We have accepted an enforceable undertaking from Pengellys after an incident on 29 March 2018.


While attempting to move an empty 40 foot container, a worker was seriously injured when he was trapped between a forklift and nearby dunnage (wood).

Alleged Breach

Health and Safety at Work Act 2015, S 36(1), 48(1) and 48(2)(c)

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

Summary of Enforceable Undertaking

  • Funding for devices to allow learners to access learning programme (below) and access the Pathways Awarua online self-paced literacy and numeracy learning system.
  • Funding and developing a Health and Safety representative Skills and Improvement programme.
  • Establishing a community of practice scholarship programme.

This enforceable undertaking has a total expenditure of at least $300,000.

Reasons for Accepting the Undertaking

The enforceable undertaking meets the requirements of WorkSafe’s Enforceable Undertakings Operational Policy (June 2019); 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
  • Information received from any interested party in relation to the contravention.
  • Mitigation and remedial action, already taken, or planned, regarding both the contravention and any person affected by the contravention (including victims).
  • The person’s past performance and history of compliance with health and safety legislation.
  • Any likely outcome if the matter were dealt with by legal proceedings.
    • A charge was filed in relation to this incident on the basis that there was both evidential sufficiency, and a public interest in initiating prosecution. A successful prosecution outcome may have resulted.
    • The undertaking accounts for the benefits that accrue to Pengellys by a prosecution not proceeding.
  • Any other matter which WorkSafe thinks is relevant.
    • The undertaking delivers benefits beyond compliance.
    • The undertaking supports WorkSafe’s strategic objectives
    • The undertaking contains acceptable terms.

Date accepted

14 September 2020

Further information

Enforceable undertaking - Pengellys Limited (PDF 3.1 MB)