Some thoughts on workplace safety
The photo below was taken by me in January 2019 at the top of Hawker St in Wellington. It epitomises many of the problems that exist with health and safety management and in particular the need stressed by the Independent Taskforce to change H&S culture.
In the last couple of weeks workplace health and safety has been in the news yet again with the release of the film Pike River; reports of the meeting between Anna Osbourne and Soya Rockhouse and the Minister of Workplace Safety; and news that Police believe they may have sufficient evidence to lay manslaughter charges in relation to the explosion.
The events have given anyone interested in workplace health and safety, which should include pretty much every New Zealander, plenty to talk about. Or in my case write about.
The regulation of health and safety has been controversial for as I long as I have been following such matters – several decades as I prefer not to remind myself – and as long as I can recall measures to improve workplace health and safety have been sporadic, less than effective and with no significant reductions in workplace deaths and injury.
The continuation of this situation has recently been confirmed by the release of a Report by the Public Health Communication Centre Aotearoa Fifteen years after Pike River: Time for leadership on workplace health and safety.
The report is unequivocal – notwithstanding the health and safety reforms Aotearoa New Zealand’s “health and safety record remains poor, with little improvement in fatality rates. Compared to the UK and Australia, NZ has higher rates of workplace deaths and injuries, costing the country around $5 billion annually.”
The Report notes that: Other countries have taken stronger action, such as unlimited fines and the introduction of corporate manslaughter laws. The Briefing argues for better leadership, stronger enforcement, increased fines, and more accessible legal guidance for businesses. It also calls for all businesses to appoint competent workplace health and safety advisers to help improve productivity and protect workers.
So what has gone wrong?
A bit of history
The first serious step in harmonising and modernising H&S law was the Health and Safety in Employment Act 1992. Previously H&S was regulated by 27 Acts with over 40 sets of subsidiary regulations, and administered by five separate departments. Additionally many awards often included provisions such as working hours, rates and speed of production, shift length, etc which impacted on worker health and safety.
The 1992 Act adopted the approach taken in the 1972 UK Robens Report. The key elements of the Robens “three-legged stool” model - a single Act covering all workers, where responsibility for health and safety lay primarily with with employers and workers but with the state providing regulatory oversight and enforcement. Unfortunately the timing of the 1992 Act was not good – the Robens model was based on the existence of a relatively strong trade union movement and relatively well-resourced regulatory agencies. These characteristics were rapidly vanishing in 1990s New Zealand.
Interestingly the one point where I recall employer-union agreement at the time of the 1992 Act was on the need for a stand-alone regulatory body - a proposal killed off the Department of Labour protecting its own empire.
Strong worker involvement was off course a non-starter by 1992.
The next major reform was the Health and Safety at Work Act 2015 (HSWA) enacted in the shadow of the Pike River tragedy and the resulting recommendations of the Royal Commission of Inquiry and the later Report of the Independent Taskforce on Health and Safety. The promise of that Act was a new era in workplace H&S – although the undermining of worker involvement during the later stages of the Bill’s progress might have provided a portent for the future.
Pike river – the film
If you haven’t already done so go and see it. The key focus of the film was the story of the developing relationship between Anna Osbourne and Soya Rockhouse rather than the explosion itself but a strong secondary theme is the lack of accountability of Pike management and those charged with the statutory management of H&S for the appalling failures identified by the Royal Commission of Inquiry.
Anna and Sonya meet Brooke van Velden
Those attending the premier showings of Pike River would have heard both Anna and Soya address the audiences. One could not help but be struck by the confidence with which they spoke and the clear, coherent and forceful nature of their address and of their desire to see some accountability for the tragedy.
One wonders then what, Brooke van Velden, the Minister for Workplace Relations and Safety made of them at their meeting on the 15th anniversary of the Pike explosion. Anna and Sonya made their view of the meeting and the Minister extremely clear: “a complete waste of time” they are quoted by RNZ as having said. Sonya also said, "she seemed to be focusing all the time on the employers and I sat and listened to it for a little while and then I just couldn't stand it,"
No surprises there!
Given the Minister’s reluctance to meet anyone outside a very limited circle one might speculate that the Minister’s agreeing to this meeting beenthe potential negative political optics of refusing to meet.
At least the day was not completely wasted as in a second meeting with Winston Peters he was reported as supporting calls for legislating a crime of corporate manslaughter.
15 years after Pike River
The 19th November was of course the 15th anniversary of the Pike River Mine explosion. The weeks before and after that anniversary have seen a number of events that yet again raise the question of why the HSWA has failed to live up to its promise. An article in The Listener, “Doing without the canary” by Rebecca Macfie goes a long way in explaining this. Rebecca is of course one of the country’s outstanding investigative reporters and has previously analysed the Pike River tragedy in detail in her book Tragedy at Pike River Mine (Awa Press) about to come out in a third edition in December.
Doing without the canary: the rot has been developing for some time
In “Doing without the canary” (The Listener November 15th), looks at the history of the HSWA since its enactment.
One of the key points that emerges from this article are that one of the key regulations intended to support the Act, that relating to plant and structures (where 79 percent of workplace deaths occurred over the previous decade) was well advanced by 2019 and broadly accepted by all sides of industry. However implementation was blocked by a Labour Cabinet more concerned about possible blowback from the farming lobby.
