Recent sentences arising from WorkSafe prosecutions provide a very useful reminder regarding the duties of PCBUs in the building and construction industry. In developing your health and safety system, lessons can be learnt from the failings of other businesses. This article summarises the three recent prosecutions in different sectors.
Machine guarding failures
In January 2021, a worker at a West Auckland Bakery business had four fingers severed when her hand got caught in a seed grinding machine. WorkSafe has reported that the worker had never previously used the grinder or received any training on its operation. The WorkSafe investigation found that the grinder had no safe operating procedure and its safety guard had not been replaced when it broke off 18 months prior. To make matters worse, in June 2021 another worker had her fingertip sliced off while using a dough dividing machine. Again, the machine did not have any safe operating procedure and the guillotine was unguarded. This worker was also similarly inadequately trained.
The company was charged and convicted for a failure to comply with the duty to ensure, so far as reasonably practicable, the health and safety of workers and was fined $36,000.
This incident reiterates the importance of regularly assessing the risks on the use of machinery and to prepare appropriate procedures for the use of the machinery so staff can be properly trained.
Failure to ensure PPE is worn
WorkSafe investigated and prosecuted a Northland orchard in relation to an incident where a casual worker suffered a significant eye injury when repairing orchard fencing in April 2021. The high tensile wire snapped striking the 20-year-old worker’s left eye. WorkSafe’s investigation into the incident found the business failed to train and supervise the workers and didn’t monitor their safe use of PPE. The business had no formal process in place to ensure workers were wearing PPE, leaving supervisors to instead fill that gap by managing the wearing of PPE on an ad hoc basis. Unfortunately, the investigation also found that there had been a near miss one month earlier in similar circumstances, which was not reported until after the later incident.
The company was ordered to pay reparations to the victim of $62,185. A fine of $240,000 would have been imposed but was reduced to zero due to the financial circumstances and the company’s inability to pay any fines.
This incident highlights the importance of regularly championing the use of PPE in your business and training staff, so they are aware of the importance of PPE. It is not enough to simply make it available.
Third party contractor failure
A local council has been sentenced for its part in failing to keep people safe when a giant inflatable slide collapsed at a summer festival in December 2020. As a result of the collapse, a dozen people fell from height and sustained various serious injuries.
When investigating the matter, WorkSafe found that the company operating the slide used an old council form that did not require any confirmation of safety standards and the council failed to carry out any checks recommended by its own staff. After the incident, it was found that the slide was electrically unsafe, had air leaks via holes in the seams, and poor anchoring. The council was charged for failing to meet the duty, so far as reasonably practicable, to consult, cooperate and coordinate activities with all other PCBUs who had a duty in relation to the same matter, namely the operator of the slide.
The operator (now removed from the Companies Office) was fined $350,000 and ordered to pay reparations of over $40,000 over the incident. In this later sentencing, the council was ordered to pay reparations of $10,000 but no fine.
This incident shows that a PCBU’s duties extend to more than just managing their own immediate activities. PCBUs can have overlapping duties in respect of the same activity. While a business can enter into agreements with other businesses, they must still monitor the other business to ensure that they do what is required.
In a complex job site, there are many PCBUs operating in a confined space, all of whom will have duties in respect of each other to carry out all activities safely. Whilst the level of control over individual activities may differ, the PCBUs must consult, cooperate, and coordinate their activities to ensure the other businesses are doing what is required. This was a key change implemented by the introduction of the Health & Safety at Work Act 2015.
These recent cases highlight the importance of ongoing monitoring and improvement of your health and safety system. Repeat incidents are unacceptable and businesses need to allocate sufficient resources to health and safety to ensure the safety of their staff is maintained.
