Worksafe

The WorkSafe New Zealand Act 2013 has established a new crown agency that has primary responsibility for the administration and enforcement of the Health and Safety in Employment Act 1992 and all associated legislation. The Ministry of Business, Innovation and Employment transferred all health and safety responsibility to WorkSafe New Zealand as of 16 December. For the up to date contact details, please refer to http://www.business.govt.nz/worksafe.

Health and Safety at Work Reform bill

The Ministry of Business, Innovation and Employment released an exposure draft of Parts 1 to 3 of the Health and Safety Reform Bill in early November. The exposure draft reflected the Minister's earlier announcement of new legislation based on the Australian Model Law. As previously highlighted, the key changes include the introduction of a due diligence obligation for directors and senior management, the new definition of "person conducting a business or undertaking", a new consultation requirement for all duty holders working together at one place of work, and a significant increase in penalties.

The complete Bill was initially expected to be introduced in Parliament in December 2013. However, the publication of the Bill has been delayed and is now expected in early 2014. Based on the dates in the exposure draft commencement of the new law, once enacted, will not be until at least April 2015.

Pike River update

On 12 December it was announced that all of charges laid against Peter Whittall, former Pike River CEO, in relation to the Pike River mine tragedy had been dismissed. Mr Whittall had been charged under section 56 of the HSEA as an alleged party to Pike River Coal's failure to take all practicable steps in relation to its employees and contractors (sections 6 and 18). Mr Whittall was also charged under section 19, for what were alleged to be his personal failings to take all practicable steps as an employee. Each charge carried a maximum fine of $250,000.

A memorandum of counsel dated 11 December released to the public sets out the position adopted by Mr Whittall. Many of the 91 briefs of evidence filed by the MBIE were said to contain inadmissible evidence, hearsay and speculative conclusions. Several issues with the investigation process undertaken by MBIE were also highlighted.

In light of the decision not to proceed with the prosecution, a voluntary payment of $110,000 each will be made on behalf of the directors and officers of Pike River Coal Limited (in receivership) to the families of the 19 men who died and the two survivors, totalling $3.41 million.

CASE UPDATES

Ministry of Business, Innovation and Employment v Canadian Pacific Limited DC Auckland CIV:11004505011, 9 December 2013

This case concerns the prosecution of Canadian Pacific Limited for a gas explosion that led to the death of one person and severe injuries to six others in June 2011. CPL was the contractor engaged by Watercare Services to provide civil and repair services to its water and wastewater systems. The explosion occurred after natural gas leaked from a nearby gas pipe into the pipe being worked on by CPL. This was ignited by welding carried out by CPL.

CPL was charged under sections 6 and 50(1)(a) of the HSEA for failing to take all practicable steps to ensure the safety of its employees. A further charge was laid under ss 15 and 50(1)(a) of the HSEA for failing to take all practicable steps to ensure that the actions of its employees did not cause harm to any other person.

CPL argued that, unless there was something to suggest otherwise, they were entitled to assume that the site was a safe working environment. CPL argued that the gas leak and explosion were unforeseeable events such that they could not take steps to avoid the harm, if they did not know it existed. Judge Ronayne disagreed and stated that CPL had a positive duty to seek out hazards. The steps required to discharge this duty were not onerous. CPL had gas monitors available to it on site and did not use them. All that was needed was "some thought or inquiry".

Industry knowledge and practice also suggested that CPL should have been aware of the dangerous atmospheres that can occur in confined workspaces. Judge Ronayne looked to codes of practice, guidelines, standards and workplace manuals in deciding that CPL should be convicted under the HSEA.

The case highlights the importance of an employer's positive obligations under the HSEA. It will not be enough to assume a workplace is safe when there are simple steps that can be taken to identify and then prevent or minimise a recognisable harm.

Taylor Preston Limited v Ministry Of Business, Innovation and Employment [2013] NZCA 537

Taylor Preston Limited was convicted under sections 6 and 50 of the HSEA having failed to take all practicable steps to ensure the safety of its employee while they were cleaning a meat processing machine in 2011. An employee suffered injury and amputation of two of his fingers.  At the time of the incident TP was not aware of the employee's actions, which were in breach of their training. The District Court found that TP failed to supervise its employees and install a safety guard, and therefore was guilty under section 6 of the HSEA.

TP appealed to the High Court on the basis it had not been informed that its supervision arrangements were in issue in the proceedings prior to the District Court's decision. As a result, TP had not produced evidence about whether supervision would have led to the employee's unsafe practices being detected. TP also argued that it was not open to the District Court to conclude that greater supervision would have resulted in observation of the unauthorised activity.

The High Court dismissed TP's appeal on the basis that, although the informant did not particularise the supervision step, this made no difference to the outcome, as TP were found to be liable on two independent bases. TP applied to the High Court for leave to appeal its decision to the Court of Appeal. The High Court dismissed this application.

TP applied for special leave to appeal from the Court of Appeal. The questions of law concerned whether there was a breach of natural justice when the District Court convicted the defendant based on inadequate supervision, having regard to the fact that inadequate supervision had not been alleged by the informant and was not the subject of evidence, and whether the High Court had erred by misconstruing the basis on which the District Court entered a conviction and not reaching its own conclusion as to whether there were proper evidential and legal bases for the conviction.

The Court of Appeal held that the High Court was correct in determining that TP's conviction under section 6 stood on the basis of TP's omission to install a guard, independent of the supervision matter. The application was therefore dismissed as any challenge was confined to the facts rather than a question of law or public importance.

The facts of this case again highlight the proactive steps necessary for an employer to meet its obligations under section 6. Section 6 requires employers to actively search for any potential hazards that may occur in their workplace. This line of cases emphasises that employers should supervise employees performing dangerous tasks to satisfy themselves that employees are performing their tasks in accordance with the employer's instructions and protocols.