Enforceable Undertakings

SSA New Zealand

2 November 2023

Maritime NZ has accepted an Enforceable Undertaking (EU) from SSA New Zealand after an incident resulting in the injury of a Hold Man. The incident occurred during the loading of the cargo vessel Trinidad Trader, at the Port of Tauranga, on the 9th December 2021.

Summary of highlights of the enforceable undertaking

• Financial amends to the victim
• Development of internal working at heights training program
• Fire suppression systems for all mobile plant and equipment
• Pedestrian detection system for all loaders and forklifts in the fleet
• Noise monitoring across operations to develop controls to minimise the risks of noise to workers
• Transfer of current port working at height unit standards to micro credentials
• Sponsored University Soft Tissue Study and development of controls to minimise soft tissue injury
• Development of FENZ port response training course

Reasons for acceptance

The enforceable undertaking meets the requirements of Maritime NZ’s Enforceable Undertakings Operational Policy (November 2018), considering:

• The activities in the enforceable undertaking and the expected 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 duty holder’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.
  • The undertaking accounts for the benefits that accrue to SSA New Zealand by a prosecution not proceeding.
• Any other matter which Maritime NZ thinks is relevant.
• The undertaking delivers benefits beyond compliance.
• The undertaking supports Maritime NZ’s strategic objectives.
• The undertaking contains acceptable terms.

Enforceable Undertakings Table of Variation

Penwarden Holdings Limited

25 September 2023

Maritime NZ has accepted an Enforceable Undertaking (EU) from Penwarden Holdings Limited after the grounding of the Fishing Vessel Bilyara on the 9th April 2020 on Ohinau Island, Waikato.

Summary of highlights of the enforceable undertaking

• Watch alarms and cameras on FV Bilyara and FV Karearea
• Implement digital documentation system on both vessels
• New VSAT system for cloud connectivity for compliance software
• Watchkeeping and other safety drill review
• All crew to complete MarineSAFE online modules
• Crew professional development
• Development of Bridge Management training module including theory and practical component and provision of vessel for 8 pilot courses over two years
• Marketing for courses
• Donation to Auckland Rescue Helicopter Trust and provision of vessel for four days training with Auckland Rescue Helicopter

Reasons for acceptance

The enforceable undertaking meets the requirements of Maritime NZ’s Enforceable Undertakings Operational Policy (November 2018), considering:

• The activities in the enforceable undertaking and the expected 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 duty holder’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.
  • The undertaking accounts for the benefits that accrue to Penwarden Holdings Limited by a prosecution not proceeding.
• Any other matter which Maritime NZ thinks is relevant.
• The undertaking delivers benefits beyond compliance.
• The undertaking supports Maritime NZ’s strategic objectives.
• The undertaking contains acceptable terms.

Enforceable Undertakings Table of Variation

Pegasus Fishing Limited and Antony Threadwell

6 May 2022

Maritime NZ has accepted an Enforceable Undertaking (EU) from Pegasus Fishing Limited and its Director, Antony Threadwell after a collision outside the entrance to Lyttleton in January 2020 between a 180-metre bulk carrier, Rose Harmony, and a 24 metre fishing vessel, Leila Jo, operated by Pegasus.

Summary of highlights of the enforceable undertaking

• Financial amends to the victims
• Upskilling of crew and equipment on the fleet of four fishing vessels
• Development of a watchkeeping course through Westport Deep Sea fishing school
• Funding to Guard Safety for the development of two MarineSAFE health and safety digital watchkeeping modules
• Provision of resources for 6 days winch training with Westpac helicopters
• Donation to Sumner Coastguard lifeboats

Reasons for acceptance

The enforceable undertaking meets the requirements of Maritime NZ’s Enforceable Undertakings Operational Policy (November 2018), considering:

• The activities in the enforceable undertaking and the expected 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 duty holder’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.
  • The undertaking accounts for the benefits that accrue to Pegasus Fishing Limited by a prosecution not proceeding.
• Any other matter which Maritime NZ thinks is relevant.
• The undertaking delivers benefits beyond compliance.
• The undertaking supports Maritime NZ’s strategic objectives.
• The undertaking contains acceptable terms.

