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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



Safeguard Magazine

Legal viewpoint—A serious undertaking

GRANT NICHOLSON and RICHARD MONIGATTI look at the lessons from the first enforceable undertaking under the HSW Act.

On 5 April 2017 WorkSafe New Zealand accepted an enforceable undertaking from the St Kentigern Trust Board following an incident that saw two students at St Kents College in Auckland injured while performing a school play.

The purpose of an enforceable undertaking is to avoid prosecution and instead to commit the organisation which gives the undertaking to activities that will implement system-wide changes to improve its health and safety performance, and also have tangible benefits at an industry and community level.

WorkSafe is clear that the burden must “bite” and include tangible new activities beyond business as usual if a party is to get the benefit of avoiding a conviction. The types of activities that can be included include developing and implementing training programmes in the workplace, presenting to industry groups on lessons learnt from an incident, funding a work placement for a student, or donating to a charity or educational institute.

THE FACTS

St Kents presented a musical production of Sweeney Todd. During one scene there was a simulation of two characters having their throats cut. Things went wrong with the razor blades being used as props, and two student actors received serious lacerations to their throats.

There was much initial media publicity and WorkSafe investigated the incident. It found four breaches of the HSW Act and, internally, the inspectors recommended prosecution. Subsequent discussions with St Kents saw WorkSafe accept an enforceable undertaking instead.

St Kents agreed to:

  • • 
    accept full responsibility for the incident and the harm caused;
  • • 
    make a public statement acknowledging the seriousness of the incident and expressing regret for its occurrence;
  • • 
    commit to a restorative justice process with the student victims and their families, including the payment of reparation;
  • • 
    prepare, publish and implement a health and safety policy for performing arts;
  • • 
    engage a health and safety consultant to develop a training course on H&S in performing arts and provide this training to staff at St Kents and to the heads of music, dance, or drama in other schools throughout New Zealand;
  • • 
    engage a health and safety consultant to develop a training course on effective health and safety management in schools and offer this training to schools across New Zealand;
  • • 
    provide copies of the training materials online for the benefit of community-based theatre groups in New Zealand;
  • • 
    pay WorkSafe’s costs (totalling over $8000).

Overall, St Kents committed to a minimum spend of over $85,000 plus reparations to the students and to cover future costs to be incurred by WorkSafe in monitoring compliance with the enforceable undertaking.

THE LESSONS

WorkSafe has released an Enforceable Undertakings Operational Policy, which gives guidance on when an enforceable undertaking will be appropriate and the process to get an undertaking approved. The St Kents enforceable undertaking shows this Policy in practice.

An enforceable undertaking can be agreed during an investigation (ie before WorkSafe prosecutes). For St Kents, agreeing the enforceable undertaking meant there was no prosecution.

An admission of wrongdoing is mandatory. There is potential for more media publicity after an enforceable undertaking than after prosecution, as enforceable undertakings are more public. St Kents’ failings were publicised twice after the initial incident. First, the enforceable undertaking was made public and its terms (and WorkSafe’s reasons for accepting them) were published on WorkSafe’s website. Secondly, WorkSafe’s investigation report was released to the media under the Official Information Act.

By contrast, prosecutions usually only result in media interest after sentencing, and this interest is usually focused on the financial penalty imposed rather than on the incident as less information is publicly available.

Businesses will need to take steps beyond their own operation for the benefit of the broader industry and community. Some media commentators questioned why St Kents did this, and the answer is because a wider public benefit is required if the punitive effect of conviction is to be avoided.

WHAT ABOUT AUSTRALIA?

A survey of enforceable undertakings in Australia showed the minimum financial commitment required to secure one ranged from A$150,000 to A$450,000, with the average costing around A$250,000. If those numbers become the norm in New Zealand too, the financial commitment made by St Kents will represent good value for the school.

Businesses will need to make commercial decisions about whether the time and costs associated with an enforceable undertaking are sufficiently rewarded by avoiding the consequences of prosecution. The negative publicity faced by St Kents after the media dissected WorkSafe’s decision to accept an enforceable undertaking suggests prosecution will sometimes remain a “lesser evil”.

Grant Nicholson is a partner and Richard Monigatti a solicitor with Kensington Swan.

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