ports of auckland ltd
TRANSCRIPT
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PO Box 1281 Auckland P: 09 348 5000 I F: 09 348 5005
MBIE Discussion Document:
Developing regulations to support
the new Health and Safety at
Work Act
Submission by Ports of Auckland Limited
11 August 2014
Ports of Auckland I Submission on MBIE Health and Safety Discussion Document 2
Background
Ports of Auckland Ltd ("POAL") and other port-related companies provide or facilitate a full range
of cargo-handling and logistics services at two sea ports – one on the Waitemata Harbour
adjacent to the Auckland central business district, the other on the west coast at Onehunga – and
an inland port at Wiri, South Auckland.
By value of trade handled, we continue as New Zealand's most significant port operation. In
2010, the Auckland ports handled import and export cargo the equivalent to 13% of the country's
total GDP being twice the value of any other New Zealand port.
The volumes have grown significantly recently and are now at record levels. Auckland is New
Zealand's largest container port, handling more than 900,000 20-foot equivalent container units
(TEU) per annum.
Outside of the POAL Container Terminals, other port facilities handle some 4.5 million tonnes of
bulk and break-bulk (non-containerised) cargo each year, including 70% of the total vehicle
imports to New Zealand. The stevedoring and ancillary services for these trades are often
provided by independent stevedoring companies and their related service providers, who are
commonly, as may be appreciated, substantial business entities and employers in their own right.
POAL employs three full-time safety management staff and one part time contractor assisting
with rehabilitation (as we are an Approved Employer co-managing ACC matters under the ACC
Partnership Programme at Tertiary Level). All operational managers have a primary duty
towards ensuring effective hazard management and safe practices. Worker participation is
enshrined in our Health and Safety Committee structures and the Health and Safety
representatives appointed for all operating areas.
POAL's interaction with hazardous substances
In the course of the day to day operations of its port facilities, POAL frequently holds goods that
are hazardous substances on site for short periods of time. Generally these are confined to
standard shipping containers or tanktainers. POAL is classified as a "transit depot" in terms of the
Hazardous Substances (Classes 1 to 5 controls) Regulations 2001, which allows certain
hazardous substances within designated threshold quantities to be stored on site for up to 72
hours. POAL also operates "back-up" hazardous substance storage facilities to deal with
occasional circumstances where hazardous substances are required to be stored for more than
72 hours. POAL has been advised verbally that the Ministry of Business, Innovation and
Employment (MBIE) is satisfied with this system as it presently operates.
POAL has developed its own Code of Practice, a document which formally outlines key
processes for managing hazardous substances cargo to minimise risk. POAL's operations have
been subject to audits/inspections in the past, and its Code of Practice has been reviewed by the
relevant authorities. POAL has also commissioned external audits of its procedures and Code of
Practice, and generally updates its audit prior to the renewal of its Location Test Certificates.
Much more moderate quantities of various hazardous substances are stored and used in various
departments on the POAL site, most notably in the Engineering and Marine Services business
units. These departments maintain a hazardous substances register for goods they handle, and
they are subject to a number of third-party audits against various safety and environmental
frameworks (including ACC Partnership Programme Tertiary Level and ARC Resource Consent
compliance), as well as HSNO Location Test Certification and other regulatory compliance
audits.
Finally, hazardous substances are also stored and used by independent contractors and other
entities operating at the POAL facilities, who obtain their own regulatory permissions (if needed)
in relation to this.
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Overview of submission and key concerns
POAL generally supports the way in which the current HSNO regime applies to its premises.
Being able to continue with "business as usual" is a desirable outcome.
Therefore, POAL's principal goal in respect of the reforms is to ensure that, where possible:
(a) POAL's operations are not subjected to a greater, unnecessary, level of regulation;
(b) the cost of compliance with the proposed new health and safety/HSNO regime is not
increased without clear evidence of tangible benefits; and
(c) the reforms clarify that POAL's current operational practices are reasonable and
appropriate for the nature of its business – i.e. POAL is currently considered as a transit
depot rather than as a storage facility, and therefore is exempt from a number of
requirements for managing storage of hazardous substances. This should be continued
without significant change.
However, there are some aspects of the regime that POAL considers should be clarified or
improved. These are set out in the submission table below, which responds to the specific
questions posed in the Discussion Document.
In summary, it is sought that:
(f) POAL's responsibilities as a PCBU for ensuring tenants and contractors comply with
HSNO controls and other health and safety requirements are workable and clear.
(g) The proposed new training, instruction and supervision requirements (which will replace
Approved Handler certification) are applied in a pragmatic and reasonable way. POAL
seeks that the new training requirements are based on risk assessment of tasks
performed and are relevant to risk exposure, rather than being applied on a ‘one size fits
all’ basis. For example, it would simply not be practical to require every stevedore to
meet all of the proposed training requirements in order to work at Ports of Auckland.
(a) Compliance requirements be streamlined where possible, so that POAL (and other
operators) do not need to deal with multiple government regulators for related matters.
For example, in respect of Class 7 dangerous goods, POAL is currently required to deal
with a number of organisations (directly or indirectly) including the Ministry of Foreign
Affairs and Trade, and the Ministry of Health. One agency should have specified lead
authority or jurisdiction for any particular HSNO matter.
(b) A transit depot regime, similar to that in the Hazardous Substances (Classes 1 to 5
controls) Regulations 2001, also be applied to Class 6, 8, and 9 substances. This would
provide an exemption for transit cargo in relation to the controls that apply to hazardous
substances which are kept in long-term storage, handled and used (ie manufacturing and
related).
(c) POAL's facilities not be considered a Major Hazard Facility. While there may be high
volumes of hazardous substances on site at any given time, the risks to personel onsite
is lower because this is a transit depot handling bulk cargo only (kept enclosed),
therefore the risk of exposure is much lower than other kinds of facilities with the same
quantities of hazardous substances. Given POAL's existing operational requirements
and status as a transit depot facility, it would be impractical to comply with the
requirements that would apply to Major Hazard Facilities.
(d) POAL's back up hazardous storage facility, which is required when cargo that includes
hazardous substances cannot be moved on within 72 hours (for reasons outside of
POAL's control), be able to continue to operate, and that an appropriate regime be
explicitly specified to provide for facilities of this kind.
(e) POAL retains current agreed conditions with MBIE in relation to the International
Maritime Dangerous Goods (IMDG) Code as currently applied to its facilities. This is
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important, particularly because the IMDG Code allows for more relaxed separation
distances and between containers than would otherwise apply under HSNO
requirements. The ports should be treated as an extension of the vessel for the
purposes of separation and segregation as per the IMDG.
POAL is mindful that some of the more significant changes sought may need to be progressed
through the second stage of the reforms (understood to occur over the next two years). POAL
would welcome the opportunity to work with the relevant agencies to develop appropriate and
pragmatic solutions through that longer period.
Submission prepared by:
Sheri Suckling
Health and Safety Advisor
Ports of Auckland Ltd
Submission approved by:
Steven Groenewegen
Health and Safety Manager
Ports of Auckland Ltd
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Attachment A - General Submission This section of POAL's submission is intended to be read together with our responses to the
more specific questions posed in the discussion documents, and expands on some of our key
concerns with respect to the proposed changes.
The issues covered are:
POAL's track record with health and safety matters.
Concerns as to the timeframes for development of the new regime.
Concerns as to the obligations on POAL as a PCBU in circumstances where there are
many businesses operating at the port.
The operational requirements of the port and its status as a transit depot.
Compliance with the IMDG Code.
Why POAL facilities should not be classified as Major Hazard Facilities.
POAL's track record
Safe operation of the ports is a key value and operational priority for POAL. As reflected in its
Statement of Corporate Intent (1 July 2013 to 30 June 2016), POAL's goal is to put safety first
and to become a zero harm workplace by working with staff to reduce injury incidents by at least
30% annually. It has a permanent internal team of three experienced safety management staff
committed to achieving this outcome.
POAL has steadily improved its safety performance in recent years through a number of
measures, including:
Development of POAL’s own internal specialist training resources, drawn from highly
experienced personnel with identifiable leadership skills, who demonstrate commitment
to safety, excellence and other key POAL values. This group of people have been
specifically developed to work as operational trainers and coaches, including
accreditation as workplace skills trainers, specific health and safety training, and
exchange visits with other ports and organisations using similar or related operational
activities (e.g. crane operations, forklifts, etc) to benchmark and support development of
best practice at POAL.
Proactively identifying technological tools and solutions that will add safety and certainty.
For example, POAL developed an award-winning solution for traffic lights at a major
traffic crossing point, and is currently exploring radiofrequency identification devices to
alert straddle drivers of the presence of pedestrians in operational areas.
Refined operator selection processes with a greater focus on verification of task-related
personal attributes and criteria such as aptitude, operational ability, tolerance for stress,
and so on. This minimises the risk of placing operators in roles for which they are not
suited.
Active involvement of managers and supervisors in operational areas – they keep close
contact with what is happening and act promptly to address unsafe behaviours or
conditions.
Retaining and continuously developing experienced employees who have both depth and
breadth of experience in the organisation, and who actively collaborate and contribute to
improvement initiatives.
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Recognising that the most effective and sustainable long-term safety measure is
awareness of risks (developed through training, coaching, and supervision) and personal
responsibility.
Acknowledging the skills and experience of managers and supervisors, enabling and
supporting business unit managers and supervisors to make decisions and take action to
respond to situations arising in the course of their work, then reviewing (coaching)
afterward in terms of what worked well and what could be improved.
Integrating Health and Safety Management as well as overall POAL operations under a
common port-wide approach, rather than split according to business units, in order to
provide more consistent standards across POAL business operations.
Additional resources and training (such as ICAM Investigation methodology, NEBOSH
certification, Safety Psychology, Fatigue Risk Management, and so on) provided for the
health and safety department, which acts in a supporting and advisory role rather than
policing others. Key operational personnel have also received training in health and
safety tools and methodologies such as ICAM Investigation methodology.
POAL's Health and Safety Manager actively participating in a nationwide Ports Health
and Safety Forum with health and safety managers from ports across the country. This
supports proactive identification of safety issues, implementation of best practice, and
benchmarking against organisations carrying out similar business activities.
Timeframes and review process
Generally POAL is concerned that the speed of the changes is too fast. While in some respects
there may be a need for improvement, more time is required for the changes to be well
considered and effective. The target date of April 2015 is too soon for the new Health and Safety
at Work Act and the new regulations to be developed in a coherent and workable fashion, and,
even if that is possible, that timeframe does not provide sufficient time for either the regulators or
PCBUs to be prepared and have the appropriate systems in place to supervise compliance (in
the case of the regulators), or to comply (in the case of the PCBUs). POAL is aware through its
industry working groups that many operators are significantly concerned that the new regime is
being "rushed through", unnecessarily. In other situations where regulatory requirements are
updated, a reasonable timeframe is given for the relevant persons to update their processes and
procedures to comply. For example, in respect of the International Maritime Dangerous Goods
Code (IMDG Code), the 2012 "Edition" only came into force on 1 January 2014, but was able to
be applied voluntarily from 1 January 2013. In other words, a full year was given to allow people
to update their systems voluntarily, before formal compliance became mandatory.
Concerns have also been raised about developing regulations while the Health and Safety
Reform Bill is still before Select Committee, and could itself be subject to change.
Consideration should be given to whether the Bill should be finalised and passed into law first,
but without taking effect until the regulations can then be finalised against the final legislation.
This does not preclude the regulations being developed alongside the Bill, but will allow them to
be finalised in a way that will be able to sufficiently respond to the Act as finally enacted. That is
the usual course, particularly for complex legislation that is to be implemented through
regulations.
In addition, the proposed changes are largely tied to Australian Model Regulations, which have
not been universally accepted across Australia, and there are already calls for urgent changes to
be made. As explained in the responses to Chapter 1, this is currently undergoing review and the
outcome will be unknown until 2016. This indicates a need to avoid rushing into adopting the
Australian regulations until those problems have been satisfactorily addressed.
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Other transitional measures, such as enabling voluntary compliance with the regulations for the
first year (once they do take effect), as is the case with changes to the IMDG Code, should also
be considered.
In addition, it is also important to ensure regulatory enforcement personnel have time to be
sufficiently upskilled and familiar enough with requirements of the new regime to be appropriately
prepared to take on new responsibilities. A large number of new inspectors have been taken on
board, so it is reasonable to expect that they would require time for training and development to
be effective in carrying out their role. Rushing into legislative requirements that the regulator is
not in a strong position to effectively enforce will undermine the entire framework at the outset.
Both duty holders and regulators will need an extended period of time to allow the regulations to
be implemented in different workplaces in a way that will enable compliance to be achieved. To
the extent that the new requirements are materially different or require physical changes to
facilities and structures, then a system of "compliance plans" may be appropriate (i.e. detailing
the steps to be taken towards achieving compliance, as used in the relation to the Hazardous
Substances (Dangerous Goods and Scheduled Toxic Substances) Transfer Notice 2004).
At a broader level, POAL is concerned that the current reforms (Bill and regulations) represent an
approach of legislating for culture change, and may fail to address the underlying causes of
workplace accidents. Real enduring change, as is intended to be brought about to achieve a
25% reduction in accidents by 2020, takes time. However, the full penalty regime is proposed to
come into force from 1 April 2015.
Obligations on POAL as a PCBU
An overarching concern with the new regime for POAL is the obligations that will apply to it as a
PCBU in respect of the port facilities and all of the various activities that are undertaken on port
land - but not necessarily under the direct control or supervision by POAL - and the costs or
appropriateness of these requirements given the nature of our operations.
For example, POAL could have up to 3,000 persons entering the ports in a 24 hour period.
However, only a proportion of that number will have a direct relationship with POAL or be under
its direct control. POAL itself has approximately 420 full time equivalent (FTE) employees; some
600 persons all told have direct associations with the company. POAL has around 82 individual
contractors undertaking various activities. In excess of 200 companies other than these sole
contractors also provide their services to POAL.
Other persons engaged at the ports, either regularly or incidentally, include not just direct
employees of POAL but include those of its various contractors, the staff of independent
stevedoring companies, contractors to those stevedoring companies, security employees,
shipping company/agency personnel, Customs Department staff, Ministry of Primary Industries’
staff, KiwiRail staff, Fonterra stores staff, Golden Bay Cement staff, and a myriad of other valid
interests, smaller occupiers and service providers.
