Ash Schuster art

from the Taxpayers’ Union

Give Brooke a call 

There’s been a suite of changes this week from the Workplace Relations and Safety Minister that had a few of us in the office dialled in — some were good, some were more, errrr, ‘novel’.

Brooke van Velden has made the call to bring in a nation-wide hotline for, of all things, road cones!

As part of her latest safety updates, the new hotline will supposedly allow you to call up and report ‘overzealous’ orange cone use on our roads.

Here at the Taxpayers’ Union, we get a lot of complaints about the overzealous use of road cones. We get it. And so does Alex! After our recent exposé that NZTA spent more than $786 million in three years on road cones and lollipop signs, you can imagine Alex’s frustration!

Here at the Taxpayers’ Union, we initially thought Brook cone-not be serious.

Is a phone line to Wellington bureaucrats really the way to tackle it? Who would call such a taxpayer funded support line? The little old ladies having nightmares about cones in the middle of the night? Please. 

A great gimmick, maybe, but a policy fix, no.

Is van Velden putting the cone before the horse?

   The real reason behind NZ’s cone-tastrophe

But let’s not rush to criticise van Velden. Here’s why: The reason for the invasion of road cones is totally rational when you consider our Health and Safety at Work Act.

Under that law, employers (such as roadworks contractors) are required to take “all reasonably practicable steps” to eliminate or minimise risks. That duty applies not just to workers but also to other persons who may be affected by the work.

And, since 2016, company directors and officers have been personally liable for breaches of the employer’s duty (just ask the former boss of the Ports of Auckland)

Prior to 2016, directors and officers could be liable only if they were personally involved in a breach or knew about it and failed to act.

How Courts have interpreted the “all reasonably practicable steps” is a dog’s breakfast. One of the factors is what is “industry standard” – i.e. the 50th percentile in the particular industry. Even worse, that factor is not determinant in defending a criminal charge but is commonly used in the prosecution against a company/its executives.

Cone-flation: The race to gold-plate health and safety 

So, thanks to the current health and safety legal standard, arguably 50 percent (those not taking health and safety precautions that are the ‘average’) leaves officers and directors open to personal, criminal liability.

What results from this is predictable: a race to pile more and more safety precautions — even when they’re costly! The public sees it in the explosion of road cones, but the problem is rife across the economy.

So, while Monday looked like a gimmick — all sizzle and no sausage — you can imagine our delight when this announcement hit our inboxes yesterday from the Beehive’s press team:

MEDIA RELEASE
Hon Brooke van Velden 

Reducing ambiguity about what is reasonably practicable for health and safety compliance

Workplace Relations and Safety Minister Brooke van Velden says safe harbours of deemed compliance will be created to increase business and worker certainty about what they need to do to comply with their health and safety duties.

Approved Codes of Practice (ACOPs) are practical guidelines to help people in specific sectors and industries to comply with their health and safety duties.

“Health and safety compliance is based on people doing what is ‘reasonably practicable’ to manage risks, yet I’ve heard time and time again that many people don’t know what ‘reasonably practicable’ actually looks like. There is a demand for more and better guidance,” says Ms van Velden.

“As part of my health and safety reform, I am making a change to the ACOP model to reassure people that if they comply with an ACOP, they have done enough to meet their health and safety duties.

“In the absence of clear regulations and guidance, an entire health and safety industry has developed, which comes at a cost to businesses, consumers and taxpayers. You should not have to hire a health and safety consultant just to understand whether or not you are compliant with the law. […]

“ACOPs may be sector based but can also be used to help businesses know what ‘reasonably practicable’ means for specific issues that may occur across a range of sectors. They will likely be a useful tool for supporting innovation by responding to new and emerging industries where certainty about the risks would not yet warrant regulations. [continue reading on the Beehive website]

Brooke van Velden gets it!

And, maybe she was right with the cone ‘hotline’ after all? While the mainstream/taxpayer funded media have covered the ‘sizzle’ of the hotline, so far, there is zero coverage of the actual sausage — i.e. the law change Minister van Velden announced. 

Of course, as always, the devil is in the detail, and your humble Taxpayers’ Union will be following the issue closely when the proposed law is introduced to Parliament later in the year.