WorkSafe NZ has filed charges against 13 parties after an investigation into the Whakaari/White Island disaster
Shortly after the charges were announced the Canterbury Safety Charter Board Member Matt Jones caught up with DeAnne Brabant, Senior Associate at Morrison Kent Lawyers and WorkSafe Prosecutor for five and a half years, to understand what this could mean for businesses and individuals alike.
Below is a summary of the key takeaways from that discussion.
What we currently know
Forty-seven people were on the active volcano, off the coast of Whakatāne when it erupted on December 9, 2019. Of those, 22 died and 25 others survived but suffered severe injuries.
WorkSafe, New Zealand’s workplace health and safety regulator, launched its investigation into the Whakaari/White Island disaster on December 11 – two days after the tragedy – and has now come to a decision.
Ten companies are facing a maximum fine of $1.5 million for breaches of the Health and Safety at Work Act.
Nine face a Section 36 charge of failing to ensure the health and safety of workers and others, while one other faces a charge under Section 36 or 37 relating to the duty of a person conducting a business or undertaking (PCBU) that controls a workplace.
Three people will also face charges under Section 44 of the Act, which requires directors or individuals with significant influence of a company to exercise due diligence to ensure their companies meet health and safety obligations, and face a maximum fine of $300,000.
A preliminary hearing will be held at Auckland District Court on December 15, 2020, with a second court hearing likely in 2021.
We won’t know the full details for quite some time, however we can assume that the nine PCBUs and the three officers charged have failed to ensure adequate risk management practices, including emergency response planning, leading up to the event.
Three Officers Charged
This is one of the first instances since the Health and Safety at Work Act 2015 (HSWA) was introduced, that the Duty of the Officer is to be tested in court. Under Section 44 The officer must ensure that adequate resource is in place to manage the health and safety risks that the operation exposes to its workers and others. They must also play an active role in ensuring that those resources are effective and adequate – requiring them to have a solid grasp of HSWA and risk management (both internally and from a wider industry perspective).
WorkSafe have clearly determined that these three individuals have been found wanting.
Failing to Ensure The Health and Safety of Workers and Others
Most likely the charges brought against the PCBU under Section 36 of HSWA will relate to others, who in this instance will be the customers brought to the island as well as the individual guides.
WorkSafe’s Independence In This Case
Some have been quite vocal about their concerns regarding WorkSafe’s role leading up to the event and as prosecutor since. DeAnne reminded me that the adventure activities registrar within WorkSafe is quite independent from the investigations department. The inspectorate’s role is to take a snapshot in time of the processes and activities that they observe on the day of their assessment. What decisions PCBUs and individuals choose to take on any given day after the assessment is beyond the scope and responsibility of the inspector.
The Timing of The Charges
Almost exactly a year to the day of the event the charges were announced, for some this may have seemed quite unfair to the families and communities impacted. WorkSafe have just 12months to investigate an incident, due to the full scale of this event and the massive resource that the regulator has invested, it is quite extraordinary that they have managed to achieve it within the time frame. They had the option to request an extension of time however chose to commit to the 12month window.
What to Expect Over The Next Few Months
Initially the charged will be provided with a copy of the summary of facts (including documentation, maps and details specific to their case). The summary of facts will then enable the accused to make an informed decision on how they should plea. If they plead not guilty, they will then have full disclosure of all the investigation material to build their case. It is safe to assume that we can’t expect any outcomes from the prosecution for several months at least. A case of this scale could take us into 2023 or beyond (the trial itself may not even begin until 2022).
What PCBUs and Officers Can do to Reduce Their Risk
It starts at the top. The officers need to have a firm grasp of their duties under HSWA and know the risks associated with their operations. They must also ensure that the PCBU has an effective safe system of work. A good place to start is to ask questions such as:
- What are the risks?
- How are they controlled?
- What are the plans for forceable emergencies?
- How do we check the control effectiveness?
- How do we communicate across the organisation?
- How, as an Officer can I verify that the system is fit for purpose?
Professional external advice is also key. Ensuring that your professional consultant is recognised on the Health and Safety Association of New Zealand (HASANZ) register, has experience in your industry and has a demonstrable history of quality service is essential.
Being an active member of the Canterbury Safety Charter is also an important step to take. It keeps you and your business up to date with the latest developments, gives you access to subject matter experts and face-to-face peer support at our regular public events.
The full interview with DeAnne can be found on YouTube here: https://youtu.be/1caVbwah8qA
And the podcast version on Spotify here: https://open.spotify.com/show/3YyRhS1wT4KTdIc7qMhopW?si=lONO-waGSv-vjwc7DFOWSg
Charter Board Member