2 Jul 2020

Family says no justice for WorkSafe investigated workplace deaths

8:02 am on 2 July 2020

An East Coast whānau that lost three family members working in logging operations says they have not got justice nor have there been decent investigations into the deaths.

loading harvested timber in the forest

Photo: 123RF

Families are speaking up about their experience of WorkSafe investigations after an independent report found numerous weaknesses in its approach and practices.

The regulator is now spending $5 million on an improvement programme it has styled as moving from "good to great" - but Willie Waitoa said after what his family have been through, if WorkSafe thinks it is doing a good job, "I hate to know what hopeless is".

His nephews Te Oho Mauri Piripi Bartlett and Niko Brooking-Hodgson, both in their 20s, died doing one of the riskiest jobs in forestry - breaking out, or overseeing the hauling of felled logs - one year apart in 2016 and 17.

In Bartlett's case, Blackstump Logging was fined $150,000 in April for failing to keep him safe.

WorkSafe said it had held Blackstump accountable.

But Waitoa, a Gisborne fisheries inspector with first-hand experience of the demands of regulatory investigations, said it amounted to a "slap on the wrist" and "no real justice" - though what they really wanted was real change to make forestry safer, he added.

Both deaths were investigated by WorkSafe under laws strengthened in 2016 in response to the Pike River disaster, including the ability to go after company bosses and directors.

But WorkSafe is being criticised for not using those powers enough.

"I feel that we're squandering it," lawyer and health and safety specialist Hazel Armstrong, said.

She independently investigated Brooking-Hodgson's death, helping prompt WorkSafe to commission ex-police officer Gavin Jones in mid-2019 to independently assess investigations as a whole.

"What I'm finding is that they're not really looking at who owns and manages the forest," she said.

Waitoa said the agency started out supporting his whānau well, with "lovely" tikanga protocols upheld.

But as time went on, this became fractured and communications poor, and the final straw was the charge against Blackstump Logging being downgraded to the lesser of two serious charges under the 2015-16 laws.

"Come right to the crux of it when we're about to go to court ... all of a sudden all those tikanga protocols just got thrown out the window."

Thirty members of the family - many who'd travelled a long way - ended up waiting in vain in the foyer of the Gisborne District Court in June 2019, where the company pleaded guilty.

They never got into the court to see that, or to show the judge how many people cared for Bartlett, Waitoa said.

WorkSafe had two staff in the courtroom, who could not get out to alert the whānau once proceedings began, the agency told them afterwards in a letter.

It added this was unfortunate and it "did not know" how it had occurred.

"Us as a family, we're out there in limbo," Waitoa said.

"We've never seen a summary of facts of the case.

"You're just out on the side, and you're just hearing these little whispers and getting these bits of email, 'we'll fill you in' type stuff."

His request under the Official Information Act for reports had been turned down, he said.

WorkSafe said it would get him a summary of facts this week.

"Mr Waitoa is entitled to his opinions on his experience," WorkSafe specialist interventions head Simon Humphries said in a statement.

WorkSafe chief executive Phil Parkes has repeatedly stressed the agency succeeds with 90 percent of prosecutions.

The 2019 report said this was an important measure but that deeper digging showed up looming problems.

Both Waitoa and Armstrong said the high success rate showed the agency was taking the easy cases.

In the Brooking-Hodgson case, no prosecution was taken, and his family fought for years till recently learning they would get an inquest.

"They put his death in the too-hard basket," his father Richard Brooking said.

Waitoa pointed to how rarely WorkSafe took action against company directors and executives.

An OIA response shows these account for just two out of an average 120 prosecutions a year since 2013; or 16 all up, 11 of which have succeeded, four failed, and one is ongoing.

"That's pretty average eh?" Waitoa said.

"I hate to know how much staff they've got to get two prosecutions a year."

'A timid approach'

WorkSafe has 190 inspectors, 44 of whom are in its investigations unit, and 24 of those are specialists, three more than in 2016.

The rest go out assessing companies (visits steady at 13,000 to 15,000 visits a year) and imposing a range of enforcement actions short of prosecution (up five-fold since 2016 to 12,000 actions in 2019).

It has 15 staff in its legal unit - one more than in 2016 - and staff turnover is a high 20 percent a year, against very low turnover in its operations side.

Those heading forestry companies needed to be held to account, too, Waitoa said.

"I hate to say, but I don't think that they worry too much about losing people.

"All they're worrying about at the end of the day is how big the bank account is.

"So for them, if you start affecting that the bottom end of the dollar, that's where you'll start implementing change."

Blackstump Logging was prosecuted, but it is a small company.

Armstrong said this showed WorkSafe's willingness to go after small subcontractors, but not confront the big companies or forest owners, many of whom were based overseas.

"They've got a timid approach," she said.

"They're not really looking at who owns and manages the forest. They tend to focus just on the contractor and the men on the day.

"It will look for the immediate cause of the accident. They're not looking at the systematic approach. But the contracting model is flawed."

The contracts encouraged a race to the bottom.

WorkSafe was constrained by investigative weaknesses that were evident when she reinvestigated the Brooking-Hodgson case, finding 18 safety lapses, Armstrong said.

"I've read the transcript of the investigation ... and the inspector, asking the questions, simply didn't know enough about forestry.

"He didn't know how to gather the evidence that he needed. And you can see him pulling back when he comes to an area where he's unconfident."

WorkSafe's 2019 review of the investigation found there was expert input into it.

But Armstrong said this was not evident, adding that she and Richard Brooking had not been given access to that expert advice.

The picture would look worse still if the agency counted deaths and serious injuries properly, she said.

Annual fatality numbers jumped nationwide across all industries when WorkSafe for the first time corrected a historical undercounting of work-related road crash deaths at the start of this year.

Applying this to logging truck deaths and the supply chain, forestry fatalities would rise from WorkSafe's count of 30 since 2014, to 42, Armstrong said.

Improvements being made - minister

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Iain Lees-Galloway. Photo: RNZ /Dom Thomas

Workplace Safety Minister Iain Lees-Galloway said the 2019 Jones report had concluded that overall WorkSafe's investigations were of good quality.

"WorkSafe has acknowledged its investigations needed improving and improvements are already being made," he said in a statement.

He had been advised that WorkSafe continued to invest in improving investigations and technology.

The report and management's response say investigators and lawyers are overloaded by evermore complex cases, and the number one risk is staff burnout.

Waitoa still has 20 whānau employed in forestry; the industry claimed his uncle's life several years back, and his father only recently got out of it.

"Yep, they know it's unsafe and they'll carry on, they've got no other choice but to. There's pretty much no other job."

It could be a top job, too - if there were go-pro cameras on hardhats, tougher laws and responsible operators, he said.

"What I'd like to say to them is: 'Put put yourself in our shoes. How would you like it if it was your son gone?'

"No doubt these company owners will have kids of their own. Would they send their own kids out? I'm pretty sure if you looked in their eyes, there'd be no way they'd have their own son or daughter in the same job where our family members are."

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