally about the training aspect and how this relates, the use of machinery is an example, or if you’re a company that uses hazardous substances, those would be classified as things that need management as critical risks. Training for those types of critical risks would still remain. It is simply the lower-level training for minor risks that would not be a requirement under the law. Things like how to use a standard kitchen tap would not be a requirement for someone to need to know how to use, but for serious critical risks like hazardous machinery and substances, those would require training.

Similarly, I think the main point here, when it relates to personal protective equipment (PPE), as it relates also to the training, are the stories that I heard when I was doing the roadshow, approximately two years ago now, where people believed that workers on work sites, as well as business managers, were not taking training or PPE seriously, because they have so much of it. If there is so much training and it’s not apparent what is actually important training as opposed to just training for the sake of it, or compliance for the sake of it, it starts to have less effect. It starts to mean less to people.

It’s the same for PPE. If you see PPE everywhere, all the time, on everything that you’re working on, there also is the potential impact that people no longer feel like they need to actually acknowledge the risks, and they are not able to discern as well between a low and a high risk. You see this in all sorts of environments and all sorts of different workplaces. However, the changes here mean that providing PPE and ensuring workers use it are required when they actually need it, whereas there are real harms from substances or equipment that the PPE is being provided for, for critical risks. It does mean that businesses don’t need to be worried about providing it for lower risks, but I think the ultimate impact will be that both businesses and workers, when they’re dealing with training and PPE, will take it far more seriously than they currently do, because it will actually identify and mean you’re dealing with a significant harm.

11:56

Thank you, Mr Chair. Thank you for that response, Minister, but I think it is important, following on from the Minister’s response and my colleague Camilla Belich is that what the Minister’s said is correct. It is human nature, it is within our human nature that if we constantly have something repetitive over and over again, whether it’s small risk or even critical risk, where there’s been no injury as a result of that, our brain is trained to deprioritise the risk. To give an example to the committee, we often, when we’re driving, don’t think about the potential impact of driving until we have an accident or something happens, in which case for a little while we’re going to be really cautious about how we drive, until our brain is trained to desensitise ourselves so we no longer consider that to be important.

Because what the Minister is saying is actually not simply about prioritising critical risk or non-critical risk but describing a general human nature. I don’t think that, within this particular part, the changes are going to be making, per what Camilla Belich mentioned before; we are going to be seeing that shift in behaviour just because, now, the small persons conducting a business or undertaking (PCBUs) are only going to be focusing on critical risk and not non-critical risk. We still are going to be seeing the same sort of human behaviour manifesting.

I think that this is important because, to be honest, for the Minister, that is one of the key considerations and barriers for health and safety managers or anyone who works in health and safety is around that human nature. I think pandering to this idea that people can be, “Oh, well, we can’t, then, prioritise.” or etc., doesn’t actually address the baseline issues that we’re seeing manifesting in this part.

I want to check a couple of other things when it comes to personal protective equipment (PPE), and I want to test a couple of things with the Minister. The first thing is I want to test the scenario that, for example, in the event of the pandemic, PPE was huge. We were expected to wear masks, etc., as a way of reducing transmission. Under this new requirement, would PCBUs no longer need to provide PPE in the context of this as a critical risk? In the event of a pandemic, for example, or let’s say the peak of flu season, would the Minister still consider the provision of PPE to still be considered a critical risk, and if not, why not?

There are other things, I guess, in terms of clause 37 and clause 38 in terms of providing PPE and also ensuring that PPE is worn and used. Again, what we’re not hearing from the Minister is that actual practicality of someone who works in health and safety in terms of what the workers’ behaviours are. I guess from the Minister’s perspective, what, then, is the tangible experience the Minister has had when she’s looking at how to ensure workers’—whether it’s critical risk or non-critical risk—PPE is being worn?

I want to draw the Minister’s attention to an earlier discussion that we had—which I also think is important—pertaining to this section, which is that when we’re looking at the hierarchy of intervention, PPE is a way of engineering, I guess, that intervention. If we’re cutting that out, what are the other considerations for small PCBUs when it comes to non-critical risk regarding elimination, mitigation, signage, and also, at the bottom, to do nothing. Those are my three questions to the Minister so far.