POAL sets many general safety rules for the port, for example determining safe conduct and
appropriate use of PPE in common areas. It also has a role in enforcing the site rules in common
areas across the port. This includes requiring third parties entering the port (i.e. people who are
not POAL staff) to agree to POAL's terms of entry, which require them to comply with port
practices and policies and be subject to audits by POAL on request. Third party stevedores
operate on site operate pursuant to stevedoring licences, which require compliance with POAL
policies and the requirements of the IMDG Code.
However, POAL does not control the work of many significant entities operating within the port -
for example, it does not does not set, manage and supervise detailed health and safety policies
and work practices for Fonterra or the Customs Department as to how their own staff must carry
out their particular duties (that are not related to common usage aspects). Nor would it be
appropriate for POAL to do so. The presumption in such cases is that both these employers and
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their employees are meeting their primary duties in terms of maintaining good health and safety
practices. These entities do not report to POAL, and it is not appropriate or helpful for POAL to
become involved in their day to day operations. The same is the case for the independent
stevedoring companies that operate onsite.
POAL's concern is that the broad scope of definition of a PCBU suggests an extended
responsibility to co-manage independent employers' safety regimes, and possible liability in the
event of an incident. These concerns have been raised in POAL's submission on the Bill itself
(dated 9 May 2014), and we are mindful of the direction in the Discussion Document to engage
with the proposals for regulation on the basis of the Bill as introduced, rather than submitting on
the Bill itself again through this process.
In that regard, the Bill provides that more than one person may have the same duty, with each
effectively having to discharge the duty to the extent that it is within their power to do so (clause
26). While this may be workable for many New Zealand workplaces, it leaves much uncertainty
for complex integrated operations with multiple PCBUs such as the Auckland port site. It is
therefore critical for POAL that the regulations provide clear guidance about the levels of
responsibility for different PCBUs in such situations, including the demarcation between the
duties of a PCBU who manages or controls a workplace (in terms of clause 32 of the Bill), the
PCBU who directly hires and pays the workers (which POAL considers should be the primary
PCBU in respect of those workers), and other PCBUs operating onsite or nearby, and what is
required of each in order to fulfil its obligations under the Act.
Other concerns raised by POAL in its submission on the Bill relate to the lack of legal
accountability for elected health and safety representatives under the new regime and the risk
that processes under this new model become adversarial rather than collaborative.
To the extent consistent with the new Act, therefore, POAL seeks that the regulations:
Establish clear demarcation between the responsibilities of different PCBUs acting in the
same area, and/or guidance on what is practically required of each in order to fulfil its
obligations under the Act.
Recognise that if ultimate responsibility is to rest with the managers and PCBUs, then it
is appropriate that they also have the ability to determine how work is carried out. While
the health and safety representative plays a key role in the organisation, they should not
be able to override or veto the manager’s ability to make decisions.
Provide clear requirements on elected representatives, to establish clear responsibilities
and accountabilities for Health and Safety Representatives which mirror (or at least
complement) those of PCBUs, in order to keep this communication framework balanced
and productive. POAL is concerned that the proposals currently have an unbalanced
focus on worker entitlements, without clear accountability or responsibility back to the
organisation.
Provide clear opportunities for PCBU (managers) to participate in decisions about health
and safety forums and who will participate, and/or processes for ensuring the PCBU’s
interests and needs are considered equally with those of workers. The health and safety
representative should not be able to be appointed without the agreement of the
managers, given the potential for the role to be filled by someone who is not sufficiently
qualified, capable, or wanting to work constructively on health and safety matters.
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POAL's facilities as transit depots
Ports of Auckland Limited (including the Wiri inland port) essentially operates as container
terminals or transit depots - the vast majority of goods arrive and leave in sealed containers, and
are moved on as swiftly as possible to their ultimate destination. The ports process
approximately 900,000 20-foot equivalent containers per year. Of these, less than 5% per year
would be expected to contain hazardous substances. The proportion of break-bulk cargo
containing hazardous substances would be even lower (and in general lower risk substances
would be transported in this way).
Containers are not opened or de-vanned by POAL, and the goods are not handled as part of
normal POAL operations (although they may sometimes, for example, be opened by Customs
officials for inspection or in the event of a leakage). The total area used to store goods is also
substantial. For example, the Auckland sea port site is 77 hectares. However, the proportion of
goods that are hazardous is very small, so the density of hazardous substances is low, and they
are also stored well away from perimeter fences and thus away from the public.
POAL utilises a terminal operating system to manage the tracking, stacking, and movement of
containers. This applies to all boxes irrespective of their location, i.e. either in Multi Cargo areas
or under POAL's direct control at its terminals. This enables a printout of cargo containing
hazardous substances to be generated when required, but it would be impracticable (and of no
benefit) to maintain a separate register, given the cargo on site is by nature constantly changing.
These characteristics of POAL's operations mean that, apart from the substances it uses directly,
it is in a very different position to other New Zealand businesses that come into contact with
hazardous substances:
The risks are much lower than might be expected for other businesses dealing with
similar quantities on site, because the substances are:
o stored securely within shipping containers;
o not opened or directly handled;
o only on site for a very short time; and
o stored/held over a relatively wide area.
Due to some of these factors, and also the third party activity and use of hazardous
substances (by contractors and stevedores), it is not practicable to constantly maintain a
full register of the precise quantities of different hazardous substances held onsite
(although a list of boxes containing hazardous substances could be generated for any
given time in respect of the cargo managed by POAL, using its terminal operating system
software).
POAL seeks that these operational realities are taken into consideration in designing the new
regime as it applies to hazardous substances, so that the controls imposed are proportionate to
risks levels and do not impose a significant administrative burden for little or no benefit. This
could be achieved in a cohesive way by providing recognition of facilities like POAL's as a special
category. The alternative would be a number of amendments to or expansion of the existing
concept of and controls applying to a "transit depot" in terms of the Hazardous Substances
(Classes 1 to 5 controls) Regulations 2001. POAL's facilities currently fall within this definition,
which allows certain hazardous substances to be stored on site for up to 72 hours. This 72 hour
limit is generally workable, and the shorter the period of time hazardous substances are on port,
the lower the risk of an incident.
However, POAL seeks that:
Its back-up hazardous storage areas, required when cargo that includes hazardous
substances cannot be moved on within 72 hours (for reasons outside of POAL's control),
be able to continue to operate and an appropriate regime be explicitly specified to
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provide for facilities of this kind. Despite POAL's best efforts, it is sometimes
unavoidable that cargo will not be transferred onwards within the 72 hours (e.g. due to
shipping delays, or bad weather). There is also a possibility that customers will leave the
cargo on site due to trans-shipment. Given this reality, it is more appropriate (and
consistent with risk management) for these events to be recognised and provided for
within the regime, and a process developed for notification and monitoring (or any
preventative steps as required) rather than simply being a breach of the requirements. In
particular, there is no capacity (and it would not be possible, given the nature of port
operations) to provide secondary storage or bunding, or fixed fire fighting facilities (which
is a technical requirement of the HSNO regime based on the more active long-term
storage, use or manufacture of hazardous substances), if the goods remain on site for
more than 72 hours. This is because the straddle carriers need to be able to access the
containers, and permanent bunding would prevent that. The transit depot concept
should also be applied to Class 6, 8, and 9 substances, which are not presently covered
in the same way. POAL understands the intention is to align the controls on these
substances more closely with the Class 1 to 5 regulations, and it would make sense for
the concept of a transit depot to be applied to these as well.
Its port facilities only have to comply with the IMDG Code rather than different HSNO
requirements, which would introduce additional complexities without additional benefits,
as explained below.
Compliance with the IMDG Code
POAL's practice has been to manage containers containing hazardous substances in accordance
with the requirements of the IMDG Code. Essentially, this sees containers being stacked at
these locations in the same way as they will ultimately be stacked on ships for transport.
The IMDG Code was developed as a uniform international code for the transport of dangerous
goods by sea, covering such matters as packaging, container traffic and stowage, with particular
reference to the segregation of incompatible substances.
Background to the IMDG Code
The IMDG Code has been developed by the International Maritime Organisation (IMO), which is
the United Nations global standard-setting authority for the safety, security, and environmental
performance of international shipping. The IMO's main role is to create a regulatory framework
for the shipping industry that is fair and effective, universally adopted and universally
implemented. The IMO is also empowered to deal with administrative and legal matters related
to these purposes.
The IMO was established following the adoption of the 1948 Geneva Convention. There are
currently 170 member states and New Zealand has been a member state, party to this
Convention, since 1960.
The two key issues that the IMO deals with are:
(a) the safety of life at sea; and
(b) the prevention of pollution from ships.
The IMO has developed two international conventions to address these issues; the International
Convention for the Safety of Life at Sea (SOLAS) and the International Convention for the
Prevention of Pollution from Ships (MARPOL).
In order to supplement the SOLAS and MARPOL, the IMO developed the IMDG Code which
contains detailed specifications to enable dangerous goods to be safely transported at sea, and
provides recommendations for good operational practice. These recommendations include
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advice on terminology, packing, labelling, stowage, spillage, segregation and handling, and
emergency response.
The IMDG Code also provides internationally utilised hazard classes (which are generally aligned
with those our Hazardous Substances and New Organisms legislative regime in New Zealand).
The implementation of the IMDG Code is mandatory in conjunction with the obligations of the
member states under SOLAS and MARPOL (which includes New Zealand). To this end,
compliance with the IMDG Code is a requirement of the Maritime Rules (Part 24A: Carriage of
Cargoes - Dangerous Goods) made under the Maritime Transport Act 1994.
POAL adoption of the IMDG Code - the POAL code of practice
POAL has developed its own code of practice for hazardous substances and dangerous goods
(COP). This was developed to address HSNO requirements and implements aspects of the
IMDG Code for stacking containers onsite, such as its separation and segregation requirements.
The COP is regularly reviewed and updated, and contains protocols and procedures (including in
relation to bunding and emergency procedures) to appropriately deal with hazardous substances
incidents such as ships arriving with a leaking container. The nature of the response to such
incidents will vary, including as advised by the Fire Service. POAL has run "live exercises" to test
its procedures and is confident that the COP puts in place an appropriate management
framework that can be applied to the range of potential incidents that might arise.
The POAL COP also requires a "Dangerous Goods in Yard" list to be produced daily and held by
the shift supervisor, who will review and action any issues.
The POAL COP was reviewed by ERMA in 2010, and has since been discussed with personnel
from the EPA and WorkSafe/MBIE. While representatives of these organisations have indicated
that they are generally comfortable with the POAL COP, formal written approval has not been
provided.
Accordingly, POAL seeks confirmation and certainty through this reform process that complying
with the IMDG in respect of container stacking and storage onsite can be deemed to comply with
the new Health and Safety Act requirements. In addition, the HSNO controls for storage, which
require fixed signage, fire-fighting equipment, secondary containment (bunding), are impractical
in the port environment, and as a true transit depot, POAL believes these HSNO emergency
response requirements should not strictly apply – POAL has other means of managing
emergency response requirements, which are more general, practical and more flexible for the
changing needs of transiting cargo.
The ability to comply with the IMDG Code is also important in respect of the segregation
requirements that would otherwise apply, and which would be difficult to work in practice. The
HSNO regime should "give way" to the IMDG Code requirements, rather than having two
different regimes in place.
POAL understands that other New Zealand ports have also adopted the approach of complying
with the IMDG Code requirements. For example, the hazardous substances code of practice
developed by the Port of Tauranga generally applies the IMDG requirements, and states that the
port area is to be regarded as a large ship and all cargo is to be planned and stowed in terms of
the IMDG.
Recognition of the IMDG Code as sufficient to comply with the new Act
The IMDG Code represents a practical and internationally accepted framework for managing the
transport of dangerous goods, and is therefore an appropriate means of managing cargo that
contains hazardous substances port facilities.
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In simple terms, POAL considers that if these standards are appropriate for ships carrying goods
over the high seas, then they must also be appropriate for the temporary storage/stacking of such
goods before they are loaded onto ships. Further, the IMDG Code is more appropriate for the
port operations, which are based on the transport and temporary stacking of cargo, rather than
the long term storage and active use of hazardous substances which is the focus of the HSNO
regime.
To avoid doubt, POAL seeks that this regime apply to its Wiri Inland port facility as well as the
sea ports, as many of the same constraints apply at that site, and operations are very similar (the
application of the IMDG Code should not be confined to sites that are close to water). It follows
that in some respects the IMDG Code requirements are more flexible than what the HSNO
regime presently requires, including because:
The IMDG Code separation distances recognise the limited space available onboard a
ship (and lower risk associated with goods within containers). For example, while the
HSNO regime presently requires 2m separation distances even for compatible
substances, the IMDG Code regime does not.
The IMDG Code recognises that certain HSNO classifications are not required to be
regulated during transport, as the IMDG considers only the transport aspect of the
lifecycle, whereas HSNO takes account of all stages of the lifecycle. These
classifications include for example, terrestrial ecotoxicity, low acute toxicity, and medium
hazard flammable gases. (HSNO labelling, documentation, and segregation
requirements may currently apply outside transport modes, at transit depots, but as
POAL does not alter the packaging, labelling, or anything else on the substance while at
the port, the requirements of the IMDG Code are still considered appropriate while in
POAL's transit depot facilities.)
The IMDG Code has been designed to regulate a universally accepted means of safely
transporting dangerous goods around the globe. Through Maritime Rule 24A, the IMDG
Code applies outside of New Zealand waters, as well as domestically. Global
consistency in transport and short term stowage of dangerous goods is therefore an
effective and efficient means of compliance. Strict HSNO controls that require further
regulation than that of the IMDG Code are not necessary.
Approved Handler qualifications are required under the present HSNO regime for those
people actually handling hazardous substances. However, under the IMDG Code a
person who drives, loads and unloads a vehicle transporting packaged dangerous goods
does not need to be an approved handler if they have a dangerous goods endorsement
on their drivers licence (this excludes explosive goods). This is equally applicable at the
port as POAL staff (and contractors/stevedores) are not handling the substances
themselves, but are merely moving them and storing them in their properly packaged (as
prescribed by IMDG Code) form. POAL should not be required to abide by more
stringent rules in their transit depot facilities where the state of the hazard or level of risk
is identical (or less, given that the containers are no longer at sea) to the state it was on
board a ship.
Given the high volume of freight/cargo that comes through the Ports, it would not be workable to
fully comply with the current HSNO requirements, although POAL makes every effort to comply
with the intent of HSNO regulations through its reference to the IMDG Code. Accordingly, it is
critical that the new regime explicitly recognise compliance with the IMDG Code as an
appropriate means of compliance.
