Tuesday, 7 December 2010

Out of the Line of Sight (Some Questions For Pike River Coal)

Reluctant Witness: In every thriller there's always someone who doesn't want the detective to see what lies just beyond his line of sight. Why is Pike River Coal sending its lawyers to sit in on the Department of Labour's interviews with its employees?

IN JUST ABOUT every movie thriller there’s a blocking scene. Some thing or some body which gets in the way of the hero’s investigation.

You know the sort of incident I’m talking about.

At the door to the key witness’s apartment, the detective’s confronted by someone who very obviously doesn’t want to let him in. When he gives the witness’s name, the doorkeeper shakes his head:

"Sorry, buddy, never heard of her."

But the detective (and, of course, the audience) can tell he’s prevaricating. There’s something "off" about the guy’s entire behaviour. His gaze keeps shifting to something standing just out of the detective’s line of sight. When the hero attempts to get a better view of the apartment, the doorkeeper becomes even more agitated:

"I told you – she’s not here!"

The door slams in the detective’s face.

NOW, THE PIKE RIVER mine disaster isn’t a movie thriller – it’s a real-life human tragedy. But, it’s also a mystery. So, I’m wondering – am I the only person in New Zealand who’s asking himself whether Pike River Coal knows something we don’t?

And, if they don’t, then I’ve got to ask its top guys another question: Why is the Company insisting that its lawyers sit in on the interviews Department of Labour officials are conducting with mine workers?

The Company says it’s only concerned about safeguarding its employees’ – the mine workers’ – rights. But, if that’s the case, then wouldn’t they be talking to their union representatives? After all, that’s what the union’s there for – to protect the rights of its members.

And, in the case of Pike River Coal, that protection is provided by one of the country’s largest and best resourced trade unions – the Engineering, Printing and Manufacturing Union (EPMU) led by Andrew Little.

If Pike River Coal was only interested in making sure that the rights of its employees were being safeguarded, then wouldn’t the presence of the EPMU have reassured them that all was well?

So, why didn’t the involvement of the EPMU reassure Pike River Coal at all? What made it so touchy? Why, when Mr Little and his officials questioned the propriety of the Company’s lawyers being present at what are, in essence, evidence-gathering interviews by the Department of Labour, did everything become so heated?

Think back to those movie thrillers.

When the prime suspect is being questioned by the Police it’s quite usual for him to have his lawyer present. Legal representation ensures that the suspect is not pressured into saying something that may later be used against him in court, should the matter ever come to trial. Suspects (especially in American thrillers) enjoy full constitutional protection against self-incrimination.

But have you ever seen a thriller where the suspect’s lawyer sits in on witness interviews? Just imagine how intimidating that would be. The detectives are asking an eye-witness to a shooting if he can identify the gunman – and the prime suspect’s lawyer is sitting there taking notes! How much co-operation do you think the Police’s key witnesses are going to provide under those conditions?

Pike River Coal is also, unbelievably, demanding that the Department of Labour inquiry team hand over any audio or video recordings they have already made, or make in the future, of evidence-gathering interviews with Company employees and/or sub-contractors.

I fervently hope that the Department’s officials to do not comply with Pike River Coal’s demand. Like the Company’s insistence that its lawyers be present during the gathering of evidence, it runs the risk of sowing very worrying seeds of doubt in the public’s mind as to whether the Department of Labour’s statutory inquiry into the Pike River mining disaster is being undertaken "without fear or favour".

Charging in with lawyers like this isn’t the only aspect of Pike River Coal’s behaviour which has struck a number of observers as being a little "off".

What, for example, lay behind its decision to hold on to the CCTV record of the original explosion for so long? Was no one monitoring the live feed from the mine’s mouth? Had someone been physically present outside the mine’s entrance to see and feel the blast, how long would it have taken to raise the alarm and activate the rescue procedures?

And why, if Pike River Coal is genuine about putting the interests of its employees first, did the Company not insist that union representatives be seated among the dignitaries at last week’s memorial service? The West Coast has long been a bastion of trade unionism in New Zealand. Am I the only one who found it strange that the 29 miners’ union and the CTU weren’t allowed to speak at their funeral?

Was somebody frightened of what they might say?

Is there something – just out of their line of sight – that someone is desperate the detectives don’t see?

This essay was originally published in The Press of Tuesday, 7 December 2010.


Madison said...

