Keeping Work Safe
Case Study One - What happens after a serious incident: an example of our enforcement response
Alistair, a forestry health and safety inspector, was phoned at work by the police to advise that they had received a 111 call from a logging operation in a plantation in the ranges nearby. Alistair, having determined that it was a workplace health and safety incident, said he would be there within the hour and reminded the police that the scene was not to be disturbed. He arranged for another inspector, Rex, to meet him there and left for the scene immediately.
The incident scene
Alistair arrived at the site office in the forest and was directed to the injury scene along a bush track. He arrived to find the body of a middle-aged logger, Lester, covered by a sheet in the cab of an excavator he had been operating. Police and ambulance personnel were still present.
After introductions, Alistair photographed the scene. He also recorded the names and roles of all those present, the owners of the plant, and the names of the businesses involved in the workplace. Alistair established that the site was being operated by logging contractors, EZ Logging Ltd. The site was, as were most of EZ Logging Ltd sites, contracted to the forestry company Radiata Corporation. The excavator involved in the incident was on long-term hire to EZ Logging Ltd from Bush-Quip Hire Ltd, a local heavy equipment hire company.
Alistair then gave permission for the removal of Lester’s body, but asked that the scene remain otherwise undisturbed. Following this, Alistair and Rex recorded detail and drew diagrams of the incident scene.
Alistair took an initial statement from the owner (director)/operator of EZ Logging Ltd, Rawiri, and Paul – a fellow employee of Lester’s and eyewitness to the incident.
It was clear from the scene, and from Paul’s account, that Lester was killed after a tree branch smashed through the side window of the excavator and impaled him. He had been using the excavator to move felled logs when he dislodged a “cut-up” tree that fell on, and into, the cab.
The excavator had a rollover protective structure and cabin intrusion bars fitted to the front of the machine, but it did not have side intrusion bars fitted.
Although EZ Logging Ltd was a well-established logging firm, Rawiri, as a director, claimed he was unaware side intrusion protection was required for the safe operation of this particular vehicle. This was despite it being a widely accepted practice among forestry companies using this type of machinery.
Alistair’s investigation involved interviewing and taking statements from all participants in the incident that led to Lester’s death and gathering background information from technical experts.
This investigation found that six months prior to the incident Radiata Corporation audited its contractor’s health and safety performance, and through this became aware of the hired excavator. Radiata Corporation made it known to Rawiri they were unhappy about the excavator’s safety; however, Radiata Corporation’s senior managers decided to turn a blind eye to the potential safety issue because EZ Logging Ltd was a preferred and reliable contractor.
Alistair’s investigation concluded that fitting intrusion bars to the sides of the excavator was a practicable and reasonable step and that EZ Logging Ltd should have known of this safety solution. The investigation also showed that in Rawiri’s case, as a director, he was aware of this safety solution and did not act on it.
The investigation also concluded that Radiata Corporation should have invoked contractual requirements for their contractor to operate in a safe manner.
Accordingly, the Department of Labour took the following enforcement response:
- Issued a Prohibition Notice to stop the use of the excavator for forestry operations (while issuing an alert to the industry as a reminder of the need to fit side intrusion protection);
- Prosecuted EZ Logging Ltd and Radiata Corporation;
- Prosecuted Rawiri, as a director of EZ Logging Ltd, because of his involvement in the decision not to fit the intrusion bars;
- Prosecuted Bush-Quip Hire Ltd for failing to ensure the plant it hired out was safe for its intended purpose.
The Department of Labour's enforcement tools
The Department has a number of tools available to enforce compliance with the HSE Act. We use our professional judgement and the details of each situation to determine which option is appropriate.
Written warnings are issued where there is non-compliance with the HSE Act identified by an inspector and where the non-compliance is put right to the satisfaction of the inspector before they leave the place of work. Written warnings are non-statutory notices but serve an evidential purpose as "prior warning" for issuing an infringement notice at a later date.
Improvement notices are issued where an inspector has identified non-compliance but where the non-compliance is not remedied prior to the inspector leaving the place of work.
As with written warnings, inspectors will discuss with the relevant duty-holder(s) how they intend to remedy the non-compliance and the amount of time it will take to become compliant. The inspector will use this information to complete the improvement notice. As with written warnings, an improvement notice serves as "prior warning" for subsequently issuing an infringement notice. It is important to note that the inspector does not need the duty-holder's agreement to the specified timeframes in the notice.
