The other thing to think about is operator competence - it is really easy for WorkSafe to assert that getting a licence is a practicable step to improve competence, even if a licence isn't otherwise needed.

The reality is that when investigating an incident WorkSafe expects to see minutes of toolbox talks showing who attended. In my experience, inspectors seem relaxed about whether people sign for themselves or one person writes down all the names. The bigger issues are:

1. Did people understand what they were told? I agree with Craig Marriott on this.
2. Did people who arrived late get the briefing too?

My take is that the Judge may have got to the right result, but that some of the comments in the judgment are (with respect) troubling.

The HSWA is clear that PCBUs can't contract out of their duties, but also that these duties are dynamic and need to be interpreted in the particular circumstances based on the ability of each PCBU to influence or control the risk. For my, the Judge got this part right, as it is too simplistic to say that just because Athenberry and Hume were PCBUs they had responsibilities for what the tester was doing. For Hume in particular, it is hard to see why they should have been responsible for much at all.

Where the Judge got into trouble was the suggestion that farmers and orchardists do not need to warn contractors about site features that will only be a hazard if there is "incompetence, careless or non-compliance with instructions'. The law is settled that employers need to guard against employee error, and previously the courts have taken a similar view for contractors. Suggesting that this is no longer the case may encourage some PCBUs to take less care to protect contractors than they should. I suggest caution before anyone relies on this.

By the way, our article on the case is available at: https://www.kensingtonswan.com/news-updates-and-events/first-defended-hearing-under-the-health-and-safety-at-work-act/

Yes. It serious cases a traffic incident is notifiable to WorkSafe, but in practice WorkSafe usually defers to the Police and leaves them to take any action - examples when WorkSafe does get involved tend to relate to maintenance failings, or perhaps driver fatigue etc.

The WorkSafe tool is the best material I've seen to date. The problem is the criteria for what is (or is not) a notifiable event is really poorly defined - for example, in the definition of a notifiable incident, the term "immediate or imminent exposure" could mean proximity in space or time, or both. When in doubt, the safest option is to call WorkSafe and make a precautionary notification.

I think it's too early to tell. There are clearly some things that are good (eg the duty to consult, cooperate and coordinate activities, and the greater emphasis on worker engagement), but until we get guidance from the courts about what the various duties mean, and what is reasonably practicable in different types of circumstances, it is all just words.

I see lots of incident reports where human error is identified as the immediate cause of whatever incident has occurred. Some but by no means all of those reports go on to look at the underlying root systemic causes.

Interestingly, in my experience WorkSafe is starting to push back on duty holders who get to human error and stop their analysis there.

I understand an apology was given, but the family didn't consider it genuine. The family also apparently wanted the apology made in public.

Making an apology should be standard for any decent organisation. Even when employee error is a factor, there will almost inevitably have been systemic issues, and there is no need to rub a family's nose in the error by a deceased loved one - all it does is aggravate the hurt, as no one will suddenly be persuaded "oh right, it's not your fault company X, it's actually all my family member's fault" . I'm not so sure an apology needs to be made publicly, as that is often implicit (if not explicit) from a guilty plea and sentencing - here though, if the family wanted it to be public, then it would have been a good idea to agree and do so.

I think they are valuable, as they allow a defendant to avoid conviction by being proactive and working with workers, the victim, the industry and the community. At present an EU is likely to be a cost-effective solution for larger NZ businesses, but not necessarily for smaller ones where the cost may be disproportionate to the fine that would otherwise be imposed. Don't get me started on fines...

In Australia businesses say the compliance costs are a killer, but time will tell whether that experience manifests itself here.

It should be a combination - the Police can prosecute now when a senior person personally does something constituting manslaughter or criminal nuisance, and WorkSafe can prosecute officers if due diligence isn't happening, and also sometimes prosecute them as workers too if they are involved in dangerous acts or omissions.

The current chatter about amending the manslaughter law is a solution looking for a problem. I don't believe companies will change their behaviour just because a corporate manslaughter law is enacted - one fine is as bad as another. If the answer is "we'll make the penalties bigger', then just do that under the existing Health and Safety at Work Act. It's not an answer though, as we already see businesses claim impecuniosity as a reason to avoid a large fine, and that trend will just continue.

If the idea is to hold individuals accountable for manslaughter after a corporate failure, then we risk sending a message that people shouldn't agree to be officers in the first place, and also risk corporate paralysis where work is never finished because everyone spends most of the day filling out paperwork to make things appear safer, even if they're not actually safer.

Overseas, experience so far suggests that this type of law is used against SME businesses far more than listed companies and multi-nationals. Is that really what proponents of change want?

Grant