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Enforceable undertakings

Published: 30th November 2018

Author: Ashleigh Bennett, Simpson Western

Published in: Fineprint, Summer 2018, No 77

Enforceable undertakings

An alternative to prosecution under health and safety legislation

Enforceable undertakings were introduced in the Health and Safety at Work Act 2015 (HSWA) as an alternative to prosecution. An organisation that has breached its health and safety obligations, and is under investigation by WorkSafe, can enter into a binding agreement with WorkSafe to remedy their breaches, rather than going through prosecution and sentencing. In this article we discuss the features of this alternative and the potential benefits of taking this path.

Enforceable undertakings are not an easier or lower cost alternative to prosecution, but there are other benefits to a business.

Firstly, by entering into an enforceable undertaking your organisation can avoid the cost, time and negative publicity associated with prosecution and sentencing, and avoid a significant fine.

Secondly, enforceable undertakings are required to address the breach, provide compensation for the victim and their family, and to also have a wider industry or community benefit. Organisations can ensure that even where a tragic accident has taken place, there can be positive outcomes.

 

Common features

Since the HSWA came into force in April 2016, WorkSafe has entered into 21 enforceable undertakings. Common features are for an organisation to:

  • Commit to address health and safety issues identified as a result of the breach or subsequent investigation, and to provide health and safety training to its workers to ensure the breach does not recur
  • Provide compensation to the victim or their family (usually topping up the victim’s ACC to 100% of their lost earnings and paying additional reparations) and, where possible, it commits to future assistance for the victim
  • Agree to develop, fund and implement industry-wide initiatives to improve health and safety more generally across their industry. For example, Fletcher Construction was required to establish a health and safety forum with local hire companies, and
  • Commit to a community-focused contribution or initiative. Examples include establishing tertiary health and safety scholarships, significant donations to charitable organisations, and public advertising campaigns on health and safety.

WorkSafe will not accept an enforceable undertaking where it does not provide benefits for the organisation, the victim, and the wider industry and community.

 

Significant cost to undertake

Given the high costs of enforceable undertakings, an average of $178,402, enforceable undertakings have proved popular with larger organisations that have the resources to negotiate and implement them (for example, Zespri, Downer and Fletcher Construction). It remains to be seen whether smaller organisations will also embrace enforceable undertakings, and how WorkSafe will take into account the financial and resourcing constraints those smaller organisations will face.

Prosecutions under the HSWA can have very serious consequences for your business, both financially and reputationally. If you are being investigated by WorkSafe, we highly recommend that you talk with us and consider whether an enforceable undertaking is the right path for you.

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  • Taranaki
  • Waikato
  • Wairarapa
  • Wellington
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Mike Lucas Law

We are a small law firm based in the business hub of Manurewa, South Auckland, New Zealand.

We are delighted to have many clients in Manurewa and Manukau City, as well as in the wider Auckland region and New Zealand and abroad.

We think the best evidence of the value we add comes from our clients themselves. Our nomination and final position as First Runner up of the highly competitive and prestigious Regional Law Firm of the Year Award 2007 depended on our clients' endorsements of our work.

Region: Auckland

Phone: 09 269 2844

Koning Webster

Koning Webster Lawyers was established in April 2011 by founding directors John Koning and Spencer Webster.  Their vision was to establish a firm that provides the highest quality legal advice to Maori entities and other parties dealing with Maori land and natural resources.  The firm now advises a wide range of clients within the Bay of Plenty and throughout New Zealand.

Koning Webster Lawyers values its ability to provide our clients with the highest levels of legal advice and customer service.  As a small and flexible firm, Koning Webster Lawyers is able to provide this specialist advice to clients in an efficient and cost-effective manner.

Region: Bay of Plenty

Phone: 07 547 4283

Argyle Welsh Finnigan

Argyle Welsh Finnigan is a leading law firm in Ashburton,  the town servicing mid Canterbury, New Zealand.

The firm employs a team of over 25 legal professionals, including three Senior Associate Solicitors, three Staff Solicitors and five Legal Executives.  Our firm provides quality legal services with a commitment to our clients and to understanding their individual needs and requirements. 

With more than one hundred years of combined legal experience, we are able to offer prompt and professional advice on a wide range of legal matters.

Region: Canterbury

Phone: 03 308 8228

Purnell Lawyers

There is nothing as inevitable as change. Since opening for business early last century, we at Purnell Lawyers have seen many changes both in name and in the people who have made up the members of our team. We have been privileged to have served the public throughout all of these times. 

We are confident that we will continue to bring top quality legal services to our clients well into the future.

Region: Coromandel

Phone: 07 868 8680

Woodward Chrisp

At Woodward Chrisp we strive to meet the needs of our clients by providing a wide range of high quality legal services within a supportive and collaborative environment.

Woodward Chrisp is the amalgamation of two long established Gisborne legal firms: Woodward Iles & Co and Chrisp and Chrisp. Today’s partners are Ross Revington, Adam Simperingham and Jeff Allen.

Region: Gisborne

Phone: 06 869 0900

NZ LAW Limited

NZ LAW Limited is an association of independent legal practices with member firms located throughout New Zealand. There are currently 57 member firms practising in a wide range of legal disciplines ranging from business law, home buying and selling, immigration law and intellectual property to aviation law and viticulture.

The group was established in 1992 when about five law firms met in Auckland to find a way to benefit their clients by replicating the conviviality and the sharing of ideas and expertise that occurs in larger law firms, but still be able to retain client confidentiality and their own independence.

Region: Hawke's Bay

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Breaden McCardle Lawyers

Breaden McCardle Lawyers is the largest full service legal practice in the Kapiti Region.

We are here to help you and pride ourselves on providing practical, solutions based advice to clients in an approachable and straightforward manner.

