Review of the Department of Labour's interactions with Pike River Coal Limited
The Department's organisational structure
Overarching structure in November 2010
98. The agency responsible for mine safety in New Zealand is the Department of Labour. This responsibility was transferred from a separate Mining Inspection Group in the then, Ministry of Commerce in July 1988. The Department administers a number of major policy and service delivery areas including:
- Accident Compensation
- Occupational Health and Safety
- Employment Relations
99. The overall structure of the Department can be seen in the organisation charts contained in Appendix 7. The structures depicted were those in place on 19 November 2010.
100. Our focus is on occupational health and safety operations which falls under a Deputy Chief Executive who heads the Labour Group. The major operational responsibility of the Labour Group as at 19 November 2010 was Workplace Services. The organisational chart shows the key areas within the occupational health and safety structure which are especially relevant to this review. This structure draws on other branches of the Department for policy, training, legal services and so on.
101. Workplace Services has a Group Manager Workplace Services whose key role is occupational health and safety. It has a national and a regional structure.
102. At the national level, there are two chief advisors (one of whom is responsible for health and safety) who provide advice directly to the Group Manager Workplace Services There is also a National Support Manager who has a number of responsibilities, including Technical Support Services.
103. Moving down the chart, the Manager of Technical Support Services has a number of technical specialists in various fields including safety engineers, hazardous goods, and most importantly for this report, a Senior Advisor High Hazards (Extractives) and the responsibility for development of Codes of Practice.
104. The Senior Advisor High Hazards (Extractives) position was created and filled for the first time in 2008. Until that time, the Department had three specialist inspectors who covered mines, quarries and tunnels. There was one inspector in the North Island (who did not have responsibility for underground mines) and two in the South Island.
105. When the inspector from the North Island left in 2008, he was not replaced. Instead, the position of the Senior Advisor High Hazards (Extractives) was created. From that time, the Department's specialist mining positions comprised the Senior Advisor High Hazards (Extractives), and two specialist mining inspectors.
106. The first person to fill the position of the Senior Advisor High Hazards (Extractives) was Mr Booyse. His qualifications and experience are set out in Chapter 5 and Appendix 6. He held this position until his resignation in early 2011. (The position has recently been filled.) His role was to improve workplace health and safety in the extractives sector, provide technical support and advice and professional leadership, build effective relationships with key national and international stakeholders, and support relevant business planning and operational policy development. He did not have an operational role (see below).
107. The Departmental structure also provides a range of services including legislative policy and legal services, and training to the operational parts of the Department.
108. The training section prepares and delivers training materials for health and safety inspectors. A set of training materials used by the Department, for initial training and ongoing training, is contained in the document archive created for this Report. So, for example, in the case of a new health and safety inspector - like Mr Poynter, who already had extensive mining experience - his training would focus on the roles and responsibilities of inspectors, the nature of the inspector's role, the powers and duties as an inspector, preparation of reports, record keeping, prosecutions, etc.
109. A special component of that training involves one of the other branches of the Departmental structure, Legal/International. They would provide some of the training in relation to the legal aspects of inspectors' work as well as providing legal advice to its inspectors in executing their operational duties. Legal/International also conducts health and safety prosecutions,
assesses potential prosecution briefs prepared by inspectors and investigators, and where those briefs are approved, prosecutes those cases in Court.
110. There are four regional managers. The two specialist mining inspectors fell under the Southern Regional Manager. She had two service managers, one in Christchurch and one in Dunedin. Each of them had a team leader who directly managed health and safety inspectors. One of the specialist mine inspectors, Mr Poynter, reported to the Christchurch team leader. Mr Poynter's office was in Westport. The other specialist mining inspector was Mr Firmin who reported to his team leader in Dunedin.
111. Mr Poynter reported weekly to his team leader by phone, and by visits to Christchurch where he would report on his weekly activities and issues arising from the work that he was doing. He would also file a monthly Operations Review Process Report which provided considerable detail on projects and initiatives, stakeholder engagements and feedback, health and safety issues and risks and actions agreed to and in progress.
112. In the normal course, Mr Poynter and Mr Firmin had far less contact with the Senior Advisor High Hazards (Extractives) than they did with their team leader. He did not supervise their operational duties. They would contact Mr Booyse primarily when they needed specialist advice on an issue or in relation to the quarterly meetings of the Mining Steering Group (see below).
