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Consultation debate

Consultation debate
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New Zealand

What was the intention of Parliament when it placed the offence of failing to consult with other PCBUs in a different section of the HSW Act from all other offences?

That was the question debated in court last month when Linfox Logistics sought to amend the section of the HSW Act under which it is facing prosecution (HC Auckland, 25 June).

The company is facing a charge under s36 of the act, for a breach of the primary duty of care, and under s48, which – because the alleged offence involved a risk of death, serious injury or serious illness – allows for a fine of up to $1.5 million.

Counsel for Linfox, Grant Nicholson, argued that because the available practicable steps set out in the summary of facts relate to consultation, cooperation and coordination with other PCBUs, the offence should rightly have been brought under s34, which deals specifically with these matters, and has a maximum fine of just $100,000.

The case arises out of an incident at a supermarket distribution centre, run by The Supply Chain, a subsidiary of Progressive Enterprises. A truck driver employed by Bulldog Haulage (working under contract for Linfox) suffered a broken leg when struck by a forklift, driven by an employee of The Supply Chain.

The Supply Chain is also being prosecuted under ss36 and 48, but Bulldog Haulage has been charged under s34.

Nicholson contended the issue to be determined was whether conduct that amounted to a breach of s34 could also constitute a breach of s36.

“This is a novel and untested question under the HSW Act,” he said. “My submission is that s36, when properly interpreted, does not create a duty to consult with other duty holders.”

He argued that because s34 is included in a part of the act headed ‘Key principles relating to duties’, and is the only offence included under that heading, Parliament’s intention was that it should be regarded as separate from s36. In addition, s36 has a subsection listing seven specific duties of PCBUs, but does not mention consultation. Although the section states that the primary duty of PCBUs is not limited by this list, Nicholson argued that, in the circumstances, the omission of consultation should be seen as significant.

“One of the submissions made to Parliament [during drafting] was that the offence was in the wrong place. It would have been easy to have moved it – to include the duty in section 36 – but this wasn’t done.

“Parliament did that for a reason. S34 is [intended as] a stand-alone duty and creates a stand-alone offence.”

Although a single course of action by a PCBU can breach more than one duty under the act, he submitted that a single breach of duty could not constitute two separate offences, and said the different penalty for s34 offences was telling.

“If WorkSafe can prosecute under s36 [for failure to consult] it subverts the intention of Parliament that there be a different penalty regime. The failing alleged against Linfox is squarely a failure of consultation, and in my view a s36 charge is not available in those circumstances.”

For WorkSafe, Anna Longdill disagreed that the company’s only HSW Act breach was failure to consult.

“As key contractor, Linfox Logistics failed to consult with The Supply Chain to develop a safe system of work, and to incorporate this into the site inductions that it was responsible for delivering to all drivers, including the victim.”

She also challenged Nicholson’s claim that s34 duties were intended to sit outside s36.

“The intent of the legislation is clear. S36 is intended to be an overarching internal duty which is not diminished by any other duties in the legislation.

“It is meaningless to say that all PCBUs have a primary duty of care, but if they fail to consult, cooperate and coordinate, that is the only matter the regulator can deal with. That would elevate s34 to something it clearly wasn’t intended to be.”

She pointed out that, as one of the stated intentions of the HSW Act was to increase penalties, the lower penalty available under s34 necessarily limited its use.

“It would be a step too far to suggest that, because s34 provides a duty to consult, all failures to do so, no matter what the consequences, the worksite, or how many people are at risk, are stuck with a penalty of $100,000.

“Against this backdrop, interpreting s34 as the only option would not serve the purposes of the act [or] provide the necessary protection for workers.”

Justice Paul Davison has reserved his decision.



People Mentioned:
Grant Nicholson; Anna Longdill; Paul Davison
Organisations Mentioned:
Linfox Logistics; The Supply Chain; Bulldog Haulage
Reference No:

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