More than 700 people have been killed in work-related deaths in the past decade, despite the Key government's overhaul of workplace health and safety laws following the Pike River Mine disaster. The coalition government has again changed the law, this time to cut red tape and ease compliance costs, but critics say more New Zealanders will die at work as a result. South Island correspondent Timothy Brown reports.
By Tim Brown of RNZ
Working in a timber yard was not Ethyn McTier's idea of a dream job.
His role at Timaru's Point Lumber was just a means to an end and a way to raise some money for his real dream of moving to Australia and becoming a builder.
Instead, the 23-year-old went to that job on November 1, 2022 and never came home.
McTier was trapped by an unguarded conveyor belt and crushed to death at the yard.
Before his death, McTier had expressed concerns to his family about the working conditions at Point Lumber.
His mother said he borrowed money from the company's director Sean Sloper to fix his teeth. McTier's integrity meant he would never walk away from the job without repaying the loan.
An independent safety consultant recommended installing a guard on the conveyor belt in 2017, but it was not there when McTier was killed.
A three-year-old boy was crushed to death after a stack of logs collapsed and rolled on him while he was visiting his father at the same yard in 2016.
WorkSafe investigated and prosecuted Point Lumber over the boy's death but the regulator was not aware of the conveyor belt or concerns about its safety until after McTier died.
Point Lumber was under no obligation to disclose the information and WorkSafe only dealt with the company on one occasion between the two deaths about an unrelated matter.
There have been more than 700 work-related deaths since John Key's government overhauled workplace health and safety laws in 2015 in response to the 2010 Pike River mine disaster that killed 29 people.
There are about 70 people work-related deaths every year with primary industries, transport, construction and manufacturing accounting for almost 60%.
McTier's family now fears that the coalition government's law changes mean more workers will face an increased risk of death or injury, an assessment shared by New Zealand First leader and government minister Winston Peters.
The government said the law changes focused businesses on critical workplace risks.
Workplace Relations and Safety Minister Brooke van Velden said the government wanted everyone to get home from work safely and the changes intended to clarify and simplify the law had been misunderstood.
She said WorkSafe would continue to target businesses flouting the law or neglecting workers' safety, with the amendments due to come into effect next April.
Groups as diverse as the Law Association, Business Leaders' Health and Safety Forum, Woolworths, Institute of Safety Management and Council of Trade Unions have raised concerns the government's changes weaken worker protections and increase health and safety risks.
Some worry that they create a two-tier system with small businesses having fewer responsibilities, others fear they narrow the focus on potential risks and some say they prioritise economic concerns over worker safety.
McTier's sister Daria McTier said it felt like his death was in vain and her family did not want anyone else to die at work.
"It does, kind of for us, feel like it was all for nothing," she said.
Daria McTier said they wanted the law strengthened rather than weakened.
"If changes can happen and no one else has to go through what we've gone through, I think we'd be really happy," she said.
McTier's mother Sheryl Clark said legislative change to better protect workers would be a legacy fitting of her son's life.
"He would have died for something. Something good has come from this. It wasn't just a waste of his death, because that's how I feel if it stays the same," she said.
Daria McTier said her family also struggled to understand how WorkSafe had failed to ensure the safety of the yard before her brother's death.
"There is obviously a lot of fault with Point Lumber and Sean, obviously, but change needs to happen at that top level," she said.
"We have these rules and regulations, but what is the point if they're not being enforced until after the fact? Then somebody's lost their life, the damage is done.
"The circumstances around this incident in particular are quite hard to accept because there had already been a death at the workplace, WorkSafe were involved then, they surely would have known that the working conditions weren't safe but nothing was done.
"Then we have this independent person coming in, also again saying, 'this isn't up to scratch, these are the things you can do to improve it'. Again, nothing was done, and look what it's led to.
"Everybody has the right to go to work and come home safe but there needs to be people enforcing that and making sure that these workplaces are safe."
The Timaru District Court awarded the family $140,000 in reparations for McTier's death.
Fines of $310,000 had to be paid to the government, an amount more than twice that awarded to the family.
Clark said it felt like the government was rewarded for failing to keep her son safe.
"That is not justice. That seems to me that they're making money off his death," she said.
"I didn't want any money. I wanted [Sloper] to go to jail so that he was taken away from his comfort zone and paying for what happened. I feel like shelling out money for someone's death, that didn't hurt him, not like we had to suffer.
"That's all it comes down to, money. He still gets to run his business. It didn't really cost him anything like it cost us."