12:00

I thank the member for his contribution. I think he speaks to a real problem here, which is how you effect culture change. This is, essentially, what the aim of the bill is designed to do, which is to allow companies and workers to take critical risks far more seriously and to identify risks and focus on real risks, rather than on having compliance for the sake of it, and having compliance and policies that are not necessarily followed. That was something that we heard a lot of when we went to talk to people on the ground, outside of Wellington, in 2024. There is a sense of desensitisation to risks because people are being asked to manage all risks all the time, and, therefore, with companies and businesses and workers who have limited time and resource to figure out what it is that they need to try and manage, it is, in some ways, overwhelming.

How do we ensure that when they are doing training, when they’re using personal protective equipment (PPE), and when they are doing their day-to-day operations, they are identifying and managing the things that will truly cause harm, and are not focusing on the wrong things—and that’s what this entire bill has been about. Yes, there is a sense of desensitisation to the risks. I think the impact of this law will mean that people focus on the right things and that we have more interest in stamping out the critical risks and managing them, but that is the focus behind this law.

When the member was discussing the use of PPE and whether or not another COVID or a pandemic could come through and asking what would be the requirements there, that was actually addressed under the public health law during COVID, not through the health and safety law. That was managed under a different form of legislation.

12:02

Thank you, Madam Chair. It’s a little bit of a follow-up to that answer in that the Minister is talking about desensitisation to risks. Isn’t there a fear, then, that we’re not identifying all of the risks in those smaller persons conducting a business or undertaking (PCBUs) under this particular bill—trying to solve a problem or a perceived problem by saying that that they’re only focusing on critical risks.

Like my colleague from the Greens, I want to use a little bit of a scenario around clause 36, which talks about information, supervision, training, and instruction. If a business or PCBU was identifying only critical risks and they were a business that required their workers to lift some boxes, but not all of the time, and put them on to shelves—which maybe happens in quite a number of businesses—they didn’t see that there were any critical risks that came from that and so they didn’t identify and they didn’t provide any training or instruction around the right ways to do that, and, over time, they started to see that their workers were getting back injuries or musculoskeletal injuries that were forcing them to take time off work. But because they didn’t identify that, because it wasn’t a critical risk, then isn’t that an issue that this bill is creating? In trying to save that desensitising, this is actually creating another issue, and isn’t that maybe an unintended consequence of what this bill is trying to solve?

I ask this quite sincerely. By taking away that focus on all risks from those PCBUs, we’re actually going to create more of an issue, and that is what people did bring up a lot in the select committee and since then. So it’s a genuine question that I’m asking of the Minister.

12:05

Yeah, I’m happy to respond—thank you, Madam Chair. Look, I disagree. I think, in part, what we have here is we’re looking at identifying the risks, and under the current law, the small persons conducting a business or undertaking (PCBUs) have to identify all their risks now and they will continue to have to identify the risks, but they only have to manage their critical risks, and in identifying their risks, the PCBU needs to look at, among other things, their activities and the incidents and injuries that they do have. But, in part, what I think the member is not referring to is the fact that we are also asking WorkSafe to develop and produce guidance on risks, as well as having more approved codes of practice, which would be set by industries, and which would say, “If you would like to try and comply with the law, here is what you need to do.”

Those are industry standards that, over time, will be developed to actually help produce that on-the-ground guidance on what the critical risks are in certain activities across industries. I think that this, in part, points to the fact that we’ve actually well-designed the system so that you are focusing not on everything under the sun, but prioritising the critical areas that will create harm.

You’re also allowing industry to be leaders on what are the critical risks are within their own workspaces, and I think that is actually a much better way of getting culture change across this country, rather than having WorkSafe as the one saying, “We’re setting all the standards for everything that you need to do, and we’re here as the bad guys.” We are actually allowing industry, with unions and workers, to set those standards for themselves, with WorkSafe’s help and guidance to do the technical elements of those approved codes of practice, but that will, in essence, be far stronger for cultural change across New Zealand.

Lawrence Xu-Nan also then had a query about personal protective equipment (PPE): how it was then fitting into the hierarchy of controls. PPE is one of the hierarchy of control measures that a PCBU uses to minimise risks that cannot be eliminated. It is to be applied only after all other higher controls have been found to be ineffective or not reasonably practicable. So higher controls could be isolating the hazard or substituting the hazard with something less risky.