113. This structure was the same as the reporting structure for the generalist inspectors. One of the difficulties which arose from this structure was that the specialist mining inspectors were reporting to team leaders who did not have expertise in mining. While obviously the team leaders could provide expert supervision on general occupational health and safety issues, they did not have the sort of knowledge and experience which someone who occupied the position of a chief inspector of mines would have. The managers (who have responsibility for performance outputs and assessment amongst other things) were generalists. As one of the inspectors told us: 'There is a gap between generalist staff and us. I have had four managers in the last 11 years - each comes in assuming mining is no different from anything else and I try and educate them.' This lack of understanding of the mines inspectors' roles occasionally made it difficult for them to perform their duties effectively - on one occasion, Mr Firmin was refused permission to travel (a decision subsequently reversed) because of resource limitations, which would have had the consequence of preventing him from engaging in almost all mine inspections required in his workplan.
114. Generally, the health and safety inspectorate is organised on a regional basis. However, the two specialist mine inspectors had national responsibilities for mines, quarries and tunnels. Mr Poynter and Mr Firmin divided their South Island responsibilities based on the Christchurch and Dunedin sub regional structure. However, they were also responsible for mines, quarries and tunnels in the North Island. They shared these responsibilities between
them. So for example, once every six months, Mr Firmin would visit mines and quarries in the North Island, and Mr Poynter would visit those mines in the following six months. They would liaise between themselves about what had happened on a particular visit to one of the mines in the North Island and identify issues which required attention in future.
115. The fact that they had national responsibilities and that they worked in a specialised area gave rise to some administrative and budgetary tensions. Each region administered its own budget but funding inspectors to travel to the North Island came from the Southern region. Even within the South Island, the specialist mine inspectors had to travel extensively, so travel and overnight accommodation costs arose as an issue.
116. The mines inspectors also wanted to maintain their professional qualifications and expertise by attending courses or conferences on areas of mining specialty. Most often this involved travelling to Australia which is costly. In recent times, the inspectors have been funded to attend one conference in Australia per year. One of the inspectors told us that it was sometimes difficult to explain to his supervisor why a particular task required additional time or additional travel and to secure funding to attend conferences in Australia.
The Mining Steering Group
117. In 2006, a Mining Steering Group was established on a semi-formal basis in order to resolve some of these tensions and following two mine fatalities. The Department formally established the Mining Steering Group in 2008. The Group was chaired by the Regional Manager Southern who delegated responsibility to the Canterbury/West Coast Service Manager. Members included service managers from the Southern region, each of the other regional managers, the Senior Advisor High Hazards (Extractives) and the two inspectors.
118. The Mining Steering Group does not have a formal constitution, although there is a document which remains in draft form. It sets out the following objectives:
- To be a forum for national planning and setting of operational priorities across the sector;
- To be a means of monitoring and resolving emergent mining issues;
- To be responsible for improving the consistency of approach by mines inspectors in relation to regulatory checks and visits;
- To enable the coordinated involvement of relevant line managers;
- To assist with the Department's development of industry standards, guidelines and operating procedures.
119. These functions of the Mining Steering Group deal with the administrative issues involved in integrating the specialist mining inspectors' role with the general role of the health and safety inspectorate and to set the work program for mines, quarries and tunnels. It worked within a
broader framework set by the Workplace Services Management Team and the Department's Mining Business Plan.
120. The Mining Steering Group meets quarterly for two days. The first day of the meeting is generally taken up by separate meetings between the operational managers on the one hand and the two inspectors and the Senior Advisor High Hazards (Extractives) on the other. The managers consider operational issues while the Senior Advisor High Hazards (Extractives) and the two inspectors review the technical mining issues.
121. On the second day, the group meets together and discusses ongoing projects and the work plans.
122. We interviewed a number of the members of the Mining Steering Group. All of them thought that the quarterly meetings provided a valuable forum where the mining specialists could meet directly with the managers and work through the issues confronting them. Both of the inspectors said that they welcomed the opportunity to explain to the non-specialists the particular difficulties that they were encountering in the course of their work and explaining why they might need additional time or resources to deal with particular problems.
123. There was also a need to coordinate the work of Mr Poynter and Mr Firmin. For example, because there were only two specialist inspectors, there was a need to adjust their work programs to deal with annual leave, conference leave, etc.
124. While Mr Poynter and Mr Firmin felt that they were well supported by their team leaders, they would have preferred to report directly to the Senior Advisor High Hazards (Extractives) in relation to their operational duties. This reporting arrangement was consistent with the Department's line management structure but in tension with the professional leadership role of the Senior Advisor High Hazards (Extractives). In particular when difficult issues arose, although they could seek advice from the Senior Advisor High Hazards (Extractives), they would clearly have preferred him to be their operational leader as well. Similarly, Mr Booyse would clearly have preferred to have had operational control of the inspectors and indicated that he had ample capacity to perform that function.
