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University of Otago Law Theses and Dissertations |
Last Updated: 25 September 2023
Who’s to Blame When Things Go Wrong? Ideas Underpinning Health and Safety in Aotearoa
Acknowledgements
To my supervisor, Simon Connell, thank you for your guidance and wisdom.
To my flatmates at 868 George St, thank you for your shared suffering through the dissertation process.
To my mother, thank you for your continuing support and feedback.
Contents
Introduction
A paradox forms the backdrop of this report. Aotearoa, Australia and Britain all-share Robens-style health and safety systems. Yet, Aotearoa’s workplace fatality rate (2.2 per 100,000 full time employees) is approximately six and a half times Britain’s (0.34) and one and a half times Australia’s (1.4).1 Research suggests that Aotearoa’s first attempt at Robens- based health and safety legislation in 1992 had no impact on workplace fatality rates.2 More recently, WorkSafe has highlighted that the decline in rates of fatal and serious injuries have stalled since the “middle of the decade,” referring to the 2010s.3 Given that Aotearoa’s health and safety system was overhauled in the “middle of the decade,” a re-examination of the ideas underlying that system is called for.
Thus, this report is not an exploration of why Aotearoa’s Robens-style system has not been more effective. Rather, the purpose of this report is to explore alternative visions of a safe workplace by investigating what insights legal thought on health and safety can gain from socio-technical systems theory (systems theory). Systems theory is an attempt to understand accident causation originating in human factors and ergonomics. To identify what insights systems theory can contribute, I am comparing three schools of thought on accident causation: culture and apathy, sociology, and systems theory.
Chapter one provides a general background to Aotearoa’s health and safety system.
Chapter two discusses how culture and apathy, which represent conventional institutional thought on health and safety, are used to explain accidents. This approach views apathy toward health and safety and a lack of positive safety culture as the primary cause of accidents.
Chapter three investigates sociological critiques of culture and apathy-based explanations. Sociological approaches to health and safety investigate the nature of social and power relations in the workplace. They consider these to be the primary cause of accidents.
1 Workplace fatality rates are for 2019; Stats NZ Tatauranga Aotearoa “Work-related injury targets at a glance: 2008–2020” (26 October 2021) <www.stats.govt.nz>; Health and Safety Executive “Work-related fatal injuries in Great Britain” HSE <www.hse.gov.uk>; and Safe Work Australia “Key WHS statistics Australia 2020 Work- related injury fatalities” Safe Work Australia <www.safeworkaustralia.gov.au>.
2 Rebbecca Lilley, Gabrielle Davie, Bronwen McNoe, Simon Horsburgh, Tim R Driscoll and Colin Crye “Impact of legislative reform on worker fatalities in New Zealand workplaces: a 30-year retrospective population-level analysis” (2022) Occup Environ Med at 5.
3 Worksafe “Te Pūrongo ā-Tau o Mahi Haumaru Aotearoa | Annual report 2020/2021” (January 2022) at 22.
Sociological theories are a natural counterargument to cultural theories because they seek to understand how social context affects workers’ behaviour and attitudes. Furthermore, much of the existing criticism of Robens-style health and safety systems can be described as sociological. Conseqeuntly, it is important to consider this large body of thought when investigating what insights systems theory can provide. Sociological theories are also representative of critical legal studies investigations of how the law creates and maintains hegemonic relationships.Chapter four introduces systems theory. Systems theory investigates the dynamics of safety at a system level. A system is a generic term that includes all workplaces. Systems theory sits naturally with cultural and sociological approaches because it is a reaction to the same ideas that influenced cultural theories and that sociological theories were reacting against. Systems theory argues that accidents are the emergent outcome of uncontrolled interactions between components within a system.
Chapter five provides a conclusion and discusses the key insights of systems theory.
Whilst all three approaches are unique, all focus on the role of workers in health and safety. In particular, a focus on worker carelessness will run throughout this report.
I will note that when discussing safety, I have focused on large-scale accidents; this report largely does not cover chronic illnesses nor the “health” side of health and safety.
Chapter I: A General Background to Aotearoa’s Health and Safety System
In this chapter, I will provide a general background to the Robens Report and Aotearoa’s current health and safety system.
Aotearoa’s health and safety system was developed following criticisms that the old Health and Safety in Employment Act 1992 (HSE) failed to properly implement Robens-style health and safety legislation.4 Robens-style style systems are named after the chair of the 1972 Committee on Safety and Health at Work (Robens committee), Lord Alfred Robens.5
The Robens Report identified three main problems with the (then) current law; there was too much law, this law was unsatisfactory, and the administration of that law was too fragmented.6 Underlying this reasoning, the report identified apathy toward safety as the primary reason for workplace accidents.7 Their solution was to promote self-responsibility and awareness for safety through a consolidation of health and safety law and increased industry self-regulation.8
A The Robens Report and Inculcating Safety Consciousness
In the 1960s, British concerns about health and safety were connected with broader concerns about the economy.9
By 1970, Britain’s share of global trade had fallen to 13 percent from approximately 20 percent in 1955.10 Facing competition from West Germany and America, Britain’s industry was lagging behind and was perceived as riddled with issues at all levels.11 The Sunday
4 Rob Jager, Paula Rose, Paul MacKay, Bill Rosenberg, Mavis Mullins and Mike Cosman The Report of the Independent Taskforce on Workplace Health & Safety (April 2013) at [61] [Taskforce].
5 Committee on Safety and Health at Work Safety and Health at Work: Report of the Committee 1970-1972
(Cmnd 5034, June 1972) [Robens Report].
6 At [32], [29] and [28].
7 At [16].
8 At [28].
9 Christopher Sirrs “Accidents and Apathy: The Construction of the ‘Robens Philosophy’ of Occupational Safety and Health Regulation in Britain, 1961–1974” (2015) 29(1) Social History of Medicine 66 at 73.
10 Robens Human Engineering (London, 1970) at 8, as cited in Christopher Sirrs “Risk, Responsibility and Robens: The Transformation of the British System of Occupational Health and Safety Regulation, 1961–74” in Tom Crook and Mike Esbester, M. Governing Risks in Modern Britain (Palgrave Macmillan, London, 2016). 11 Jim Tomlinson “British productivity problem” (2002) 175 Past & Present 188 at 196.
Times asked, “Is Britain a Half-time Country getting Half-pay for Half-work under Half- hearted Management?”12 British factories were not just unsafe but were also producing fewer poorer quality items compared to their foreign rivals.13 Consequently, attempts to improve workplace safety were bound up with efforts to revive ailing British industry. Reformers pointed to inefficient management as being at the heart of the issue, and efforts to improve safety consciousness were deeply enmeshed within this.14 The aim was to “inculcate safety consciousness” in the workplace.15 This was described as a “form of foresight or alertness, a quality of mind which has to be developed and nurtured.”16
Coinciding with concerns for the economy was the belief that legal regulation had reached the limit of its usefulness in relation to health and safety. More law would not prevent workers from being careless.17 Many health and safety inspectors already considered that fostering a healthy relationship with industry by providing advice and education was their primary goal ahead of rigid enforcement of the law.18
The issues of pre-Robens law in Britain can be divided into two categories.
Firstly, it was complex, detailed and prescriptive.19 It specified minimum physical standards for workplaces on areas like machinery design, temperature and ventilation. Non-physical considerations like workplace safety representatives and worker participation were given little attention.
Secondly, there was a lot of law.20 Multiple health and safety acts created multiple health and safety systems, each dealing with specific industries. Britain had five major health and safety acts, numerous other acts dealing with specific hazards and almost 500 regulations handling minutiae from “lead to lighting.”21
By the time the Robens committee wrote their report, British regulatory attention was already turning away from prescribing specific engineering safeguards and toward the social side of
12 At 197.
13 At 196.
14 Christopher Sirrs “Risk, Responsibility and Robens”, above n 10, at 6.
15 At 4.
16 At 4.
17 At 5.
18 At 4.
19 At 3.
20 At 2.
21 At 3.
work.22 Most workplace injuries were seen as resulting from “habits of work, general site tidiness and human error.”23 This was part of a larger 20th century trend to generate more positive attitudes towards health and safety.24
Excessive and overly prescriptive legislation and regulation were seen as promoting apathy. The committee felt that people were conditioned to view health and safety as external agencies implementing rules.25 The apathy problem was to be solved by “influencing attitudes” and encouraging “action by industry itself.”26 The Robens committee recommended consolidating the law into a single statute containing general duties. 27 This was to involve: 28
Robens-based systems are about re-striking the balance between state intervention and self- regulation in the health and safety system.29 Generally, they provide no more than a broad approach to regulating health and safety at work.30
B Robens in Aotearoa
Aotearoa adopted Robens-style legislation in the Health and Safety in Employment Act 1992. Like Britain in the 1960s, Aotearoa had an outdated “mish mash of prescriptive legislation.”31
22 At 3.
23 Robens, above n 5, at 19.
24 Sirrs, above n 10, at 3.
25 Robens above n 5, at [28].
26 At [28].
27 At [164].
28 At [44-45] and [59].
29 Viktoriya Pashorina-Nichols, Felicity Lamm and Gordon Anderson “Reforming Workplace Health and Safety Regulation: Second Time Lucky?” In Gordon Anderson, Alan Geare, Erling Rasmussen and Margaret Wilson (ed) Transforming Workplace Relations in New Zealand 1976-2016 (Victoria University Press, Wellington, 2017) 129 at 132.
30 At 132.
31 Minister of Labour Bill Birch “Health and Safety in Employment Bill Parliamentary debates”, cited in Peter Kiely and Stephen Langton “The Health and Safety in Employment Act 1992 – An Overview” (1994) 19(3) NZJIR 195 at 195; and Pashorina-Nichols “Reforming Workplace Health and Safety”, above n 29, at 133.
Aotearoa had 14 industry specific health and safety acts enforced by six regulatory agencies and supported by 50 sets of regulations.32 For example: ss 11-18 of the Construction Act 1959 dealt with safety on construction sites, whilst s 29 of the Boilers, Lifts, and Cranes Act 1950 dealt with crane safety. These laws spelt out specific minimum standards for specific industries.
The HSE was thus a consolidation of Aotearoa’s health and safety law into a single statute. Similar to Britain following the Robens Report, the HSE shifted responsibility from government to employers.33
However, following the Pike River Coal Mine disaster, both the Report of the Independent Taskforce on Workplace Health & Safety (Taskforce) and Royal Commission on the Pike River Coal Mine Tragedy (Royal Commission) recommended changes to the HSE.34 The subsequent Health and Safety at Work Act 2015 (HSWA) was modelled on the Australian Model Health and Safety at Work Act.35
I will briefly describe three key areas of the health and safety system: director and employer duties, worker participation and the role of WorkSafe. All three areas received legislative attention following the Pike River disaster.
Firstly, general performance-based duties are placed on company directors and managers to ensure the safety of workers. The primary duty in s36 requires the person conducting a business or undertaking (PCBU) to ensure “so far as is reasonably practicable” the health and safety of workers. 36 Under s44, directors must exercise due diligence to ensure the PCBU is complying with their HSWA duties.37
Secondly, worker representation and engagement are required under the act. PCBUs must engage with workers on health and safety matters,38 provide reasonable opportunities for
32 National Occupational Health and Safety Advisory Council “Occupational health and Safety in New Zealand NOHSAC Technical Report No 7” at 12.
33 John Wren “The Transformation of New Zealand’s Occupational Safety and Health (OSH) Legislation and Administration from 1981 to 1992: A Case of Reactionary Politics” (1996) Labour, Employment and Work in New Zealand at 201.
34 Graham Panckhurst, Stewart Bell and David Henry Royal Commission on the Pike River Coal Mine Tragedy: Volume 1 (October 2012) at 13; and Independent Taskforce, above n 4, at [61].
35 Minister of Labour Working Safer: a Blueprint for Health and Safety at Work (August 2013) at 14.
36 Health and Safety at Work Act 2015, at s36(1).
37 Section 44(1).
38 Section 58(1).
workers to participate in improving health and safety,39 and under certain circumstances, allow elections of health and safety representatives and establishment of health and safety committees.40
Thirdly, the independent health and safety regulator is WorkSafe which was created by the WorkSafe New Zealand Act 2013. It has been argued that WorkSafe is the most important change to result from the Pike River disaster.41 The previous health and safety inspectorate under the Department of Labour had been under-resourced and poorly structured.42 Its failings were a key factor in the disaster.
WorkSafe monitors and enforces compliance with health and safety legislation, develops codes of practice, provides general guidance, provides information and training to workplaces, gathers data on health and safety, fosters a cooperative relationship between the tripartite entities and coordinates with other regulatory agencies.43
C Conclusion
Fundamentally the HSWA is Robens-style legislation. New duties such as the s44 due diligence duties were added. But their purpose is to better facilitate the implementation of a Robens-style system in Aotearoa. Despite the apparent failings of the HSE, both the Royal Commission and Taskforce considered Robens-style legislation desirable.44
The purposes of Aotearoa’s health and safety system in 2022 are broadly the same as those recommended in 1972. The goal remains to “inculcate” safety consciousness in industry and the workforce by encouraging self-responsibility for health and safety. The message that health and safety must be part of good management was reaffirmed last year by WorkSafe’s
39 Section 61(1).
40 Sections 62 and 66.
41 Bronwyn Neal “Health and Safety at Work Act 2015: Intention, Implementation and Outcomes in the Hill Country Livestock Farming Industry” (2017) 42(2) NZJER 5 at 18.
