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WorkSafe case could set precedent

A health and safety consultant has described a recent Tauranga District Court ruling on a WorkSafe prosecution under the new Health and Safety at Work 2015 act as likely to have a significant impact upon future prosecutions bought by the authority.

Matamata-based Geoff Brokenshire said that statement was a crucial one and put greater emphasis upon workers to hold a level of personal responsibility for their actions while on the job.

WorkSafe undertook last year to prosecute four related parties in the employment of a worker tasked with taking kiwifruit samples from orchards.

In May 2016 the worker was killed while on a sampling run, flipping her quad bike on an orchard near Katikati owned by Athenberry Holdings. The rider was found on a rough part of the orchard, away from the designated mown pathways she had been trained to stay on. The orchard was part of an extensive 160 ha property.

The four companies associated with the operation were all collectively charged as persons conducting a business or undertaking (PCBU) under the Act, and therefore potentially jointly responsible for her death.

All the companies were based in Bay of Plenty. They were Zespri, AgFirst, Hume pack house and Athenberry orchardists.

Geoff Brokenshire: Some personal responsibility to be acknowledged around employee actions. Photo/Supplied.

At the time the worker was employed by consulting firm AgFirst, tasked with sampling kiwifruit to establish that it met Zespri’s industry standards. AgFirst had been contracted by a local pack house, Hume, to take the samples before harvest from Athenberry’s orchard.

However, Athenberry and Hume managed to successfully defend themselves against the charges, with the judge stating he was satisfied the evidence established both these defendants had adequate defences to the charges laid against them.

The worker’s employer AgFirst pleaded guilty to failures of primary duty of care, and sentencing is still outstanding.

Zespri had already earlier avoided charges by agreeing to an “enforceable undertaking” as a penalty under the new act as a PCBU in the incident.

The charges were laid under Section 36 of the new act, and related to their primary duty of care as an employer or related party.

Previous case law has found an employer should anticipate that not all employees will comply with employers’ instructions. However, the court determined the quad rider was not an employee, and neither Hume nor Athenberry had influence over her behaviour.

The court stated: “It is not practicable for a farmer or orchardist to identify potential hazards and assess risks predicated on contractor misbehaviour or incompetence that is not reasonably foreseeable.”

Brokenshire said it had been a landmark case.

“The court is recognising there is some personal responsibility to be acknowledged around employee actions,” he said.

Brokenshire pointed to the new legislation’s Section 45 on the duty of workers, where there is an expectation for them to take “reasonable care” of their own health and safety actions and omissions.

He believed the judge had “given a nod” to that section in this case.

A WorkSafe spokesperson said the Section 45 duty placed on workers applied in every workplace at all times and this duty was considered in this case, as it was in every investigation undertaken by WorkSafe.

Zespri’s decision to agree to an enforceable undertaking meant rather than facing prosecution and court action, the kiwifruit exporting entity instead undertook to contribute $250,000 to improved safety initiatives in the industry. This has included external health and safety audits, more health and safety key performance indicators and a scholarship for health and safety tertiary studies.

Brokenshire said Zespri’s move to avoid court prosecution has provided industry with some guidance, and Zespri was the right company to do so.

Zespri spokesman Oliver Broad said Zespri entered into the enforceable undertaking process because it allowed genuine changes to be made to health and safety practices.

The worker’s employer AgFirst pleaded guilty to failures of primary duty of care, and sentencing is still outstanding.

A WorkSafe spokesperson said the decision has raised questions for the authority about the application of Section 33, where more than one person may have the same duty under the Act, and section 34 the duty to consult between all persons conducting a business or undertaking (PCBU).

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