Published on Law Talk
On 14 December 2018, the Superdiversity Institute for Law, Policy and Business released its latest report: Health and Safety regulators in a superdiverse context: review of challenges and lessons from United Kingdom, Canada and Australia.
Commissioned by WorkSafe, New Zealand’s primary workplace health and safety regulator, and supported by the Ministry of Business, Innovation and Employment, the report examines how regulators in those three countries are challenged by and are working to improve the health and safety outcomes for their culturally and linguistically diverse (CALD) populations, which tend to have a significantly higher rate of injury.
Superdiversity is defined as “the substantial increase in the diversity of ethnic, minority and immigrant groups in a city or country”. New Zealand is already superdiverse – and is becoming increasingly so. How can New Zealand effectively meet the health and safety needs of the increasing number of ethnicities, cultures, and languages which make up our population so they do not suffer worse health and safety outcomes than the general population?
ACC claims data shows a significantly elevated incidence rate of work-related claims for injury and illness among Pacific peoples, and people identifying as Middle Eastern, Latin American or African, as compared to European people. While Asian people have a lower claim rate than European people, research has found that there are significant language and other barriers to accessing ACC services among Māori and Asians – so this data is unlikely to reveal the full extent of workplace injury and illness amongst CALD people in New Zealand. (Statistics NZ “Injury Statistics – work-related claims: 2017” (August 2018)).
Workers (and employers) arriving from very different health and safety cultures often have different expectations, and think and behave differently from those born in New Zealand. There is an urgent need to understand these issues, particularly as the 2018 Census is likely to show an even greater increase in New Zealand’s superdiversity.
The Superdiversity Institute’s report researches three countries which, like New Zealand, follow the Robens model, which is a self-regulatory and flexible framework (Robens Committee Safety and Health at Work: Report of the Committee 1970-1972 (July 1972)), and who have similar levels of superdiversity.
Superdiverse cities have been defined as those where migrants comprise more than 25% of the resident population, or where more than 100 nationalities are represented. The three countries examined in the report, and particularly their major cities, more than meet this definition. In London, 33% of residents were born outside the United Kingdom; in Toronto, 46.1% of the population was not born in Canada; and in Melbourne, 40.2% of the population was not born in Australia. This compares to Auckland where 44% of the population was not born in New Zealand (2013 Census).
Still a long way to go
Our research found that while the overseas regulators have taken some steps towards reducing injury and illness amongst CALD workers, there is still a long way to go. Canada had done the most, followed by the United Kingdom and then Australia. For example, in Ontario, following an accident involving the death of four migrant construction workers, an Expert Advisory Panel on Occupational Health and Safety was appointed to “take a broad look at the [occupational health and safety] system from end to end.” This prompted sweeping reforms and a strategic approach emanating from a legislatively mandated focus on workplace injury and illness prevention, as opposed to the previous focus on enforcement. This included the appointment of a committee to advise on vulnerable (including CALD) workers, whose recommendations were adopted by the regulator and included targeting outreach to specific newcomer and migrant worker groups (See page 110 of the report onwards).
There is a real opportunity for WorkSafe and New Zealand to show international leadership in this area. The research found a gap in proactive and strategic measures to ensure that CALD workers are not more vulnerable to workplace injury and illness than other workers. Most regulators took reactive and ad hoc measures once accidents had happened and focused on communication and language initiatives. The report finds that there are many more critical but less intuitive measures WorkSafe should consider to more effectively protect CALD workers.
I review below the less intuitive of the 15 key recommendations made in the report which are critical for overcoming the greater vulnerability of CALD workers to injury and illness.
Defining the problem, and consistency of definitions
None of the countries surveyed had or used consistent definitions for CALD workers. The term “CALD” actually captures many different types of people, from temporary guest workers, and refugees at one end of the spectrum, new migrants in the middle, to 1.5/second/third generation migrants and the “visually diverse” at the other end. But in each of the three countries surveyed, the overwhelming focus was on “new migrants” – and even then, the definition of “new” varied significantly, between and even within countries. In New Zealand, definitions of “recent migrant” across seven different public sector bodies used nine separate definitions ranging from under two to less than ten years of residence.