42 Graham Panckhurst, Stewart Bell and David Henry Royal Commission on the Pike River Coal Mine Tragedy: Volume 2 (October 2012), at 289.
43 Minister of Labour, above n 35, at 22; “Role and responsibilities” WorkSafe < www.worksafe.govt.nz>; and WorkSafe New Zealand Act 2013, s10.
44 Independent Taskforce, above n 4, at [74]; and Royal Commission Volume 1, above n 35, at 32.
general manager of regulatory effectiveness Mike Hargreaves.45 He stated that WorkSafe believes:46
[E]fficient, productive and fulfilling work is good work. The transformation from health and safety as an add-on to health and safety as part of work therefore supports the creation of better work in New Zealand.
It is hard to argue with anything Hargreaves says. However, the problem is that the health and safety system does not go beyond the idea of “inculcating safety consciousness.” This is demonstrated by numerous reports and guides, including the Health and Safety at Work Strategy 2018-2028 report and WorkSafe’s Harm Reduction Action Plan that never go beyond vague Robens-style statements. They recognise that Aotearoa needs “better management of work-related health risks”,47 “strong health and safety leadership”, enhanced “worker engagement, participation and representation” and “industry-led initiatives to address the high level of harm.”48 Unsurprisingly the recent SageBush report on WorkSafe concluded that businesses are confused about WorkSafe’s role and strategy.49 SageBush suggest that WorkSafe needs to develop a clear strategy outlining what it does and why.
Whilst the Robens model is often hailed for its flexibility, it is limited by its narrow conception of safety as being primarily a matter of attitude and apathy. The Robens Report is a reflection of the zeitgeist in 1960-70s Britain and does not represent the pinnacle of modern health and safety thought. Whilst the promotion of positive attitudes towards health and safety must be part of the plan for reducing workplace injuries in Aotearoa, it should not be the plan itself. This is a theme I will explore further in chapter two.
45 Mike Hargreaves and Braden Sloper “Turning dial to 11 Health and safety — turning the dial (up to 11)” (2021) ELB 80 at 81.
46 At 81.
47 Minister for Workplace Relations and Safety Health and Safety at Work Strategy 2018-2028 at 5.
48 WorkSafe and ACC Harm Reduction Action Plan (July 2019) at 9.
49 Brian Sage, Ben Bush, Catherine Taylor and Igor Dupor WorkSafe New Zealand Strategic Baseline Review
(Ministry of Business, Innovation & Employment, 12 May 2022) at 33.
Chapter II: Workplace Culture and Apathy
In this chapter, I will discuss the meaning of culture and apathy, before exploring the role that apathy and culture have played in health and safety in Aotearoa.
Apathy and culture have long shaped discussion on health and safety. However, despite their pre-eminence, both represent vague explanations for a complex problem. Culture and apathy are exceedingly complicated and opaque terms. Everyone uses them and everyone uses them differently. In this chapter, I will explore the role that apathy and culture have played in shaping discourse on health and safety.
A What are Apathy and Culture?
The focus on apathy and culture in health and safety law is linked to philosophical and political thought going back at least to the 19th century.50 Similarly, safety science throughout the 20th century has focused on ideas of apathy and culture. Neither the advent of “workplace apathy” in the 1972 Robens Report nor “safety culture” following the Chernobyl disaster in the 1990s were revolutionary ideas.
The core assumption of this chapter is that discussions of “apathy” and “culture” are largely concerned with the same concept. Both are used to describe attitudes, beliefs and values towards and about health and safety in the workplace. Whilst culture is potentially a more neutral term than apathy, the two terms can often be used interchangeably. Stating that an organisation possesses poor health and safety culture is really a statement that the organisation has a culture of apathy towards safety. This realisation is important because
much of the literature on “safety culture” assumes that the term first became popular in the late 20th century following the International Nuclear Safety Advisory Group report on the Chernobyl disaster.51
As discussed in chapter one, the Robens Committee concluded that apathy towards safety was the primary reason for accidents at work.52 The solution proposed was to encourage more
50 John Munkman Employer Liability at Common Law (11th ed, Butterworths, London, 1990) at 3.
51 Frank W. Guldenmund “(Mis)understanding Safety Culture and Its Relationship to Safety Management, Risk Analysis” (2010) 30 Risk Analysis 1466 at 1466.
52 Robens, above n 5, at [13].
responsibility, self-reliance and self-regulation. According to the Robens committee, people simply did not care enough about health and safety to act safely.
“Culture” has a spectrum of meanings, and its precise definition is debated.53 The Oxford Dictionary definition includes the “distinctive ideas, customs, social behaviour, products, or way of life of a particular nation, society, people, or period” as well as the “philosophy, practices, and attitudes of an institution, business, or other organization.”54
The Royal Commission considered the meaning and role of safety culture. The commission quoted Gunningham and Neal stating that culture is largely intangible and difficult to investigate.55 However, before the commission, Dr Callaghan argued that safety culture is tangible and can be evaluated.56
The commission found Andrew Hopkins’ division of culture into “mindset” and “the way we do things around here” useful.57 Mindset focuses on the individual values, attitudes and beliefs of staff within the workplace, whilst “the way we do things around here” focuses on collective behaviour. Both are elements of culture, but they reflect a different emphasis.58
I would add two further distinctions are discernible. Firstly, one can distinguish between the culture of a particular workplace and the culture of society at large. Whilst many authors limit their discussion to the cultural traits of a single workplace, others, including the Robens Committee, discuss the cultural (or apathetic) traits of society in general. The second distinction apparent in the literature is about who owns the culture. As I will discuss in part B of this chapter, for authors like Gunningham, culture is the responsibility and fault of management. However, for others, including the Taskforce, culture is a reference to broader social culture, workplace culture is just as much the responsibility of workers as
management. This distinction has significant consequences for the conclusions we might draw on how to improve health and safety. Is Aotearoa’s poor health and safety record the
53 Neil Gunningham and Darren Sinclair, 'The Impact of Safety Culture on Systemic Risk Management' (2014) 5(4) European Journal of Risk Regulation (EJRR) 505 at 509.
54 “Culture” Oxford English Dictionary: The Definitive Record of the English Language < www.oed.com>
55 Neil Gunningham and David Neal “Review of the Department of Labour’s Interactions with Pike River Coal Limited” (2011) at 471 as cited in Royal Commission Volume 2, above n 42, at 174.
56 At 174.
57 At 174.
58 Guldenmund, above n 51, at 1467.
result of poor management, or simply the result of a “she’ll be right” attitude towards health and safety?
Given this diversity in definitions, I do not find it helpful to adopt any of them. However, at some level, all are measures of the attitudes and beliefs of workers. If employees act in a certain way, one can assume that their actions could be predicted to some degree by their beliefs and attitudes. Thus, the distinction between behaviour and mindset is not necessarily important.
“Safety culture” emerged as a popular concept in safety science following the International Nuclear Safety Advisory Group’s report on Chernobyl.59 The advisory group used the term to describe unsafe conditions and decision processes that led to the disaster. In its genesis, “culture” was a vague term. Attempting to explain the reasons for a nuclear disaster in the twilight years of the Soviet Union cannot be done concisely. Yet Guldenmund argues that
this conceptual “fuzziness” is both a strength and a weakness.60 When accidents occur in
complex and opaque situations, poor safety culture may be the only way to describe what went wrong.
Despite disputed definitions, there is general evidence for the validity of safety culture as a concept. Reason argues that risk management systems will likely operate more effectively in a workplace with a robust safety culture.61 Gunningham considered that differing safety cultures explained the difference in safety performance between five mines.62 The mines were all owned by one company, and thus everything other than culture was the same; their equipment, standards, and risk management strategies were all identical.
Nevertheless, safety culture does have limitations. Culture has been much used and abused.63 It is an ethereal concept which is more a label than an easily identifiable characteristic.64 Some authors have found it nearly impossible to establish using surveys whether a good
59 At 1466.
60 At 1466.
61 James Reason "Beyond the Limitations of Safety Systems" (1 April 2000) Australian Institute of Company Directors <www.aicd.com.au>
62 Gunningham, above n 53, at 515.
63 At 509.
64 Torsten Arnt Olsen “Does the oversight model lead to power relations in terms of empowerment or responsibilization?” (MSc Thesis, Lund University Sweden, 2017) at 16.
safety culture was present.65 Others even argue that regulators should disregard culture and focus on rules instead.66 They argue for a return to traditional command and control models of health and safety regulation.
Ultimately, culture cannot be easily defined. However, all cultural approaches are either normative or explain behaviour in terms of departure from a normative standard. They are normative because they seek to explain behaviour by comparing them to the hypothetical perfect business. A workplace either has good or bad safety culture. Thus, cultural approaches are not about how employees are acting but how they should be acting.
Despite its drawbacks, culture is a useful concept. The problem is that outside of abstract academic discussion, culture is commonly not a neutral definition. Rather “culture” is embedded in a long history of labour relations. Culture and apathy have historically been used to construct workplace injury as the fault of workers, as well as hide the broader contextual factors contributing to accidents and diminish employer responsibility for the accident.67
Culture and apathy formed a key part of the careless worker myth. The myth explains workplace injuries by insisting that certain workers are accident-prone, careless or reckless.68 The careless worker myth traces back to liberal and, more recently, neoliberal ideas of freedom and responsibility.69 Freedom is defined negatively as the absence of external constraint, particularly governmental interference.
These liberal ideas underlie the “unholy trinity” of traditional common law defences.70 The doctrines of assumption of risk, common employment and contributory negligence operated to prevent workers pursuing an action in negligence against employers.71
65 Stian Antonsen “Safety Culture Assessment: A Mission Impossible?” (2009) 17 Journal of Contingencies and Crisis Management 242 at 252.
66 Grote & Weichbrodt Why regulators should stay away from safety culture and stick to rules instead. (2013) in Olsen, above n 64.
67 Bob Barnetson and Jason Foster “Bloody Lucky: the careless worker myth in Alberta, Canada” (2012) 18(2) International Journal of Occupational and Environmental Health 135 at 136.
68 At 136.
69 At 136.
70 At 136.
71 Alan Clayton “Some Reflections on the Woodhouse and ACC Legacy” (2003) 34 VUWLR 449.
The doctrine of voluntary assumption of risk absolved the employer of liability where they could show that the worker knew their work involved a particular risk.72 For example, in Membery v The Great Western Railway Co, a contractor agreed to shunt trucks for a railway company and was injured through no fault of his own.73 Shunting was done with the aid of a horse and was dangerous because the contractor had to guide the horse whilst simultaneously unhooking the chain from the moving truck. To aid the contractor, the railway company agreed to provide the contractor with boys when they had them available, but when they were not, the shunting was to continue without the boys. In one instance where no boys were available, the contractor fell, and the truck crushed his foot. The contractor argued that the company was bound to take precautions against injury because they knew assistance was necessary to perform the job safely and they had invited him to perform the work. Lords Halsbury and Bramwell considered that the contractor could not claim against the company because he had done the work voluntarily with knowledge of the danger.74
The common employment or “fellow servant” doctrine meant that a worker could not sue their employer for injuries caused by the negligence of their fellow workers.75 The court in Bartonshill Coal Co v Reid suggested that there was an implied contractual term that the worker agreed to run the risks, which were a natural consequence of employment.76 These risks included that of injury caused by a fellow worker’s negligence.
Finally, the doctrine of contributory negligence absolved employers of responsibility if the worker was injured through the negligence of both the employer and the worker.77 The doctrine gave the employer a complete defence against the employee.
The unholy trinity emerged out of a particular social and ideological context.78 The industrial revolution brought new work and new technology. This created new workplace dangers.
More than ever, workers were placed in complex environments over which they had little
72 Priestley v Fowler [1837] EngR 202; (1837) 3 M&W 1; 150 ER 1030 at 1033. 73Memberry v Great Western Railway Co [1889] UKLawRpAC 13; (1889) 14 App Cas 179 74 At [186] and [188].
