History's verdict is already in on van Velden's safety reforms

Newsroom

2 days ago

Analysis: Death at work usually comes violently, and it is always avoidable. It is commonly preceded by the warning signs of threadbare health and safety practices: near-misses, previous incidents, worker anxiety, production pressure, shabby management.
Often the signs are nuanced and hard to see: incurious and complacent company directors, a bullying culture, delusions of competence, grandiosity, arrogance.
The path to catastrophe is generally marked with some or all of these interacting factors.
Running a workplace that's safe for those who work there is complex. It requires good systems, a clear understanding of risk, diligent monitoring, self-reflection, honesty, the ability to genuinely listen to workers, and a willingness to act when they report failings and shortcomings.
Generally, those who run safe workplaces are also, by association, running good businesses. As a 2024 report from the Business Leaders' Health and Safety Forum noted, '[F]or well-run businesses, health and safety is simply part and parcel of a tidy house, a well-performing business and a confident workforce.'
The Minister for Workplace Relations and Safety, Brooke van Velden, wants to reduce the burden of health and safety compliance for businesses. She wants WorkSafe, the regulator, to shift from a 'safety at all costs mentality' to a focus on 'helping duty-holders do what is proportionate to the risks' and 'rooting out over-compliance'. She wants the regulator to focus on 'critical risks', although this is not defined.
She has visited 11 towns and cities and received feedback from 1000 people, and reports that some businesses feel frightened of WorkSafe. She has heard the regulator is 'punitive' and not 'supportive'. She has heard businesses feel uncertain, and that they want the regulator to tell them how to be compliant.
In other words, they are not sure how to keep a tidy house, and want WorkSafe to stop being scary and to offer them a guiding hand.
The minister thinks a key solution to businesses' anxiety is to 'rebalance' WorkSafe's focus away from enforcement and towards advice.
It's not clear from van Velden's recent Cabinet Paper how she thinks her new approach will reduce the number of workers killed on the job, who suffer life-changing injury, or whose lives are shortened by diseases caused by exposure to workplace harms. She says improved outcomes are 'expected', but offers no evidence to support this.
Nor is there a Regulatory Impact Statement with further insight on the changes she announced last week; the Ministry for Regulation, overseen by Deputy Prime Minister David Seymour – van Velden's Act party leader – advised an RIS was not needed.
Nor does her Cabinet paper reflect on the fact the rate of workplace death in New Zealand is 60 percent higher than Australia and 500 percent higher than the UK, or that our rate of serious injury is 35 percent and 330 percent higher respectively than those two countries.
Instead, the focus is on making WorkSafe friendlier, more collaborative, and more helpful to business.
In many years of writing about workers killed at work, I've seen no evidence that a kinder and less punitive regulator would have helped keep those workers alive. Indeed, there is considerable evidence that such an approach contributes directly to the avoidable deaths of workers.
The ID cards of the 29 men whose bodies remain in the Pike River Mine now form part of a memorial.
The leading example is, of course, Pike River Coal Ltd. Pike killed 29 workers in 2010, a tragedy that led to the creation of WorkSafe in 2013 and a major overhaul of health and safety law in 2015.
Would a supportive, collaborative and non-punitive regulator have helped Pike keep a tidy house? Would it have prevented the violent deaths of 29 productive workers (not to mention the destruction of $340 million in capital)?
We are able to answer this question with a high level of confidence because Pike had just such a regulator. The two mines inspectors who worked at different times with Pike invariably took a kindly approach with the company and its driving force Peter Whittall, as well as with the many mine managers who came and went with great frequency in the short benighted life of the project. The inspectors were approachable, and Pike often raised concerns and sought input from them. They took a low-level compliance strategy, seeking negotiated agreements with Pike.
The inspectors preferred a voluntary approach, even when they could – and should – have used their statutory powers to shut the place down.
Certainly, the inspectors never gave Pike cause to be fearful or anxious, and there is no evidence that Whittall experienced such discomfort. He and Pike's board of directors remained at liberty to run an outfit that repeatedly exposed workers to catastrophic risk, routinely broke with long-established rules of safe underground coal mining practice, and ignored incidents and serious concerns reported by workers.
