The journey to achieve a safer and healthier workplace
Independent Member of the Corrections Health, Safety and Wellbeing Risk Governance Group
Mike Cosman is an Independent Member of the Corrections Health, Safety and Wellbeing Risk Governance Group. He has worked in health and safety as a regulator, policy maker, manager and consultant for the past 39 years.
This article looks at the history of occupational health and safety legislation and practice, principally in the UK and New Zealand, and considers how a modern day Corrections environment, with all its inherent risks, can still function safely and legally for the benefit of staff, offenders and the wider public.
Recognition of the need to keep work and workers healthy and safe is not new. Indeed, the earliest known reference comes from the Bible and even acknowledges the importance of safety in design. “When you build a new house, make a parapet around your roof so that you may not bring the guilt of bloodshed on your house if someone falls from the roof.” (Deuteronomy 22:8)
The earliest powered corn mills were dangerous places. A fatal accident to a child in 1540 was reported (HM Chief Inspector of Factories, 1936):
“a yonge childe… standing neere to the whele of a horse myll… was by some mishap come within the swepe or compasse of the cogge whele and therewith was torne in peces and killed. And, upon inquisition taken, it was founde that the whele was the cause of the childe’s death, whereupon the myll was forthwith defaced and pulled downe.”
Industrial health and safety legislation originated in the early 19th century in the UK, where the Industrial Revolution started, when the exploitation of workers –particularly young children – became so obvious that there was a moral crusade, led by Sir Robert Peel, to put in place minimum standards, and a mechanism to enforce them. The first legislation was An Act for the Preservation of the Health and Morals of Apprentices in 1802.
Early entrepreneurs, a number of whom were Quakers, such as Titus Salt, Cadbury and Lever Brothers, took a more holistic view of their workers, recognising that poor housing, sanitation, lack of education and inadequate time for rest were both unhealthy and bad for business. (Eves D, 2014)
Figure 1: The risks of work
In 1840, New Zealand was one of the first countries in the world to have legislation around working hours with the passing of the 8-hour working day legislation, following a campaign by carpenter Samuel Marsden. We continue to celebrate his achievement on Labour Day – even if that luxury is one many of us no longer enjoy.
Industrial health and safety legislation continued to grow in first world countries, largely around particular topics or industries and most often in response to a scandal or campaign. Occupational health was an important area as industrial diseases were rife – but often associated with a single occupation – watch dial painters (radium poisoning), miners (“black lung” or pneumoconiosis), cotton workers (“brown lung” or byssinosis), asbestos workers (mesothelioma) and quarrymen (silicosis). Lead poisoning was a particular risk for women workers due to its effects on the unborn child. Not surprisingly the life expectancy of workers in industrial cities was relatively short.
The 20th century was the era of major industrial disasters Aberfan (coal tip collapsed on a school), Flixborough and Bhopal (chemical plant explosions), The Herald of Free Enterprise (roll on, roll off ferry capsized), King’s Cross (railway station fire), Windscale, Three Mile Island and Chernobyl (nuclear explosions), more recently, Piper Alpha and the Gulf of Mexico (oil rig explosions) and, locally, the Brunner and Strongman coal mine explosions.
Figure 2: Explosion at the Pike River Mine
Regulatory responses to these disasters typically sought to regulate for the precise mechanism that had caused the harm, which in many cases was a rare combination of circumstances unlikely to be widely replicated. The political response demonstrated concern and appeared to result in action although it was more often addressing symptoms rather than underlying (or root) causes.
It was only in the 1970s that it was recognised that workplaces are dynamic systems with multiple influences and moving parts, and that addressing just one element of the system was unlikely to be effective. The influential report from a committee led by Lord Robens in the UK (Robens et al, 1972) challenged thinking globally and led to the first piece of systems, risk and performance based health and safety legislation in 1974. Even then the toll of death and disaster continued for many years as legislative reform globally embraced a wider range of industries and major industrial hazards.
The change in thinking was radical. Health and safety no longer belonged to the regulator who set detailed prescriptive standards that were invariably out of date and acted as a dead hand on innovation and improvement. Instead, employers had to take responsibility for their own risks and work out the best way of managing them in their particular context, following a set of simple principles and process steps.
Those who had earlier complained about the inflexibility of the old approach demanded clear instruction from the regulator about what to do so they could “tick the box” to compliance. A “first principles” approach to risk may be liberating, but it also requires more advanced knowledge and skills on the part of employers to work out, and if required, to defend their choice of risk controls.
Worker participation in health and safety
Worker involvement in health and safety was another important new concept. The idea that managers don't have all the answers and that workers might have insights and experience that could contribute to a safe workplace was seen as threatening by many and as an excuse for more union power. However, despite considerable opposition at the time, the notion of a tripartite approach to health and safety (workers, employers and government) is still recognised globally (International Labour Organisation, 1981) and nationally as the right one and has been reinforced in the Health and Safety at Work Act 2015 (HSWA).