75 At 1032.
76 Bartonshill Coal Co v Reid [1861] EngR 158; (1858) 3 Macq 266
77 Butterfield v Forrester [1809] EngR 175; 11 East 60, 103 Eng. Rep. 926 (K.B. 1809)
78 Hazel Armstrong Blood on the Coal The origins and future of New Zealand’s Accident Compensation scheme
(Trade Union History Project, Wellington, 2008) at 9.
control. The result was workers bringing more negligence claims against their employers.79 However, the law would be used to deny workers their claims.80 In general, employers had a duty to exercise reasonable care in relation to the employee. In practice, the trinity meant employers were rarely liable for workplace accidents.81
The liberal thought underlying these early 19th-century decisions was bound up with laissez- faire economic theory. 82 Under this theory, the welfare of the community was best served by leaving individuals free to pursue their own interest. The courts thus adopted the belief that each worker should look after themselves and accept the risks of employment they chose to undertake. The trinity was based on the assumption that there was complete mobility of labour, that there was a ready supply of work, and that the worker was a free agent under no compulsion to enter employment.83 Because workers chose their employment and consequently the risks they faced, responsibility was placed on workers.84 The effect of this liberal laissez-faire policy was that if a worker had an accident, it was likely their carelessness would be blamed. The careless worker myth thus has its origins deep in the common law.
The general tenor of the unholy trinity was to place an emphasis on the worker’s own diligence, attention to safety and blameworthiness.85 If the worker or their colleagues were apathetic towards their own safety or failed to take reasonable steps to keep themselves safe, the employer would be absolved of liability. That is, where the careless worker was apathetic towards safety.
The work of industrial psychologists during the 20th century further bolstered the careless worker myth.86 During the 1930s, Herbert Heinrich researched the causes of workplace injuries and concluded that 88% were caused by workers’ unsafe acts.87 This line of thought
79 Melanie Nolan “Inequality of Luck: Accident Compensation in New Zealand and Australia” (2013) 104 Labour History 189 at 194.
80 At 194.
81 Paul Raymond Gurtler “The Workers' Compensation Principle: A Historical Abstract of the Nature of Workers' Compensation” (1989) 9 Hamline J. Pub. L. & Pol'y 285 at 287.
82 Munkman, above n 50, at 3.
83 Prosser and Keeton on The Law of Torts (5th ed, location, 1984) at 568.
84 Gurtler, above n 81, at 287.
85 Nolan, above n 79, at 199.
86 Michael Quinlan “Psychological and Sociological Approaches to the Study of Occupational Illness: A Critical Review (1988) 24(2) ANZJS 189 at 191.
87 James Frederick and Nancy Lessin “Blame the Worker, The Rise of Behavioural-Based Safety Programs”
Multinational monitor (November 2000) at 10.
led to the introduction of behaviour-based safety programmes that sought to behaviourally modify workers’ carelessness. Industrial psychologists also contributed through their investigations into the characteristics that made workers more likely to suffer accidents at work.88 By focusing on the individuals rather than the factors influencing them, blame inevitable fell upon the worker and absolved management of responsibility.
Given the history of health and safety law, the Robens committee’s conclusion that apathy was the primary cause of workplace accidents should come as no surprise. Culture and apathy form part of a broader ideology that has seen law and science both turn their attention to the worker. The danger behind adopting a “safety culture” approach to health and safety is that this historical and ideological baggage is often brought along, accidentally or not.
B Culture and Apathy in Aotearoa
The law of negligence and the unholy trinity of defences that had dominated 19th century British industrial law was largely transferred to Aotearoa.89 Just as in Britain, claims against employers often failed due to these defences. Aotearoa’s poor workplace safety record highlighted the inadequacy of this regime.
Aotearoa would eventually develop its own approach to health and safety in the form of its accident compensation scheme. The Workers Compensation Act 1900 provided a compensation scheme that ran parallel with the common law negligence actions. However, it was realised that common law claims were a lottery with much depending upon the ability of the lawyer.90
Discontent would eventually lead to the Woodhouse Report and the adoption of the Accident Compensation Act 1972. With the act came the no fault compensation scheme that largely relegated the unholy trinity to the past.91 However, the scheme focused upon compensation for injury and not on understanding the causes of accidents. Aotearoa would not seriously
88 Quinlan, above n 86, at 191.
89 Armstrong, above n 78, at 10.
90 Nolan, above n 79, at 199.
91 At 200; and Royal Commission of Inquiry into Personal Injury in New Zealand Compensation for Personal Injury in New Zealand: Report of the Royal Commission of Inquiry (Government Printer, Wellington, 1967) at [55], [84-89] and [289].
begin to look further into a philosophy of accident causation until the adoption of Robens style legislation in the 1992 Health and Safety in Employment Act.
Robens-style legislation aims to influence attitudes, culture and apathy. Consequently, it would be wrong to assume that the apathy, culture and the careless worker left Aotearoa following the introduction of the Accident Compensation Act.
Neoliberalism would heavily influence the HSE and was blamed for detrimentally affecting safety culture in New Zealand workplaces.92 This influence meant the underlying ethos of the HSE was to aid market competition, free businesses from the fetters of red tape and remove “harmful” regulation.93 This ethos would become apparent at Pike River.
Following Pike River much of the criticism directed toward the HSE centred around Pike River’s poor health and safety culture.94 The Royal commission noted that the “emphasis
placed on short-term coal production so seriously weakened Pike’s safety culture that signs of the risk of an explosion either went unnoticed or were not heeded.”95 Although, it is important to note the Royal Commission went into significantly more depth than merely blaming culture. Gunningham described Pike River management as a toxic mix of recalcitrant and incompetent.96 That is, management both sought to avoid costs associated with compliance and lacked the skill to achieve compliance.
Following Pike River, the HSWA expanded the duties upon businesses and company officers. The rationale for these duties is that management can strongly influence the attitude and culture of a business through their behaviour and decisions.97 Then Minister for Workplace Relations and Safety Michael Woodhouse’s statements on the Health and Safety at Work Bill mirrored discussion on health and safety in the Robens Report:98
92 Neil Gunningham “Lessons from Pike River: Regulation, Safety and Neoliberalism” (2015) 94 RegNet Research Paper at 13.
93 At 14.
94 Royal Commission Volume 2, above n 42, at 121.
95 At 177.
96 Gunningham, above n 92, at 11.
97 Stephanie Grieve “Directors Duties – the responsibilities and liabilities of directors and senior management” in Intensive Health And Safety In Employment Law (New Zealand Law Society, 2016) 23 at 24.
98 (18 June 2015) 706 NZPD 4567 [Michael Woodhouse].
[L]aws alone will not prevent the types of deaths and injuries the member describes, any more than road rules prevent death and injury on the road. What will improve our health and safety record is changes in behaviour and attitude, and that is what I am promoting.
However, explanations of Aotearoa’s poor safety culture were not constrained to management. The Taskforce reported that New Zealand’s culture and psyche were seen as a key factor in New Zealand’s poor health and safety performance.99 The Taskforce highlighted the “high level of tolerance for risk, and negative perceptions of health and safety” that had resulted from “Kiwi” culture including the laid-back “she’ll be right attitude”, passivity (New Zealanders believe others are responsible for health and safety), a productivity-focused “get on with it” mentality, distaste for red tape, tall poppy syndrome (New Zealanders are reluctant to stand out by asking questions) and a culture of stoicism in which New
Zealanders’ value ignoring risks and dangers to get the job done.100
WorkSafe has recently reaffirmed its commitment to promoting safety cultures, as discussed in chapter one. To achieve this goal WorkSafe utilises its “levers” of engagement, education and enforcement.101
Gibson and Reeves argue that most New Zealand businesses are in “reactive mode.” 102 Safety is important to them, but not an integral part of what they do. They suggest a positive safety culture requires managers who are well informed about everyday operations and who ensure high levels of accountability and trust in the workplace.
Recently an ADLS article tackled the issue of culture by asking whether the HSWA is still fit for purpose.103 One health and safety lawyer considered that whilst the HSWA is
fundamentally sound, there is a problem with New Zealanders’ “she’ll be right” culture. This opinion mirrors that of the Royal Commission and Taskforce, who both considered the HSE was “generally fit for purpose.”104
99 Independent Taskforce, above n 4, at [143].
100 At [139-140].
101 Michael Hargreaves “Worksafe’s Role” in Health and Safety – Recent Developments (New Zealand Law Society Webinar, March 2019) at 9.
102 Gibson and Reeves “Getting ready” in Intensive Health And Safety In Employment Law (New Zealand Law Society Webinar, 2016) at 40.
103 Rod Vaughn “Is our workplace safety law still fit for purpose?” (12 March 2021) ADLS < adls.org.nz>
104 Royal Commission Volume 1, above n 34, at 13; and Independent Taskforce, above n 4, at [74].
However, considering Robens-based systems are designed to combat apathy towards health and safety, if Aotearoa’s poor workplace safety record is because of apathy towards safety, then the health and safety system cannot be working properly. Arguably it is amisunderstanding of the health and safety system to blame “Kiwi” culture whilst praising the HSWA. The HSWA is all about culture.
A last point on culture is that it is a diverse concept. Whilst the Taskforce attempted to distil New Zealanders’ common cultural traits, in reality, there is great cultural diversity within New Zealand. This means that one cannot simply define workplaces along a safety culture spectrum with bad at one end and good at the other. Rather, workplace cultures will vary along other dimensions too. The same tools and strategies cannot necessarily be deployed across all industries to improve safety culture. This can be demonstrated by comparing articles written on the construction industry with articles on farmers.
Sizemore argues that the HSWA has positively impacted health and safety culture within the construction industry.105 Managers are more aware of their duties as PCBUs and company officers under the HSWA. However, in relation to farmers, Neal argues that the HSWA has not led to cultural change.106 This is because farmers have a particularly strong culture of stoicism and dismissal of outside intervention. For farmers, changes to the workplace mean a change to family lifestyle.
C Conclusion
The law on health and safety has long revolved around workplace apathy and culture. Culture and apathy remain key aspects of the health and safety debate in Aotearoa. Culture remains an important concept because the HSWA does not provide prescriptive guidance on how to behave in every situation. Consequently, health and safety can only be improved by creating robust workplace health and safety cultures.
The structure of Aotearoa’s health and safety law is designed to promote cultural change. It does this by promoting self-responsibility for and engagement with health and safety. Yet culture remains an ambiguous term. This ambiguity affects the conclusions drawn about the
105 Taylor Sizemore “Managerial attitudes toward the Health and Safety at Work Act (2015): An exploratory study of the Construction Sector” (2017) 42 NZJER 22 at 34.
106 Bronwyn Neal “Health and Safety at Work Act 2015: Intention, Implementation And Outcomes in the Hill Country Livestock Farming Industry” (2017) 42 NZJER 5 at 18.
health and safety system. When authors like Gunningham consider culture, they are talking about how management can shape safety culture. However, cultural explanations can easily end up blaming the worker or society at large. These explanations tend to hide the organisational and contextual factors contributing to accidents. Contributors to the ADLS article, and the Taskforce, arguably fall into this category by blaming “Kiwi culture.”
Culture is a useful concept. However, culture should not be used as a crutch simply because no better explanations for an accident exist. The Royal Commission and Taskforce reports endorsed culture-based approaches, but both reports are comprehensive and detailed. The Royal Commission report alone stretches over 400 pages. Unfortunately, culture is more often used when one is unable to properly explain the underlying social, economic and organisational causes of workplace accidents. Explanations freqeuntly resort to safety culture because workplaces are complex environments. Culture is a vague solution for a complex problem.
Chapter III: Sociological Models of Health and Safety
In this chapter, I will explore sociological approaches to health and safety, reconsider the careless worker from a sociological viewpoint and use worker participation as an example of how sociological and cultural approaches can drive different conclusions.
Sociological models of safety explain the processes underlying accidents from a worker- centric perspective. Their goal is to explain how the social context within which workers exist influences their actions. By contrast, cultural approaches generally stop investigating once an attitude or behaviour has been identified.
A Sociological Approaches to Health and Safety
Sociological approaches to the study of health and safety assume that risk exists in and through social organisation rather than as an objective condition. The focus is on workers rather than leadership or culture. It emphasises that workers act within a context not of their choosing and that this context warrants examination, especially the social and political context.107 Sociological approaches consider social and power relations in the workplace as the primary cause of accidents.108 By contrast, cultural approaches tend to focus on management and how leadership can create a positive health and safety culture from the top down.109
Sociological approaches are critical of explanations for accidents driven primarily by culture, apathy, or carelessness. Its proponents argue that “workplace apathy” has become or maybe always was “worker apathy.” They are also highly critical of the assumed mutuality of interests between workers and management around health and safety matters in the Robens Report.110 Sociologists reject the focus on attitudes or safety culture and instead seek to understand how events really occur in the workplace.111
107 Theo Nichols “Death and Injury At Work: A sociological Approach” in Norma Daykin and Lesley Doyal (ed) Health and Work Critical Perspectives (MacMillan Press Ltd, London, 1999) 86 at 88.
108 Quinlan, above n 86, at 198.
109 David Walters and Theo Nichols Safety or profit “Introduction” in David Walters and Theo Nichols Safety or Profit? International Studies in Governance, Change, and the Work Environment (Routledge, Oxfordshire, 2017) 1 at 3.
110 At 3.
111 At 6.
The lesson of sociological approaches should not be that cultural approaches decontextualise accidents but rather that cultural approaches pay insufficient attention to the role of workplace power relations and social dynamics. It is always easy to argue that WorkSafe or the courts fail to conduct proper investigations. That is not an insightful statement; as the recent SageBush report on WorkSafe acknowledged, WorkSafe will always be short of resources.112
B Health and Safety: An Area of Natural Workplace Cooperation?
