The complexity of overlapping PCBU duties highlighted by fatality | IMPAC health and safety 41
1 October, 2018 | News
The 2016 death of a worker in the kiwifruit industry has highlighted the complex issue of PCBU duties when multiple PCBUs are involved, and it has raised questions of health and safety accountability.
Four parties are connected to the incident. WorkSafe claim that they have all committed offences under the HSW Act, but the court didn’t 100% agree.
Here’s what happened
The deceased’s job was to collect samples of kiwifruit from an orchard. The owner of the orchard is Athenberry Holdings Ltd, however her employer was AgFirst Bay of Plenty Ltd. Zespri New Zealand Ltd is the designer of the systems used in the industry and the company that first requested AgFirst to take samples at the orchard is Hume Pack-N-Cool Ltd.
To collect the samples, the deceased would ride a quad bike up and down lines of kiwifruit, sticking to the mown areas. On the day of the incident, she rode the quad bike through unmown grass, heading up a slope to a raised lip in the ground. It was when she tried to cross this lip that the bike flipped, and she was fatally crushed.
The kiwifruit industry worker died after the quad bike she was using overturned. Photo by rawpixel on Unsplash.
The court’s findings
WorkSafe laid charges against all four parties, which lead to one enforceable undertaking, one party pleading guilty, and two acquittals.
WorkSafe accepted Zespri’s application for an enforceable undertaking and dropped the charges against them. Athenberry and Hume pleaded not guilty and were acquitted. AgFirst, now known as Stevens and Stevens Ltd, pleaded guilty to a s36 charge and have been fined $306,000, with a reparation order of $72,000 and costs of $10,372.
Judge T R Ingram found that the way the kiwifruit industry is structured introduces flaws into how health and safety is managed. This structure prevents safety inductions for kiwifruit samplers entering orchards and leaves their employer to rely solely on the effectiveness of their training to keep themselves safe.
Despite WorkSafe’s claims, the court found it unreasonable for an orchard – and farmers in general – to be required to highlight on a map of the property those areas likely to be hazardous to quad bike operators which are already visually obvious.
As Safeguard outlined, the case was particularly noteworthy as it was “the first defended hearing under the HSW Act” due to the orchard and packhouse being acquitted.
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