7. Problems
Overlap and Duplication
43. Under the current regime, the Electricity, Gas, and PG&D Acts and Regulations overlap significantly with the HSE Act. This overlap occurred because of the difficulty in separating public and workplace safety and the view that specific aspects of electrical and gas safety should be covered by the special purpose legislation, rather than HSE legislation. As an example of the overlap, the Electricity Act requires workers to undertake periodic safety training courses even though the training relates primarily to worker safety.
44. Owing to an error paragraph number 44 was omitted from the hard copy of the Review and has been entered here to retain the order of sequence.
45. The overlap in the jurisdictions of Commerce and OSH causes particular problems in the notification and investigation of accidents that occur in places of work. Although the agencies co-operate so that there is normally only one investigation and prosecution, there is confusion in industry about the scope and responsibilities of each agency and uncertainty about which one to notify when accidents occur.
46. Industry also bears unnecessary costs from the collection of accident information as Commerce and OSH use different forms with different criteria to collect information about the same accident. Each agency involved in an aspect of safety collects and analyses its own data using whatever criteria are relevant to its own specific purposes.
47. While there are elements of safety covered under other legislation such as the Building Act, the Dangerous Goods Regulations, and the new Hazardous Substances and New Organisms Act, the industry and groups consulted did not identify any practical problems of overlap and duplication with these pieces of legislation.
Level of Prescription
48. The electricity and gas licensing regimes are highly detailed and prescriptive. The high level of prescription is inconsistent with the performance-based approach of modern legislation, including the HSE Act, and has led to the following problems:
- specific mandatory skill requirements for registration and licensing in regulations reduce the opportunities for the industry to develop training to meet the future needs of the industry;
- there are excess costs when workers are compelled to acquire the full range of skills required for registration rather than the specific skills they need for their particular job;
- all sectors of the electrical industry (except some companies with employer licences) are required to use registered workers as a means of ensuring safety, even where adequate alternatives are available; and
- requiring a fuller range of skills than is needed for a particular job is a barrier to entry for workers who may not be able to acquire the full set of skills. This may artificially reduce the supply of people able to do particular kinds of electrical and gas work.
Accountability
49. There is confused accountability for electrical and gas safety which has the potential to endanger the safety of workers and the public. If people do not know their responsibilities under the legislation or are unsure if they or someone else is responsible for safety, important matters may fall between the cracks.
50. There was anecdotal evidence that employers considered that electricity and gas work done within the workplace was a special situation which they had no responsibility for, apart from employing licensed electrical or gas workers. Some employers relied upon the assumption that licensed gas and electrical workers would have the full range of skills and knowledge necessary to ensure their safety and the safety of the work. This was not necessarily the case when the hazards arose from the conditions of the site rather than from the use of gas or electricity.
51. The review team considered that changes were needed to ensure that the responsibility for protecting workers and the public from potential hazards always rested with the person best able to control the situation. In the workplace this is the person in charge of the workplace.
52. There is also some confusion about the responsibility of employers under the HSE Act for the safety of the public when electrical and gas workers are sub contractors. It is recommended that this is resolved through changes to the HSE Act.
53. Accountability needs to be crystal clear in legislation and the legislative provisions need to be backed up by clear and unambiguous information about the duties of employers and employees under the legislation. The United Kingdom's HSE Electricity at Work Regulations 1989 were seen as a good example of clear information on the duties of the various parties involved as well as information about processes and equipment to be used. Something along these lines could be developed as regulations or codes under our HSE Act
Coverage of the Licensing Regime
54. The review team considered that a key problem with the current licensing regime is that it covers areas of work where regulation is needed and includes others where it is not. This issue covers several matters dealt with in more detail in this report. However to illustrate the problem:
- Licensing is required for workers in the supply industry in addition to the safety requirements under the HSE Act on employers and employees, and company safety management systems.
- Only licensed electrical workers may repair electrical appliances. This means that an appliance manufacturer may employ anyone to assemble a washing machine, but if the same machine comes back to the same company for repair, a licensed electrical worker must be called in to fix it.
- Connecting gas appliances to cylinders below a particular weight falls outside the definition of "gasfitting" and therefore does not require licensed gasfitters to do the installation. However low weight of cylinders is no protection against accidents and there have been several serious accidents as a result of unskilled installations to small cylinders in caravans.
Penalties and Remedies
55. The review team considers that the penalties and remedies currently available under the relevant legislation need reviewing in order to be effective.
56. There are problems with the level of penalties and the scope and range of penalties and remedies available to disciplinary bodies.
57. If the approach in this report is adopted, the emphasis moves in some areas, particularly in electrical work, to a less prescriptive, more performance-based regime which allows more scope for judgement. Experience elsewhere suggests that a performance-based regime needs to be backed up with significant penalties to encourage compliance and deter unsafe behaviour.
58. The review team also thought that changes to current penalties and remedies were needed to introduce more flexibility to deal with the whole spectrum of behaviour that breached safety. For instance, under the Electricity Act there needs to be a penalty for minor offences which has a less serious impact than suspension which prevents a person from carrying on their livelihood.
Processes
59. The review team (and many of those who made submissions to the discussion document) considered that some of the existing processes are less effective than they could be, and take too much time. Top of the list for processes that need improvement was the complaints and disciplinary process. Although it is recognised that there need to be steps in the process which ensure that the rights of the individual complained against and the rules of natural justice are protected, the delays involved are substantial. In many cases the legislation or regulations prevents speedier and more effective solutions to problems that have been identified for some time. In a few cases current handling practice could be improved upon.
60. Groups consulted also expressed concerns about the coverage, effectiveness and scope of audit processes for both electrical and gas workers.
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