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Health and Safety has been in the news media a lot lately. The big story is the sentencing of the companies who either plead guilty or were found guilty of health and safety breaches on Whakaari/White Island, where 22 people died and 25 others seriously injured. The victims have been given the opportunity to present their story to the court before sentencing is passed, and this should have some impact on the fines and reparations that are ordered by the court. The previous not guilty verdicts of the individual directors have not rated much of a mention. As always, the essential questions will be these.
- Who has actually been held to account for the events?
- What effect will it have on them?
- What changes will result?
The parallel incident in New Zealand’s history was Pike River, where 29 miners lost their lives. It could be argued that no individual has ever been held to account for this. Pike River Coal Ltd was found guilty of health and safety breaches and ordered to pay $110,000 to each victim’s families and fined $760,000. However, the company was in receivership and could only afford to pay $5,000 to each family. Company Director Peter Whittall was initially charged, but then the charges were dropped after the company directors and officers agreed to voluntarily pay S3.14 million in reparations. This arrangement was later found to be unlawful.
Pike River did result in significant changes to the health and safety landscape in New Zealand, with the establishment of WorkSafe and the Health and Safety at Work Act of 2015. This defined PCBU’s, held that everyone has health and safety responsibilities, that organisation’s cannot contract out of those responsibilities, and that directors can be held personally liable for health and safety breaches.
These tenets are now being tested, and the courts’ decisions will be debated for some time.
The other media stories concerned two serious incidents of collapsed structures on building sites. The first was the sentencing of two construction companies following the death of an apprentice on a Tauranga site in 2022, when a 350kg timber framing fell onto him while being manually installed and a support brace removed. Inspire Building was fined $30,000, a small amount due to financial incapacity, while Thorne Group was fined $210,000. Reparations of $130,000 were ordered to be paid to the apprentice’s family, and $15,072 to his co-worker – a fellow apprentice.
The second was a near miss when a large scaffolding structure on an Auckland construction site collapsed onto an adjacent roadway, with damage to two passing cars. Luckily no one was on the scaffold at the time.
On inspection, there appears to be two concerning trends. The first is that it is too easy for companies and directors to reduce or avoid paying fines, or that the impact of the fines are significantly below the impact on the victims and their families. In terms of Whakaari, WorkSafe Prosecutor Kristy McDonald has asked in her submission that in passing sentence the courts impose penalties and fines appropriate to the level of offending. However, Whakaari Management Limited, which is the company that owns the island, said it has no money or other assets and does not offer any money by way of reparation. “Its role was merely a corporate trustee of the Whakaari Management Trust, a family trust.”
The second trend is that the fines being imposed by the courts do not seem to be acting as enough of a deterrent to cause significant changes in industry practices or outcomes. The fines deal with the symptoms of health and safety incidents but do not tackle the root causes.
These causes have been spelt out in the “State of a Thriving Nation Report”, prepared by the Business Leaders Health and Safety Forum. The interesting thing here is that the report on New Zealand’s poor health and safety record was written by an economist, not a health and safety specialist. To me this suggests that the health and safety industry may be too busy with the trees to see the forests, and that possibly money is the root of all evil.
The report concluded that the following were needed for a sustained reduction in accidents and injuries in New Zealand. Firstly, businesses needed to understand that investing in health and safety is a core business function, not an add on. Secondly, the regulator must ensure that poor performers are consistently held to account. Thirdly, the Government must purposefully play a role as significant employer, policy setter, and procurer.
I will let the reader decide on a score out of three.
Paul Duggan, General Manager
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