What this means is that companies are required to "risk-manage" the hazards of work by identifying hazards, assessing risks and controlling them. They are also required to develop and implement a health and safety management system. Both of these requirements are in sharp contrast to the traditional approach, which involves the Government simply prescribing what they should do.
This approach has a number of advantages. It provides flexibility to enterprises to devise their own least-cost solutions; it encourages them to go "beyond compliance" with minimum legal standards; and it enables them to prioritise their safety initiatives on the basis of risk significance, operating experience and/or engineering judgment.
But much can also go wrong with risk management, and with regulation that insists upon this approach. On the basis of more than 60 interviews with members of mine management, regulators and union officials in the two Australian coal mining jurisdictions, a disturbing picture emerges.
According to some, risk assessment is like torturing a spy - if you do it for long enough, you get the answer you want. Others report that people without the technical competencies and knowledge are made responsible for managing safety systems, with the result that there is a large gap between the development of these systems and their implementation.
The bottom line is that risk management is only as good as the people doing it. If you don't have the right input from the right people, it's useless.
In New South Wales, mines inspectors indicated that "some mines are woeful. God help us if we don't overview them" and that the industry "skirts mining disasters on a regular basis". Similarly, the Queensland inspectorate warned in its 2012 annual report of "a litany of near disasters" and expressed concern at an influx of inexperienced, poorly trained workers and the appointment of supervisors lacking understanding of hazard identification or legislative mandates. Such inexperience and lack of understanding can be particularly deadly when people "don't know what they don't know".
Stakeholder resistance was also found to be a problem with risk-based regulation, with some mines inspectors and middle management in mining companies preferring prescription because it provides greater certainty, avoids taking initiative and is easier to enforce. For various reasons, this approach is also endorsed by the trade union.
The Pike River explosion was New Zealand's worst loss of life caused by a single disaster since Erebus and before Canterbury's 2011 earthquake. Photo / NZ Herald
The result is a mismatch between mining safety legislation and high level safety practice within the coal mining companies on the one hand, and "ground level" implementation on the other. This "implementation failure" stifles continuous improvement, inhibits innovation and constrains any further step change in safety.
In short, even the best risk-based legislation may not deliver its intended outcomes if it is not effectively implemented or is successfully resisted by stakeholders. This is no small matter. It should not be forgotten that at Pike River it was poor quality risk management that led to disaster.
These failings raise the broader question: if the industry is so inadequate in its embrace of a risk-based approach to management and regulation, would it be wiser to revert to prescriptive standards? This, however, is not a serious option.
The limitations of prescription are deep-seated, well documented and incapable of being overcome. In essence, the more prescription there is, the less effective it becomes as organisations become overwhelmed by the large numbers of highly detailed rules with which they must comply.
So what is needed to complete the journey to effective risk-based regulation? Certainly industry leadership is part of the story. So, too, is developing a safety culture within the industry itself. As one mine manager put it: "It needs to become a way of life. You need to breathe a safety culture into everyone."
Also important is education, training and awareness at mine site level. And above else, building trust between stakeholders who have long been adversaries.
These disturbing findings raise important questions for New Zealand, not just for mine safety but for occupational health and safety generally. Are the reforms recommended and in large part already implemented following the Royal Commission sufficient? What more could be done? And is another disaster still possible?
Unfortunately, the answer is yes.
* Professor Neil Gunningham of the national research centre for OHS regulation at the Australian National University is visiting the University of Auckland Business School.
