Friday, March 29, 2024

Where the rules stand

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The Health and Safety Employment Act is being overhauled but until it is amended it remains the governing legislation for health and safety in the workplace.
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Farmers are also the subject of a level of non-legislative recommendations developed by WorkSafe New Zealand as best practice guidance. The recommendations cover a range of farm operations from preventing noise-induced hearing loss to safe sheep and cattle handling.

The most important parts of the legislation require farm employers – like all employers – to take all practicable steps to mitigate the risks their employees face when working.

This should be done systematically through what WorkSafe calls “the hierarchy of control”. It sets out specific steps to identify, eliminate or reduce the risk of hazards.

When a hazard is identified, a farmer must consider whether it can be eliminated (removing trip hazards around the dairy, for example).

If it can’t be eliminated, the hazard should be isolated – for example, by locking away chemicals and fencing off water hazards, especially if children live on or visit the farm.

If none of that is possible, a farmer must minimise the hazard through the use of personal protective equipment, putting safeguards on a machine and ensuring safe work practices and training.

DairyNZ has listed common injuries in the dairy industry. They include injuries from animals, all-terrain vehicles and other vehicles; strains from lifting calves and feed; noise; occupational overuse syndrome from milking; and slips, trips and falls around the dairy. Fatigue is one of the biggest hazards on farms in spring and summer when people are working long hours.

The legal requirement for employers to take “all practicable steps” is at the crux of the prosecution WorkSafe has brought against the Ministry for Social Development in the aftermath of the shooting of Work and Income NZ staff in Ashburton last year.

Federated Farmers and DairyNZ would prefer the law requires employers to take all “reasonable practicable steps”.

This change might be introduced when the legislation is amended.

The Health and Safety and Reform Bill is now before Parliament’s Transport and Industrial Relations Committee, which is expected to report back to Parliament next month.

The bill replaces the Health and Safety in Employment Act 1992 and the Machinery Act 1950. It also amends other acts to reform the workplace health and safety system, following the work of the Independent Taskforce on Workplace Health and Safety and the Royal Commission on the Pike River coal mine tragedy.

In their submissions to the select committee, DairyNZ and Federated Farmers welcomed the proposed shift from all practicable steps to all reasonable steps.

They want also onfarm accommodation excluded from the definition of a workplace.

Another contentious issue is the definition of a “person conducting a business or undertaking” (PCBU). DairyNZ and Federated Farmers want third parties, such as contractors working on transmission lines crossing farms, excluded from a farmer’s responsibility. They also say the responsibility for PCBUs should not extend to people on a property without permission.

One clause in the bill says “more than one person may have the same duty”. But farming leaders have told the committee a dairy farm might have an independent director, a shareholder, a sharemilker and the farm owner. As PCBUs, each of these people should have clearly defined health and safety responsibilities and be held accountable for different aspects of the farm’s health and safety system.

Federated Farmers has also said that the maximum fines proposed in the Bill are too high.

Failure to comply with a health and safety duty makes an individual liable for a $50,000 fine; officers and self-employed persons would be liable for a $100,000 fine; any other person, including body corporates, would be hit by fines up to $500,000.

The most serious of a range of offences would invite penalties that include five years in prison and fines up to $3 million.

While Federated Farmers support fiscal penalties, the level of the fines proposed could ultimately lead to bankruptcy. “This would not only mean the farmers involved would lose their jobs and their sole form of income, but they would also lose their homes,” Federated Farmers said in their submission.

When the bill is enacted, the current regulations will be scrapped and the new ones introduced. The Government plans for all supporting regulations to be in place on the same day that the proposed new act comes into force.

It has indicated that a balance needs to be struck between providing the information necessary for people to comply, especially in high-risk areas such as agriculture, and ensuring that regulation is not overly prescriptive.

WorkSafe has already begun consultations with industry leaders and workers’ groups on what the new regulations should require.

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