New Health & Safety Legislation

[Lanthanide]

The company failed to properly train and monitor its staff.

I think the company should take some 'personal responsibility' for their failings that resulted in a serious injury to a worker. Which they actually did, by pleading guilty.

No amount of paper work will change employees failure to follow the rules.

Sure, but you actually have to have the rules written down first, if you expect people to follow them. This company didn't. It really is very simple.

[Viking]

Nah, cheaper to pay the bill than pay lawyers to waste all day in court plus all the management time. ( And their insurance company has the say so they will pay at least some of the bill).

The problem with the rules is that in Delta's case the Mobie man decided that the pole swinger did no wrong so was not culpable for his behavoir when he was employed as a trained linesman. He wasn't an amateur he was in reasonable terms a trained professional much as a lawyer is and offered his time for hire to the company for money. If a lawyer is negligent then he can be sued so why not the pole swinger?

Like I said you can write all day until the moon goes down but if someone doesn't read or follow what's written then its a waste of ink. Well to all except Mobie.

What's the first thing we ALL do when buying something that has to be assembled. Read the instructions. Well no that comes after we have ALL had a go to put the thing together and then come across something that doesn't work.

Human Nature.

Reinforced more than ever by things like computers and cellphones etc. We just have a go. We experiment.

[Lanthanide]

Firstly, you're asserting that he's a trained and experienced linesman, when we see he clearly isn't well-trained - at least not by Delta - if he were, this accident would not have happened. If his training and experience could be relied on, then he would have disconnected the power first.

Companies cannot opt-out of their H&S obligations by hiring "experienced" workers and then washing their hands of them. If that were the case, you'd have to start drawing the line - is the company liable if an apprentice injures themselves? What about someone with 2 years experience? 5 years? 10 years? 20 years? When does the liability shift from the worker to the company? Also, just because someone says they're experienced, or has a lot of experience in a particular job, doesn't mean they are experienced in all aspects of a job, or that they necessarily have carried out that particular task recently - it might have been 15 years since the worker last did that thing. Without written procedures to refer to, it's pretty difficult to know that you're being unsafe - you don't know what you don't know.

In this case, as in the vast majority of cases, the H&S fine is is levied against the business for the systemic health and safety failure - in this case no training in how to safely disconnect the power before beginning work - rather than for the failings in the specific case. Delta has clearly failed to properly train their workforce, a problem that I'm sure has been rectified as a result of this case. It's a pity they didn't take their duties under workplace H&S laws seriously and identify and rectify this failure before someone was hurt.

Also, if he were in a fall-arrest harness and were shocked, he could easily become unconscious. You may not know this, but fall arrest harnesses actually have limits for how long someone can remain unconscious in them, because an inert human body weighs a lot, and blood flow becomes constricted throughout the body due to gravity and the harness pressing onto limbs and the torso etc. So actually if he were in a harness, and had been knocked unconscious by the electric shock for ~20 minutes, it actually could have been fatal. http://www.elcosh.org/document/1662/...ml?show_text=1

The problem with harnesses is one reason why work crews in these sorts of hazardous jobs should be at least 2 people - so if one person is seriously injured or harmed, the other person can try to assist, or at least call for backup. Part of H&S is having procedures and training in place to prevent an accident, and also having procedures and training in place so that once an accident has occurred, there's a competent response procedure to minimise any further harm that may arise in the situation. This guy, working by himself and falling 6 metres, could have been knocked unconscious and bled to death before anyone found him, for example. So it's interesting that WorkSafe didn't ping them for having this guy working by himself, too - and clearly working by yourself on a job is policy set by the company, no matter how 'experienced' a worker you are, if your bosses refuse to let your work in pairs due to "cost" reasons, then your experience won't matter much if a genuine accident befalls you and there is no one around to help.

Secondly, it's WorkSafe, MOBIE don't have anything to do with it:

The Government has established WorkSafe New Zealand (WorkSafe NZ), a stand-alone Crown agent with its own governance board, as part of its reform of the New Zealand workplace health and safety system.


WorkSafe NZ began on 16 December 2013 when the health and safety functions of the Ministry of Business, Innovation and Employment transferred to the new agency.

[Wayne]

Doesn't say anything about a harness, it says Delta didn't have proper procedures and hadn't properly trained their workers to be safe. They failed to take all practicable steps to ensure H&S of their workers.

Not this bit
"While working up a power pole, the line worker fell from the ladder he was working on without wearing the safety harness provided that would have arrested his fall. The injuries received from the fall required hospitalisation."

[Wayne]

Firstly, you're asserting that he's a trained and experienced linesman, when we see he clearly isn't well-trained - at least not by Delta - if he were, this accident would not have happened. If his training and experience could be relied on, then he would have disconnected the power first.