KiwiRail Limited - Kaiarahi

7 April 2021

Maritime NZ has accepted an Enforceable Undertaking (EU) from KiwiRail as the result of an incident on the Kaiarahi Interislander Ferry in April 2019.

Summary of highlights of the enforceable undertaking

• Financial amends to the victims
• Rectifications and re-engineering of catch-all
• Development of an operational framework for co-efficient friction testing in marine environments
• Carrying out friction coefficient testing on the fleet and installing controls in areas where required
• Providing funding to Marlborough District Council for the development of a Marlborough wide proprietary tide and current system.

Reasons for acceptance

The enforceable undertaking meets the requirements of Maritime NZ’s Enforceable Undertakings Operational Policy (November 2018), considering:

• The activities in the enforceable undertaking and the expected 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 duty holder’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.
  • The undertaking accounts for the benefits that accrue to KiwiRail Limited by a prosecution not proceeding.
• Any other matter which Maritime NZ thinks is relevant.
• The undertaking delivers benefits beyond compliance.
• The undertaking supports Maritime NZ’s strategic objectives.
• The undertaking contains acceptable terms.

ISO Limited - Pakhoi

15 October 2020

Maritime NZ has accepted an Enforceable Undertaking (EU) from ISO Limited after an incident on the 19th December 2017 at Port of Tauranga.

Summary of highlights of the enforceable undertaking

• Financial amends to the victim
• Training program on working at heights in stevedoring
• Research and development of solution for access and egress from above-deck cargo
• Research and development into alternative methods of descending from above-deck cargo in case of emergency
• Publication and socialisation of findings from research into access and egress solutions
• Funding for the development of a stevedores’ ship safety database
• Funding and support for the operation of the Philips Search and Rescue Trust
• Donation to YMCA Te Whare Kohungahunga o Y Tamariki

Reasons for acceptance

The enforceable undertaking meets the requirements of Maritime NZ’s Enforceable Undertakings Operational Policy (November 2018), considering:

• The activities in the enforceable undertaking and the expected 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 duty holder’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.
  • The undertaking accounts for the benefits that accrue to ISO Limited by a prosecution not proceeding.
• Any other matter which Maritime NZ thinks is relevant.
• The undertaking delivers benefits beyond compliance.
• The undertaking supports Maritime NZ’s strategic objectives.
• The undertaking contains acceptable terms.

Enforceable undertakings (EUs) are an alternative intervention which is available to someone who has breached (including an alleged breach) the Health and Safety at Work Act 2015 (HSWA).

EUs are allowed under HSWA and are designed to provide an opportunity to make amends for an incident. This requires a commitment to drive health and safety change by making health and safety improvements to their workplace, the wider industry, their local community, and importantly for you – amends to victims and their loved ones. The undertaking is legally binding, and the activities must ‘raise the bar’ or promote progressively higher standards of health and safety in the given workplace, industry or sector. It is not a softer option.

EUs will not be imposed on a duty holder and we will not offer it – it is a voluntary initiative. A Duty Holder must apply for an EU by ’registering an interest’, followed by an application for an EU. If we accept the EU, we do so because we think the benefits are worth it. We will monitor the EU and ensure it is completed to a high standard. If the duty holder doesn’t meet our expectations, we have a range of options, including the ability to revisit the prosecution.

Timelines and the victims and whānau’s role

Accepting an EU requires charges to be withdrawn (where prosecution action has been taken). The Courts will usually adjourn proceedings to allow the duty holder time to progress through the EU process. EU applications usually have a number of aspects that must be covered, which means that this can take time to prepare and submit for consideration.

Once submitted, an EU Panel considers the application. The Panel is made up of a small group of senior leadership stakeholders representing the strategic and operational priorities of Maritime NZ.

The final agreement is between the Duty Holder and Maritime NZ. Ultimately reaching agreement is voluntary, and several factors are considered. This is explained further below.

As part of the process your views, which are important, are considered by the Panel. Regardless of whether the Duty Holder has sought your views while preparing their application, once the Panel has received the application, we will seek and consider your views on the application. We will discuss with you whether you support the EU and if appropriate, your views on specific activities or initiatives proposed. The Panel can also consider information from you relating to the incident and how it has impacted you.