One approach to this would be for relevant Approved Codes of Practice to be developed by
WorkSafe to refer to the IMDG Code directly.
This could be based on the POAL Code, and would be a specific code of practice for port
operations throughout New Zealand, which specifically addresses common risks, including
Ports of Auckland I Submission on MBIE Health and Safety Discussion Document 9
management of hazardous substances, and how they are managed in a port environment as a
transit depot. POAL is prepared to assist with the preparation of a specific code of practice for
port operations that could ultimately be adopted by WorkSafe and applied at other ports across
the country.
It is considered that effectively incorporating the IMDG Code standards by reference for sites
such as POAL’s would be consistent with the purpose of the Bill as well as the purpose of the
current HSNO regime.
As indicated above, currently, when changes to the IMDG Code are made, operators are given a
year to update their operations and procedures, during which compliance with the changes is
voluntary, before non-compliances become breaches of the IMDG Code. That approach should
be maintained in the new Health and Safety regime.
Status as a Major Hazard Facility
POAL is concerned about the implications for its operations if its ports were to be classified as a
Major Hazard Facility (MHF) under the new regime. From previous consultation documents,
POAL understands the concept of MHF is intended to apply to high risk installations such as oil
terminals, rather than cargo transit facilities.
POAL considers that for the purpose of calculating the relevant quantities, goods that are in
transit should be excluded, being goods that are:
supplied to, or stored at, a workplace in containers that are not opened at the workplace;
not used at the workplace; and
kept in the workplace for no more than 5 days.
However, as noted in the submission table, POAL is concerned by the proposed "exception to the
exception" whereby goods in transit would not be excluded if "it is reasonably foreseeable that,
despite the transitory nature of the storage, hazardous substances are or are likely to be present
frequently or in significant quantities".
This requirement is impractical because POAL will not always have full information on the
substances or quantities of substances that will be held at the Port while in transit, although it
could be considered reasonably foreseeable that some hazardous substance will be present
frequently. The HSNO regime currently maintains an exception for goods in transit, and this
should be retained in the new regime.
POAL anticipates that it would not trigger the thresholds in respect of the hazardous substances
it has on site for its own use, but it is possible that the thresholds would be triggered if the
hazardous substances in cargo that is transiting the ports were also considered.
POAL is also concerned that the proposed formula for classifying a facility as an MHF is one
dimensional in its focus on quantities onsite, and not appropriately focused on actual risk. For
example, the land area over which a substance is stored is not really taken into account. In that
regard, the Auckland sea port is very large at about 77 hectares, and is not operated as a single
site. This presents a much lower risk than a smaller facility with equivalent amounts of the same
substances, or a facility that was to actually open containers and handle or use the substances,
but these differences in risk profile would not be taken into account by the proposed formula.
Overall, it is anticipated that the administrative cost (and/or lost productivity) associated with
being classified as a MHF would be significant, if not prohibitive, for POAL. For example, the
procedure of having to make a "safety case" for beginning or altering operations would be a
significant obstacle. It would also create a distorted perception of POAL's facilities as unsafe
workplaces.
Ports of Auckland I Submission on MBIE Health and Safety Discussion Document 10
It is submitted that the better course is for POAL's facilities to be managed in a risk-based
manner in accordance with the general requirements of the new regime on PCBUs, rather than
against the additional overlay of MHF status. POAL therefore seeks that either port transit
depots are explicitly excluded from the definition of MHF, or the requirements are amended so
that they are workable for such facilities.
Additionally, POAL carries out a multitude of activities, and carries many different kinds of cargo,
the vast majority of which do not involve hazardous material. Accordingly, if some aspect of
POAL's activities were to trigger the thresholds to be deemed a MHF, then the corresponding
controls should only apply to those specific activities, rather than POAL's entire operations.
POAL's preferred approach
Overall, POAL's preferred approach would be that port facilities such as the Auckland Port and
the Inland Port at Wiri be considered as subject to their own specific regime in respect of
hazardous substances, which imposes pragmatic requirements that are appropriate given their
operational requirements and commensurate with the actual level of risk associated with
hazardous substances for such facilities.
Key elements of this approach could be that:
POAL’s facilities and other ports are defined as port transit facilities, being facilities
generally servicing cargo kept in shipping containers but with some break bulk, where
any cargo containing hazardous substances is not opened or used as part of general
operations.
The facilities and shipping containers must comply with the requirements of the IMDG
Code.
Provided they comply with IMDG Code, the facilities are also deemed to comply (or are
exempt from compliance) with the relevant hazardous substance regulations under the
Health and Safety Act.
A record keeping system is maintained that can provide, if requested by WorkSafe, a
printout of all the containers containing hazardous substances, and can demonstrate that
these are only present on site for 72 hours. If there is any exception to this timeframe,
for example due to unavoidable delays beyond the control of POAL, so that containers
remain on site for longer, then this would be recorded.
POAL would value the opportunity to meet and discuss the matters raised in this submission with
MBIE and/or WorkSafe as appropriate.
Developing regulations to support the new Health and Safety at Work Act
Ports of Auckland I Submission on MBIE Health and Safety Discussion Document
Chapter 1: Overview
No Page Question Response
Timing and phasing of regulations
1 15 Do you have any comment to offer on the proposed
approach to phasing the development of regulations?
As explained in its general submission, POAL is concerned that the speed
of the process will not allow appropriate consideration of all implications of
the changes.
In particular:
The Discussion document is very high level, and comprises a
large amount of text to have to read through and then to consider
its implications. Thus there is a concern that the process may not
elicit the in-depth feedback to support such changes.
There is a concern that due to the relatively short consultation
period, and their other commitments, many health and safety
professionals would have difficulty making a full and considered
submission on the changes. For example, at an NZISM meeting
on 8 July 2014 attended by approximately 30-35 people working in
various health and safety roles, only 4-5 had actually read all or
part of the Discussion document, while most indicated that they
had not yet had time due to their normal working commitments.
However, without input from active and experienced health and
safety practitioners, it seems unlikely that health and safety
reforms will achieve meaningful improvements. This process
needs more time and a more measured approach.
POAL’s view is that there needs to be time to finalise the legislation (i.e. the new Health and Safety at Work Act) before dealing with the regulations. At the moment, submissions are being sought on proposed changes to the regulations before the over-arching legislative framework
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has been finalised. At this point, the legislative framework is not in place yet so it would be preferable if the regulations were not the subject of submissions until this framework has been finalised, or at least an opportunity given for further input and consultation on the final form of the regulations once the Act has been finalised. POAL notes that Australia is currently conducting a review of the Australian Model Regulations due to a number of concerns that have arisen following attempts to adopt them (by the states that have). These include:
Duties of an officer: do they deter people from taking up an officer role?
Rights of entry and powers of union officials.
Powers of health and safety representatives.
Model Code of Practice: can they be made less complex?
This review process is investigating ways in which model WHS laws could be improved to reduce "red tape" and make it easier for businesses and workers to comply with their work health and safety responsibilities, as agreed by the Council of Australian Governments.
There is a view in Australia that the law imposes unnecessary regulatory burdens around record keeping, notification obligations, first aid requirements, emergency planning, and some plant registration requirements. These points are equally likely to be raised in New Zealand.
POAL believes the Act itself should be finalised, taking these points into consideration, before proceeding with supporting regulations. There seems to be little value in rushing to implement legislation based on an Australian model which looks likely be found, as a result of the review process, to be flawed in a number of respects. Further, any finalisation of the health and safety regulations should be delayed until after the review process has been completed in Australia, currently expected to occur in
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No Page Question Response
2016.
Once regulations have been finalised, implementation should allow
businesses to cope with incremental changes rather than trying to
address a spectrum of changes all at once, each of which is likely to have
an operational and financial impact on the business.
It is noted that WorkSafe NZ (WorkSafe) has signalled its intention to use
regulations to address workplace safety issues rather than Approved
Codes of Practice (ACoPs). If this is the chosen course of action, great
care is needed to ensure the implications of the new Act and proposed
regulations are well explored and understood before formalising the
legislation, because regulations are difficult, slow and costly to change.
Many aspects of regulatory reform would be more suitably addressed
(especially in the early stages of implementing change) in relevant
industry ACoPs, which are far easier and less costly to keep updated, to
review and change as needed. ACoPs are already defacto laws, in that
they are deemed to be what is reasonably practical for PCBUs to be
doing, and they would be referenced in compliance matters and
prosecutions.
Format of regulations
2 16 As a duty holder, do you rely on commercially-printed
hard copies of regulations purchased either from
Legislation Direct or selected retail outlets? Or do you
view or print off your own copies of regulations from
the NX Legislation website as needed?
POAL staff generally prefer to source and use electronic versions,
download them and save on file, to allow them to be accessed or shared
as needed, and only printed if we have to.
Online resources can also be updated more easily.
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3 16 What do you think are the relative benefits and
drawbacks of either: having a single set of Health and
Safety at Work regulations containing all regulatory
requirements in one place; or having multiple sets of
regulations each focusing on a single topic (some of
which will apply to everyone, and others which will
only apply to a select group of duty holders)?
It is useful to have all regulatory requirements in one place as an
integrated system and under the same lead agency, rather than different
parts being managed separately by different government agencies – e.g.
Fire Evacuation Scheme is managed by NZ Fire Service, while HSNO
regulations have requirements for controls related to flammable
atmosphere zones, emergency management plans, etc. If PCBUs have
to refer to many different sources to identify all compliance requirements,
it is likely that some will be missed. Also, having all related requirements
together facilitates ongoing harmonisation and integration when any of
them are updated.
On the other hand, having separate sets of regulations by specific topics
would probably make them easier to access and manage according to
relevance, as well as seeming less onerous to work through and
understand.
Accordingly, the preferred approach is to have a single set of regulations
with one lead agency, but divided into relatively self-contained chapters or
"modules" that can be accessed and understood by different personnel in
accordance with their day to day activities.
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Regulatory offences
4 16 Do you have any comment to offer on the proposed
approach to identifying regulatory offences?
It is important to provide guidance without being too prescriptive. Having
a list that is too prescriptive can lead to ‘blind spots’ if PCBUs and
regulators focus too much on ensuring listed conditions or requirements
are not breached – both groups can become less present and aware of
what else is happening and miss other important issues not covered in the
list, which would make workplaces less safe. Overly prescriptive
requirements may also unduly hinder business activities for little or no
gain in safety matters.
POAL suggest that guidance be provided in relevant codes of practice –
keeping the regulations at a high level, and developing industry codes of
practice to apply them to specific workplaces / industry sectors to ensure
the application of these is relevant and consistent.
A complementary approach is to identify key ‘best practice’ indicators,
prioritise the most significant, and focus on those instead.
Infringement notices
5 17 Do you have any comment to offer on the principles
for identifying which requirements of the new
regulations should be infringement offences?
The proposed limits placed on the infringement notices (minor, issues of
fact, absolute) appear to be appropriate. POAL understands it is
proposed that someone who receives an infringement notice will not be
able to also be prosecuted in respect of the same breach, and supports
this approach.
In addition, the benefits of this regime will depend very much on the spirit
in which these are imposed. There should be provision for some flexibility
for lesser infringements which are promptly addressed and for which there
may be genuine reasons for not complying, and which recognise the
PCBU’s intent to comply, to be let off with a warning which may be
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documented and kept on record by WorkSafe inspectors for future
reference, so ongoing/repeated non-compliance can then be served with
an infringement notice.
This type of dispensation is applied in other aspects of legal compliance
(e.g. drivers let off with a warning for a traffic offence or given or a fine
which may be waived upon completing the required regulatory compliance
action). This should also be an option for WorkSafe inspectors, with clear
guidance around circumstances where this may be used.
6 17 Are there any proposed requirements in the
regulations that you think should be infringement
offences? Which ones, and why?
POAL is concerned that having a list of infringement offences will lead to
regulators 'shopping' for offences rather than judging the breach in the
wider context of the workplace. Removing this judgement from inspectors
would damage the ability of regulators to provide guidance, i.e. where a
listed breach is noted, even if not relevant to safety outcomes at that site,
the expectation would be that an infringement notice is required rather
than a conversation about how to meet the requirements
and achieve compliance.
Equally, as noted above, having a specific list could cause PCBUs and
regulators to focus too much on ensuring listed conditions or requirements
are not breached, and both groups can become less aware of what else is
happening and miss other important issues not covered in the list, which
would make workplaces less safe. However, if there is to be a list of
infringement offences then POAL considers that this should be:
Based on a risk register / risk assessment for work activities common
to a particular industry and should be well known to responsible
business operators, so these key / common risks are appropriately
subject to infringement notices.
Applicable only where compliance requirements are clear, consistent
and unambiguous.
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Applicable where there is evidence of wilful negligence of PCBU’s duty
of care.
Transitional arrangements
7 18 Do you think any of the new regulations will need an
extended period of time to allow duty holders to
comply (i.e. beyond when the proposed new Act and
regulations first come into effect)? Which ones, and
why?
As noted above and in its general submission, POAL considers that the
entire regulatory regime should be given an extended transition period so
that duty holders can come to terms with and comply with the new
requirements.
In particular, any new regulations that require physical changes to
structures and facilities should be accompanied by a transitional regime
(such as to allow a system of approved compliance plans which detail
how compliance will be achieved - as applied in the Hazardous
Substances and Dangerous Goods Transfer Notice 2004).
Duty holders will require an extended period of time to allow for
application of the regulations to their workplace and to achieve
compliance. Regulators will also need time to understand the new
regulations and how these are to be applied in workplaces and enforced.
This statement applies to all the regulations. There also needs to be
understanding and a common approach by regulators across the board to
ensure consistency in interpretation and application.
POAL recommends that MBIE consider a more gradual, carefully phased
implementation of changes that identifies and targets / prioritises high-risk
workplaces / activities first (i.e. applying the "80:20 rule"). This should
also include a ‘grandparenting’ approach where appropriate, with a
reasonable time-frame for making changes, with a requirement to
formulate specific plans for implementation and accountability for working
to the plan. It is unnecessary to take a blanket approach when many
workplaces have much lower risk exposure.
Instead, MBIE and WorkSafe should focus on addressing key issues and
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industries and get those right before moving on to other entities. In this
regard, POAL understands that WorkSafe has indicated its intention to
focus on high hazard activities such as farming and forestry first, and
POAL supports this approach. ACoPs would be expected to address the
specific needs of each industry group or a relevant workplace activity.
