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An alternative to prosecution

02 June 2017 - By Shane Elliott

Obtaining Enforceable Undertakings under the Health and Safety at Work Act 2015

One of the most novel changes under the Health and Safety at Work Act 2015 (HSWA) is the introduction of enforceable undertakings. An enforceable undertaking is essentially an alternative to prosecution whereby the applicant agrees to do certain things in exchange for (usually) the regulator not filing charges.

Enforceable undertakings have featured in a variety of other regulatory regimes for some time. Examples include the Fair Trading Act 1986, the Anti-Money Laundering and Countering Financing of Terrorism Act 2009, and the Unsolicited Electronic Messages Act 2007. In those contexts the governing provisions are relatively brief, simply providing that the regulator may accept, and enforce, undertakings in relation to compliance matters.

The framework set out under HSWA is more comprehensive. Sections 123 to 129 cover matters including the circumstances in which the regulator may accept an undertaking; the publication of undertakings that are accepted; what the legal implications of giving an undertaking are (in terms of an admission of guilt) and the procedure for withdrawing, varying and enforcing an undertaking. Under section 156 there is also provision for the court to order an enforceable undertaking at any point in a proceeding of its own volition.

Safety clothing hanging on hooks

Although HSWA is based on similar statutes in Australia, those are themselves relatively new, and as a consequence there is relatively little guidance as to how enforceable undertakings are to be applied. That is perhaps evident from the time it has taken WorkSafe to develop its formal policy for considering enforceable undertakings (Policy). While HSWA recently had its first birthday, WorkSafe’s Policy, which can be found on its website, was only finalised in December 2016.

Neither of the other regulators responsible for enforcing HSWA – Maritime NZ and the Civil Aviation Authority – has published its own policies regarding enforceable undertakings at this stage. It is likely they will simply adopt WorkSafe’s approach.

WorkSafe’s Policy, like HSWA itself, largely mirrors the position adopted by the agency’s contemporaries in Australia, in each of the states and territories. Nevertheless, some of the positions adopted in the Policy are more controversial than others, and might be open to legal debate in different circumstances.

Enforceable undertaking not available if regulator believes there has been reckless conduct (section 47 offence)

Section 123(2) provides that WorkSafe cannot accept an enforceable undertaking if it believes that the alleged contravention would amount to an offence against s 47 (reckless conduct). That does not mean the charge ultimately proposed has to be one under s 47. Rather, if WorkSafe simply considers there is evidential sufficiency to support an s 47 charge it is unlikely to consider an enforceable undertaking, even it anticipates laying a lesser charge for public interest or other reasons.

Enforceable undertaking unlikely to be available for fatality/serious harm

Apart from the above, HSWA does not expressly exclude any circumstances in which an enforceable undertaking cannot be considered. Given that, WorkSafe has been careful to “never say never” in its policy.

Practically speaking, however, WorkSafe is unlikely to accept an enforceable undertaking in the case of a fatality or very serious harm, and hints of that can be seen in the Policy. On page four, it states that WorkSafe will not accept a proposed undertaking where it is not in the public interest. An example is given of that: “WorkSafe will not normally accept an enforceable undertaking where a fatality has been caused through or by means of the alleged contravention.” Though not stated, that is likely to extend to very serious harm incidents as well.

Giving of an undertaking does not amount to an admission of guilt

Section 123(3) provides that the “giving of an enforceable undertaking” does not constitute an admission of guilt in relation to the alleged contravention to which it relates. It is not clear whether this section is directed just at the initial offer of an undertaking provided by a party to the regulator, or to the acceptance of such an undertaking as well. Use of the word “giving” (which is also used in s 123(1) to refer to the offer of an undertaking) suggests it is the former. However, it remains ambiguous.

WorkSafe has interpreted the effect of s 123(3) narrowly. While acknowledging the wording, its Policy provides that it will not accept an undertaking that does not acknowledge the conduct that has given rise to the alleged contravention, and the harm caused or risked by that. That will include detailing the relevant steps/ measures that should have been taken.

While not quite the same as expressly admitting guilt of the offence, this does require the applicant to admit their underlying conduct and causation giving rise to the offence, which practically speaking is the same thing.

Negotiating enforceable undertakings with WorkSafe

The process for negotiating enforceable undertakings is set out in WorkSafe’s Policy. The first step is for a party to register its interest in obtaining an enforceable undertaking. The timing of that expression of interest is important. The best time is towards the end or at the conclusion of the inspector’s investigation. The inspector will normally advise the party being investigated that they have reached a preliminary view that contravening conduct has occurred and invite any final comment before the file is reviewed by a prosecutor. That is an appropriate time to register interest and it can be done informally, for example, via email.

If interest is not expressed by this point, most regulators will simply proceed to finalise their charges and file them. After that, much of the benefit of an undertaking may be lost, particularly if the charges are publicised.

Once interest is expressed, WorkSafe will provide a copy of its template for a proposed undertaking. That document is also available from its website. The template requires detailed information to be provided regarding acknowledgment of the events that occurred and the steps that have been taken to rectify it, both specifically and at a wider worker, industry and community level.

There is a particular focus on the amount of money to be spent by the applicant. The final section of the template, in fact, requires the applicant to set out minimum amounts it agrees will be spent on each of the remedial activities proposed, as well as agreements to pay WorkSafe’s costs.

This approach is consistent with that adopted in Australia. While there is nothing said expressly either in WorkSafe’s policy, or in that of its Australian equivalents, the implication is that the financial cost to an applicant of an enforceable undertaking should be greater than what would be incurred under a prosecution. That is borne out in the examples of undertakings accepted in Australia to date. It is also borne out in the one example of an undertaking that has been accepted in New Zealand.

Saint Kentigern Trust Board (Sweeney Todd incident)

In April 2016 Saint Kentigern College in Auckland was presenting a musical production of Sweeney Todd. During the play there was a scene in which two characters, played by students, were simulated to have their throats cut. The blade of the prop razor being used was still sharp, and the two students received serious cuts to their throats.

WorkSafe accepted an enforceable undertaking from Saint Kentigern in lieu of prosecution. The details of that undertaking are published on WorkSafe’s website, as required under HSWA. The total cost of the undertaking is specified as $85,682. However, that does not include reparation paid to the victims – the amounts of which are redacted from the published undertaking. Those amounts collectively could well have doubled the cost of the undertaking. It also did not include ongoing compliance costs of monitoring the undertaking or defence costs.

This case was a good example of appropriate circumstances for an enforceable undertaking. The context in which the incident occurred was novel and unlikely to be repeated; the applicant had a clean record and had done everything it could to address the issues that had given rise to the harm. While the risk of harm was high, the injuries themselves – while described as serious – were not permanent and less significant than many of the injuries described as such in other cases. Had serious permanent damage being suffered by either of the students, it is much less likely WorkSafe would have accepted an enforceable undertaking.

Given how new the enforceable undertaking regime is in New Zealand it is too early to say what patterns will emerge. Presently it is understood a large proportion of the defendants facing charges under HSWA have expressed an interest in an enforceable undertaking. However, as the circumstances in which the regulators will entertain one become clearer, and given the cost of proposing and implementing an undertaking, that proportion may well drop as time goes on.

Shane Elliott is an Auckland barrister specialising in health and safety litigation. He represents defendants in such proceedings and has also prosecuted on behalf of WorkSafe and Maritime New Zealand.

Last updated on the 2nd June 2017