The Health and Safety at Work Act 2015 came into force on 4 April 2016. A key feature of the Act is the significant increase in penalties for non-compliance. Effectively, the Act introduced a six-fold increase in the maximum penalties imposed under the previous Health and Safety in Employment Act 1992.

Since the commencement of the Act, there have been a number of PCBU’s (person conducting a business or undertaking) that have been convicted and fined. Unfortunately, the developing case law hasn’t yet identified a set framework for establishing appropriate ranges for the starting point of such fines. Under the old Act, a three-band approach had been adopted, but under the new Act the District Court judges have adopted various approaches to establishing a starting point. Judge Gilbert in WorkSafe v Rangiora Carpets Ltd adopted a six-band approach, while Judge Large in WorkSafe v Budget Plastics (New Zealand) Limited assessed a starting point in line with a four-band approach. Further, Judge Maze in WorkSafe v Lindsay Whyte Painters and Decorators Limited applied the increase in the penalties to the banding adopted under the Health and Safety in Employment Act 1992. Similar disharmony has resulted when the court has turned its mind to reparation orders.

A recent joint appeal to the High Court will hopefully provide some clarity and guidance for defendants and their insurers. On 18 May 2018, Niagara, Stumpmaster and Tasman Tanning appeared before a full bench (three judges) of the High Court. The three defendants were appealing the sentences imposed by the District Court. It is expected that the Court will endeavour to release its decision as a matter of urgency (perhaps August), given the significance that it will have for this area of the law.

We will provide a further update once the decision is released. In the meantime, if you would like to discuss this matter further we would be happy to assist. Please email Brad Alcorn with your questions, or to request a copy of the High Court’s forthcoming decision.