IN ALL the chatter about health and safety, and about rules reduction, there seems to be a recurring theme and that is that there needs to be rules and laws to combat New Zealand's tragic record around workplace safety.
We seem to be better at hurting ourselves and others in the workplace than any other Western country. Pretending that good health and safety practice is not manly enough for real blokes is ridiculous. The biggest concern is the enforcement and the subsequent actions of agencies responsible for these issues.
What we see in a strict enforcement regime without any education is that most effort goes into not getting caught rather than changing practice. Managing the speed limit on our roads is an obvious indicator - motorists still speed, but knowing more about when they are likely to be caught by camera or patrol officer becomes part of the institutional knowledge of the Kiwi driver.
Helmet manufacturers sell heaps of helmets as employers mitigate their responsibility, but it doesn't always mean people are wearing helmets more of the time.
And education isn't just attending the same course to hear the same advice at regular intervals through a career. Achieving good results is about making the future practices safer and not looking backwards and relitigating what went wrong in order to get tough on past offenders.
Changing future practice is about targeting the right audience and addressing the issues in ways that will keep them switched on, not teaching people how to suck eggs.
But the biggest issue is the fear of prosecution and the perception that any error which would have been previously put down as an "accident" will meet the full force of the law and attract the maximum penalty for the slightest infringement. And the fear that there will be zero common sense applied to the scenario in order to mitigate blame in a sort of "straight-to-jail-without-passing-go" mentality.
There needs to be a recognition that 85 per cent of us work in small to medium-sized businesses. That means the boss is also the workmate.
If four guys have been working in a panel-beating shop for 10 years, they are friends not merely staff. If one is hurt in an incident, they all grieve - and a prosecution means that the only way somebody can mitigate their culpability is to blame the other.
Prosecution in these matters are really focused on deterrence from and denunciation of the offence. These are probably the least likely to succeed in changing behaviour. Yet prosecution in the criminal jurisdiction is where so many of our tragic events end up. The level of criminality becomes quite academic, while real criminal offending is patently obvious.
The place for a restorative approach is clear.
Often the parties have been involved in consoling each other, yet a vigorous investigation and construction of a defence drives them apart and whole relationships fall to bits.
Those people who exhibit criminal negligence leading to injury and death can be dealt with through the Crimes Act. But it could well be that giving an option of a restorative conference that doesn't diminish the accountability, responsibility, financial penalties, eligibility for legal representation and all that goes with fairness and equity is a good start.
In other jurisdictions, this approach holds a court case as a last resort, used only to replace an incomplete restorative process or disengaged parties. Statements made in the conference are on the record so admissions there cannot be denied later on in court to escape liability.
The hunter who accidentally shoots his mate; the farmer whose share-milker rolls a quad bike; the contractor whose driver slips off the side of a hill ... should a courthouse be the first stop for them? Or are we better to have a facilitated on-the-record discussion between represented parties aimed at a rules compliant safer future?