WorkSafe needs to ensure appropriate considerations of various
workplaces and put in place processes to ensure appropriate identification
of those needs, as well as identification of relevant stakeholders whose
input is vital to ensuring CoPs achieve meaningful guidance for identifying
appropriate best practice measures.
8 18 Are there any other transitional issues that you think
should be considered? Please explain.
It is not necessary for the regulatory regime to come into force at the
same time as the new Act. Some aspects of the current regulatory regime
are somewhat patchy, uncertain and inapplicable to many businesses and
the new regulations should address this. However, bringing the new
regulations into force without adequate consultation and development
time will create new failings. The impact on workplaces to cope with the
requirements of the regulations needs to be viewed in the context of
workplaces already struggling with the new concepts and change in
emphasis and approach in the new Act.
POAL suggest it would be more effective to identify and target high-risk
industries first. This would allow the ‘wrinkles’ to be ironed out before
compliance requirements reach lower risk and SMEs, and would also
support WorkSafe to be effective with phased / paced implementation of
the new regime.
Ideally, the transitional measures would:
Ensure changes and new sets of requirements are accompanied
by guidance which includes coverage of the ‘why’ behind the
requirements as well as assistance with ‘how’.
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Ensure regulations add value and aid understanding, not just
adding more detail and stipulating tighter control.
Include a ‘transitional window’ to focus on providing assistance to
PCBUs to understand and apply requirements more fully, with less
emphasis on prosecution and fines and more on consultation and
providing assistance to comply. Similarly, PCBUs who are new to
a role should be given a period of lenience in which to become
familiar enough with business activities to be held fully
accountable.
Ensure Employment Relations legislation aligns with the intentions
of Health and Safety Regulations and does not provide
inappropriate protection for workers who do not act responsibly
with regard to their own safety or that of others.
Target high risk workplaces/activities first, applying the "80:20
rule".
Developing regulations to support the new Health and Safety at Work Act
Ports of Auckland I Submission on MBIE Health and Safety Discussion Document
Chapter 2: Regulating general risk and workplace management
No Page Question Response
Managing specified risks to health and safety arising from work
9 37 Do you have any comment to offer on the regulatory
proposal about the process for managing specified risks
to health and safety in the workplace? Specifically, do
you have any comment on the Australian requirements
for reviewing control measures, and which of them may
be appropriate here?
POAL considers that the shift in focus from the management of hazards to the
management of risks is an appropriate one, and our organisation has already
started converting hazard registers to risk registers. But, overall, risk
assessment tools and frameworks relevant to specific industries will be
required for meaningful and consistent risk assessments, which PCBUs can
be held accountable for. This will take some time to develop, agree and
implement.
As a general comment, POAL believes the aim of risk management needs to
be borne in mind, and that the requirement is to avoid risks as far as
reasonably practicable. As set out in its general submission, POAL takes risk
management very seriously, and is committed to becoming a zero harm
workplace. However, it seeks to do this without falling into the trap of
requiring ever greater controls for increasing cost and decreasing benefit, and
recognising that some risks in life cannot be completely eliminated - but can
be managed to minimise harm occurring.
Related to this, we think that a supporting "toolkit", including guidelines,
templates etc, addressing specific risks would be very helpful. Managing risk
can be a fairly abstract exercise; without some relevant tools and guidance, it
is likely that important risk factors could be missed. It is very difficult for
someone to manage things outside their current awareness / understanding.
More emphasis will be needed on building skills / competency in risk
management tools and techniques, including critical thinking.
10 37 What do you think are the main benefits and costs of
this proposal? (Please quantify any impacts identified
The success of this proposal will be dependent on good guidance and training
being available.
Ports of Auckland I Submission on MBIE Health and Safety Discussion Document
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and express in dollar terms to the extent practical). There is likely to be a relatively high cost in the short term associated with
training more people in risk management tools and processes, which is likely
to require qualified expert input to ensure that key risk assessments are
adequate (so there will need to be consideration of competency assessment /
qualifications for those experts).
Health and safety practitioners are often already ‘thinly spread’ across
compliance disciplines, so it is vital to ensure requirements are clearly linked
to demonstrable benefits.
However, the benefits will not be evident until businesses have made the
transition to the new approach, and it has had time to 'bed in'.
Information, training, supervision and instruction
11 38 Do you have any comment to offer on the regulatory
proposal about the provision of information, training,
supervision and instruction?
POAL considers that the requirement that information, training, instruction and
supervision be ‘adequate’ is still vague and unlikely to change effectiveness.
It would be useful for MBIE to seek direct feedback from professionals in the
learning and development field in relation to these planned requirements.
In our view, the key focus of information, training, supervision and instruction
should be on the end result – i.e. the required nature and level of
competence, so development of the requirements should work backwards
from there. For example, rather than making refresher training mandatory for
everyone, it would be better to require periodic demonstration of relevant
competence. If a person remains appropriately competent, a simple
assessment will not only confirm this but will also provide sufficient review. If
a person cannot demonstrate competence, then they should be required to
undergo retraining. It is inefficient and costly to make workers repeat training
they do not need, and it is likely to become another barrier to their
engagement in health and safety matters.
Ports of Auckland I Submission on MBIE Health and Safety Discussion Document
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No Page Question Response
We consider that some of the shortcomings of the existing regime arise from
a lack of in-depth understanding of the learning process on the part of both
PCBUs as well as many training providers.
There is a need to think more carefully about training needs, and what is
required in a given situation. In particular:
More training per se is not always the actual need; sometimes the
need is for more practice, sometimes improved confidence (or
attitude), and to think more carefully about what outcomes will
produce the desired results. Too much emphasis is generally given
to data (i.e. ‘what’) and being able to pass a written assessment,
rather than competence to carry out specified actions to a defined
standard (i.e. ‘how’) and the criteria behind requirements (i.e. ‘why’)
which provides the basis for decision-making and management
actions.
In general, too many organisations rely on third party accreditation of
training (e.g. NZQA) without clarity or certainty about being able to
deliver on the desired outcomes – there is often still a skill gap
despite accredited training. Even the existing standard for Health
and Safety Representative training only requires that learners are
able to demonstrate knowledge (i.e. give the correct answer on the
assessment) rather than being able to demonstrate competency in
any related skills. Until training addresses needs at a behavioural
level, there will be little or no effective change in safety performance.
In addition, health and safety training is often designed and delivered by
SMEs rather than by independent trainers who understand and are competent
in learning and development processes. Therefore, many trainers simply
mirror the sequence and data content of the legislation (the ‘what’), which is
often not in a logical sequence for learning. In addition, simply telling people
Ports of Auckland I Submission on MBIE Health and Safety Discussion Document
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No Page Question Response
information is not a helpful learning process in this context. If training and
competence are to be key features, further consideration is needed for
competence of training providers in learning and development processes, not
just the subject matter. There should be greater focus on ensuring appropriate
competency of trainers, based on best practice adult learning methodologies.
Another area where additional clarity needs to be provided is in terms of who
is responsible for training and supervision in circumstances where there are
multiple PCBUs. As explained in our general submission, the ports are a
complex workplace with multiple different entities operating onsite. While
POAL itself undertakes training in respect of activities in common areas and
common training needs (as outlined below), it should not be responsible for
other specialised training for non-POAL employees operating on its sites.
POAL has a team of internal trainers, who are highly experienced in port
operations (long-term employees with appropriate skills and personal
attributes) accredited by relevant Industry Training Organisations (ITOs) to
deliver and assess according to NZQA standards for common training needs,
e.g. forklift training, height safety, etc.
Port-specific skills training such as straddle driving and crane operations is
conducted entirely internally by the port’s internal trainers, who train,
supervise, assess and continue to coach as needed. The port’s standard
operating procedures have been developed entirely internally, and the
trainers have been selected and developed by POAL managers – it would be
difficult to obtain any third-party accreditation of many processes as they are
so specialised to port operations.
General facilities
12 41 Do you have any comments about the proposed POAL considers the current regulations are sufficiently clear, and that there is
Ports of Auckland I Submission on MBIE Health and Safety Discussion Document
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regulations for general workplace facilities? little benefit in changing this to match the Australian approach.
Again, with complex integrated workplaces like the POAL ports, there is a
need for guidance as to which of the many PCBUs are responsible for which
facilities. This extends beyond the traditional employee / employer
relationship, as there are also contractors, subcontractors, landlords, visitors,
and tenants - lessee relationships to consider.
At POAL there are also (and most likely with other ports) relationships with
tenants such as MPI, Customs, third party stevedores contracted to shipping
lines, who are customers of POAL. Clarity and guidance is required as to
who is responsible for what. Otherwise, there is a risk that each entity
assumes the other is responsible for these matters.
It is also important that the requirements are updated for a modern workplace
and allow for a degree of flexibility or appropriate options for different
circumstances.
13 41 Do you envisage any impacts (positive or negative) as a
result of not specifically mentioning things such as
controlling humidity and air velocity, over-crowding, and
accommodation for agricultural workers in the proposed
regulations?
We consider that these very specific details would be better addressed in
accompanying guidelines or ACoPs rather than regulations, especially as
many will not be relevant to every workplace. Some workplaces will have
operational requirements that mean that environmental conditions must be
kept a certain way, and the solution is to require clothing and equipment (etc)
rather than interfering with this.
Implementation of compliant facilities may require substantial capital
investment from organisations.
First aid
14 42 Do you have any comment about the regulatory
proposal for the provision of first aid facilities? Does the
POAL considers the clarification is a sensible one, to the extent that duty
holders may have been unsure of the requirements.
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proposal differ greatly from how you are interpreting the
current requirements? Please explain.
POAL understood that the current regulations referred to physical facilities,
and the need for training was required by the Act within the detail in the First
Aid Guidance material.
However, it will be important to provide guidance on what will be considered
"adequate" provision, as reasonable people can disagree on things like this.
For example, the regulations (or ACoPs, or other guidance) could suggest a
risk-based ratio of trained first aiders to workers for different kinds of facilities,
or similar.
Emergency plans
15 43 Should some businesses not be subject to the
requirement to develop, maintain and implement an
emergency plan? If so, on what basis (e.g. business
size/number or location of workers/risk type) and why?
All businesses should have an appropriate emergency plan, although for
some businesses it may only be necessary to cover basic things like
evacuation procedures in the event of a natural disaster. Requirements for
emergency plans should be based on risk assessments, which take into
account factors such as scale (ie number of people), activities and context
(environment) in which business activities take place.
The nature and content of emergency management plans should be
commensurate with the nature and scale of the business.
The requirements for emergency plans should take into account the
assessment of risks associated with each situation / scenario, prioritising
those with the highest likelihood of occurring.
16 43 Do you have any other comments to make about the
regulatory proposal for emergency plans?
Emergency planning / management is just a variation of risk management and
relevant to all businesses relative to the nature and scale of their operations.
All businesses should consider potential types of emergencies along with
other workplace risks (safety, other compliance, and general) – and it is likely
that their insurers would expect this as well.
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We also think that emergency plans should not be overly prescriptive or
complicated. They need to be capable of being implemented by staff in
emergency conditions, so should be kept simple and easily understood.
It may also be more appropriate for training in first aid to be in the emergency
planning section, not the general facilities section as proposed.
Personal protective equipment (PPE)
17 44 Do you see any issues with including protective clothing
within the definition of PPE as in the Australian model
regulations?
Most workplaces provide some means of maintaining protective clothing, in
which case it should be considered PPE. Many workplaces provide clothing
such as overalls, which may or may not be required for protective purposes.
It is important for the definition to be clear and restricted to clothing or
equipment used for protective purposes, rather than everyday clothing or
footwear that would be worn in most workplaces.
18 45 Do you think the proposed requirements on PCBUs for
the provision and use of PPE, based on the Australian
model regulations, are clear and detailed enough?
Please give reasons.
The regulations should specify that the primary PCBU (being the PCBU who
hires and pays the worker) is required to provide all required PPE, or to
ensure all required PPE is available – which could allow for arrangements
with the PCBU that engages the contractor to provide it by mutual agreement.
19 45 Do you agree with the proposed amendment to the
Australian model regulations about PPE needing to be
compatible with other required PPE? What is the impact
of incompatible PPE in your area of work? Please give
examples.
The basic requirement is that the PPE must be effective. Compatibility is
inherent in effectiveness, so this addition is not required.
While consideration of compatibility makes sense, and it may be useful to
remind PCBUs of this, it may be better to address in codes of practice rather
than making an additional statement in the regulations.
It may also be appropriate for suppliers to have some obligations to consider
this as well.
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20 45 Do you think it is necessary to continue the current
provisions enabling a worker to genuinely and
voluntarily choose to provide their own personal
protective clothing so long as this does not compromise
their safety? Do you agree to broaden this out to include
all PPE? Please give reasons.
POAL considers that the provisions should be continued, but limited to
personal protective clothing. Protective clothing is usually under the control of
the individual and they can care for it themselves. Protective equipment is
usually under the control of the workplace and often requires special care,
inspection, certification, etc.
The PCBU has the right to set minimum protection standards, as they are the
entity liable for protecting against workplace injuries. Therefore, any voluntary
provision of protective clothing would still need to meet the PCBU’s policies
and standards – ie the employer must still retain the right to determine what is
acceptable for PPE.
It is not practical to allow people to bring in a range of equipment that is then
subject to these requirements. Any PPE supplied by a worker must be
compatible with, and meet all the requirements of, company-issue PPE.
21 46 Do you agree to continue the absolute nature of the
requirement on PCBUs to provide PPE to workers and
other people in the workplace, and ensure it is
used/worn? What are the positive/negative impacts of
this? Please give your reasons.
The absolute duty on a PCBU to provide PPE should remain, however a
PCBU cannot 'ensure' PPE is worn (other than monitoring worksites); that
duty can only fall on the person who is required to wear it.
22 46 Do you agree to maintain the absolute nature of the
provisions on workers and other people in the
workplace to use/wear PPE? What are the
positive/negative impacts of this? Please give your
reasons.
POAL considers it important that this is maintained as an absolute
requirement.
The words 'as far as they are reasonably able' should not be used in relation
to the wearing of PPE. This implies that there are circumstances where a
person could do a job without the required PPE. However, if a person is
unable to use or wear required PPE (that has been deemed necessary by a
risk assessment), then they cannot safely do the work.
