Response to Department of Labour (the Department) “Hazardous Substances in
the Workplace” Policy Document
1.
Introduction
1.1
Thank you for the opportunity to respond to the Department’s policy document on
“Hazardous Substances in the Workplace” (the Document).
1.2
This submission is jointly made by the Climate Control Companies Association
(CCCA), the Institute of Refrigeration, Heating and Air Conditioning Engineers of
New Zealand (IRHACE), and the Refrigerant License Trust Board (RLTB) who
together represent the heating, ventilation, air conditioning and refrigeration
industry (HVAC&R industry) in New Zealand.
1.3
We strongly support the earlier statements in the Document that highlight the
importance that hazardous substances play in our economy and environment.
Hazardous substances in the HVAC&R industry directly impact our standard of
living and quality of life, as they are used to ventilate our places of work, power
the life saving technology in our hospitals, and play a key role in the cooling and
freezing processes in our primary industries.
1.4
We understand firsthand the potential and actual harm hazardous substances
can have on people and the environment if mismanaged or mishandled. That is
why the Department should be commended for its desire to ensure these
substances are safely managed in the workplaces where they are stored and
used.
1.5
We have been proactive in setting up industry wide schemes to provide additional
training and working to increase the level of compliance with the Hazardous
Substances and New Organisms Act 1996 (the HSNO Act) and the associated
regulations. However, due to the fact that most of these endeavours are
voluntary, any success will depend on a sufficient level of industry buy-in.
Unfortunately, to date we have not experienced the level of buy-in we had hoped
for and believe is necessary.
2.
Initial response
2.1
Notwithstanding that the Environmental Protection Authority (EPA) is the
regulatory agency for the HSNO Act, the sole focus of the Document appears to
be on enforcement and enforcing the safe management of hazardous substances
in workplaces.
2.2
Therefore, this submission focuses on the premise that safe management cannot
be achieved through enforcement alone. If the objective of safe management of
hazardous substances is to be achieved, a wider and more holistic approach is
needed.
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2.3
It is our view that the management of hazardous substances such as refrigerants
and other compressed gases in New Zealand could be greatly improved. To
achieve this will involve developing stronger measures that focus on changing
industry behaviour rather than waiting for a breach to occur. We strongly support
the implementation of a mandatory code of practice and registration of all those
working with refrigerants and other compressed gases in New Zealand. The
HVAC&R industry are willing to work with the Government to develop such
measures.
2.4
The shortcomings in the current regulatory framework were particularly apparent
in the Tamahere Coolstore incident of 2008. This incident resulted in one fatality
and several persons injured. The Tamahere incident serves as one of the drivers
behind our desire to work with the Government to ensure that a suitable
regulatory framework is set up, and that correct policies are in place for the safety
of all New Zealanders.
3.
Refrigerants as Hazardous Substances
3.1
Refrigerants are chemicals used for refrigeration and air conditioning which are
generally purchased by refrigeration, heating and air conditioning engineers and
technicians.
3.2
All refrigerants currently in use in New Zealand are potentially hazardous. Some
refrigerants are classified as hazardous substances under the HSNO Act and its
regulations.
3.3
The HVAC&R industry is currently moving through a period of significant change.
The use of hydrocarbon-based and other natural refrigerants are becoming more
common in New Zealand with the phase out of Chlorofluorocarbon (CFCs) and
Hydrochlorofluorocarbons (HCFCs) refrigerants under the requirements of the
Ozone Layer Protection Act 1996.
3.4
HCFCs will not be allowed to be imported into New Zealand from 1 January 2015.
Users of HCFCs will need to assess how they are going to manage the phase-out
conditions.
3.5
Natural refrigerants are more flammable, and if mismanaged can be more
dangerous to practitioners and the public. Therefore, the increased usage of
natural gases for refrigeration will create a significant challenge for the
management of hazardous substances.
4.
Does industry practice allow for the safe management of Hazardous
Substance?
4.1
As noted in the Document most refrigerant purchasers are already required by
the HSNO Act and regulations to hold an Approved Handler Test Certificate and,
under the Compressed Gas Regulations, an Approved Filler Test Certificate.
4.2
However, we feel the current test certificate regime does not adequately address
many of the specific challenges present in the HVAC&R industry such as
flammable refrigerants. Further there are a large number of purchasers who are
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still non-compliant with the safety regulations. As a result of this issue, we sought
permission from the Commerce Commission to enter into a Memorandum of
Understanding (MoU) with wholesalers of refrigerants. Under the Memorandum
the participating wholesalers agree that they will supply refrigerants only to
persons who have been trained to safely handle such substances (the Scheme).
4.3
The Scheme simply amounts to a requirement to see proof of compliance with
the legislation. Users of refrigerants would still be required by law to hold an
Approved Handler or Approved Filler Test Certificate, and all purchases would
continue to be required to comply with the existing regulations. However, without
the inclusion of additional training the level of compliance with the regulations
among purchasers would likely remain unsatisfactory.
4.4
Hence, the primary benefit of the Scheme is that purchasers of refrigerants will
also be required to have been educated on:
(a)
how to safely store and handle refrigerants and, if applicable, how to safely
charge refrigeration and air conditioning systems; and
(b)
their obligations under the Act and the associated regulations.