A fundamental assumption of the Robens Report is that “there is a greater natural identity of interest between 'the two sides' [workers and employers] in relation to safety and health problems than in most other matters.”113 This stems from the focus on health and safety as part of good management as discussed in chapter one.114
Quite logically, by its reasoning, the Robens committee assumed that workers and employers will co-operate out of natural goodwill and shared self-interest in improving health and safety.115 Consequently, all that is required to improve health and safety outcomes is to dispel apathy by promoting self-responsibility and safety consciousness in the workplace.116 However, if there is no shared interest between workers and employers, then this natural goodwill and shared self-interest will not exist to drive positive safety outcomes.
Adopting a sociological viewpoint leads to the conclusion that there is a fundamental conflict of interests between the two sides of industry. For example, Woolf argues that money will ultimately come between workers and employers.117 Employers wishing to improve health and safety performance must generally invest resources to do so. Consequently, employers are disincentivised from providing higher standards of health and safety. Woolf is fundamentally rejecting the assumption of the Robens committee that health and safety is simply a matter of good management.
112 Sage, above n 49, at 36.
113 Robens, above n 5, at [66].
114 Sirrs “Risk, Responsibility and Robens,” above n 10, at 6.
115 Robens, above n 5, at [66]; and Anthony D Woolf “Robens Report – the wrong approach” (1973) 2(1) Industrial Law Journal 88 at 89.
116 At 89.
117 At 89.
Similarly, Glasbeek argues that “[e]mployer-employee relationships in a capitalist economy are inherently conflictual, not consensual. A truly shared ideology is an illusion; it can only be maintained by artifice and with great effort.”118 His attack is against “consensus theory”, which is the idea that employers and workers share common goals and so can reach a consensus through discussion and worker engagement.119 Glasbeek argues that the application of a consensus model to health and safety is absurd because workers risk their lives whilst employers risk only their capital.
This conflict of interests has practical consequences not only because it prevents proper health and safety management. Rather, the political and social structure within a workplace and society will determine the risks present in two key ways.120 Firstly, the organisational structure of a workplace will affect the extent to which workers control how, why and when they carry out tasks.121 The extent of risk or severity of the danger is not just related to natural conditions or technical capacity. Secondly, power structures will also cause workers to accept risks that they otherwise might not. Workers may feel pressured into accepting risks just to “keep the job going.”122 These pressures can make workers feel like non-compliance would risk their jobs.
Glasbeek’s analysis is also interesting for its critique of the mutuality of worker-employer interests as being “maintained... with great effort.” Glasbeek is arguing that the nature of labour relations within the workplace is the result of a deliberate effort to maintain the capitalist power structure by maintaining the supremacy of free market ideals over worker rights. This speaks to the wider, more ideological and political criticisms of sociological theories.
Sociological theories assume that, as with other areas of labour law, health and safety is simply another site of battle between workers and employers. When worker participation provisions were introduced to the HSE in 2002, Margaret Wilson, the then minister of labour, noted that “fundamentally a labour relations issue.”123
118 Harry Glasbeek and Eric Tucker “Death by Consensus: The Westray Mine Story” (1993) New Solutions 14 at 34.
119 At 27.
120 At 34.
121 Barnetson, above n 67, at 137.
122 Theo Nichols, above n 107, at 90.
123 (3 December 2002) 604 NZPD 2442.
C Victim Blaming and the Careless Worker Revisited
I have already discussed culture’s role in creating the careless worker myth. It is also helpful to consider the myth from a sociological perspective. In this section, I will explore the reality of the careless worker, the historic interaction between sociological and psychological theories and finally, how sociologists explain the careless worker myth.
The careless worker myth is a gross oversimplification, but there is truth to it. Workers are routinely careless, and that carelessness causes accidents. For example, at Pike River, workers placed plastic bags over machine-mounted gas sensors that would otherwise stop the machine when gas levels rose above 1.25%.124 Gas levels between 5-15% are explosive.125 The Royal Commission recounted the testimony of one miner:126
Miners are required by law to withdraw from the mine if flammable gas reaches 2% or more in the general body of air. One miner encountered methane over 2% ‘quite a lot’, and more than 5% on two occasions. One occasion involving over 5% was approximately two weeks before 19
November, after the commissioning of the main fan. He informed his deputy, who said, ‘We’ll be right, just quickly get [the job] done.’ They remained working in the explosive atmosphere for at least 10 minutes, and ‘there was no investigation because I never reported it’. He said there were times when they continued working in 2% methane contrary to the regulations.
The miners here were reckless and negligent. But the more interesting issue is why the miners felt the need to push their luck. Glasbeek argues that workers undoubtedly put their lives at risk; the key question is whether they do so voluntarily.127 This highlights a flaw of cultural approaches. So long as the focus is on worker apathy or organisational culture, accident prevention will remain focused on changing attitudes and behaviour.128 This ignores how attitudes and behaviour are affected by their surroundings.
By contrast, sociological theories aim to deindividualize health and safety and recognise that attitudes and behaviour are the results of workplace social and power relations. Doyal and Pennell state that health and safety is “firmly ensconced within the social relations of
124 Royal Commission Volume 2, above n 42, at 141.
125 At 112.
126 At 143.
127 Glasbeek, above n 118, at 28.
128 Felicity Lamm “Australian and New Zealand Occupational Health and Safety – A Comparative Analysis” (1994) 32(2) Asia Pacific Journal of Human Resources 57 at 71.
production under capitalism.”129 However, pointing out that health and safety is affected by its social context is not radical. The Robens committee itself focused on the social side of workplace accidents rather than on minimum physical standards. The focus on safety consciousness, apathy and leadership is explicitly social.
Sociological approaches to health and safety arose in response to narratives of the careless worker arising in law and psychology. Psychological explanations have played a key role in legitimising the careless worker narrative and would be influential on the Robens committee, who would note the work of Herbert Heinrich.130 As discussed in chapter two, the work of 20th century industrial psychologists increasingly began to focus in on the “human factors” and the characteristics of individuals that were “causing” accidents.131 This approach led to victim blaming because the traits of accident-prone individuals were emphasised at the expense of sociological factors.
Investigators conceptualised accidents as aberrant occurrences that they could eliminate by modifying worker behaviour rather than the social and political context within which the worker acted.132 The solutions proposed by psychologists focused upon how management could make minor modifications to the workplace.133 Their approach hid the fundamental conflict of interest that exists between workers and employers. Because psychologists promulgated these views, they were leant an air of scientific credibility.134
Psychologists did recognise the role of environmental factors in accidents. However, workers’ behaviour was still seen as central to the chain of causation.135 Environmental pressures like stressors were dealt with in a fragmented fashion. This hindered a proper understanding of the “power structure and dominant value systems within a workplace and
129 L Doyal and I Pennell “The Political Economy of Health” (Pluto, London, 1979), as cited in Quinlan, above n 86, at 197.
130 Robens, above n 5, at [48].
131 Quinlan, above n 86, at 191.
132 At 192.
133 At 195.
134 At 195.
135 At 195.
industry”.136 Authors like Quinlan position sociological theories as an alternative to psychological ones.
Sociological explanations focus on how workers make decisions in contexts that are not of their choosing. I will explore two primary factors which sociological explanations argue cause workplace accidents. The first is how power relations affect safety. The second is how social context moulds workers’ actions.
(i) Power Relations and Workplace Safety
As discussed, many argue that a fundamental conflict of interests exists between
management’s desire to create profit and workers’ right to remain safe. Workers’ attitudes must be considered in the relevant politico-economic context. Workers exercise little control over the risks that accompany work.137 Management controls the context within which employees work and in large part the risks they face.
Pike River provides abundant examples of the role of power/social relations in workplace accidents. Workers at Pike River had little input into decision making. At one point, when the miners stopped work because of the lack of vehicles available to evacuate workers, the “human relations manager” threatened to sue the worker union.138 Numerous reports of unsafe practices at Pike River were given little attention, and Pike River’s hazard register was not used in operational planning.139
Whilst management acted dismissively towards safety; they structured incentives in such a way as to increase production. Workers received a bonus that decreased by $1000 each week production targets were not met.140 Relatedly, whilst Pike River management successfully
136 At 195.
137 Barnetson, above n 67, at 137.
138 Rebecca Macfie Tragedy at Pike River Mine: how and why 29 miners died (1st ed, Awa Press, Wellington, 2013) at 180.
139 Royal Commission Volume 2, above n 42, at 78.
140 At 161.
implemented a punishment scheme to combat absenteeism, dangerous behaviours necessary to meet production targets were ignored.141
Furthermore, Pike River management placed people who lacked relevant experience in key positions.142 For example, when Pike River began hydro-mining, the hydro coordinator had no experience in hydro-mining and made this clear in his interview. Although he was promised training, none was provided. This all occurred whilst great pressure and emphasis were being placed on increasing coal production.143
Sociological approaches seek to investigate how social context affects health and safety. At this stage, sociological approaches to health and safety are similar to existing cultural ones. Both are concerned with how authority is wielded to create a safe or unsafe workplace. Both consider much of the same evidence. However, the key difference is the importance placed on the role workplace power/social relations in causing workplace accidents. This means that although a sociologist and a “culturalist” might consider the same evidence, they will likely reach different conclusions. The solution to workplace accidents advocated for by sociologists is typically to redistribute power. I will explore this in greater depth in part four on worker participation.
(ii) Social Context and Workplace Safety
Lamm discusses how the social context within which workers act creates pressures that prevent workers, management and other stakeholders from speaking out about potential issues they see.144 This goes significantly beyond explanations simply invoking culture or attitudes in the workplace to examining how social contexts make people act as they do.
Lamm draws on the work of Mathiesen in his book Silently Silenced: Essays on the Creation of Acquiescence in Modern Society to explain how professionals, organisations, government departments and whole communities silence people from speaking out when they know
141 At 60. “[Miners’] bonus was reduced by $200 for each... day or shift on which an employee was rostered but did not work... By November 2010, Pike considered that the... scheme had led to a ‘reduction in sick leave
usage’.”
142 At 58.
143 At 58.
144 Felicity Lamm “A disaster waiting to silently happen: Silently silencing stakeholders at the Pike River Coal Mine” (2018) 60(4) Journal of Industrial Relations 56, at 561.
something is wrong.145 Silence is defined not simply as a lack of speech, but rather as a failure to share a suggestion, concern, relevant information or a different point of view.146 Lamm eloquently notes that silencing is “a process that is quiet rather than noisy, hidden rather than open, unnoticed rather than noticeable, unseen rather than seen, non-physical rather than physical.”147
Lamm suggests that approaches to safety which place too much emphasis upon managers and workers overly individualise responsibility for accidents.148 Even when factors that silence people are investigated, normally, only factors coming from within or those coming from outside an organisation are considered but not both.149 Lamm argues that this is an oversimplification and in reality, multiple pressures can converge and interact to produce silencing. Because silencing is the outcome of this interaction, any given individual party has little control over the course or effect of silencing and the decisions affected by it.150
Mathiesen’s framework outlines four principal that silence people.
Firstly, attitudes and actions are absorbed and subtly altered by dominant interests in a way that preserves the hegemony of those interests.151 This means those attitudes and opinions cannot form a rallying cry for dissent.
Lamm notes that absorption occurred at Pike River. Nearly all West Coast businesses and leaders were absorbed by a vision of creating a bright future and the creation of 200 new jobs.152 Consequently, attention was on employment and economic growth, not on the feasibility or practicality of mining at Pike River. Lamm notes that trade unions were also caught up in this rhetoric of creating new jobs.153 Unions had an interest in securing employment for their members, which prevailed over ensuring that employment was safe. Macfie notes that unions at Pike were toothless and took little interest in Pike River.154
145 Mathiesen T Silently Silenced: Essays on the Creation of Acquiescence in Modern Society (Waterside Press, Winchester, 2004), as cited in Lamm at 561.
146 Morrison EW “Employee voice and silence” (2014) 1(1) Annual Review of Organizational Psychology and Organizational Behavior 173 at 174, as cited in Lamm, above n 144, at 563.
147 At 567.
148 At 562.
149 At 564.
150 At 567.
151 At 567.
152 At 572.
153 At 573.
154 Macfie, above n 138, at 180.
Lamm’s application of absorption to unions is interesting because academic wisdom is largely in favour of unionisation.155 Farr describes how union-linked employee representation is more effective in achieving better health and safety outcomes than non-union representation.156 This is because unions provide resources, knowledge and skill that enables them to counter employer power.
