'She'll be right' not good enough at work

SUSAN HORNSBY-GELUK
Last updated 05:00 19/02/2013

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OPINION: On April 30 an independent taskforce set up by the Government will make recommendations that will potentially have a major impact on many workplaces.

This report has attracted little by way of public attention even though it could significantly affect the way we work. Employers, employees and unions therefore need to be prepared.

New Zealand does not have an enviable record when it comes to health and safety in workplaces. Our rate of workplace deaths sits at more than four per 100,000 workers, which is significantly higher than Canada, Australia or Britain. Just as worrying, the number of injuries and deaths in New Zealand is not reducing as it is in comparable jurisdictions.

The Pike River mine tragedy highlighted the inherent problems with New Zealand's current approach. New Zealand relies on a regulatory system for health and safety that is not prescriptive, but based on a series of principles.

It essentially requires employers to self-regulate. This is fine in theory if everyone meets their obligations and there is a sufficiently well-organised, skilled and resourced enforcement agency in place. But as Pike River showed, this is not necessarily the case.

There has also been criticism that the current health and safety system does not take into account the modern face of employment relationships. Factors such as sub-contracting, casualisation, migrant workers and so on make applying a "one size fits all" approach problematic.

The Government has therefore appointed an independent taskforce to review New Zealand's workplace health and safety systems. The Health and Safety in Employment Act 1992 is more than 20 years old, and questions are being asked as to whether it is up to the task of keeping workers safe.

The taskforce comprises six members drawn from business, unions and those with specialist health and safety expertise. Its role is to recommend practical measures to the Government that will reduce the numbers of workplace deaths and serious injuries by 25 per cent by 2020.

The taskforce conducted a public consultation process through a series of 32 meetings in late 2012. The report on the feedback received at these consultation meetings makes for interesting reading.

Participants noted that the legal health and safety framework was difficult to understand and too open to interpretation to be useful in a practical context. Most people who run businesses are not lawyers, and neither are their employees. The key requirement in the Health and Safety in Employment Act 1992, to take "all practicable steps" to ensure the safety of workers, can be interpreted in various ways, and is unhelpful as a guide.

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The Ministry of Business, Innovation and Employment, which incorporates the Department of Labour, comes in for criticism in terms of being under-resourced and not having sufficient numbers of well-trained staff. This was evidenced by the lack of mine inspectors before the Pike River tragedy.

The ministry's role as a reactive enforcement agency rather than a proactive educative one is highlighted as potentially undermining the effectiveness of the health and safety framework.

One area singled out is the role of business leaders in health and safety. Some of the feedback calls for greater corporate accountability, including the introduction of a criminal charge of corporate manslaughter. This could see managers and/or company directors jailed if employees are killed at work where appropriate safety systems have not been put in place.

A focus on profit over health and safety was also identified as an issue behind New Zealand's poor health and safety record. Others focused on a failure of Mobie to prosecute employees who ignored safety instructions or improperly used equipment.

Another interesting issue identified was the apparent complacency of workers when it comes to workplace health and safety issues. A variety of explanations have been put forward, including New Zealand's traditional "she'll be right" mentality and a fear of being persecuted for raising concerns, through to a lack of training on health and safety issues and the lack of qualified professional consultants in this area.

Submitters also noted that the quality of advice received from external consultants and from Mobie itself was variable at best. Some criticised the ACC system, which they argued serves to hide the true costs of workplace accidents and provides workers with financial cover without apportioning blame.

Some submitters suggested that parents and the education system were to blame by wrapping young people entering the workforce in "cotton wool". Their first employer therefore becomes responsible for imbuing a sense of personal responsibility and safety at work.

Given that Australia and Britain have broadly similar education systems to ours, one wonders how they have been so successful in reducing workplace deaths and injuries compared to New Zealand if this really is a causative factor.

So what are we likely to see the taskforce recommend? An overhaul of the health and safety function within Mobie will definitely result. Work on this appears to be under way already.

Of more interest will be the impacts on employers and workers. We may see a greater focus on education in the workplace for both managers and staff and a greater degree of prescription when it comes to health and safety, particularly in more dangerous work environments.

I would also expect to see greater obligations around corporate responsibility and possibly even the introduction of criminal charges against managers and directors who fail to take steps to look after their staff.

There will need to be a significant change of attitude towards health and safety in the workplace if we are to change our appalling record of deaths and serious injuries.

- Susan Hornsby-Geluk is an employment law specialist and partner at Chen Palmer.

- © Fairfax NZ News

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