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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters

Safeguard Magazine

Legal Viewpoint—When the DoL comes calling…

The department of Labour is becoming more proactive, warn GRANT NICHOLSON and SOPHIE GILMOUR.

Recent prosecutions by the Department of Labour serve as a reminder that many different situations can lead to enforcement actions, and injury or harm are not prerequisites for prosecution under the HSE Act.

While prosecutions without harm have traditionally been rare, numbers have increased steadily in recent years. It is likely this trend will be reinforced by the findings of the Royal Commission on the Pike River Mine Tragedy, and workplaces need to prime themselves for unannounced Department of Labour inspections and audits.

Sleepyhead Manufacturing Company Limited was issued an improvement notice during a DoL inspection regarding an electrical belt conveyor with inadequate guarding. Despite promptly complying with the improvement notice and making the conveyor safe, Sleepyhead was prosecuted for failing to prevent its employees being exposed to the hazardous machine.

The judge commended the DoL for being proactive by taking prosecution action despite there being no injury or harm and emphasised that the HSE Act is intended to be preventative. Sleepyhead was convicted and fined $40,000.

An unannounced inspection of a building demolition in Wellington resulted in Concrete Drilling & Cutting (1992) Limited being charged with failing to protect its employees and contractors from asbestos and a live feed of electricity. At sentencing, the company was ordered to pay a fine of $20,000.

JPNZ Autoparts Limited was recently convicted on four charges under the HSE Act and fined $10,000 for failing to take all practicable steps to ensure employees were not exposed to hazards that had been identified by the DoL in improvement notices but not corrected by JPNZ.

This decision should not be a surprise, as the hazards included stable stacking of vehicle dies and parts, incorrectly loaded forklift and extensions, working on cars on their sides, or lighting, unsafe storage of cylinders, unsafe gas cutting and equipment, seatbelts used as lifting slings for engines, and hygienic conditions.

Another emerging trend is enforcement action against plant signers, manufacturers and suppliers. The DoL is sending message that manufacturers d plant designers’ obligations und in section 18A of the HSE) do not end upon the sale or installation of equipment.

It is not enough to sell, lease, hire or install a machine to a business without taking time to consider how the machine will be used, identifying the hazards that may exist as a result of that use, and considering how the supplier might be able to improve and assist with ensuring the safety of end users.

In 2010, Safeguard forum members discussed an Australian case where a tool design and manufacturing business, Jalor Tools Pty Limited, was prosecuted. The carpenter was struck in the chest by a piece of a router tool that snapped off at speed, and died from his injuries. Jalor had not given the carpentry business or its employees any information about the maximum speed for use (as required by Australian standards) and had also not indicated a safe speed for use.

Similar cases are now being seen here. The DoL prosecuted Realcold Milmech Limited after a meat worker broke his leg while using some of its equipment in a meat processing factory. The department considered that there were a number of practical steps Realcold could have taken as a manufacturer, including undertaking a hazard assessment for the likely use of its machine, ensuring that dangerous aspects of the machine could not operate during maintenance and cleaning, and incorporating mechanisms to stop access to those areas while the machine was operating. Realcold was fined $44,000 and ordered to pay reparations of $9,000 to the victim.

Graham Harris (2000) Limited was charged after an accident involving plant it owned. An employee of Taranaki Civil Construction Limited was compacting earth on a clay stop bank with a “sheep’s foot” roller when it rolled down a bank, crushing his arm.

In addition to prosecuting Taranaki Civil Construction for failing to prevent its employee being harmed, the DoL charged Graham Harris for failing to ensure its equipment was safe. The roller was not fitted with a roll over protection system, and did not have a seatbelt for the driver or reversing mirrors.

At sentencing, the fact that the defect in the machinery was not causative of the accident was not seen as relevant to Graham Harris’ culpability, and the Judge said it was equally important that Graham Harris ensured its equipment was safe as that Taranaki Civil Construction ensured the safety of its employee. Graham Harris was fined $33,000 and ordered to pay reparation of $4,000 to the victim.

For all businesses, the message is clear. The tragedy at Pike River has reminded the DoL that it needs to be proactive and vigilant. Make sure the next business it teaches a lesson isn’t yours.

GRANT NICHOLSON is a partner and SOPHIE GILMOUR is a solicitor in Kensington Swan’s health and safety team.

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