Submission on Discussion Document. Developing Regulations to Support the new Health and Safety at Work Act

Transcription

1 Auckland Regional Public Health Service Cornwall Complex Floor 2, Building 15 Greenlane Clinical Centre Private Bag Symonds Street Auckland 1150 New Zealand Telephone: Facsimile: July 2014 Submission on Discussion Document Developing Regulations to Support the new Health and Safety at Work Act 1. Thank you for the opportunity for the Auckland Regional Public Health Service (ARPHS) to provide a submission on this discussion document. 2. The following submission represents the views of the ARPHS and does not necessarily reflect the views of the three District Health Boards it serves. Please refer to Appendix 1 for more information on ARPHS. 3. ARPHS understands that all submissions will be available under the Official Information Act (1982), except if grounds set out under the Act apply. The primary contact point for this submission is: Holly Westerman Programme Supervisor Policy & Workforce Auckland Regional Public Health Service Private Bag Symonds Street Auckland ext hwesterm@adhb.govt.nz Yours sincerely, Dr. William Rainger Service Manager Auckland Regional Public Health Service Dr. David Sinclair Medical Officer of Health Auckland Regional Public Health Service 1

2 General Comments: 1. Thank you for the opportunity to submit on the Discussion Document: Developing Regulations to Support the new Health and Safety at Work Act. While we note that much of the content of this legislation relates primarily to the work of the Ministry of Business, Innovation and Employment (MBIE), there are several areas of overlap with public health concerns. We have taken the opportunity to comment on the most relevant public health related questions in this submission. 2. We see the discussion document and the potential subsequent regulations as a crucial opportunity to improve communications and agency relationships in the event of either a Hazardous Substances and New Organisms (HSNO) response or an investigation of chemical injuries. 3. We note that both the regulation and implementation of workplace health and safety practices in New Zealand have been seriously inadequate for many years, resulting in very high rates of occupational death, injury and illness. Many Persons in Control of a Business or Undertaking (PCBUs) have not had exposure to effective processes, frameworks, cultures and mindsets of occupational health and safety such as those in countries with more advanced health and safety legislation. As a result, many industries and employers have become accustomed to lax standards which do not reflect internationally recognised best practice. 4. In adopting regulatory tools from other jurisdictions, the MBIE must take into account (1) the linkages between interrelated regulatory tools such as those between health and safety, employment relations and environmental resource management, (2) relationships between government agencies, businesses, employees and their respective representative groups in each country and (3) the long term culture of workplace health and safety and employment relations. Chapter One: Overview 5. Question 1: We are concerned that the phasing of development of regulations could result in delays in dealing with particular hazardous industries, especially forestry. 6. Question 3: We see significant advantage in having a single set of regulations. This approach can lead to increased efficiency through reducing fragmentation. Chapter Two: Regulating general risk and workplace management 7. We are generally supportive of the approach to regulation described and agree with the specific proposals in the feedback questions. We note that the duty of PCBUs to identify hazards needs to be clearly articulated in the regulations. 8. The list of high risk situations and activities in the Australian regulations doesn t necessarily fit well with the highest risk industries in New Zealand, particularly forestry. While some forestry activities would be covered (e.g. remote and isolated work, falling objects, noise, musculoskeletal disorders) there needs to be a means of integrating health and safety and dealing with risks which emerge from the combination of these hazards. We recommend a specific section on forestry and other complex high risk industries. Mining is currently covered under its own regulations, which should be brought into the main regulatory framework. 9. Questions 9 and 10: We fully support the proposal to require PCBUs to ensure hazard identification and control measures remain up-to-date and effective over time. As safety culture and management improves, PCBUs should more actively identify and manage hazards which would have been neglected under the Health and Safety in Employment Act (1992) regime. 2

