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Health and Safety Update – September 2015

Home Insights Health and Safety Update – September 2015

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Contributed by: Kylie Dunn

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Published on: September 17, 2015

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Health and safety legislation enacted at long last

Amid a politicised debate, the legislation which began life as the Health and Safety Reform Bill has now been enacted. On 4 September the constituent parts of the omnibus Bill received the Royal Assent and brought about the Health and Safety at Work Act (HSWA).

The HSWA comes into force on 4 April 2016 (though an exception allows for subordinate legislation and approved codes of practice to be authorised immediately).

Several changes were included by Supplementary Order Papers towards the end of the HSWA’s passage.  Those changes included the now infamous classification of  “high risk” industries (discussed below) and, also relevant to farming, excluded the main dwellinghouse on a farm from a PCBU’s duty of care. The changes also included many provisions intended to clarify the law (eg that a person’s duty to eliminate or minimise risks is limited to the extent that the matter to which those risks relate is within that person’s control), but which have been criticised by some as watering down the original intent of the legislation.

The remainder of the omnibus Bill makes amendments to other legislation, and will come into force either immediately or on a date prescribed by order in council. 

Risky industry classifications
Workplace Relations and Safety Minister Michael Woodhouse stirred up a hornets’ nest last month when he proposed a method for calculating which industries will be considered “high risk” under the new regime. The classification is important because it puts additional obligations on small employers that would only otherwise apply if they employed 20 or more people.

The classifications are based on industry categories from the Australian and New Zealand Standard Industrial Classification (ANZSIC) paired with WorkSafe data from 2008 to 2013. For an ANZSIC defined industry to be considered high risk, it must meet at least one of the following criteria:

  • Carry the risk of a catastrophic event causing multiple fatalities.
  • Have an average annual fatality or serious injury rate of greater than 25 per 100,000 workers (based on WorkSafe data from 2008 to 2013).
  • Have a particular risk of disease from asbestos or silica dust exposure.

Those criteria have attracted criticism. Although the example of “worm farming” has been the most commonly wielded stick, other criticisms have been levelled as well. 

For example, the basis for using a fatality or serious injury rate of greater than 25 per 100,000 workers as a yardstick is unclear. The categorisation means that any new industry with an inherent risk of serious injury will not be categorised as high risk until that risk materialises at a rate of greater than 25 per 100,000. Similarly, the threshold has been criticised as treating dairy farming favourably because dairy’s annual serious injury rate sits just below the watermark and other farming sectors’ rates sit just above it.

Despite the derision that the categories have received, they do not actually provide specific classifications for “worm farming” or “mini golf”. Instead, those examples appear to have been used because they are ANZSIC defined industries that fall under the catch alls of “Other Livestock Farming” and “Amusement and Other Recreation Activities”, both of which have been given the high risk classification.

The criteria are not yet enshrined in regulations, and it will be interesting to see whether they remain in their current form by the time the HSWA comes into force early next year.

But what about fines?
Although the HSWA comes into force on 4 April 2016, there remain some questions regarding how existing Health and Safety in Employment Act 1992 (HSEA) case law (where the maximum fine is $250,000) will translate to a regime for fines under the HSWA (where the maximum fine is $3 million). Given that the HSWA is largely based on Australia’s equivalent legislation, a recent decision there sheds some light on the answer.

The decision regarded the prosecution of Kenoss Contractors (a family contracting firm) following the death of a subcontractor who was electrocuted when his truck became too close to overhead power lines on a work site.  Kenoss was found guilty under the equivalent of s 48 of the HSWA, which regards failures of duty resulting in a risk of death or serious injury. The maximum fine for a s 48 breach is $1.5 million in both jurisdictions.

Ultimately, Kenoss was fined $1.1 million for what the Court felt was a breach at the serious end of the scale.  Reasons for that seriousness included the ease by which Kenoss could have taken steps to mitigate the risk and the lack of cooperation it had demonstrated with the investigation. It seems likely that a New Zealand court would reach a similar position under the HSWA.

By comparison with a recent NZ decision, the case also demonstrates one manner in which the HSWA will lead to different results than the HSEA. In the Hastings District Court earlier this year, Britton House Movers Ltd was fined $25,000 following Mr Britton bringing down power lines with a load on his truck and then pushing those lines into a ditch where they subsequently electrocuted a farmer’s stock and almost the farmer himself.  Although the harm did not materialise in the Britton situation, it is likely that a larger fine would have been imposed had the HSWA applied.