Figure 3: Tripartite approach to health and safety
Many public sector activities were exempted from detailed regulatory scrutiny to a greater or lesser extent by virtue of Crown immunity. This either exempted certain types of organisations from the application of the legislation as a whole or meant that they could not be prosecuted or fined in a criminal court . In 2016, most Crown immunity was removed under the HSWA, although there are provisions and reserve powers to exempt certain Defence operational activities and anything prejudicial to the security and defence of New Zealand.
Pike River, the Independent Taskforce and the HSWA
As noted above, many changes in health and safety legislation have happened in response to disasters that raise public, political and media awareness of an issue that may have otherwise gone unnoticed outside the local or specialist communities. So it was with Pike River. The disastrous explosion that killed 29 men on the West Coast in 2010 was the first such tragedy in New Zealand in the era of social media and satellite communications. As a result, its impact was felt very widely within hours of it happening and it continued to unfold under the relentless eye of the media. It continues to do so up to this day, most recently with the Supreme Court finding that there were significant flaws in the decision to drop charges against the mine manager in exchange for insurance payments to the victims’ families.
The government response was to establish a Royal Commission to look into the local circumstances of the disaster, quickly followed by a wider review of health and safety in New Zealand by the Independent Taskforce on Workplace Health and Safety, of which the author was a member. The Taskforce findings (Jager et al, 2013) showed conclusively that the fundamental risk based approach to health and safety was sound, but that New Zealand had failed to put in place sufficient supporting infrastructure and mechanisms to enable it to work effectively. Its report emphasised the need for more effective accountability, motivating and knowledge levers and made a series of recommendations to government. The government response was swift and positive . All the recommendations were accepted and work began to reform the regulator (leading to the establishment of WorkSafe NZ as a dedicated Crown Entity) and the regulatory framework, to emphasise the missing elements.
The new legislation was largely based on model law developed in Australia in the early 2000s. It reflected the complexity of modern work and working practices with a much higher degree of flexibility about when, where and how work is performed, multiple levels of contracting out and increasing collaboration around particular projects.
The Person Conducting a Business or Undertaking (PCBU) is the primary duty holder and is accountable for the impact of its work on any worker (regardless of how they are engaged, including volunteers) and on others over whom it has influence and control.
The new accountability levers that influence the PCBU, and that have been strengthened under the HSWA, are governance, the regulator, workers and their representatives and others in the supply chain. Together these influences are designed to hold the PCBU accountable, internally and externally, for meeting its duties.
Health and safety in Corrections
Corrections is fully subject to the Act and has the same duties and responsibilities to its staff, contractors, volunteers and others – including offenders who are “other persons” whose health and safety should not be put as risk from work carried out as part of the business or undertaking . The only specific exemption is that the Act clarified  that prisoners carrying out work in prisons have no rights to worker engagement, participation and representation.
The majority of the critical risks with the potential to cause death or irreversible harm to Corrections workers and others (including offenders) arises in the operation of the core prison and community corrections systems. Those in the criminal justice system are tasked with dealing with people who are considered to be a threat to society by virtue of their actions and behaviours. Whilst a manufacturer can decide to no longer use a toxic chemical, Corrections cannot refuse to look after a convicted murderer or sex offender.
This makes clear interpretation of the statutory qualifying phrase “as is reasonably practicable” vitally important.
It is defined as “that which is, or was, at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters, including:
(a) the likelihood of the hazard or the risk concerned occurring; and
(b) the degree of harm that might result from the hazard or risk; and
(c) what the person concerned knows, or ought reasonably to know, about—
(i) the hazard or risk; and
(ii) ways of eliminating or minimising the risk; and
(d) the availability and suitability of ways to eliminate or minimise the risk; and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
Importantly, doing all that is reasonably practicable in a particular situation does not mean the risk has been eliminated or that harm can never occur. It is also context specific – so that which may be reasonably practicable in one circumstance is not automatically the same elsewhere.
In the author’s experience, health and safety issues within Corrections were, historically, largely seen as operational, with “OSH” really only applying to office based risks, ACC accreditation, rehabilitation and return to work. The Department’s Creating Lasting Change strategy was introduced in 2011, and included a commitment to increasing staff safety and continuously improving the way staff work safely with offenders. The introduction of the strategy, along with serious incidents such as the death of Jason Palmer at Spring Hill Corrections Facility in 2010 and the serious assault of another staff member in 2012, represents a turning point for Corrections. This led the Department to establish an Expert Panel on Staff Safety to look in depth at issues of violence, particularly within prisons. The panel comprised the former Commissioner of Police, senior public and private sector prison executives from Australasia and the author (as an independent health and safety expert). It looked at the causes of violence and how the regime in prisons could inadvertently contribute to this. It considered representations from injured corrections officers, and unions, as well as reviewing international literature to inform its findings.