Improvement notices may contain advice on possible remedial actions but it is entirely over to the duty-holder to decide how they will become compliant. For example, an improvement notice may refer to the need for a guard to be placed on a machine. However, the firm may simply cease using the machine altogether. This eliminates the non-compliance but is different to the suggested remedial action.
Inspectors will follow up all improvement notices to ensure compliance is achieved within the specified timeframes. Unless there are extenuating circumstances explaining why compliance has not occurred within the specified timeframes, more serious enforcement action must be applied.
An inspector will issue a prohibition notice if they believe that a failure to comply with a provision of the HSE Act is likely to cause serious harm to any person.
A prohibition notice must specify the specific hazard to which it relates and the inspector's reasons for believing it is likely to cause serious harm. A prohibition notice may specify steps that could be taken to eliminate the hazard concerned or minimise the likelihood that the hazard will be a source of harm.
Prohibition notices can be issued in addition to other enforcement actions in order to ensure serious harm does not occur in the meantime (e.g. while a prosecution is being undertaken).
A prohibition notice may serve as "prior warning" for later issuing an infringement notice.
An inspector may issue an infringement notice where they have reasonable grounds to believe the duty-holder is committing, or has committed, an infringement offence and the person has had prior warning of the infringement offence and an enforcement action has not been taken against the same defendant in respect of the same matter by the inspector or any other person.
The infringement notice must specify an infringement fee which, for most offences, is no less than $100 and up to a maximum of $3,000.
The kinds of factors the inspector will take into account when setting an appropriate fee are:
- whether or not harm resulted from the offence; and
- if harm resulted from the offence, the extent of the harm; and
- what potential harm could have resulted from the offence; and
- in the case of an employer, principal, or contractor, the size of the business of the employer, principal, or contractor; and
- the financial circumstances of the duty-holder; and
- the safety record of the duty-holder (which includes but is not limited to "prior warning" notices).
There is a specific infringement fee of no less than $800 up to a maximum of $4,000 for employers who fail to have systems for identifying hazards and systems for regularly assessing hazards to determine whether they are or are not significant hazards.
In setting an infringement fee for this type of infringement offence, the inspector must consider:
- the size of the business of the employer; and
- the financial circumstances of the employer; and
- the safety record of the employer (which includes but is not limited to the prior warnings).
Infringement notices are inappropriate where there has been an incident involving a fatality and will generally not be used where there has been serious harm or multiple serious instances of non-compliance with the HSE Act. In these situations, prosecution is more likely to be the appropriate enforcement response.
Revoking certificates of competence
We issue a range of certificates of competence and other regulatory permissions. We will revoke certificates of competence where we believe it is no longer safe for the certificate to remain in place.
We may suspend or cancel a certificate where:
- the holder of the certificate has been sufficiently negligent to endanger life or is otherwise unfit to continue to hold a certificate; or
- we believe a certificate holder misled us when applying for the certification or does not meet the necessary requirements.
Prosecutions will be taken in the most serious situations. That is, where the most serious instances of non-compliance have occurred or where non-compliance is flagrant or wilful, or the harm or potential harm is severe.
However, the decision to prosecute is also influenced by factors such as whether there is sufficient evidence to provide a realistic prospect of conviction and/or there is a significant public interest in prosecution.
We provide guidance to judges on sentencing. We will structure our advice on sentencing based on our own assessments of the case and will be strongly influenced by our enforcement principles and our objective of motivating sustained compliance.
Any interested person other than an inspector may commence a prosecution where:
- an inspector or another person has not taken enforcement action against any possible defendant in respect of the same matter; and
- an enforcement authority has not taken prosecution action under any other Act against any possible defendant in respect of the same incident, situation, or set of circumstances (unless the person has leave of the Court); and
- the interested person has registered an interest with the Secretary of Labour (the Chief Executive of the Department of Labour) and has subsequently received notification from the Secretary that an inspector has not and will not take enforcement action against any possible defendant in respect of the same matter.
We believe publicising details of cases can strongly influence duty-holders. Accordingly, where we have laid charges or where an outcome of a prosecution is known, we will consider whether there is a benefit in proactively releasing details of cases. We will take care to avoid prejudicing court processes.