If parliament (the legislature) passes an act, then the government of the day (the executive) is obligated to fulfil the requirements of the Act. Failure to do so demonstrates disrespect for the rule of law. Failure to effectively regulate the mining sector, in this case, showed such disrespect.

I am posting this response to your blog as part of a Business Ethics Assignment with the Open Polytechnic. This assignment requires us to respond to select a business ethics topic and respond to a blog addressing that topic. While your blog does address wider issues, Health and Safety is the primary topic that I will be responding to.

The ethical question I have extracted from your blog is “What was the ethical responsibility of the government to ensure the Pike River employers met their responsibilities for the Health and Safety of their staff and workplace?”

The Ministry of Business, Innovation and Employment (“MoBIE”) (previously Department of Labour) state their responsibilities as follows:
“Workplace Safety and Health
Working to reduce work-related death and injury rates, and support employers and employees in productive work. Providing information and guidance to workplaces on occupational safety and health issues and managing hazardous substances. Enforcing health and safety legislation; researching workplace health and safety matters, and providing policy advice to government.” (Ministry of Business, Innovation and Employment)

The legislation put in place by the government to define responsibilities for health and safety in the workplace is the Health and Safety in Employment Act 1992. Within this act the key responsibility of Employers is to “take all practicable steps to …. provide and maintain for employees a safe working environment” (Parliamentary Counsel Office).

The information reported on Pike River’s health and safety management practices points to the employer failing to achieve this responsibility. Rod Oram notes in his opinion piece that “Pike never had an internal or external audit of its health and safety practices.” (Oram, 2011). The Royal Commission on the Pike River Coal Mine Tragedy (“Royal Commission”) also noted that “A serious problem was the workers’ practice of bypassing safety devices on mining machinery so work could continue regardless of the presence of methane.”, as well as other reports of “conduct and incidents caused by inexperience, inadequate training and failures to follow procedures” (Royal Commission on the Pike River Coal Mine Tragedy).

If, as stated above, the monitoring body’s responsibility was to ‘enforce health and safety legislation’, then it is clearly a failure on their part that they did not pick up on these significant failings. Furthermore, the lack of specialist inspectors [2 for all of New Zealand at the time of the tragedy] to oversee these works and the ability to obtain a mining permit without any inspection of health and safety requirements (Royal Commission on the Pike River Coal Mine Tragedy) points to significant issues within the monitoring framework.

A key point surrounding governmental responsibility is in the Royal Commission’s Final Report: “The Health and Safety in Employment Act 1992 (HSE Act) placed primary responsibility for health and safety on the employer. This was appropriate, but was unfortunately seen by DOL as somehow reducing its responsibility to actively administer the legislation. DOL’s approach did not accord with the scheme and purpose of the legislation.” (Royal Commission on the Pike River Coal Mine Tragedy)
To what extent does MOBIE have responsibility to “actively administer the legislation”? The statement above shows they clearly do not believe they hold legislative responsibility, so what about their ethical responsibility? I’ll briefly examine this using common ethical theories.
The Utilitarian approach looks at what action on the part of MOBIE would produce the “greatest balance of happiness over unhappiness” (Rachels & Rachels, 2010, p. 99). I perceive “active” administration of Health and Safety legislation as proactive, involved practices which enable MOBIE to obtain working knowledge of practices in all mines sites through the development of good working relationships with mine employers and employees. The action they took, essentially one of a passive observer, clearly did not produce the greatest balance of happiness over unhappiness. 29 men died; the mine is shutdown and many people unemployed; families have been negatively impacted either because of the loss of a loved one and or the depletion of their income stream; the Pike River company is in debt for a large amount of money (Royal Commission on the Pike River Coal Mine Tragedy); the Pike River Directors and Senior Management investigations are likely causing stress for themselves and unhappiness for their families.
The alternative action of active administration, as described above, has a higher likelihood of achieving the greatest balance of happiness over unhappiness. Closer involvement from MOBIE with the mine is likely to have resulted in identifying the serious issues that have come to light such as employee’s cutting corners in favour of production targets, permits issued with no supporting health and safety material, significant hazard cause by the placement of the ventilation fan as well as lack of sufficient emergency exits and unresourced oxygen stations to name a few (Royal Commission on the Pike River Coal Mine Tragedy). The primary unhappiness that is likely to result is a further delay to operations and, therefore, monetary consequence.
A Kantian ethicist determines the duty of MOBIE through application of the categorical imperative and universal law. The categorical imperative decrees that people should be treated “always as an end and never as a mean” (Rachels & Rachels, 2010, p. 137). The Royal Commission’s Final Report states: “DOL’s compliance strategy did not require an assessment of Pike’s safety and operational information. The inspectors did not have a system, training or time to do so. When, at the hearings, they were shown examples of safety information obtained by the commission from Pike’s records, the inspectors were visibly dismayed. This was not a case of individual fault, but of departmental failure to resource, manage and adequately support a diminished mining inspectorate.” That the inspectors did not have resource is no excuse. Their failure to properly inspect the workplace allowed Pike River to continue to place economic gain above that of health and safety. MoBIE is therefore indirectly responsible for using the employees of Pike River as a means to an economic end.
Application of the action as universal law would be: ‘The government is not required to properly monitor health and safety on mine sites’. This statement is self defeating as failure to properly monitor health and safety of any mine site has the potential to result in many more deaths. Monitoring is required in order to ensure employers are meeting their legislative obligations. Work sites that have high potential to cause death require more stringent monitoring.
It is clear that the government had a greater ethical responsibility to ensure the Pike River worksite was a safe working environment. I sincerely hope they lay aside the political and economic drivers and place the safety of future workers at the forefront of their operations.