CTU Media Statement

5th November 2012

Pike River Report Slams the Company and Government over Shameful Tragedy

The Council of Trade Unions says that the Pike River Report is a damning indictment of both the company and weak regulation of health and safety by Government and brings shame to this country that now must be addressed.

Helen Kelly, CTU President, says that the tragedy of Pike River is that this shocking accident was preventable. These 29 men lost their lives in a terrifying ordeal that has been devastating for their families, workmates and community.

“This should never have happened”.

“It is time we put workers in a position to have a genuine and forceful say over their own health and safety at work”.

Helen Kelly says “this is a very comprehensive report. It provides further evidence of the reckless behaviour of this employer towards the health and safety of their workers and makes forceful recommendations. The Government must ensure that such strong recommendations are implemented and also contribute to the final outcomes of the Independent Health and Safety Taskforce”.

The Royal Commission findings are damning.

They have stated that ‘the drive for coal production before the mine was ready created the circumstances within which the tragedy occurred’ and that ‘warnings were not heeded’.

The Royal Commission has also found that the Labour Department should have prohibited Pike from operating the mine until its health and safety systems were adequate.

Helen Kelly said that it is appropriate that the Minister of Labour has resigned in all the circumstances.

But there are many who must accept responsibility.

“The Directors of Pike River and its CEO should now be charged”, she said. “It is not viable for them to have sat at the decision making table as this mine was developed and operated in these circumstances and not now take responsibility under the law of this country for the deaths of these men”.

The CTU supports the overall thrust of the recommendations and will study the huge report carefully.

The acknowledgement of the vital role of health and safety representatives and of unions is vindication of the huge priority we place on health and safety.

We welcome for instance the proposal to create a new Crown agent but want further details. We believe that such a Crown agent should have a tripartite board as in the UK.

Helen Kelly said that the Prime Minister has said that now there is a period where the Government will consider detailed design and implementation issues in relation to the recommendations. Helen Kelly says that they could have already re regulated mining without this report and they must now make up for this delay.

“It has been two years since the deaths and no one in the country is arguing against strong regulations for this sector – but still there are none” she said.

“Unions must be involved in the development of these regulations and all aspects of implementation and this must be done urgently”.

The CTU submission to the Royal Commission argued for a specialist health and safety agency, a review of penalties and introduction of corporate manslaughter, and much greater worker participation in health and safety including check inspectors in mines and other high hazard sectors. The CTU also submitted that the existing tripartite Workplace Health and Safety Council be reconstituted as a statutory body, and properly resourced, to undertake a review and advisory role, engage in the process of standard-setting and recommending changes to OHS standards, and promoting of OHS education and training, and to supervise the work of tripartite industry committees.

ENDS

For further information please contact Helen Kelly on 021 776 741 or Peter Conway on 0274 939 748.

Background Note:

We set out below the main points in the CTU March 2012 Submission to the Royal Commission:

Summary of NZCTU recommendations (Full Submission is attached)

Regulatory Agency
That the Commission recommend that consideration be given by Government to the creation of a new Crown Entity under the Crown Entities Act 2004, with a tripartite governance structure, as a specialist agency focused solely on the development, administration and enforcement of the HSE Act 1992 , and the workplace enforcement of the Hazardous Substances and New Organisms Act 1996.

That the Commission note the expert evidence that the location of an OHS inspectorate in a government agency whose primary responsibility is the economic success and productivity of the very industry it purports to regulate is “a prescription for disaster”.

Leadership and Penalties
That the Commission recommend to Government that the adequacy of the penalty regime under the Health and Safety in Employment Act be reviewed and an offence of corporate manslaughter be introduced into New Zealand criminal law.

Expert Evidence on Employee Participation
That the Commission note the expert evidence to this Inquiry that worker participation in the identification, assessment and control of workplace hazards is fundamental to reducing work related injury and disease.

Employee Participation: Coal mining industry
That the Commission recommend that a system of site and district check inspectors be put in place in the coal mining industry based on the comparator Queensland jurisdiction.

Employee Participation: High Hazard Industries”
That similar enhanced worker participation systems be considered by the Workplace Health and Safety Council for other “high hazard industries”.

