Academic journal article New Zealand Journal of Employment Relations (Online)

MBIE Investigations: Duty Owed to Workers by Employers, Lawyers and Inspectors: Do We Need to Regulate to Protect the Interests of Workers?

Academic journal article New Zealand Journal of Employment Relations (Online)

MBIE Investigations: Duty Owed to Workers by Employers, Lawyers and Inspectors: Do We Need to Regulate to Protect the Interests of Workers?

Article excerpt

Introduction

An investigation by the Ministry of Business Innovation & Employment (MBIE) following a serious harm incident in the workplace gives rise to a number of issues, not least of which is the possibility that any duty holder under the Health & Safety in Employment Act 1992 (HSE Act) could be subject to prosecution* 1. Depending on the scale and complexity of a MBIE investigation, there will be a vast array of issues to consider. This paper does not provide authoritative analysis of all the potential issues involved. Rather it will look at one particular issue; that is the role played by lawyers providing regulated services to employers. It will focus, in particular, on the situation where the same lawyer provides legal services to both the employer and employees in relation to the same matter and ask the question "does this give rise to a fundamental conflict of interest for the lawyer involved?" Do we need specific regulation to ensure the rights of workers are properly protected during a MBIE investigation or are existing protections adequate?

It is important to note that it is not my intention to vilify lawyers who provide such services or suggest their actions are necessarily negligent, reckless or otherwise amount to professional misconduct. My intention is to raise an issue that has, to date, not been properly addressed. It appears that it has generally been accepted that an employer is entitled to instruct a lawyer to act for it during a MBIE investigation and part of that legitimate representation is to provide legal services to employees, such as advice and representation during official interviews. It is my contention that this is not done for the benefit of the affected employees but is done for the benefit of the fee paying employer. In other words, the interests of employees are treated as being the same as those of the employer or worse, treated as subservient to those of the employer. In any event, there is an inherent conflict of interest between the interests of two statutory duty holders in relation to the same matter, which should preclude any lawyer offering legal services to both employer and employees.

So, what is the problem?

The problem is that, in attempting to protect the interests of employers and minimise their chances of prosecution, the legitimate interests of workers are sometimes ignored or treated as being an extension of the employer's interests. In doing so, it is arguable that employers are failing in their duty of good faith owed to employees and the MBIE investigation is, at the very least, made more difficult because of improper interference by the employer and its lawyer. Lawyers, acting for the employer, are arguably failing in their responsibilities under the Lawyers & Conveyancers Act 2006 (L&C Act) and the Conduct & Client Care Rules 2008.

Two examples are cited to highlight the problem. The first concerns events that took place in the immediate aftermath of the Pike River tragedy. The second concerns the advice and strategies lawyers offer to employers when facing the prospect of an investigation by MBIE.

Pike River

In the days following the Pike River explosion, there was, as one can imagine, a lot of activity in and around Greymouth. The police and MBIE (or the Department of Labour as they were at the time) were on the scene immediately, and began developing what proved to be a well-executed joint investigation process. That process included undertaking extensive interviews with all employees.

Pike River Coal Ltd was also busy. It had, among other things, engaged public relations experts and a law firm to represent its interests. The company and its senior management were (rightly) concerned that they would be held criminally responsible for the deaths. As to be expected that was a significant focus of the police and MBIE investigation. It was appropriate that the company should engage lawyers to assist. …

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