The political failure has continued under the present Minister. Macfie writes: Business New Zealand, the Council of Trade Unions and industry and health and safety groups wrote a joint submission to van Velden in October 2024 pleading with her to adequately fund WorkSafe and to deliver urgently needed regulations such as plant and structures. They appear to have been ignored.
The second major point is that bureaucratic arm wrestling – this time between MBIE and WorkSafe has had highly negative consequences – a sense of déjà vu was no doubt felt by those around in the 1990s.
A few points about the HSWA
The HSWA which implemented the key recommendations of both the Pike Royal Commission and the Independent Taskforce was passed in 2015. With minor variations it adopts the Australian Model Health and Safety Act developed in 2011. That Act had already been operating for several years and has since been strengthened – nor has it been watered down. It appears to have been very successful.
Three key points might be made about the New Zealand Act and the nature of the reforms.
First, the key duty on business is that the principal duty-holder, a PCBU, “must ensure, so far as is reasonably practicable, the health and safety of workers”.
This was worded slightly differently than the 1992 Act but did not substantially alter the obligation owed. The duty to identify and minimise hazards remains much as it was before 2015.
Second, the Act introduced the concept of a PCBU – a reform which along with extending the range of people the key duty is owed to (contractors etc), was necessary to ensure coverage of contemporary business practices and work force structures. The earlier Act had more of a traditional employer-employee focus.
Third, while the recommendations and the original proposal placed a strong emphasis on effective worker involvement these have been watered down. The need for workers to have a strong and informed voice, supported by independent advice would go a long way to improve workplace safety – although in a situation where high-risk sectors are often small employers worker input will continue to be problematic.
Fourth and most significant, the Act extended the H&S duties to directors and other senior management by imposing a positive duty of “due diligence”.
This was perhaps the most important recommendation from the Royal Commission and the Taskforce. No longer could directors rely on “see no evil, hear no evil, speak no evil”.
The duty in s 44, quite reasonably, requires directors to
(a) to acquire, and keep up to date, knowledge of work health and safety matters; and
(b) to gain an understanding of the nature of the operations of the business or undertaking of the PCBU and generally of the hazards and risks associated with those operations;
and to ensure processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking are in place,
Hardly an onerous duty and one that might be expected in relation to all aspoects of a business!
Nevertheless the panic in 2015-16 which provided a financial cornucopia for H&S consultants of variable quality would seem to owe more to the looming liability of directors and other office holders than a concern with worker safety per se. It is also likely to be the foundation for much of the business dissatisfaction that the Minister has “heard” .
The Ministerial Response and its Critique
Given this background the response of the Minister has been appalling. If van Velden was less ideological driven and more consultative she might have been remembered as the Minister who finally achieved major advances in improving workplace H&S. The tools were ready and largely in place, bilateral support was clear.
Instead the Minister seems likely to be briefly remembered as the Minister who might have saved us from marauding zombie like road cones!
Instead of taking proper and informed advice and listening to those most involved the Minister went off on a tangent about the need to focus on critical risk – as if this wasn’t already being done- and for WorkSafe to end the climate of “fear” generated by its processes and to focus on moving to from being an “enforcement agency to one that engages early and well to support businesses”. Whether this fear ever existed, let alone justifiable, is debatable.
What is clear is that, contrary to the impression created, the Act allows a very flexible range of at least 5 levels of regulatory responses from low-level improvement notices through to prosecutions. If the more severe measures are common it probably says more about the need for limited enforcement resources to be focused on the most critical H&S violations than a punitive culture.
The Minister’s approach to H&S was set out in her Cabinet Paper Health and Safety Reform: Shifting WorkSafe Expectations and Operational Focus (3 June 2025).
This paper was eviscerated in a Newsroom comment in June, History’s verdict is already in on van Velden’s safety reforms, Rebecca Macfie made the point that the inspectors at Pike: “invariably took a kindly approach with the company and its driving force Peter Whittall, as well as with the many mine managers who came and went with great frequency in the short benighted life of the project. The inspectors were approachable, and Pike often raised concerns and sought input from them. They took a low-level compliance strategy, seeking negotiated agreements with Pike.” … “even when they could – and should – have used their statutory powers to shut the place down.”
The Minister’s attitude to workers is probably best illustrated by the complete absence of a worker representative on the WorkSafe Board and the expectation (in [42] of the paper) to set an expectation that WorkSafe strengthen its approach to worker breaches of duty.
Final thoughts
The key point in Rebecca’s article is that those who run safe workplaces are also, by association, running good businesses. She refers to a 2024 report from the Business Leaders’ Health and Safety Forum stating, “[For] well-run businesses, health and safety is simply part and parcel of a tidy house, a well-performing business and a confident workforce.”
Indeed!
The Public Health Communication Centre Report concludes “We should follow the path taken by other countries to better protect the lives and wellbeing of our workers and also boost productivity. We owe the 29 Pike River miners this much”
This echoes the sentiment expressed by the Pike River Royal Commission: “In relation to underground coal mining New Zealand has had a tragedy every generation or so, after the lessons of previous tragedies have been forgotten. This time the lessons must be remembered … That would be the best way to show respect for the 29 men who never returned home on 19 November 2010, and for their loved ones who continue to suffer.”
And to leave the final word to one of those most affected by H&S failures. Anna Osbourne is reported by RNZ as saying "we just need somebody with some balls who's prepared to really put their heart and soul into getting this health and safety legislation and the reforms working properly for all New Zealanders."
If only!