On 28 April 2013, New Zealand lawyer, Hazel Armstrong, published a 48-page book on how workplace fatalities and the management of the NZ rail industry has been related to politics and economics.
This is an ideological position more than anything else and the evidence is thin in much of this short book but there is considerable power in the description of the manipulation of occupational health and safety regulations and oversight during the political privatisation of the NZ rail sector. Many countries have privatised previously nationalised, or government-owned, enterprises usually on the argument of productivity and efficiency increases. Armstrong argues that these arguments were used to justify breaking the trade union dominance of the rail industry.
But more directly relevant, Armstrong argues that the NZ government is partly responsible for rail worker deaths due to its decision to exempt the privatised rail sector, under the control of Tranz Rail, from the Health and Safety in Employment Act 1992 by a clause (6H) in the Transport Services Licensing Amendment Act (no 3) 1992. This regulatory sleight of hand, Armstrong argues, generated a reduction in workplace safety by excluding HSE inspectors from that industry and restricting union influence. Armstrong quotes section 6H:
“If a rail operator or any other person complies with the provisions of this Act [TSL Act] or of the operator’s approved safety system then, in respect of the matters governed by those provisions, such compliance shall be deemed to be compliance with the provisions of the Health and Safety in Employment Act 1992.” (page 18)
In this current era of red tape reductions, it may make sense to remove a potential duplication of duties between two pieces of legislation but every regulation has a form of regulatory enforcement and Armstrong believes that the NZ government chose regulations that had the weakest of safety obligations. She writes that
“The exemption won by NZR would eventually result in a worker-fatality record eight times that of the national average – 39.3 deaths per 100,000 workers compared with 4.9.” (page 18)
In a major warning to other similar OHS jurisdictions, Armstrong says that a Select Committee recommended to Parliament
“…that NZR need only describe its proposed safety system, rather than actually provide it to the safety regulator.” (page 21)
After the new TSL Act came into effect the OHS regulator, the Department of Labour, was “sidelined”.
“The employer could now set its own safety rules, and could vary them as it wished. It was not obliged to present its entire safety system to officials from the Ministry of Transport and the Land Transport Safety Authority, who regulated transport safety. It did not have to take all practicable steps to manage hazards at work: it needed only to take whatever steps it deemed reasonable, considering their cost. The standard of ‘safety at reasonable cost’ was now set by the employer. Railway workers and their families would pay the cost from this point onwards.” (page 22)
This is a regulatory position that many industry associations in other jurisdictions may envy but the freedom associated with this system, Armstrong argues, increased worker fatalities.
The situation was only addressed with a political change when in 1999, the Labour Party gained power in New Zealand and in 2000 the Minister for Labour, Margaret Wilson, announced an inquiry in the fatality rate in the railways. The inquiry led to many changes, including the repeal of section 6(H).
According to Tamika Simpson in her chapter of an earlier book (now out of print, ISBN 0-86469-405-9) “Occupational Health and Safety in New Zealand – Contemporary Social Research”, Tranz Rail’s submission to the Wilson Inquiry
“…argued that ‘cultures’ made it difficult for them to change work practices and attitudes of workers in order to improve safety… In reply the Inquiry said Tranz Rail ‘will … need to reexamine management attitudes to ensure that, at critical times, front-line managers do not place a greater priority on maintaining productivity than on safety’ (Ministerial Inquiry, 2000: 45). That is, in essence the Inquiry found that it was ‘management attitudes’ rather than poor workplace culture that needed to be changed.” (page 182)
The Wilson Report was released in 2000 and Minister Wilson said:
“”Workplaces need to develop a culture of safety based on mutual respect, trust and understanding. Efforts have been made towards this end by Tranz Rail and are documented in the report. But it is clear that the law needs to be changed to simplify the message about safety.”
This differentiation between managerial attitudes and cultures may have been a notion from over a decade ago but deserves more consideration particularly in the context of comments from other inquiries into other industries, fatalities and disasters since the time of the Wilson Inquiry.
Armstrong’s booklet includes some fascinating information but begs to be developed into a larger and deeper analysis of the politics of safety regulation, management, and enforcement, especially since the Pike River disaster and subsequent Royal Commission (which is briefly mentioned). However, such a book should not be limited to New Zealand or perhaps should be a companion to similar analyses by Professor Andrew Hopkins.
The booklet is a good example of how something tangible can be quickly produced and launched in order to remind us of recent history, to prick our consciences and to warn us of future political machinations int he area of workplace safety.