As someone who has been a victim of vicious attacks by a Union I can understand why the company may want their lawyer present despite the EPMU lawyer's availability. The Union lawyers are intimidating and are out for themselves and the Union members only. When I was involved in dealings with them their claims for Fairness and Workers Rights translated into attempts to fully strip me of any rights to protect myself from accusations designed to destroy my career. They asked leading questions designed to make me answer in ways that would create contradictions and attempted to falsify and play up incidents in order to create fake patterns of behaviour. They have no regard for the well being of the non-members and this should be remembered.

There are many questions about Pike River and they must be answered, but to demand that the Union Lawyer be the best and most logical representative for the many other people who aren't Union members is simply wrong. It fails to take into account that these other workers have chosen not to join for their own reasons and asking them to use the Union for help now is a recruiting tactic or either pushing for bullying.

When the incident happened Andrew Little played it straight and admitted that no one knew what happened and that a full investigation was the only way to find out. He claimed there was a very strong "safety culture" at the mine with many Union members on the committee and that they had no concerns about the safety. After Helen Kelly's outburst and the wonderful gift of hindsight these other employees are now claiming there have been problems all along, but that no one was told. If so why didn't the Union know and why didn't their members and reps stand up for this?

As for Helen Kelly demanding an apology for the miners, I think it's sour grapes on not being at the memorial, which she shouldn't have been. Andrew little or the site leader or organiser should have been there Chris, I agree with that, but not Kelly. In here demand for an apology I ask you what times a Union has ever apologized for their actions? I can only think of 1 in my entire lifetime and only on a very minor issue. Including my own case where I was told informed that they refused to believe me since I wasn't paying dues I know it is Union policy to NEVER apologize or admit a mistake.

You can paint this up in drama but until a full investigation is finished no one will truly know what happens despite all the political grandstanding you can try. Union lawyers do not and will not represent anyone equally and are well versed in asking leading and false questions to make miraculous answers and blame appear where there is none, I've been through them attempting to pull this on myself and I can see the need for a company lawyer to actually protect the employees.

Chris Trotter said...

To: Madison

An unfortunate comment, Madison.

Clearly you have been scarred by your encounter/s with the union movement - and it colours your judgement of every issue pertaining to trade unionism.

But even in the context of your own narrative, it is difficult to fault the union's conduct. To an outsider it sounds as though the union and its lawyers were only doing what they had to do as participants in our adversarial system of justice.

Reading between the lines, Madison, it would appear that you did yourself no favours by failing to hire a lawyer of your own (or availing yourself of the experts on tap at the Employers Federation) to defend your rights.

Turning now to the issue of union representation at the memorial service: Helen Kelly should have been allowed to speak, and deserved a place on the stage, for the very simple reason that she represents New Zealand's 320,000 unionised workers - many of whom, like the mine workers, face serious health and safety issues every day of their working lives.

It would have been unthinkable, even thirty years ago, that NZ's peak union organisation (let alone the site union) could be excluded from a service of national mourning for 29 men who perished as a result of an industrial accident.

And, lastly, may i say that this tragedy has already been "painted up" by the news media.

Their characterisation of the mine's CEO as some sort of "hero" and their lachrymose obsession with the grieving families has meant that the sort of clear-eyed journalism so desperately needed in tragedies on this scale has been almost entirely lacking.

Pike River Coal, however, understands all too well the importance of an expert "paint job" and the early involvement of the legal profession.

You may be sure that, within hours of the miners' deaths, a PR firm had been retained to devise and oversee a comprehensive "communications strategy".

One of the key elements of that strategy undoubtedly called for carefully exerted pressure to be applied to news organisations not to give credence to "armchair experts" or to engage in "trial by media" but to "wait until all the official inquiries are complete".

Who, exactly, is served by this approach, Madison?

Ask yourself.

Anonymous said...

Mining is like a lot of other industries, only more so. In order to extract what pays the bills for the enterprise a never ending series of problems are encountered and overcome. There is no such thing as routine, predictable, straightforward mining, it is engineering in changing dangerous conditions. The company takes out insurance cover over what it can. Pike River Coal is now calling on that cover. Any and every utterance and document that affects a claim will be examined for a way out by insurance companies [as most of us who have paid premiums for years then file claim for an event know].
The unforseeable, the predictable and the practise will all be thoroughly examined at enquiry, but my guess is that the something-just-out-of-the-line-of-sight is the underwriters looking hard for a retreat line.


Madison said...

