ports of auckland ltd

1

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.


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


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

Ports of Auckland I Submission on MBIE Health and Safety Discussion Document

1

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.


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.


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


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.


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


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


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.


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


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.


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


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

of 9 Ports of Auckland I Submission on MBIE Health and Safety Discussion Document


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

https://www.coag.gov.au/sites/default/files/COAG%20communique%202%20May%20-%20final%201300.pdf



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.



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.



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



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.



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



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’.



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".



Chapter 2: Regulating general risk and workplace management


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.


2


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


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.


3


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


4


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


5


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.


6


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.


7


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.


8


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.


9


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.


10


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


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.


11


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


12


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



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


13


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


about managing risks associated with hazardous

containers and loose but enclosed materials?

No further comment.

Managing health and safety risks to young people


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.


14


give your reasons.

Duties on limited child care providers


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.



Chapter 3: Regulating worker participation, engagement and representation


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


2


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


3


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


4


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


5


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


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


6


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


7


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


8


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.


Ports of Auckland I Submission on MBIE Health and Safety Discussion document

Chapter 5: Regulating work involving hazardous substances


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


2


hazardous substances, will impose any additional costs

on PCBUs? Conversely, what do you think are the main



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


3


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


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


4


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.


5


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


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.


that should be made to the controls on fireworks, safety

ammunition, and other explosives that are being

No further comment.


6


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)


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.


that should be made to the controls on class 6 and 8

substances that are being transferred into the new


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


7


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


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.


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.


8


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


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


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


9


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.


10


Requirements for signage


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.


that should be made to the signage requirements that



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


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.


11



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


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.


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


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.



POAL does not seek any immediate improvements in this area.


12


stationary container systems that are being transferred

into the new regulations (before the review is carried

out)?

Requirements applying to laboratories


proposal to transfer the HSNO Exempt Laboratories

regulations into the new regulations?

This matter is not relevant to POAL.



laboratories that are being transferred into the new


This matter is not relevant to POAL.

Tracking highly hazardous substances


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.


that should be made to the tracking requirements that



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.


13


Emergency management


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.


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.


14



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.


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


15


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.


that should be made to the emergency preparedness

requirements that are being transferred into the new


POAL does not seek any immediate changes in this area.

Test certification

Approved handler certification


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.


16


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


17


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


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.


18



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.



Chapter 6: Regulating major hazard facilities


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.


2


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


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


3


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.


4


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.


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.


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


5


of the emergency services; but there is no requirement to involve the

emergency services, and no obligation on them to be involved in testing.


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


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.


6


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


7


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


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


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.


8


Notification and reporting of dangerous incidents


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.


9


Implement a safety role for the workers


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


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.

ports of auckland ltd

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