Fletcher Construction’s successful enforceable undertaking centres on a collapsed temporary retaining wall and a severely injured worker.
What happened?
- In May 2016, the worker was standing in a 2m deep hole shifting temporary concrete blocks. The temporary concrete blocks fell over and the worker ended up with multiple fractures to his right leg and had to take eight months of work
- WorksafeNZ accepted the enforceable undertaking as an alternative to prosecuting Fletcher Construction because they failed to ensure the health and safety of a worker.
- Michele Kernahan, CEO of Fletcher Construction, said: “the incident was deeply regrettable and disappointing that the company let the victim down by not fully recognising the risks on that particular site.”
What is an enforceable undertaking (EU)?
WorksafeNZ can accept an enforceable undertaking in connection with a matter relating to a contravention or an alleged contravention Under s 123 of the Health and Safety at Work Act 2015 the regulator. The squirrely legal bit behind this is that the EU does not constitute an admission of guilt and if the requirements under the EU are not completed you can still get prosecuted.
The WorksafeNZ website explains that an EU is expected to:
- Support progressively higher standards of work health and safety for the benefit of the workers and/or work and/or workplace wider industry or sector, and community;
- Remedy the harm caused to any victim(s), and
- Support us to meet our strategic priorities.
Two points to note are:
- WorksafeNZ will still complete a full investigation (which could take up to 12 months)
- An EU is not supposed to be used in relation to a workplace fatality, although Zespri succeeded as the national body was remote from the chain of causation.
Simon Humphries, Worksafe deputy GM, Investigations and Specialist services, said in relation to the Fletcher incident that:
“This is not an opportunity for Fletcher Construction to escape their corporate responsibility for the health and safety of a worker. It’s a legally binding agreement that requires them to complete a number of commitments, which will benefit health and safety in the wider construction industry.”
What Exactly did Fletchers Undertake?
There has been a huge amount of work around reviewing the risks associated with temporary works and Fletcher Construction committed to the following initiatives:
- Providing amends in the form of payment to the victim, professional development opportunities in addition to ACC top-up.
- Developing a new temporary works procedure for workers, including visual aids and training.
- Arranging for an external consultant to audit the use of the temporary works procedure to verify ongoing effectiveness.
- Assisting in the development of programmes with Site Safe regarding temporary works.
- Presenting to Civil Contractors New Zealand conference focusing on safety in temporary works design.
- Donating to the New Zealand Institute of Safety Management.
- Establishing a health and safety forum with labour-hire companies.
- Publishing an article about health and safety and temporary works in Safeguard.
- Developing a health and safety module for Mahurangi College.
- Providing work experience for Mahurangi College students.
- Running a community open day
- Donating safety equipment to a local school.
What are my thoughts on all this?
The cynic in me thinks that this is great for large organisations that have the time and financial resources to throw at an EU. I’ve heard rumours that the PR and Communications invoice for Zespri’s EU was greater than their legal bill, and I suspect that Fletchers will have similar bills to pay and tickets to clip.
The issue of large entities being able to dodge successful prosecution because they can pay for expensive lawyers was discussed at length in Safeguards latest article on Crime and punishment. In reality, most of my clients are unlikely to have the resources or wear with all to complete the EU process and it is questionable as to how much insurance will help.
However, I am a pragmatist at heart. I am a still recovering law school survivor, who never practised because I believe the system is inherently flawed. I also strongly believe in the concept of restorative justice and reconciling a wrong with the community at large.
Yes, in a perfect world an organisation like Fletchers would have had robust systems in place to prevent this sort of thing happening. Yet, this hasn’t stopped their worker being injured and the discovery that there is a gap in industry standards.
By completing the EU, Fletchers have:
- Given additional support to the worker and their family
- Sorted out their internal temporary wall processes
- Contributed to the local school and careers guidance programme
- Lead an industry-wide initiative to develop better standards and training for temporary earthworks.
I’d be interested to know what everyone else thinks about how an enforceable undertaking could work with their organisation. As always either leave a comment, email sarah@employmenow.co.nz or call 0272 007 680.
For full details of the story read: Fletcher Construction failings revealed following worker injury www.stuff.co.nz or The Fletcher Construction Company Limited: WorksafeNZ.