WorkSafe: 'Our task is bigger than our available resources'

Critics of the workplace safety regulator are questioning its ability to investigate bad road crashes.

WorkSafe itself has admitted the overall regulatory task is too big for it, and the government has begun looking at giving some of its crash investigation powers to the Transport Agency.

But that work has now been delayed for more than a year, because of the demands of the pandemic response, the Ministry of Transport told RNZ.

"Where are we at? Well, you know, Groundhog Day, that's where we're at," said Peter Gallagher, of driver lobby group ProDrive.

A confusing overlap between WorkSafe, NZTA and police was identified in 2019 and had been aimed to be fixed in 2020, but that has now been put off for at least another year.

"It's not fast enough," Nick Leggett of the trucking industry group, the Road Transport Forum, said.

"WorkSafe is not equipped to adequately investigate the transport industry."

One example of the confusion is the investigation into a fatal skifield bus crash in 2018, when police thought a health and safety inquiry was underway when it wasn't.

The Ministry of Transport, which is in charge of the review, said the government was committed to strengthening regulatory settings that applied to work-related driving.

WorkSafe recently laid out a list of high-sounding aims to Michael Wood, who is both Transport Minister and Workplace Safety Minister, including a commitment to intervene in the transport sector, look into supply chain pressures, and hold unsafe businesses to account.

But in the same ministerial briefing, it added it was having to constantly "make tough choices" about where to intervene.

"In short, our task is bigger than our available resources and we are unable to meet public expectations for responding to reported incidents and near misses," chief executive Phil Parkes and chair Ross Wilson wrote.

'Conflicting facts'

A Hamilton family who went through one of WorkSafe's investigations and its aftermath, during 2018-2020, felt vindicated by WorkSafe's admission.

"It's basically proving what I felt all along," said Dr Mohy Sharifi.

"Yes, they are lacking those resources, and that's why they could not perform a professional investigation."

Her two pre-school sons died when a truck rear-ended their car on a fine day and straight stretch of the Desert Road in 2018.

The force of the 80km/h collision that occurred as traffic ahead slowed, saw a rear-window sunscreen depicting cartoon farm animals become jammed underneath the insulation jacket on the left rear of one of the two tanker-trucks involved.

Police investigated immediately, and secured convictions of two drivers and their employer Dynes Transport, on Land Transport charges; however, the WorkSafe investigation only began nine months later, and no health and safety charges were laid.

"It's just two conflicting, contradicting facts," Sharifi said.

"They're saying they've closed the case. It's all done and dusted. On the other hand, they're saying they're lacking resources, they're lacking professional experts."

WorkSafe has repeatedly said it did a thorough investigation, and has now refused further comment on the case to RNZ.

Yet information newly released under the Official Information Act (OIA) shows WorkSafe made very limited attempts to find out if industry factors, such as supply chain pressures, were in play.

For instance, it did not obtain all the safety reviews that companies did of the crash, interviewed two truck drivers but no other staff at the trucking company, and was not sure how Dynes Transport was monitoring its drivers.

'Toothless tiger'

"We haven't seen thorough investigations by WorkSafe in many instances," said Nick Leggett, whose group represents hundreds of trucking firms.

"WorkSafe is a bit of a toothless tiger in many ways."

The Transport Agency had more resources, and was better placed than WorkSafe, to delve more deeply into the sort of supply chain pressures that undermined safety, Leggett said.

Research has shown such pressures contribute to fatigue, and while some drivers flout the limits on work hours - as happened in the Sharifi crash - others feel powerless to resist demands from company dispatchers (WorkSafe did not interview any dispatchers in the Sharifi case).

Gallagher of Pro-Drive said the Sharifi investigation was "disgraceful", and showed up the shortcomings.

"The bulk of the voice from the industry, is that there are still continuing systemic failures inside of regulatory effectiveness, harm prevention and systems leadership," he said.

'We constantly have to prioritise'

WorkSafe declined to comment to RNZ.

It argued in its briefing to Wood that it was improving, having redeployed $9m into investigations and other critical areas. Yet this was not enough.

Unprecedented pressures from Covid-19 and its biggest-ever investigation, into the Whakaari eruption, had compounded "a mismatch between our functions and our available resources", Parkes and Wilson wrote.

"We can only respond to a small number of very serious issues that we are notified and aware of.

"We constantly have to prioritise, re-prioritise and make tough choices about where and when we can intervene."

Wood said in a statement he would consider whatever advice came out of the upcoming review of the roles of WorkSafe and Waka Kotahi.

He did not respond to a request for comment about WorkSafe's resourcing.