This definitional confusion poses significant problems for regulators. It is important to have accurate definitions to determine who is included/excluded in each definition, to determine the real size of the problem. Definitions used also have an important effect on what data is collected, from whom and the analysis generated from such data. It is also important that these definitions are used consistently, not just within WorkSafe but also in other government agencies who play a relevant role in reducing workplace injury.
Prioritise mental health of CALD workers arising from discrimination
The report identifies mental health as the most urgent issue and gap facing CALD workers. The Health and Safety at Work Act 2015 has given increased visibility to mental health being as important as physical health and safety. Cultural safety is critical to preventing high levels of occupational stress. Mental health issues arise from working in a new country without any family, communications issues for those without English as a first (or any) language and unlawful discrimination on the basis of ethnicity, race, and religion. Migrants’ mental health also suffers from verbal and physical abuse from those they work with and from clients/patients (see Ha do Byon and others, “Language Barrier as a Risk Factor for Injuries from Patient Violence Among Direct Care Workers in Home Settings: Findings from a US National Sample” (2017) 32(5) Violence and Victims (ePub)). A study of home care workers in the United States found an association between having a language barrier and suffering an injury from patient violence. This is confirmed by a recent study on internationally qualified nurses in New Zealand by Professor Margaret Brunton.
Being overqualified for a role due to lack of local experience or credentialing issues can also impact detrimentally on new migrants’ mental health. Therefore new migrants’ downward mobility increases their risk of both physical and mental injury (an issue raised by several of the Canadian regulators).
A recognition and understanding of the greater stresses on the mental health of CALD workers is needed to ensure that it is properly identified as an issue, so that data is collected to allow targeted solutions to prevent it, and to address its effects.
Taking a strategic and system-level approach to upstream factors
The report finds that achieving good health and safety outcomes for CALD populations requires regulators to take a strategic and joined up approach to address the systemic issues that cause greater health and safety vulnerability.
CALD workers are disproportionately found in precarious employment, including the gig and shadow economy, with heightened injury rates, disease risk, hazard exposures, and decreased worker (and manager) knowledge of health and safety responsibilities. Where professional CALD workers, particularly migrants, are unable to get other roles, they can be at risk of increased physical injury as a result of performing physically demanding manual labour for the first time.
These issues cannot be solved by WorkSafe alone. But consistent with its statutory function “to promote and coordinate the implementation of work health and safety initiatives by establishing partnerships or collaborating with other agencies or interested persons in a coherent, efficient and effective way” (s 190(j) Health and Safety at Work Act 2015), WorkSafe can work with other agencies which do have the ability to address credentialing and other structure of work issues.
Use inspections and investigations to improve outcomes for CALD workers
WorkSafe can better use enforcement mechanisms like assessments to prevent workplace injury and illness amongst CALD workers if inspectors understand how the different cultures of CALD employers or workers may have contributed to accidents. Cultural values are relevant to understanding the causes of an incident and why employers or workers behaved as they did, which can include different perceptions of risk, or religious factors such as fatalism and that God will determine the outcome regardless.
WorkSafe can also use inspections to increase health and safety compliance among ethnic and minority businesses. To be effective in workplaces with CALD employers or workers, WorkSafe needs to have multilingual inspectors; and use inspection strategies and techniques to mitigate issues common among vulnerable CALD workers, like the fear of being sent home if they raise a health and safety issue, or being concerned about not respecting their elders or being disloyal to their employer.
Strengthen protections from reprisal
The report refers to Ontario’s measures to strengthen the protection of workers from “reprisal” for reporting health and safety breaches. The challenges identified by the Ontario regulator related to low worker knowledge of the anti-reprisal provisions, reluctance by the regulator to prosecute (owing to evidentiary challenges if the worker or/and employer speak poor English), delays in prosecution, and limited support being provided to victims.