Secondly, individuals and groups are subdued into obedience through their placement within a larger system.157 At Pike River, the Department of Labour’s mine inspectors were unable to perform their role due to systemic structural issues.158 The inspectorate’s focus was on meeting their inspection quota rather than ensuring inspections were thorough. The inspectors had little power at the bottom of the Department of Labour’s hierarchy.159 The system placement of the inspectors meant they had little discretion and were forced to “toe the
line.”160
Thirdly, through the professionalisation of roles, people who might otherwise have been vocal critics of the prevailing order are indoctrinated into professional associations that are traditionally conservative and not critical.161
Ulf suggests that long-standing professions tend to formalise ethical values into rules and create institutions to enforce them.162 This can create problems for professionals wishing to raise concerns. If the authorities heed the warnings, any official actions may take time, and the complainant may not be able to ensure that all issues are addressed. If authority figures do not heed the warnings, the professional places their career at risk by going outside the accepted hierarchy to warn the public.
At Pike River, despite numerous damming reports on the safety and feasibility of the operation, the numerous professionals and associated organisations (including engineering bodies like the Institution of Professional Engineers New Zealand, now called Engineering
155 Deirdre Farr, Ian Laird, Felicity Lamm and Jo Bensemann “Talking, listening and acting: Developing a
conceptual framework to explore ‘worker voice’ in decisions affecting health and safety outcomes” (2019) 44(1) NZJER 79 at 86.
156 At 87.
157 Lamm, above n 144, at 567.
158 At 574.
159 Royal Commission Volume 2, above n 42, at 299.
160 Lamm, above n 144, at 575.
161 At 567.
162 John Uff “Review of Ethical Principles in the Context of Recent Engineering-Related Disasters (2014) 41 IPENZ Transactions at 3.
New Zealand Te Ao Rangahau) involved at Pike River remained silent until after the disaster occurred.163
Fourthly, the law, lawyers and politicians create a climate of silence through the operation of legal and political processes.164 The law itself creates criteria of relevance and objectivity that automatically limit the scope of discussion. The legislative process can also be captured by powerful interest groups.
Lamm points out that agriculture and small business lobby groups did capture the HSWA. 165 These interests successfully argued that small businesses should be exempt from health and safety representative requirements in s 62(4)(a) HSWA. It was successfully lobbied that agriculture was not a high-risk industry, even though agriculture consistently has amongst the highest rates of injuries and fatalities.166 Consequently, small agriculture businesses can decline worker requests for health and safety representatives as they are not a high-risk industry under s 62(4)(b).
The factors in Mathiesen’s framework are “interconnected, fluid, and.... dynamic” in how they silence people.167 Silently silencing adds significantly to the debate on worker participation and workplace apathy. It suggests that the social environment surrounding workers and employers must be considered. Simply calling for greater worker participation is inadequate because that participation may still be subject to silencing. Indeed, all three branches of the tripartite system are susceptible to silencing, as Lamm documents. At Pike River, workers, businesses, political leaders and professionals were all silenced and swept up in the rhetoric of a brighter future.
Furthermore, silently silencing also calls into question the Taskforce’s blaming of New
Zealanders’ cultural traits like “kiwi stoicism” without properly explain why those attitudes appear in the first place.168 Lamm notes that more research is required on how and why miners tend to habituate to risk. This is a point that systems theory can potentially answer.
163 At 576.
164 At 567.
165 Lamm at 577; Jeff Sissions “A Bad Day at the Sausage Factory: The Health and Safety at Work Act 2015 (2016) 41(2) NZJER 58 at 63.
166 “Fatalities” (21 September 2022) WorkSafe Data Centre <data.worksafe.govt.nz>
167 Lamm, above n 144, at 169.
168 Independent Taskforce, above n 4, at [193].
D Worker Participation, Cultural or Sociological?
Significant overlap exists between cultural and sociological theories. Both focus on the human and social aspects of work rather than on engineering solutions such as installing extra safeguards. Worker participation has received significant attention from both, and both argue effective worker participation is vital to positive health and safety outcomes. However, what constitutes effective participation is hotly debated.
Cultural approaches support worker participation because it promotes safety consciousness within the workforce and allows workers to accept their share of responsibility for creating a workplace free of accidents.169 Worker participation allows “intimate knowledge of working habits and attitudes on the shop floor” to act as a “channel of communication” with management.170 The Robens committee consequently recommended that a duty to consult with workers be imposed on management.171
Similarly, when worker participation provisions were introduced to the HSE, the rationale was that it led to better health and safety decision making by ensuring that everyone with relevant knowledge and expertise were involved in health and safety decisions.172
Pashorina-Nichols suggests that several benefits can accrue from effective worker participation practices. Firstly, workers will be able to highlight dangerous areas to managers and ensure that their interests are heard.173 Secondly, it will help reduce workplace fatalities as better worker participation is associated with lower injury rates.174 Thirdly, when workers can give meaningful input into their workplace, they become more aware of what is going on and more engaged in their work.175 Finally, Nichols suggests that worker participation may produce a robust safety culture over time.176
169 Robens, above n 5, at 59.
170 At 66.
171 At 70.
172 Viktoriya Pashorina-Nichols “Occupational Health And Safety: Why And How Should Worker Participation Be Enhanced In New Zealand?” (2016) 41(2) NZJER 71 at 74.
173 At 77.
174 At 78.
175 At 80.
176 At 80.
Ultimately, cultural approaches support worker participation that provides employees with input into health and safety decision making. This is in line with the tenor of the Robens Report, which ultimately only recommended a duty to consult with workers but rejected the inclusion of duties to appoint safety representatives or committees.177 Considering the Robens committee had stated that workers “must be able to participate fully in the making and monitoring of arrangements for safety and health at their place of work”,178 it is surprising that the committee would ultimately only recommend a duty to consult workers.179
Hilgert argues that the committee’s attempt to solve Britain’s poor health and safety record were never going to interfere with business productivity and the self-regulating marketplace.180 The Robens Report did not attempt to change the fundamental nature of power relations within the workplace.
Sociological approaches to worker participation are critical of requiring mere consultation with workers. Because sociological approaches consider that accidents are the consequence of placing workers in a context beyond their control, it naturally follows that workers should have greater control over their workplace.
The divide between these approaches is highlighted by the differing conclusions of Pashorina- Nichols and Jeff Sissions on the adequacy of worker participation provisions in the HSWA. Pashorina-Nichols argues that the HSWA is a step in the right direction, even if the ability of small businesses to deny worker representatives and health and safety committees is a significant problem.181 Contrarily, Sissions argues that the HSWA is a step backwards.182 This difference in opinion is explainable as the difference between cultural and sociological approaches to worker participation.
177 Robens, above n 5, at [69].
178 At [59].
179 Stan Jones "Health and Safety at Work: The Self-Help Model Ten Years On." (1984) 18(2) Law Teacher 124 at 125.
180 Jeffery Hilgert Hazard or Hardship: Crafting Global Norms on the Right to Refuse Unsafe Work (Cornell University Press, 2015) at 125.
181 Pashorina-Nichols, above n 172, at 77.
182 Sissions, above n 165, at 65.
Sissions argues that for Aotearoa to improve its health and safety performance, “fundamental deficits in knowledge, culture and power” (emphasis added) must be addressed.183 Sissions criticises what he argues are weak worker participation provisions within the HSWA.184 Sissions agrees with Pashorina-Nichols that the ability of businesses with fewer than 20 workers to reject health and safety representatives and committees is a major shortcoming.However, Sissions further argues that the HSWA is also inadequate in only providing for worker engagement and not full participation.185 Employers are only required to engage but not negotiate with workers. Furthermore, it is left up to the employer to decide what
“effective” worker engagement looks like. In other writing, Pashorina-Nicholls also points out that Robens-based systems are paternalistic, worker are forced to operate within the health and safety system controlled by government and employers.186
In general, the ethos of the HSWA and Robens Report is that engagement alone is sufficient to drive cultural change, as then Minister for Workplace Relations and Safety Michael Woodhouse argued.187 Whilst the HSWA does seek to improve upon the HSE, ultimately Sissions considers that the act fails to appropriately balance workers and employers conflicting interests.188 From a sociological perspective, the problem with the small business exemption to worker participation is that it denies workers the ability to control the social and political environment in which they live.
The HSWA does contain provisions requiring worker engagement and for employers to have practices allowing workers to “participate effectively in improving” health and safety.189 Workers are also given the right to refuse work, and safety representatives the power to order workers to cease unsafe work.190 Furthermore, a health and safety representative may order a provision improvement notice where there may be a breach of the HSWA.191 This includes where the notice is to prevent that breach from occurring.192
183 At 58.
184 At 59.
185 At 65.
186 Pashorina-Nicholls “Reforming Workplace Health and Safety,” above n 29, at 132.
187 At 65.
188 At 68.
189 Health and Safety at Work Act, ss 61, 58 and 59.
190 Sections 83 and 84.
191 Section 69.
192 Section 69(2)(b).
These provisions arguably do not adequately address social or power relations at work. The provisions allowing for the cessation of work only operate as a failsafe once something is already going wrong. Furthermore, Sissions argues that the s19B of the HSE also required employers to provide workers with reasonable opportunities for effective participation and was ineffective.193
Sissions work links with the approach of authors like Glasbeek, who argues that there is no shared interest between employers and workers in health and safety. Sissions documents business’s resistance to expanding worker participation provisions and powers within the HSWA.
The Business Leaders Health and Safety Forum considered that the worker participation provisions should “not encroach on aspects of the employment relationship unrelated to health and safety.”194 In a more pointed manner, the Talley’s Group submissions suggested that “it is inevitable that [unions] will use that power to their own advantage both to increase their power and influence and to make employers fund the Union’s favoured members to undertake union activities under the guise of health and safety.”195
Worker participation highlights differences between cultural and sociological approaches to safety. It also demonstrates that the structure of employer-employee relationships is not an
inherently natural one, rather it is “maintained by artifice and with great effort.”196
The point is not to deny solid arguments behind cultural approaches to worker participation. However, the question remains whether mere engagement is sufficient.
E Conclusion
Traditionally discussion on health and safety has been framed around what workers and employers can control (according to the prevailing ideology of the time) rather than what they cannot. Sociological theories, however, focus on the factors that are beyond any individual’s control in any given context. Given the focus on the broader social and political context, it would be easy to dismiss the difference between sociological and cultural approaches as
193 Sissions, above n 165, at 65.
194 At 63.
195 At 63.
196 Glasbeek, above n 118, at 34.
simply the depth of investigation. But this is not so. Sociological approaches aim to empower workers so that they operate within a context of their choosing. In comparison, cultural approaches tend to assume that by encouraging management to set a good example, everything else will fall into place. Arguably the current health and safety system fails to address the social and political context of workplace accidents adequately because it gives workers little power to control the risks they face.
Chapter IV: Socio-Technical Systems Theory
In this chapter, I will explore the history and purpose behind systems theory, what the notion of “systems” adds to the theory, explain how systems tend to migrate towards higher states of danger over time and finally discuss the implications of the theory. The two key ideas arising from systems theory that I will explain are firstly that safety is a system and not a component property, and secondly, that systems tend to migrate towards higher states of danger over time due to system dynamics.
Socio-technical systems theory (systems theory) attempts to provide a descriptive workplace safety model.197 Systems theory traces its roots back to the abstract study of system dynamics in the 1930s, and the work of the Tavistock institute in the middle of the 20th century on socio-technical design.198 The authors at the institute sought to humanise work by placing equal weight on the needs of humans and technology in the design of systems.199
The combination of systems theory and socio-technical design only rose to prominence in the 1990s following the work of Jens Rasmussen, James Reason and Nancy Leveson. Its purpose is to examine the concept of safety itself within the context of socio-technical systems. A socio-technical system is a system comprised of both human and technical elements. It involves:200
In simple terms, we interact with socio-technical systems in all aspects of our lives. Examples include workplaces, health care systems, level crossings and ATMs.
197 Jens Rasmussen “Risk Management In a Dynamic Society: A Modelling Problem” (1997) 27(2) Safety Science 183 at 204.
198 Pascale Carayon, Peter Hancock, Nancy Leveson, Ian Noy, Laerte Sznelwar and Geert van Hootegem
“Advancing a sociotechnical systems approach to workplace safety – developing the conceptual framework” (2015) 58(4) Ergonomics 548 at 550.
199 Enid Mumford “The Story of Socio-technical Design: Reflections on its Successes, Failures and Potential” (2006) 16 Info Systems J 317 at 321.
200 Carayon, above n 198, at 550.
A The Reason, History and Purpose Behind Systems Theory
In chapter three, I discussed how sociological theories are a response to the theories of industrial psychologists that led to victim blaming.201 The industrial psychologists criticised by Quinlan are the predecessors of the academics who would develop systems theory and Nichols considers that the ideas developed by Tavistock institute psychologists were those that eventually led to victim blaming.202 However, systems theory is itself a reaction to those earlier theories.
The work that formed the basis of modern systems theory, including Rasmussen’s “Risk Management in a Dynamic Society: A Modelling Problem”, appeared in the late 1990s and 2000s after authors like Quinlan had already criticised industrial psychologists in the 1980s.203 Thus, systems theory and sociological theories respond to many of the same issues but are not responding to each other. Systems theory addresses the individualistic focus of industrial psychologists and, to some extent, the impact of workplace power relations in the form of “external pressures” acting upon people, as I will discuss later. Nevertheless, systems theory considers the impact of social and power relations as only one factor in the model.
