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First failed WorkSafe prosecution

01 Oct 2018


Athenberry Holdings Ltd grows Kiwifruit near Katikati. Zespri buy the fruit, brand, market and sell the fruit. Zespri engaged Agfirst to sample and test maturity and quality of fruit. Agfirst use a local packhouse Hume to collect the samples.

AgFirst's sample collector died during the collection of fruit when her quad bike overturned on rough ground next to Athenberry's kiwifruit block. She was employed by AgFirst who had contracted a local packhouse - Hume Pack-N-Cool Ltd (Hume).

It appears the rider had taken the quad bike over steep and rough terrain away from the area where she was required to collect samples. Her training and industry practices are that you stick to the offical and mown access paths. No-one was sure why she deviated.

As in many modern workplaces there can be several different companies (PCBUs) present. In this case WorkSafe brought charges against all four of them.

WorkSafe alleged that Athenberry (the growers) should have identified and controlled ALL potential hazards that samplers may encounter, including quad bike rollovers on steep terrain. The Court however, decided this was impractical on a 160ha block if riders were going to stray to areas not permitted.

Further, for farms, only the farm buildings, and locations where work is being carried out at any particular time, are considered to be workplaces.

Zespri entered into an Enforceable Undertaking with WorkSafe and charges were dropped.

Agfirst as the employer pleaded guilty as the PCBU and failures under the primary duty of care. Sentencing is still outstanding.

Athenbury and Hume pleaded not guilty and were successful in having all charges dismissed in Court.

Interesting points are that WorkSafe will lay charges against all PCBUs present and deemed them all to have had some influence and responsibility at the worksite.

The Court decision, adopts a far more practical approach that took in physical context and accepted industry practices.

ends

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