4.5
The desire for improved focus training for the HVAC&R industry has been driven
by the desire to prevent a repeat of the Tamahere incident. The fatal explosion
occurred because leaked refrigerants ignited. The subsequent inquiry identified
non-compliant handling and storage of refrigerants as contributing to the incident.
4.6
The inquiry also noted the increased use of refrigerant types which can be
significantly more dangerous. The alternative types which are being adopted
require additional safety measures.
4.7
The Commerce Commission approved our request for a Memorandum of
Understanding. However, it is up to each wholesaler whether they decide to
participate, and to date we have been unable to launch the Scheme due to
insufficient buy-in from all of the wholesalers.
4.8
In Australia, such a practice is already legislatively mandated, requiring that all
persons or businesses that acquire, store or dispose of refrigerants must hold a
current trading authorisation and those who handle refrigerants must hold a
handling license. However, in New Zealand, the Government has expressed (as
evidenced by this Document) the preference to address the health and safety
compliance issues instead of legislating.
5.
Is it all about enforcement of non-compliance with Hazardous Substances?
5.1
The Coroner’s Report into the death of fire-fighter Derek Lovell in the Tamahere
explosion (the Coroner’s Report) would suggest not.
5.2
The Coroner noted that the current regulatory framework only comes into play
after an event has occurred. This means that non-compliance with the regulations
may result in sanctions, but is essentially an ambulance at the bottom of the cliff.
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5.3
In the introduction of the Document the Department states that:
This policy statement outlines how the Department of Labour uses a
variety of tools to achieve compliance with the legal requirements. Our aim
is to work with businesses and employees to ensure those in control of
hazardous substances manage those substances successfully and that
death, serious harm and serve environmental damage are avoided.
5.4
However, we submit that the Document places too much emphasis on when and
how enforcement should take place, and too little emphasis on the wider issues
of industry regulation. It also fails to emphasise the development of codes of
practice that may lead to the elimination of dangerous practices.
5.5
We share the same view as expressed in the Coroner’s Report that it would be
better to adopt a ‘fence at the top of the cliff’ approach because of the potential
for harm for those persons working in, or visiting facilities that use refrigerant
gases, and the wider community and environment.
5.6
We have some concerns with the section in the Document entitled “Approach to
Enforcement Decision-Making”, and in particular with the following statement:
The Department adopts an effective and responsive approach to
regulation. This means, we generally use the minimum amount of
enforcement necessary to obtain compliance with the law.
5.7
It is our submission that the above statement is not appropriate in the current
regulatory framework with regard to the use of hazardous substances.
5.8
Due to the current level of non-compliance, coupled with the changes in the
HVAC&R industry and the need for better training we need a stronger regulatory
framework before the use of the minimum amount of enforcement will be
effective.
5.9
Even if the level of enforcement was increased a ‘fence at the top of the cliff’
approach would be far more effective.
5.10
Despite the strong focus on enforcement, the Department should be commended
for the discussion of controls and systems for managing health and safety under
the ‘What’s important to us’ heading in the Document.
5.11
Here, the Document discusses the need for employers and others with workplace
responsibilities to control hazards in their workplaces; we fully support and
endorse this approach. This is the approach we have taken with our Scheme to
encourage employers and others with workplace responsibilities to control
hazards to participate in training and competence assurance especially around
the use of hydrocarbon and other natural refrigerants.
5.12
The Document also discusses the regulatory framework under which some
substances may only be handled by Approved Handlers as part of the
management of Hazardous Substances. As noted earlier in our submission we
support this approach as well. However, we would like to see the regulatory
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framework expanded to include a mandatory code of practice and registration of
all those who work in the HVAC&R industry.
6.
Conclusion
6.1
We do not believe the current regulatory framework (which requires a large
amount of self-regulation and often sees enforcement used only after a breach
has occurred) is the most effective way to manage refrigerants and other
compressed gases as hazardous substances in New Zealand.
6.2
We would urge the Department to expand the Document to encourage persons
working with hazardous substances to use a wider range of tools, rather than the
principal focus on enforcement alone.
6.3
The section in the Document covering discussions on controls and systems for
managing health and safety could be expanded to include things such as codes
of practice and registration systems for those working with hazardous
substances.
6.4
Only when a wider and more holistic approach is taken to the management of
hazardous substances can safe management be achieved. Enforcement still has
a significant role to play, but it needs to be complemented with a focus on
competence through the use of early training and registration.
6.5
Should the Department require oral submissions, we would be happy to make a
presentation.
Submitted on behalf of:
The Institute of Refrigeration, Heating and Air Conditioning Engineers of New Zealand
Inc. (IRHACE)
Climate Control Companies Association (CCCA) and Refrigerant License Trust (RLTB)
PO Box 217184 Botany Junction Auckland 2164
Laidlaw Business Park Ground Floor Unit 5/42 Ormiston Road Flat Bush Auckland 2016
Ph. +64 9 273 0044 Mob: 021 2776 021 Fax +64 09 273 0045
www.irhace.org.nz/
www.irhaceyearbook.org.nz
/
www.ccca.org.nz
/
www.rlnz.org.nz
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