They are not the core focus of the theory.
The starting point of systems theory is that traditional models of accident causation are inadequate. These models focused on individual workers, operator error and mechanical failures.204 Within these errors and failures, investigators sought to identify the root cause of accidents by identifying possible cause-effect relationships.
The goal of investigators when searching for root causes was to construct a chain of causation working backwards from the accident.205 This would enable the root cause(s) to be identified and eliminated by determining what happened, why it happened and ways to reduce the
201 Quinlan “Psychological and Sociological Approaches to the Study of Occupational Illness”, above n 86, at 191.
202 Theo Nichols “Industrial Accidents as a Means of Withdrawal from the Workplace according to the Tavistock Institute of Human Relations: A Re-Examination of a Classic Study” (1994) 45(3) The British Journal of Sociology 387 at 387.
203 Rasmussen, above n 197.
204 At 183.
205 Nancy G Leveson Engineering a Safer World Systems Thinking Applied to Safety (The MIT Press, Cambridge Massachusetts, 2011), at 15.
probability of it occurring again. Figure 1 is an example fishbone root cause analysis of a hypothetical car crash.
Figure 1 A fishbone root cause analysis model for a car accident.206A fishbone diagram is a structured way of identifying possible cause-effect relationships. Root cause analyses rarely allow investigators to go beyond the knowledge and insights they already have.
These traditional models were limited in their ability to explain accidents.207 They assume that safety can be understood through analytic reduction, that is, decomposing a system into its individual components and scientifically studying them. 208 As I will explain, systems theory conceives of safety as a system property and accidents as the emergent outcome of interactions between elements within the system; thus, searching for a root cause is unhelpful.
The definition of a “root cause” is inherently subjective and tends to stop at whatever is most convenient or satisfactory.209 As humans design, build and operate systems, that cause is inevitably a human.
Root cause analysis (RCA) is simplistic and rarely allows the investigator to gain insight beyond what they already know. The initiating event is often chosen because it is a familiar
206 Denis Besnard and Erik Hollnagel “I Want to Believe: Some Myths About the Management of Industrial Safety” (2014) 16 Cognition, Technology & Work 13 at 18.
207 At 18.
208 Carayon, above n 198, at 550.
209 Besnard, above n 206, at 18.
and acceptable explanation of a subsequent event.210 The causal chain may also stop for lack of information or because a politically acceptable cause has been found.
An example of failing to follow the chain far back enough is an investigation into a 1994 friendly fire incident of a US Army helicopter by a US F-15 fighter Jet over a no-fly-zone in Iraq.211 When entering the no-fly zone, the helicopter failed to tune into the correct radio frequency for that zone and instead stayed on their en-route frequency. They also possessed the wrong friend or foe identification codes because of an administrative error. This resulted in a misidentification and the helicopter being shot down. The official army report blamed the pilots for failing to change frequencies; however, an independent investigation revealed they were only following orders to use the enroute frequency. Interestingly, the failure of the friend or foe identification system could also legitimately have been described as a root cause but was not.
Instead of considering root causes, systems theory states that accidents are the emergent outcome of interactions between components within the socio-technical system. This also means that safety is an emergent property. There is no root cause because the accident was caused by multiple components interacting to produce an outcome greater than the sum of its parts.
An example of safety being an emergent property is the Herald of Free Enterprise (HoFE) ferry capsizing.212 The HoFE capsized when the bow doors were left open, letting water into the car deck. The accident resulted from numerous factors interacting to produce an emergent outcome and did not stem from any root cause.
The HoFE departed with her bow doors open because the crew were particularly busy and already running late. No one in the overworked and over-tired crew checked the door, and the bridge had no way of automatically knowing it was still open. This alone would not normally have caused an accident, a few years before the HoFE’s sister ship had crossed the English Channel with her bow doors open. Unfortunately, several other factors would interact to produce the accident.
210 Leveson, above n 205, at 20.
211 At 121.
212 At 12.
The HoFE was operating out of Zeebrugge (a port she was not designed for), and due to the high spring tides, the ship was too high to dock with the wharf. Consequently, the forward ballast tanks were filled with water to lower the bow. The ballast tanks were not completely emptied before setting off, thus lowering the height of the bow doors above the water.Investigators modelling the accident found that this alone should not have sunk the HoFE.
Unfortunately, the particularly shallow depth of Zeebrugge harbour, combined with the HoFE’s higher-than-normal speed (to make up for lost time), created an unusually high bow wave that reached her car deck. Because the HoFE was a car ferry, she had a single open deck without baffles to enable more efficient unloading and off-loading of cars. When water flooded the car deck, it sloshed from side to side. When the HoFE began turning, the water moved to one side and capsized the boat.
Ultimately “vessel design, harbour design, cargo management, passenger management, traffic scheduling and vessel operations” would all interact to produce an emergent outcome, the accident.213 Each factor mentioned above was crucial to the accident, and no one factor or even lesser combination of factors, could have caused the HoFE to capsize. For example, had the harbour been deeper or the ship speed lower (the HoFE was travelling at 18 knots, but had she been below 15, water would not have entered the ship), the HoFE would not have capsized even if the doors were left open.
Carayon describes these models of health and safety management: 214
The existing risk management paradigm, thus, effectively regards an injury event as a failure within the system... Any solution involves iterating through the series of the following steps: identify priority hazards, isolate the causes, determine the mechanisms and develop countermeasures to protect workers from these hazards. If the hazard arises due to potential deficiencies in the interconnectedness of system components, it may well go undetected by current risk assessment approaches.
Traditional models of accident causation relying upon simplistic cause-effect relationships are inadequate to understand why accidents occur. This limits their ability to make workplaces safer.
213 At 13.
214 Carayon, above n 198, at 549.
B Putting the “Systems” in Socio-Technical Systems Theory
Socio-technical systems theory is unrelated to the concept of “systems theory” discussed in the context of occupational health and safety systems. “Systems theory” focuses on the systematic implementation of safety systems within organisations and not on examining the dynamics of safety at a system level.215
Socio-technical systems theory is centred around the idea that accidents are the emergent outcome of interactions between different components within the system.216 The theory assumes that some properties of a system, like safety, can only be understood when systems are considered in their entirety. The safety of a single valve cannot determine the safety of an entire nuclear power plant. Safety is thus a system property, not a component property, and must be controlled at a system level.217
Leveson illustrates this concept by distinguishing between reliability and safety. Whilst safety and reliability are commonly assumed to be the same concept, they are not.218 Reliability is the probability that a component will meet its specified behavioural requirements over time under certain conditions.219 Safety is the absence of unplanned and unacceptable loss. Reliability is always related to the assumed operating conditions of the system or component. The specified requirements may be reliable but not safe from a system perspective. Although reliability and safety may coincide, reliability is not a necessary condition for safety.
An often-used example is the crash of the Mars Polar Lander:220
The loss of the Mars Polar Lander was attributed to noise generated when the landing legs
deployed during the spacecraft’s descent to the planet surface. The noise was normal and expected and did not represent a failure in the landing leg system. The onboard software interpreted these signals as an indication that landing had occurred (which the software engineers were told such signals would indicate) and shut down the descent engines prematurely, causing the spacecraft to crash.
215 Michael Quinlan Ten Pathways to Death and Disaster (The Federation Press, 2014) at 27.
216 Leveson Engineering a Safer World, above n 205, at 64.
217 At 14.
218 At 11.
219 Nancy G Leveson “Applying systems thinking to analyze and learn from events” (2011) 49 Safety Science 55 at 57.
220 At 56.
In this example, individual components were reliable in that they did exactly as they were designed, but the system as a whole was unsafe. Not every interaction between components was accounted for.
A system might also be safe but unreliable.221 An example of this is where a system fails in a safe way. Train brakes, for example, are designed to be permanently on and require a positive force to release.222 Thus, the train will simply stop in most brake failures. Safety is not necessarily compromised if the train brakes are unreliable.
Leveson argues that the safety-reliability distinction is also true at a system level.223 A factory may reliably produce chemicals yet occasionally release toxic fumes and poison its workers. In a complex system, it is difficult to account for every component interaction that may take place, especially when complex systems are usually designed, supplied and built by multiple people, companies and even countries. For example, the F-35 Joint Strike Fighter project employed at least 8000 engineers spread over most of the United States and Britain.224
Up until this point, systems theory adds little to sociological explanations of safety. Both share the assumption that workers operate within a broader context that is beyond their control. Both consider that understanding the broader context is vital to improving workplace safety. Both also emerged as a reaction to theories that put too much emphasis on the individual.
Nevertheless, the idea of safety as a system property differs from conceptualising how contextual factors might influence individuals. This is not necessarily unique to systems theory. Lamm emphasises that the pressures silencing workers “are interconnected and fluid, thus creating a dynamic system of silencing.”225 Yet, the extent to which accidents are conceptualised as the emergent outcome of interactions between components of the socio- technical system remains surprisingly limited. An example is the focus on root cause analysis
221 Leveson Engineering a safer world, above n 205, at 10.
222 William Herkewitz “Understanding a Runaway Train: How Do Air Brakes Work?” (11 July 2013) Popular Mechanics <www.popularmechanics.com>
223 Leveson, above n 205, at 11.
224 At 80.
225 Lamm, above n 144, at 69.
in HSWA regulations and WorkSafe guidelines.226 For example, r 34(5) of the Health and Safety at Work (Major Hazard Facilities) Regulations 2016 requires that following a notifiable incident employers provide WorkSafe with the information listed in schedule 4 part 2 of the regulations. This requires that an incident and remedial action report that includes a “[r]oot cause analysis.” Root cause analysis thus forms part of how Aotearoa’s workplaces respond and attempt to prevent accidents which is incompatible with systems theory.
C How Workplaces Migrate Towards Danger
A core implication of systems theory is that safety is an ongoing dynamic process rather than a system state. This is because workplaces are dynamic environments. Their situation is constantly changing, and decisions are always being made. The result is that organisations tend to experience a systematic migration of organisational behaviour towards higher risk states over time (migration towards danger).227 This describes how the nature of systems affects people’s perception and understanding of risk. It provides a systems level model of why and how people act in unsafe ways.
In this section, I will discuss how the fallacy of defence in depth and the nature of normal work results in organisations migrating towards danger over time.
Migration towards danger occurs due to normal workers, in normal workplaces, doing normal things,228 rather than merely as the result of external pressures or power relations within the workplace. Dekker describes this as the “banality of accidents.”229 The nature of normal work is the central mechanism facilitating this migration. The key to understanding normal work is to understand that normal work always requires initiative, decision making and satisficing.
Systems theory states that staff must resolve multiple degrees of freedom when carrying out work.230 This means they must always make decisions and use initiative to complete tasks.
226 WorkSafe A guide for small to medium business owners and company directors at 8; WorkSafe Health and Safety Guide: Good Governance for Directors (March 2016) at 24; “Duty Holder Review information sheet” WorkSafe < www.worksafe.govt.nz>; and Health and Safety at Work (Major Hazard Facilities) Regulations 2016, at schedule 4 part 2.
227 Rasmussen, above n 197, at 189.
228 Sidney Dekker “Why We Need New Accident Models” (2004) 2 Human Factors and Aerospace Safety at 1.
229 Quinlan, above n 215, at 19.
230 Rasmussen, above n 197, at 187.
This is because there is a difference between work as imagined and work as done.231 Instructions can never completely define how to do a task. Whilst instructions, practicalities and resources will confine workers’ actions, significant latitude for choice still exists within those confines.
It should be noted that employment law recognises that the terms and conditions of employment contracts, including job descriptions, do not have to be exhaustive definitions of the role. 232 They may be left deliberately vague to provide the employer with more flexibility.
Work tasks also occur in a naturally changing environment. The variable nature of work and workers’ response to it means that workplaces are self-organising.233 Not every aspect of work can be influenced by leadership in a top-down manner. To complete tasks, respond to changing conditions and respond to the actions of other workers (that they are aware of), workers must continually adapt and make decisions. These adaptations are often not mandated by management. This process is why workplaces are complex self-organising environments.234
Staff are not completely free to choose from the many possible courses of action open to them. To select a course of action, staff must engage in an “adaptive search process guided by criteria [including] workload, cost-effectiveness, risk of failure, joy of exploration.”235 During this “adaptive search”, staff will be guided by various gradients.236 An effort gradient will naturally lead people to the path of least resistance (the most efficient option).
Management will also provide a cost gradient, with workers expected to select the most cost- efficient option. Economic and competitive pressures tend to push organisations to increase efficiency at the expense of safety. Commercial success in competitive environments often
231 Besnard, above n 206, at 17.
232 Gordon Anderson and Dawn Duncan Employment Law in Aotearoa New Zealand (3rd Ed, Lexis Nexus, Wellington, 2018) at 171.
233 Carayon, above n 198, at 560.
234 Jean Christophe Le Coze “Reflecting on Jens Rasmussen’s Legacy. A Strong Program for a Hard Problem” (2015) 71 Safety Science 123 at 131.
