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Workers harmed by 'she'll-be-right' culture

The Dominion Post - Tuesday 7 MAY 2013

Pope Francis has criticised the working conditions of Bangladeshi workers caught in a building collapse. More than 600 people are confirmed to have died in the building, which was home to several factories making clothes for Western companies.

Factory crumbles: The Pope has criticised the working conditions of Bangladeshi workers caught in this building collapse.

At the same time as the Pope levelled his criticisms, an independent task force on workplace health and safety in New Zealand produced its report. The report was commissioned by the Government and is the culmination of 11 months of consultation and investigation.

Over the last 40 years there have been significant changes in the way workplace safety is managed. Up until the 1960s, negligence actions were one of the main ways an employer was held to account for shortcomings. This was coupled with a workers' compensation scheme which provided a modest amount to injured workers on a no-fault basis.

The weakness of this system was that for a worker to receive any meaningful compensation, actual fault would need to be established on the part of the employer. Often the uninsured "man of straw" employer would leave the injured worker out in the cold.

In 1974, the accident compensation scheme was introduced which compensated victims of accidents, regardless of whether the perpetrator was to blame. It also meant questions of blame-worthiness in cases of workplace injury were often left unanswered.

So in 1992 the Health and Safety in Employment Act was introduced, putting minimum standards in place. Employers were required to provide a safe workplace, penalties for non- compliance were included. However, the act was quickly deemed inadequate and penalties for non-compliance were raised in 2003. Courts have progressively increased the penalties as well but they are often still low.

Now we have a total review of our health and safety legislation.

The task force found our workplace safety culture is wanting. One in 10 workers are harmed at work every year. The cost of injury to ACC is significant. Worse still, a significant number of deaths are attributed to occupational illness and the failure of employers to maintain workplace safety.

The task force also noted that New Zealand's "she'll-be-right" culture is especially risk-tolerant and has a negative perception of health and safety.

The task force said the Government's primary regulator and prosecutor, the former Department of Labour (now part of the Ministry of Business, Innovation and Employment), is not effective and contributes to poor outcomes (i.e. unsafe workplaces).

The royal commission into the Pike River tragedy had earlier made this point. The regulator, according to the task force, is under-resourced, lacks adequate guidance and has seriously neglected occupational health issues and high hazard workplaces.

The task force has made a number of recommendations, one of them the establishment of a new workplace health and safety agency with a clear mandate and functions. It will be interesting to see how the Government deals with this as it goes against National's preference for merging state agencies.

Other recommendations include significantly increasing punishments for "intentional breaches", incorporation of elements of the Australia's workplace health and safety model, and increased protections for workers who raise concerns to their employers.

The task force uses the proverbial carrot and stick. The carrot is reduced ACC levies for the good employers who have few workplace injuries and accidents. The stick is a significant increase in fines, particularly where the behaviour was intentional.

There is no shortage of recent cases that illustrate the problems that have the task force so concerned. Most notably there has been Pike River, but other lower-profile incidents show some of New Zealand's health and safety failures.

In one case involving Carter Holt Harvey, an employee was killed after he fell 10 metres through a PVC roof on to concrete. The employer pleaded guilty and had already made efforts to assist the deceased's family. It was hit with a penalty of $130,000, made up of a fine of $30,000 and reparation of $100,000.

In another case involving the Sealord Group, an employee was killed while cleaning machinery on a vessel. Sealord pleaded guilty to offences under the Health and Safety in Employment Act. The risk of injury had already been identified but the recommendations had not been acted on at the time of the worker's death. A total award of $195,000 consisted of $10,000 in fines and $185,000 in compensation to the family of the deceased. That again may seem modest, when the maximum fine was $250,000.

One would assume the ability of the employer to pay would be a factor so that if the maximum fine is of this level with a large employer, one might expect it to be quite modest for a small employer of no substance.

Pope Francis is emerging as a voice for the vulnerable. Workers in a country like Bangladesh suffer from poor safety standards, low wages and few voices of support. New Zealand is certainly not in the same category. The call of the task force to do much better is something the Government will no doubt consider carefully and hopefully act upon.

Cullen - The Employment Law Firm is one of only eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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