Let's get this back on track for @Andrew

In response to an absence of a sense of humor and censorship there will be no more posts from me on the Frivoulous Friday thread. — Andrew

I saw a thread a while back on if the forum needs any more sub-forums... maybe we at least need one for "Frivolous Friday" type content to separate it from the "serious" safety conversations!

And I would vote for Andrew to be the moderator for that sub-forum to keep it clean of any "too-serious" content!

Thanks for the update Craig - I have to admit to being one of those interested but not getting around to following up and sending back your questionnaire (it's still half completed somewhere)! I'll DM you my email.
Thanks again

Fair enough Chris :smile:

My final comments on our conversation, if we are talking about the original case I think we would be having a different conversation (or none at all) if WorkSafe had of made the distinction between:

• the PCBU's failure to manage the risk of the beam falling, and
• the PCBU failing to manage the risk of physiological harm due to a worker being involved in an event as part of their work (or even being present at or reasonably connected to the event)

If the PCBU had of also been charged with the second point I think the award for reparations for emotional harm would possibly have been upheld. Unfortunately it was not...

Also if it was considered in this way (two separate offences) it would be clear who has the duty for organisations like the fire services / police / ambulance services to manage the risk of PTSD after traumatic events. If the original interpretation at sentencing was upheld (loosely being that psychological harm of other people not directly injured is included in the single offence of failure to manage the physical risk), then it could possibly have followed that a PCBU would owe a legal duty to manage the risk of PTSD to the workers of the emergency services that are responding to an event that it had caused... which most people would consider a bit absurd as it is typical of the work that the emergency services do and so the duty should be on them to manage the risk to their own workers.

All the relevant PCBU's should be ensuring the notification is lodged (whether by them or another PCBU), e.g. by obtaining a copy. — Tania Curtin

Yes - the way I have seen this done effectively is for the principle / main contractor lodge the notice for the anticipated Notifiable Work and then post the confirmation from WorkSafe NZ in the common areas (such as permit huts) so that they can be referred to by sub-contractors to confirm that their work has been covered.

How? There was no reference in the appeal to how the duty to identify hazards was applied by the judge/courts in the original sentencing, so how can this appeal clarify how that regulation is applied?

Case law is only relating to the specifics in which the decision is made by the courts/judge. The appeal was not made regarding the facts of the case that the first responder suffered from PTSD due to the events or that there was a risk in the workplace due to the hazard of the beam lifting/falling that should have been identified (as an appeal is on how the legislation was applied, not the facts of the case). The appeal was regarding if reparation should have been imposed for emotional harm on the basis that they were a victim (as it is legally defined).

From the case notes:

[6] Pegasus appeals only in relation to the order to pay reparation to Mr [...]. It does so on the basis that he is not a victim as defined by the HSWA and is therefore ineligible for reparation. — [2019] NZHC 2257

Agree that this will be an important piece of case law, but it will be regarding the precedence of how far the extent of eligibility for reparation for emotional harm reaches in relation to an offence under HSWA.

ut morally the PCBU should also provide as much support as possible to the employee during their rehabilitation, although these court cases would not have helped that process! — Chris Hyndman

There seems to be some really shitty companies/directors/owners out there - remembering that they only appealed the $45k, and they had to pay for the cost of the appeal and now the potential bad press... instead of sucking it up and moving on - but hey, that's business!
Was reading some other case notes the other day where another company was claiming they should get a discount on their fine as they had shown remorse for the offence... the judge ridiculed them as their evidence of this remorse was a 5 page letter sent to the paralyzed worker which spent most of the letter expressing his disdain of employing the worker...:gasp:

It looks like the PCBU has successfully argued that the PTSD harm was both secondary and unforeseeable. — Chris Hyndman

My understanding of the case was they were appealing the decision that the first responder (who was originally awarded $45,000 in reparation) was not classed as a victim as defined in the Sentencing Act, and therefore they were not a victim of the offence and thus reparations can not be imposed on the PCBU for their emotional harm.

Sorry to dig this one out of the bone-yard but being a new member I have been reading through some old post and this one seemed to end with no clear determination. From what I see @Peter is correct with the comment that a forklift used on a private road doesn't need to be register or licenced:

Motor vehicles used on a private road are exempt from the requirement to be registered and licensed. — R19 (2) of Land Transport (Motor Vehicle Registration and Licensing) Regulations 2011

With a private road being defined in the same regulation as:

For the purposes of subclause (2), private road means a road, place, or arcade laid out or formed on private land by the owner of that land.

interesting this also exempts forklifts on private land from requiring a WoF (but it still needs to be safe to operate) as in the NZTA Vehicle Inspection Requirements Manual (VIRM) for In-Service Certification forklifts section it specifically states that:

A forklift that is operated on the road, ie that is registered, requires a WoF. Therefore, the vehicle inspector may inspect a forklift only if it has a registration plate attached to it.

Note: A forklift used solely on a road that is a private road is not required to be registered (so no registration plate attached), and therefore a WoF cannot and must not be issued. Private road means a road, place or arcade laid out or formed on private land by the owner of that land. A forklift operated on a private road must still be safe and, if operated at night, must be fitted with headlamps or work lamps and rear position lamps. — VIRM In-Service Certification (WoF and CoF)

As to the original question as others have pointed out if the area is open to unrestricted public access then it is considered a road and any forklift operator should have an F endorsement, as there doesn't seem to be any similar exemption to the driver's licencing requirements for forklifts on private roads.