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23 47 Are there any other amendments that you think should
be made to the new regulations relating to PPE? Please
give your reasons.
The current employer/employee arrangement around the provision of PPE is
much clearer than the proposed PCBU/worker requirement. It should be
clarified who is required to provide the PPE in what situations. In general it is
most appropriate for the PCBU that employs the worker (i.e. the primary
PCBU who the worker has the most direct relationship with) to be responsible
for ensuring appropriate PPE is provided.
Remote or isolated work
24 48 Do you support the proposal to introduce a specific
requirement on PCBUs to manage risk to the health and
safety of workers doing remote or isolated work? Do
you think this requirement is necessary in the New
Zealand context based on the meaning of remote and
isolated work? Do you have examples of this kind of
work in New Zealand? Please give reasons.
If an additional requirement is to be imposed in relation to this then it should
have a wider focus than just improving communication (which may reduce the
time before problems are identified and communicated, but would not of itself
prevent them from arising).
Another option would be to have remote/isolated workers covered in the
emergency response regulations, as most guidance relates to the
identification and communication of emergency situations.
25 48 Are there other amendments that you think should be
made to the new regulations relating to remote or
isolated work? Please give your reasons.
A clearer definition of what is remote or isolated work is required, and it is
difficult to comment in the absence of this. The discussion document seems
to contemplate physical isolation, ie not being able to get medical assistance
because of the location/time/nature of the work, and the examples given
include farm workers or DOC workers.
While most work associated with the ports occurs at these facilities (rather
than in remote areas), some categories of port workers could be considered
isolated, such as operators of marine vessels (e.g. tugs and pilot boats), and
even potentially crane operators and straddle drivers, due to the structure of
the equipment and the way they are accessed via ladder or lift. To manage
this, POAL already has communications systems in place and personnel
always work in pairs on vessels.
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Managing risk from airborne contaminants
26 49 Do you have any comments to make in relation to the
regulatory proposal for managing risks from airborne
contaminants? Particularly, what do you think is a
reasonable timeframe for keeping records of air
monitoring?
30 years is a reasonable timeframe for businesses that continue to operate,
but a different timeframe should apply to businesses that cease to operate,
i.e. x years after the PCBU ceases to be a PCBU. An alternative to consider
would be to have a centralised official repository for the records where
businesses cease to operate or change their structure. This avoids the risk of
the records being lost in restructuring, take-overs and business failures
(receivership, etc).
27 49 Do you think the proposed regulation for managing risks
from airborne contaminants will impose any additional
costs on PCBUs? Conversely, what are the benefits of
this proposal? (Please quantify any impacts identified
and express in dollar terms to the extent practical).
The requirement to carry out air monitoring is complex and very costly to do in
a way that provides a reasonable comparison with the
workplace exposure standards. We understand there are very few service
providers in NZ that do air quality monitoring from an occupational health
point of view, as most focus on environmental/resource consent testing
requirements.
It is not clear how often the testing needs to be done, or in what
circumstances it needs to be carried out. This requirement should be based
on relevant risk assessments.
It is also not clear how the requirements would apply to hazardous
substances that do not have limits attached.
Hazardous atmospheres
28 51 Do you have any comments in relation to the regulatory
proposals for managing risks associated with hazardous
atmospheres?
In developing these it will be important to check any similar/conflicting
requirements arising from the HSNO requirements for licences/handlers.
POAL stores quantities of paints and petrol, among other substances, that
could trigger a hazardous atmosphere zone. Accordingly, the provisions
relating to hazardous atmospheres may impact on our operations.
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29 51 Do you think the proposed regulation for managing risks
associated with hazardous atmospheres will impose any
additional costs on PCBUs? Conversely, what are the
benefits of this proposal? (Please quantify any impacts
identified and express in dollar terms to the extent
practical).
Current expectations for maintaining a fixed hazardous atmosphere or buffer
zone around fumigation, for example, are impractical for a busy port
environment, especially when it is well away from public access / exposure
and there are few workers actually in the area at any given time, and
fumigation does not take place all the time. Other ports have the entire site
designated as a buffer zone, allowing much greater flexibility to work with
varying volumes of cargo that requires fumigation.
One option to consider would be specifying monitoring during operations
involving hazardous substances that allow people to be alerted if hazardous
substances go above a given threshold level.
30 51 Do you think New Zealand should define an atmosphere
as hazardous: if the concentration of flammable gas,
vapour, mist or fumes exceeds 5% of the substance’s
lower explosive limit (the Australian model approach),
or based on the concentration of flammable gas,
vapour, mist or fumes as classified by AS/NZS
60079.1.10: 2009, or other such standards? Please give
reasons, noting positive or negative effects.
POAL recommends that the requirements be based on a risk assessment
methodology to ensure all limits are relevant to the substance in question.
Relevant details for different substances can be found in the SDSs.
Storage of flammable substances
31 52 Do you have any comment to make in relation to the
regulatory proposal about the storage of flammable
substances at the workplace?
POAL considers that the reference to the "lowest practicable quantity" is
vague and uncertain. There is potential for substantially increased cost
(including potential for tangible costs as well as opportunity costs if low stock
level runs out and can’t be re-stocked in time because of low levels held on
site). The only benefit is perceived lowering of risk, which may be very
difficult to justify.
Most responsible business owners would already be optimising quantities
stored on site based on economic and operational factors. They will have to
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comply with any HSNO controls that attach to the level of substances they
determine is appropriate to store. It is not necessary to add a further level of
regulation to this. A better approach would be to have better policing and
enforcement of existing regulations and arrangements such as compliance
with parameters of Location Test Certificates.
If this proposal is progressed, then POAL seeks that the regulations clarify
that the obligation does not apply to flammable substances that are
temporarily onsite, consistent with the function of the ports as a transit dept
facility.
32 52 Do you think the proposed regulation for the storage of
flammable substances at the workplace will impose any
additional costs on PCBUs? Conversely, what are the
benefits of this proposal? (Please quantify any impacts
identified and express in dollar terms to the extent
practical).
Any requirements to retain extensive documentation as proof of consideration
of ‘minimum practical levels’ would impose unnecessary cost. The Location
Test Certificate regime already has a framework to determine requirements
for safe handling and use on site within the PCBU’s existing business
activities.
This issue should be left for inclusion in an ACoP, as a relevant matter to
consider in minimising risks and ensuring a safer workplace more generally.
There is no need for an additional separate regime.
Falling objects
33 53 Do you have any comment on the regulatory proposal
about managing the risk of falling objects?
The focus of the proposed regulation seems to be on circumstances where
the falling object is likely to injure. There are very few things in the workplace
that would not cause injury if they were to fall so this regulation would be very
widely applied.
The current regulation focuses on 'loads' that have been lifted and can be
supported from underneath. Without the detail, the proposed regulation
appears to be looking at a much broader category of falling objects, i.e. hand
held tools, etc. This is not made clear in the discussion document and the
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introduction of controls for 'falling objects' needs to be much more clearly
signalled than it currently is.
If the new approach covers all falling objects then the requirements will not be
'very similar', as suggested in the Discussion Document - they will be greatly
increased.
Other general hazards at any workplace
34 54 Do you have any comment on the regulatory proposal
about managing risks associated with hazardous
containers and loose but enclosed materials?
No further comment.
Managing health and safety risks to young people
35 56 Do you have any comment on the regulatory proposal
about carrying over the current provisions for young
persons?
Protection for young people should be transferred to the new regulations and
enhanced with clarification and guidance to support the regulatory
requirements.
POAL does not normally hire anyone under the age of 18, but this does occur
on occasion with family members of current/existing employees.
36 57 How do you think regulation 61 of the current
regulations relating to the use of tractor for agricultural
work by 12 year olds should be transferred to the new
regulations? Do you think that this exception should be
removed? Please give your reasons.
No further comment.
37 57 Do you think there should be a provision in the new
regulations prohibiting people younger than 15 years of
age from working in an area where hazardous
substances are manufactured, handled or sold? Please
Yes. Young people should not be working around hazardous substances.
However, this should not automatically cover places where they are sold, or
the purchase of these substances. The focus should be on manufacture or
handling.
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give your reasons.
Duties on limited child care providers
38 58 Do you have any comment to offer on the regulatory
proposal about limited child care providers?
This requirement would be better placed in the appropriate early childhood
regulations and changes to scope of the relevant regulation should be made
to allow this to occur rather than the compromise proposed.
Developing regulations to support the new Health and Safety at Work Act
Ports of Auckland I Submission on MBIE Health and Safety Discussion Document
Chapter 3: Regulating worker participation, engagement and representation
No Page Question Response
Changes to work groups
39 68 Do you have any comments on the proposed procedure
for determining or varying work groups where there is
one PCBU?
The requirement to determine workgroups is overly administrative and should
not be a necessary step in the process. It should be possible for workplaces,
if they chose, to go ahead with representatives or committee without having to
define workgroups, i.e. set a representation level at a percentage of the total
workforce.
The requirement to start negotiations with 14 days may be appropriate but
there is a need to recognise that actually agreeing is likely to take longer than
this.
Other tasks, such as identifying the role of the representative, need to occur
first, in order to develop a shared understanding of the purpose before
negotiations commence.
Negotiating work groups for multiple businesses
40 69 Do you have any comments on the proposed process
for determining work groups where there are multiple
PCBUs?
POAL considers that it would be preferable to provide guidance rather than a
prescriptive requirement.
Effective participation systems should be allowed to develop in a way that
provides representation to the entire workplace, based on the skills,
experience, systems and practices of those involved, without that being
limited by the specific workgroup of the individual at a point in time.
Who can be a Health and Safety representative
41 69 Do you have any comments on the proposed eligibility
criteria for a Health and Safety representative?
It is not necessary that a health and safety representative be a worker
alongside the people they represent; there are other factors more relevant
such as their knowledge of the workplace or similar workplaces and their
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personal skills and the relationship they have with the people they represent.
The election process for Health and Safety representatives
42 70 Do you have any comments on the regulatory proposals
for the election process for health and safety
representatives?
In the case where there are no nominees, the employer should be able to
appoint a representative until such a time as someone genuinely puts
themselves forward for nomination. In order to achieve an effective and
durable participation system, the PCBU should be able to be much more
involved in the design and planning for the election process than is currently
proposed.
Term of office
43 71 Do you have any comments on the regulatory proposal
about the term of office of three years? It is not clear if this is intended to be a maximum or minimum term, or why it
would be necessary to stipulate this in regulations.
If limits are to be set, then we suggest that there be a minimum of one year
but allow each workplace to determine the appropriate term of office and
include it in its charter. A period of 3 years may be longer than people are
willing to commit to, and the reality is that representatives may need to be
replaced more frequently than this due to role changes, promotions, maternity
leave, resignation, etc.
Training of Health and Safety representatives
Types of training
44 72 Existing trained Health and Safety representatives are
able to issue hazard notices – what additional training
do you think is required in order for these Health and
Safety representatives to issue PINs and direct unsafe
work to cease, if any? Please give your reasons.
If the term is set at three years, and refresher training is considered
unnecessary, one training course every three years for each representative
should be the minimum requirement. The current training adequately covers
the issue of improvement notices and directing unsafe work to cease.
It will be important for people in this role to possess strong communication
and interpersonal skills, including in terms of managing conflict. Their
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experience should be competence-based, not just theory, and they should be
familiar with methodologies for ensuring facts are established before
proceeding to issue PIN, rather than jumping to conclusions.
The industrial relations aspects of Health & Safety Representatives issuing
hazard notices, PIN, cease work orders, etc must be taken into account – for
example, it is important to ensure this role and these processes are not used
to advance purposes other than genuine health and safety concerns.
45 72 What essential content needs to be covered in training
for Health and Safety representatives to have enough
knowledge to effectively carry out their functions and
powers? Please give your reasons.
Essential content includes the role of the representative, problem solving,
expectations, the manager's role, legislation basics, etc. It is essential that
representatives understand the health and safety systems and employee
participation arrangements in their own workplace. For this reason, the
training should be able to be delivered in-house as long as it meets the other
content requirements. As noted above, the training needs to ensure that the
representatives are able to demonstrate operational competence as well as
theory.
Skills / behavioural competency-based assessment would add real value and
create greater engagement from PCBUs.
POAL considers that training should focus more on responsibilities of Health
& Safety Representatives, rather than just their rights, and also provide clarity
about the purpose and intent of the role.
46 72 How do you think Health and Safety representative
training should be delivered, for example online or face-
to-face? Please give your reasons.
POAL considers that it could be either, or blended, so that some components
are face to face as appropriate while others are online (which is more efficient
in terms of time commitments and travel, etc). Online training is more flexible
and able to be fitted around other work commitments, but some things are
better taught and assessed in face-to-face learning, particularly where
appropriate assessment of competency calls for demonstration of behavioural
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skills.
It is also important to consider the learning styles and needs of the target
audience. For example, manual workers tend to be more kinaesthetic
learners, who prefer tangible, hands-on exercises to learn skills, rather than
having to rely on theoretical treatment of training topics.
However, we believe the more important concern is learning needs analysis
and training design. There should be sufficient flexibility for training to be
designed and delivered according to requirements of the workplace, and
assessments should include requirements to demonstrate competence in
practical and realistic application of knowledge in the workplace – e.g. like the
NEBOSH IGC3 requirement to go back to the workplace, identify a minimum
number of hazards and recommendations for corrective actions with
timeframes, then write them up in a management report.
In addition, it is important that training design is undertaken by people who
have appropriate learning and development skills, and that training objectives
identify meaningful skill-based criteria for assessing competency – i.e. not
simply answering theory questions - and require behavioural demonstration of
appropriate competency. In our experience, many training providers lack
appropriate instructional design skills, and many organisations do not have
the ability to check for these. As a result, many trainings do not deliver
sustainable changes or improvements.
Setting training requirements
47 72 What level of experience and qualifications must the
training organisation have in order to provide training for
Health and Safety representatives? Please give your
reasons.
The trainer should have experience in facilitating employee participation in the
workplace to the extent that they personally understand the training needs of
the participants and can respond to questions about real work situations.
Fundamentally, they need to be able to demonstrate competence in the
design and delivery of adult learning processes, rather than just being subject
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matter experts. They should also provide those on the course opportunities to
practice the core skills, and competency assessment should include
appropriate behavioural-based assessments.
48 72 What assessment should Health and Safety
representatives have to undergo, if any, as part of their
training to be able to exercise their powers and
functions under the proposed new Act?