12:07

Thank you, Madam Chair. I think we’re getting really to the heart of this bill now. We are looking at the removal from regulation of fines for small businesses who don’t comply with health and safety laws, and I think that if you want to look for some actual change, then those are certainly two areas, in terms of the levels of the fine, that are being changed by this bill.

I still feel that in terms of the motivation and the actual impact on work science, we haven’t had a clear answer on what change will be. I wanted to ask the Minister: can she provide the committee with some examples of personal protective equipment that would be worn to protect from risk, but would not be useful for critical risk? The reason I ask this question is because it appears to me that most protective equipment would protect against both critical risk and also risk that wouldn’t meet the standard of critical risk, and so what I would like to hear from the Minister is: is it by specifically removing the requirements for small businesses from these clauses—and I’ve touched on my last contribution on clauses 36 and 37, but clause 38 is also important. The reason that clause 38 is important is that this is the duty that extends to making sure that other people that you might be responsible for in a PCBU—

This has been covered in the select committee. You covered this question in the select committee—same question. You’re just repeating questions from the select committee.

Sorry, were you in the select committee, Minister Watts? Well, this is very interesting. This is very interesting.

Wasting time—wasting time.

Take a call—this is very interesting.

Actually, this is wasting time.

This is very interesting to hear Minister Watts heckle across the Chamber against the requirement for people in small businesses to have personal protective equipment. I’m certain there are a lot of people on the North Shore who may be hurt and maimed by the fact that these are being removed.

Whether it’s been covered in select committee or not, we don’t have the Minister in the chair in select committee and this is our chance as the Opposition to actually put—

Wasting time.

—key questions. If this is a waste of time, this was started by the Minister.

OK, that’s enough. We don’t have the debate across the Chamber. The member needs to address the member in the chair.

Thank you, Madam Chair. I would actually like an answer to that question that I don’t believe has been covered. I don’t think that we have heard from the Minister about the exact reason that, suddenly, these small businesses who might be providing personal protective equipment will not be providing personal protective equipment and the logic for that, in that most personal protective equipment will provide protection from risk from harm and also critical risk—a specific example. We’ve heard some scenarios raised by members, as well, but this is important because this is how the bill will actually be interpreted. We haven’t covered clause 38 before, so specifically that duty in relation to personal protective equipment used by other persons. I’d appreciate an answer from the Minister on that.

12:11

Look, happy to take Camilla Belich’s contributions. The original query was about fines and the belief that somehow this is all about just removing fines. I just wanted to clarify that the key enforcement mechanisms and penalties that WorkSafe uses remain unchanged in this law. Second to that, I was asked questions about being very specific about particular types of personal protective equipment (PPE) that could be used in certain companies for critical risks and not for other risks and for non-critical activities and other critical activities.

Look, I’m just not going to get into the ins and outs; there are so many different businesses and companies and individual arrangements, but I’ll give a very clear example of one area where you’d have some PPE for a critical risk where you wouldn’t then use it around the rest of the work site. You know, you might be a welder; you think of a welder and you’ve got an actual, very physical mask that you’re needing to wear for a very high-hazard environment. You don’t need to use that for every single thing a welder is doing every single day. You need to do it for the act of welding, but you don’t need to wear that around the entire work site at all times. That’s one clear example of something that fits into critical risk that you wouldn’t need to wear in the lunch room, for example, or you wouldn’t need to wear it doing some other activity, as a welder. I’m sure all welders out there listening to that would say, “Well, of course you don’t, that’s just silly.”

That’s just a clear example of something that’s PPE for critical risk, but not for non-critical risk, but I’m not going to go into the ins and outs because there’s just so many different industry types and we’ll just waste time here.

12:12

I just want to check a couple of the responses from the Minister. Thank you for responding to my questions, but just to the last example that the Minister gave: surely, the thing is, the rules are very clear, currently, that some of those are already in existing legislation and we don’t need to have an additional carve-out, surely. The two things the Minister responded to: the comment around the fact that she’s heard people who said that they’re overwhelmed by the volume of the different kinds of risks that they have to manage, which then causes the desensitisation. I do want to check: is that anecdotal or is that empirical? Is there empirical evidence that the Minister has that suggests volume affects desensitisation, because what I mentioned before, in terms of emotional habituation and normalisation of deviance, those have genuine psychological bases, and they are well-researched in terms of how that does affect desensitisation, whether it’s critical risk or not. I want to check with the evidential basis for the idea that volume will lead to that; this is clause 38 for that question.