3 10. Question 15: Emergency plans are good practice, even for small business. They assist not only in dealing with workplace health and safety issues but also in supporting business continuity. They should be required and we recommend the provision of simple templates for Small and Medium Enterprises (SMEs). 11. Question 17: The Australian definition of Personal Protective Equipment (PPE) is acceptable. 12. Questions 18-21: We urge caution around workers providing their own PPE voluntarily given the likelihood that some employers will pressure workers to supply equipment. This is particularly problematic in high risk industries or where PPE is expensive. While new workers could use their own existing PPE, the PCBU needs to pay for it and be responsible for ensuring its adequacy, maintenance and replacement. We note that clause 28 of the Health and Safety Reform Bill would prohibit PCBUs from levying workers for any matter related to health and safety including providing their own PPE. 13. Question 22: We support absolute requirements for PPE. The PCBU needs to have obligations to ensure PPE use or protect workers from hazards by other means such as removing workers from hazardous situations. 14. We note that family members/whānau, flatmates and/or partners may be exposed to hazardous workplace materials as PPE is washed in the home. Examples of secondary contamination from clothing carrying hazardous materials include lead contamination from volunteer workers from indoor shooting clubs 1 and other workplaces. International examples include lead poisoning in children 2 and respiratory disease in the spouse of workers through laundering clothing contaminated with beryllium dust ARPHS has found that significant numbers of volunteer workers breach health and safety regulations in the context of PPE gear practices and recommends that the PCBU should be responsible for cleaning of contaminated PPE. 16. Question 26: PCBUs will need to meet the obligations for air dischargers under the Resource Management Act (1991). Given the long periods between occupational exposure and a number of occupational diseases (such as occupation-related cancers, silicosis and asbestosis), medium term retention of air monitoring records (30 years) is not unreasonable. 17. Questions 31-32: ARPHS supports mandatory guidelines on the storage of flammable substances at the workplace in order to minimise harm to public health. Potential contamination of air is a major concern. Many more air particles are absorbed on a daily basis than water particles. We note that such issues of health and safety pose potential conflicts of interest between commercial imperatives and public health issues, and argue that public health must be prioritised. 18. Question 36: We do not consider that 12 to 16 year olds are capable of safely using tractors, quad bikes or other hazardous machinery. This is because of immature cognitive judgment abilities, which are not adequately developed until late adolescence 4. Children also lack the physical ability to control heavy moving machinery. Research in this area consistently identifies tractors as important causes of serious injuries and death for children and young people on farms whether as drivers, passengers or bystanders. Rates of injury are comparable to quad bikes in some studies. While quad bike use has displaced some tractor 1 Perumal, L (2011) Lead exposures risks of notified indoor shooters in Auckland. Report for Auckland Regional Public Health Services. 2 Chisholm, J (1978) Fouling one s own nest, in Paediatrics. Accessed from: 1b27f2a897a7http://pediatrics.aappublications.org/content/62/4/614.full.pdf+html?sid=fe9a382e-b31b-469c-9d0c-1b27f2a897a7 3 Eisenbud, M., Wanta, R. and Dustan, C (1949) Non-occupational berylliosis, in Journal of Industrial and Hyd. Toxicology, 31: Schwebel, D. and Pickett, W (2012) The role of child and adolescent development in the occurrence of agricultural injuries: an illustration using tractor-related injuries, Journal of Agro-Medicine, 17(2):

4 use, the injury risk remains. This anomaly should be removed and the tractor driving age made the same as that for motor vehicles. 19. Question 37: We would not generally support people younger than 15 working in areas where hazardous substances are manufactured, handled or sold. Child labour involving hazardous chemicals is contrary to a number of international labour regulations, including (but not limited to) the United Nation Convention on the Rights of the Child 5, and the Stockholm Convention on Persistent Organic Pollutants 6 (to which New Zealand is a signatory). The second example expressly aims to protect human health from hazardous chemicals, with a particular focus on women and children. 20. Note that hazardous substance exposure limits in the workplace are generally set to safe exposure limits for adults. These limits can be lower for children due to both biological characteristics and behaviour 7. Chapter Three: Regulating worker participation, engagement and representation 21. We are generally supportive of provisions which expand worker engagement in the management of workplace health and safety. Such provisions should include participation in training, representation, hazard identification and management and the development and implementation of prevention programmes. Chapter Four: Regulating work involving asbestos 22. ARPHS was recently notified of a situation involving asbestos related work which both contaminated a household dwelling and posed a health nuisance under the Health Act (1956). This was first notified to WorkSafeNZ, but later referred to ARPHS. The dwelling concerned has been kept on LIM report and is now classified as a contaminated site. This example highlights the need for health and safety regulations to cover non-occupational environments. Internationally, household contamination and disease has resulted from secondary contamination in the homes of asbestos workers We are generally supportive of moves to make New Zealand s regulation around handling asbestos consistent with Australia s. This is likely to require significant up-grading of asbestos management. 24. Question 59: The recent situation of asbestos in the insulation of imported railway locomotives illustrates that it will be difficult to specify a definite date for assuming asbestos is absent in machinery 9. This may be more straight-forward for construction materials, but even then imported material from countries which still mine and process asbestos need to be scrutinised. 25. Question 60: Situations where WorkSafeNZ could approve methods adopted for managing risk associated with asbestos should be very restricted and clearly defined. 26. Question 61: It is a reasonable step to impose a broad duty on all PCBUs at a workplace to eliminate the exposure of persons at the workplace to asbestos. 5 United Nations Convention on the Rights of the Child (1989) This includes: Article 32, 1. States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development. Accessed from: 6 Hazardous Substances and New Organisms Act (1996) Schedule 1AA Stockholm Convention on Persistent Organic Pollutants 7 Perumal, L (2011) Lead exposures risks of notified indoor shooters in Auckland. Report for Auckland Regional Public Health Services. 8 Lehmann, P (1977) Cancer and the Worker, New York Academy of Sciences, New York

