A wide range of options are available to WorkSafe New Zealand | Mahi Haumaru Aotearoa (WorkSafe) (as well as other health and safety regulators like Maritime New Zealand or the Civil Aviation Authority), to use in a particular case, with prosecution only one tool available.
There is scope for more creative solutions to (alleged) non-compliance that may lead to greater improvements in health and safety outcomes than would follow from prosecution.
If you are involved in a health and safety investigation, it is helpful to understand the range of enforcement measures available, and, if it comes to it, the sentencing options available after conviction. The following options may provide a better outcome for everyone, including any victims of an accident.
Many investigations conclude with the issue of a formal notice, such as an improvement notice (requiring the duty holder to improve a situation) or a prohibition notice (prohibiting certain activities from continuing).
While notices may be a prelude to prosecution, they are a common intervention to address an immediate area of concern or where the regulator considers prosecution is not warranted. WorkSafe has issued over 15,000 improvement notices and more than 5,000 prohibition notices since the HSWA came into force.
WorkSafe can also provide directive advice, either in writing or verbally. These are used to deal with minor issues or risks where simple, short-term actions can be taken to remedy the non-compliance.
In deciding whether to issue a statutory notice, or to provide non-statutory directive advice, WorkSafe will consider (among other things):
- the organisation's record or non-compliance history;
- the level of harm (if an incident has occurred),
- whether a duty holder sought an economic advantage through non-compliance, and
- whether vulnerable people were put at risk.
An enforceable undertaking (EU) is an agreement between the relevant regulator and a duty holder that is (generally) entered as an alternative to prosecution. A duty holder will typically indicate its interest in applying for an EU and be provided with an indication of whether it is eligible to apply.
Typically, the EU outlines how the health and safety contravention will be addressed and what actions are proposed to improve health and safety. An EU can better direct resources to improving health and safety rather than to the payment of fines and the cost of legal proceedings.
The onus is on the duty holder to develop a programme of activities. If the regulator is satisfied that an EU is appropriate, the EU is legally enforceable and, if it is breached, charges may be brought in relation to the original offending and for the breach of the EU itself.
While EUs are generally negotiated with the regulator – WorkSafe has accepted more than 30 and Maritime New Zealand has accepted several – they may also be ordered by the court.
A court-ordered Enforceable undertaking
There has so far been only one reported court-ordered EU. That case involved an improperly adjusted nose guard on a draw saw, resulting in the partial amputation of a student's finger. Otago Polytechnic (OP) sought WorkSafe's agreement to an EU early in the process, which was declined. OP pleaded guilty and proposed a court-ordered EU which included, among other requirements, that OP would design and deliver, free of charge, a training programme to educate construction workers about health and safety requirements.
In accepting the undertaking, the court held that there does not need to be "an exceptional set of circumstances" to justify a court ordered EU. It is a tool to satisfy the same principles and purposes of sentencing. Here, the EU would hold OP accountable, denounce the contravention at a higher level than a fine, and respect the victim's wishes.
The court also noted that an EU would satisfy the purposes of the HSWA better than a fine as the money would be used to promote and mitigate risks to health and safety in "the significant amount of building work that is planned to take place in Dunedin in the next few years."
Compliance with the EU is important, and care needs to be taken in defining the obligations. This is well illustrated by the OP case. Nine months after the EU was imposed, WorkSafe and OP returned to the District Court because OP sought to consult with a professional who was an expert in his field but was not certified to the level specified in the EU. As reported, the court confirmed that the EU must be followed to the letter.
Health and safety project orders
Another sentencing option is an order requiring a duty holder to undertake a specified project "for the general improvement of work health and safety". This power has been used where the fine would overwhelm a business, or where the order would provide greater protection to the community. An EU may require various projects and initiatives, whereas a project order relates to a specific project.
An example of a project order is where the defendant company agreed to prepare and present a presentation to a technology institute about its experience relating to the incident (disabled interlock system leading to injury) and steps taken to ensure that it never happens again.
Getting it right
Health and safety doesn't stand still and prevention is always better than even the most creative post-accident remediation programme. Please get in touch with one of our experts if you have questions about health and safety.