Nature of Ministry of Social Development charge becoming clearer

WorkSafe’s charging of the Ministry of Social Development (MSD) last year was significant for two reasons.  First, it was a prosecution for the deliberate act of a third party. Secondly, MSD is immune from fines and such prosecutions are relatively few in numbers.

The charge relates to the deaths of two front-line MSD staff following a shooting by a member of the public. As we wrote at the time, the charge shows a willingness by WorkSafe to prosecute employers for failing to protect workers from the deliberate and unlawful acts of third parties, which is a far cry from the typical case in which an employer is prosecuted for failing to have adequate protections in place to prevent an accidental injury.

As the case progresses, more information is becoming available. It is now being reported that a MSD report commissioned in 2012 warned that staff may be vulnerable to attack from members of the public. 

Such a report could, of course, be significant to whether MSD had taken all practicable steps. However, it remains to be seen whether it sufficiently put MSD on notice to the extent that it should have taken further steps to prevent the shooting. For example, even if the report identified an inherent risk in MSD’s nationwide open plan layout, the question remains whether it would have been practicable for MSD to completely reconfigure all its offices to guard against that risk, or whether such a change would have reduced the overall risk faced by its staff.

MSD cannot be fined because of the Crown Organisations (Criminal Liability) Act 2002 (COCLA). The COCLA was enacted following the Cave Creek disaster, where the Department of Conservation could not be charged because of the principle of Crown indivisibility. While the COCLA provides for the prosecution of certain Crown departments, it expressly prohibits the fining of them, because that would amount to the Crown fining itself.

That does not mean that the prosecution is symbolic. The court may still order reparation to be paid and in 2012 a voluntary payment by the Department of Conservation was recognised on that basis.

The prosecution is relevant to all employers with public facing employees, and to all Crown departments.

Manawatu forestry worker found not guilty of manslaughter

The prosecution of a forestry worker for manslaughter relating to a workplace incident has resulted in a not guilty verdict in the High Court in Palmerston North. Paul Robert Burr, 47, felled a tree that crushed and killed his colleague Lincoln Kidd on December 19, 2013. Mr Burr faced charges under the Crimes Act for manslaughter for failing to observe a legal duty which caused the death of Mr Kidd, as well as charges laid by WorkSafe under the HSEA.

The trial, before Justice Brown and a jury, heard extensive evidence from forestry experts in relation to common industry practice, and media reports have raised questions over the extent of hazard management on site. It appears that both Mr Burr and Mr Kidd may have failed to observe the ‘two tree length rule’, as Mr Kidd was only seven meters away from Mr Burr when he was crushed. The Crown later accepted that Mr Burr did not know that Mr Kidd was so close to him, thinking that he had left the felling area. In the absence of that knowledge, Mr Burr’s lawyer argued that Mr Burr could not be guilty of manslaughter and his company could not be guilty of the charges laid under the HSEA.

It is important to note that the decision was not a “corporate manslaughter” prosecution (of the type there has been calls for recently) but was a criminal prosecution of Mr Burr himself. Shortly after the verdict was delivered, suppression orders were lifted and revealed that Mr Burr and his company (now in liquidation) had previously pled guilty to less serious charges under the HSEA. Sentencing for those charges will take place next month.

The Council of Trade Unions (CTU) (see below) had previously described the prosecution as putting all forestry employers “on notice” and sending an important signal that the criminal law applies in the workplace just as much as anywhere else.

Private prosecutions brought where regulator declines

Two private prosecutions brought by the CTU have recently been heard in the District Court. The prosecutions regarded two of the eleven deaths in the forestry industry in 2013.

Both prosecutions were taken by the CTU after the Ministry of Business, Innovation and Employment (MBIE) chose not to lay charges under the HSEA. The CTU claims that it did so because it wished to “highlight the inadequacy by the Government to step up on health and safety and carry out its role as legislator and regulator”. However, it is important to note that that concern was levelled at MBIE (the former regulator) and not WorkSafe (the current regulator). Although the CTU has voiced criticism regarding the recent HSEA reforms, it has also noted that WorkSafe “has increased enforcement” of the HSEA. It remains to be seen whether the CTU will have an ongoing appetite to prosecute following the establishment of WorkSafe.

In other private prosecution news, the University of Otago pleaded guilty to a charge under the HSEA after a student slipped on tiles in the University’s Commerce Building in 2013 and fractured her pelvis and spine. In an agreement reached during the trial in the Dunedin District Court, the University pleaded guilty in return for a $60,000 reparation payment to the complainant.

 


 

 

This publication is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice.

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