Well Chris, it seems we have some agreements and some disagreements, but that's to be expected. First my own case. I did seek advice and assistance as soon as I realized what was going on. As I was the accused in all but one instance of this campaign I found it amazing that it was possible to limit my defence by such drastic amounts. I did not willingly or unwittingly at any time lose my rights to the Union, but only because I was so alert early on. I have had a horrible experience and would hope no one would have had a similar one, but it pays to recognize that others who might have adversarial relationships with the Union would not view their lawyer as defending their rights or protecting them. In my case and especially with my history I would feel far more threatened by them than the company lawyer. Not everyone has had the same good experiences with the Unions that you, my wife or sister-in-law have had, some of us are unlucky (near) victims. I have still recommended people to the Union despite that but I will always be far more wary of what they say and do now.

As for the Union rep at the memorial we both agree that it is insulting that there wasn't someone speaking but we disagree on who should have been there. I would have expected someone closer in service to the miners and local community, someone from the EPMU, rather than the CTU president.

We also agree that there must be answers found, but fighting over whose lawyers are allowed to investigate is only going to slow the process. As this is currently an inquiry I can see no reason why both sides can't have their lawyer there. And for doing a solid paint up your article is as good an example as any. You give reference to hiding things and a criminal investigation, but it's not that far along yet and that may never happen. Should it happen then I would agree that the company lawyer should be gone from the witness room but until then let them stay.

And while you find the hiring of a PR firm (supposed) is signs of a cover-up I recieved my long-disused BA specifically in PR. One of the basic functions of a PR firm is not the paint up that you recognize and is widely publicized but merely the establishing of clear and proper communications channels. If there is no coordinated effort to combine information and make sure that it is distributed in a somewhat controlled manner then all sorts of nonsense, guesswork and rumours flood the scene and no one knows what to believe. Contrary to the general belief most PR work is making sure that information is available in a way that is easy to access and is not an uncontrollable and undecipherable mess. I would be surprised that the company didn't already have someone as a public liason who was up to the task as most companies do keep one on the payroll now.

Anonymous said...

Helen Kelly should have been allowed to speak, and deserved a place on the stage, for the very simple reason that she represents New Zealand's 320,000 unionised workers

Helen Kelly doesn't represent 320,000 workers, she exploits them. Helen Kelly represents international socialism, to the detriment of Kiwi workers.

The greatest day in the history of New Zealand's industrial relations was this Mayday, where tens of thousands of Kiwi workers participated in anti-Union marches.

With one voice in solidarity, Kiwi workers shouted "Trade Unionism is Treason" and they meant it.

And New Zealand had finally matured as a society.

No longer are Kiwi workers prepared to be treated as the "ignorant masses" by the Trade Union officials who exploit their labours to achieve their shady ideological ends. No longer were Kiwi workers prepared to accept Helen Kelly and her ilk sacrificing their livelihoods for the "greater good" of international socialism. No Union official was going to destroy a multi-billion dollar Kiwi industry on their watch, that day.

An anti-Union march on Mayday Chris. Helen Kelly joined Pot, Stalin, Mao and Clark on the dustbin of history that day.

paul scott said...

your poem to the people of Pike River Mine in an earlier post was very good dude, it was really something, but 20 New Zealanders got killed on the roads this year being chased by idiot NZ cops, can you do a eulogy for young drivers Chris,

Chris Trotter said...

To: Anonymous

I don't usually publish this sort of comment - but it's such an excellent example of the sort of wild, right-wing ranting that passes for intelligent debate on so much of the Blogosphere.

I invite Bowalley Road's readers to work their way through Anonymous's unintentionally hillarious comment: to savour his many outrageous errors of fact; marvel at the crude ad hominem attacks; and just revel in the sheer, batshit-craziness of it all.

It really is a masterpiece of the genre.

Victor said...

Pike River Coal went to considerable lengths to manage both the news flow and public/media access, from the first explosion in the mine onwards.

When these sorts of restrictions are put in place, it's either a case of "something to hide" or, more normally, of reflex corporate paranoia.

Madison is correct that a skilled PR practitioner (in-house or otherwise) will often try to persuade management to take a more open approach.

However, the PR characteristically doesn't cut much ice, once the big boys (typically including an insurance-obsessed finance director) get involved.

Grant said...

Insurance was my initial thought, Pike River likely notified their insurers and are taking instruction from them. Possible OSH and other statutory breaches could cost them many millions in future fines- which they will have liability insurance cover for.

giordano bruno said...

"low clouds prevented helicopter flights taking gas samples for analysis" - so there was no such analysis at the mine?

Gordon said...

Of course now Pike River have gone belly up much of this becomes hypothetical. For example why bother with an OSH prosecution against an insolvent defendant?