Conjecture - he was most probably a qualified Linesman and hence trained.
No amount of written instruction and signing that it is read will change the corners some people cut!
There seems to be a thought that so long as you have it written down then all is good.
How about people who learn by seeing and instruction rather than reading?

One of the 1st things they teach Linesmen is to disconnect if possible.
Then they teach how to use the harness.
For whatever reason he didn't do either (only he knows why and I'd bet it wasn't lack of training).

Companies cannot opt-out of their H&S obligations by hiring "experienced" workers and then washing their hands of them. If that were the case, you'd have to start drawing the line - is the company liable if an apprentice injures themselves? What about someone with 2 years experience? 5 years? 10 years? 20 years? When does the liability shift from the worker to the company? Also, just because someone says they're experienced, or has a lot of experience in a particular job, doesn't mean they are experienced in all aspects of a job, or that they necessarily have carried out that particular task recently - it might have been 15 years since the worker last did that thing. Without written procedures to refer to, it's pretty difficult to know that you're being unsafe - you don't know what you don't know.

For every worker a company will need to employ a H&S supervisor to check on them - or maybe a checker of the checker also.
Trainees and appretices are different - they need supervision at varying degrees as they progress and the company is responsible until they get to the point that they can work on their own.
They need to be shown the right way - the safe way - and encouraged to do it that way every time.
Management need to ensure there aren't undue time pressures that encourage staff to cut corners.
But after that they can't be watching the staff all the time.

In this case, as in the vast majority of cases, the H&S fine is is levied against the business for the systemic health and safety failure - in this case no training in how to safely disconnect the power before beginning work - rather than for the failings in the specific case. Delta has clearly failed to properly train their workforce, a problem that I'm sure has been rectified as a result of this case. It's a pity they didn't take their duties under workplace H&S laws seriously and identify and rectify this failure before someone was hurt.

Delta had failed to document that they had trained the worker - there is nothing to say that the worker wasn't actually trained.

Also, if he were in a fall-arrest harness and were shocked, he could easily become unconscious. You may not know this, but fall arrest harnesses actually have limits for how long someone can remain unconscious in them, because an inert human body weighs a lot, and blood flow becomes constricted throughout the body due to gravity and the harness pressing onto limbs and the torso etc. So actually if he were in a harness, and had been knocked unconscious by the electric shock for ~20 minutes, it actually could have been fatal. http://www.elcosh.org/document/1662/...ml?show_text=1

So no we should ban fall arrest harnesses?

The problem with harnesses is one reason why work crews in these sorts of hazardous jobs should be at least 2 people - so if one person is seriously injured or harmed, the other person can try to assist, or at least call for backup. Part of H&S is having procedures and training in place to prevent an accident, and also having procedures and training in place so that once an accident has occurred, there's a competent response procedure to minimise any further harm that may arise in the situation. This guy, working by himself and falling 6 metres, could have been knocked unconscious and bled to death before anyone found him, for example. So it's interesting that WorkSafe didn't ping them for having this guy working by himself, too - and clearly working by yourself on a job is policy set by the company, no matter how 'experienced' a worker you are, if your bosses refuse to let your work in pairs due to "cost" reasons, then your experience won't matter much if a genuine accident befalls you and there is no one around to help.

This bit I agree 100% with.

[Perry]

We could have a lot of fun-filled speculation, worrying this subject.

If the employee concerned purported himself as sufficiently competent and experienced to do the work contained in his job description, and yet - by virtue of this accident - demonstrated that he was not and had therefore misrepresented himself and his attributes as part of applying for the job, did he commit an offence under the Employment Relations Act 2000? Perhaps s 4 (1) (a) & (b)? In a manner that was vaguely similar to the conduct mentioned in s 6 of the Contractual Remedies Act?

I think Viking is closer to the truth as it relates to the decision. Cheaper and quicker to plead guilty than the alternative. The 'black mark' against the company can't do any commercial harm as it operates a natural monopoly.

[Bob Kane]

Firstly, you're asserting that he's a trained and experienced linesman, when we see he clearly isn't well-trained - at least not by Delta - if he were, this accident would not have happened. If his training and experience could be relied on, then he would have disconnected the power first.

I'm struggling with this flawed argument.
If a person has an accident then the employer hasn't trained him sufficiently- seems to be what you are saying.
I would think every electrician is trained to turn off the power before working on the wiring.
Any electrician who works on live wires is ignoring their training - my belief - and I don't see how fining the company is fair when the electrician is at fault.
It seems companies will need a thick book of rules that everyone will need to read before they can do some work.
And then some dumb-arse will still ignore the safety rules and have an accident.
Which you will blame on the company for not preventing the accident.
As you present it, it seems a company will never escape from the firing line.
This act seems to argue that all accidents can be prevented through paperwork.