235 Rasmussen, above n 197, 189.
requires exploiting benefits from operating at the edge of accepted practice.237 However, whether or not this is true is debatable, and some argue that safety and profit are not incompatible as safe and healthy workplaces can increase worker productivity.238
Both gradients will push people towards taking risks and reducing system safety. Rasmussen conceptualises system safety as being like a bubble, as shown in figure 2.239 The inside of the bubble defines the area of safe operations within which the variance described above is acceptable and desirable. However, over time due to self-organisation and the resolution of degrees of freedom, the limits of acceptable behaviour will expand and reduce the margin of error. Once this margin is gone, an action that may not have led to an accident can trigger one.
237 At 190.
238 Felicity Lamm, Claire Massey and Martin Perry “Is there a link between Workplace Health and Safety and Firm Performance and Productivity?” (2007) 32 NZJER 72.
Figure 2 shows how Rasmussen envisages migration toward danger. External forces like competition, managerial pressure towards efficiency, and cost/effort gradients tend to push workers to reduce the margins of error.240
A common attempt to avoid the issues of migrating towards danger is to have multiple defences so that a failure of any single defence will not cause an accident. However, whilst defence in depth is an appropriate strategy, its implications must be properly understood.
The fallacy of defence in depth describes how having multiple safety systems in place can affect people’s experience of risk. Because well-designed systems possess multiple defences, a local violation of any single defence will often have no visible effect.241 Thus, as system safety degenerates over time, no obvious physical markers may exist. Staff may also experience no immediate feedback following unsafe actions but receive behavioural reinforcement if their action increases efficiency.
Pike River provides a potential example of the fallacy. The explosion at Pike required both a fuel source and an ignition source.242 The mine employed multiple defences to prevent excessive methane levels (a potential fuel source), including an extractor fan, pre-draining the coal of methane and proper mining technique.243 There were also multiple defences against potential ignition sources, including gas sensors on machinery that would automatically cut power when gas levels rose too high and bans on contraband that could be an ignition source.244 It should be noted that the cause of the explosion remains unknown.
In the 48 days before the explosion, there were 48 reports of hazardous methane levels (21 at explosive levels and 27 at lesser but still dangerous levels).245 More often than not, in the days leading up to the disaster, Pike’s multiple defences prevented the explosion from occurring when any individual defence was breached.
To summarise, according to systems theory, even well-designed systems will naturally degenerate over time if operators are not careful. This results from normal work processes, cognitive tendencies, outside pressures and systems’ impact on our experience of safety.
Accidents arise when the nature of normal work combines with system-level safety properties to prevent anyone from understanding that the margin of error has eroded.
D Implications for the Experience of Risk and Safety
Because migration to danger is the result of normal work and not breakdowns, mistakes or errors, it can be very hard to recognise that migration is occurring.246 Accidents occur gradually and are not preceded by spectacularly bad decisions or large departures from normal behaviour.247 Leveson sums this up by stating that: 248
Each local decision may be correct in the limited context in which it was made but lead to an accident when independent decisions and organisational behaviours interact in dysfunctional ways.
242 Royal Commission Vol 2, above n 42, at 181.
243 At 129.
244 At 143; and at 186.
245 “Commission's Report - Volume 1” (October 2012) Royal Commission on the Pike River Coal Mine Tragedy <pikeriver.royalcommission.govt.nz>.
246 Dekker, above n 228, at 23.
It is not just that normal work requires people to make choices; it is that those choices might be logical and still lead to an accident. This helps explain why systems theory conceptualises accidents as the emergent outcome of interactions between different system components.
Because safety is a dynamic process, it is not enough to set up safety restraints and walk away. Rasmussen states that risk management is thus “a control function focused on maintaining a particular hazardous, productive process within the boundaries of safe operation.”249
Systems theory implies that if one were to identify a specific behaviour, event, hazard or risk as the root cause of an accident and implement additional safety measures, the accident would likely occur at another point.250 The problem is that the system itself has moved towards a state of higher danger over time.
It is helpful to briefly mention two theories that utilise systems theory, Rasmussen’s AcciMap and Leveson’s Systems Theoretic Accident Modelling and Processes model (STAMP).
AcciMap suggests two key requirements for improving health and safety. Firstly, the boundaries of acceptable work performance must be clarified and known by operators within the system. Secondly, the development of operator coping skills must be promoted so that operators will not push the boundaries of appropriate behaviour when under pressure.251
STAMP’s solution is to impose a formal control hierarchy on systems designed to control interactions between components and prevent emergent outcomes.252 Safety is improved by creating a control structure that will enforce behavioural constraints in the face of external pressures to prevent unwanted interactions between components. Leveson argues that system constraints and their violation are the most basic element of accident investigation rather than the events themselves.
STAMP envisages a hierarchy of levels with the legislature at the top progressing down through regulatory agencies, company management, operational management and finally, the
249 At 192.
250 Rasmussen, above n 197, at 190.
251 Rasmussen, above n 197, at 191.
252 Leveson, above n 205, at 77.
physical operations or work at the bottom. Each level is supposed to impose safety constraints on the level below it and receive feedback on the appropriateness of those controls and the system state. Systems are conceptualised as “a set of interrelated components kept in a state of dynamic equilibrium by feedback control loops.”253 This hierarchy is necessary because only a higher level will be able to assess the system state of a lower level.254 This is because safety is an emergent property, and it can be hard for lower levels to see component interactions.
The Pike River Mine disaster shows how tragedies result from interacting factors and how organisations migrate to danger. The Pike River disaster resulted from interactions between geological and engineering challenges, management priorities, organisational culture, project promises and worker behaviour.255 These interactions are implicit rather than explicit in the Royal Commission report.256
Pons argues that management at Pike River viewed methane, ventilation, electrical and production problems as independent issues.257 They did not realise the danger that arose from the interaction of these problems and lacked an adequate construct of risk management.
When a disaster inevitably occurred, management struggled to understand what had happened.258 Pons suggests that management simply did not know how little margin of safety was left in the system.
As discussed in earlier chapters, workers at Pike River engaged in dangerous behaviour. However, given the cost and effort gradients present, this should be no surprise. Management pushed for increased coal production, set up a bonus system and ignored reports about dangerous behaviour.259 Furthermore, it is unlikely that any of the workers fully appreciated how the entire socio-technical system had migrated towards a state of higher danger over
253 At 89.
254 At 81.
255 Dirk J Pons “Pike River Mine Disaster: Systems-Engineering and Organisational Contributions” (2016) 2 Safety at 24.
256 At 24.
257 At 18.
258 At 20.
259 Royal Commission Volume 2, above n 42, at 60.
time, although as evidenced by high worker turn-over at Pike, many experienced miners were aware Pike had significant problems.260
Pike was intended to have a world-class health and safety system. However, the push to increase coal production without addressing the implications of normal work led to a dramatic reduction in the margin of safety. By the 19th November 2010, the lack of effective safety management at Pike meant a disaster was almost inevitable.
E Conclusion
The insight systems theory provides is not that factors interact to produce disasters; this is not a particularly complicated idea. Although, as noted, the extent to which other theories conceptualise accidents as the emergent outcome of interactions between components of the socio-technical system is surprisingly limited. Systems theory provides an abstract model of how and why accidents occur in the first place. It attempts to understand accidents by applying a general formula and principles abstracted from the messy reality of workplace labour relations. Politics and ideology are considered in the model, but they are included as variables to be plugged into the formula rather than as core elements of the theory.
This neutrality is a weakness of systems theory. It does not closely examine social and power relations within workplaces and capitalistic societies. Compared to sociological theories, the systems theory advocates ultimately propose surprisingly conservative solutions to improving workplace health and safety that stray little beyond conventional health and safety reasoning. They do not address the concerns of sociological approaches. For example, STAMP advocates for a strict hierarchy to control unwanted component interactions.
A further weakness of the theory is the lack of data on the real-world validity and reliability of the model.261 Troublingly, attempts use systems theory commonly end up focusing on worker behaviour, equipment issues and the physical environment.262 This negates many of
260 At 98.
261 Patrick Waterson, Michelle M Robertson, Nancy J Cooke, Laura Militello, Emilie Roth and Neville A Stanton “Defining the methodological challenges and opportunities for an effective science of sociotechnical systems and safety” (2015) 58(4) Ergonomics 565 at 593.
262 Paul M Salmon, Adam Hulme, Guy H Walker, Patrick Waterson, Elise Berbera and Neville A Stanton “The big picture on accident causation: A review, synthesis and meta-analysis of AcciMap studies” (2020) 126 Safety Science at 7.
the system-level insights the theory potentially provides, such safety as a system property. Nevertheless, systems theory gives useful insights into safety in the workplace.
Chapter V: Implications of Systems Theory
The time is right to reconsider the fundamental assumptions underlying Aotearoa’s health and safety system. Its recent record is mediocre, and it is based on a 50-year-old report that was the first systematic examination of Britain’s health and safety system.
In this report, I have considered three schools of thought on the cause of accidents: apathy and culture, sociology, and systems theory. I have argued that systems theory provides insights beyond those in sociological or cultural approaches to safety. Ultimately, this report calls into question many assumptions underlying Aotearoa’s health and safety law.
All three schools of thought share a focus on the careless worker. Migration toward danger, apathy and workplace power relations all explain the same phenomena; why do workers behave dangerously? All three explain this differently. Cultural theories blame apathy and cultural traits. Sociological theories explain it by investigating the workplace’s social, political and economic context. Systems theory explains worker carelessness through the dynamics of safety at a system level.
A Challenging the Assumptions Underlying Aotearoa’s Health and Safety System
Aotearoa’s health and safety system is designed to reduce workplace accidents by driving positive cultural change through increased awareness of and self-responsibility for safety. Systems theory challenges the fundamental assumption that apathy is the most important reason for accidents at work.
A core implication of systems theory is that the current approach cannot drive cultural change. This is because cultural approaches do not properly address the causes of “apathy” or poor workplace culture. Concepts like migration towards danger, the fallacy of defence in depth and the nature of safety at a system level provide a significantly more sophisticated understanding of why workers appear apathetic than simply blaming cultural traits or the structure of the health and safety system.
Regardless of how motivated businesses and workers are to improve health and safety, if systems theory ideas are ignored, workers and businesses will continue to appear apathetic. Systems theory suggests that accidents are emergent outcomes and are not caused by apathy; it is hard for anyone in a workplace to realise that their immediate actions might result in
disaster. Thus, a business with a positive health and safety culture might still migrate towards danger.
A systems theory approach to safety also removes apathy as a key reason behind having a self-regulatory system. If accidents are not caused by apathy, then awareness and self- responsibility for health and safety are less important. That does not mean there can be no other arguments in favour of self-regulation, but the current system is intimately connected to this explanation of workplace accidents. It also continues to drive much of WorkSafe’s approach. The goal of the health and safety system should be to prevent migration towards danger and unwanted interactions between components rather than to dispel apathy.
The same is true for more modern attempts to improve safety culture. Systems theory does not relegate New Zealander’s attitudes to “Kiwi culture.” It assumes that workers care about safety but are often unaware of the true system state. Systems theory provides a model of how the “cultures” described by the Taskforce or contributors to the ADLS article came to be in the first place. It does not lead to victim blaming because it emphasises that factors beyond the control of the individual are affecting their perception of safety.
B Practical Implications of Systems Theory
If current thinking about risk is deficient, as systems theory suggests, directors and PCBUs will struggle to keep workers safe and fulfil their HSWA ss 36 and 44 duties. This stems from a different theory of what causes risk. Businesses cannot simply focus on individual risks and hazards but must consider safety at a systems level. They must consider how they can ensure their margins of error remain large.
PCBUs may also struggle to carry out effective risk assessments as required by the s 22 definition of reasonably practicable. For example, s 22(a) states that a relevant factor is “the likelihood of the hazard or risk concerned occurring.” If accidents are the emergent result of interacting components, it may be hard for PCBUs to carry out these risk assessments accurately. Systems theory thus calls into question the feasibility of relying heavily on self- regulation of health and safety.
Similarly, businesses attempting to improve their safety systems will struggle if they rely on root cause analysis. They must understand how logical strategies like defence in depth will impact the dynamics of safety and can contribute to accidents.
C Implications for Current Criticisms of Aotearoa’s Health and Safety System
Systems theory argues that workplace accidents are not primarily caused by social or power relations in the workplace, as sociologists argue. This has implications for the role of the workers in health and safety. Systems theory does not support the redistribution of power as sociological theories might. For example, STAMP supports a hierarchy with control coming down and feedback going up. This hierarchy emphasises that higher system levels (management and regulators) must control operations and relegates worker participation to mere input.
Overall, sociological and systems theories both consider how the surrounding context shapes worker actions. However, systems theory provides unexplored insight in its focus on safety as a system property. The theory would continue to be relevant even if sociological aims were achieved. Ideas like migration towards danger do not require adverse power and social relations in the workplace. Furthermore, sociological models do not consider safety an emergent property as they are focused upon how power relations in the workplace affect safety.
