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Safeguard OSH Solutions - Thomson Reuters

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A life in film

Film director TONY SUTORIUS thought he was making a documentary about Helen Kelly, but it turned out – at least in part – to be about something else.

A beautiful day in Wairoa, mid-2016. Helen Kelly, by now quite sick and entirely bald, tries to negotiate an end to the lockout of union members at the Talley’s/AFFCO meatworks. Outside, I filmed their families protesting on the street.

Baldy Edwards was no doubt there. A father and proud union man, active in his community, he would have been keen to get back to work before the season ended. In February this year, back in the freezers, he was killed there, crushed by falling carcasses.

One man held up a sign, “Workers Rights Are Human Rights”. What an interesting framing for safety. Whatever your views on the appropriate power dynamics in the workplace, the basic human right to survive work and come home alive each day is compelling.

And if tragedy does occur and someone is killed or maimed, I think every New Zealander would confidently expect the event to be treated extremely seriously and be thoroughly investigated, and that any changes to prevent it from happening again would be identified and studied carefully. The devastated family may never really recover, but at least they would know the truth about what happened.

And if there was a possibility that someone was criminally responsible for the disaster, they could look forward to their day in court, and some sort of justice.

Because that’s how this country works, right?

UNEXPECTED FILM TOPIC

I had no idea I was making a film about death at work. It’s an issue I’d brushed against professionally in the past, but perhaps like many others had figured the occasional accident was just a sad but inevitable part of doing hard work in tough places. Maybe our she’ll be right culture was somewhat to blame, encouraging us blokes, especially, to take unnecessary risks. I’d heard drugs were often a factor. And a few big fines in the news suggested employers were getting a serious penalty when it was warranted.

As a Safeguard reader you probably know the numbers already, but here’s some from Otago University research that really grab me.

  • • 
    A New Zealand worker is 50% more likely to be killed at work than an Australian.
  • • 
    Māori are killed 60% more often than Pākehā
  • • 
    Our deadliest jobs, at the sharp end in forestry, fishing and mining, are fully 25 times more likely to kill you than the average.

It’s difficult to continue blaming the victims when you consider the implications of those statistics.

VALUES-DRIVEN WORK

Helen and I sat down for coffee the day after she stood down as president of the CTU. She vaguely seemed to imagine doing a fair bit of self-care in among a few small projects she wanted to progress while she still could. But she seemed a bit anxious about getting everything she wanted to do finished. She joked about it, as she often did.

Something told me it was important to tag along on whatever came next. Knowing Helen, I couldn’t imagine a lot of time lost to navel-gazing. As probably the most definitively values-driven human being I’ve ever met, it felt inevitable that approaching mortality would drive Helen to her most important, most ethically essential work. And so it did.

This work was to try to help a remarkable group of women find justice for their men killed at work. Anna and Sonya from Pike River, Maryanne, Selena and Donna from forestry, were the sharp end of a much larger group of whānau dismayed to discover they were required to become social justice activists if they hoped to see any form of official truth and legal closure – just at the time when they were absolutely floored by the gut-punch death of their sons and husbands.

WORKSAFE’S FAILURES

All had one thing in common: they have been failed by WorkSafe. They had each learned the hard way that they have no right to sue, and that any hope of a day in court comes only through health and safety legislation. And even then, only on those surpassingly rare occasions when WorkSafe elects to follow through with it – which in every single one of their cases, and in very many others, it simply did not.

Each of them experienced deeply flawed WorkSafe investigations, or none at all. In various cases evidence was mishandled or lost entirely. Investigation scope was so narrow as to ignore many clearly relevant systemic factors, especially fatigue and basic safe practice around adequate lighting and PPE checking.

Peculiar effort seemed to be made at times to avoid obvious conclusions around basic facts. And overwhelmingly, as Helen often said, every case seemed to blame the worker. In perhaps the most remarkable moment of the film, one inspector confidently assures the Coroner that the evidence to support his assertion that the worker had failed to take all practicable steps was, quite simply, that the worker had been fatally injured.

Lawyer Garth Gallaway has recently reported that WorkSafe is now triaging so aggressively that it investigates only one percent of notifications, where it feels there is at least a 90% chance of securing a conviction. If your partner was killed at work, how would you feel if prosecution against their employer was dropped because there was only an 80% chance of conviction?

Or, how would you feel about a deal made in secret with the employer’s insurance company to drop all charges in exchange for cash? And even after the Supreme Court finds that deal unlawful, no apology and no attempt to re-lay charges? Ask the Pike River families.

TIME TO SAY: ENOUGH

Why is all this happening? I see three factors. First, WorkSafe is clearly under-resourced to do the job the public expects. Without the right to sue, there is a strong moral imperative for the state to ensure that when the unthinkable happens, the only agency that can pursue justice actually does so.

The best H&S law imaginable will do us no good if it is not actively enforced. The public interest requires accountability from those who break the law and, frankly, some healthy fear of the consequences of killing and maiming workers.

Second, as I was able to capture on camera, industry regulator WorkSafe has for years been directed by its Ministers to be “industry-led”. There is a widely and sincerely held belief within the organisation that if it prosecutes “too much” it will interfere with its role as an educator wishing to partner with business towards greater safety.

It’s rather like the Police concluding that prosecuting drink drivers would interfere with their community role in discouraging drink driving. The opposite seems more logical.

Third, we need to look in the mirror. Whatever WorkSafe’s failings, it isn’t killing workers. And when 300 more workers have died just since Helen’s death with so little public attention, all of us are complicit in allowing this country’s terrible number of deaths at work – a new Pike River every five months – to appear normal and acceptable.

Helen would want every one of us to simply stand up and say: No!

TONY SUTORIUS from Unreal Films directed the documentary Helen Kelly – Together which screened recently in cinemas. Special screenings can be arranged, and it will appear soon in other formats. Contact tony@unreal.co.nz for details.

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