Crown Law reviews WorkSafe's prosecution function

Te Tari Ture o te Karauna | Crown Law recently published a review of  Mahi Haumaru Aotearoa | WorkSafe’s prosecution function, which it commissioned in November 2022.

The purpose of the review was to assess:

• The governance controlling WorkSafe’s prosecution function.
• Consider WorkSafe’s application of the Solicitor-General’s Prosecution Guidelines.
• Consider feedback from internal and external stakeholders.
• Benchmark WorkSafe’s prosecution function against similar agencies.

The review provides a useful insight into how WorkSafe makes decisions about whether to carry out prosecutions under the Health and Safety at Work Act 2015 (Act). This includes a discussion about how WorkSafe makes decisions about whether to intervene when a health and safety incident has occurred and how it carries out investigations (being one intervention available to it).

The key conclusion in the review is that there is a level of confusion and uncertainty as to what WorkSafe’s remit, priorities, and goals are when it comes to enforcement. The reviewer considered that this confusion and uncertainty has resulted in too many matters being subject to an investigation which, coupled with the resourcing constraints faced by the organisation, has affected the quality and timeliness of WorkSafe’s investigations generally. These issues mean that WorkSafe’s legal team are left to provide advice about whether charges should be filed without adequate information and under time pressure.

We expect that the implementation of WorkSafe’s new strategy and priority plans for 2024-2025 will go some way towards addressing these findings. In particular, we expect that WorkSafe’s refreshed strategic direction will result in it being more focused in the interventions it makes and (hopefully) more consistent in terms of its decision-making about enforcement. Relatedly, the implementation of its refreshed strategic direction may result in the organisation looking to utilise other interventions available to it to reduce serious harm arising in workplaces and from work. This could include WorkSafe being more receptive to the use of enforceable undertakings as an enforcement tool.

Enforceable undertakings

Enforceable undertakings are binding agreements that a duty holder can enter into with WorkSafe following a breach or alleged breach of the Health and Safety at Work Act. Typically, an enforceable undertaking will detail the actions the duty holder will take to respond to the actual or alleged breach of the Act. WorkSafe expects that these actions will:

• Support progressively higher standards of work health and safety for the benefit of:
  • workers and/or work and/or workplaces;
  • the wider industry or sector; and
  • the community.
• Remedy the harm caused to any victim(s).
• Support us to meet our strategic priorities.

The review included a discussion about the use of enforceable undertakings and noted that many stakeholders spoken to (including WorkSafe staff) expressed frustration that the uptake of enforceable undertakings by WorkSafe has been low (only 44 applications have been accepted since 2017). The review reported that the stakeholders spoken to considered various factors have prevented a greater uptake, including:

• The threshold for obtaining an enforceable undertaking is too high or is too rigidly applied by the regulator.
• The cost of preparing an application for an enforceable undertaking can be prohibitive (particularly for a small business) as it involves the applicant identifying a contribution that could be made on an industry-wide basis. 
• WorkSafe not being proactive at sharing knowledge and ideas with duty holders to strengthen their application for an enforceable undertaking. 
• Enforceable undertakings are not being accepted until after a defendant has been charged, when accepting an enforceable undertaking may an appropriate outcome before charges are filed.

Notably, the review stated that WorkSafe has indicated that it acknowledges the value of enforceable undertakings and the frustrations associated with WorkSafe’s approach to them. WorkSafe is engaging with duty holders to better understand their views with respect to the use of enforceable undertakings and is considering whether it is feasible for enforceable undertakings to be entered before charges are filed and to make available a list of industry-led initiatives that applicants can draw upon when applying for an enforceable undertaking.

Improved health and safety

It is welcome news that WorkSafe is receptive to feedback from duty holders regarding the use of enforceable undertakings and that it is considering changes to the circumstances in which it will enter such an agreement. If implemented, those changes will make it easier for a duty holder to be able to obtain an enforceable undertaking.

The review acknowledges that prosecutions do not appear to be making a “dent” in the statistics regarding workplace fatalities and injuries.

Given that an enforceable undertaking must support progressively higher standards of worker health and safety in a given sector or industry, it is hoped that more widespread use of these agreements will lead to improved health and safety outcomes.

Matthew Ferrier is a partner specialising in litigation, regulatory investigations, and prosecutions at MinterEllisonRuddWatts in Auckland. Mark Calderwood is a senior associate specialising in public and regulatory law at Minter EllisonRuddWatts in Wellington. Maddy Judd is a solicitor at MinterEllisonRuddWatts.