Peter Cullen on Pike River

Top employment lawyer Peter Cullen writes:

One of the positive consequences of the disaster was the new Health and Safety at Work Act,  which was the first significant reform of health and safety law in more than 20 years.

There is a terrible irony for the Pike River families that the new legislation which came about as a result of the tragedy is now preventing the re-entry to the mine they are pushing for.

In deciding not to allow re-entry to the mine, Solid Energy will be concerned about breaching the Act.

Unlike previous legislation the Act carries hefty penalties, and by allowing people into the mine when they know it to be dangerous, Solid Energy could face severe sanctions.

The Act has a wide scope, placing duties to ensure safety in the workplace, so far as reasonably practicable, on any person conducting a business or undertaking. Now individuals involved with the management of businesses can face penalties personality.

Conduct that is reckless as to the risk of death, serious injury, or serious illness (and certainly knowing the risk places Solid Energy in that category) carries a fine of up to $3 million, or for an individual, a $600,000 fine and/or five years imprisonment.

So if Solid Energy has a report from experts telling them it is not safe to re-enter the mine, they would be taking a huge risk to ignore that advice.

It doesn’t matter that some other group has their own advice. If the advice commissioned by the board says it is unsafe, and you cherry pick some other piece of advice, bang each director faces up to five years jail and $600,000 fines. And these fines can not be insured against.

So the typical Solid Energy Director is paid around $50,000 a year. And the Pike activists want them to risk $600,000 fines and five years jail.

Under the Act it is not necessary for someone to actually be killed or injured in the workplace for sanctions to be imposed. Failure to comply with a duty to ensure health and safety, which exposes persons to the risk of death, serious injury or illness, carries a fine of up to $1.5m or $300,000 for individuals.

Even if no one is exposed to the risk of death, serious injury or serious illness, but a duty within the Act is not complied with, you can be fined up to $500,000, or $100,000 for individuals.

So even if no one dies or is injured, just bypassing their duty of safety first could see massive fines.

Solid Energy would face huge liability if the mine was re-entered, not to mention how disastrous it would be if harm to more people occurred in Pike River.

The prime minister has said the issue is not a political one, it is a health and safety one, and he is most certainly right.

Except Winston Peters and Andrew Little are trying to make it a political issue.