There will be no improvement to workplace safety as a result of
the proposed tinkering with New Zealand's workplace health and
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
The Government is acting on two initiatives from last
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
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
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
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
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legislation is outdated , due to the individualisation of the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
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
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
This WHS decision clarified the interpretation of s 19 of the Work Health and Safety Act 2011 (NSW).
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