New Zealand: The back to the future approach to health and safety won't work

Last Updated: 29 June 2013
Article by Phillip De Wattignar

There will be no improvement to workplace safety as a result of the proposed tinkering with New Zealand's workplace health and safety system.

There are several reasons why failure is inevitable.
But first, some of the background.

Seven years ago Occupational Safety and Health (OSH) disappeared into a multi-tier regional structure at the Department of Labour (DoL). The Government has moved to set up a separate health and safety agency once again. In the meantime DoL has been absorbed into the Ministry of Business, Innovation and Employment (MBIE).

The Government is acting on two initiatives from last year.
The first is the Pike River Royal Commission recommendation to set up a stand-alone health and safety agency.
The second is the Strategic Review of the Workplace Health and Safety system by an Independent Taskforce, set up in August 2012. It is expected to make recommendations in a report due this month.

Both initiatives are unlikely to improve health and safety for employees and other workers in workplaces.

Problems loom regarding the independence and staffing of the new agency.

The new agency will inherit problems in two key areas; management and staff morale.

A MBIE statement says the present MBIE Health and Safety Group (which used to be within the Department of Labour) is "expected to provide a strong foundation for the new agency". This group ran the failed structure so severely criticised by the Royal Commission.

As for staffing the new agency, the MBIE statement says "It is expected that staff in the Ministry's Health and Safety Group will be transferred to the new agency on the same terms and conditions of employment". Former DoL health and safety managers moved to positions in MBIE. They await the announcement of positions in the new agency structure to make their applications.
Frontline health and safety inspectors are going through their third significant restructure since OSH was established. Inspectors' functions are the focus of the changes and the Agency structure. Frontline staff have low morale and see the anticipated management reshuffle as rearranging the deck chairs on the Titanic.

With respect to the second initiative, the initial views of the Independent Taskforce engagement with expert reference groups are not encouraging. Members met with academics, employers, employee representatives and Health and safety inspectors. In comments regarding the contemporary workplace they acknowledged the legislation is outdated , due to the individualisation of the workplace relationship for employees.

They identified employee representation and participation, as envisaged in the Health and Safety in Employment legislation, as a "non-reality".
Instead of empowering workers they appear to naively hold the view ''culture change'' can be made in the workplace and that a '' shame the worker'' campaign modelled on television drink-driving campaigns will do the job.
Nonetheless there was no challenge to continuing public service management of health and safety compliance.

Individual employees will continue to have no ability to influence workplace health and safety nor enforce the law.

This compares poorly with their ability as employees to enforce rights under the Employment Relations Act 2000. That Act allows employees and employers to act or appoint a representative to act for them in relation to employment rights under that legislation as well as the Accident Compensation Act 2001, the Equal Pay Act 1972, the Holidays Act 2003, the Human Rights Act 1993.

The Health and Safety in Employment Act 1992 is not included. Health and safety prosecutions heard in the District Court are expensive and time-consuming. Other than Department of Labour prosecutions, very few cases have ever been taken by or on behalf of injured employees.

Relying on a structure of inspectors and voluntary compliance will fail. It would be better to allow employees and employers to take direct responsibility for penalising health and safety breaches through their own actions and their own representatives under the Employment Relations Act. That is what employees have been able to do with their other employment rights for the last 22 years. Trust them.

* This opinion piece appeared in the hard copy edition of the Otago Daily Times on Monday April 8 2013

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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