WorkSafe 'enforceable undertakings' are a way of educating companies to change their attitude to worker safety. (Photo: Getty.)

Restorative justice at work: when health and safety breaches don’t lead to fines

Air conditioning company Airtech has developed a safety app and is making a video in lieu of punishment after two of its workers became seriously ill from carbon monoxide poisoning.

Brian Stokes reckons paying for health and safety advice is a “ripoff”. The owner of Auckland air conditioning and refrigeration company Airtech has learned this the hard way, and is still coming to terms with the reality that two of his technicians could have died after being exposed to carbon monoxide poisoning on the job.

It happened when an LPG forklift was left running as his staff cleaned an evaporator unit in a cool store owned by Karaka tomato grower NZ Hothouse. Even though the forklift and driver were provided by NZ Hothouse, the law says when an incident involves two parties both companies are jointly responsible. As a result the poisoning will end up costing Stokes’ business around $80,000.

The Airtech technicians needed to be lifted up in a personnel cage on the forklift to service the evaporator. They had worked for two hours in one chiller with the forklift running about half the time, and when they stopped for lunch one of them complained of feeling sick. They continued working in a second chiller after lunch, but one of the technicians felt so ill he had to go outside. Thankfully he phoned his Airtech manager, who told him to call an ambulance and then phoned NZ Hothouse to advise them of the incident. By the time NZ Hothouse staff got to the cooler the other technician and the forklift driver had collapsed. Two of the men required specialist treatment at the Devonport Naval Base.

No-one had identified the risk of using the LPG-powered forklift in a confined space. Carbon monoxide messes with the brain so people don’t think straight, which can affect “self-rescue”, Dunedin toxicology researcher Dr John Fountain says. 

Brian Stokes thought he had health and safety covered. He had engaged advisors at great expense. But he’s discovered generic H&S doesn’t cut it anymore, it needs to be tailored to the circumstances of the organisation. “People forget how lethal LPG can be, it has no smell, no taste, it’s invisible, until you start to fall asleep,” he says.

The 63-year-old company boss is not bitter about the experience, however. Instead he has become almost evangelical about workplace safety.

Rather than face prosecution and a hefty fine Stokes applied for what’s known as an ‘enforceable undertaking’ with WorkSafe New Zealand. This means a company takes on a list of activities and obligations to improve health and safety for its workers and the wider sector.

In Airtech’s case this has included paying $5,000 in remediation costs to both its technicians for emotional harm, making a donation to Headway Brain Injury Trust, and producing an educational video and article about the incident.

It has also resulted in a digital solution. Stokes has modified a mobile app to provide his staff with a health and safety checklist and automatically contact Airtech office staff when they are about to enter a confined space.

“This incident scared the hell out of me,” says Stokes, whose business is like most in the New Zealand air conditioning/refrigeration industry – small and owner-operated.

Airtech’s Brian Stokes has ridden hundreds of kilometres on his bike to deal with the stress of the incident. (Photo: Lyn Barnes.)

He would do anything to avoid a similar situation. A comment about checklists in a session with WorkSafe when his enforced undertaking (EU) application was accepted got him Googling. Frustrated by the thousands of dollars he’d already spent on health and safety advisors, he decided to do his own search and came across iAuditor. Organisations from airlines and hotel chains to mining and construction companies use the app as an auditing and health and safety tool. Stokes got together with his son Nathan, who works as a technician at Airtech, and it wasn’t long before the pair had built an iAuditor template that allowed them to add their own safety operating procedures and hazard identification system.

Stokes had assumed his technicians knew the risks. But the possible effects of carbon monoxide related to LPG had not been not covered in their apprenticeship training. “We should have been aware of the risk, we should have managed the risk,” he admits. Now, for a little under $2500 a year or less than $14 a month for each of his 15 employees, technicians work through the app’s checklist before any job. “It takes about half an hour to learn. It’s not rocket science, it’s all there.”

As any new risks are identified the checklist can be updated. For example, Stokes read of a recent case where a worker lost an eye using a carbide blade in his  angle grinder. “We banned them that day. Sure, the metal blades are more expensive but they last for ages and they don’t shatter, so we changed that online.”

Unsurprisingly the Airtech checklist includes a prompt when using LPG-powered forklifts.

The new app also protects the business owner, because it ensures the company is taking all practicable steps to keep workers safe, Stokes says. “The app forces them [technicians] to stop and think. They tend to rush and that’s where accidents happen. Now, before they begin any job, they need to work through the checklist of safety operating procedures and hazard IDs at the coalface. They cannot progress to another screen without acknowledging a hazard screen. In the past, hazards were only required to be noted when they were outside the norm.

Stokes says it’s not a case of if but when an accident will happen, and he sees risks on sites every day.

