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A critical review has forced Worksafe to keep closer tabs on policing of regulations covering toxic chemicals and dangerous goods, writes Amanda Cropp.

Workplace exposure to hazardous substances causes the premature deaths of between 600 and 900 New Zealanders annually.

WorkSafe is keeping closer tabs on businesses that fail to meet safety standards for storage and handling.

Businesses flouting safety standards for hazardous substances may get fewer second chances following a WorkSafe clampdown sparked by criticisms of its enforcement regime.

The move comes after WorkSafe data released under the Official Information Act (OIA) prompted scrutiny of independent compliance certifiers whose job it is to ensure workplaces are storing and handling hazardous substances correctly.

As a result WorkSafe ordered a review by QC Tim Smith, who investigated allegations that certifiers were wrongly giving sites the tick, and deliberately not notifying WorkSafe when they refused certifications, which is in breach of Health and Safety at Work regulations.

WorkSafe is now implementing Smith’s 19 recommendations which could have implications for thousands of workplaces and business premises, ranging from gas cylinder suppliers to warehouses and retailers holding large quantities of paint and other flammable liquids.

The complaint about enforcement standards was laid by lawyer James Dunphy after he bought certification company Dangerous Goods Compliance in 2020, and found his tougher stance on applying the rules had led to the loss of some major clients.

Under the OIA he obtained 2020 WorkSafe data on the number of compliance certificates issued by certifiers, versus the number refused.

He discovered seven of the 10 largest certifiers failed to notify any refusals to WorkSafe, while his own company was responsible for 91% of refusals.

A separate OIA by the Sunday Star-Times showed that last year the busiest of the top 10 certifiers issued 1568 certificates and notified just three refusals, compared with the fourth ranked certifier who issued 979 and notified 351 refusals.

When WorkSafe failed to act on his complaints, Dunphy wrote a lengthy letter to agency chair Ross Wilson last June providing examples of situations where he believed the community was being put at risk.

Smith’s review concluded that while he did not have any direct evidence of certifiers deliberately failing to notify WorkSafe, the statistical evidence strongly suggests that most likely there were instances historically where some certifiers either had not been notifying WorkSafe, or had issued certificates when they should not have done so, and better monitoring would raise ‘‘red flags’’ for areas needing attention.

Businesses can get conditional certificates by undertaking to make changes, but the reviewer found that nobody from WorkSafe was routinely checking to see if the terms were met.

WorkSafe head of high hazards, energy and public safety Darren Handforth says certifiers are required to notify the agency if conditional deadlines are missed,

‘‘Our experience was that clients who didn’t want to become compliant and spend the money required to do it would just shop around for a certifier who’d give them a certificate.’’ James Dunphy

and the agency is now collating refusals monthly instead of annually.

Smith also warned about pressure to grant certificates inappropriately; ‘‘always a risk in a model where the person being regulated is paying the fee of the... regulator’’.

But he acknowledged a client unhappy with a decision could simply go to another certifier, and Dunphy says that remains a problem.

‘‘Our experience was that clients who didn’t want to become compliant and spend the money required to do it would just shop around for a certifier who’d give them a certificate.’’

Handforth says businesses are free to choose or change certifiers as they wish, and part of the agency’s role is to ensure standards are applied consistently.

WorkSafe has just over 100 certifiers on its books and has increased audits of their work, completing 33 last year, compared with fewer than 10 in each of the previous three years. It has also established a hazardous industries team to focus on sites, such a petrol and LPG storage, that are not classed as major hazards but still have potential for ‘‘catastrophic risk’’.

Hazardous Substances Professionals NZ represents certifiers, but it refused to comment on the Smith review, other than to say it would support any policy WorkSafe asked them to follow. Industry body Responsible Care promotes safe use of hazardous products and its 160 members include manufacturers, importers and users of chemicals and explosives. Chief executive Barry Dyer says Smith’s review was too narrow, a much broader review of compliance is needed, and there is concern that more than 20 pages of the Smith report were redacted in their entirety to protect the privacy of individuals. ‘‘If we don’t know the details of this some of this stuff, how can we fix it?’’

Dyer suggests some certifiers had held back on notifying refusals out of a well-meaning but mistaken belief they could help a business get issues sorted, and ‘‘don’t want to draw WorkSafe’s attention to a client who is doing their best and just have not yet got it 100 per cent right’’.

He says the regulations are too inflexible and, to avoid being designated as hazardous facilities required to meet stricter standards, businesses are removing products to remain below the threshold. ‘‘Instead of one large well-managed site, you now have the possibility of several smaller less well managed sites scattered around the place.’’

Some small businesses’ lack of knowledge about chemical cleaners used in the food and diary industries, combined with poorly trained casual labour, had contributed to numerous calls to Responsible Care’s ChemCall emergency hotline. ‘‘Young workers in shorts and jandals have been given buckets of corrosive cleaners and told to get on and scrub out a tank, and have suffered accordingly.’’

A 2019 Health and Safety Association report on the workforce said full time certifiers could earn $90,000 to $99,000 annually, but two thirds of them were over the age of 55, and meeting future demand for their services would be difficult. Efforts are being made to train new recruits with Massey University offering two courses for certifiers, and it expects to train 20 annually.

But Dyer says the industry is down to a handful of certifiers with expertise in class 1 explosives and fireworks, ‘‘and at least three are not going to be around any longer’’, driven out in part by frustrations with WorkSafe and its unwillingness to give guidance on grey areas. In some cases they had waited more than 18 months for WorkSafe to give a definitive response on issues such as buffer zones needed between office staff and chemical operations in a building.

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2022-05-22T07:00:00.0000000Z

2022-05-22T07:00:00.0000000Z

https://fairfaxmedia.pressreader.com/article/282879439365779

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