For clause 37, just in terms of the hierarchy of controls—thank you, Minister, for responding to that question as well—I guess that then does raise a new question. The use of personal protective equipment (PPE) sits around the mid to lower range of hierarchy of controls, but then by splitting that out and saying that the hierarchy of controls with PPE will only be for critical risk for small persons conducting a business or undertaking (PCBUs), does that mean that small PCBUs will still need to fulfil their requirement for non-critical risk for the higher tiered hierarchy of control in terms of health and safety management, such as elimination, mitigations, or limitation?

12:15

Thank you, Madam Chair. I’m interested—and this is my first call on this bill, but I have been listening to the Minister’s responses and am interested in this carve-out with the small businesses, as we’ve been calling them, but of course it’s for all of the persons conducting a business or undertaking. I note, in an answer to another question in another part, the Minister referred to the fact that whilst most businesses are small businesses in number, the fact that the employed members are 27 percent of the workforce, are employed by these greater number but smaller workforce entities—she then also said that the groups that are exempted in the definitions of “small” include the nine-month exemptions.

I’m wondering if the Minister can comment on how many there are that are not just the 27 percent of the normal definition of “small business”, given the Minister has said that the 20 employees comes from this normal, convenient definition of small businesses being the 27 percent of the workforce. How many, then, is added to that, being this additional exemption of the nine months? That is relevant to Part 3, of course, because this is where we see the carve-out coming. So the question is: does the Minister know how many people this carve-out will apply to? It’s clearly more than 27 percent of the workforce. How much more and how can she be comfortable with that?

12:17

Thank you, Madam Chair. Actually, just a very quick clarification from you: the Minister has been very good in terms of seeking advice and also answering our questions diligently. If we do get to a situation where we finish this part, just seeking your guidance that we’re able to allow the Minister to continue some of those responses, unless she has them now, when we move to the next section.

I can answer. To Lawrence Xu-Nan’s question about the small persons conducting a business or undertaking (PCBUs) and do they need to apply other controls to non-critical risks: small PCBUs do not have to manage non-critical risks, so they do not need to supply the personal protective equipment (PPE) for the non-critical risks.

He also queried about the empirical evidence and, look, there was a lot of anecdotal evidence, but I would also note that in Labour’s objection, I think, to the 2015 Act, when I was reading the select committee report and the minority view from Labour, it was also a concern that, maybe, there was too much influence by anecdotal evidence. I would say, in something like this, when you’re actually going out and talking to people on the ground—the Kiwis out there every day doing the hard work—that is important information. We don’t just need to have statistics and surveys; we can actually go and talk to people who don’t usually get captured by Government consultation. Many of the people that I was talking to out there around New Zealand said it’s the first time they’ve ever met a Government Minister, let alone interacted with a Government department. I think it is important for us to take their concerns quite strongly. We don’t need to just listen to people who are so-called experts; we can actually listen to the people doing the hard yakka. Our officials are aware of the international evidence about the disproportionate effect of health and safety compliance requirements on small PCBUs, as opposed to large businesses.

I would also say that, no, there have been some surveys that I’ve seen; there was a Site Safe survey as well that talked about the vast majority of people who replied to that survey believing that they needed to simplify the law for small businesses, as well as focusing on critical risks. So this was very popular as a policy platform, but also shows that this is not the Government acting alone; there were actually quite a lot of people out there in the real economy who also believe that there’s too much regulation on small business. I think that the MYOB business insight survey talked about the fact that one of the top three things they wanted the Government to do was to simplify health and safety for small businesses.

Rachel Brooking had a query about the small business PCBUs, and, once again, the seasonal fluctuation. I would really suggest that that’s mainly being ticked off in the previous parts, but it is true: the majority of New Zealand businesses have fewer than 10 employees. That’s 94 percent that have fewer than 10 employees, and my officials advise that they expect few businesses to actually fluctuate around that 20-worker threshold.

12:20

I move, That debate on this question now close.

Camilla Belich’s tabled amendments to Part 3 deleting provisions relating to critical risk and small PCBUs are ruled out of order as being inconsistent with a previous decision of the committee.

