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Cones of shame: how New Zealand’s workplace safety regime is failing

27 Jun 2024

| Author: Neil Sands

The road to hell may be paved with good intentions, but it’s also lined with orange traffic cones, thanks to a workplace health and safety regime that the government says is failing to protect workers and a major overhaul is on the way.

Our workplace safety statistics make for grim reading. Kiwis are almost twice as likely to die at work than Australians. New Zealand’s workplace injury rate is about 25% higher than Australia’s and more than 40% higher than in the United Kingdom.

The Business Leaders’ Health & Safety Forum describes New Zealand’s record as “disgraceful”, while Business NZ says many regulations governing health and safety are “ambiguous, unreasonable or just not sensible”.

The forum estimates workplace harm costs New Zealand $4.4 billion a year. It says fatality rates have barely shifted in the past decade, with the most at-risk sectors comprising primary industry, construction, manufacturing and utilities (electricity, gas and waste).

Earlier this month, Workplace Relations and Safety Minister Brooke van Velden launched a review of the Health and Safety at Work Act 2015, the regulations underpinning the legislation and the performance of regulators, including WorkSafe.

The Opposition believes the review should go further, with Labour’s workplace relations and safety spokesperson Camilla Belich calling for the introduction of a new criminal offence of corporate homicide.

Van Velden says her priority is making sure New Zealand’s workplace safety regime is effective and everything is up for grabs.

“It’s very unfortunate that while we do have high levels of rules and forms that need filling out, we’re still failing and falling behind the rest of the world,” she says, pointing to overly complicated, prescriptive and ineffective regulation.

A frequently-cited example is traffic management regulation, which van Velden says has resulted in a “sea of orange road cones that have taken over our country”.

“From Santa parades to property development, you can get a lot done without having to set up a barricade of cones,” she says.

“While they may improve health and safety in some places, in other situations their prevalence just doesn’t make any sense.”

Business NZ says some of its members find traffic management accounts for half the cost of their development projects, often running into tens of millions of dollars.

“However cones, temporary speed restrictions, etc are often ignored by motorists, posing a danger to work crews,” Business NZ Advocacy Director Catherine Beard says.

The Business Leaders’ Health & Safety Forum looked in detail at the issue as part of a report into workplace safety, Been There. Done That, released this month. It found the New Zealand Transport Agency’s regulations on temporary traffic management were almost 600 pages long and “impenetrable to all but the most dedicated specialist”.

By trying to cover every possible scenario with prescriptive rules, the regulations created a bureaucracy that fails to reduce injuries and creates frustration for motorists, sometimes leading to abuse or even assaults on traffic workers. The good news is that new regulations are being trialled, still running to almost 100 pages but adopting a more flexible, risk-based approach.

The report says the traffic cones example contains broader lessons for workplace safety.

“In complex environments, there are too many factors to try to control everything,” it says. “Far better to clearly articulate the outcomes you are looking for and provide the tools to make that achievable in ways that are suitable for the local circumstances.

“System players need to work together to develop a clear vision of what is required. They also need to provide usable and flexible guidance on how to implement that and a sensible and proportionate regime for oversight and maintaining standards.”

 

Layers of compliance

Van Velden says there’s a willingness among employers to meet workplace safety standards, but the complexity of regulations means they often do not know how to comply.

“Over the past few years, we’ve heard from a range of businesses and workers who are unsure about how to keep themselves safe and keep their workers safe,” she says. “We know that, statistically, we’re not doing as well as other countries on health and safety, even though we have many layers of compliance and rules that must be followed.”

She says the consultation, which will include roadshows in regional areas, will be open until the end of October and she hopes to enact reform during this parliamentary term.

The minister outlined five areas the consultation will focus on:

  • whether health and safety requirements are too strict, or too ambiguous, to comply with;
  • difficulties caused by the overlap between work health and safety legislation and other requirements;
  • the actions that businesses undertake, the reasons behind these actions, and their effectiveness;
  • whether consequences for not complying with health and safety obligations are appropriately balanced and reasonable; and
  • whether the threshold at which work-related risks need to be managed is under- or over-cautious.

