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Clarky's Comment - May 2014, Houston we have a problem

Houston – We have a problem!

I'm not one to normally get too alarmist but I think a particular aspect of the proposed new Health and Safety Act does warrant that sort of reaction. The Health and Safety Reform Bill, currently before the Transport and Industrial Relations Committee of parliament replaces the concept of the Employer having primary responsibility for work safety with the Person Conducting a Business or Undertaking (PCBU) having that responsibility. That looks eminently sensible as often parties other than the direct employer of a worker have material influence over the worksite and worker safety.

The problem is that the way the Bill is drafted is that where multiple PCBUs are involved at any worksite they all have responsibility for any aspect of safety over which they could reasonably have some influence. There is no guidance for the courts as to where primary responsibility lies for any particular safety matter.

The practical outcome if this Bill is passed without addressing this major flaw is that there will be uncertainty as to who is primarily responsible for what, a massive duplication of effort and mountains of paperwork to ensure legislative compliance; none of which will advance safety culture or outcomes.

A simple fix would be to introduce the concept of Primary Responsibility and apply the well-understood principle of matching responsibility with authority. Thus the PCBU having the most skill, capability and authority to influence any particular safety aspect should also have primary responsibility for that aspect.

In the forestry sector the practical illustration of the principle would be the forest owner (or its agent) being responsible for the safety of forest access, road and skid design and harvest planning, while the contractor should be responsible for the safety of its equipment, its worker training, behaviour on site and reporting of any accidents.

The forest industry, and I imagine many other industries, have had productivity and efficiency improvements through separating aspects of work into components best managed by specialists. Such specialisation has encouraged innovation and is the cornerstone of our highly motivated and innovative SME sector in New Zealand.

A logging contractor is not a specialist in harvest planning but can certainly apply experience and knowledge to the process i.e. influence the plan. Does that mean the logging contractor should be lumbered with a statutory duty as a PCBU to ensure the plan is robust from a safety perspective? How far does that duty extend? Does it mean the logging contractor has to become an expert roading engineer? A forest owner may have no knowledge of harvesting equipment and will not be on site every day, but can check that equipment carries the correct certification. But certification does not guarantee equipment is safe. Is the forest owner to be responsible for the daily checks and maintenance of each piece of logging equipment, or that anyone operating any machinery at any time is qualified to do so? Will the forest owner need to have or contract in persons to check that each worker is in a fit state for work each morning?

"Of course not", I can hear the legislators saying, "that is not the intent." Well if it is not the intent why not make that explicit by introducing the concept of Primary Responsibility and linking that to capability, skill and authority?

An unintended consequence of this Bill being passed without addressing clarity around responsibilities would be larger firms feeling they must have in-house skills, or contract in specialists for detailed oversight of the tasks contracted out to SMEs. If the Principals are going to carry that overhead then the next step is simply to carry out the work in-house rather than contract it out. Such a move would be a major step backwards for innovation and worker productivity in New Zealand.

A new Section 18 of the Approved Code of Practice for Safety and Health in Forest Operations (ACOP) is proposed to help clarify the respective roles of Principal and Employee/Contractor. This is also an opportunity to make it clear that primary responsibility sits with the party having greatest capability and authority to influence a safety matter. Most of the draft released for consultation does help clarify roles. But the new Section 18 would be strengthened by specifically referring to the matching of responsibility with capability and authority. In 2 aspects (maintaining records of and reporting of accidents) the draft actually suggests that both Principal and Employer/Contractor are responsible. That is crazy and will just lead to confusion and duplication of effort.