5 27. Question 62: Consistency of standards with other jurisdictions is supported. 28. Question 64: The distinction between friable and non-friable asbestos is arbitrary and should be removed. 29. Question 65: Whether a person is deemed competent to determine/assess whether or not asbestos is present in a workplace should depend on qualifications and experience. 30. Question 77: The duty to identify and remove asbestos in workplaces that are residential premises should be with the PCBU who has been commissioned to do the work for individual owner-occupied residences. This is because of their expertise and liability cover which individual home owners don t necessarily have. The owner or body corporate should be responsible in the case of apartment buildings, residential facilities, hotels and other rental accommodation. 31. Question 80: The 10 square meter provision would need to be more clearly defined. For example, 10 square meters of intact fibrocement building cladding material is low risk compared with 10 square meters of loose asbestos insulation material which could be 10cm thick. 32. Questions 84-89: The level of training to become licensed to remove asbestos should be equivalent to that recognized elsewhere. It seems appropriate that individuals carrying out the work are licensed or under supervision, but that asbestos removal companies also need to be able to demonstrate their competence. Chapter Five: Regulating work involving hazardous substances 33. We agree with the general principle of having a single set of regulations and related requirements for hazardous substances. Detail will be important, and needs to reflect best practice. Workplaces should keep material Safety Data Sheets (SDSs) for chemical storage along with secondary bunding, in order to contain any spills. We recommend there be trained staff equipped to deal with situations along with 24 hour, 7 day a week, monitoring of hazardous places. 34. Question 104: Preparing and maintaining an inventory of hazardous substances is important for reasons of hazard management and emergency management as well as stock management. The inventory should include hazardous materials generated or manufactured by the PCBU at the site, including hazardous waste. 35. Question 104: Some consumer products are hazardous. Commercial premises often have bulk supplies and these should be listed if in larger quantities than one might reasonably expect. 36. Question 105: There may be additional costs in the preparation and maintenance of an inventory but these could better be seen as remedying current lax approaches which are not international best practice. PCBUs could instead look at ways of making improved inventory requirements work for them as in the case of better stock management for example. 37. Questions : Our concern is to ensure that public health-related exposure standard setting for toxic substances (covered in regulation 11-26) is transferred to Environmental Protection Authority (EPA) responsibility. As identified on page 114 of the discussion document, there exists a lack of adequate controls for the safe management of some class 6 and class 8 substances. There needs to be a mechanism to rectify this. 38. Question 115: We support the regulatory proposal to transfer the requirements of schedules 2 and 3 of the HSNO fumigants transfer notice into the new regulations. 5

6 39. Question 117: We support the regulatory proposal to require a PCBU to ensure that a hazardous substance used, handled or stored at the workplace is correctly labelled in accordance with the HSNO identification regulations and the HSNO emergency management regulations. 40. Question 119: We support the principle that SDSs need to be available to all who may come into contact with hazardous substances. We urge caution about the potential for delay in obtaining SDSs in a workplace as proposed. There could potentially be a number of months between receipt and use of a material, which could then pose a risk to workers or to emergency services in the event of an incident. 41. Question 120: MBIE should consider including a requirement for the PCBU supplying the hazardous substance to a workplace to ensure that the recipient has an up-to-date SDS. This would be consistent with best practice around stewardship of hazardous substances. Additional costs should be minimal with risk reduction potentially significant. 42. Question 121: We recommend that HSNO labelling also needs to comply with NZ Standards and other requirements. For example, labelling must comply with the current NZS 5433:1999 Code of Practice for the Transport of Hazardous Substances on Land. 43. Question 123: We recommend that any gas leak notifications (alarm 2 and above) should be reported to the nearest Public Health Unit (PHU) for their information. This is especially so when the fire department is evacuating public from residences or advising them to stay inside. 44. Question : In general, a single plan for emergencies should be sufficient as long as it covers all hazards including hazardous substances. We suggest adding an appropriate notification process as part of the plan so that relevant agencies such as fire, council and DHB public health services are informed in emergencies. 45. Question 136: The proposal for the fire service to make recommendations which must be acted upon or effective alternatives implemented appears sensible. 46. Question 137: The HSNO Act requirements appear to be more thorough, including requirements to notify potentially affected people including neighbours (which isn t covered in the Australian regulations). The Australian regulations do require testing, unlike existing HSNO regulations. A blended regulation is possible. Structuring the plan requirements around emergency management principles (risk reduction, readiness, response, recover etc.) may be helpful. 47. Questions : The proposed changes around monitoring are a significant improvement on the current situation. There should also be provisions to allow biological monitoring of groups of workers exposed to the same substance by occupational health services as this is often a more sensitive indicator of improvement or emerging problems over time than just monitoring individuals. As an example, workers exposed to lead (Pb) (e.g. foundries, lead battery recycling and manufacture) should have regular blood lead monitoring 10. Elevated blood lead is notifiable to the Medical Officer of Health (if levels exceed 0.48 µmols/litre) whereas the suspension level for workers is 2.4 µmols/litre and return to work level is 1.93 µmols/litre. Small changes in an individual s blood level may not be regarded as significant, but small changes in blood levels for a whole group could signify an emerging problem of inadequate exposure controls. 48. Question 144: The question about potential cost of monitoring neglects the history of inadequate occupational health and safety in New Zealand. Many such costs result from 10 Guidelines for the Medical Surveillance of Lead Workers, DoL

