A company failing to minimise risks to workers’ health and safety violates the act as long as the offence takes place in NZ
A recent ruling in a landmark Health and Safety Work Act (HSWA) case has confirmed the legislation’s reach – offences can be charged as long as they take place in New Zealand even if the site of an incident is outside jurisdiction, Hesketh Henry has pointed out in a new blog post.
In what the firm said was the first prosecution of its kind, Maritime New Zealand took biosecurity and fumigation service provider Genera Limited to court following a 2019 incident where a Genera technician sustained severe injuries while working on a trading vessel. The vessel was flagged for Panama and operated in international waters.
Maritime New Zealand pointed out that the worker had been left alone without a means of communication, and was only discovered after nine hours. In addition, the technician was not provided with adequate first aid, and three days passed before he received medical attention from a hospital in Papua New Guinea given the vessel’s position.
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Genera did not challenge the claims. Last month, the company was charged and sentenced in the Tauranga District Court for its failure to secure its workers’ health and safety and in the process, putting them at risk of serious injury or death.
The court ordered a payout of over $336,000 – including a fine of $245,000, $60,000 as reparation for emotional harm to the injured worker, $6,089.96 in consequential losses and $25,135.75 to compensate for half of Maritime New Zealand’s expenditures.
“The decision demonstrates that Maritime New Zealand will prosecute HSWA offences where it identifies the breach as occurring in New Zealand but the incident occurs outside of the jurisdiction,” wrote Hesketh Henry partner Simon Cartwright and associate Richard Belcher in the firm’s post.
The lawyers said that the ruling clarified a number of key points regarding the HSWA. First, as part of its primary duty, a person conducting a business or understanding (PCBU) must ensure as much as reasonably practicable its workers’ health and safety.
“That duty requires the PCBU to eliminate or minimise risks to health and safety. A breach of that duty is an offence,” Cartwright and Belcher said.
Moreover, the Act covers risks to workers even if a risk has yet to be discovered.
Cartwright and Belcher pointed out that Maritime New Zealand’s allegations against Genera involved breaches that occurred in New Zealand, such as the inadequate training given to workers and the development of the company’s procedures.
“For charging purposes, the location of the act or omission that gave rise to the risk will be the ‘location of the offence’ (i.e., where the alleged breach of duty took place),” the lawyers explained. “Usually, a person or company cannot be prosecuted for an act or omission done outside of New Zealand. However, this general proposition can be altered by a clear legislative provision, such as section 10 of the HSWA which applies the legislation to a New Zealand ship, ‘wherever it may be’.”
Nonetheless, Cartwright and Belcher pointed out that Genera’s lack of contest on Maritime New Zealand’s charges means that in the future, the precedent was “untested,” and defendants in similar cases could make an argument with regard to jurisdiction.