The Hon Jan Tinetti’s tabled amendments to clauses 36 to 38 are ruled out of order as being inconsistent with a previous decision of the committee.

The question is that Dr Lawrence Xu-Nan’s tabled amendments deleting clauses 36 to 38 be agreed to.

The question is that the Minister’s tabled amendment to Schedule 1 be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to Schedule 1 to replace “may be” in clause 29(2) be agreed to.

Camilla Belich’s tabled amendment to delete Schedule 2 is ruled out of order as being a direct negation of the question.

Members, there are six amendments to Schedule 2 making insertions into new Schedule 1A in the names of Green Party members. To test the will of the committee, I will put the question on one of those amendments.

The question is that Mike Davidson’s tabled amendment to Schedule 2 inserting an item relating to firefighting into new Schedule 1A be agreed to.

Point of order. I hope I’m not pre-empting it, but I heard you say that you were going to take amendments together that were from Green Party members. Now, I just want some clarification here because I had heard that an earlier Chair had indicated that amendments from a particular member might be grouped together if they were on the same subject matter, but it would be very unusual to do it across party lines, because every member has an individual right to have an amendment tabled and considered. I’m just wondering on what basis, on what Speaker’s ruling or Standing Order, amendments are being grouped on party lines rather than coming from a particular member.

Well, we have, as was explained earlier, some advice from Mr Speaker on the grouping of the votes, the questions that were being put. In order to expedite the bills and focus on the debate rather than the voting, this is how we are grouping them.

Point of order. I see you might have some advice coming, but my point is I understand that—and we certainly fully endorse focusing on the debate in committee stages. We heard that from the Speaker in the House. The grouping of identical or highly similar amendments is well recognised in Speakers’ rulings and Standing Orders, but the grouping on the premise that they come from the same party is certainly not. That does not seem consistent with the statement of the Speaker from the Chair, but I see you’ve got advice.

I understand your question. The advice I have is that you’re referring to the first vote that we had to test the will of the committee, which was based on the Green Party. That was a selection of questions or amendments, not a grouping. So they weren’t grouped by party, but they did come from the same party. There is a difference between selection and grouping. I hope that’s helpful.

Speaking to that point of order—thank you so much, Madam Chair. I appreciate what the Chair has just said. I want to double-check in terms of our interpretation of Standing Order 315(3)(a). In this case, you are testing the will, and my understanding is if you are selecting from a sample—it would be good for us to know under what Standing Order that pertains to. My understanding, under Standing Order 315(3), is that when we’re looking, even in terms of the sampling of that, it must fulfil all three requirements of Standing Orders 315(3)(a) to (c). But if we’re starting to select it based on either one of those, then it would be good for the House to understand that that is now going to be a new interpretation of that particular Standing Order. In Standing Order 315(3)(a), it specifies the amendments stand in the name of the same member, as opposed to different members or from a political party. That clarification between grouping and sampling is helpful, and which Standing Order is that sampling now coming from, because I’m unaware of that particular Standing Order.

12:31

Well, Mr Speaker did make it clear when he addressed the House yesterday that he wants to ensure that the House runs smoothly and that debate on particular bills is done thoroughly and the House is not distracted by hours and hours of voting. That is not helpful in the running of the House, and it’s certainly not good use of House time. If nothing else, the cost of that to the taxpayers does not add any value to the passage of legislation. I’m just taking some more advice.

The member has asked about the relevance of the difference—so 315(3) and 315(4). Standing Order 315(3) applies to the grouping of the amendments, and 315(4) is the presiding officer testing the will of the committee and allowing for those amendments to be voted on together. We use the assistance of the Clerks to do that in the House Office in preparation for the votes.

Members, the will of the committee having been tested, the remaining five tabled amendments to Schedule 2 in the names of Dr Lawrence Xu-Nan, Teanau Tuiono, Hūhana Lyndon, and Francisco Hernandez are out of order as being inconsistent with a previous decision of the committee.

12:34

Thank you, Madam Chair. As discussed in Part 1, I have tabled an amendment to change the commencement date so that all provisions of the bill come into force on 1 April 2027.