7 lower levels of occupational safety than would be expected in comparable developed countries, and neglects the potential benefits that result from good worker health. Chapter Six: Regulating major hazard facilities 49. Question 146: To be consistent with the previously stated principle of a single source of regulations, we consider that regulations for petroleum installations, pipelines and mines should be directly transferred into these regulations. These industries will need to comply with the other relevant regulations. 50. Questions : We generally support the proposals for assessment of hazardous facilities, development of safety management systems, emergency preparedness planning and testing. Any emergency preparedness plan for these facilities should cover all hazardous substances on site, not just those which place the facility in the category of major hazardous facilities. 51. Questions : WorkSafeNZ must ensure that it has sufficient expertise and experience in industrial design and safety either in-house or available through independent specialist consultants (New Zealand or international). These assessments can be expensive and the cost needs to be borne by the PCBU. 52. Questions : The safety case proposals and regular review appear satisfactory, as long as they are consistent with international best practice. 53. Question 166: It is important that operators communicate with local communities and the council. The proposal appears satisfactory. 54. Questions : The proposals around reporting incidents and involvement of workers appear satisfactory. 55. Question 170: There needs to be a mechanism to ensure co-ordination between councils and WorkSafeNZ. The placement of major hazardous facilities and neighbouring industrial activity and land use needs to be carefully planned and not just discretionary. Since WorkSafeNZ has the greater knowledge of the hazards and the potential implications of siting these facilities and impacts of incidents, it should be the agency required to inform councils. This should be included in the regulations. 56. Closer collaboration between health and safety and council with regards to council policy (in this case land use planning) can lead to better health outcomes. One opportunity here is to work with WorkSafeNZ to establish a health and safety/public health advisory panel to council. Auckland Council advisory panels currently exist but there is currently no panel for health. Conclusion 57. In summary, ARPHS: i. notes that both the regulation and implementation of workplace health and safety practices in New Zealand have been grossly inadequate for many years, ii. sees the potential regulatory changes coming out of the discussion document as a key opportunity to improve communication and collaboration across the sector in the context of workplace health and safety. This will ultimately improve outcomes, iii. is generally supportive of the approach to general risk outlined in chapter two of the discussion document. We assert that the responsibility for hazard identification and management must lie primarily with the PCBU, iv. fully supports the inclusion of workers at all levels of the management of workplace health and safety, 7

8 v. is generally supportive of moves to make New Zealand s regulation around handling asbestos consistent with Australia and recognises that this is likely to require significant improvement in current practices, vi. is generally supportive of having a single set of regulations and related requirements for hazardous substances. 58. Thank you for the opportunity to submit on this issue. 8

9 Appendix 1 - Auckland Regional Public Health Service Auckland Regional Public Health Service (ARPHS) provides public health services for the three district health boards (DHBs) in the Auckland region (Auckland, Counties Manukau and Waitemata District Health Boards), with the primary governance mechanism for the Service resting with Auckland District Health Board. ARPHS has a statutory obligation under the New Zealand Public Health and Disability Act 2000 to improve, promote and protect the health of people and communities in the Auckland region. The Medical Officer of Health has an enforcement and regulatory role under the Health Act 1956 and other legislative designations to protect the health of the community. ARPHS primary role is to improve population health. It actively seeks to influence any initiatives or proposals that may affect population health in the Auckland region to maximise their positive impact and minimise possible negative effects on population health. The Auckland region faces a number of public health challenges through changing demographics, increasingly diverse communities, increasing incidence of lifestyle-related health conditions such as obesity and type 2 diabetes, outstanding infrastructure needs, the balancing of transport needs, and the reconciliation of urban design and urban intensification issues. Appendix 2 Summary of acronyms used in this submission (ARPHS) Auckland Regional Public Health Service (EPA) Environmental Protection Authority (HSNO) Hazardous Substances and New Organisms (MBIE) Ministry of Business, Innovation and Employment (PCBU) Person in Control of a Business or Undertaking (PHU) Public Health Unit (PPE) Personal Protective Equipment (SDSs) Safety Data Sheets (SME) Small and Medium Enterprises 9