Council of Trade Unions president Sandra Grey described the circumstances of McTier's death as an outrage.
"No family should lose a son, a brother, a family member when it is completely avoidable," she said.
"We should all be absolutely outraged that for the lack of a guard someone did not get to go home.
"What we often see with guards around machinery is it sometimes can slow the process up slightly. People go, 'well, we could get through our work quicker if we didn't have the guard, it's expensive, it costs us time'.
"Never should the profit motive drive unsafe procedures and we should have seen after the first death an absolute eagle eye on that mill. In any workplace where there has been a death, there should be a relentless move to make sure they have complied with every single compliance order and every single safety measure that's needed because no family ever gets over that sort of tragic death.
"This doesn't just end a young man's life. It ruins the future for all the people around him.
"We need to be outraged that we've got a government that thinks business concerns about paperwork are more problematic than people dying. They've weighed the scales up and they've said, 'we'll accept there'll be some deaths because businesses just don't like compliance'. This is not about compliance. This is about saving lives."
As a company with fewer than 20 employees, Point Lumber is considered a "small PCBU" - or person conducting a business or undertaking - and subject to less onerous expectations under the government's law changes.
Point Lumber director Sean Sloper declined to be interviewed by RNZ and instead provided written answers to questions.
He said extensive and ongoing improvements had been made to the business since McTier's death, with $120,000 spent on securing the area where he died.
Sloper said McTier's sleeve had been caught in the conveyor belt weeks before he died and it appeared McTier had told a senior staff member about the close call.
But McTier's family disputed that and said Ethyn McTier had told them about a fortnight before his death another staff member got their sleeve caught while clearing out the conveyor belt.
Asked if any other staff had raised concerns about the conveyor belt, Sloper said: "I can't recall without digging through those records."
Sloper said a guard was fitted to the conveyor belt as recommended by the 2017 audit but it was not in place at the time of McTier's death because it had been removed during a re-engineering of the site.
"The conveyor belt was always seen as a low-risk operation for the industry. It is in a hard to access area," he said.
"We don't know why or what Ethyn was doing in this area on the day of the accident. We were doing extra-long poles at the time and the only way to access the conveyor drum was on your hands and knees."
Asked if there were any other incidents of concern at the business, Sloper said: "Risk management is a constant - it doesn't start or stop at specific times, it is an ongoing process."
Point Lumber used a reputable Christchurch safety consultant for its audits before McTier's death and had since employed a qualified and experienced local woman who was herself audited annually, Sloper said.
"We acknowledge we don't have the necessary in-house expertise to do our own health and safety systems," he said.
Since McTier's death WorkSafe had issued five improvement notices to Point Lumber. all of which had been complied with.
The regulator said it had also issued two directive letters, which were an informal, lower level of intervention.
"Point Lumber had no obligation to disclose its private audits to WorkSafe. Businesses hold the primary duty of care to keep their workers safe. Safety audits and improvements, staff training and so on are all part of that duty of care and are good business practice. WorkSafe does not need to be involved," a WorkSafe spokesperson said.
McTier's death echoed Wes Tomich's death less than a year later in Tauranga.
The 37-year-old was cleaning a running conveyor belt at Ballance Agri-Nutrients' Mount Maunganui site when he tried to step over it, slipped and was pulled into the machine.
His mother Lee-ann Tomich said her son had spoken to her about the risks at the plant.
"Just before the accident he had come to us and said to us he wanted to leave Ballance. He said to [his father] Anthony, he's not happy with a few things that are going on there. If we had known how bad it was, we would have told him to walk out of the job," she said.
His father Anthony Tomich was shocked by safety standards at the plant.
"I've been in the game a long time. I've been over working in Australia, working in New Zealand, all over South Island, North Island. I'm a contractor, so I know a bit about what goes on around the place and I was really, really, really gobsmacked as to what they were doing," he said.
"It wasn't an accident really, at the end of the day. It's something that was foreseen. He should still be here. It's such an unnecessary death really because all they had to do was just heed warnings that they had been given. Unfortunately they didn't do that and this is the result."
A 2015 risk assessment of Ballance Agri-Nutrients' sites identified the danger of workers being caught in belts as well as a lack of guards or non-compliant guards and a lack of emergency stops within easy access of operators.
Ballance Agri-Nutrients asked Beca Group to translate and review the risk assessment, which was done in 2022, seven years after the initial assessment and before Tomich's death.
Beca's report referred to the risk of cleaning and maintaining the belt that ultimately caused Tomich's death and non-compliant guarding.