Key measures excluded from HSE Act
That the Commission note that the Health and Safety in Employment Act 1992 did not include key measures recommended by the Advisory Council on Occupational Safety and Health in 1988 including a tripartite commission and effective worker participation.

Pre-operation approval
That the Commission should recommend the amendment of the HSE Act to require an approval to operate from the regulator, at least in the case of high hazard industries.

The regulator should also have regard to the financial capacity of the proposed operator to fund the necessary investment to ensure that the operation can be undertaken safely. The CTU asks the Commission to note the qualification to the general duty in the HSE Act which allows the cost of taking a “practicable step” to be weighed against others.

The CTU would also go further and propose that all new businesses should be required to turn their mind to how they will protect the health and safety of workers in the proposed business and prepare a “safety case” plan.

High Hazard Unit
That the Commission endorse the establishment of the High Hazard Unit in principle with a recommendation that the details of the unit and its operation should be the subject of further consideration by the tripartite Workplace Health and Safety Council. This consideration should include a review of the scope of “High Hazard industries” which may include, for example, forestry in the private sector and corrections in the public sector.

“All practicable steps”
That the Commission note that almost all comparable jurisdictions have “all practicable steps” as the general duty test in their legislation but, unlike New Zealand, have supplemented it with comprehensive and prescriptive regulations in the coal mining industry.

Regulations and Approved Codes of Practice
That more comprehensive and prescriptive regulations and approved codes of practice are required where possible to provide greater certainty to duty holders under the Act.

That, in an industry like the underground coalmining industry, where the hazards and the control measures are well known, there should be a positive legal obligation in the Act to regulate for the protection of workers, rather than simply a power to regulate.

Such regulations and approved codes of practice should reflect, as far as possible, similar instruments in the comparator jurisdiction; in effect creating a co-regulatory arrangement.

Tripartite Advisory Council and Industry Committees
That the existing tripartite Workplace Health and Safety Council be re-constituted as a statutory body, and properly resourced, to undertake a review and advisory role, engage in the process of standard-setting and recommending changes to OHS standards, and promoting of OHS education and training, and to supervise the work of tripartite industry committees.

Task Force Approach
That the Royal Commission recommend to the Government that a “task force” approach, under the auspices of the Workplace Health and Safety Council, be taken to the development, administration and enforcement of the HSE Act 1992 , and the workplace enforcement of the Hazardous Substances and New Organisms Act 1996.

Employee Participation: general provisions
The Commission should recommend the following enhancements to the Part 2A of the Act in relation to the Health and Safety provisions of application to all industries:
o Extending the function of Health and Safety representatives (Schedule 1A Part 2) representation rights to include all workers (e.g. contractors) –
o Allowing Health and Safety Representatives adequate time and support to enable them to undertake their functions
o Strengthening the requirement on employers to consult Health and Safety Representatives with regard to process and systems such as risk management and osh systems
o Requiring the inspectorate to recognize and consult with Health and Safety Representatives
o Requiring the regulator (DOL) to fund the proper training of Health and Safety Representatives under the HSE Act.
o Requiring the regulator to enforce Part 2A of the HSE Act
o Recommending the development of a Code of Practice (as anticipated in section 19B(3) and provided for in section 20 (1)(ad) of the HSE Act)
o Providing a specific power for Health and Safety Representatives to stop dangerous work
o Provide Health and Safety Representatives with a power to issue a Provisional Improvement Notice in addition to their current power to issue a Hazard Notice.
o Providing Health and Safety Representatives with effective legal protection against discrimination and unjustified actions (including dismissal) if there is any cause to suspect that it may be related to the duties undertaken as an HSR.

Funding
That the Royal Commission should, in recommending to Government the work programme necessary to upgrade the Act and its administration and enforcement, particularly in relation to high hazard sectors such as underground coal mining, propose that the HSE Levy be used, and increased as might be necessary, to ensure that the work is properly funded.

That the Commission note the expert evidence that research on US coal mines shows that the fatality rate is inversely related to the size of the Government budget allocation to the regulator – the larger the budget, the smaller the fatality rate.

ENDS

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