Dialogue: Wrong to blame the employers

By SIMON CARLAW*

Recent workplace fatalities are being held up as evidence of the need for tougher health and safety penalties on employers.

The tragic deaths of three people this month have been termed a crisis, with calls for greater protection of workers through a crackdown on errant employers.

This reaction is understandable. Seeking a villain to punish in the wake of a workplace tragedy gives a sense of comfort that something is being done to right a wrong. But such tragedies rarely feature clear-cut villains: workplace accidents, by definition, are not intended by anyone, employer or employee, and in many instances employers feel they are being vilified for accidents that are beyond their control.

Right now the context is also political, with the calling for submissions on proposed changes to the Health & Safety in Employment Act. The suggested changes would impact heavily on employers. Employees would be turned into prosecutors and employers would face fines increased up to $500,000. Employers would not be allowed to insure against the fines.

The definition of "workplace hazard" would be widened to include stress - a difficult thing to define, let alone accurately and precisely attribute to a workplace. And the act would be extended to cover many transport situations, posing difficulties of definition and prevention.

The big fines and the prosecution focus of the proposed amendments are based on the notion that employers are at fault. But how well founded is this notion? No firm statistics exist on liability for recorded workplace accidents.

Neither ACC nor Occupational Safety and Health keep records on who was at fault when a workplace fatality has occurred - a situation that arises from our no-fault accident compensation system.

What data there are give a one-sided picture: information is available where prosecutions have been brought against employers, but of course there is none where employees were deemed to have been at fault.

By definition, there is no prosecution where a fatality has resulted from the fault of the employee concerned. Thus the limited data presents a distorted picture.

There is also a lack of information on the actual number of workplace fatalities. Estimates are based on case reports and extrapolation from trends - an International Labour Organisation formula that takes the number of all fatalities and assigns a percentage of them to workplace causes. This means a high number of fatalities of all kinds would inflate the estimate of workplace fatalities.

OSH acknowledges the lack of valid data: "It is widely agreed that New Zealand does not have an adequate data set of work-related fatalities." (NZ Workplace Deaths, Occupational Safety & Health service, 2001)

Lacking firm data for either workplace fatality numbers or for who was at fault, we do not have a strong basis for good health and safety laws. Improving our data should be the first step before arbitrarily assigning blame and apportioning punishment.

The recent tragic deaths have been used by some to argue in favour of harsher punishment for employers, without knowledge of where fault lay. This is disrespectful to the facts of those incidents, whatever they may be.

Any death resulting from an accident at work is one too many; any death that occurs within a period when workplace safety laws are being debated is likely to take on extra significance.

It is perhaps a signal for us to take a step back from the polarised debate over safety law and put our energies into building an information system that sheds better light on it.

"Talking up" the number of workplace fatalities serves no constructive purpose.

Legislation must be based on fact, not assertions or assumptions.

* Simon Carlaw is chief executive of Business New Zealand.