'Woeful' record sparks safety law reform

Pike River was one of the catalysts for the reformed health and safety law. Photo / NZPA ,

Failings prompted change to the legal landscape, writes Francis Cook.

Every year, more than 50 New Zealanders die on the job.

A further 600 to 900 die from work-related diseases. New Zealand's health and safety record is dismal compared to other OECD countries.

The Health and Safety at Work Act aims to curb that, with a goal of reducing workplace deaths and serious injuries by 25 per cent by 2020.

From April 4, new regulations come into force, with a focus on major hazard facilities, asbestos, adventure activities, mining and quarrying, and petroleum exploration and extraction.

The Act also introduces a new concept - and a new abbreviation: a person conducting a business or undertaking (PCBU), to replace and encompass existing duty holders.

Directors found responsible for workplace health and safety breaches can face a maximum fine of $3 million and a jail term.

The imminent law change has already resulted in Sir Peter Jackson and Oscar winner Jamie Selkirk stepping down as directors of Weta Workshop to avoid the legislation, which requires a high level of involvement in a business.

WorkSafe NZ chief executive Gordon MacDonald says the law places duties on senior officers to spread awareness of risks in the organisation across directors and chief executives, to help their business meet its obligations. It spells the end of the "sleeping director", who can pass on responsibility to management or other directors.

It will require directors to be on top of all aspects of their organisation, to meet health and safety duties and reduce the number of accidents and deaths.

The bill came as a response to some high-profile safety failures: the Pike River mining tragedy; deaths in forestry and farming and fatalities during adventure activities.

WorkSafe admits "we know we have a serious problem in this country ... In comparison with other similar countries, our workplace health and safety record is woeful."

At Pike River, 29 men died following a methane gas explosion on November 19, 2010, and their bodies are still entombed in the mine.

There are no definitive answers to what ignited the methane inside the mine, but the Royal Commission into the tragedy revealed a shockingly slow response to signs something was wrong.

After communications to the mine were lost, one staffer asked whether the Mines Rescue Service should be placed on standby. Douglas White, the statutory manager, said "Oh, we won't go there yet."

Pike River former safety and training manager Neville Rockhouse. Photo / Supplied

He then went to the carpark, where he noticed excessive diesel exhaust fumes, and returned to his office to send emails on other matters.

Shortly afterwards, he went to the mine entrance, where he was satisfied ventilation was entering the shaft.

Other workers with years of experience were very concerned about the miners left without power and communication. By the time White called the Mines Rescue Service, there had been no communication with the trapped miners for an hour.

According to the Health and Safety in Employment Act 1992, employers have a general duty to "take all practicable steps to ensure the safety of employees while at work".

However, any risks identified in a workplace can be segmented into a hierarchy of controls and a confusing chain of responsibilities, with a lack of clear leadership.

Pike River exposed a convoluted system of shifting responsibilities which contributed to the deaths of the miners and made it difficult to prosecute anyone who might have been responsible.

The Royal Commission clearly outlined a number of communication breakdowns during the mine's establishment and operation.

It found the safety and training manager, Neville Rockhouse, had tried to improve safety but could not get the co-operation of other managers.

Furthermore, he wasn't notified of serious risks such as elevated methane levels. He lost a son in the accident, and another son was one of the two survivors.

In another hazardous industry, Council of Trade Unions (CTU) president Helen Kelly said in 2013 that forestry workers were afraid to raise health and safety concerns with their employers because they might not get shifts.

Charles Finlay died on the job at the Pike River mine.

She described the work pattern of Charles Finlay, who died on the job that year: "Charles Finlay got home at 6pm the night before he was killed, and was up again the next morning at 3am to meet his normal start time of 4am.

Charles was dead by 5.30am in the middle of the winter, in the middle of the country, in the middle of the night and on a dark unlit site. He regularly worked between 55 and 60 hours in a five-day week and up to 64 hours when he worked a Saturday."

That year, 10 forestry workers died on the job, up from six the previous year. Kelly and the CTU spearheaded a push to improve conditions and reduce the number of forestry deaths.

The following year there was one death, 2015 saw a rise to three and at the time of writing, there have been no deaths this year.

Jokes about worm-farming aside, agriculture is by far the riskiest work environment, accounting for about 40 per cent of workplace deaths in New Zealand.

Between 2011 and 2015, 92 people died in farm work-related incidents. Federated Farmers health and safety chairman Katie Milne says farm owners are 60 per cent more likely to die on the job than farm workers.

Workers in agriculture are roughly 20 times more likely to be killed on the job than those in most other sectors, and those killed are most likely to be farm owners.

The farming category also includes horticulture and viticulture, which are now hitting peak risk time amid the harvesting season.

There are many ways farmers can injure themselves or die on a work site, including machinery accidents, incidents with animals and quad bike crashes. Photo / Hawkes Bay Today

Farmers work in extreme weather, and during winter, often work in the dark. There are a multitude of ways they can injure themselves or die on a work site, including machinery accidents, incidents with animals and quad bike crashes.

WorkSafe acknowledges it cannot eliminate the risks involved in farming, but it hopes a culture of risk identification and mitigation will contribute to a broader culture of safety on farms.

Adventure tourism could be an even bigger killer, but there is no agency which collects comprehensive data on injuries or deaths in adventure activities. Officially, the number of deaths related to adventure tourism is 63 in the past decade, but the lack of data means it could much higher.

A review was ordered in 2009 after it was revealed there had been 37 deaths over four years.

The Government created an audit called the Adventure Activities Certification Scheme, which has been criticised by some operators as being "heavy-handed".

In the words of one tourism operator in 2014: "It's the old saying, 'if it ain't broke, why fix it?'"

CEOs' safety challenge

Chief executives in leading corporations put a high priority on worker safety, but there is a lack of knowledge and commitment in engaging with those workers to enhance the safety culture, a Deloitte survey has found.

The results show chief executives are putting an effort into changing the culture, but lack the required education to successfully implement that culture on a day-to-day basis.

Deloitte suggests chief executives spend more time engaging with health and safety systems and the wellbeing of workers: "Health and safety risk management should have the same focus as enterprise risk management.
.
The risks should be reviewed at the top table and control measures challenged in the same way as other enterprise risks. To appropriately evaluate key business risks, the same risk framework should be used, one that includes health and safety."

The good news is that most chief executives say they engage with risk management primarily for the wellbeing of their workers, rather than to comply with the law. They also believe a strong health and safety record improves their attractiveness as employers.

A number of CEO respondents said they were delivered reports on health and safety but did not know how to interpret them and make improvements based on the data.

WorkSafe has identified data on risks without proper meaning or context as being a major contributor to workplace injuries and deaths.

Deloitte also says chief executives and boards who have attended mock court sessions - setting out what could happen in reality - have a much stronger impression of their responsibilities and due diligence towards their workers.