Alan Pollard, CEO, Civil Contractors New Zealand.
CCNZ has been strongly supportive of work the Government is doing to fix some of the barriers and handbrakes preventing the efficient delivery of critical infrastructure.
This work includes reforming resource management legislation and achieving cross-party support for a 30-year infrastructure investment programme, while improving consenting and productivity are among the many positive actions.
However, where the Government moves to introduce laws, regulations, or policies that make no sense in practice, it is our responsibility to our members to hold the Government accountable. The recent passing of the Health and Safety at Work Amendment Bill is a case in point.
During consultation, the Minister and her officials met with a group of CCNZ members (and other groups and organisations) to hear first-hand what worked and what didn’t. We appreciated that engagement. We believed there was a genuine willingness to listen. Unfortunately, the legislation that followed did not reflect the concerns we raised.
The most controversial part, in our view, has been a carve-out for businesses with fewer than 20 staff. That is not a small technical change. It is a fundamental shift away from the principle that health and safety obligations should be driven by risk.
In essence, these businesses would have less onerous health and safety obligations regardless of worksite risk. Around 90 percent of businesses that submitted on the proposed legislation opposed this carve-out, but the legislation was rushed through under urgency to avoid listening to opposition. There are many things wrong with this.
Passing a significant law under urgency, despite clear opposition from submitters, is a direct challenge to our fundamental democratic principles. This Government was highly critical of the previous Government’s willingness to pass law under urgency. Yet here it has used the same approach to limit debate and avoid changes needed to make the law workable in practice. This is deeply disappointing.
For civil contractors, the issue is not theoretical. Our members often operate on worksites involving multiple businesses, subcontractors and specialist trades. Under this new law, different businesses on the same site, doing work that may carry similar or even identical risks, can have different health and safety responsibilities depending on how many people they employ.
A contractor with 19 staff may have fewer obligations than a contractor with 21 staff, even if both are working in the same trench, beside the same live services, under the same traffic management plan, or around the same heavy machinery.
The risk is that a law intended to reduce complexity may have the opposite effect. How are head contractors supposed to reconcile all risk profiles on site, and the health and safety obligations associated with each of the businesses?
What if a business with under 20 staff contracts one with more than 20 staff? The reality is that they will be forced to turn to increasing amounts of paperwork and consultancy to manage the risks of all those on their site.
The stupidity of this situation is that a small contractor business which is, say, working at height on a high-risk site will have fewer health and safety obligations than an accounting firm with more than 20 staff where the biggest risk is from a paper cut.
The Minister, Brooke van Velden, seems to have relied on the view that all risks managed by contractors on site are “critical”, and will therefore be captured by the Bill. However, the definition of “critical risk” in the proposed law is limited to definitions provided in the new Schedule 1A of the Health and Safety at Work Amendment Act, and Schedule 2 of the Accident Compensation Act.
Schedule 2 lists occupational diseases, rather than the hazards that cause them. Neither adequately acknowledges risks that may initially be non-critical but can become critical if not managed effectively. The new legislation is not concerned with fatigue or mental health, but a responsible contractor should be.
There are also procurement implications. Businesses price the cost of managing risk into their tenders. Potentially, contractors not bound by CCNZ membership expectations around ethics and not committed to strong site health and safety practice, may be able to undercut contractors that take obligations seriously.
So, we now have perverse incentives. The new law risks rewarding those who do less, while penalising those who invest in doing the right thing. It’s a bad situation for workers, responsible contractors and clients. And ultimately, it is bad for the public.
Labour and the Greens have indicated they will repeal the Act if they are voted into Government in November. New Zealand First has said it opposed the Bill but supported it because of Coalition obligations and has since sought a longer implementation period to allow further changes, and time for the Bill to be overturned by an incoming Government. So, it’s now likely the Act will be repealed either way.
If that’s the result, the Act should never have passed in its current form. Ramming it through roughshod over reasonable opposition is a waste of everyone’s time who participated in the consultation, and a waste of parliamentary time and money. It’s an example of poor lawmaking, when a little time and understanding may have salvaged the intended outcome – to reduce complexity, improve productivity and enable more efficient management of health and safety risk in the workplace.
Contractors are expected to operate to high standards of ethics, professionalism and compliance. Our members are monitored, audited and held accountable for how they manage their obligations.
We should expect those writing our laws or developing our compliance programmes to be held to the same standards. In the case of the new Health and Safety at Work Amendment Act, the process has failed. Opposition from the business community has been ignored, and the health and safety of workers and the public on worksites has potentially been compromised.
CCNZ will continue to support reform that helps New Zealand build the infrastructure it needs. But we will also continue to call out poor policy when we see it, as is the case now.
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