Van Velden says she wants the consultation to be broad-ranging and thorough.

“Everything is up for review as part of our reform,” she says. “We want to get to the root causes of why our health and safety system is failing. This means the regulations are open for review, the legislation is open to review and we’ll be asking questions about the role of the regulator.”

Van Velden says members of the legal profession can make a valuable contribution to improving workplace health and safety rules and she encourages submissions to the review here.

“We want to see better outcomes for health and safety, rather than tick-box exercises, so the rules are easy to follow and business owners can have confidence in what they should be doing to keep themselves and their workers safe,” she says.

“That’s what we’re hoping to achieve with our roadshows across the country. We want to hear as many perspectives as possible from business owners, workers, legal experts to help us understand how we can make the rules easier to follow and to ensure that, at the end of the day, more people come home safely to their families.”

Van Velden says on a recent visit to Fieldays, she spoke to a farmer who complained that after working his land during the day, he spent most of his evenings filling out forms required to comply with workplace safety rules.

“Not every business in New Zealand has an HR department to do this stuff. We need to do this work to help the small businesses who are the backbone of the economy.”

 

She’ll be right

Toby Beaglehole from the Business Leaders’ Health & Safety Forum says there’s no easy explanation for New Zealand’s poor workplace safety performance compared to Australia and the United Kingdom.

Beaglehole, who led the taskforce which produced the Been There. Done That report, says all three countries use the same regulatory model, but experienced differing levels of success. Some blame New Zealand’s “she’ll-be-right” culture while others point to the no-fault ACC system which prevents claims for personal injury, or cite the inconsistency of New Zealand’s regulators compared to other jurisdictions.

“On the international stage, other countries are cutting our lunch because we’ve been kind of lackadaisical around health and safety,” he says. “I think sometimes the cultural shift comes by sending the signals that ‘she’ll-be-right’ and ‘number-eight-wire’ just don’t cut it anymore.”

But van Velden says ascribing workplace safety issues to a “numbereight-wire mentality” is too simplistic. “We hear in some instances that the guidance is far too prescriptive, but then on the other hand many business owners tell us they’re really unsure [about] what they should be doing,” she says.

“They feel high levels of stress and anxiety attempting to follow the law and make sure they’re not personally liable if something goes wrong. So I don’t think it’s right to say we have a ‘she’ll-be-right’ mentality. I think there’s a complexity to our law that needs to be simplified.”

Beaglehole said there has also been a failure to learn from past mistakes, including the 2010 Pike River disaster, which claimed the lives of 29 miners.

An independent report into Pike River found in 2013 that the relevant legislation – at that time, the Health and Safety in Employment Act 1992 – was poorly implemented, the regulator was under-resourced and there was poor coordination among the agencies tasked with injury prevention.

“The 2013 report’s findings are largely true today,” Beaglehole says. “Can we have confidence there won’t be another Pike River? I don’t think so. It’s not that we require anything particularly complicated or difficult. We can get a transformative result by making a few small, deliberate steps towards greater accountability and ownership on either side.”

He says the legislation introduced in 2015 was sound but there had been a lack of progress in implementing the 2018-2028 Health and Safety Strategy that it gave rise to.

Labour’s Belich says she has received similar feedback from unions, business organisations and safety experts.

“There seems to be a consensus that the legislations is fit for purpose in terms of the way it’s drafted and the things it covers,” she says. “There’s also a view, though, that the regulations underpinning the legislation could be stronger. There need to be regulations that are appropriate for various workplaces that are developed in conjunction with the people who work in those areas to make sure we have the best health and safety standards.”

Beaglehole says the New Zealand system often fails to provide information to the people it is supposed to be helping.

“We should be sharing the lessons of a fatality within 24 hours, which is what happens in some parts of the system in Australia,” he says.

“Instead, what happens is we have a WorkSafe investigation that might go for a year. Everyone’s worried about legal implications, so they don’t want to share what’s happened. As a result, it all-too-easily happens again.” ■

 

Next week: regulating the regulator, and the case for and against an offence of corporate homicide.

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