They should be assessed as competent in the technical details of their role
and demonstrate awareness and appropriate behavioural competence of the
other skills required to do the role successfully.
Any written test needs to consider application of knowledge. Anything skill-
based requires practice and assessment of carrying out the task.
Access to training
49 73 Do you have any comments on the proposed process
for Health and Safety representatives to access training
and the PCBU’s obligations for training?
If the PCBU is to pay for the course, then the PCBU should be ultimately able
to choose the course / provider (after discussions with the representatives),
given that all providers are required to meet the same minimum requirements.
This would enable workplaces to build up a relationship with a provider who
understands their workplace and who provides consistent training with
comparable resources to all representatives in the workplace.
Where there are multiple PCBUs, then their contribution to funding training
should reflect the nature of their relationship with the representatives (ie
primarily costs should be met by employers as the primary PCBU for that
worker), rather than being paying equal proportions as proposed in the
Discussion Document.
PCBU should have input to ensure training content is appropriately tailored
and relevant to their workplace.
Ceasing to be a Health and Safety representative
50 74 Do you have any comments on the proposed reasons
for someone to cease being a Health and Safety
A shorter term of office would reduce the need to regulate this - if
representatives do not perform, then they will not be re-elected. A shorter
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representative or the process for workers to remove a
Health and Safety representative from office?
PCBU pays for training - should have more say in this,
not just workers.
term would allow for performance issues to be responded to by the workers
through the existing election process, reducing the conflict within a workplace
and the need for regulatory involvement in the workplace.
A process should be defined by which the PCBU can remove a Health &
Safety Representatives from office, as a last resort, with appropriate rights of
appeal and a means of mediating any conflicts which cannot be resolved
between the PCBU and Health & Safety Representatives.
51 74 Do you have any other comments on the regulatory
proposals for Health and Safety representatives?
In general, the proposals are overly administrative and do not reflect the level
of employee involvement that is currently taking place in many workplaces.
This may reflect the different context of the Australian regulatory and labour
environment.
The regulations should encourage participation and cooperation; at present
they risk drawing a line between workers/unions and others in the workplace.
Health and safety committees
52 75 Do you think PCBUs must be required to appoint at
least one person to the Health and Safety committee
who has delegated authority to make decisions on
health and safety matters? Please give your reasons.
Decisions on health and safety issues are often complex. A health and safety
committee may not always have the right mix of people and resources to
make these complex and sometimes difficult decisions.
POAL's current practice is that health and safety committees make
recommendations to managers, for decision and implementation. For a large
organisation such as POAL, a work group health and safety committee may
not have sufficient awareness or experience of other work groups that might
also be affected by decisions and actions, so recommendations are typically
noted in the minutes and forwarded for consideration as appropriate.
POAL is concerned that if health and safety committees have final decision
making powers or delegated authority, they may not make the most
appropriate decisions. Instead, the committee should have a process for
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agreeing on recommendations that can be passed to the relevant decision
maker, who may or may not be on the committee.
There should always be at least one person in a health and safety committee
who also attends the management meeting or safety forum at the next level
(such as POAL’s Safety Steering Committee), who can table issues that
cannot be decided at the lower level. Likewise, they can communicate key
messages from higher level meetings to worker level committees.
This approach is most appropriate given that the PCBU has key
responsibilities for providing a safe workplace. The PCBU should have the
final responsibility to finalise policy.
53 76 Do you have any comments on the proposed
regulations regarding Health and Safety committees?
The regulations and any guidelines need to provide sufficient direction to
ensure that representatives and committees use their strength in identifying
issues and generating possible solutions rather than being tasked with
document review and administrative responsibilities.
It would be helpful for MBIE/WorkSafe to provide guidelines for the health and
safety committee charter to ensure adequate coverage.
It would be also be appropriate to allow for employee representation/health
and safety committee issues to be merged with other meetings where key
health and safety issues are raised - using guidelines or a CoP to outline how
to do this effectively and what evidence is required. As long as health and
safety is adequately covered by CoP or appropriate guidelines, there should
not be a rigid requirement to hold an additional meeting.
Issue resolution
54 77 Do you have any comments on the proposed situations
where an inspector may make a final decision about a
Disruptions to business can be crippling if Health and Safety Representatives
use their role in an adversarial manner for political purposes. There should be
clear guidelines to prevent PCBU being ‘held to ransom’ in this way – for
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matter? Please give your reasons. example, by detailing a clear process with steps (with clear criteria for each)
such as:
1. Consultation period.
2. Hazard Notice.
3. Inspector Mediation only as a last resort.
POAL is concerned that inspectors may not have the appropriate mediation
skills or familiarity with the dynamics of a workplace to assist in resolving a
stalemate. As such, inspectors should only be involved in these processes as
a last resort.
Keeping these decision-making arrangements within the workplace will
increase engagement and speed to resolution. The role of the regulator
should be to regulate, i.e. to advise whether the Act and the Regulations are
being complied with, and to take action in the event of actionable non-
compliance.
55 77 Do you have any further comments that you would like
to make on the regulating of worker participation?
There is a significant learning need for people with responsibilities for
engagement with representatives and committees. Access to training on
worker participation should also be available to PCBUs and others with
leadership roles within the organisation. This is one of the weaknesses of the
current provisions and has not yet been addressed.
Overall, it is imperative to ensure training requirements also address skills,
e.g. leadership, communication, conflict resolution and so on.
Developing regulations to support the new Health and Safety at Work Act
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Chapter 5: Regulating work involving hazardous substances
No Page Question Response
Inventory of hazardous substances
104 110 Do you have any comments in relation to the regulatory
proposal requiring a PCBU to prepare and maintain an
inventory of hazardous substances?
A Hazardous Substances Register can be thought of as a very specific part of
the PCBU’s overall Hazard / Risk register, so it is generally a reasonable
requirement and a useful management tool. POAL currently has hazardous
substances registers in each operational area.
However, the requirement for such an inventory should only apply where
hazardous substances are owned/used by the PCBU, and the requirement
should specifically exclude cargo in transit, because inventory of transiting
cargo is changing all the time with cargo movements. The regulations should
clarify that the ability to provide a report detailing goods and quantities on
hand at any time via cargo tracking IT systems is sufficient.
Having said that, POAL systems currently keep track of quantities of
hazardous substances cargo on site according to conditions of its location test
certificate. Some substances are managed as specific substances
(individually), while others are managed only by their Dangerous Goods (DG)
classification (grouped). The senior shift manager currently receives daily
reports indicating current quantities on site relative to limits set by the
Location Test Certificate.
It would be useful for MBIE to provide templates, guidelines, tools etc for
developing a suitable inventory (i.e. best practice examples).
105 111 Given that this proposal seeks to codify existing good
practice, do you think the proposed regulation, requiring
a PCBU to prepare and maintain an inventory of
In designing the requirements here, as in other areas, it is important that
requirements should be determined by risk assessment rather than
prescribed as ‘one size fits all’ approach. A well-designed inventory / register
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hazardous substances, will impose any additional costs
on PCBUs? Conversely, what do you think are the main
benefits of this proposal? (Please quantify any impacts
identified and express in dollar terms to the extent
practical).
provides a useful tool to assist effective management of hazardous
substances as long as it is relevant to workplace activities, and aids
management of hazardous substances rather than simply adding additional
record-keeping activity.
In addition, substantial costs may be incurred if stock management systems
required modification.
Finally, the inventory requirement should specifically address the
requirements for cargo in transit (e.g. port facilities), as quantities are very
transient and facilities are not aimed at long-term storage, making a fixed
inventory impractical. In POAL’s case, the computer system provides daily
reports advising quantities held and time frames. The regulations should
confirm that this level of reporting and record-keeping is appropriate and
acceptable.
Management of risk to health and safety
106 112 Do you have any comments in relation to the proposed
regulations setting out processes and considerations for
managing the risks to health and safety associated with
using, handling, generating or storing a hazardous
substance at a workplace?
In our view, responsible duty holders should be doing this already.
However, POAL seeks clarification that requirements must be in proportion to
the actual activity being carried out – i.e. risk assessment and requirements
relevant to scale of risks. In a port or cargo transit facility, the exposure risks
of workers are very different compared to those working with hazardous
substances in a manufacturing environment. This should be clearly set out in
regulations and / or accompanying ACoPs.
Annual review of these processes should be set as a minimum; where there is
higher risk, reviews should be more frequent. It would be useful for WorkSafe
to provide guidelines and tools for conducting effective reviews, so that this
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does not become simply another administrative exercise that fails to add any
value.
Transportation of substances in a shipping container also presents different
(lower) risks to a shipment of loose drums, etc, and this should be taken into
account.
We note that hazardous substances sourced from overseas may be
accompanied by SDSs that do not entirely meet NZ’s regulatory
requirements, and not all suppliers are willing to format them according to
NZ’s regulatory requirements, especially as NZ represents a relatively small
market. If NZ businesses have to create new documents for every imported
substance, it is likely to incur a large cost to organisations using or marketing
them, and there is a risk of inaccurate information being used if they have to
rely on sources like the internet to obtain the required data.
It is important that steps (such as training or other guidance from WorkSafe)
are taken to keep PCBUs abreast of further developments and improvements
that should trigger a review. This will be especially important where
chemicals and hazardous substances are not the main focus of their core
business.
107 113 Given that employers are currently required to manage
significant hazards in accordance with sections 8 — 10
of the HSE Act, do you think that the proposed
processes and considerations for managing the risks to
health and safety associated with hazardous
substances will impose any additional costs on PCBUs?
Conversely, what do you think are the main benefits of
this proposal? (Please quantify any impacts identified
Responsible employers should already be identifying and managing
significant hazards. Risk assessment should be the basis for managing these.
However, we suggest it is important to identify the specific obstacles or root
causes of present non-compliance, otherwise this level of non-compliance
under the existing framework is unlikely to change. Reliance on fines or other
punishments is unlikely to achieve compliance – much research has shown
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and express in dollar terms to the extent practical). that negative and uncertain consequences are not sustainable motivators.
PCBUs not currently managing these processes effectively will incur costs to
set up. Smaller PCBUs may not be complying at present because of the
associated costs and availability of resources; more prescriptive requirements
are unlikely to change this.
It will also be important to ensure adequate tools, guidelines and other
support are provided for PCBUs, to assist them in understanding and
achieving the compliance requirements.
Management of risk associated with physicochemical hazards (controls on class 1 to 5 substances)
108 113 Do you have any comment to make about the regulatory
proposal to transfer the requirements of the Classes 1
to 5 Controls regulations and parts of the Dangerous
Goods and Scheduled Toxic Substances transfer notice
into the new regulations?
POAL considers that it makes sense to manage all hazardous substances
under one regime.
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109 113 Do you think there are any immediate improvements
that should be made to the controls on class 1 to 5
substances that are being transferred into the new
regulations before the review is carried out?
The requirements for management of workplace safety risks should also refer
to hazardous substances, and be supported with ACoPs and other tools.
There is a need to ensure the regime makes it easy to incorporate changes /
updates to international standards so that New Zealand maintains alignment
with current versions of international conventions. Current HSNO regulations
refer to a number of now-outdated standards.
POAL considers it especially important to bring New Zealand's regulatory
framework for managing all hazardous substances into alignment with Global
Harmonisation and other internationally recognised standards such as IMDG
Code.
As set out in its "general submission", POAL seeks that provision is made in
the new regulations and codes of practice for "back up" facilities associated
with transit depots, for those instances when it is necessary to retain goods
on site for more than the standard 72 hours (i.e. for reasons outside of
POAL's control).
Management of risk associated with fireworks, safety ammunition and other explosives
110 114 Do you have any comment to make about the regulatory
proposal to transfer the requirements of Schedules 4, 5
and 6 of the HSNO Fireworks, Safety Ammunition, and
Other Explosives Transfer regulations into the new
regulations?
This should be ‘business as usual’ for POAL. It makes sense to transfer
requirements over ‘as is’ for now and conduct an in-depth and more
considered review at the second phase.
111 114 Do you think there are any immediate improvements
that should be made to the controls on fireworks, safety
ammunition, and other explosives that are being
No further comment.
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transferred into the new regulations before the review is
carried out?
Management of risk associated with health hazards (controls on class 6 and 8 substances)
112 115 Do you have any comment to make about the regulatory
proposal to transfer regulations 7 — 10 and 29 and 30
of the HSNO Classes 6, 8 and 9 Controls regulations
into the new regulations?
The proposed change suggests ‘more specific’ controls, but does not
elaborate further on what this will mean. This needs clarification.
Given that environmental protection controls will not be carried over to the
new health and safety regulations, clarity is also needed on what provisions
will be made, and whether workplaces will still have to report to more than
one agency. For example, guidance is needed on which one will take
precedence if conflicts arise and how these will be resolved.
113 115 Do you think there are any immediate improvements
that should be made to the controls on class 6 and 8
substances that are being transferred into the new
regulations before the review is carried out?
POAL seeks that controls should always be applied according to appropriate
risk assessment, rather than rigidly prescriptive ‘one size fits all’. This may
mean a greater role for ACoPs in specifying the detail, so that different
requirements can be applied to different contexts in accordance with the level
of risk.
As set out in its general submission, POAL seeks that the concept of a 'transit
depot' is also applied to Class 6-8 substances.
114 115 Do you think that workplaces storing classes 6.1A, 6.1B,
and 6.1C (substances that are acutely toxic) and class
6.7A (substances that are known or presumed human
carcinogens) should be required to establish a
hazardous substance location and obtain a test
certificate for that location?
As explained in our general submission, POAL has been working to
separation distances as set out in the IMDG Code and seeks to be able to
continue this practice for practical reasons.
HSNO regulations do not currently specify a separation distance between
Class 3 substances stored in metal containers and Class 8 substances with
metal corrosive properties. This would be an appropriate requirement where
quantities exceed threshold quantities determined by a relevant / appropriate
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risk assessment.
Leaks / spills are covered by emergency management requirements.
Handling is currently covered by regulatory controls.
POAL considers that the main risks arise through handling and use (e.g. in a
manufacturing environment), rather than transport and temporary storage. In
particular, toxicity risks are dosage-related so are not a relevant consideration
for (temporary) storage conditions of a transit depot facility.
There is currently no explicit requirement to verify exposure monitoring for
workers handling or using toxic substances. POAL considers there should be
consideration of conditions which trigger the requirement for third party (i.e.
independent) assessment of appropriate arrangements for management of
class 6 (toxic) and class 8 (corrosive) hazardous substances.
