• Steve H
    202
    In a significant prosecution, Maritime NZ has held a New Zealand employer accountable for the safety of their employee working outside New Zealand.

    The Tauranga District Court fined Tauranga-based biosecurity company, Genera Limited, $245,000 as the result of a Maritime NZ prosecution for injuries sustained by one of its employees working on an internationally-flagged ship outside New Zealand waters.
    Maritime New Zealand

    Got anyone working outside the country, you may need to rethink how you approach that.
  • KeithH
    61
    Interesting article Steve
    Perhaps the prosecution sets a precedent for within NZ also. Further down the media release it states -

    "Maritime NZ’s investigation highlighted a series of failures that led to the incident.

    Genera’s training for in-transit fumigation technicians did not adequately address the risks of working at height. There were also deficiencies in Genera’s standard operating procedures including failing to provide effective means of communication with its employees while at sea. Nor did it address the wearing of spikes while walking on log stacks. In response to this case, Genera has since changed its training practices to address the issues identified by Maritime NZ.

    The Court noted Genera had also failed to ensure that the Bunun Justice had adequate first aid equipment and supplies, including having pain medication on board."
    Maritime NZ article

    It may now be interpreted that the employer failed in their duty to 'ensure, so far as is reasonably
    practicable the provision and maintenance of a work environment that is without
    risks to health and safety' HSWA 36(3)(a). If so, this could open the door for potential prosecutions within NZ.

    No doubt there will be differing views and opinions, though Maritime NZ do themselves and others no favours by not revealing what sections of HSWA that Genera were charged under.
  • Steve H
    202
    If you read through their other media releases relating to cases they have prosecuted Keith, they have listed what has prompted them to do that, so hopefully they will in this case.

    Since it sets a precedent, I'm sure SafeGuard will do a feature piece on it, as will any employment law firm with a blog/monthly newsletter etc.
  • Robb
    33
    Got anyone working outside the country, you may need to rethink how you approach that.Steve H
    Not necessarily correct - in this case, section 10 & 11 of the HSW Act gives Maritime authority to prosecute.
  • Steve H
    202
    Not clear that those sections apply in this this case Robb, vessel was well outside EEZ and not involved with mineral recovery/research so Section 11 is knocked out.

    If Bunun Justice was an NZ registered ship then HSWA would apply under Section 10, but it's Panamanian-flagged log ship, and was on its way to China and outside our EEZ when the injury occurred. So this case isn't,or at least, doesn't seem to be covered by the provisions of Section 10, so it will be interesting to find out what Maritime NZ used.
  • Steve H
    202

    Done some digging Robb, and you are quite right, Section 10 does apply because of the way logships are effectively chartered to uplift and deliver logs to their destinations by a New Zealand agent consolidating a shipload from different suppliers, and/or brokering the sale of the cargo amongst different purchasers.
  • KeithH
    61
    @Robb
    @Steve H
    Given that Maritime NZ have a successful outcome, I'm still intrigued about what sections the biosecurity company were charged under.
    I've emailed Maritime NZ asked for those details.

    Cheers
  • Steve H
    202
    If there's been a District Court Case you are interested in,the judgements of the District Courts of NZ are searchable here Put "Worksafe " in as a search term and you'll get the various cases returned.

    In the Genera case, will be interesting to see how they discharge their duties outlined in the case Matt linked.
  • KeithH
    61
    @MattD2
    @Steve H
    Cheers guys.

    In the Genera case, will be interesting to see how they discharge their duties outlined in the case Matt linked.Steve H
    I read the sentencing report. Genera opted for the bottom 2 of the Hierarchy of Controls - bit more training, a buddy, a radio, plus harness and hard hat. I'm not an SME regarding what Genera do so can't comment good or bad in the controls selected.
  • Steve H
    202

    Hmm, employee was told " you must wear spiked shoes that we supply" chose not to. Employee was told to take both a buddy and a radio with him when performing his duties, chose not to.

    Arguably, not having a radio with him to communicate with the ship's bridge watch keeper may not have made a lot of difference given the language difficulties identified in the sentencing report. At least having a ships crewman with him, should have seen him moved to the ships sickbay sooner.

    The real issues were, having fallen and being in chronic pain, he had no access to industrial strength pain relief, trust me after falling and breaking the tibia and fibia in several places of my left leg, a few Panadol aren't going to do it. And not being able to communicate his plight directly to Genera.

    To really address the courts concerns, a few more things would seem to need to be added to the fix. A Genera buddy, with both trained to at least Offshore Racing Medic level, along with at least a Cat 1 level first aid kit, and a satellite phone to communicate directly with HQ in the event there's a medical issue.
  • KeithH
    61
    @Steve H
    I think there are issues all round.
    Language barriers with the crew, short cuts by the employee - language difficulties may have played a part, presumptions by the PCBU.

    I read this (thanks @Chris Peace) - Safety Science article and then reread the sentencing notes.

    For me, it made a difference. For me, I am being to see that while we have tried to legislate OHS since 1891 we are struggling to get our heads around how to look objectively at the big picture and not subjectively at a few brush strokes. I think we have to accept that that if we grow enough tall poppies, some will be cut down but eventually they will survive.

    My ramblings again.
  • Margaret
    12
    For those who are interested the maritime sector has a complex legal environment which requires operators to meet requirements under both the Maritime Transport Act and HSWA in regards to crew. The NZ law changed a number of years ago following a ministerial enquiry to include foreign flagged vessels due to a wide range of labour, welfare and health and safety issues affecting both NZ crew working on NZ flagged vessels operating outside NZ waters and foreign chartered vessels contracting to NZ companies. MNZ are carrying out their role as a regulator.
    You can read about the reform here
    https://www.beehive.govt.nz/sites/default/files/FCVs_Public_Q_and_A.pdf
  • Garth Forsberg
    18
    I've always told employers that if we are sending staff overseas, but they are still paid from New Zealand, then we were still paying ACC levies. These staff were then expected by ACC to be protected by an equivalent or better H&S management system and legislation as was required here.

    I may have been technically incorrect, but I was convincing enough to then be required to set up site safety plans and other systems for them while working and staying overseas.
  • Amy Richards
    27
    I’d hedge a bet that given the flag that the ship sails under it is what’s called ‘Flag of Convenience’ (FOC). A common way for a ship’s owner to reduce the operating costs and inherently reduces the safety and seaworthiness of the vessel. IMHO this is a contributing factor to why seafaring is now akin to ‘modern day slavery’.

    I don’t know much about the NZ flag requirements, but in Australia the senior officers of the ship are required to sit in-depth medical training, much more that an Cat 1 offshore medic. And the first aid equipment is extensive and includes very good analgesia’s. I wonder if those requirements are required by the Panama flag or the IMO? I don’t know the legislation well enough, as Margaret pointed out, it is very complex.

    It appears NZ has taken some proactive measures in improving the welfare of FFF, but from what I understand that doesn’t include the merchant navy. And as long as the merchant navy sails under the FOC its going to be a long push uphill to improve welfare of seafarers. It appears the lesson for companies who send staff into these environments is that you cannot reasonably expect that there will be duty of care akin to what we are used to in NZ.
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