WorkSafe HQ in Wellington Central. Photo: RNZ / Angus Dreaver
WorkSafe has a confused approach to prosecutions that risks its legal team getting cases "late and undercooked", a review ordered by Crown Law says.
Respondents called its investigation resources at times "woeful" and the shortages "chronic".
There was no long list of recommendations. Instead, the investigation - commissioned by Crown Law from barrister James Carruthers - said WorkSafe should "think seriously about how it might improve its prosecution function".
The Crown safety watchdog has been under pressure for years over the country's persistently high workplace death and injury rates.
Most of its prosecutions succeed, but critics say it does too few and aims too low, rarely going after company directors.
The agency had been labouring to improve prosecutions even before another independent report four years ago found a host of shortcomings.
"Overall, my impression is that [the investigation unit] has a tough brief," Carruthers wrote in the new report.
"After identifying matters that need to be investigated, it has a short window in which to conduct what are at times complex investigations.
"It has to do that with fewer - and fewer seasoned - investigators than it has previously had, with defence counsel fighting increasingly harder for their clients' interests, and with only ad-hoc input from the legal team.
"No doubt this is why one investigator said [it] does very well with what it has."
WorkSafe has been trying to build up its inspectorate this year, while making deep back office cuts of about 120 jobs in other areas.
"The feedback was that [it] has lost a lot of investigators in recent years, both seasoned investigators who had a genuine feel for health and safety investigations and relatively new recruits," the new 46-page report said.
"One solicitor went so far as to say the team had effectively been 'decimated'."
WorkSafe's restructure has dragged on for years, sparking a series of personal grievance proceedings, and remained incomplete when the interim chief executive stepped aside recently.
It has previously defended its prosecutions as adhering to the guidelines of having to have a fair chance of succeeding and being in the public interest.
"As one defence counsel remarked, WorkSafe's conviction rate - with most convictions following guilty pleas - speaks for itself," the new Crown Law report said.
But, it noted, "there seems to be a level of confusion and uncertainty as to what WorkSafe's remit, priorities, and goals are when it comes to enforcement, which leads to an excess of matters making their way" to investigators.
Some defence lawyers said, "WorkSafe's charging decisions are inconsistent and sometimes inexplicable."
It was now taking measures to get back to its core health and safety role, Carruthers said.
A recent report by a business forum echoed that.
"Lawyers we interviewed who act for employers confessed puzzlement at serious harm events that WorkSafe NZ has chosen to allow the employer to remedy internally, despite obvious failings and regulatory breaches," it said.
"Perceived inconsistency as to what WorkSafe NZ prosecutes, and what it does not, carries the risk of undermining the credibility of the core regulator."
Carruthers said he had heard that WorkSafe took too much on and did not prioritise cases rigorously enough, leading to quality and speed issues at its likely "seriously under-resourced" investigations unit.
This in turn meant its lawyers too often getting files late, that were "undercooked", or both.
The legal team "can find itself providing advice about whether to file charges under significant time pressure and in the absence of information it should have".
Files might lack statements from important witnesses, or investigators might have run out of time to talk to expert witnesses or proposed defendants.
Often cases were complex, and WorkSafe only got a year to lay charges, versus two years in Australia.
The review heard that defence lawyers seemed to also be pushing back more on investigations, which could "hamstring" progress.
Many lawyers felt if the legal team were more involved early on in investigations, they would be more efficient and effective, the review heard.
Among the fixes, WorkSafe was bringing in a fresh regulatory strategy "which pegs its prosecution function to its core role as a health and safety regulator".
It had also tightened up triaging.
"It has tweaked its policy as to when prosecution will be in the public interest in a way which should inject more discretion," the new report said.
It had set up a way-station between investigators and lawyers, to assess how good an investigation file was - that "reduces the likelihood of the legal team being taken by surprise".
The report also said WorkSafe was "generally on the money in terms of what went wrong and how serious it was, but could diversify its charging portfolio to take more near miss cases and more cases against [company] officers", like chief executives and directors.
A WorkSafe spokesperson said the watchdog accepted the findings.
"We were pleased to see the reviewer describe our legal team as one of the best among prosecuting agencies, for their knowledge and sound judgment. He also found WorkSafe largely has the framework, precedents, and processes needed to conduct thorough investigations and reach evidentially sound and well-reasoned charging decisions.
"The reviewer acknowledged WorkSafe is already taking steps to address the issues he identified. This includes implementing a clear strategy that ensures we focus our efforts, including prosecutions, on those sectors and risks where the highest harm occurs."
The spokesperson said WorkSafe would take the review findings into account as it continued "implementing our new strategy and priority plans".