[Lanthanide]

It seems companies will need a thick book of rules that everyone will need to read before they can do some work.
And then some dumb-arse will still ignore the safety rules and have an accident.

In this case, the electrician did not ignore any written safety rules - because there were no written safety rules to ignore.

Put it this way - the electrician was not contravening any health and safety rules of the company. In doing their job, the worker was injured.

If the worker contravenes H&S rules, then fine, it's their fault. If there are no specific guidelines by the company on how to do a job safely, then you can't really hold that against the employer.

Otherwise, a company could literally have no rules at all and say "well the employee should know how to do the job safely, it's not our responsibility to outline the rules or train people".

Except under the law, it is their responsibility to outline the rules and train people. And it has been since 1992.

[Lanthanide]

Not this bit
"While working up a power pole, the line worker fell from the ladder he was working on without wearing the safety harness provided that would have arrested his fall. The injuries received from the fall required hospitalisation."

It is Delta who said that, not WorkSafe, hence it is irrelevant to the investigation. They said that because they were trying to deflect attention and blame others for their own slackness in complying with the law. Here's WorkSafe's press release, which you can see was mostly repeated in the stuff article, and the section from which I quoted: http://www.business.govt.nz/worksafe...worker-injured

Conjecture - he was most probably a qualified Linesman and hence trained.
No amount of written instruction and signing that it is read will change the corners some people cut!
There seems to be a thought that so long as you have it written down then all is good.
How about people who learn by seeing and instruction rather than reading?

If a company has written H&S policies that as Far As Reasonably Practicable eliminates / isolates / minimises hazards for their workers, then they won't get penalised by WorkSafe.

Simple question really: is it Reasonably Practicable for a company to have basic instructions for working safely when assigned to do a dangerous job? I think the answer is "yes". Delta failed to do that, they failed to comply with the law, and so they were fined.

You know, if Work Safe became aware of this through some other means - like an employee dobbed in the management, then I think WorkSafe would have taken enforcement action as well, possibly including a fine (which they can now issue). In some ways, you should consider a workplace accident an event that draws WorkSafe's attention to your company, where they will begin an investigation and ping you for failing to comply with the law. Or in other words - where there is smoke, there's fire. If you're actually following the law properly, it is very unlikely you'll have any accidents and so won't get investigated.

The whole point of this of course, is to improve safety in our workplaces, because NZ kills far too many people compared to Australia and the UK, and that's a fact. Just like the criminal justice system sentences people to 20 years jail - in part as a punishment, and as part a warning to everyone else to play by the law - so do WorkSafe prosecute businesses, as punishments and as examples to everyone else.

[Apprentices] need to be shown the right way - the safe way - and encouraged to do it that way every time.

Not sure how this company is training their apprentices if they don't actually have their basic safety instructions written down anywhere.

So no we should ban fall arrest harnesses?

Completely ridiculous assertion to state, based on what I wrote.

Some in this thread have said he would have been fine if he were wearing a harness - but that is simply not true. Harnesses eliminate some hazards, while creating others, which can actually be more harmful if harnesses aren't used appropriately.

We could have a lot of fun-filled speculation, worrying this subject.

If the employee concerned purported himself as sufficiently competent and experienced to do the work contained in his job description, and yet - by virtue of this accident - demonstrated that he was not and had therefore misrepresented himself and his attributes as part of applying for the job, did he commit an offence under the Employment Relations Act 2000? Perhaps s 4 (1) (a) & (b)? In a manner that was vaguely similar to the conduct mentioned in s 6 of the Contractual Remedies Act?

What is quite clear is that Delta failed their obligations to take All Reasonably Practicable Steps to ensure safety of their workers. Note that that is the wording of the old legislation, the new legislation is So Far As Is Reasonably Practicable. Having written records of basic steps to perform your job safely clearly falls under that umbrella, too.

But if the company wants to try and charge their worker under that act, then they have full rights to do so. I'm not sure that we'd ever find out either way due to privacy laws and it being a private employment matter, but my guess is their lawyers would probably advise against that course of action in this case.

I think Viking is closer to the truth as it relates to the decision. Cheaper and quicker to plead guilty than the alternative. The 'black mark' against the company can't do any commercial harm as it operates a natural monopoly.

Actually, getting black marks from WorkSafe and failing to improve your H&S handling will likely result in any future penalties being increased for negligence.

[Perry]

If you want your boomerang to come back, first you have to throw it.

