WorkSafe’s Whakaari Prosecutions.

Ka aroha hoki ki ngā tāngata i mate i a Whakaari. Ngā mihi aroha ki ō rātou whānau.

What’s happened so far?

The trials for WorkSafe’s Whakaari prosecutions finished in October 2023, and sentencing is due in 2024. Contrary to social media rumours, WorkSafe did not charge any organisation for rescue actions; liability when undertaking rescue efforts is generally exempt from prosecution unless there are other circumstances, such as gross negligence. WorkSafe attempted to prosecute every entity associated with accessing or working with Whakaari except for the Royal Caribbean cruise line, which was exempt by way of the legislation.

I believe that WorkSafe used the Whakaari tragedy to test the extent of the Health and Safety at Work Act 2015 and build precedence for future workplace prosecutions. They charged thirteen individuals and companies in total, including tour supply chains, with a mixed result of guilty pleas, dropped or dismissed charges, and one organisation was found guilty. The supply chains included booking agents (who were never present on Whakaari), tour operators (sea and air) and the Whakaari landlords. Outside of tourism, two government organisations were charged; one carried out activities on the island, and the other did not.

Simply put, WorkSafe targeted the lack of safety preparedness, consultation, coordination and cooperation among the entities, regardless of whether those entities accessed Whakaari for work or tourism and whether people from the various entities were on Whakaari at the time of the eruption. In other words, the entities’ safety plans and actions were insufficient to keep themselves and others safe, and they didn’t coordinate their overall efforts to keep people safe.

In testing the legislation, the courts tested each entity:

1. Could Whakaari be considered the entity’s workplace; if so, there was a duty to keep workers and other people safe
2. Did the entity have policies and procedures in place to keep workers and other people safe; if so, were the policies and procedures followed
3. Did the entity consult, coordinate and cooperate with others to keep workers and other people safe

Attempting to prosecute the government’s National Emergency Management Agency (NEMA) was an interesting decision (charges against NEMA were dismissed). NEMA did not undertake work on Whakaari or send any workers or other people there. Simply put, WorkSafe attempted to present NEMA as responsible for communicating the risks posed by volcanic activity, but the court ruled that NEMA’s actual work activities did not put people at risk. Similarly, the ticketing agents’ work activities did not involve sending workers to Whakaari; therefore, Whakaari was not a workplace for the agents, and they had no health and safety responsibilities there. The remaining entities were in control of sending or taking workers and members of the public to and from Whakaari.

Some direct comparisons

The charges against the three individual directors of Whakaari Management Ltd (the landlord) were dismissed because of a lack of evidence. There was no evidence (such as meeting minutes) that detailed their personal decisions not to provide a safe environment upon Whakaari. Generally, our “directors” (chairpersons, committee members, and board members) are volunteers and exempt from prosecution unless there are other circumstances, such as personal negligence.

Whakaari Management Ltd (the landlord) was found guilty of not taking all reasonably practicable steps to keep people safe, such as consulting, coordinating and cooperating with the entities that come on site. Many of our buildings and some rooms are hired out, and this makes us landlords, too. We also have contractors and subcontractors come onto our properties, so we have the same responsibilities that Whakaari Management Ltd had (although our onsite hazards are much, much smaller).

We also have ‘supply chains’. Tenants link to parish/rohe councils or committees, maybe then to Synods or Hui Poari, and then to the General Secretary and Presidential Team and then to Conference, plus our union parishes will have partner churches involved as well. We also need to consult, coordinate, and cooperate within our Connexion.

How does this relate to the Church?

We have a list of non-negotiable activities we have to do as landlords and property stewards.

• If the building requires a Building Warrant of Fitness (which the council will tell you), ensure it is up to date.
• If the building requires a Fire and Emergency NZ (FENZ) approved evacuation plan, ensure it is current by lodging evacuation reports with FENZ.
• Have a current Emergency Response Plan (ERP) for each building
• Run drills or training sessions on the events included in the building ERP, including all building users, as practicable.
• Know and eliminate or reduce hazards (fixed ladders vs. portable ladders for accessing heights, managing all asbestos, EQ proofing the buildings, etc.)
• Share that plan with building users and building/room hirers, and include the relevant aspects of the ERP in room hire agreements.
• Ensure all contractors on site have a site-specific safety plan relevant to the risks they are working with onsite: asbestos, electricity, height, confined spaces, working around other people/children/vulnerable adults etc., and that they know about pre-existing hazards.

Whakaari Management Ltd has a high-risk hazard on their land to manage. The only things Whakaari Management would not have had to do from our list were to ensure an up-to-date BWoF or coordinate with FENZ. While it’s impossible to eliminate a volcano, they should have managed absolutely everything else as was reasonably practicable to reduce the known risk. They did not.

This means they need to know how to evacuate a burning island.

Given that fire trucks won’t be turning up, what do you do instead?