First Court Ordered Enforceable Undertaking
Health and Safety / 21 August 2020
In June this year we saw New Zealand’s first Court ordered enforceable undertaking (COEU). The COEU was imposed against Otago Polytechnic after it pleaded guilty to a charge under the Health and Safety at Work Act 2015 (Act), following a carpentry student partially amputating a finger in an incident involving a draw saw.
In this case, Otago Polytechnic’s earlier risk assessments had failed to identify the lack of guarding on the draw saw as a health and safety risk.
At sentencing, it sought a COEU in lieu of a fine (which was assessed at $240,000). A COEU requires an undertaking that an offender will complete specified conditions within a 2-year timeframe as an alternative to paying a fine.
The Court accepted this and ordered Otago Polytechnic to design, deliver and offer free of charge a unique training programme to educate construction workers about health and safety, as well as offering scholarships for related programmes, at an estimated cost of $275,000.
The COEU, the Court commented:
- Otago Polytechnic had previously sought agreement to a voluntary enforceable undertaking, which was declined by WorkSafe;
- The victim was supportive of the COEU;
- Imposing a fine would essentially be transferring education funds from one crown entity to another;
- The COEU would promote health and safety to the community’s benefit;
- The local construction industry had responded positively to the idea; and
- The COEU assist with employment opportunities.
Message for Employers
This case highlights the range of options for outcomes under the Act, and the importance of specialist advice to determine an appropriate strategy in case of a workplace accident.
Disclaimer: We remind you that while this article provides commentary on employment law and health and safety topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek legal advice from your lawyer for any questions specific to your workplace.