WorkSafe said it only became aware of the risk of the conveyor belt following Tomich's death.
Its old file management system showed 370 files relating to Ballance Agri-Nutrients with 52 compliance actions, but some interactions would have generated multiple files.
WorkSafe could not say how many of its interactions with Ballance Agri-Nutrients related to the Mount Maunganui site but its predecessor, the Department of Labour, had issued the company with an improvement notice for a conveyor belt at another site in 2009.
In 2012 the department investigated after a worker's hand was trapped between a spanner he was holding and a conveyor belt at the company's Mt Maunganui site, although it was not the same belt that caused Tomich's death.
A letter was sent to Ballance Agri-Nutrients but no further enforcement action was taken.
When asked if the regulator should have done more to protect Tomich and other workers - considering McTier's death the year before as a result of a known hazard and the known hazards at Ballance Agri-Nutrients - a WorkSafe spokesperson said the companies had been warned about safety risks.
"Both Ballance and Point Lumber had been told by independent health and safety experts that the conveyor belts which caused the fatalities were dangerous before the fatalities occurred. WorkSafe became aware of the dangers of the conveyor belts only when it was notified of the deaths. In the case of both these businesses WorkSafe acted promptly when it became aware of other safety risks, issuing notices and following up as needed to ensure worker safety," they said.
Anthony Tomich said he believed WorkSafe had failed to keep his son safe.
"When they came here the guy said to me that they can't force them to make changes. What's the point then? It's like a guard dog with no teeth. It's just unbelievable," he said.
The Tauranga District Court fined Ballance Agri-Nutrients $420,000 and $287,202.86 was paid to the family, although almost three-quarters of that sum came from Wes Tomich's employee scheme life insurance policy.
In October 2023, less than three months after his death, Ballance Agri-Nutrients' then-chief executive Mark Wynne was recognised with a lifetime achievement award at the NZ Co-op Awards.
"Wes had been buried for not even two months and then I was reading reports that the company's CEO at the time, Mark Wynne, just received a lifetime achievement award," Anthony Tomich said.
"How do you get a lifetime achievement award when someone died on your watch?" Lee-ann Tomich said.
The Tomich family said the recognition was disrespectful and workplace health and safety would only improve when business leaders were held responsible for the safety of those working under them.
"If the CEOs were held more accountable for their companies we would see less deaths. If they had to go to jail when someone got killed unnecessarily then we'd see change in safety in the workplace. But their CEO didn't show up for court, nothing. So it was just like washed off his hands. He just walked away. Nothing," Lee-ann Tomich said.
RNZ asked Ballance Agri-Nutrients why it did not address lacking and non-compliant guards and the lack of easily accessible emergency stops following the 2015 assessment or the 2022 report and when improvements were finally made.
The company did not address the questions and instead sent a statement attributed to chief executive Kelvin Wickham.
"In late July 2023 the Ballance team lost a team member in a sudden and tragic accident. All who knew the individual were immensely impacted by his death," the company said.
"Ballance fully co-operated with WorkSafe NZ during its lengthy investigation and we are committed to recognising the failures and learning from this tragedy wherever we can.
"We have put additional measures and new training programmes in place to ensure an incident like this does not happen again."
The statement was largely similar to previous statements sent to journalists inquiring about Tomich's death, with the only notable amendment the removal of Tomich's name with "the individual" in its place.
RNZ also attempted to contact Wynne, who now sits on the boards of Alliance Group and Quayside Holdings, although no response has been received.
Workplace Relations and Safety Minister Brooke van Velden declined RNZ's interview request and instead asked to respond to written questions.
"As a government our hope for every family is that their loved ones return home from work at the end of each workday. We want workers safe at work," she said in a statement.
"There has been a lot of misunderstanding about what the health and safety reforms introduced by this coalition government will do. The changes we made are about ensuring that people understand what health and safety law requires of them, to actually be able to prioritise what it is that they need to do at work to keep themselves and others safe.
"The reforms focus all businesses and workers on the critical risks they must manage in their workplace - those are the risks that are likely to result in death, serious injury and illness. WorkSafe will continue to prosecute in cases where there has clearly been significant or negligent disregard for health and safety law, repeated non-compliance or where serious harm has occurred and deterrence is necessary.
