This article discusses the repercussions that could arise in the event an entity fails to discharge its health and safety obligations.
Companies and organisations who disregard their obligations under the Health and Safety at Work Act 2015 are a ticking time bomb. With an average of 6.8 fatalities per month (between the period of July 2018 – June 2019); and a total of 29,742 workplace injuries resulting in more than a week away from work, in 2018, it is clear that health and safety is no joke.
The Health and Safety at Work Act 2015 (HASWA) creates various offences covering different circumstances. Offending under HASWA is a criminal offence and prosecutions may be brought by WorkSafe New Zealand if their investigation yields sufficient evidence of a breach. It is then for a Judge to consider guilt and/or impose a sentence on the offender. Sentences include fines, reparation orders, imprisonment and orders for action such as undertaking training or giving an enforceable undertaking of some sort.
Recent cases confirm that Courts are sending a clear message about the importance of taking health and safety seriously. An example of this is in Niagara Sawmilling Company Limited v WorkSafe New Zealand. In this case a fine of $267,750 was imposed where an employee suffered lacerations to three of his fingers due to the safety systems being ineffective. In addition to the fine, the employer also had to pay a further amount of $7,000 for reparation and $1,100 for consequential loss to the victim.
A further example is Agricentre South Limited v Worksafe. In this case, the Agricentre supplied a second-hand tractor for a trial on a farm. The tractor lost its brake function throwing the victim off and running over her leg, resulting in numerous injuries. Due to Agricentre’s failure to sufficiently maintain the tractor, Agricentre was hit with a $239,062.50 fine. It was also ordered to pay the victim a $60,000 emotional harm payment and a $43,459.75 consequential loss payment.
Any person or organisation covered by HASWA that fails to comply with a duty where such failure exposes a person to a risk of death or serious injury/illness can be liable for a maximum penalty of:
- A fine not exceeding $150,000 for an individual who is not a person conducting a business or undertaking (PCBU) or an officer of a PCBU;
- A fine not exceeding $300,000 for an individual who is a PCBU or an officer of a PCBU; and
- A fine not exceeding $1.5 million for any other person/companies.
In the event that the breach has involved reckless conduct from the offender the maximum penalty increases to:
- A term of imprisonment not exceeding 5 years or a fine not exceeding $300,000 (or both) for an individual who is not a person conducting a business or undertaking (PCBU) or an officer of a PCBU;
- A term of imprisonment not exceeding 5 years or a fine not exceeding $600,000 (or both) for an individual who is a PCBU or an officer of a PCBU; and
- A fine not exceeding $3 million for any other person/companies.
Health and safety is serious
We strongly recommend that all employers have robust health and safety policies and procedures in place to protect their employees and anyone else affected by their activities. The Harkness Henry employment team can provide advice and draft robust workplace policies to assist an employer in discharging its obligations to provide a safe and healthy workplace (and prevent a WorkSafe prosecution). The Harkness Henry litigation team is also ready to assist in the event that an adverse health and safety situation does occur.
 WorkSafe “Data – Fatalities” < https://data.worksafe.govt.nz/graph/detail/fatalities>
 WorkSafe “Injuries resulting in more than a week away from work” < https://data.worksafe.govt.nz/graph/summary/injuries_week_away>
 Niagara Sawmilling Company v Worksafe  NZHC 2190.
 Agricentre South Ltd v Worksafe  NZHC 2070.
 Health and Safety at Work Act 2015, s 48(2)(a) – (c).
 Section 47(3)(a) – (c).
This article is current as at the date of publication and is only intended to provide general comments about the law. Harkness Henry accepts no responsibility for reliance by any person or organisation on the content of the article. Please contact the author of the article if you require specific advice about how the law applies to you.
Published: 29 October 2019