A comprehensive three-year programme of work was developed as a result that included a wide range of measures focusing on staff capacity and capability, infrastructure, intelligence, offender management and oversight .
Most importantly, Corrections adopted a system-wide approach that considered and addressed the causes of violence, and emphasised responses to violent incidents that mitigated the impact on staff and offenders. This shift in focus from accepting that violence is endemic in Corrections to one where the environment and regime itself can either precipitate or reduce the propensity for violence was profound and strongly aligned with Corrections’ overall objective of reducing re-offending, rather than simply incarceration.
This change in thinking has also influenced the broader culture in prisons, including the recruitment and training of corrections officers with more of an emphasis on communication skills and interacting with offenders in a way that builds trust and respect and hence anticipates and defuses potential flashpoints.
Good governance practice
A key criticism of the Pike River Coal Company by the Royal Commission was the lack of leadership from the Board. They stated that,
“The board did not verify that effective systems were in place and that risk management was effective. Nor did it properly hold management to account, but instead assumed that managers would draw the board’s attention to any major operational problems. The board did not provide effective health and safety leadership and protect the workforce from harm.” (Royal Commission 2012)
Even before the Taskforce reported, the Chief Executive of Corrections identified the challenge associated with public sector departments not having a formal governance structure that could perform the kind of functions the Royal Commission had signalled. In particular, the single point accountability of the CEO to the State Services Commissioner and the Minister did not provide for the kind of detailed scrutiny and oversight that boards typically provide.
The establishment of the Corrections Health, Safety and Wellbeing Risk Governance Group (HSWRGG) in 2013 was an innovative move by a public sector department to create a health and safety governance structure comprising the CEO, the Executive Leadership Team and independent members. It anticipated the legal changes in the HSWA and explicitly recognised the need for a strategic approach to the wide range of health and safety issues within Corrections.
Four years later, Corrections was recognised as inaugural winner of the Safeguard Best Board Level Engagement in Health and Safety award. As the Deputy Chief Executive, Corporate Services noted “For us this was an acknowledgement from our peers that we were in fact achieving excellence in our leadership of health and safety. The award has provided us with the motivation to continue to innovate and strive to create an even safer and healthier workplace.”
Since receiving the award, Chief Executive Ray Smith has been asked by the State Services Commissioner to take a functional lead role for the public service in health and safety. The governance model developed by Corrections is now being widely adopted by other departments.
A key first step for the HSWRGG was to establish the risk profile. Where across the various functions in Corrections could people get seriously harmed or killed? Inevitably, the historic focus had been on operational safety issues, in particular violence. However, more detailed scrutiny revealed a diverse landscape including fleet safety, quad bikes, infection risks, prison industries, facilities maintenance, major capital projects and mental health.
Each of these risks required detailed assessment to determine the context, who was at risk, how harm might occur, the current controls to reduce the likelihood and consequence of harm and the effectiveness of those controls. Although offender risk assessment is an integral part of Corrections operations, the same tools and skills were not necessarily being applied to identifying, assessing and managing health and safety risks.
Success in health and safety is often hard to measure other than by counting how many people get hurt. However, in one case in 2017, a decision made by the HSWRGG could be directly linked to harm being prevented. Corrections has a very large fleet of around 1,700 on and off-road vehicles and plant, including tractors, cars, prisoner escort vehicles and vans. A review of the vehicle related risk identified that some vans were up to 20 years old and had poor survivability devices (seat belts, air bags, crumple zones, etc.). Significant capital investment was agreed and a programme of upgrading commenced. Not long afterwards, a van containing a Corrections driver and eight offenders was involved in a head-on crash with a private car, the occupant of which tragically died. None of the occupants of the 3-month old van suffered major injury, something that would have been almost inevitable if the vehicle had not been recently replaced.
A major set-back occurred in 2014 when there was another death, this time of an offender serving a community work sentence. The offender was working at a local church when a log rolled onto him. WorkSafe NZ investigated and the court ultimately found that Corrections had failed to take all practicable steps to protect the offender from harm through the planning and monitoring of the agency placement. Even though the agency was in charge of the offender at the time, the court felt that Corrections had not done enough to assess the capability of the agency to manage health and safety and to verify their systems and processes.
The subsequent investigations caused Corrections to look very broadly at its sphere of influence, a new concept linked to the primary duty under HSWA to “ensure the health and safety of workers whose activities in carrying out work are influenced or directed by the PCBU”. This duty is qualified in relation to multiple overlapping PCBUs by requiring each person to discharge their duty to the extent to which they have the ability to influence and control the matter.
