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There have been a significant number of changes since the Election last year, and the National Government are somewhat determined to get through the policies they campaigned on and then negotiated through the coalition agreement with Act and New Zealand First.
In the health and safety area, we have seen little indication of what may be coming, other than the Minister for Workplace Relations (Brook van Velden) making a series of speeches around her portfolios. In one of those speeches, the Minister questioned whether the almost 10-year-old Health and Safety at Work Act is fit for purpose, given that many businesses reported to her that they did not understand what their obligations actually are. Public consultation will be sought to determine how risk and costs should be allocated under the new regime, what’s working and what should change going forward.
This statement is a long way from any specific policy, but it does demonstrate some intent to make changes at some stage. What the public consultation process might look like, and who will be asked to provide submissions will be interesting.
I find it hard to comprehend that any organisation in 2024 would not ‘understand’ their obligations. These have been spelt out time and time again, and there is a plethora of organisations and individuals providing health and safety advice and services to ensure businesses comply with the Health and Safety at Work Act 2015. The more worrying trend is that accident and injury rates remain high compared to our contemporaries. To assign this trend to a lack of understanding I think shows some naivety.
Some confusion may instead arise out of inconsistent court and WorkSafe prosecutions and actions, including the Whakaari/White Island judgements. This has been further clouded by a recent court case involving a health and safety breach, and the Prosecution arguing for the forfeiture of assets under the ‘Proceeds of Crime’ provision. Usually this occurs for illicit drug manufacturers and suppliers, whose Lamborghini’s and gold-plated Harley Davison’s are seized by the crown along with a fair bit of media fanfare. These tend to primarily be criminal enterprises, and not commercial businesses.
In this case, the Crown is seeking $11 million of unlawfully earned profit because of health and safety noncompliance before and after a worker died at the business. In 2017, Ron Salter and Salter Cartage plead guilty to numerous health and safety breaches and were ordered to pay fines and reparations of approximately $300,000. Salter was also sentenced to four and a half months home detention. The Judge commented that it was “hard to imagine a more flagrant breach of a prohibition notice than has occurred in this case”.
This proceeds of crime case will be heard by the High Court in October, and if the Crown is successful, it could have far-reaching implications for health and safety. If a business was able to ‘profit’ from not meeting their obligations under the act, then that profit could potentially be seized under the ‘proceeds of Crime’ provisions.
In addition, any company investigated for health and safety breachers could also be liable for the profit on any job where these breaches occurred.
You do not need to be a legal expert to imagine the quagmire that this could potentially create. Will such a ruling force organisation’s to better understand their obligations and improve their health and safety systems and culture? Or will it lead to a legal mine field, where some organisations are prosecuted, and others are not, and the majority of us are left scratching our heads.
The big picture issue here is whether the carrot is better than the stick in affecting change. I think the feeling within the industry is that the carrot is not sufficient on its own, and that the use of the stick has been reducing over time. However, this action is by far the largest stick ever wielded by the courts, with the most far-reaching consequences for health and safety compliance going forward. Watch this space.
Paul Duggan, General Manager
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