Management of risk associated with fumigants
115 115 Do you have any comment to make about the regulatory
proposal to transfer the requirements of Schedules 2
and 3 of the HSNO Fumigants transfer notice into the
new regulations?
This appears to indicate business as usual – no changes anticipated for
POAL.
116 116 Do you think there are any immediate improvements
that should be made to the controls on fumigants that
are being transferred into the new regulations before the
review is carried out?
No immediate improvements to regulations identified.
However, longer term (i.e. through the review process) there may be a need
to review the strict application of fumigation buffer zones in the working port
environment. A more flexible approach would be appropriate, given the
affected areas are not accessible by the public, set well away from site
boundaries, and are not enclosed spaces.
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POAL understands that the Port of Tauranga has its fumigation buffer zone as
the entire port, which would be appropriate for POAL also.
POAL would welcome the opportunity to discuss these issues with
MBIE/WorkSafe during the second phase of the review, unless it can be
resolved through this process.
Requirements for labelling
117 116 Do you have any comment to make about 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 (8 to 30, 32 and 33) and the
HSNO Emergency Management regulations (8 to 10)?
There is a need to ensure labelling requirements clarify specific requirements
and relevant exceptions / exclusions for a transit depot such as the ports, and
that requirements are reasonable and appropriate for cargo handling in
shipping containers. These aspects are currently managed by POAL
according to the IMDG Code; any further requirements would be considered
excessive and out of step with international practice.
118 115 Do you think there are any other immediate
improvements that should be made to workplace
labelling requirements?
The principal requirements should be limited to workplaces where hazardous
substances are unpacked, decanted or otherwise removed from
manufacturers’ packaging – then PCBUs should be required to ensure
continuity of labelling information to all subsequent containers, using labels,
placarding or other identifiers supported by appropriate training and
supervision.
However, labelling requirements for cargo in transit should be commensurate
with the risks and need for information.
Requirements for safety data sheets
119 118 Do you have any comments in relation to the proposed
regulations requiring a PCBU to obtain and make
available the current safety data sheet for a hazardous
SDSs were intended for technical users rather than workers – they use
technical terminology and jargon, and they often include extensive detail
which is not directly relevant to workers. POAL suggests that the key focus
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substance? should be on conducting a risk assessment for the substance and its use, and
ensuring workers have access to appropriate information relative to those
risks, then providing sufficient training and supervision to understand risks
and relevant control measured. Product safety cards or similar may be more
appropriate for many groups of people.
In the port environment, SDSs and other information is accessible via
shipping documentation lodged for import/export, but these are not held on
file on site due to the sheer numbers of different substances transiting the
port. This system should be sufficient to meet the needs of a transit depot
such as the port.
The use of a standardised format (i.e. template provided by MBIE) for SDSs
would assist users to find required information when needed.
120 118 Do you think the proposed regulations, requiring a
PCBU to obtain and make available the current safety
data sheet for a hazardous substance, will impose any
additional costs on PCBUs? Conversely, what do you
think are the main benefits of this proposal? (Please
quantify any impacts identified and express in dollar
terms to the extent practical).
Many SDSs for materials sourced from overseas do not meet NZ’s regulatory
requirements and would need to be re-worked to make them compliant.
The Discussion Document states that this requirement would not apply to
hazardous substances that are transiting a workplace while goods are being
loaded or unloaded from a vehicle. POAL seeks to confirm that this is also
the approach taken where goods are transiting a storage depot facility (such
as a port).
Any substances held and used by POAL will have SDSs provided by
suppliers as per the regulations, and POAL is therefore comfortable with the
requirement with respect to those hazardous substances.
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Requirements for signage
121 118 Do you have any comment to make about the regulatory
proposal to transfer the existing signage requirements
set out in the HSNO Identification regulations (51 and
52), and Emergency Management regulations (42) into
the new regulations and merge into a single obligation?
POAL supports merging these requirements into a single set of obligations
under the new regulations – i.e. keeping Identification (signage) requirement
together with other emergency management requirements. This should be
achieved in a manner that ensures overall clarity and complete alignment.
For example, group standards may currently differ in some respects from
emergency management obligations - a single standard should be made clear
and consistent for all cases.
Once again, it is also necessary to ensure appropriate specific consideration
of the port as a transit depot, so that emergency response requirements
imposed are not impracticable in the port environment.
122 119 Do you think there are any immediate improvements
that should be made to the signage requirements that
are being transferred into the new regulations before the
review is carried out?
POAL seeks that transit depots are specifically exempted (or treated
specifically within the existing parameters of port operations and taking into
account the established practice of following IMDG Code for managing cargo
in transit on the port site), so that the requirements reflect actual risks and
represent what workers need to know.
Requirements applying to compressed gases
123 119 Do you have any comment to make about the regulatory
proposal to transfer the requirements of the HSNO
Compressed Gases regulations into the new
regulations?
Compressed gases in cylinders are mainly used and stored by POAL's
Engineering department.
Tanktainers are used for some cargo shipments of gases. This transfer
should not result in any additional requirements for POAL, if transferred ‘as-
is’. The current system appears to be working well.
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124 119 Do you think there are any immediate improvements
that should be made to the requirements for the design,
manufacture, verification, testing, and filling of
compressed gas containers that are being transferred
into the new regulations before the review is carried
out?
POAL does not seek any immediate changes in this area; the current system
appears to be working well.
Requirements applying to tank wagons and transportable containers
125 119 Do you have any comment to make about the regulatory
proposal to transfer the requirements of the HSNO Tank
Wagons and Transportable Containers regulations into
the new regulations?
POAL does not anticipate that this would result in any changes to its
operations, provided that the current exemptions for transit depot facilities are
continued.
126 120 Do you think there are any immediate improvements
that should be made to the requirements applying to
tank wagons and transportable containers regulations
that are being transferred into the new regulations
before the review is carried out?
POAL seeks that transit depots be specifically exempted in the new
regulations.
Requirements applying to stationary container systems
127 120 Do you have any comment to make about the regulatory
proposal to transfer Schedule 8 of the HSNO
Dangerous Goods and Scheduled Toxic Substances
transfer notice into the new regulations?
POAL considers that it is sensible for the hazardous substances requirements
to be contained in the same regulations.
128 120 Do you think there are any immediate improvements
that should be made to the requirements applying to
POAL does not seek any immediate improvements in this area.
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stationary container systems that are being transferred
into the new regulations (before the review is carried
out)?
Requirements applying to laboratories
129 120 Do you have any comment to make about the regulatory
proposal to transfer the HSNO Exempt Laboratories
regulations into the new regulations?
This matter is not relevant to POAL.
130 120 Do you think there are any immediate improvements
that should be made to the requirements applying to
laboratories that are being transferred into the new
regulations before the review is carried out?
This matter is not relevant to POAL.
Tracking highly hazardous substances
131 121 Do you have any comment to make about the regulatory
proposal to transfer the HSNO Tracking regulations
excluding regulation 4(2)) into the new regulations?
POAL does not have any specific concerns with this proposal, on the basis
that this function appears to impact the importer (i.e. shipping lines) rather
than POAL directly.
132 121 Do you think there are any immediate improvements
that should be made to the tracking requirements that
are being transferred into the new regulations before the
review is carried out?
POAL notes that the requirements for tracking are generally managed through
shipping documentation.
POAL seeks that the special circumstances of transit depots are clearly
addressed, or that transit depots are explicitly exempted from the
requirements which are primarily aimed at handling and using tracked
substances.
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Emergency management
133 122 Do you have any comment to make about the regulatory
proposal to transfer the existing emergency
preparedness requirements set out in the HSNO
Emergency Management regulations (21 — 41) into the
new regulations?
This proposal should not require any changes to POAL's existing
arrangements if they are transferred ‘as-is’ from the HSNO regulations. There
should be explicit consideration (exemption) of the port as a transit depot.
POAL considers that it makes sense to have emergency preparedness in the
same set of regulations as other safety requirements, as these all relate to
identifying, quantifying and managing risk exposure.
However, POAL considers that two clarifications are required, as to:
whether relevant HSNO Gazette Notice changes will be transferred
as well as these regulations. All regulations should be consistent
and kept together in the same set of regulations.
roles and responsibilities of PCBU vs landlord – which are relevant
for managing third party activities on site POAL considers it
inappropriate for a landlord to be required to become deeply
involved in responsibilities of a tenant as PCBU of its own business,
but the boundaries, expectations, responsibilities, and so on of each
should be defined as clearly as possible to avoid gaps and provide a
measure of certainty for both parties.
134 122 Do you have any comment to make about the regulatory
proposal that an emergency response plan, or any part
of an emergency response plan, could be part of any
other management documentation for an emergency
whether — required by the general risk and workplace
management regulations made under the proposed new
Act; or required by some other Act; or undertaken by a
PCBU for some other reason?
Again, POAL considers that it is sensible to have emergency preparedness in
the same set of regulations as other safety requirements, as these all relate to
identifying, quantifying and managing risk exposure.
However, POAL seeks clarification as to whether this proposal relates to
having an integrated emergency management plan – which is another
regulatory requirement for emergency management – e.g. Approved Fire
Evacuation Scheme. There is a need to avoid duplication where possible.
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135 122 Do you have any comment to make about the regulatory
proposal that an operator who is required to prepare an
emergency plan for a major hazard facility in
accordance with new regulations covering major hazard
facilities would not be also required to prepare an
emergency plan by the new regulations covering work
involving hazardous substances?
POAL agrees that one or the other of these two requirements would be
sufficient - it does not make sense to duplicate these.
POAL also seeks confirmation that its port facilities are not subject to the
requirements applying to "major hazard facilities". Although there may be
high volumes of hazardous substances on site at any given time, the risk is
lower because this is a transit depot handling bulk cargo only (kept enclosed),
therefore the risk exposure is much lower.
136 123 Do you have any comment to make about the regulatory
proposal to require a PCBU to revise their emergency
response plan, if the Fire Service makes a written
recommendation about the content or effectiveness of
the plan?
POAL considers that if "revise" in this context means ‘review and consider’,
then this requirement is acceptable as is.
It is reasonable to consider Fire Service input into emergency plans, but
decisions also need to take into consideration business activities and needs
more generally, rather than being made in isolation. In other words, POAL is
comfortable with a requirement to enter dialogue with the NZ Fire Service, but
considers that changes should not be dictated by NZFS.
In addition, there is a need for clarification as to the specific responsibilities
and liabilities of landlord / business operator when PCBU is not the owner of a
premises.
Emergency plans cover the organisation’s actions in an emergency.
However, emergency services manage their own actions in an emergency,
not the organisation’s.
POAL does not believe it is appropriate to place NZ Fire Service in the role of
acting as regulator, which this proposed change would in effect be doing.
NZFS should make its recommendations and the PCBU should be required to
consider them. However, if NZFS has concerns about the PCBU’s
arrangements which are not addressed appropriately by the PCBU, then there
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should be a process for working through WorkSafe as the regulator.
137 123 Do you think that we should retain the current
prescriptive list of matters to be addressed in an
emergency plan (as set out in regulations 29 and 30 of
the HSNO Emergency Management regulations) or
should we adopt the more flexible list of matters used in
Australia regulation 43 of the Australian model
regulations)? Why/why not?
POAL supports adopting the more flexible Australian approach. This allows
greater adaptability around business requirements, so that specific
requirements can be developed and incorporated into relevant codes of
practice to assist implementation and clarify relevant best practice.
Importantly for POAL, this approach also allows arrangements to be based on
risk assessment relevant to each workplace.
138 123 Do you think that we should retain the current
prescriptive set of requirements in relation to fire
extinguishers (as set out in regulations 21 — 24 of the
HSNO Emergency Management regulations) or should
we adopt the more performance-based requirements
used in Australia (regulations 359 and 360 of the
Australian model regulations)? Why/why not?
POAL supports the more performance-based Australian approach, because
this is more realistic and more adaptable, allowing requirements to be more
relevant to specific risks of given workplace.
139 123 Do you think there are any immediate improvements
that should be made to the emergency preparedness
requirements that are being transferred into the new
regulations before the review is carried out?
POAL does not seek any immediate changes in this area.
Test certification
Approved handler certification
140 127 Do you have any comment to make about the regulatory
proposal to revoke the existing approved handler
requirements and replace with duties in relation to the
POAL is concerned that inappropriate training requirements for its operations
could be impracticable and impose significant cost.
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provision of information, training, instruction, and
supervision?
Accordingly, POAL considers that:
All requirements for training should be directly related to the specific risks
of relevant workplace tasks – i.e. based on risk assessment. Guidance
should be provided for managers to determine the specific requirements.
For example, straddle drivers and lashers only need to know how to
recognise DG signage – they work with moving and securing shipping
containers which contain hazardous substances, but do not actually
handle them.
In addition, training is in fact a component of a learning and development
process, which starts with effective identification of learning needs, which
feed into effective instructional design, then development of training
materials, delivery and assessment. POAL considers that poor strategic
learning and development processes such as needs analysis, design and
assessment, is a shortcoming of the current existing system.
Training requirements should always be based on relevant risk
assessment, and also link/balance with other information/competency
requirements. Lower competence requires a higher level of supervision,
and higher competence requires less. The relevant requirements need to
recognise this and avoid prescribing overly rigid obligations that are not
always relevant – as these can become they are costly for the business,
and requiring people to complete training that is not practical and relevant
can actually become a barrier to developing organisational safety culture.
The key focus should be identifying relevant competency requirements
and appropriate assessments. If people can demonstrate competence,
then they should not be required to sit through training again. There
should be an equivalent to ‘recognition of prior learning’ as well as
opportunities to demonstrate ongoing competence that only trigger the
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requirement for training if they cannot adequately demonstrate the
required level of competence.
Overall, there needs to be greater focus on functional competency – i.e.
the ability to safely carry out tasks, rather than just paper-based
assessment of theory.
Finally, training providers may need to have greater accountability for
achieving meaningful competency.
141 127 Do you think the proposal to revoke the existing
approved handler requirements and replace with duties
in relation to the provision of information, training,
instruction, and supervision will impose any additional
costs on PCBUs? Conversely, what do you think are the
main benefits of this proposal? (Please quantify any
impacts identified and express in dollar terms to the
extent practical).
Refer comments above.
