R.I.P.

JUSTICE IN NEW ZEALAND

12/12/2013

On the 19th November 2010, 29 men lost their lives in the explosion that occurred in the Pike River Coal Mine.

On the 12th December 2013 the district court announced that there would be no prosecution taken against Pike Rivers Chief Executive Officer Mr Peter Whittall in relation to the charges that were laid as a result of the Pike River disaster.

As a result of this decision in the district court it is now official that no-one is to be held accountable for the deaths of the 29 employees in the Pike River Mine disaster.

Justice in relation to Occupational Safety & Health is effectively dead.

Due to an ineffective regulator with ineffectual staff & failed procedures and processes there is to be no accountability.

It is incredulous that you can have a disaster in a workplace with 29 people losing their lives and there is no accountability other than from a failed company and a contractor to that failed company.

The directors of the Pike River Coal Co, the management of the Pike River Coal Co, the Mine Manager, the Pike River Coal Co Health & Safety Manager, the Safety Regulator (MBIE) and Government should have all been held accountable as entities in their own right, and also the employees of each of those entities should have been held accountable in relation to their individual responsibilities with regard to the opening and operation of the Pike River Mine.

Yet we have the safety regulator (MBIE) that laid charges against only one individual when in fact it (MBIE) should have been held accountable in its own right, for some of the decisions that were made, that allowed the circumstances to come about that resulted in the explosion in this mine.

The royal commission found that this disaster came about due to some of this country’s worst Health & Safety failings and yet not one person has been held to account for any of those failings.

From the day that this mine opened it was reasonably foreseeable that a disaster was conceivable and risks should have been effectively controlled and engineered out. To a discerning lay person a single entrance to a methane rich mine with a single ventilation system, a single escape tunnel (90 metres vertical & also used as an exhaust for the gases) would be forewarning enough.

When the health & safety failures are taken into account and added to the Inspectorate failures, which allowed standards to deteriorate to an unacceptable level, then disaster was a realistic probability.

After the HSE Act was implemented in 1992, the decision was made to transfer the Mining Inspectorate from the Ministry of Commerce to the Ministry of Labour.

The Mining Inspectorate went from being fully funded by levies paid by the mining industry to being funded out of the Ministry of Labour budget. With this change and the resulting effects on the staff of the Mining Inspectorate; it went from having seventeen (highly qualified and experienced) Inspectors across the whole country to one Inspector at the time of the disaster.

The sole remaining Inspector was unable to cope with the work load and as a consequence the levels of regulatory inspections for large coal mines reduced from at least six times per year, to virtually nil. Due to this lack of regulatory oversight in relation to requirements for underground coal mining, there was no-one checking to ensure compliance with legislation. This lack of regulatory oversight has significantly contributed to the developing circumstances that resulted in the explosion at the Pike River Mine, and the loss of 29 lives.

The Ministry of Business Innovation and Environment have recently admitted that their own safety regulator performed poorly in the lead up to this disaster.

The district court has declined to carry out a prosecution of Mr Whitttall due to lack of evidence, with a number of evidence briefs not being signed, over three years after the incident, and the failure to get witnesses to return from overseas to appear at any hearing.

This then brings the investigatory skills and proficiency of the regulatory staff and prosecutors into question.

The government has passed new legislation as a result of both the Royal Commission into the Pike River disaster & the Health & Safety Taskforce reports.

This new legislation is designed to strengthen the legislative requirements around mining and supposedly prevent the re-occurrence of this type of disaster in the future.

As part of the regulatory changes that the Government is making, they have decided to set up a standalone regulatory department (Worksafe New Zealand) to enact and enforce all of the Health & Safety legislation as recommended by the two reports.

Whilst this in itself is a commendable decision, without the provision of highly trained, qualified and experienced Inspectors and litigators, the legislation and its intended instruments will be no more effective than the 1992 version.

It is right that directors, PCBU’s, employees etc. should take responsibility for ensuring that they comply with any new law and for the consequences of their actions or inactions, but the Inspectors need to be trained and qualified in the industry sector so that they know immediately when something is not in line with common industry practices or even best practice. Qualified professional regulatory oversight by industry sector is essential or the intended health and safety improvements will be hindered.

Currently there is no minimum competency standard set for qualification of Inspectors in the mining industry. If this situation continues then the government will have no guarantees that the legislative changes will make any significant improvement in the rates of deaths and injuries in the workplace.

The mining Industry cannot and should not rely on check inspectors from within the industry to ensure safety of mining operations, but with the lack of any minimum standards of competency being set for Inspectors, this is exactly what is predicted to happen.

A. J. Loader.

HonFIQ, Dip.Q, Dip.OSH, MNZSC, RSP, ASA.

Director, First Rock Consultancy Ltd.

Ex Inspector of Quarries, Mining Inspection Group, Ministry of Commerce.

ENDS

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