"I have been informed that at the time of these incidents, WorkSafe had not clearly identified manufacturing as a priority sector. In 2023 WorkSafe strengthened its focus on the high-risk areas of manufacturing, forestry, agriculture and construction. This of course does nothing to reduce the tragedy of the workers who were killed and whose deaths were completely preventable but it highlights the importance of WorkSafe concentrating on sectors where serious injury or death are most likely to occur, including manufacturing."
The minister did not directly respond to RNZ's questions about industry and worker concerns her law changes would cause further deaths and injuries
Grey said New Zealand had an appalling health and safety record and the coalition's amendments would only make the situation worse, particularly for companies with 20 or fewer workers that would be subject to a less onerous regime.
"This government has changed legislation so that there's a two-tier system. Big companies have full compliance around health and safety, have to do the rigorous processes required. The new law means that small businesses just don't have to do the same level of detail around their compliance. It was always sold as that they find it really, really hard to do the compliance. What we're talking about is matters of life and death or serious injury for many, many workers," she said.
Grey was also concerned the new regime would not provide enough emphasis on the negative effects of work on mental health.
"For many workers it's not physical harm immediately that is the problem, it is actually psychosocial harm and we think that has been watered down in this new legislation," she said.
"That's all the things around workplace stress, fatigue, and that sometimes does lead to physical harm but also the hidden part is WorkSafe estimated around 70 workers a year die by suicide as a result of workplace stress. We don't want our health and safety law to miss out this huge part of what work does to workers, to humans, to families, which is it creates stress, it creates problems and we should have all companies addressing those problems.
"This legislation didn't have the support of the experts, didn't have the support of workers, many businesses argued against it and yet for some reason this government thinks they should take a lighter hand in this space. It's not good enough and we are going to see more workers dying if we don't tackle this issue properly."
The families of Ethyn McTier and Wes Tomich have been left to pick up the pieces of shattered lives.
Daria McTier said the loss of her brother was the worst day of her life and had turned the family's life upside down.
Her sister called her at work to tell her there had been an accident.
"I couldn't believe it. I just was in complete shock and then I had to ring and deliver that news to mine and Ethan's dad, which was just also incredibly hard to do. After I got off the phone to our dad, I think it just really hit me that he wasn't here any more.
"Our lives will never be the same and everyone else just carries on as normal," she said.
"It just kind of makes us feel like it didn't matter. He didn't matter. Our lives now don't matter."
Daria McTier said her brother had five siblings and was everyone's favourite, at the heart of a big family.
"I don't think anyone in this world had bad things to say about that kid," Clark said.
"He was an extremely hard worker. He was always there for his friends. He was always there for all of us. He was always there."
As the government worked on changes to workplace health and safety laws, the McTier family said no one reached out to seek their views.
The McTiers still had questions about why WorkSafe did not put a larger focus on Point Lumber following the first death at the yard and why the regulator did not know about the threat posed by the conveyor belt.
"WorkSafe had said to us that they didn't have the resources to do this," Daria McTier said.
"Before we had the sentencing WorkSafe had given us a show through of the improvements that had been done at the workplace, after the fact of course, and it was just kind of shocking to think that they weren't there all along."
"For me to make any of this okay, WorkSafe has to stand up and take accountability for these deaths," Clark said.
"Ultimately they are there to uphold safety at work, are they not? They did not do that."
WorkSafe said the family's recollection of the conversations differed from its understanding.
"If WorkSafe had been aware of the conveyor belt hazard at the time, it would have assessed the matter and considered the appropriate response. We are open to a further discussion if the family would benefit from it," a spokesperson said.
Wes Tomich's mother Lee-ann Tomich said the family moved from South Africa to New Zealand in 1997 to give the children a better life.
"There's no greater pain than losing a child. The suffering never stops," she said.
"It's like you had a life before he passed and then a life after and the lives are totally different.
"We brought him out here from South Africa to give him a better life and he loved it. He absolutely loved it. He thrived. He loved the country. He loved everything about it. He loved the All Blacks. He was just such an awesome character."
The family wanted the coroner to hold an inquest into Tomich's death but the request was declined, leaving them with many unanswered questions about his death.
"When people say to you 'have you got closure?', there's no closure," Lee-ann Tomich said.
"Every day of our life you wake up in the morning, first thing on my mind, it's Wes. When we're going to bed at night. Wes. I don't even sleep at night. I wake up like every two hours or every three hours and it's just running through my head. I still cannot to this day believe that he's not with us.
"I didn't get to say goodbye to him. I didn't get to tell him one last time how much I loved him. All those things are stolen from us and his life was worth nothing to them and the justice system. He was worth everything to us, everything.
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