Monitoring
142 129 Do you have any comments in relation to the proposed
regulation requiring a PCBU to carry out workplace
exposure monitoring where it is necessary to determine
the efficiency and effectiveness of measures introduced
to control exposure to substances hazardous to health?
POAL considers that the requirements should be structured so that they are
risk assessment based – as appropriate for workplace conditions, tasks, and
potential effects of exposure to a given hazardous substances, along with the
known health effects of that substance. It is also important to note that the
port environment is an open area (i.e. outdoors) where airborne contaminants
may be present from sources outside POAL’s control.
Verification of control measures is equally as important as exposure
monitoring – as it measures how well exposure to the hazard is being
controlled at its source.
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143 129 Do you have any comments in relation to the proposed
regulations for establishing health monitoring for any
worker who may be exposed to a substance hazardous
to health?
POAL already conducts health monitoring of employees (who consent to
monitoring), so this proposal should not require any changes.
POAL considers that the development of guidelines/codes of practice would
provide clarity and direction for its existing monitoring, and would be
preferable to overly prescriptive regulations.
However, in developing the requirements it is necessary to ensure there is
appropriate provision for circumstances where employees decline to
participate, and specify arrangements for informed consent/decline and
related liabilities. In addition, it is important for the standards referenced for
exposure monitoring requirements to be kept up to date.
144 130 Given that employers, in accordance with sections 10(2)
of the HSE Act, are currently required to monitor an
employee's exposure to significant hazards (i.e.
substances hazardous to health) and, with informed
consent, monitor the employee's health, do you think
that the proposed regulations for carrying out workplace
exposure monitoring and establishing health monitoring
will impose any additional costs on PCBUs? (Please
quantify any impacts identified and express in dollar
terms to the extent practical).
POAL considers that good employers should already have systems in place
for this.
However, there is a need to clarify who is responsible for monitoring for
contractors, subcontractors, etc. If a PCBU, such as POAL was required to
provide monitoring for contractors and subcontractors (as well as its
employees), then this will become a significant additional cost.
POAL considers that it is vital to clarify the specific PCBU requirements /
responsibilities at all levels, especially for contractors.
Developing regulations to support the new Health and Safety at Work Act
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Key definitions
145 137 Do you have any comment to make on the proposed
definitions?
As a port we receive a wide variety of hazardous substances from shipping
lines (imports) or cargo owners (exports). We consider Major Hazard
Facilities as those that store and/or process very large quantities of
hazardous substances. We do not consider the ports (either our sea port or
inland port) as a Major Hazard Facility. The definition for a Major Hazard
Facility should match that in the Australian regulations and clearly exclude
those facilities where such substances are held solely for ‘intermediate
temporary storage, while in transit by road or rail [or sea]’; where ‘in transit’
means ‘that the thing is: supplied to, or stored at, a workplace in containers
that are not opened at the workplace; is not used at the workplace; and is
kept at the workplace for not more than five consecutive days’.
If under the regulations a transit facility could be deemed to be a Major
Hazard Facility, then elements of the proposed regulations need to be
redrafted to address the central principle of a transit depot facility – that the
facility has a wide variety of hazardous substances constantly arriving and
departing and therefore cannot identify, in advance, the hazardous
substances likely to be present at the facility, or their quantity, or their location
within the site.
Facilities covered by the new regulations
146 138 Do you have any comments on the types of facilities
that are proposed in scope or are proposed to be out of
scope?
As above.
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Notification process
147 139 Do you have any comments on the proposed
notification process?
No comment.
Review procedure
148 141 Do you have any comments on the proposed review
procedure?
No comment.
Checks and balances on designation decisions
149 142 Do you have any comments on the proposed process
for establishing the suitability of the facility operator or
the proposed process for notification by new operators?
No comment.
Hazardous substances at major hazard facilities and their threshold quantities
150 148 Do you have any comments on the proposed threshold
quantities for individual hazardous substances or
categories of hazardous substances?
We agree that ‘hazardous substances that are solely the subject of
intermediate temporary storage, while in transit by road or rail’ should not be
included; however we disagree with the exception ‘unless it is reasonably
foreseeable that, despite the transitory nature of the storage, hazardous
substances are or are likely to be present frequently or in significant
quantities’. As a port, we find this exception impractical, as we do not know in
advance the substances or quantities that may be located at the port while in
transit; even though it could be considered that it is reasonably foreseeable
that hazardous substances are likely to be present frequently.
Our Auckland sea port facility is very large, about 77 hectares, and is
segregated into several operational areas, some of which share facilities.
Because of the size of the site in relation to the quantities of hazardous
substances, combined with the transitory nature of cargo on site, the relatively
low density of hazardous substances does not present a level of risk to
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warrant classification as a Major Hazard Facility. In addition, the port operates
according to the IMDG Code as it would apply on a ship, which would indicate
that classification as MHF would be excessive for adequately managing
hazardous substances risks on site.
In addition, and as noted in the general submission, the Auckland sea port is
also inherently less dangerous than a facility that has to unpack, handle and
use the hazardous substances that pass through it.
151 148 Do you agree with the proposed threshold calculation
Why/why not?
As noted above, the threshold calculation should take into account risk factors
such as the extent to which the substance will be used and the area it is
stored in.
Duties of operators
Identification and assessment of major hazard accidents
152 150 Do you have any comment(s) on the proposal to require
operators to carry out a formal safety assessment for
the operation of a major hazard facility?
The formal safety assessment requirement should only relate to the risks
relating to the storage and/or use of the hazardous chemicals that have
resulted in the facility being deemed a Major Hazard Facility. For other risks
the requirement should only be to meet the regulations proposed in Chapter
2.
Safety management system
153 151 Do you have any comments on the proposal to require
operators to establish and implement a safety
management system for the operation of a major hazard
facility?
The safety management system requirement should only relate to the risks
relating to the storage and/or use of the hazardous chemicals that have
resulted in the facility being deemed a Major Hazard Facility. For other risks
the requirement should only be to meet the regulations proposed in Chapter
2.
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Emergency preparedness
154 153 Do you have any comments in relation to the matters
that would need to be included in an emergency plan?
The emergency plan requirement should only relate to potential emergencies
due to the storage and/or use of the hazardous chemicals that have resulted
in the facility being deemed a Major Hazard Facility. For other potential
emergencies the requirement should only be to meet the regulations
proposed in Chapter 2.
155 154 Do you have any comments in relation to the proposal
that would require an operator to consult with the local
council, when preparing an emergency plan, in relation
to the off-site health and safety consequences of a
major accident occurring?
No comment.
156 154 Do you have any comments in relation to the proposal
that would require an operator to provide a copy of the
emergency plan to every person identified in the plan as
being responsible for executing it (or a specific part of it)
and to every emergency service provider?
No comment.
157 154 Do you have any comments in relation to the proposal
that would require an operator to test their emergency
plan at least every 12 months in order to demonstrate
that every procedure or action in the plan is workable
and effective?
The proposed regulations are not clear on what is considered an acceptable
test of POAL's emergency plan. Full-scale testing of emergency plans would
be very costly and disruptive to all companies and workers on the site. For
example, if the test required POAL to conduct a full port evacuation and
account for all people on site – this could be up to 1,000 people (and include
hundreds who don’t normally work at the site) and take a few hours –
therefore we have not tested this, instead POAL performs a relevant test in a
localised area. If POAL was required to conduct a full port evacuation, to
minimise the disruption, we would test at times when we have minimal people
on site – which does not make for a good test.
Also performing these types of tests are meaningless without the involvement
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of the emergency services; but there is no requirement to involve the
emergency services, and no obligation on them to be involved in testing.
158 154 Do you have any comments in relation to the proposal
that would require an operator to test their emergency
plan within 3 months of any change to the persons,
procedures, or actions specified in the emergency plan
in order to demonstrate that the changed persons can
perform their functions under the plan and each
changed procedure or action is workable and effective?
The requirement to retest within 3 months of a change to persons, procedures
or action in the plan is impracticable; as people and procedures are always
changing, this would mean a 3-monthly test. For example, after each test
POAL incorporates the learnings back into the plan, this would then trigger a
requirement to retest, resulting in a continuous cycle of 3 monthly tests.
Design notice
159 155 Do you have any comments on the proposal to require
operators of proposed major hazard facilities to send a
design notice to WorkSafe NZ after initial design for the
facility has been completed and before making a final
investment decision?
It is not clear whether the operator is required to wait for WorkSafe to respond
to the design notice before commencing construction, but this is the logical
conclusion. If so, then WorkSafe should be required to respond within a
specified period of time to ensure construction is not delayed. WorkSafe
should prioritise work on a proposed facility to ensure investment and job
creation is not delayed.
When constructing a new transit facility it may not be apparent at the design
stage whether this would later be deemed to be a Major Hazard Facility, as
that would depend on the cargo flowing through the transit facility at any time.
160 155 Do you have any comments in relation to the particulars
that would need to be addressed by a design notice?
No comment.
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Safety case
161 159 Do you have any comments on the proposal that would
require the operator of a proposed facility to provide
WorkSafe NZ with a completed safety case at least six
months before commencing operations at the facility?
This requirement is unreasonable and unworkable. An operator needs to
have the right staff in place to draft the safety case, so these staff would be
unable to do anything for those six months. WorkSafe should prioritise work
on a proposed facility to ensure investment and job creation are not delayed.
162 159 Do you have any comments on the safety case process
including comments in relation to the information that a
safety case should contain or the proposed safety case
assessment process?
It is unreasonable that if WorkSafe rejects a safety case for an existing facility
that the operator would have to cease activities until it has an accepted safety
case. This is particularly the case where an operator has been undertaking
its activities for 24 months (potentially without incident) and there may only be
very minor issues with its safety case that can be resolved, or an issue
presents a low risk only. Requiring activities to cease could have significant
consequences.
POAL considers that the operator should first have the ability to make a
written submission on the decision, which WorkSafe should be required to
consider and potentially amend its decision. Secondly, the operator should
have a reasonable period of time to correct the deficiencies in the safety case
and should be able to continue to operate during that period. Only if the
operator fails to provide an acceptable amended safety case within the
agreed timeframe should WorkSafe be able to order the cessation of activities
– and that order should only be made after taking a risk-based approach to
the deficiencies and take into account the consequences of the facility
shutting down. A number of these facilities provide New Zealand with
essential products and services (e.g. electricity and fuel).
163 159 Do you have any comments on the proposal that
WorkSafe NZ would have power to withdraw
acceptance of a safety case?
As above, the operator should have a reasonable period of time to correct the
deficiencies in the safety case and should be able to continue to operate
during that period. Only if the operator fails to provide an acceptable
amended safety case within the agreed timeframe should WorkSafe be able
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to order the cessation of activities – and that order should only be made after
taking a risk-based approach to the deficiencies and take into account the
consequences of the facility shutting down.
164 159 What do you estimate to be the benefits of the proposal,
in terms of avoided costs associated with a major
accident? (Please quantify these impacts and express
in dollar terms to the extent practical.)
POAL considers that there would only be a benefit if the operator did not
already have appropriate controls in place and the creation of the safety case
highlighted this lack of controls.
We consider that it is the intention of the regulations that ports are not
designated as Major Hazard Facilities. If the port is designated a MHF, then
the proposal would add significant compliance costs with no associated
benefit, because the regulations would be intended for businesses that have
very different facilities and operations (and therefore a very different risk
profile) compared to a port.
Review of risk management
165 160 Do you have any comments in relation to the proposal
to require operators to review and as necessary revise
the safety assessment, emergency plan, safety
management system, and safety case?
No comment.
Information for local community and council
166 161 Do you have any comments on the proposal to require
operators to provide the local community and the
council (for the district in which the major hazard facility
is located) with information about the facility, its
operations, how the community would be notified if a
major accident occurs, and what the community should
do if a major accident occurs?
The operator should only be required to provide information to the council.
The council should ensure that the local community are provided with the
appropriate information, and the council, in conjunction with the emergency
services, should have the means to notify affected residents and businesses
of an accident and what those people need to do to stay safe. The
community response to a major accident should be within the control of the
council’s Civil Defence and Emergency Management team.
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No Page Question Response
Notification and reporting of dangerous incidents
167 162 Do you have any comments in relation to the proposal
to require operators to notify WorkSafe NZ of dangerous
incidents?
The notification requirement should only relate to incidents due to the storage
and/or use of the hazardous chemicals that have resulted in the facility being
deemed a Major Hazard Facility. For other incidents the requirement should
only be to meet the new act or other regulations.
Regarding the inclusion of unplanned events that required the emergency
response plan to be implemented, POAL's practice is for the relevant
managers use our emergency response plans when responding to smaller
events that do not require its use. This gives them practice at using the plans
and provides extra checks that they are effective. Having a requirement to
notify the regulator and prepare a detailed written report each time we use the
plan would discourage its use.
As a related issue, it is difficult to objectively assess whether an event that did
not cause, but might reasonably have caused, a major accident. For
example, if a straddle driver drops a container, it is possible the container may
have contained a highly toxic substance and that the substance escapes from
its packaging and leaks from the container and that the resultant fumes kills
the driver. This is extremely unlikely and POAL personnel are not aware of a
case where this has happened, but it is possible. It would be impractical and
unhelpful to have to notify and report on every such incident (even though
they are relatively rare). As such, it would be useful to have more specific
and relevant guidance on when an incident is considered dangerous enough
to warrant notifying the regulator, and confirmation that this is only required
when there is a genuine risk to the safety of a worker on site.
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Implement a safety role for the workers
168 163 Do you have any comments on the proposal to require
an operator to implement a safety role for the workers at
a major hazard facility?
Do the workers at a major hazard facility include all people who work at the
site? If so, then this is impractical. The duty should only apply to those
workers whose role is involved with the storage or handling of the hazardous
substances that have led to the facility being designated a major hazard
facility. For example, if the port was considered a Major Hazard Facility
because of the use of methyl bromide by independent fumigators, then the
operator should only be required to implement a safety role for those
fumigators (not the accountant, the cleaner, the security man, stevedore, pilot,
etc).
Duty to consult with workers
169 163 Do you have any comments on the proposal to require
an operator to consult with workers at the facility in
relation to the implementation of the workers' safety role
at the facility?
As above - it should only apply to those workers whose role is involved with
the storage or handling of the hazardous substances that have led to the
facility being designated a Major Hazard Facility.
Land use planning near a major hazard facility
170 164 How should coordination between councils and
WorkSafe NZ be encouraged in relation to potential
major hazard facilities and developments in the vicinity
of existing major hazard facilities?
No comment.