The point Bob makes (as I read it) is that some things will need pointing out in a copious tome of rules, in certain employment situations. Further, by virtue of common sense, there are some things that would be egregiously asinine to point out.

E.g. A Safety Rule that requires all employees to utilise the door knob, to open the door, before attempting to pass through the doorway, in order to avoid any bodily injury from walking into the door. An SOP for safely passing through doorways when the confronted doorway is otherwise impassable because the door is closed.

In this case, the electrician did not ignore any written safety rules - because there were no written safety rules to ignore.

Be that as it may, the electrician ignored/forgot/whatever a very basic fundamental of the training he was required to satisfactorily complete before he could be called a registered electrician.

To hold an employer responsible for that act of asinine stupidity is an offence to common sense and a breach of natural justice.

[Lanthanide]

E.g. A Safety Rule that requires all employees to utilise the door knob, to open the door, before attempting to pass through the doorway, in order to avoid any bodily injury from walking into the door. An SOP for safely passing through doorways when the confronted doorway is otherwise impassable because the door is closed.

Just like you don't need to have warning signs saying "danger, boiling water" on a domestic electric kettle that is in fine working order, assuming your door knob (and door etc) meets standard building code specifications, there is no need for special instructions or warnings. If however your electrical jug is faulty, then As Far As Is Reasonably Practicable you should isolate any hazard associated with it - which probably means throwing it out and replacing it. Same with a door knob - if it's dangerous, for example pulling on the door knob may detach it from the door, and if someone went to grab the door knob, it came loose in their hands and they lost balance and injured themselves, then the company could be liable for this. For example if "everyone knew" the door knob was dodgy, and had been that way for quite a long time, then the company is liable. But if there was no known issue with the door knob and it spontaneously broke, or the door knob had been arranged to be repaired and there was a sign indicating this on the door, then the company wouldn't be liable.

This, of course, is completely different from basic instructions relating how to do a job - something you are directly paid for - safely, that if not followed properly could kill you. Specific tasks that expose workers to hazards, need to have the hazards addressed As Far As Is Reasonably Practicable. If there is no way to eliminate or isolate the hazards except for training of the staff, then you need to have clear procedures in place that everyone can understand and everyone follows.

My work has an onsite gym and swimming pool. Because they're on our premises, we naturally have to ensure they are safe for our staff to use. We have H&S policies around use of the gym equipment, and what to do if someone appears broken or unsafe etc. However because the gym and pool are recreational facilities provided by our company for employees to use at their leisure, and not part of anyone's day to day job (not a "work place"), there is a slightly difference nuance as to just how far we need to go to ensure everyone's safety using the equipment. So we don't have signs up saying "warning, weights are heavy, don't drop them on your feet", or "warning, ensure you remember to breathe while swimming".

Be that as it may, the electrician ignored/forgot/whatever a very basic fundamental of the training he was required to satisfactorily complete before he could be called a registered electrician.

To hold an employer responsible for that act of asinine stupidity is an offence to common sense and a breach of natural justice.

The employer is held responsible for failing to take All Reasonably Practicable Steps. One Reasonably Practicable Step is to write down your rules so everyone is aware of them.

[Wayne]

There is a great TV series you should watch - "Wright Way"
Have a look at this wee gem

https://www.youtube.com/watch?v=mP0_eISFErA

[Bob Kane]

The employer is held responsible for failing to take All Reasonably Practicable Steps. One Reasonably Practicable Step is to write down your rules so everyone is aware of them.

I can't see many tradesman-type companies being able to write down the required rules to the required level of detail.
I imagine a health-and-safety company writing them all down and selling them off to every company in NZ.

[flyernzl]

Most legislators, when they make up the rules, envisage Fletchers and Air New Zealand.

The reality is that the overwhelming majority of NZ businesses are one and two man bands, possibly employing a couple of staff, who carry out the bookwork on the kitchen table after dinner having themselves worked a nine-hour day at the manual labour of the business.

[Wayne]

Most legislators, when they make up the rules, envisage Fletchers and Air New Zealand.

The reality is that the overwhelming majority of NZ businesses are one and two man bands, possibly employing a couple of staff, who carry out the bookwork on the kitchen table after dinner having themselves worked a nine-hour day at the manual labour of the business.

Indeed.
I dispair that it must all be written down or it hasn't happened.
Really it is arse covering and doesn't change the outcome - assuming that there are rulles (verbal) in the 1st place.

For the average person to open the door before going through is obvious so doesn't need to be written down.
For the average electrical worker turning off the power before working on a circuit is just as obvious!
As is height safety for the average worker who regularly works at height!!!!!!!