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OSH Prosecution Of Managers (The liability is personal)

Published 01 Jul 2010

Plea to all EAL clients – Please read this
The recent personal prosecution of the managing director of Icepak Coolstores in Tamahere and the resultant $30,000 personal fine signals a red flag that business managers, directors & owners need to take notice of.

While we have no desire to be a cure for insomnia – we insist on repeating that the Health and Safety in Employment Act 1992 places a personal liability obligation squarely on the shoulders of managers and owners who should be managing it. This has scary consequences if you think about it.

The Icepak Coolstores (Tamahere) fire tragically caused the death of a fireman and others suffered serious burns – we are sure everyone will remember the incident of April 08. The judge (District Court) found that the managing director who was prosecuted personally and found him guilty 'for acquiescing in the failure of his company to comply with Occupational Safety & Health obligations'.

There were several parties cited in the case including the managing director (fined $30,000). Icepak was fined $37,200 and ordered to pay reparation of $95,000, Mobile Refrigeration Specialists Ltd were fined $56,200 and ordered to pay $175,000 in reparation. The sums add up to $393,400.

In a previous newsletter we commented there is a law change coming. The change contemplates altering the meaning of 'Serious Harm' and when passed into law will lower the threshold at which employers must notify the Labour Department of an accident, or a serious harm injury to an employee (or anybody) in the workplace.

The National Party have already declared they are disappointed with the lack of successful personal prosecutions against managers and owners who have the responsibility of OSH compliance, but fail to do so.

ACC cover is becoming an unaffordable insurance policy that excludes claims and contributing significantly to this are the employers whose employees are being injured and - in particular – those injured 'unnecessarily'.

NZ Occupational Safety & Health has to be led by industry itself because it is for industry. Only trying to apply simple commonsense to the law, or the workplace behaviour (of employees), is a waste of time. OSH prosecutions can only serve as awareness campaigns and therefore while they denounce non-compliance and become a deterrent – only those within industry can effectively address the problem.

The rising tide of compliance and the urgent need for it has changed dramatically over recent years. Now, 18 years after the Act, the law (& the Govt) is taking steps by swinging the baseball bat simply because industry itself still hasn't woken up, embraced, encouraged and implemented safe practices. Industry continues to allow the accidents and injuries to happen when they could prevent them. This is unaffordable.

Managers and business owners must carry out the hazard identification inspections and implement the management of those hazards identified. Then they must train their staff and supervise workplace behaviour because employees are always going to take shortcuts, remove guards, take risks and endanger their fingers, hands, arms and their lives. Why should employers bother? Because employers are presenting the hazards and employers are in fact responsible.

What are the choices ? – well we either make the effort and do the right thing, or we'll find a compulsory law will make us do it, or if ACC collapses we could go back to the old system... private court cases taken by the injured against employers.

Managers who experience difficulties in convincing owners and company directors that OSH systems are of value and must be put in place please see our OSH products and services