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New law the answer?

New law the answer?
Article Type:
News
Publication Date:
2012-04-05
Jurisdiction:
New Zealand

A new corporate manslaughter law in the wake of the Pike River disaster would not resolve the issues that cause workplace accidents, says an employers' association spokesman.

Paul Jarvie, Employer and Manufacturers Association (EMA) occupational health and safety manager, told Safeguard he could understand the emotional argument to increase accountability, but he did not think it would frighten companies into changing their behaviour.

He was wary of laws that only had an effect "after the horse has bolted" and would prefer to see more energy at the front end, with assistance and mentoring to businesses.

The call for the law came from the Council of Trade Unions (CTU) in its submission at the final stage of hearings of the Royal Commission on the Pike River Coal Mine Tragedy. Appearing for the CTU, Ross Wilson told the commissioners that the HSE Act should be changed to introduce a criminal offence of corporate manslaughter, which might generate safety leadership at board level.

But Jarvie pointed to s49 in the HSE Act which he said allowed large fines of up to $500,000, and imprisonment of up to two years, where a person acted in a way they knew was likely to cause serious harm in an employment situation.

However he accepted that the current legislation could be improved by giving DoL more powers for their inspections, and internal audits. Jarvie said more regulatory input was needed for the high hazard industries. He thought the Pike River inquiry would identify "a plethora of things that haven't happened properly".

However, independent Wellington-based safety consultant Eric Holliday said he supported the CTU's call for the new law. "It will bring us in line with UK, Canada and many states of Australia."

Holliday said it was useful in major workplace events where it could be hard to pin the failings on one person. Because of the potential large fines it might also offer more financial redress to those affected.

Holliday thought the financial implications of massive fines would force boards and directors of big corporations to discuss health and safety with more vigour than at present.

Safeguard has previously reported how the introduction in the UK of the Corporate Manslaughter and Corporate Homicide Act 2007 (which came into effect in April 2008) was prompted by the 1987 sinking of cross-channel ferry Herald of Free Enterprise.

The bow doors were left open, the ferry capsized, and 186 people died. The judicial inquiry found the entire ferry company, from the directors to the junior superintendents, was guilty of negligence, but could not find one person or entity to prosecute.

British laws had allowed for companies to be charged with manslaughter, but only if the "directing mind" of an organisation could be linked to the company's failures - all but impossible to prove given the many layers of management in most corporations.

Public desire to hold large companies accountable prompted development of the new legislation, which allowed for fines with no upper limit. The UK law was introduced for the prosecution of organisations where there had been a gross failure in the management of health and safety with fatal consequences. That included systems and processes, and how they were operated.

A substantial part of the failure within the organisation must have been at a senior level, meaning the people who made significant decisions about the organisation. That includes those in centralised headquarters functions as well as operational management roles.

Penalties include unlimited fines, remedial orders and publicity orders. A remedial order will require a company or organisation to take steps to remedy any management failure that led to a death.

In New Zealand a company cannot be charged with homicide, only a person can be. However a company, and its directors, can be charged over a fatality under the HSE Act. The fines are capped with a maximum of up to $250,000 where the breach was unintentional, or up to $500,000 for a "knowing" offence.

Simpson Grierson employment law specialist Samantha Turner had previously told Safeguard that while the UK law sounded "more menacing" because of its name, the differences between the countries were not really that great - except for the potential for massive fines in the UK, which was an attractive proposition for those wanting tougher penalties. Turner had asked the NZOHNA-NZISM conference in 2009 whether the attendees would support tougher laws here, to which about half raised their hands.

People Mentioned:
Paul Jarvie; Ross Wilson; Eric Holliday; Samantha Turner
Organisations Mentioned:
Employer and Manufacturers Association; Council of Trade Unions
Reference No:
120405CA-0729

From Alert24 - Safeguard Update

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