OPINION: Ombudsman Dame Beverley Wakem can stop scratching her head. The answer to why no-one at Pike River called her office to blow the whistle under our Protected Disclosures Act is simple.
The Kiwi workplace has changed dramatically in the past 20 years. Many workers no longer have the rights and roles that used to protect them, while many of the agencies we once relied on to ensure those protections were in place, have also lost their bottle.
Despite the high-volume grizzling from employer organisations, the law actually gives bosses extraordinary control over workers.
Workers used to be described as servants and did as they were told, including taking massive risks to their personal safety. As the industrial age wore on, enlightened legislators introduced some balance by protecting workers who united to deal with their employer as a single group, especially over health and safety issues. Even so, it took until 1970 before workers had protection against arbitrary dismissal.
Fast forward to the 1990s. The massive deregulation of workplace laws was always more than just about diminishing the role of unions. It changed the way many workers were employed, and fundamentally altered their status in the workplace. The widespread use of contractors and labour-hire agencies was unleashed.
The conditions under which Neil Pugmire - the mental-health worker whose actions ultimately led to the Protected Disclosures Act - blew the whistle simply do not prevail in many workplaces today.
The Pike River coal company was the logical conclusion of the changes in the 1990s. Of the 29 killed, 16 worked for contractors and labour agencies.
Working for a boss who doesn't control the workplace changes the way you think about your job and work. Who do you go to if you see something wrong?
To the manager who took you on but hasn't seen you since? To the mine company deputy whose job is really only to make sure you are in the right place? To the mine manager who you've probably never met?
And what about the power of the business owner to tell the contractor that you're no longer allowed on site, whether there is a good reason or not?
Who would willingly put themselves at that risk?
The movie industry agitated for the right to hire contractors only for good reason.
Thousands of New Zealand workplaces are now a mess of multiple employers, mixed-up employment relationships and diffuse responsibility. There is no common interest. Solidarity - the healthy sense of looking out for each other - has broken down.
It is a brave person these days who is prepared to put their head on the line.
Forget protected disclosures. This assumes an ongoing interest in the workplace. That doesn't happen in too many New Zealand workplaces today.
What about the miners directly employed by Pike River?
I sat in on many interviews with them and interviewed some myself. Some of the first to be employed were told the company didn't want the union on site. The message was clear: forget any ideas of independent advice or support. The boss is in control.
Even when most of the miners at Pike River did join the union, the employer's response to a health and safety incident in which the union advised the men to walk out of the mine speaks volumes.
The first question from management wasn't about what prompted them to walk out of the mine. It was "who called the union?"
So, what about the state agencies? The miners' experience of the Labour Department inspectors was that they were present infrequently, they talked only to management, and they weren't very effective.
The inspectors were hardly trusted confidantes. Chances of whistle-blowing? Pretty much zilch.
Then there is the practice the department permitted, the Business and Employment Ministry continues and the Ombudsman's office has been trying to do something about - employers' lawyers sitting in on interviews of employees during OSH investigations.
They still don't get that these are criminal investigations where the worker's interests probably conflict with the employer's. But inspectors seldom stand up to the boss.
Two things conspire against whistle- blowing today. Employment laws that leave too many workers exposed because of contracting relationships. And state agencies that have lost people's trust.
Fix these and we will see a greater willingness to blow the whistle.
Andrew Little is a Labour list MP and a former secretary of the EPMU, the union that represents miners.
- © Fairfax NZ News
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