Thanks to an experienced PR firm and smart lawyering, Zespri has avoided prosecution and maximum penalties of $1.5 million under the Health and Safety at Work Act 2015. After a tragic quad bike death, the organisation has voluntarily paid $250,000 towards improved safety measures for orchard workers and $25,000 to the workers family.
Three other parties have been charged under the Act for the death that occurred in May 2016 on a Tauranga orchard. The contracting company, grower and owner of the pack house have yet to have their day in court, and this will be one of WorksafeNZ’s first multi-party prosecution under the new legislation.
WHAT HAPPENED?
A worker was using a quad bike to collect kiwifruit sample from an orchard. Zespri had contracted contracted AgFirst to carry out the sampling across a number of orchards. The organisation had failed to ensure the following:
- Orchard maps which recorded potential hazards were provided to the worker
- To ensure the workers received an induction at each orchard site pointing out potential hazards including steep terrain
Zespri is now funding a number of safety measures including:
- Health and safety reviews of contractors
- Industry education
- Industry-wide research
- Sponsoring and promoting the Horticultural Health and Safety Forum
- Establishing a tertiary scholarship for accredited health and safety studies
- Offered to fund a restorative justice meeting for the worker’s family if they wish to participate
WHAT IS AN ENFORCEABLE UNDERTAKING?
HSAW 2015: s 123 Regulator May Accept and Enforceable Undertaking An “enforceable undertaking” – an alternative to a prosecution. The duty holder, who has breached a duty under the Act (in this case Zespri) enters voluntarily into a legally binding agreement, instead of being prosecuted. The actions required, can be anything from:
- Supporting progressively higher standards of work health and safety for the benefit of the workers and their workplace, wider industry or sector, and community
- Remedying the harm caused to any victim(s), and
- Supporting WorksafeNZ in meeting their strategic priorities ( See WorksafeNZ Statement of Intent 2016-2020).
NB This won’t fly for a breach under s 47 Offence of reckless conduct in respect of duty and should not be considered an ‘easy way out’ the application process is rigorous and if the ‘actions’ taken are not acceptable it’s off to court you will go.
WHAT DID WORKSAFENZ SAY?
Simon Humphries, WorkSafeNZ’S manager technical programmes and support, said “An enforceable undertaking is not usually an accepted alternative to prosecution where an alleged contravention has resulted in a fatality. In this case, the failures alleged of Zespri were not directly causative of the worker’s death.”
WHAT CAN YOU DO TO PREVENT A QUAD BIKE DEATH OR ACCIDENT?
Five simple steps will go a long way to keeping quad bike and vehicle drivers safe:
- Check that all your work vehicles are fit for purpose, registered, warranted and maintained
- Check that all vehicle drivers have the appropriate license, endorsements and training
- A vehicle is ‘a place of work’, so everyone (employee or contractor) needs to get some sort of an induction before heading out into a hazardous area and is wearing the correct protective equipment
- Check that driver’s ability is not impaired by drugs, alcohol or fatigue
- Get the driver to text to say they are safe home
I’d be interested to know if anyone has been involved in a quad bike death or serious accident and what you are doing to prevent it.
Have a safe and productive week,