Quite correctly, van Velden wants to see more codes of practice and industry guidance. When the Health and Safety at Work Act was passed in 2015, it was intended the legislation would be underpinned by more detailed regulations. One of the most vital parts of that regulatory framework was to be a set of rules for protecting people working with tools and machinery and working at heights (plant and structures). On average 54 workers a year die while working with machines, equipment and structures such as scaffolding.
Officials started six years ago to modernise the rules and provide clear, effective, proportionate, and durable regulations.
But officials and governments – including the previous Labour government ­– dragged their feet, and work on the regulations had not been completed by the time van Velden took over the portfolio in late 2023. And, despite her stated desire for clearer guidance for businesses, van Velden last year put work on the plant and structures regulations on hold pending her current overhaul. The $5.6 million allocated for this work was clocked as a saving in the 2024 Budget.
It's impossible to know whether the electrocution of experienced 28-year-old Auckland scaffolder Jahden Nelson would have been avoided if the regulations had been in place by 2022, when he went to work for a small company owned by Claire Attard, who had come from the fitness industry. Attard was an SME (small and medium enterprise) battler, striving to do her best and no doubt wanting to contribute to economic prosperity. There was no red tape stopping her from getting into the scaffolding industry, despite her inexperience in the sector. And she wasn't 'sweating the small stuff' – a phrase van Velden often uses – when it came to being an employer, as she treated Nelson and other workers as self-employed contractors. They owned their own tools, paid their own tax and ACC levies, and when there was no work there was no pay.
Attard met Jahden Nelson for the first time at her company's yard in early February 2022, and he started work for her at 7am the next day. There was no contract signed. He was initially on $25 an hour, later rising to $27, and worked 10 hours a day for Attard's firm.
Although there were no plant and structures regulations in place when he and his crew went to work on April 19, 2022 to dismantle scaffolding previously erected by a different group of Attard's workers, there were clear rules for working near powerlines. WorkSafe also had 'good practice guidelines' for scaffolding.
Possibly Attard, like the anxious and uncertain business owners from whom van Velden has been hearing, had wanted more support from WorkSafe on how to run her business safely, but there is no evidence of that in the available documents. She had a suite of health and safety documentation stating that her company strove for health and safety excellence and provided training and instruction.
The rules governing work near powerlines said the workers who had been briefed and consented by Mercury's field service provider to assemble the scaffolding must also be the ones to dismantle it. No one else was permitted to work in the consented area in the vicinity of the power lines.
However Attard didn't know this, and she tasked a different crew to take the structure down. Nelson was a member of that crew. There was no discussion about the powerlines or the consented area before they got stuck into their work.
Nelson did the first lift of the day, and the 6.5m metal pole he was holding touched a power line. There was a loud explosion and large fireball that travelled down the pole to his body. He didn't die, but when he emerged from a coma a month later both arms had been amputated to save his life, he had suffered a heart attack and kidney damage, had severe burns to 30% of his body, and couldn't walk. He subsequently endured 40 operations.
When I was welcomed by Nelson and his partner Santana Tierney into his room at Middlemore Hospital's burns unit in late 2022, the father of three young children talked about his his pain and trauma, his love of and need to work ('I don't like not working. I can't sit still,' he told me), and his struggle to come to terms with his profoundly life-altering disability.
WorkSafe investigated, and among its findings observed that Nelson and his co-workers had contributed to the incident. However, this was considered minor compared with the overall failure of Attard's company to manage health and safety risks. None of the workers was prosecuted by WorkSafe, but Attard's company was. It pleaded guilty.
Enforcement decisions like this may be different under van Velden's revamped health and safety regime. Although she wants WorkSafe to 'rebalance' its focus from enforcement to advice for businesses, she also wants to see more workers prosecuted. She says businesses have told her that workers repeatedly ignore instructions, yet she hasn't heard of WorkSafe prosecuting any. 'I will set an expectation that WorkSafe strengthen its approach to worker breaches of duty,' she states in the Cabinet paper.
