Dialogue: Employers need protection too

By SIMON CARLAW*

Proposed amendments to the Health and Safety in Employment Act revealed last week would have a sharp effect on business.

Safety is something we all want, so it should be possible to have a workplace safety regime that is win-win for all parties.

But the new proposals seem to suggest that employers have to be penalised for workers to be protected. The amendments would mean an environment that is at best threatening and at worst hazardous for employers, creating new disincentives to employ.

The proposals include increasing fines fivefold to a maximum of $500,000 and making it unlawful to insure against such fines. Unions are to be given the right to prosecute employers for breaches of the act. Also proposed is a new definition of workplace hazard, to include employee stress and fatigue.

The proposed higher fines have been benchmarked against those in Australia and other developed countries with large companies, but our industry profile is different. We are a nation of small businesses, most employing fewer than five people. The proposed fines would put most New Zealand businesses out of business.

Making it unlawful to insure against a fine is a surprising move. It may encourage employers to pay attention to safety, but will also violate their rights. Workplace accidents often involve unsafe actions by employees, and removing the right to insure against the consequences of such actions is unacceptable.

These proposals also call good faith into question. Good faith is the stated cornerstone of employment legislation passed by this Government. Yet preventing employers from protecting themselves against incidents that are often outside their control does not seem like good faith.

Allowing unions to prosecute employers over safety matters (now only OSH may bring such prosecutions) is unfortunate. It would tempt unions to use prosecution as an industrial weapon.

It would certainly run counter to the intention of the Employment Relations Act, which is to build productive employment relationships through promoting mutual trust and confidence.

These are examples of the punitive nature of the proposed amendments.

But some would cause difficulty in another way. The suggestion that stress and fatigue should be included in the definition of workplace hazard would create significant uncertainty for everyone.

That is because stress and fatigue cannot easily be pinned down. The chairman of the NZ committee of the Australasian Faculty of Occupational Medicine, Dr Bruce Gollop, points out that there is no such disease as stress.

Stress is a collection of symptoms that vary incredibly and enormously from individual to individual, he says. Deeming stress to be a workplace hazard would be a rich seam to mine in the courts.

It would not be easy for the courts to decide, many months after the event, whether the hazard was caused by the work or the lifestyle choices by employees outside work.

Then there are cost issues. Employers will be faced with more recurrent (rather than one-off) costs for training, monitoring compliance and the like. The proposed changes may make the cost of compliance untenable for smaller businesses.

The good thing about these proposals is that they are just proposals.

The bill will now be subject to select committee scrutiny, and the public will have the right to have its say.

Just as many of the sillier measures were whittled out of the Employment Relations Bill before it became law, so, hopefully, will this bill also lose some of its extreme edges.

Business would like to see safety legislation that is based on education rather than threats.

* Simon Carlaw is chief executive of Business NZ.