One of the key changes brought about by the Health and Safety at Work Act 2015 (HSWA) was the use of WorkSafe-approved enforceable undertakings as an alternative to prosecution. An enforceable undertaking is a legally binding agreement, the purpose being to focus the duty holder on various tasks that they need to carry out to fix an alleged breach, and/or to prevent a similar breach occurring in the future. To date, there have been 24 enforceable undertakings accepted by WorkSafe.
The usual approach to an enforceable undertaking is to negotiate it with the relevant regulator, usually WorkSafe, but also potentially Maritime New Zealand or the Civil Aviation Authority. The alternative is to put it before a Judge in the context of a prosecution.
In a recent decision, WorkSafe New Zealand v Niagara Sawmilling Company Ltd [2019] NZDC 9720, Judge McIlraith considered an application for the first court-ordered enforceable undertaking.
The incident involved the laceration of three of a worker's fingers when he tried to clear a jam from a saw. Niagara had guarding in place, but the court noted that it:
"was inadequate because it did not take into account the wind down time for the moving parts on the finger-jointer saw. It took about eight seconds for the saw to come to a complete stop after the interlocked gate was opened. Workers could therefore access the finger-jointer saw while it was still moving."
Judge McIlraith made a number of findings. First, he concluded that an application for a court-ordered enforceable undertaking should not be made as a discrete application; rather, it should be considered as one of the ancillary orders available in the sentencing process. He also noted that:
"it is more likely than not that an outcome to the sentencing process involving an order under s 156 will occur in circumstances where the level of culpability is low."
In addition, Judge McIlraith said that:
"While this may not necessarily always be the case, it is also likely that the circumstances in which an order under s 156 would be appropriate would be those in which an offender does not have prior convictions for health and safety offending, or at least, not of such a serious nature as in Niagara's history."
In this case, Judge McIlraith determined that a court-ordered enforceable undertaking was not appropriate.
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