Region: Kapiti Coast

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Innes Dean Tararua Law

Our history in the Manawatu and Tararua Districts dates back to 1884. With offices in Palmerston North and Pahiatua our firm stands on a long tradition of high standards and sound legal advice.

Our size means that every one of our clients are dealt with on a professional, yet personal basis.

Region: Manawatu - Wanganui

Phone: 06 358 6075

Wain & Naysmith

Based in Blenheim, Wain & Naysmith Lawyers is a full service law firm, and a powerhouse for property, family and business law.

We pride ourselves in providing clear and cost effective legal solutions and practical advice for you, your family and your business.

Region: Marlborough

Phone: 03 520 6103

Knapps Lawyers

As a firm, we promise to look after you and treat you in a manner that we would expect to be treated by a professional services provider; we promise to use every available legal remedy available to us to resolve your issue and to do what you ask us to do in a timely manner.

We will hold in strict confidence all information that we acquire through our work for you and which concerns your business or personal information.  The only exceptions are where you authorise us to disclose such information or where we must do so by law.

Region: Nelson

Phone: 03 544 7888

Law North Limited

We pride ourselves on being a "general store" for most legal issues but also have several in-house experts in specialised areas including trusts, relationship property, business and property law.  No matter what your issue is - whether you are looking for trusted legal advisers to steer you through life, or you have a one-off problem to sort out - we would be pleased to help.

Law North Ltd provides a broad range of legal services across the Far North district from our base in Kerikeri.   We have operated in the area for over 100 years and have a long-standing history of providing legal services to a diverse client base, including businesses and private clients.   Our directors and their families have been part of the Bay of Islands community for several generations and remain committed to the area and its people.  We often call upon strong local knowledge to resolve issues for clients whilst remaining vigilant about client confidentiality.

Region: Northland

Phone: 09 407 7099

Sumpter Moore

Sumpter Moore is based in South Otago and has a proud history of having provided a broad range of legal services to personal clients and businesses since 1873. Generations of families have been able to rely on our advice and assistance, because Sumpter Moore has stood behind that advice for over 100 years.

Sumpter Moore has fully serviced offices in both Balclutha and Milton, our relatively small size means we can work closely with our clients and you know who will be personally responsible for your legal affairs. It allows us to have close control over the quality and timeliness of the advice you receive.

Region: Otago

Phone: 03 418 0066

Cruickshank Pryde

We are proud to provide a full suite of legal services to the regions of Southland and Central Otago. With our offices, located in Invercargill, Gore and Queenstown, equipped with the latest modern technology, we can service wider New Zealand and international clients with ease. Our areas of expertise include commercial, rural, business, employment, family, criminal, property, resource management and estate planning law.

Region: Southland

Phone: 03 214 4069

Welsh McCarthy

Welsh McCarthy practises in Hawera, South Taranaki. Predominant industries in the South Taranaki district are dairy farming, oil and gas. The South Taranaki area also has the largest one-site multi product milk processing facility in the world

We deal with company and commercial transactions, commercial and family law, farm and residential sales and purchases, estate planning and family and charitable trusts. A large part of the firm also deals in the area of family law.

Region: Taranaki

Phone: 06 278 5039

Edmonds Marshall

Edmonds Marshall, Lawyers, Matamata has been providing legal services to individuals and businesses since 1918, when the partnership was known as Buchanan & Purnell.

John Buchanan moved from Thames to Matamata to open another office of Buchanan & Purnell in 1918. Mr Buchanan was also Mayor of the Matamata Borough Council from 1941-1942 and he played a large part within the Matamata community, inaugurating several of the local sports clubs.

Region: Waikato

Phone: 07 888 8137

Gawith Burridge

Gawith Burridge traces its history back to 1875 when Charles Gawith first set up his practice. Since then the firm has undergone many changes, including a merger between Gawith & Co and Burridge & Co in 1998 to form our current practice.

Our firm draws on the breadth of expertise available from some of the region’s most senior legal practitioners, as well as the skills of those who have moved here from larger corporate environments.

As a result, we provide clients with a comprehensive range of legal services right here in the Wairarapa. We can provide you with legal assistance whether you are an individual or a company, with everything from setting up a Will to selling your farming business. 

Region: Wairarapa

Phone: 06 370 0000

Gillespie Young Watson

We specialise in Property, Commercial and Trust Law. When it comes to law firm size we are bigger than smaller and smaller than big. By limiting the work we do to our specialist areas, we like to think we bring together the best of big firm skill sets with the personal care, attention and relationships of small firms.

We expect our clients to receive clear, practical and timely advice. We place a premium on accessibility and convenience to our clients. We value and appreciate all of our clients and want to do the best possible job for each of them. When we close a file we want the client to feel they have received exceptional advice, service and value.

Region: Wellington

Phone: 04 569 3997

Hannan & Seddon

The Law Firm of Hannan & Seddon dates back to September 1867.

The firm's offices were in Werita Street from 1867 until 1982 when the firm moved to Tarapuhi Street and then to its current spacious premises at 61 Guinness Street in 1998.

The name Hannan comes from Mr Michael Hannan whose son John Hannan (Jack) joined the firm in 1908. Jack Hannan remained in partnership until he passed away in 1974 at the age of 90!

The name Seddon comes from Mr T E Y Seddon (son of Premier Richard John Seddon from Kumara) who joined the firm in the 1920's. The other prominent Solicitor at Hannan & Seddon was Cyril McGinley who joined the firm in the late 1920’s and retired as a Consultant in 1997 aged 87.

Currently we have two Partners within our firm. Tony Sullivan who has been with us for 29 years and Colin Smith, 26 years. The firm also has two long serving Legal Executives Elaine Knowles and Beverley Walsh.  

Region: West Coast

Phone: 03 768 4169

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