In many instances Corrections works with, or contracts, a range of service providers to perform functions on its behalf either within its own premises or in the community. This can include facilities management (Spotless), monitoring services (First Security), privately operated prisons (SERCO), offender management programmes (NGOs, iwi and other providers), Police, court staff, other parts of the criminal justice system and a diverse range of other services.
Given this shared responsibility for managing the risk, ensuring the process for the engagement and monitoring of service providers is fit for purpose, and can be evidenced as such, is crucial. In many cases, contracts did not clearly reflect the respective roles and responsibilities of the parties or make provision for regular health and safety reporting or review. Work on understanding and managing overlapping duties is still underway and is probably one of the most complex challenges ahead given the scale and complexity of the issue.
Is Corrections there yet?
Workplace health and safety is not something that can ever be ticked off as done. The risks to Corrections’ people are constantly changing and understanding of what “good looks like” continues to evolve. Challenges from stakeholders including unions, the Ombudsman, Human Rights Commissioner, WorkSafe NZ and others regularly lead to reviews, whilst prison and community-based practice leaders are constantly looking for ways to enhance their service delivery.
For example, rapid growth in the prison muster put significant pressure on infrastructure and led to an increase in double bunking. For probably the first time such an important operational decision was subjected to independent health and safety scrutiny to ensure there were no unintended consequences that might impact on prisoner or staff health and safety. A similar review in response to a complaint looked at prisoner restraints (seat belts) in single-cell escort vehicles.
On-going evaluations are reviewing the effectiveness of recent measures such as on-body cameras and enhanced stab resistant body armour in reducing the incidence and severity of injury. Meanwhile, ground-breaking work has been done to develop fatigue management tools to support better rostering decisions.
A lot of this development has taken place in the prison environment, which, by its nature, is tightly controlled. By contrast, work in the community often takes place in private homes away from the safety infrastructure of colleagues and cameras. Often the main tool in the probation officer’s safety toolkit is their ability to dynamically assess the situation in front of them informed by intelligence they have gained from previous contact and sharing with other agencies (RiskTec, 2014).
Advances in technology can help (stay safe apps or remote monitoring) but fundamentally good health and safety is about a state of mind – sometimes described as “chronic unease” (Hopkins, 2009). Put simply, chronic unease is the opposite of complacency. It is a healthy scepticism about what is seen and done. It is about enquiry and probing deeper, really understanding the risks and exposures and not just assuming that because systems are in place everything will be fine. It is not just believing in what the statistics appear to say. It is about resetting an organisation’s tolerance to risk and responding accordingly and continually questioning whether what is being done is enough.
The thought process of a leader therefore changes from "We haven't had an incident, we are doing so well," to "Is there anything we're overlooking and what else do we need to do?" (Business Leaders Health and Safety Forum, 2018).
The potential for very serious harm to occur within the Corrections environment, whether from a quad bike overturn, fire, riot, disease outbreak, operating machinery or a fall from height, is ever-present.
The Business Leaders Health and Safety Forum, a group of over 350 chief executives, states that, “Health and safety is not something that is done to us, it’s about applying individual and collective knowledge and skill to analyse problems and develop solutions that integrate safe working into ‘how we do things around here’”.
Is Corrections there yet? No. Is it well on the way with its journey and does it have a clear sense of where it is heading? The evidence suggests it is and it does. Only time will tell.
(1) Health and Safety in Employment Act 1992 S.3, Crown Organisations (Criminal Liability) Act 2002
(2) Working Safer
(3) HSWA S.36
(4) HSWA S.15
(5) HSWA S.22
(6) See Annual Report 2015/2015
(7) A PCBU is the Person Conducting a Business or Undertaking. Ref; HSWA S36(1)(b) 
(8) Ref HSWA s33(3)(b)
(9) Zero Harm
Business Leaders Health and Safety Forum (2018) Wellington, http://www.zeroharm.org.nz
Eves, D. ‘Two steps forward, one step back’. A brief history of the origins, development and implementation of health and safety law in the United Kingdom, 1802–2014 Retrieved from http://www.historyofosh.org.uk/brief/index.html 23 February 2018
HM Chief Inspector of Factories (1936) Annual Report (UK)
Hopkins, A. (2009) Learning from High Reliability Organisations, CCH Australia
International Labour Organisation, (1981) ILO Convention 155 Article 15, Geneva
Jager, R. et al, (2013) Report of the Independent Taskforce on Workplace Health and Safety, Wellington
Robens, et al, (1972) Safety and Health at Work, Report of the Committee of Enquiry. HMSO, London
Royal Commission on the Pike River Coal Mine Tragedy (2012), Wellington,