125. The Mining Steering Group set the annual work plans for the inspectors which were reviewed at the quarterly meetings. These work plans are incorporated into a Staff Performance Agreement, a pro forma document. A copy of the 2010/11 Staff Performance Agreement for each of the mine inspectors is in Appendix 8.
126. The Staff Performance Agreements are divided into two sections:
- Section 1, "Understanding the Role", identifies the essential capabilities for the employee's role and the employee's strengths and development needs in that role.
- Section 2, "Setting Expectations" sets the major goals that the employee has to achieve, and how that will be done. It identifies eight areas which will be assessed. Some of these are quantifiable targets (e.g. the number of visits) and some are more subjective (e.g. judgement and decision making). The range of tasks reflects the functions of inspectors set out in s30 of the HSE Act.
127. The first area is Investigations. Mr Firmin's Staff Performance Agreement, for example, nominates 35 investigations and requires them to be carried out in accordance with the Investigation Best Practice Manual. This was to be achieved via a number of mechanisms. Investigations must be peer reviewed and signed off by the team leader. The Staff performance Agreement specifies that investigations will be monitored and coached and there will be regular reviews. Mr Firmin is required to clearly identify the strategic/priority value of his investigation. This is to be reflected in the Operations Review Process monthly reports. In the course of inspections, inspectors were required to identify opportunities for education and influencing the wider work practices and to address specific harm.
128. The next area is Workplace Assessments. The expectation set Mr Poynter 70 workplace assessments ensuring that 90% of all visits related to the workplace services work program.
129. Under the area, Information Provision, Mr Poynter was also required to complete 20 information workplace visits and to conduct two forums.
130. Under Proactive Projects/Initiatives, he was also required to undertake project work that 'addresses identified harms and improves client behaviour and performance or contributes to local, regional and/or national harm reduction project planning, implementation and review.'
131. In relation to Enforcement Activity Health and Safety Findings, he was expected to carry out 'enforcement activities and action in accordance with national policies and procedures and reflect the development of modern regulatory practices.' In making decisions about enforcement, he was required to ensure that 'enforcement decisions are credible with the rationale and choice of enforcement tools being clearly articulated and a range of tools are used as appropriate.'
132. Finally, under the heading Modern Regulation, he was required to 'build an understanding of modern regulation and explore ways to reflect modern regulation into daily activities and engagements.' The work plan spelt out that the method for achieving that understanding would be 'attendance at training and learning opportunities in relation to modern regulation, and to reflect that understanding through Operations Review Process reporting and coaching. Ways of demonstrating that achievement included 'contributing to minister's reports, sharing of projects, writing up case studies, presenting work to peers in office or clusters etc.'
133. The Staff Performance Agreement includes an assessment tool for recording the mid year and full year assessments.
134. In terms of the types of visits required, the proactive visits would involve a visit to a mine or a quarry where some particular issue of current concern would be discussed with the employer. Typically the proactive visits would also involve a visit underground.
135. There was an assumption in the Service Performance Agreements that there would also be a number of ongoing investigations and that these could involve additional reactive visits. This might involve a workplace injury or near miss. Alternatively, it might involve some identified safety issue which required improvement.
136. We note that neither of the inspectors' work plans includes a requirement for a certain number of general systems audits, or evaluation of internal systems audits done by the mine itself.
137. This Staff Performance Agreement is for the year 2010 - 2011. We did not see the mid-year assessment and the full year assessment is not yet done. Mr Poynter advised at an interview that his performance reviews had been positive and that he had not been the subject of negative evaluations in relation either to the level of his work output or the quality and nature of the work that he did.
138. Each inspector would report to his team leader on a weekly basis. He would provide an Operations Review Process on a monthly basis. Then, as noted above, there would be a six monthly review where each of the items in the work plan would be reviewed between the team leader and the inspector. The team leader would identify areas which require improvement or further training. For example, in Mr Firmin's Staff Performance Agreement for 2010/11, the team leader identifies the need to improve the quality of his report writing.
139. The real issue with the Staff Performance Agreements and the supervision and support of the specialist mining inspectors is that their direct supervisors do not have mining expertise. That is particularly the case in relation to some of the subjective evaluations called for in the Staff Performance Agreement, although the Senior Advisor High Hazards (Extractives) could have been consulted on these matters. We deal with this issue in Chapter 7.
Some of Mr Poynter's documentation is inaccessible because of the Christchurch earthquake.