Systems theory provides insight because it is a coherent model than can be applied to explain why an accident occurred and to derive insights that go beyond the pure facts. Its underlying ethos drives conclusions the other theories would not reach.
When things go wrong, systems theory provides insights not present in conventional health and safety thought. The theory questions the fundamental assumptions underlying Robens- based systems. Is health and safety simply a matter of good management, tripartite cooperation, self-regulation and positive attitudes? However, no single vision of safety can fully explain why accidents occur or who is to blame when they do. Safety can be defined in different ways, and Aotearoa should question what vision of safety best suits the country. The
promotion of positive health and safety cultures must be part of the plan for reducing workplace injuries in Aotearoa, but it should not be the plan itself.
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Parliamentary Debates
(3 December 2002) 604 NZPD 2442 [Margaret Wilson]
(18 June 2015) 706 NZPD 4567 [Michael Woodhouse]
Official Reports
Brian Sage, Ben Bush, Catherine Taylor and Igor Dupor WorkSafe New Zealand Strategic Baseline Review (Ministry of Business, Innovation & Employment, 12 May 2022)
Committee on Safety and Health at Work Safety and Health at Work: Report of the Committee 1970-1972 (Cmnd 5034, June 1972) [Robens Report]
“Commission's Report - Volume 1” (October 2012) Royal Commission on the Pike River Coal Mine Tragedy <pikeriver.royalcommission.govt.nz>
Graham Panckhurst, Stewart Bell and David Henry Royal Commission on the Pike River Coal Mine Tragedy: Volume 1 (October 2012)
Graham Panckhurst, Stewart Bell and David Henry Royal Commission on the Pike River Coal Mine Tragedy: Volume 2 (October 2012)
Minister of Labour Working Safer: a Blueprint for Health and Safety at Work (August 2013) Minister for Workplace Relations and Safety Health and Safety at Work Strategy 2018-2028 WorkSafe and ACC Harm Reduction Action Plan (July 2019)
WorkSafe “Te Pūrongo ā-Tau o Mahi Haumaru Aotearoa|Annual report 2020/2021” (January 2022)
Rob Jager, Paula Rose, Paul MacKay, Bill Rosenberg, Mavis Mullins and Mike Cosman The Report of the Independent Taskforce on Workplace Health & Safety (April 2013)
Royal Commission of Inquiry into Personal Injury in New Zealand Compensation for Personal Injury in New Zealand: Report of the Royal Commission of Inquiry (Government Printer, Wellington, 1967)
Official Guidance
“Duty Holder Review information sheet” WorkSafe < www.worksafe.govt.nz>
WorkSafe A guide for small to medium business owners and company directors
WorkSafe Health and Safety Guide: Good Governance for Directors (March 2016)
Books
Gordon Anderson, Alan Geare, Erling Rasmussen and Margaret Wilson (ed) Transforming Workplace Relations in New Zealand 1976-2016 (Victoria University Press, Wellington, 2017)
Gordon Anderson and Dawn Duncan Employment Law in Aotearoa New Zealand (3rd ed, Lexis Nexus, Wellington, 2018)
Hazel Armstrong Blood on the Coal The origins and future of New Zealand’s Accident Compensation scheme (Trade Union History Project, Wellington, 2008)
Jeffery Hilgert Hazard or Hardship: Crafting Global Norms on the Right to Refuse Unsafe Work (Cornell University Press, 2015)
John Munkman Employer Liability at Common Law (11th ed, Butterworths, London, 1990)
Michael Quinlan Ten Pathways to Death and Disaster (The Federation Press, 2014)
Nancy G Leveson Engineering a Safer World Systems Thinking Applied to Safety (The MIT Press, Cambridge Massachusetts, 2011)
Prosser and Keeton on The Law of Torts (5th ed, location, 1984)
Rebecca Macfie Tragedy at Pike River Mine: how and why 29 miners died (1st ed, Awa Press, Wellington, 2013)
Articles
Alan Clayton “Some Reflections on the Woodhouse and ACC Legacy” (2003) 34 VUWLR 449
Anthony D Woolf “Robens Report – the wrong approach” (1973) 2(1) Industrial Law Journal 88
Bob Barnetson and Jason Foster “Bloody Lucky: the careless worker myth in Alberta, Canada” (2012) 18(2) International Journal of Occupational and Environmental Health 135
Brian M Kleiner, Lawrence J Hettinger, David M DeJoyce, Yuang-Hsiang Huang and Peter E D Love “Sociotechnical attributes of safe and unsafe work systems” (2015) 58(4) Ergonomics 635
Bronwyn Neal “Health and Safety At Work Act 2015: Intention, Implementation And Outcomes in the Hill Country Livestock Farming Industry” (2017) 42 NZJER 5
“Culture” Oxford English Dictionary: The Definitive Record of the English Language
< www.oed.com>
Christopher Sirrs “Accidents and Apathy: The Construction of the ‘Robens Philosophy’ of Occupational Safety and Health Regulation in Britain, 1961–1974” (2015) 29(1) Social History of Medicine 66
Christopher Sirrs “Risk, Responsibility and Robens: The Transformation of the British System of Occupational Health and Safety Regulation, 1961–74” in Tom Crook and Mike Esbester, M. Governing Risks in Modern Britain (Palgrave Macmillan, London, 2016)
David Walters and Theo Nichols Safety or profit “Introduction” in David Walters and Theo Nichols Safety or Profit? International Studies in Governance, Change, and the Work Environment (Routledge, Oxfordshire, 2017)
Deirdre Farr, Ian Laird, Felicity Lamm and Jo Bensemann “Talking, listening and acting: Developing a conceptual framework to explore ‘worker voice’ in decisions affecting health and safety outcomes” (2019) 44(1) NZJER 79
Denis Besnard and Erik Hollnagel “I Want to Believe: Some Myths About the Management of Industrial Safety” (2014) 16 Cognition, Technology & Work 13
Dirk J Pons “Pike River Mine Disaster: Systems-Engineering and Organisational Contributions” (2016) 2 Safety
Enid Mumford “The Story of Socio-technical Design: Reflections on its Successes, Failures and Potential” (2006) 16 Info Systems J 317
“Fatalities” (21 September 2022) WorkSafe Data Centre <data.worksafe.govt.nz>
Felicity Lamm “Australian and New Zealand Occupational Health and Safety – A Comparative Analysis” (1994) 32(2) Asia Pacific Journal of Human Resources 57
Felicity Lamm “A disaster waiting to silently happen: Silently silencing stakeholders at the Pike River Coal Mine” (2018) 60(4) Journal of Industrial Relations 560
Felicity Lamm, Claire Massey and Martin Perry “Is there a link between Workplace Health and Safety and Firm Performance and Productivity?” (2007) 32 NZJER 72
Frank W. Guldenmund “(Mis)understanding Safety Culture and Its Relationship to Safety Management, Risk Analysis” (2010) 30 Risk Analysis 1466
Gibson and Reeves “Getting ready” in Intensive Health And Safety In Employment Law (New Zealand Law Society Webinar, 2016)
Harry Glasbeek and Eric Tucker “Death by Consensus: The Westray mine Story” (1993) New Solutions 14
Health and Safety Executive “Work-related fatal injuries in Great Britain” HSE
James Frederick and Nancy Lessin “Blame the Worker, The Rise of Behavioural-Based Safety Programs” Multinational monitor (November 2000)
James Reason "Beyond the Limitations of Safety Systems" (1 April 2000) Australian Institute of Company Directors <www.aicd.com.au>
Jeff Sissions “A Bad Day at the Sausage Factory: The Health and Safety at Work Act 2015 (2016) 41(2) NZJER 58
Jens Rasmussen “Risk Management In a Dynamic Society: A Modelling Problem” (1997) 27(2) Safety Science 183
Jean Christophe Le Coze “Reflecting on Jens Rasmussen’s Legacy. A Strong Program for a Hard Problem” (2015) 71 Safety Science 123
Jim Tomlinson “British productivity problem” (2002) 175 Past & Present 188
John Wren “The Transformation of New Zealand’s Occupational Safety and Health (OSH) Legislation and Administration from 1981 to 1992: A Case of Reactionary Politics” (1996) Labour, Employment and Work in New Zealand
John Uff “Review of Ethical Principles in the Context of Recent Engineering-Related Disasters (2014) 41 IPENZ Transactions
Melanie Nolan “Inequality of Luck: Accident Compensation in New Zealand and Australia” (2013) 104 Labour History 189
Michael Hargreaves “Worksafe’s Role” in Health and Safety – Recent Developments (New Zealand Law Society Webinar, March 2019)
Mike Hargreaves and Braden Sloper “Health and safety — turning the dial (up to 11)” (2021) ELB 80
Michael Quinlan “Psychological and Sociological Approaches to the Study of Occupational Illness: A Critical Review (1988) 24(2) ANZJS 189
Nancy G Leveson “Applying systems thinking to analyze and learn from events” (2011) 49 Safety Science 55
National Occupational Health and Safety Advisory Council “Occupational health and Safety in New Zealand NOHSAC Technical Report No 7”
Neil Gunningham “Lessons from Pike River: Regulation, Safety and Neoliberalism” (2015) 94 RegNet Research Paper
Neil Gunningham and Darren Sinclair, 'The Impact of Safety Culture on Systemic Risk Management' (2014) 5(4) European Journal of Risk Regulation (EJRR) 505
Patrick Waterson, Michelle M Robertson, Nancy J Cooke, Laura Militello, Emilie Roth and Neville A Stanton “Defining the methodological challenges and opportunities for an effective science of sociotechnical systems and safety” (2015) 58(4) Ergonomics 565
Paul Raymond Gurtler “The Workers' Compensation Principle: A Historical Abstract of the Nature of Workers' Compensation” (1989) 9 Hamline J. Pub. L. & Pol'y 285
Paul M Salmon, Adam Hulme, Guy H Walker, Patrick Waterson, Elise Berbera and Neville A Stanton “Defining the methodological challenges and opportunities for an effective science of sociotechnical systems and safety” (2020) 126 Safety Science
Pascale Carayon, Peter Hancock, Nancy Leveson, Ian Noy, Laerte Sznelwar and Geert van Hootegem “Advancing a sociotechnical systems approach to workplace safety – developing the conceptual framework” (2015) 58(4) Ergonomics 548
Peter Kiely and Stephen Langton “The Health and Safety in Employment Act 1992 – An Overview” (1994) 19(3) NZJIR 195 at 195.
Rebbecca Lilley, Gabrielle Davie, Bronwen McNoe, Simon Horsburgh, Tim R Driscoll and Colin Crye “Impact of legislative reform on worker fatalities in New Zealand workplaces: a 30-year retrospective population-level analysis” (2022) Occup Environ Med
Rod Vaughn “Is our workplace safety law still fit for purpose?” (12 March 2021) ADLS < adls.org.nz>
Safe Work Australia “Key WHS statistics Australia 2020 Work-related injury fatalities” Safe Work Australia <www.safeworkaustralia.gov.au>
Sidney Dekker “Why We Need New Accident Models” (2004) 2 Human Factors and Aerospace Safety
Stan Jones "Health and Safety at Work: The Self-Help Model Ten Years On." (1984) 18(2) Law Teacher 124
Stats NZ Tatauranga Aotearoa “Work-related injury targets at a glance: 2008–2020” (26 October 2021) <www.stats.govt.nz>
Stephanie Grieve “Directors Duties – the responsibilities and liabilities of directors and senior management” in Intensive Health And Safety In Employment Law (New Zealand Law Society, 2016) 23
Stian Antonsen “Safety Culture Assessment:A Mission Impossible?” (2009) 17 Journal of Contingencies and Crisis Management 242
Taylor Sizemore “Managerial attitudes toward the Health and Safety at Work Act (2015): An exploratory study of the Construction Sector” (2017) 42 NZJER 22
Theo Nichols “Death and Injury At Work: A sociological Approach” in Norma Daykin and Lesley Doyal (ed) Health and Work Critical Perspectives (MacMillan Press Ltd, London, 1999) 86
Theo Nichols “Industrial Accidents as a Means of Withdrawal from the Workplace according to the Tavistock Institute of Human Relations: A Re-Examination of a Classic Study” (1994) 45(3) The British Journal of Sociology 387
Viktoriya Pashorina-Nichols “Occupational Health And Safety: Why And How Should Worker Participation Be Enhanced In New Zealand?” (2016) 41(2) NZJER 71
Viktoriya Pashorina-Nichols, Felicity Lamm and Gordon Anderson “Reforming Workplace Health and Safety Regulation: Second Time Lucky?” In Gordon Anderson, Alan Geare, Erling Rasmussen and Margaret Wilson (ed) Transforming Workplace Relations in New Zealand 1976-2016 (Victoria University Press, Wellington, 2017) 129
William Herkewitz “Understanding a Runaway Train: How Do Air Brakes Work?” (11 July 2013) Popular Mechanics www.popularmechanics.com
Theses
Torsten Arnt Olsen “Does the oversight model lead to power relations in terms of empowerment or responsibilization?” (MSc Thesis, Lund University Sweden, 2017)
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