In New Zealand, sections 88-90 of the Health and Safety at Work Act prohibit the taking of adverse action against a worker for a “health and safety reason”. A person who contravenes this requirement commits an offence and is liable to a fine of $100,000 if they are an individual or $500,000 if they are a company. Although there have been no prosecutions since the Act came into force, anecdotal evidence suggests that CALD workers are likely experiencing the same issues as those in Ontario which have resulted in the need for more measures to strengthen the protection for workers from adverse conduct.
WorkSafe needs to collect data on the prevalence of reprisals for staff reporting health and safety breaches. It needs to ensure that CALD workers and employers are educated on their rights and responsibilities and publicise the ability to report health and safety concerns or incidents confidentially.
Provide more guidance to employers (CALD, and non-CALD)
A big gap identified in the report concerns employers who are themselves CALD. Despite research showing that CALD employers are less aware of health and safety regulations, there have been limited targeted initiatives overseas to address this issue. They do not know how to avail themselves of the help being offered by public agencies. This gap is of particular concern because of the crucial role of employers/Persons Conducting a Business or Undertaking (PCBUs) in the Act as the primary duty holder. It is also of concern because ethnic businesses often employ ethnic workers who are at increased risk of workplace injury and illness, as new migrant employers and employees have been found to have less understanding of health and safety obligations and rights.
WorkSafe should develop targeted resources and training for ethnic employers, and use intermediaries (such as chambers of commerce or ethnic advocacy groups) to help deliver these resources and training.
More also needs to be done to help all employers meet their obligations to CALD workers, particularly by helping them understand the impact of cultural and linguistic diversity on workplace health and safety. For example, understanding that CALD workers are more likely to take health and safety advice from their peers.
WorkSafe has already recognised the impact of cultural differences to employers in an indirect fashion through a recent enforceable undertaking accepted by Woods Glass, following an incident in January 2017 where a Filipino worker was injured. Woods Glass undertook to revise its induction programme so that it is more effective for workers who are not native to New Zealand, including simpler English, offering interpretation services on request, and addressing the cultural differences between New Zealand and other ethnicities with particular regard to health and safety and employer expectations (WorkSafe New Zealand “Enforceable undertaking – Woods Glass” (31 July 2018)).
Apply a Superdiversity framework to WorkSafe, including prioritising diversity in recruitment and training
The report shows a lack of strategic and proactive approaches taken by overseas regulators to assessing the impact of superdiversity on workplace health and safety, so that those impacts can be addressed.
It recommends that WorkSafe apply a superdiversity framework to the whole organisation and its statutory role, to identify where the needs are, and to make its education, engagement, and enforcement activities more effective for CALD workers and employers. This includes recruiting more CALD staff, and growing the cultural capability and intercultural communication abilities of existing staff to understand the unique vulnerabilities of CALD workers and employers, and to engage effectively with them.
The other recommendations in the report not reviewed above include improving the data collected about CALD workers; taking an intersectional approach to vulnerable work factors; greater engagement with CALD communities; focusing on communications and language (including using professional translators and not just CALD workmates, using plain English, diagrams, photos, signs and symbols); encouraging high risk sectors like construction, forestry, agriculture and manufacturing to take the lead on addressing the vulnerabilities of CALD workers; and better measurement of the effectiveness of CALD specific measures.
New Health and Safety at Work Strategy 2018-2028
The principles of the Government’s new Health and Safety at Work Strategy 2018-2028, released in December 2018, are well-suited to applying a superdiversity framework to health and safety at work, and set an excellent platform to improve workplace health and safety outcomes for CALD workers. With the new Strategy, and this new report as a roadmap, we look forward to seeing the mainstreaming of superdiversity in health and safety for the benefit of all workers and employers in New Zealand.
Mai Chen firstname.lastname@example.org is Managing Partner of Chen Palmer Partners, and Chair of the Superdiversity Institute of Law, Policy and Business