“There is an answer, but my frustration is the attitude [of other business owners] that ‘it won’t happen to me’. That’s dumb. This will save your workers, and save your arse.”

Airtech is one of the smaller New Zealand companies to have an EU accepted. It meant meeting the set criteria – for example, that the incident didn’t involve a death and was not a result of negligence. Stokes describes it as “a bit like a diversion rather than having a conviction” but concedes it has taken its toll on his small company. The list of commitments to make amends has been a distraction that has affected workload and cashflow, and he’s ridden thousands of kilometres on his bike to help him cope with the stress.

“The enforceable undertaking is somewhat more onerous than paying a fine. With a fine it’s over and done with.” In some respects, he feels it’s been harder, but at least he still has his business and 15 people still have their jobs. Plus he sleeps better at night, knowing he has done everything he can to protect his staff.

NZ Hothouse also had an enforceable undertaking application accepted, and it has made amends including offering staff a paid safety training day, commissioning a report on the benefits to worker safety in horticulture of implementing literacy and numeracy initiatives, and creating a horticultural safety intern programme for a local school leaver.

The company regrets the failure to identify a potential hazard, NZ Hothouse director Simon Watson says.  “Our incident was a sharp reminder that businesses can never let down their guard and that the assessment of workplace risk is a never-ending journey.”

Restorative, not punitive

What does a golf club, a private school, some of New Zealand’s largest construction companies and an air conditioning and refrigeration company have in common?

All of them allegedly breached the 2015 Health and Safety at Work Act, and rather than face prosecution each organisation applied to WorkSafe New Zealand to work through an enforceable undertaking (EU).

To be accepted for an EU the organisation doesn’t have to admit liability but it must take responsibility for the incident, a subtle but important distinction.

In the case of the school, St Kentigern’s Trust Board was alleged to have committed four breaches of the act in 2016. Two students suffered serious throat lacerations from a razor blade during a school production of Sweeney Todd. Remedial steps meant a commitment to spend a minimum of $77,500.

At the Whitford Park Golf Club a group of volunteers was using a wood splitter to cut firewood for sale as a fundraiser. One of the volunteers caught his finger between a piece of wood and the logging machine. As a result, his finger had to be amputated back to the second joint. The cost of the enforceable undertaking exceeded $70K.

There is a list of horror tales of head injuries, lost limbs and multiple surgeries among the EUs, all in vivid detail. “We are required to publish the decision to accept for all enforceable undertakings, including the reasons for the decision. We have elected to also publish the full undertaking,” WorkSafe senior advisor Cordell Weir says.

Organisations draft up what they would offer to make amends for an incident and to promote safety. The criteria for acceptability may include sharing the lessons learned, making a charitable donation, providing amends in the form of payment to the victims and undertaking a range of workplace health and safety training and improvement initiatives.

WorkSafe staff can often tell from the quality and tone of an application who is genuinely taking responsibility for the incident and who’s simply trying to avoid prosecution, Weir says.

In Airtech’s case it took four or five drafts before it was accepted, Brian Stokes says.

To date, WorkSafe New Zealand has accepted 24 enforceable undertakings. (WorkSafe New Zealand is the regulator, responsible for promoting the legislation and enforcing it.)

Airtech was represented by Neil Beadle, special counsel with law firm DLA Piper NZ. An enforceable undertaking is “not an easy road” and it can be challenging to introduce some novelty to the application, he says.

Beadle has been involved in the process since the second EU was approved – in that case the company, Amcor Flexibles, committed $1 million after a worker lost a finger. He thinks the restorative concept is good and that WorkSafe New Zealand should be lauded, but he would hate to see costs get out of reach. He’s observed that now the process is established guidelines have started to emerge and there has been a cluster of fines ranging between $300-$350,000 for large businesses.

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“I wouldn’t want the process to be about the money – it has to reflect the effort and commitment of the person making the application,” Beadle says. “It’s all about promoting safety and it’s hard to put a value on that. It’s more about intrinsic value, the value of changing cultures.”

He occasionally refers people to Stokes at Airtech because he reckons his commitment has been admirable. “Brian embraced it once he realised two of his employees could easily have died.”

Five EUs have been finalised and discharged thus far. On average, it takes two years to complete the agreed tasks. For companies that fail to meet all the agreed actions there are a range of provisions under the act,  including fines and the possibility of re-filing the original charges. “To date, reminding applicants that these provisions exist has been enough to ensure they meet their obligations,” Weir says.

While WorkSafe is encouraged by the completion of EU activities to date, it’s still too early to see whether the process is creating a culture shift. “Going forward we’ll be increasing our focus on longer term industry-wide changes,” he says.


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