The role and function of WorkSafe, the main health and safety regulator, will be a key part of the government’s review.
Workplace Relations and Safety Minister Brooke van Velden says she is “very open” to hearing how people have been engaging with WorkSafe and whether or not they believe WorkSafe should be issuing more guidance or pursuing more prosecutions.
“I’m very interested in those individual experiences of working with the regulator. I know there have been concerns over the past few years that WorkSafe has lost its way.” WorkSafe has already started shifting its strategy in response to concerns.
“In late 2023, WorkSafe began to change the way we operate following the wide recognition that we had taken on too much and spread ourselves too thin,” it says.
In an analysis of the new strategy, Bell Gully says WorkSafe will no longer try to target all workplace harm, instead focusing on areas where there is the most risk of serious harm to workers and leaving other regulators, such as ACC, to target less serious risks.
“WorkSafe’s strategy states that moving forward, the best way for WorkSafe to manage health and safety risks is to focus WorkSafe’s efforts and resources on three types of harm: acute (serious injury, illness or death arising from a single event); chronic (serious injury, illness or death caused over time); and catastrophic (serious injury, illness or death affecting multiple people),” it says.
Tony Beaglehole, a member of the Business Leaders’ Health & Safety Forum, says lawyers cited anonymously in his report were concerned that WorkSafe had an inconsistent prosecution policy that undermines its credibility.
“They were acting on behalf of companies that acknowledged they had health and safety failings and were expecting to be severely taken to task by WorkSafe,” he says. “Instead, they were told ‘it looks like you have this in hand, we won’t be taking it any further’
“While acting professionally and in the good interests of their clients, [the lawyers] were delighted with that outcome, but I think they were also quite puzzled at the message that sent out in terms of the effectiveness of the regulator.
“Even the clients themselves were aware they’d made mistakes and were expecting some form of penalty or intervention. That just didn’t happen.
“On the flip side, you have reasonably minor infractions that are dealt with quite harshly, which leads to this collective sense of confusion about what gets prosecuted or investigated and what’s ignored.”
Corporate homicide
While Beaglehole’s report criticises the performance of most regulators, it singles out Maritime New Zealand (MNZ) for praise.
Without commenting on the merits of the case, Beaglehole says MNZ’s prosecution of former Ports of Auckland chief executive Tony Gibson was an example of a regulator attempting to hold the sector it oversees to account.
Gibson was charged over the 2020 workplace death of Pala’amo Kalati for failing to undertake due diligence to ensure the port complied with its obligations under the Health and Safety at Work Act.
The judge-alone trial recently wrapped up in the Auckland District Court and a judgment is pending. It is significant because it is the first time a chief executive of a large New Zealand company has been charged under the Act, according to an analysis by Simpson Grierson.
Beaglehole says the case involves MNZ clearly setting expectations about the standards it expects to be met. “We’re encouraged by the fact that Maritime New Zealand is being deliberate and explicit in highlighting what it considers to be health and safety failures at a leadership level,” he says, “unlike Whakaari/White Island, where there was kind of a shotgun approach to directors that doesn’t appear to have been terribly well thought through and hasn’t succeeded.
“Maritime New Zealand has also made the effort to engage with industry and help understand what good practice and poor practice look like. “Now what we’re seeing is it holding [businesses] to account.”
The Whakaari/White Island volcanic eruption in December 2019 left 22 people dead and 25 severely injured. WorkSafe brought charges against 13 defendants, including tour operator companies, island owners and government agencies.
Five companies were collectively fined $2 million for failing to assess and mitigate risk, and three of the five were to pay a collective total of $10.2 million in reparations to victims and their families.
However, individual charges against three directors of the company that owns the island were dismissed. Labour’s workplace relations and safety spokesperson Camilla Belich says an offence of corporate homicide should be introduced because too many employers are breaching workplace safety standards without consequence.
That’s what the families of people who have lost loved ones will tell you. There isn’t the accountability they expect” she says. “That’s why I propose a new member’s bill on corporate homicide. It’s been advocated for some time by the families of those killed at Pike River. It’s something they’ve wanted to see.
“It could serve a dual purpose. It could account for the justice those families feel they’ve been denied and it could also serve as a preventative measure and an incentive for companies to ensure their health and safety measures are absolutely the best they can be.
“It would hold them accountable for recklessness and obviously for any intentional safety breaches.”
“It’s not an unusual bill by international standards. We have a lot of common law jurisdictions like Australia which have brought in similar types of measure, and a lot of those other countries have lower fatality rates than New Zealand.”
Belich’s proposal is backed by unions and Beaglehole says some employers surveyed for his report also support the principle of a corporate manslaughter offence but fear it could not be properly implemented under the current regime.
“We have such haphazard implementation in New Zealand that it leaves people with a concern about how a corporate manslaughter rule might be applied,” he says
“If we saw a more robust, structured and applied framework, there would likely be more comfort around a corporate manslaughter law. I don’t think people have that comfort at this stage.”
Beaglehole says the government review should not result in urgently needed work to improve regulations and implement the 2018-2028 strategy going on the backburner.
“Continued navel gazing is going to get us nowhere,” he says. “Update the strategy, sheet home some ownership and accountability. WorkSafe and MBIE are part of the process, let’s be clear about what their responsibilities are and have an action plan that has some industry involvement.
“Just waving around and saying ‘it’s the employer and the workers who best understand the risk’ is not going to be enough. “There’s kind of a fixation on regulation, that regulation is bad for business.
“But in certain circumstances, and health and safety is one of them, regulation encourages good business practice because good health and safety is good business practice.” ■
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