Stumpmaster v WorkSafe New Zealand [2018] NZHC 2020

Three companies appealed against fines imposed by the District Court for serious health and safety breaches under the Health and Safety at Work Act, claiming the Court had erred in the way it had given effect to the Act’s considerable increase in the maximum available fine (formerly $250,000). The first appeal succeeded, the other two did not but the case confirms how the courts now intend to approach health and safety sentencing. The Sentencing Act’s sentencing criteria are first applied and then a four-step process followed:

• the amount of reparation is assessed
• the amount of the fine is fixed first by reference to guideline bands (see below) and then with regard to aggravating and mitigating factors
• the court decides whether further HSAW orders are needed (e.g. an order for payment of the regulator’s costs in bringing a prosecution, an order for restoration etc.)
• there is an overall assessment of the proportionality and appropriateness of the above sanctions, combined, including an assessment of ability to pay and whether an increase is needed to reflect the employer’s financial capacity.

The guideline bands are:

• low culpability: up to $250,000
• medium culpability: $250,000 to $600,000
• high culpability: $600,000 to $1,000,000
• very high culpability: $1,000,000 plus

Fines must not generally be reduced by the amount of a reparation order. Large discounts can undermine the statutory purpose and it is contrary to sentencing principles for those with previous convictions to receive the same global discount as those without when a component of the discount is a previous good record. A further discount of a size such as 30% is to be expected only where a case exhibits all mitigating factors to a moderate degree or one or more such factors to a high degree. An offender’s overall financial resources is one mitigating factor to be considered.
(Barbara Burton bburton@businessnz.org.nz)

Pan Pac Forest Products Ltd v First Union Inc and E Tū Union Inc [2018] NZ EmpC 91

Following the unions’ failure to agree to vary the collective agreement (CEA) allowing two positions to be removed from its manning table, the company looked to use the CEA’s redundancy clause. It sought orders from the court that the restructure was lawful and the clause could be used for that purpose. This involved determining whether the manning table could be modified only by means of an agreed variation which meant interpreting the relevant clauses. To that end, the court set out the legal principles for interpretation as determined by the Supreme Court.

• Intention is to be determined objectively by deciding what the document would have conveyed to a reasonable person with all the background knowledge reasonably available to the parties at the time of the contract.
• The text is centrally important but the focus is on the context, not the particular words. It will be a powerful, though not conclusive, indicator of intention if, in the context of the contract as a whole, the language used has an ordinary and natural meaning, although the wider context may point to an interpretation other than the most obvious and also assist in determining what was meant in cases of ambiguity or uncertainty.

After examining the relevant clauses, the court found agreed alterations to the manning table were not part of the CEA’s work schedules and so the unions’ agreement to vary was not required. And it agreed the CEA’s redundancy provisions could apply to the sawmill workers. But as the company had indicated it did not intend to make anyone redundant, achieving a reduction in staff levels by attrition and redeployment, the redundancy clause could not be used. Currently, the company’s proposal fell under the CEA’s generic variation clause. The orders sought were declined.
(Barbara Burton bburton@businessnz.org.nz)

Privacy Bill

The bill, now before the Justice Select Committee, is intended to replace the 1993 Privacy Act. Much of it is in the same terms (though in rather more simple English) with the main changes being:

• a breach of someone’s privacy rights resulting in serious harm or the possibility of serious harm, will require the agency holding the personal information to notify both the Privacy Commissioner and the person or persons concerned as soon as practicable. Failure to notify could lead to a maximum $10,000 fine.
• the Privacy Commissioner will have greater ability to enforce privacy standards by issuing both compliance notices and, where there has been a request for access to personal information, a binding decision.
• agencies (that includes any employer) will have to ensure personal information sent overseas is protected, sending it only to countries with privacy laws comparable to New Zealand’s or if authorised to disclose by the individual concerned.
• individuals can be fined for falsely representing they have authority under the Act or if they knowingly destroy documents relating to a personal information request (again, a $10,000 maximum is proposed).

Most, if not all, businesses hold personal information about their staff, clients or customers and should therefore consider how the proposed changes will affect them. For example, determining if a privacy breach has raised the possibility of serious harm requiring anyone affected to be notified. Submissions close on 24 May.
(Barbara Burton bburton@businessnz.org.nz)

BusinessNZ submitted on the Bill and was later asked to talk to the Ministry of Justice about its submission. The Bill’s report back date is 22 November 2018.

Administration of Justice (Reform of Contempt of Court) Bill

This is a private member’s bill aimed, as its name indicates, at reforming the law of contempt and incorporating all relevant statutory provisions and the effect of some court decisions in a single statute. BusinessNZ’s submission concentrated on one aspect of the bill, namely, the need for a definitive decision on the (currently somewhat unclear) status of the Employment Court. BusinessNZ recommended that ‘in the interests of avoiding the need to treat the Employment Court ‘as if the Court were the District Court’ (as the bill does in its second Schedule, ‘Consequential amendments to other enactments’, which is essentially a legal fiction), the Employment Court should be given statutory recognition as a division of the District Court.
(Barbara Burton bburton@businessnz.org.nz)

Administration of Justice (Reform of Contempt of Court) Bill

This is a private member’s bill aimed, as its name indicates, at reforming the law of contempt and incorporating all relevant statutory provisions and the effect of some court decisions in a single statute. BusinessNZ’s submission concentrated on one aspect of the bill, namely, the need for a definitive decision on the (currently somewhat unclear) status of the Employment Court. BusinessNZ recommended that ‘in the interests of avoiding the need to treat the Employment Court ‘as if the Court were the District Court’ (as the bill does in its second Schedule, ‘Consequential amendments to other enactments’, which is essentially a legal fiction), the Employment Court should be given statutory recognition as a division of the District Court.
(Barbara Burton bburton@businessnz.org.nz)

The bill is due to be reported back to the House on 2 November 2018

Domestic Violence - Victims’ Protection Act 2018

The Act, which began life as a private member’s bill, has been assented to but does not come into force until 1 April 2019. Most significantly, it provides for any employee affected by domestic violence to take up to 10 days’ domestic violence leave yearly (under the Holidays Act) and for such employees to request a short-term (two months or shorter) variation of their current working arrangements (under the Employment Relations Act). The violence does not have to be current and requests could relate to violence experienced at some time in the past.
(Barbara Burton bburton@businessnz.org.nz)

Forum attended

Workbridge Council meeting

Updates on Workbridge activity associated with finding employment for people with with disabilities. Proposed review of Workbridge governance structure.
(Barbara Burton bburton@businessnz.org.nz)