The machinery in question is your typical workshop stuff, Drop saws, lathes, grinding wheels etc, and an initial check that guarding is in place has been competed. The checks that I want to carry out at a yet to be determined frequency would be a record that the guards are still in place and are undamaged (this would be in addition to regular pre-use checks that we do not want to keep records of). — Chris Hyndman

I would take one step back and think about the purpose of the regular checks. The daily/pre-start one is easy - checking that the machine is safe to use at the moment it is being used.
So what are we trying to accomplish with the weekly/monthly/annual/etc. check? If it is just to check that the unrecorded daily checks are actually been done and nothing is "missed", there are other failings in the system that need to be address.
If it is to check that our assumptions around the daily checks are correct, then we are getting somewhere towards continual improvement - thus asking questions during this periodic check is more important that just confirm a predetermined checklist of actions is in place - e.g. are the current consumables suitable for the task (brand/quality) or have there been an increase in rejections due to quality (bearings about to fail). Much better to use the effort to understand if there is an issue with how we have setup the work for either success or fail, rather than confirm we are still heading towards success or failure (which without questioning our assumptions we will never know which one it is until we get there).

This should be getting done every six months by whoever is testing and tagging your tools, leads and plug in machinery. The equipment and software I use has a visual test check list, when I'm testing an item with safety interlocks/guards etc, I confirm their presence and functionality and note that in the comments section of the test results for each item. — Steve H

I would hesitate to use most "Test and tag" companies to confirm additional guard/interlocks are in place. There are still a lot of providers in this industry who are relatively untrained in anything but the specific tester they are using. Steve you sound like one company that has other skills but I would recommend some good discussion and understanding of what each company is signing up for before outsourcing these types of checks.

That sounds very odd Brendan. Are they assessing each individual? What on earth does that 'pre-approval' involve? — Tania Curtin

Doesn't sound odd at all to me... what it does sound like is sitting a Construct Safe test (or even attending a SiteSafe Passport training).

And just to clarify, just because it sounds like the norm to me, doesn't mean I agree with this norm :wink:

@Andrew I really wasn't considering if the company would fall foul of any other legislation... I was trying to point out the absurdity if, in the two situations which end in the same result for the same actions (or inactions), one would be considered fair (paying a bonus) where the other not (docking a penalty)... so there must be something missing from the original assumption.
I think Tania did a better job of summerising it more concisely though:

It's about sh*tty companies not being able to penalise people for doing the right thing, not the other way around. — Tania Curtin

really depends on what you are trying to achieve with the app? There are a number of available apps developed with the SME market in mind, like the one Graham mentioned or SaferMe (www.safer.me) which I understand is aimed towards SME contractors, or there are a number of companies using freely available messaging apps like Whatsapp to support their existing risk communication and reporting processes.
My suggestion would be to have a good discussion with your teams on what they need to support them, and then you'll have a good basis to assess any app against to evaluate if it will actually benefit your company/employees.

Yeah, that is why a lot of people are waiting for the case law to start clarifying this!

Back to @Joanne Brown's original question though (and @SafetylawyerNZ other point on "what is considered a levy") it would also be interesting to know how these situations are set up, for example is there a difference between:
1) I pay my workers $30/hr, but dock them $5/hr if there are any safety violations, or
2) I pay my workers $25/hr, but give them a bonus of $5/hr if there are no safety violations

s19.1b defines a worker as a contractor or subcontractor. — Albert

You are forgetting the beginning of S19 "In this Act, unless the context otherwise requires, a worker means an individual who carries out work in any capacity for a PCBU, including work as—" with the general legal interpretation of an "individual" as a natural person (i.e. a human being)
That is why I mentioned:

unless the subbie is brought on as a contract worker/sole trader — MattD2

To clarify S27 would not apply to "MattD2 Chippy Ltd" (as that is not an individual worker), but could apply to MattD2 working as a sole trader chippy - the first is a PCBU that's legal entity is a company (and in this case a contracting company), the second would be a PCBU with the legal entity of an individual (and therefore also a worker). As @SafetylawyerNZ said though, this hasn't really been tested yet...

Remember that S27 only applies to levying an individual worker, not to a company - so unless the subbie is brought on as a contract worker/sole trader S27 would not apply.

If they are a contract worker this would be at least suspicious, do you have a specific example?

Notice only needs to come from one PCBU, for us its the contractor most heavily involved in the notifiable works. — Chris Anderson

Thanks for the replies Chris and Joanne - good to see that the general consensus is a single notification is the standard approach. In the context that I am generally working we will have multiple individual contractors engaged in the work at different times over the duration of the job, so in this case I would say we are "most heavily involved in the notifiable work" being we are present throughout the job.

This usually leads to 'proper task preperation was not done'. — Bruce Tollan

But why was proper task preparation not done? :wink:

I did the Impac ICAM course a number of years back now - it was a good basis of understanding of the ICAM principles and a systematic approach to incident investigations.