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YOU HAVE THE RIGHT TO REMAIN SILENT
Wednesday May 30, 2012 11:01
In a remarkable decision in August 2011 the High Court has interpreted the HSE Act in a way that limits the Department of Labour's powers to compel a company employer to provide someone to attend an in-person interview, and also narrows the scope of questions the DoL can ask.
The directors hired a lawyer who wrote to the DoL and explained the directors were happy to co-operate, but wanted details of what they would be asked. The inspector responded with some very general topics but refused to disclose her specific intended questions. The DoL also refused an Official Information Act request from the directors, on the basis that disclosing the DoL’s file would prejudice its investigation. Eventually the case went to the High Court.
The HSE Act gives inspectors the power to require an employer or person who controls a place of work to make or provide statements, in any form and manner the inspector specifies, about conditions, material, or equipment that affect the safety or health of employees who work there. The power is limited by section 31(6), which preserves the right against self-incrimination.
The argument was whether this right against self-incrimination, and the separate common law right to silence meant the directors were entitled to information from the DoL before being interviewed.
The Court started by confirming that where the employer is a company, and not a person, the DoL cannot compel or demand a director or other company representative to undergo an interview on its behalf. An interview can only be conducted with a person, and the power to require a company to make or provide statements can be sufficiently exercised by the inspector asking written questions and the company responding with a written statement answering them.
The Court held that as the inspector invoked her powers in the context of possible criminal offences under the HSE Act, the right to silence arose. There was also a right under the NZ Bill of Rights Act 1990 to not be compelled as a witness.
The High Court decision does not stop companies making someone available to be interviewed by consent, and many employers are likely to want to co-operate with requests for interviews.
This decision places considerable constraints on the DoL’s current investigating practices, and will make it harder for inspectors to get an accurate picture of what happened in an incident. Unsurprisingly, given the importance of this decision, the DoL is appealing.
From Safeguard magazine
WHEN DOL COMES CALLING 29/11/12
Recent prosecutions by the DoL serve as a reminder that injury or harm are not prerequisites for prosecution under the Health & Safety in Employment Act.
While prosecutions without harm have traditionally been rare, numbers have increased steadily in recent years. It is likely this trend will be reinforced after the Pike River Mine tragedy, and workplaces need to prime themselves for unannounced DoL inspections and audits.
Sleepyhead Manufacturing Company Limited was issued an improvement notice relating to an unsafe conveyor during a DoL inspection. Despite promptly complying with the improvement notice and making the conveyor safe, Sleepyhead was prosecuted for failing to prevent its employees being exposed to the hazardous machine.
The judge commended the DoL for being proactive by taking prosecution action, despite there being no injury or harm, andemphasised that the HSE Act is intended to be preventative. Sleepyhead was convicted and fined $40,000.
Another emerging trend is enforcement action against plant designers, manufacturers and suppliers. The DoL is sending a message that manufacturers and plant designers’ obligations do not end upon the sale or installation of equipment.
The DoL prosecuted Realcold Milmech Limited after a meat worker broke his leg while using some of its equipment in a meat processing factory. The department considered that there were a number of practical steps Realcold could have taken as a manufacturer, including a hazard assessment for the likely use of its machine, ensuring that dangerous aspects of the machine could not operate during maintenance and cleaning, and incorporating mechanisms to stop access to those areas while the machine was operating. Realcold was fined $44,000 and ordered to pay reparations of $9,000 to the victim.
For all businesses, the message is clear. The DoL is being proactive and vigilant. Make sure the next business it teaches a lesson isn’t yours. From Safeguard magazine.
YOU HAVE THE RIGHT TO REMAIN SILENT
Wednesday May 30, 2012 11:01
In a remarkable decision in August 2011 the High Court has interpreted the HSE Act in a way that limits the Department of Labour's powers to compel a company employer to provide someone to attend an in-person interview, and also narrows the scope of questions the DoL can ask.
- HSE Act Section 31(6) preserves the right against self-incrimination
- Common law right to silence
- NZ Bill of Rights Act to not be compelled as a witness
The directors hired a lawyer who wrote to the DoL and explained the directors were happy to co-operate, but wanted details of what they would be asked. The inspector responded with some very general topics but refused to disclose her specific intended questions. The DoL also refused an Official Information Act request from the directors, on the basis that disclosing the DoL’s file would prejudice its investigation. Eventually the case went to the High Court.
The HSE Act gives inspectors the power to require an employer or person who controls a place of work to make or provide statements, in any form and manner the inspector specifies, about conditions, material, or equipment that affect the safety or health of employees who work there. The power is limited by section 31(6), which preserves the right against self-incrimination.
The argument was whether this right against self-incrimination, and the separate common law right to silence meant the directors were entitled to information from the DoL before being interviewed.
The Court started by confirming that where the employer is a company, and not a person, the DoL cannot compel or demand a director or other company representative to undergo an interview on its behalf. An interview can only be conducted with a person, and the power to require a company to make or provide statements can be sufficiently exercised by the inspector asking written questions and the company responding with a written statement answering them.
The Court held that as the inspector invoked her powers in the context of possible criminal offences under the HSE Act, the right to silence arose. There was also a right under the NZ Bill of Rights Act 1990 to not be compelled as a witness.
The High Court decision does not stop companies making someone available to be interviewed by consent, and many employers are likely to want to co-operate with requests for interviews.
This decision places considerable constraints on the DoL’s current investigating practices, and will make it harder for inspectors to get an accurate picture of what happened in an incident. Unsurprisingly, given the importance of this decision, the DoL is appealing.
From Safeguard magazine
WHEN DOL COMES CALLING 29/11/12
Recent prosecutions by the DoL serve as a reminder that injury or harm are not prerequisites for prosecution under the Health & Safety in Employment Act.
While prosecutions without harm have traditionally been rare, numbers have increased steadily in recent years. It is likely this trend will be reinforced after the Pike River Mine tragedy, and workplaces need to prime themselves for unannounced DoL inspections and audits.
Sleepyhead Manufacturing Company Limited was issued an improvement notice relating to an unsafe conveyor during a DoL inspection. Despite promptly complying with the improvement notice and making the conveyor safe, Sleepyhead was prosecuted for failing to prevent its employees being exposed to the hazardous machine.
The judge commended the DoL for being proactive by taking prosecution action, despite there being no injury or harm, andemphasised that the HSE Act is intended to be preventative. Sleepyhead was convicted and fined $40,000.
Another emerging trend is enforcement action against plant designers, manufacturers and suppliers. The DoL is sending a message that manufacturers and plant designers’ obligations do not end upon the sale or installation of equipment.
The DoL prosecuted Realcold Milmech Limited after a meat worker broke his leg while using some of its equipment in a meat processing factory. The department considered that there were a number of practical steps Realcold could have taken as a manufacturer, including a hazard assessment for the likely use of its machine, ensuring that dangerous aspects of the machine could not operate during maintenance and cleaning, and incorporating mechanisms to stop access to those areas while the machine was operating. Realcold was fined $44,000 and ordered to pay reparations of $9,000 to the victim.
For all businesses, the message is clear. The DoL is being proactive and vigilant. Make sure the next business it teaches a lesson isn’t yours. From Safeguard magazine.
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