22 November 2017

On 12 May 2016 a worker providing services to Downer New Zealand Limited (Downer) was working on a bridge where he was cutting bolts off the posts from below the bridge using a portable angle grinder. When cutting a bolt off the post, the blade being used shattered with fragments striking the worker on his face which penetrated his safety glasses.

Alleged Breach

Section 36(1) (b), of the Health and Safety at Work Act 2015

Summary of Enforceable Undertaking

Downer will:

• Provide amends in the form of a payment and professional development opportunities to the victim.
• Revise and further develop its contractor prequalification process.
• Provide contractor management training.
• Develop a contractor induction pack.
• Contribute to a sub-contractor management project.
• Share lessons learned on alternative cutting methods.
• Present Downer’s findings on alternative cutting methods to selected industry associations.
• Present seminar series in conjunction with the injured worker.
• Develop and disseminate angle grinder safety information for small businesses and individuals.
• Establish a scholarship to support tertiary study in workplace health and safety.
• Make a donation to Waikato Westpac Rescue Helicopter.

This enforceable undertaking has a total expenditure of at least $189,548.00

Reasons for Accepting the Undertaking

• The alleged contravention does not amount to an offence against section 47 (reckless conduct) which would preclude it from being accepted.

• The enforceable undertaking meets the requirements of WorkSafe’s Enforceable Undertakings Operational Policy; noting:
• The nature of the proposals in the application and the benefits that would be realised to the health and safety system from them. 
• The activities in the enforceable undertaking will provide long-term sustainable health and safety improvements in the workplace, industry and community. 
• The nature of the alleged contravention and how serious it was.

• This was a serious incident (with medium culpability). Downer had processes in place that were not followed, demonstrating inadequate attention to an identified risk
• Information received from any interested party in relation to the contravention.
• The victim is supportive of an enforceable undertaking, and has expressed an interest in presenting (with Downer) on the dangers associated with angle grinders.

• Mitigation and remedial action, already taken, or planned, regarding both the contravention and any person affected by the contravention (including victims).
• In addition to the measures Downer has agreed to as shown above, Downer has:
• Expressed regret that the incident occurred and that a serious injury was suffered by the victim
• Committed to changes in procedure concerning Downer’s Restricted Items Registers.
• Investigated alternative cutting options.
• Increased communication to staff and sub-contractors regarding the Restricted Items Register.
• Created (and filled) the role of Director of Operational Capability, Transport Services. Established to ensure there is a greater focus on improving operational awareness of health and safety.

• The person’s past performance and history of compliance with health and safety legislation. 
• Whilst Downer does have a compliance history, there are no known incidents similar to this one.

• Any likely outcome if the matter were dealt with by legal proceedings. 
• As a charge was filed in relation to this incident on the basis that there was evidential sufficiency and a public interest in initiating prosecution, a successful prosecution outcome may have resulted.

• Any other matter which WorkSafe thinks is relevant.
• The undertaking delivers benefits beyond compliance.
• The undertaking offers sufficient benefit to the workplace, industry and community to offset the seriousness of the offending.
• The undertaking contains acceptable terms.
• The undertaking accounts for the benefits that accrue to Downer by a prosecution not proceeding.