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Reflecting on the 10-year anniversary of the Pike River Mine explosion

November 19, 2020

Grant Nicholson Partner
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Ten years ago the Pike River Mine exploded, killing 29 men working underground.  This tragedy affected not just the victims but also their families, the array of businesses involved in the mine, and the broader West Coast community.  At its widest, the explosion also had a lasting impact on New Zealand generally. 

 

The Government of the day rapidly convened a Royal Commission of Inquiry led by retired High Court Judge Graham Panckhurst.  The Royal Commission worked tirelessly for over a year, before presenting a comprehensive report in early 2012.  The critical findings of the Royal Commission are well known but include:

 

  • Poor governance and oversight by the Board and management of Pike River Coal Limited
  • A culture of production over safety, with coal extraction occurring before all appropriate safety infrastructure was complete
  • An inadequate legal framework to regulate underground coal mining
  • An under resourced and ineffective regulator (the Department of Labour in those days) which accepted assurances from Pike River Coal and failed to take significant action despite ongoing breaches of relevant health and safety laws and mining regulations.

 

After the Royal Commission released its report, the Government commissioned an Independent Taskforce to make recommendations on how to improve the regulation of health and safety in New Zealand and reduce our rate of fatalities and serious injuries by 25% by 2020.  The recommendations by this Taskforce included creating a new stand-alone health and safety regulator and repealing the Health and Safety in the Employment Act 1992 and replacing it with a new law based on the Australian Model Law.

 

The Government accepted these key recommendations and promptly moved to implement them. A new health and safety regulator, WorkSafe New Zealand, was created in December 2013 and a new law, ultimately passed as the Health and Safety at Work Act 2015 was introduced. 

 

These actions created cautious optimism that New Zealand would learn the painful lessons from Pike River, and our poor health and safety record would improve. 

 

Ten years on from that day, we question the progress that has been made.  When looking at the health and safety landscape in New Zealand, it seems that serious questions remain:

 

  • Is WorkSafe sufficiently funded and resourced for its intended role as a dynamic, modern regulator?
  • Do the leadership and front line inspectorate staff at WorkSafe have sufficient knowledge, resources and support to properly and fairly investigate workplace incidents and take appropriate and proportionate enforcement (or other) action when they identify problems?
  • Is New Zealand’s accident compensation regime, trumpeted since its introduction in the 1970s for the innovation of the “no blame” approach to personal injury by accident, still fit for purpose or is it inadvertently allowing duty holders to avoid fully meeting the financial and other consequences of poor health and safety practices?
  • Are Boards and senior corporate leaders doing enough to deliver good health and safety in their organisations?
  • Are workers themselves taking sufficient responsibility for their own actions and stepping up to lead, whether formally or informally in their workplaces, or is there something in New Zealand’s diverse “she’ll be right” culture that holds us back?
  • What are we missing that can create the step change we need to deliver better health and safety outcomes?

 

Ultimately, our fatality rate remains stubbornly high (89 deaths in the year to 30 September 2020, compared to 77 deaths in the 2010 calendar year when Pike River occurred and 69 in 2012 when the Government set its target of a 25% reduction by 2020) and our serious injury rates are little better. 

 

There are no easy answers,  instead, it takes the entire health and safety community – and in the business community generally – to make a difference.  The challenge for us all, is to make sure we do not cut corners, or turn a blind eye, or rely on others to make the hard calls (or even to take the first step). Improving health and safety outcomes requires a dedication and commitment to putting people first, with safety at the heart of design, planning, systems, and delivery of all work activities. 

 

This takes a willingness to change and do things differently.  Without a change in organisational philosophy to safety first all of the time, it is unrealistic for us to expect the future to deliver anything better than the past. 

 

Businesses are unlikely to do this alone. Better support and encouragement (the metaphorical “carrot”) is needed, including leadership from the Government in its operations and procurement with a focus on safety by design and encouraging good practices, not just the cheapest price.

 

Stronger regulation and more frequent enforcement is needed too, for those unable or unwilling to change.  Asking for more enforcement is an odd request for a defence lawyer, and it won’t be something my clients want.  Despite that, it seems  that the current “stick” hasn’t worked, and we need to look at the frequency of prosecution and greater penalties countries like Australia and the United Kingdom have adopted, especially in serious cases. As New Zealand has relatively less large businesses, and small and medium enterprises are already “pleading poverty” when faced with fines at current levels, increasing fines alone is not the solution.

 

Another thing we don’t need is corporate manslaughter. History tells us that creating a new offence doesn’t change behaviour (otherwise everything would have got better since 2015), and this risks important unintended consequences as Boards and senior management drown their organisations in bureaucracy and paperwork to protect themselves from the threat of personal liability.

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