An EU is not a simple or easy way out. It’s a serious and legal commitment. The duty holder must comply with the terms and conditions of the agreed EU, which we will closely monitor. If they break these terms, Maritime NZ can resume prosecution and even consider additional charges related to the EU violation. The Duty Holder is required to submit regular and final compliance reports to Maritime NZ. The EU remains in effect until it is formally discharged.

A commitment to drive health and safety change and make amends

Through an EU, the Duty Holder has an opportunity to undertake a range of activities (in addition to other commitments in the final agreement) for the benefit of their workers, the wider industry and local community. The EU must also include acceptable amends to any victims. Your opinions are valuable and taken into account along with the commitments and actions outlined by the EU. It’s important to consider the overall benefits of the EU, not just in terms of amends, but also in terms of promoting higher standards and long-lasting improvements in health and safety within workplaces and industries. The Panel consideration is not a negotiation. The applicant makes an application offering certain actions and undertakings, and we decide whether to accept or not, the process looks like this:

1. Duty Holder registers interest with Maritime NZ in an EU.
2. Duty holder submits an application.
3. An EU internal panel will consider the application, then either:
   1. provide feedback to the applicant
   2. recommend the application is declined, or
   3. recommend the application is accepted.
4. Then a final decision-making process to accept/ decline will take place.
   The EU application process can take time, often months. We’ll need to request court adjournments to the prosecution to consider the application – and we need to carefully consider all the factors to ensure we get it right.

Once an EU is accepted, it is made public. We are required by HSWA to make the outcomes of EUs publicly available on our website. This includes when we accept an EU and our reasons for accepting it.

Factors considered

Firstly, we look at the incident in context:

• What’s happened?
• What’s the history of the duty holder?
• Are there any aggravating or mitigating factors?

Then, we consider the activities (proposed benefits to health and safety over and above compliance with HSWA).

Lastly, we review the application based on Maritime NZ’s strategic priorities. We don’t assign specific importance to any particular aspect mentioned above. Instead, we evaluate the entire proposal in light of the incident’s circumstances.

What about compensation?

The Courts refer to ’reparation’ and also use the term ’amends’, as it gives us a slightly wider ability to consider (different) offers of compensation.

When it comes to the total payment, we compare the amends offered through the EU with the likely amount ordered by the Court as reparation. Our aim is to make sure that you are not disadvantaged by receiving amends through the EU instead of the matter going through the court. However, it’s important to note that we cannot negotiate on your behalf.

How to make your views on an EU known

This can happen in a number of ways, as many factors must be considered and may depend on:

1. Process: what stage is the prosecution at?
2. What stage is the EU application and process at?
3. Relationships: what is the relationship between all parties involved and how you can best be engaged with for obtaining your views?

You will have a primary contact at Maritime NZ (normally the lead investigator for the file known as the Officer in Charge (OC)). They will let you know if an EU process has been started, explain the process, and what you can expect.

It is our expectation that the Duty Holder will provide you with relevant information about the EU as it progresses (often before we know anything about it) but we realise that this relationship may sometimes be difficult. However, in the first instance, this is where specific information on proposed activities in the EU should come from.

We’re here to help you navigate this as easily as possible, so you can contact the EU team directly.

We’ll be happy to email or call you to discuss: EnforceableUndertakings@maritimenz.govt.nz

The EU Panel want to understand your views – this is often as easy as a discussion with the OC or EU team. We’ll also consider written submissions from yourself or any representatives you nominate.

What else to expect?

How long this will take to complete will vary. Often there will be large amounts of time when nothing seems to be progressing, and then everything happens at once. But we’ll work with you to guide you through this. If you have been keeping some notes or a journal as a record of things that have affected you since the incident that might help you with preparing to share your views with us. We will keep you updated and informed as the EU progresses through the stages – but please keep in mind that while the matter is before the courts, Maritime NZ staff are unable to discuss anything which could jeopardise the prosecution.

We’d rather the incident that has impacted you had not occurred in the first place. EUs are an alternative resolution opportunity to try and prevent these things happening again. An accepted EU demonstrates a commitment and provides an opportunity to drive higher standards and better health and safety outcomes to improve health and safety for current and future workers in Aotearoa.