12:35

Thank you, Madam Chair. Since you have raised it in terms of what the Speaker mentioned yesterday—and I do endorse what the Speaker mentioned in terms of the amendments, but I think one part of what the Speaker mentioned yesterday is also a reminder to Ministers not to put in last-minute amendments. But we’re in this peculiar situation where this is probably the first time where we have seen a tabled amendment by a Minister that is not even released ahead of time. I do want to check with the Minister on where this—

We saw it a lot under the last Government.

I’ve seen a lot of yapping over on the other side, and I recommend that that member actually get up and take a call. I see so little that that Government is doing, or that party is doing, at all when it comes to the discussion of this—

I recommend the member comes back to the bill.

I do want to know from the Minister about why this particular amendment with the date came about, because I feel like what we’ve seen in terms of the public announcement from the Minister is in some ways inadequate, but also noting that this tabled amendment has no explanatory note attached to it, so there’s no way for the committee to know where this amendment even came about. I think it would be really useful as a starting point for the Minister to explain how this amendment came about.

12:36

Thank you, Madam Chair. I too would like to acknowledge the amendment that the Minister for Workplace Relations and Safety has put forward and how late that came into being, but I also would like to acknowledge the tabled amendment of my colleague Camilla Belich, who put almost an identical amendment in prior to the Minister’s amendment, also talking about making the commencement date 1 April 2027. I will point out to my colleague that there’s a really good explanatory note there, so perhaps that might help the Minister as well in her answer to that question.

What I will say is the very first thing that I said in this debate, which is that this gives us an opportunity to talk about why this extension of the commencement date has come into play. We know that there have been some discussions that have been going on between the coalition partners in this particular area. We have a number of tabled amendments about alternative dates that go out even further, and I dare say that the Minister probably won’t take those into account.

But my first statement in this debate was about the fact that—why are we even having this debate at the moment? This, effectively, kills this bill. This amendment kills this bill. This is exactly what it does. It will kill the bill, because we know that there are parties in the coalition team on that side of the Chamber that have stated that they would get rid of this bill if they were elected back in. We know that this side of the Chamber will get rid of this bill if we get elected in. Therefore, the bill is dead in the water. That is why this debate has been an absolute waste of time. [Interruption]

I really invite members on the other side to take a call. They haven’t taken calls other than trying to close the debate the whole time, but I invite those members to take this call. I love the fact that we’ve got some of them who think that they know a lot about what’s going on who haven’t been anywhere near this select committee.

When we come to this amendment, it is likely that we will actually support this, but I too would like to ask the Minister why this amendment came into being, because there isn’t an explanatory note that goes there. I think that’s really important, because it was very late in the piece that this got tabled.

We’ve seen some of the commentary that’s been through the media, but it would be nice to know whether that was accurate or not, and nice to know what the discussions have been between the coalition partners in this particular case, because we can only speculate on what has come through the media. So those are my questions for the Minister.

12:40

Look, I’m very happy to take a contribution. Look, the member originally started talking about how she thought the bill was a waste of time. I would counter that by saying a number of the contributions by the Opposition have been a waste of time. The bill itself is good work, and we very much look forward to it being passed today.

However, when it comes to the need for a commencement date shift, look, the change will provide more time for businesses, workers, and sector groups to understand the law and to develop advice and guidance. Now, if the member wishes to be privy to coalition discussions, she may wish to attempt to get into a coalition. But I can tell you we’ve got three parties in the coalition that are working very well together. All three parties will pass this bill together, and I look forward to having the coalition come back in the 2026 election.

12:41

I move, That debate on this question now close.

The Hon Julie Anne Genter’s nine tabled amendments to clause 1 are ruled out of order as not being an objective description of the bill.

Teanau Tuiono’s tabled amendment to clause 1 is out of order as not being an objective description of the bill.

Francisco Hernandez’s tabled amendment to clause 1 is out of order as not being an objective description of the bill.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 1 be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to the Minister’s tabled amendment to clause 2, replacing “1 April 2027” with “1 April 2028” be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to the Minister’s tabled amendment to clause 2, replacing “1 April 2027” with “a date set by Order in Council” be agreed to.

The question is that the Minister’s tabled amendment to clause 2 be agreed to.

Camilla Belich’s tabled amendments to clause 2 are ruled out of order as being the same in substance as a previous amendment.

The Hon Jan Tinetti’s five tabled amendments to clause 2 are ruled out of order as being inconsistent with a previous decision of the committee.