Van Velden also wants to introduce 'safe harbours' of deemed compliance. The violent death of 39-year old Misha Tremel in 2022 provides an opportunity to consider what that approach might look like.
Tremel was at the end of a chain of SMEs harvesting a woodlot in Clevedon, South Auckland. The forest owner had contracted forest management company Pulley Contracting, which had contracted logging company Turoa Logging, which had contracted Tremel's small company (he was the sole worker) to do manual logging with his chainsaw. Again, it's not known whether Turoa or Pulley had fretted over how best to run their companies safely or whether they had longed for more support from WorkSafe.
As with the scaffolding industry, there is considerable guidance available in the forestry sector, including an Approved Code of Practice (albeit long overdue for update) and best practice guidelines produced by WorkSafe. The industry also has a template to help analyse the risks of working on steep slopes like the one Tremel was tasked with logging.
Tremel was felling wind-wrenched trees, which present additional risks because tension and compression builds as they grow. When such trees are cut these forces can be released. WorkSafe and the forestry industry strongly recommend they are harvested by machines, not by chainsaws. Another factor in the incident was that Turoa had been using a mechanical harvester to fell trees into the stand that Tremel was cutting with his chainsaw.
Misha Tremel and his wife Bronwyn. Photo: Supplied
Tremel sustained blunt force trauma when a wind-wrenched tree broke and fell. He died at the scene, leaving his partner and two children bereft. WorkSafe prosecuted Turoa and Pulley, who were fined $300,000 earlier this year.
Under van Velden's reforms, with safe harbour guidance and WorkSafe sheeting more responsibility back to workers, the regulator may take more lenient approach to the two companies and instead focus its interrogation on Tremel's role. He was, after all, an experienced and skilled manual feller who understood the risks. He was confident and willing to undertake the work, for which he was paid by the hour.
Perhaps the minister's refocused regulator would conclude that Tremel was the architect of his own demise? There would be nothing new in that. The history of death in the forestry industry is littered with instances where the regulator has investigated incidents and concluded – in the face of ample evidence of production pressure, poor conditions of work and slack monitoring – that the dead worker had only themselves to blame.
This reluctance of the regulator to prosecute contributed to a scandalous record of death and harm, triggering a major inquiry in 2014. As demonstrated by the deaths of Tremel and 39 others in the forestry industry in the past 10 years, the lessons have still not been learned. WorkSafe – depicted by van Velden as punitive and frightening – has prosecuted in only 13 of those cases.
On November 19 it will be the 15th anniversary of the tragedy at Pike River Mine, an event that shocked the nation and led to a broad tripartite consensus that underpinned the introduction of the Health and Safety at Work Act in 2015.
No one is satisfied with the slow progress that has been made since in bringing down the toll of death and injury at work, nor with the estimated $4.9 billion annual economic cost of lost lives, lost earnings, the burden of workplace related illness on the health system and of serious injury to ACC. Business leaders and unions have repeatedly urged successive ministers and governments to complete the roll-out of the supporting regulations and guidance that were intended as part of a coherent health and safety regime.
But the minister, van Velden, risks setting the scene for further tragedies by instructing WorkSafe to go easy on businesses and by promoting the idea that workplaces are currently over-policed by a fearsome regulator focused on trivia. This is a myth: New Zealand has 31 percent fewer health and safety inspectors than Australia, on whose regime the 2015 Act was based and which does a far better job of protecting workers' lives. As Francois Barton, director of the Business Leaders' Health and Safety Forum, commented last week after van Velden's announcements, WorkSafe makes 80 percent fewer workplace visits than its Australian equivalent, issues 90 percent fewer infringement notices and 50 percent fewer improvement notices.
'You are more likely to lead or work in an organisation where someone has been killed at work than you are to be prosecuted,' wrote Barton on LinkedIn in response to van Velden's announcement. 'I know which of those outcomes I worry about the most.'