Dr Jonathan Barrett, a lecturer from the School of Business at the Open Polytechnic, told a conference in Wellington that this poor record, and a system which balanced death and injury against costs of prevention, was incompatible with full respect for human dignity.
Work Place Safety = Human Right
Barrett was speaking at a New Zealand Labour Law Society conference in which he explored the theme of workplace safety as a human right. Barrett said universal human rights were fundamentally informed by respect for human life and the inherent dignity of the person.
As signatory to all major United Nations human rights instruments New Zealand was a “human rights state” and was therefore required to promote human dignity in all aspects of citizens’ lives. That was incompatible with New Zealand’s poor record on occupational injury and death, he said.
“Indeed, in the resources industries – mining, fishing and farming – financial considerations appear to commonly outweigh worker safety.”
Human Life v Profit
Barrett cited the Pike River mine explosion as an example where the risk to human life appeared to have been subordinate to profit. Such subordination of respect for human dignity and life to financial considerations contravened basic human rights principles, he said.
Everyone’s dignity ought to be respected “no matter what their status or condition in life”, but where workers must trade off their safety for the sake of employment that fundamental equality imperative was discounted, he said. “The most obvious way of devaluing a human being is to discount the worth of their life and health.”
Barrett said express consideration of fundamental human rights when workplace health and safety measures were instituted was required for the dignity and lives of workers to be taken seriously.
In defining “practicable” steps the HSE Act applied a qualification so that steps must be no more than “reasonably practicable”. That implied to Barrett that a computation must be made by the owner, in which the quantum of risk is placed on one scale, and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other.
He said if it could be shown that there was a gross disproportion between them – the risk being insignificant in relation to the sacrifice – the defendants discharge the onus on them. “In other words, profits and the risk of workers’ death or injury are elements of a calculus, and must be balanced.”
Barrett said under a reasonably practicable test employers were not expected to provide “a certain, complete protection against all potential hazards” and it was context-specific.
At the same conference Leeanne Templer made comparisons between New Zealand and Australian health and safety statutes, and noted the cost of OHS was treated differently.
Templer said that in relation to the reasonably practicable requirement, Australia’s model Workplace Health and Safety Act said cost had to be considered right at the very end after all the other factors were taken into account. “Whereas in new Zealand we don’t differentiate that out, so cost is just part of all the factors to be considered.”
Templer, an employment researcher and advocate, noted other divergences between the countries’ OHS legislation. The Commonwealth, New South Wales, Queensland, ACT and the Northern Territory have enacted the provisions of the model WHS Act for commencement from 1 January 2012.
The act was the result of a comprehensive national review into work health and safety laws across Australia, to achieve harmonisation of work health and safety laws. “My hope is that we can learn and cross-fertilise each other’s legislation for the positive good of health and safety in the future,” Templer said.
Templer said both the New Zealand and Australian statutes were very sophisticated and continued to be developed. She contrasted the legislation, noting that the WHS Act refers to the person controlling the business (PCB), a much broader definition that than the employer, as in the HSE Act.
NZ – Australian Differences
There were differences in the sections between persons who control a workplace. In the Australian act that covers any person who is in the workplace whereas in New Zealand there is a hierarchy of people who are covered, which was more complex. “A lot of small businesses have difficulty understanding and applying it.”
Templer thought New Zealand should simplify that section, and also noted New Zealand had a situation where people in the vicinity of a place of work could be offered greater protection than someone actually within the workplace.
Risk management was another area of big difference between the acts, and was much clearer in the Australian legislation. Templer said case law had made it clear that in both countries what was required was risk management.
The WHS Act had made significant progress to include a definition of what risk management entailed in its code of practice. It also referred to risk management throughout the statute whereas New Zealand law referred to harms and hazards.
“I think in New Zealand there is a lot of confusion about what risk management really is. I commend the Australian model code of practice for addressing it and I think New Zealand should adopt that.”
Templer said the WHS Act also detailed matters employees need be consulted about, whereas in New Zealand that had been left for case law to determine, such as in areas of drug testing.
And in Australia what constitutes discriminatory conduct in New Zealand is referred to through the Employment Relations Act instead.
Duties of Directors and officers
Templer said in the WHS Act the duties on directors and officers were much stricter than in New Zealand, where prosecutions had only been of those directors directly involved in the management of the company, or those directly involved in the decision that resulted in harm.
“In my view it would be of great benefit to have stricter director and officer duties here because the responsibility comes from the top down.”
About this article
This article first appeared inSafeguard update – an email and print newsletter covering the latest Health and Safety issues prepared and written by Safeguard Editor, Angela Gregory.