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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters

Safeguard Magazine

Learning from disaster

PETER BATEMAN and JACKIE BROWN-HAYSOM summarise the recommendations of the Pike River Royal Commission.

The Royal Commission’s Pike River report released on 5 November set the news agenda for several days and resulted in the Government saying it would implement 15 of its 16 specific recommendations.

The only recommendation not immediately embraced is the first and arguably the most important: to set up an independent dedicated OHS agency. The prime minister has said this will require further analysis before the Government can decide.

But beyond the 16 specific recommendations lies a damning critique of New Zealand’s health and safety system which lays bare significant shortcomings not only in the governance and management of the Pike River mine, but in the Department of Labour’s approach to regulation and how the original conception of the non-prescriptive HSE Act was undermined by a lack of prescriptive supporting regulations and approved codes of practice.

“This, sadly, is the 12th commission of inquiry into coal mining disasters in New Zealand,” note the commissioners early in the report. “This suggests that as a country we fail to learn from the past. New Zealand needs to make urgent legislative, structural and attitudinal changes if future tragedies are to be avoided. Government, industry and workers need to work together.”

The commission says a new regulator should be set up as a Crown entity with a sole focus on health and safety. While it would work closely with MBIE, it would have its own expert board accountable to the Minister of Labour.

The commission’s critique of the Department of Labour’s oversight of the HSE Act paints a picture of a regulator which had lost sight of its purpose because it assumed that the act’s emphasis on the primary responsibility of employers reduced its own responsibility to administer the legislation. The commission says the act’s emphasis on employers is appropriate, but that the DoL’s approach was at variance with the purpose of the act.

“The act requires the regulator to provide information, education and guidance to employers and to take all reasonable steps to ensure that the act is being complied with.”

Three of the recommendations deal with corporate governance and the duties of directors. They arise from the commission’s analysis of the actions and inactions of Pike River Coal’s board. The commission recommends a review of the OHS responsibilities of directors “to better reflect their governance responsibilities”. It also recommends the regulator develop an Approved Code of Practice for directors on what good governance of OHS risk looks like, and that directors of any organisation should “rigorously review and monitor their organisation’s compliance with health and safety law and best practice”.

Another recommendation deals with employee participation and calls for the regulator to develop an ACOP, to promote workers’ rights (and obligations), and to ensure that its inspectors routinely consult workers and safety reps when they conduct audits or inspections.

The remaining recommendations are more specific to underground coal mining and cover:

  • • 
    Setting up an expert taskforce to establish a robust regulatory framework for underground coal mining, borrowing heavily from Queensland and NSW;
  • • 
    Advising multiple Government agencies to collaborate before issuing mining permits to ensure OHS risk is included from the start and that OHS risk become an integral part of Crown minerals monitoring;
  • • 
    Managers in underground coal mines be appropriately trained and the regulator develop an ACOP to guide them
  • • 
    More detail about OHS responsibilities to be inserted into the regulations covering statutory mine managers, including whistleblower protection for the statutory mine manager to protect him or her from the consequences of disclosure to the regulator when the employer does not accept proposals for improving OHS;
  • • 
    Specific improvements in worker participation in OHS and the granting of mining qualifications to mine managers;
  • • 
    Urgent attention to emergency management procedures and testing, including a review of the CIMS system as used in underground coal mines;
  • • 
    Review the activities of the Mine Rescue Service, and ensure mine operators have modern emergency equipment and facilities.

Fragile framework

The commission’s report says the coal mining industry is so lacking codes of practice and other guidance material that health and safety inspectors have sometimes had to consult repealed legislation or overseas regulations to determine HSE Act compliance.

It found the way New Zealand uses the non-prescriptive Robens model for its OHS legislation seriously flawed because little industry-specific compliance information has been provided, even though the Robens report expressly recommended this.

“A supporting framework of regulations and guidance, including codes of practice, is an essential element of the general duty-based regime,” the report says. “But the development of a framework in New Zealand has been unsatisfactory.”

Some legally enforceable regulations for underground coal mining are in place, but they are limited and in need of review. There are no codes of practice, and a lack of departmental support has hampered industry attempts to produce other guidance material.

