Rob, I think this is the case you're thinking of. Here is our story from the Sept/Oct 2015 edition of Safeguard.

A civil contracting company has successfully defended a charge arising from a trench collapse after the court rejected the regulator’s arguments that its contractor pre-qualification process, and its JSA and other documentation, were inadequate.

Dempsey Wood Civil Ltd, the main contractor at a site being developed by Auckland International Airport Ltd, had been charged under s18(a) of the HSE Act after an employee of one of its subcontractors was injured in a trench collapse. The charge was dismissed (Papakura DC, 22 May 2015).

The July 2013 incident involved two employees of subcontractor company Draeinail Construction Ltd (which pleaded guilty to a separate charge). One of them was in the bottom of a trench ensuring a stormwater pipe was correctly aligned. The other operated an excavator positioned close to the edge of the trench, with its arm extended over the other man. Clay came loose from the front face of the trench, striking the man at the bottom and causing crush injuries to his pelvis.

The front face of the trench was benched with two steps cut to a vertical face of 1.8m each, and a 1.2m wide slot had been cut into the top edge to give the excavator driver better visibility. However the front face had not been battered to a safe slope.

In court, WorkSafe argued there were five practicable steps Dempsey’s could have taken to prevent the incident. They can be grouped into three alleged failings, the first of which was failure to effectively pre-qualify Draeinail to ensure it had a recorded OHS policy and a safe system of work, including method statements and hazard register/controls and a documented system for reviewing these. Assumptions based on previous experience with Draeinail would be insufficient, it was argued.

The Court rejected this argument, noting that Dempsey’s had worked with Draeinail since 2008, viewed the people involved as high quality, and had received positive feedback about the subcontractor from 20 project managers.

An expert witness for the defence said that documented systems could be helpful, but for a small “hands-on” contractor it is usually more valuable to know of their track record from direct experience than to rely purely on system documents.

The court found it was reasonable for Dempsey’s to rely on its prior knowledge of Draeinail’s health and safety practices.

The second group of alleged failings related to documentation: that Dempsey’s could have ensured a documented safe work method system for the trenching work was developed and communicated to contractors; and that an adequate JSA relating to the specific work had been developed and discussed daily with all workers.

While both parties agreed Dempsey’s project management plan was acceptable, WorkSafe noted that only one JSA had been completed, in April, three months after work had begun and three months before the incident; and that it had been prepared as a response to an incident in February when a Draeinail employee had been observed working outside the trench shield. WorkSafe said this should have alerted Dempsey’s to the need to monitor Draeinail more closely; nor was Draeinail required to attend daily pre-start meetings.

WorkSafe argued a JSA should be reviewed daily before work starts. The expert witness took the view that the prepared JSA was a comprehensive and generic document for all excavations deeper than 1.5m, and that it was unnecessary for each excavation to have its own JSA. He said documented systems of work are important at project level and provide a standard against which to audit, but the work on the ground was carried out by experienced people who communicated verbally.

The court also noted that the excavator driver had started on site only two days earlier and had not yet taken part in the weekly site induction for new workers.

The third step allegedly not taken was to monitor Draenail’s performance against Dempsey’s overall project management plan, especially after the February incident. Evidence was given that Dempsey’s conducted monthly audits and daily site inspections, and had visited the site twice already on the day in question. The court accepted this monitoring as adequate.

The Court accepted the JSA could have been more specific and the tailgate meetings better documented, but noted there was an agreed approach regarding dealing safely with the front face of a trench, and that Draeinail were the drainlaying experts.

The Court found the cause of the accident was due to decisions made by various Draeinail staff over a brief period of time, and that the decision by an experienced excavator driver to proceed very close to the face and then scoop out part of it, while a man was directly below, was difficult to comprehend and an “elementary error of judgement” which could not have been anticipated by Dempsey’s.

Gentle reminder to all members: when you wish to reply to another member with something that adds no value to the discussion (eg: "thanks", or "I'm in") the best way to do it is via private message, so it doesn't clutter up the main thread.

Private messages are easy to send. Just click on a member's profile icon and then select "Send a message", and off you go. No one else will see these messages - just you and the recipient.

Excellent questions. I look forward to some challenging answers.

My view is that the legality of the substance is irrelevant. Alcohol is a legal drug but has a far greater effect on impairment than marijuana.

If the reason for testing is to detect impairment then the legality of the substance causing the impairment is neither here nor there.

(However, if the real reason for testing isn't to do with impairment, but in eliminating from your workforce people who in their own time do things your organisation's management claims not to approve of, then you are playing a different game altogether.)

Some useful thoughts so far in this developing thread. One further comment is that I suspect the distinction between work phone (supplied by employer) and personal phone is disappearing. Even where work phones are issued to staff, many managers will know the personal phone number of their direct reports and will use that channel if no response to the work phone.

To clarify, the right to disconnect refers to the right not to be contacted by text or email AFTER work hours.

(Phone use during work hours perhaps raises other issues.)

FYI, our prosecutions database reveals there have been two golf-related H&S prosecutions.
In 2004 the Dept of Labour prosecuted the Paraparaumu Beach Golf Club after an elderly woman fell from an unlit and unfenced path around the clubrooms and broke her hip and leg. The clubrooms had been hired out for the evening.
And in 2009 the DoL prosecuted JK's World of Golf after public complaints that employees at the driving range were required to go out and collect balls with no protective gear, and were therefore at risk of serious harm from patrons hitting balls.

I doubt WorkSafe would come within sniffing distance of those two scenarios, but there is a third which would give Lime's lawyers conniptions. Regarding the 'juicers', Lime is specifying the tasks they are to perform and is paying them. If a juicer is injured while carrying out his or her juice tasks, there is no reason why WorkSafe should not investigate - or is there?
Welcome to the gig economy, which H&S regulators the world over are struggling to get to grips with.

Battles over the aircon setting? You might be interested in this slightly different take on the issue from Newshub last week!
[Disclosure: yes, the writer is related]

By all means alert your contacts to the survey - the more respondents, the better the data!

The link to the survey is: https://www.surveymonkey.com/r/SafeguardSoN2019

FYI here's the Safeguard report on Mary Deacon's presentation.

As a long-time software developer in a previous life I can only agree.

(Note: this previous life is now almost beyond living memory; let's just say it was before the internet era.)

Mike, you have just posed the one essential question about pre-qualification.

Congratulations! Let's hope more NZ companies adopt this enlightened approach.

Perhaps to close off #sausagegate it's worth taking a look at the Health and Safety Executive's long-standing mythbusters page, particularly its top ten H&S myths.

Yep. Just wait until Bunnings finds out about this!

WorkSafe NZ has just today released a guide to sexual harassment - you wouldn't have seen that from the regulator five years ago!

At the Safeguard conference in May, @Drew Rae described "safety clutter" as the duplications and time-consuming procedures that remain in place, even though no one believes they improve safety outcomes.
Could a focus on documenting who was present at a toolbox meeting be regarded as "safety clutter"?

Test response.

I had assumed the email would include a link and I'm as surprised as anyone that it doesn't. I will try changing the settings. This will be an evolving experiment over the next few weeks!

Whoops, no digest email has arrived. Either I have made an error in setting up the process, or the one-week period (each Wednesday) doesn't start until a full week has elapsed, ie: Wednesday next week. Call me over-confident but I'll assume the later and wait until Weds 22 Aug to see if we all get our digest.