Government orders review of WorkSafe

The Government has ordered an independent review of WorkSafe’s oversight of Whakaari/White Island tours following the eruption that killed 22 people.

Workplace Relations and Safety Minister Michael Wood made the announcement yesterday when he released the first stage of a targeted review of adventure activity regulations identifying serious gaps in WorkSafe’s enforcement regime.

Wood said the Government was committed to strengthening regulatory oversight and audit processes in the wake of the Whakaari/White Island tragedy, and further changes would be made next year after public consultation. The Ministry of Business Innovation and Employment (MBIE) has appointed David Laurenson QC to undertake the independent review of WorkSafe’s performance leading up to the fatal eruption which caught 47 visitors and guides on the active volcano on December 9 last year.

‘‘The review will assess the adequacy and appropriateness of WorkSafe’s actions in relation to Whakaari/White Island and whether further steps should have been taken. It will also identify whether any changes to WorkSafe’s systems, processes and practices are necessary or desirable,’’ Wood said.

Laurenson is expected to deliver his report in May. He will look at WorkSafe records relating to Whakaari/White Island, and if necessary interview relevant WorkSafe staff, as well as union, business and tourism industry representatives. However, WorkSafe’s health and safety investigation into the eruption and its decision to prosecute 13 parties would be outside the scope of the review to avoid prejudicing the prosecution or the parties’ right to a fair trial. Wood said that excluding the Whakaari victims, there had been eight deaths related to adventure activities since the regulations came into force in 2014, compared with 31 deaths between 2004 and 2009, and that was during a decade where tourism grew 55 per cent.

‘‘The review shows that the adventure activities regulatory regime is performing reasonably well, but has identified areas which could be strengthened.’’

The 27-page review said WorkSafe had prioritised other sectors with high workrelated harm, and it needed to take a greater leadership role helping operators better identify and manage natural hazard risks. Changes to safety audit standards and the system for certifying auditors were also needed. Members of the adventure activity industry interviewed for the review said WorkSafe had little direct oversight of how operators were performing, relied largely on auditors to identify safety issues, and there was a general lack of enforcement.

They said Worksafe did not appear to actively review audit findings, and sometimes failed to investigate complaints forwarded by certifying bodies. There were claims that front line staff could face pressure from customers and businesses to continue operating in potentially hazardous conditions, and the regulatory regime should help develop clear guidelines about conditions under which operations should change or cease.

Operators often had difficulty getting a clear answer about whether their operations were classed as ‘‘adventure activities,’’ there was insufficient guidance from WorkSafe and too much reliance on the operator’s interpretation of the rules.

Between June and September this year, WorkSafe conducted an ‘‘internal health check’’ separate to the MBIE review.

It has moved to close gaps in the regulatory system through measures such as improving record keeping, and reviewing the certification and audit scheme.

WorkSafe hurriedly ramped up monitoring of adventure activities following last year’s Whakaari/ White Island disaster, but safety experts say there is still room for improvement.

The 22 Whakaari fatalities and severe injuries to survivors sparked a review of the agency’s handling of adventure activities involving natural hazards, and a further independent review will now look at its oversight of tours to the active volcano.

WorkSafe confirmed that following the eruption in December 2019, it had carried out 177 assessments of adventure activities, compared with 225 over the previous six years.

The natural hazards review conducted by the Ministry of Business Innovation and Employment (MBIE) said safety standards in adventure sector had improved generally, but it identified problems with risk assessment of natural hazards, auditing processes and WorkSafe’s approach to enforcement.

Operators offering certain commercial activities that deliberately put participants at serious risk must be on the adventure activities register, and undergo regular safety audits.

Since tougher regulations were introduced in 2014, WorkSafe said it had issued 46 enforcement notices, a dozen of them in the last 12 months.

Most assessments of operators were ‘‘proactive’’ and 16 resulted from complaints or concerns raised by outside parties.

Adventure Mark is one of just two companies certified to audit adventure activities and director Hemi Morete said WorkSafe needed to be much tougher on those who stepped out of line.

He gave the example of an operator who was reported for failing to be on the adventure activities register, and WorkSafe’s response was to issue an improvement notice, rather than fine the offender.

‘‘They were told to get an audit and fix their systems and were not punished in any way.’’

Tourism Industry Aotearoa chief executive Chris Roberts said New Zealand’s regulations made our adventure tourism the safest in the world, and he understood a recent internal review by WorkSafe had identified only six unregistered operators whose activities might require them to be on the register.

‘‘We’re satisfied with the way the regime has been working, we just believe that WorkSafe has taken its eye off the ball in terms of its oversight, and it has left it to the auditors and the industry to get on with it.’’

Roberts said WorkSafe had relied heavily on organisations such as TIA to develop safety guidelines for adventure activities, but funding to help pay for that had ended in 2018.

‘‘Ourselves and others have been left carrying the can in some respects.’’ Roberts said the decision to have David Laurenson, QC, undertake an independent review of WorkSafe’s handling of the Whakaari/White Island tours was a good one, especially in light of the decision to prosecute two other Government agencies GNS Science and the National Emergency Management Agency (Civil Defence) over health and safety breaches.

The MBIE review said the whole regulatory regime would be put under significant pressure if one of the two certifiers collapsed, and having WorkSafe take over that function was an option.

Victoria University health and safety lecturer Andy White has worked in the adventure tourism sector, and he said it would be preferable to keep auditors at arms length from the people they were paid to assess by having WorkSafe contract out the safety checks.

‘‘When you’ve got something to lose, you will pay the people who’re going to get you across the line.’’

‘‘When you’ve got something to lose, you will pay the people who’re going to get you across the line.’’

Andy White Victoria University health and safety lecturer