Mohy Sharifi is going back to the minister, to demand action, saying the family got "compassion and understanding" from previous ministers, but little else.

After her approach, the previous workplace safety minister Andrew Little ordered WorkSafe to seek external legal advice in future coronial inquiries.

The coroner had given the agency six extra months to investigate the Desert Road crash, saying it appeared Health and Safety laws had been breached, but it still laid no charges.

"What was the point of this whole investigation when they didn't look further enough and they didn't follow up?" Sharifi asked.

WorkSafe said in the briefing to Wood it appreciated it had to look upstream.

"A strong health and safety at work system and regulatory model requires a focus on changing the way work is planned, set up and undertaken," it said.

"Many of the illnesses, injuries and near misses that WorkSafe are told about appear to result from poor workplace and work practice design, right through the supply chain.

"Increasing our focus on, and ability to influence, the key parameters of how work is set up provides a significant opportunity to get ahead of the harm experienced by workers on the frontline."

Investigation gaps

So how far did the agency look into upstream factors in the 2019 Sharifi investigation?

This was the focus of the latest in a series of OIAs lodged by RNZ since mid-2020 about the Desert Road crash.

WorkSafe knew from the police investigation that fatigue was the major issue, and that at the time of the crash, on-truck technology was not being used to monitor the drivers in real time by the trucking company, Dynes of Tapanui.

WorkSafe's response shows:

• The agency had little idea, very late in its investigation, about how Dynes had been monitoring its drivers. The company had told investigators that it had improved monitoring starting in early 2017; but the investigator responded that it must provide a timeline, as "it is confusing and difficult to pin down what was implemented and when, and what each 'thing' does in terms of driver monitoring (so ensuring they're taking their required breaks, aren't driving excessive hours)". One day earlier, on 10 March, 2019, it had told the family the investigation "is coming to the end". WorkSafe added in the OIA response it had not requested information from Dynes, or its half-owner HW Richardson, about "current use of in-truck technology".
• Dynes was working for wine company Pernod-Ricard at the time; WorkSafe obtained two dozen documents, such as driver logs and fatigue policies, from Dynes and Pernod. Yet it did not ask to see a review that Pernod-Ricard told RNZ it did, into safety measures and of its contract with Dynes after the crash "to ensure the highest standards are in place to keep everyone as safe as possible".
• The agency did not request any documentation from the company that owns 50 percent of Dynes, the major Southland trucking firm HW Richardson. Dynes' lawyer told RNZ that HW Richardson was "simply a shareholder in Dynes. That does not make it a PCBU (person conducting a business or undertaking). Dynes is the only PCBU in the relevant circumstances". A PCBU is a party with health and safety duties. HW Richardson's website describes Dynes as one of its 48 "brands". RNZ's initial inquiries to Dynes were redirected to HW Richardson, which said Dynes would not be commenting.
• WorkSafe did not ask Dynes or any other company to commit to any actions.
• The agency did not hear back from the coroner on the recommendations it made after the inquest.
• WorkSafe has no record of talking with police about who should do what in the Sharifi investigation, even though the two agencies have a deal that requires this happen. Police are the lead agency in any serious crash, and have powers delegated to investigate under Health and Safety laws, in addition to Land Transport laws.
• Dynes did an internal investigation of the crash. WorkSafe obtained this but refused to release it to RNZ on grounds of maintaining legal privilege.
• It also refused to release the health and safety implementation plan that Dynes had in place at the time of the crash, on the grounds this might discourage other companies from providing it such information, even though they are required to. This plan was the only safety plan from any company that WorkSafe looked at after the crash.

Fonterra has contracted Dynes on milk runs for more than a decade but it did not review the Desert Rd crash as it did not involve Fonterra, the company said.

It had made inquiries with Dynes when a tanker rolled on Takaka Hill in 2015 - and the driver claimed to be under delivery pressure - and when a fatal tanker crash occurred in late 2016, "to understand the factors that led to the incidents and if any follow up action was required".

"We note that the contractors we use for the transportation of milk also have their own processes and technologies in place to monitor fatigue and compliance with driving times," Fonterra's general manager of transport and logistics Barry McColl said.

"Fonterra requires all contractors to comply with all health and safety legislation."

WorkSafe put a team of investigators on the Sharifi case, but only after family pressure on WorkSafe's board.

An industry source familiar with WorkSafe said: "Regardless of what [WorkSafe] say about professionalism in the Desert Road case they simply did not have the time to do the donkey work... regardless of how competent they might have been.

"Doing nothing for eight to nine months did immeasurable damage to the HSWA (Health and Safety at Work) perspective."