June 2019

The much heralded Health and Safety at Work Act 2015 has been in force for several years now. When it was enacted it was claimed that it would bring in a new era enhancing the safety of New Zealand’s workers. It was often difficult to see how the new legislation differed significantly from the old law. There is now a steady stream of cases decided under the new legislation, and it is arguable whether these cases have taken the law in a fundamentally new direction. The most significant impact has been the substantial increase in fine levels. In some cases this has come up against the reality that not all small traders can afford to pay a fine at the new level, and therefore reduced fines have been imposed. However for those with the ability to pay, the fines are now truly significant. Businesses cannot insure against fines. Another development has been the increased use of improvement notices and enforceable undertakings as alternatives to prosecution.

For those concerned that the new law would place unreasonable burdens on employers, they may find some reassurance from the practical approach taken by the Court in a recent decision involving the horticulture sector.

This decision dealt with the overlapping obligations of different participants in the industry. It arose from an accident on a kiwifruit farm. The export authority, Zespri required an independent contractor to test fruit before harvest. For logistical reasons the packhouses contracted the testing contractor. The contractor’s employees occasionally used a quad bike, and were trained in its use. The system was intended to minimise contact between the growers and the contractor’s employees to maintain the independence of the sampling. In the course of carrying out sampling, the contractor’s employees left the kiwifruit blocks and drove up a slope covered in long grass. There was no need for the employee to go up the slope during the sampling process. Tragically the quad bike rolled and the employee died as a result.

All parties involved were prosecuted. The contractor pleaded guilty, and an arrangement was agreed with Zespri. The packhouse and grower defended the charges against them. WorkSafe claimed that the grower was required to identify potential hazards across the entire farm, not just the areas where the sampling would be taking place, and then take steps to reduce those risks through (for example) signage or creating no-go areas. The grower pointed out the practical difficulties this would cause. It did not operate quad bikes, and its management had no expertise in their use. The contractor had the expertise in operation of quad bikes. The Court agreed with the grower and the packhouse that WorkSafe’s stance would place impractical burdens on them and they were both found not guilty.

It has to be stressed that each of these situations depend very much on their own facts, and the facts were unusual here in that the whole arrangement was predicated on minimising the contact between the growers and the sampling contractor, therefore the growers had very little control over the contractor’s staff. However, it does illustrate that the courts are prepared to draw a line on liability and take into account the realities of these multi-party arrangements.