The commission calls for the immediate establishment of a single-focus expert taskforce - separate from the existing Independent Taskforce on Workplace Health and Safety due to report in April 2013 - to review the regulations and develop ACOPs and guidelines. Without them, it says, duty holders may not know what is required for HSE Act compliance and may not be able to develop effective safety measures.

“Researching and developing those methods is a business cost and requires skill and resources that employers may lack.”

The report noted that the Coal Mines Act 1979 was repealed when the HSE Act came into force in 1993, yet no sector-specific regulations were developed to replace it until 1996. However neither the 1996 regulations, nor additional ones developed in 1999, succeed in addressing all major hazards. Competency requirements for small mine management were increased in 2011 but problems remain.

One such problem, in need of urgent attention, is the regulations’ use of the phrase “all practicable steps” when discussing safety-critical requirements, such as the provision of suitable and sufficient mine outlets, or the measurement of airflow and prevention of air recirculation. In matters such as these an “all practicable steps qualification is unacceptable”, the report says.

Other issues of concern include a lack of clarity about the protocols for incident reporting, and a failure to spell out the need to notify MBIE of all high-potential incidents that could result in serious harm or catastrophe. Disturbingly, the mining regulations also fail to stipulate that there must a documented health and safety management system in place. The report notes that “the DoL [sic] is developing a model health and safety management system for small mines, but all underground coal mines should have such a system.”

The regulations make no provision for health and safety inspectors to be involved in mine design, although poor design and planning have been identified as causal factors in a number of incidents. An inspector must be notified at least 14 days before mining commences, but by that stage the design would have long been finalised.

There were a number of submissions on the subject of safety cases - comprehensive suites of documentation that allow regulators to verify the safety of an operation. These are widely used in the oil industry but opinions differed as to whether they would be helpful in coal mining. The commission says that it is not convinced of the need for mandatory safety cases, but more research is needed.

“The regulator would need significant resources and skills to scrutinise them, which it currently lacks.” It calls instead for early notification of mining proposals, and regulator review of plans and core OHS documents.

The report calls for all these issues to be urgently addressed by a specially appointed taskforce, which should include OHS experts, industry, regulator and employee representatives, and technical subject experts such as ventilation and geotechnical engineers.

Directors’ duties

While stopping short of specific recommendations, the Pike River commission calls for company directors to be held more accountable for OHS performance. Workplace safety “is not a peripheral business activity” and boards of directors should take responsibility for ensuring it is “embedded in an organisation’s strategies, policies and operations,” it says.

It cites a lack of corporate governance as a factor in “many tragedies, including Pike River”, but points out that directors have no express duties under the HSE Act. Directors, however, are “best placed” to ensure effective OHS management within a company, it says, because they are responsible for overall leadership, for the major decisions that influence OHS, for establishing strategic direction, and for securing and allocating resources. As part of these roles they should ensure the organisation has a comprehensive health and safety management plan which is ft for purpose and subject to regular review, that adequate time and resourcing is allocated to OHS, and that the plan is subject to some form of independent assessment.

The report points out that while employers, employees, those in control of places of work, the self-employed, principals and those who hire or sell workplace equipment are specifically required to take all practicable steps to prevent harm, a director can only be prosecuted under the HSE Act if he or she has actively participated in a breach committed by the company.

This situation can produce “invidious results” the report says, as the directors of small companies may find both themselves and their company prosecuted, while those in larger corporations are likely to avoid prosecution even though safety failures in these large organisations are more likely to result in multiple fatalities.

Noting that other countries have grappled with the concept of director liability, the report goes on to discuss how the UK and Australia have dealt with the issue, citing a number of examples, including a code of practice covering directors’ duties which has been produced in Britain and how Australia’s Model Work and Safety Bill requires directors to exercise due diligence to ensure that frontline staff comply with their OHS responsibilities. The report concludes that there is a need for some form of statutory duty that will require directors to ensure health and safety is managed effectively, but stops short of formally recommending this because such a change would be applicable to all companies rather than specifically to the mining sector.

Instead it recommends that the issue be reviewed, that an approved code of practice be developed to help directors understand how good governance can be used to manage OHS risks, and the directors should “rigorously review and monitor their organisation’s compliance with health and safety law and best practice.”


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