By Jason Krupp*
Imagine for a second that you are a small business owner, and one day while trawling through your emails, a bolt of lightning sizzles through the office window and strikes your assistant, killing him instantly.
Then to compound the situation, the telephone rings, and it is the police. They inform you that another employee is dead after her car struck a lamp post while on the way to work.
The two tragic events, which have a likelihood of 0.0004% and 0.01% chance, respectively, of occurring in a year, can only be regarded as the worst of all possible luck, right?
They are a result of your negligent behaviour as an employer, and you are liable for both deaths. So you better lawyer up quickly, start preparing shareholders for a hefty fine, and you might potentially have to tell the family that you’re going away for a few years.
At least that is what can be extrapolated from the recent announcement that Worksafe NZ, the workplace health and safety watchdog, has laid charges against the Ministry of Social Development (MSD) for a shooting at an Ashburton Work and Income office last year.
Worksafe was established in the wake of the Pike River Mine disaster as means of improving health and safety practices in New Zealand. The shift has also introduced radical new measures such as holding management and directors directly accountable for any breaches of the health and safety law within their organisations.
Two people were murdered and one seriously wounded in the Ashburton incident when a balaclava clad man wordlessly walked into the office with a shotgun and started firing. John Tully, a homeless 48 year old man, was later arrested and charged with the crimes. He was previously evicted from the office, and appears to have had a long running dispute with Housing New Zealand over his inability to secure state sponsored accommodation.
The deaths are undoubtedly tragic, but are they the fault of MSD? The family of one of the victims doesn’t think so, and has gone on record to say that “nobody could foresee what was going to happen that day”. However, Worksafe believes that MSD failed to take all practical steps to ensure the safety of their employees while at work.
But what exactly is “all practical steps” in the case of a person who walks into an office and shoots someone?
Since there was already a security guard on site, and an entry barrier can be circumvented by concealing the weapon under a coat, you can only assume that Worksafe are talking about a bulletproof screen of some kind. Perhaps even metal detectors.
Should the regulator successfully prosecute MSD it would imply that every Work and Income office in the country would have to instal these measures, at the cost of millions to the taxpayer.
But while costs would be astronomical, the upside is that it might reduce your chances of being murdered in New Zealand, which stood at 0.001% in 2012. Well, in a WINZ office at least.
Extrapolating the logic further, other government departments and private businesses that have a history of disgruntled employees and customers will have to take similar steps to ensure “all practical steps” have been taken to eliminate workplace risk, no matter how unlikely.
Banks will look like prison visiting rooms, bus drivers will have to be armed, and the iconic fish and chips experience will be akin to a visit from the bomb squad.
If this scenario sounds like an absurdity, it is because it is. It is a sign that the “elf and safety” madness that has gripped places like the United Kingdom is about to start squeezing here. Soon we’ll be banning candyfloss on sticks for fear of impaling people, forcing children to wear goggles for marble games, and banishing kettles from hotel rooms so guests don’t burn themselves when making a cup of tea. These are all actual examples from the UK.
Just switching to Worksafe’s new health and safety regime is likely to impose a significant cost on the economy. There is no exact figure available as yet, but in New South Wales it was estimated that a similar regulatory change would cost A$3.4 billion over five years. The bulk of this would fall on small firms that employ less than 20 people because they will have to hire external consultants to advise them on how to be compliant.
New Zealand could face comparable regulatory costs from the change, and this is before the unintended costs of decisions like the one outlined above are taken into account.
If decisions like this are allowed to fly unchallenged by clear thinking, we might as well shut up shop and mothball the economy right now in the face of a regulator that has zero tolerance for risk in the workplace, no matter how unlikely.
That health and safety practices in New Zealand could be improved is certainly open to rational discussion and analysis, particularly where fatalities are concerned. But the costs imposed by the regulator’s actions also need to be considered, and a balance struck.
I suspect we are going to see a strong pushback from MSD on this issue. And while my better nature would like to think it will be motivated by the absurdity of the situation, my more pragmatic side suspects it will be because Minister for Social Development Anne Tolley is personally liable for health and safety breaches under the new Worksafe rules.
Were I not an atheist, I might thank god that Worksafe has used this terrible case to pick a fight with the government.
*Jason Krupp is a research fellow at the New Zealand Initiative. This is this week's NZ Initiative weekly column for interest.co.nz.