The Maritime Union of New Zealand has welcomed the conviction of former Ports of Auckland (POAL) CEO Tony Gibson for failing to undertake due diligence to ensure that the company complied with its health and safety obligations. The charges followed the 2020 death of a wharf employee when a container fell on him from a crane.
The case is significant as it is the first time that an officer of a large company has been prosecuted for a breach of their due diligence under NZ’s health and safety laws – a duty that is reflected in Australia’s national Work Health and Safety Act.
The conviction serves as a reminder that executive officers cannot simply assume that their organisation’s systems and practices are adequately addressing health and safety risks and must properly inquire and verify that their organisation’s systems are adequately addressing the health and safety risks of their business.
Maritime Union of New Zealand National Secretary Carl Findlay says the conviction brings to an end “an era of failure at the highest levels of Port of Auckland which had tragic outcomes for workers, their families and their colleagues.”
Mr Findlay says the Maritime Union repeatedly attempted to draw attention to health and safety concerns at POAL during Mr Gibson’s tenure, but their concerns were minimized and downplayed.
In August 2020 while on a night shift the employee was working as a ‘lasher’ at POAL while a crane operator began the lift of two containers. The crane operator did not realise that a third container was attached by a lock mechanism to one of the containers being lifted. When all three containers were suspended the lock mechanism gave way under the weight of the third container, which fell and killed the lasher.
The court found that Gibson - who resigned in 2021 following a string of deaths and serious incidents at the port – had the capacity and ability to influence the conduct of POAL in relation to health and safety and had not done so. He had not ensured that effective reporting lines were established and operational and had not taken active steps ensure assessment and control of hazards.
The judgment clarifies that the scope of due diligence obligations owed by officers is relative to the risk inherent to their workplace and what they are expected to know as officers. CEOs (or other officers) are expected to get the right information from the right people and ensure that action is taken to address the risks known to them (or which ought to be known to them).
As Gibson awaits sentencing it is important for company officers, in NZ and Australia alike, to consider how they ensure that safety is managed effectively in their own companies – it is time for them to ask the right questions and confirm the right actions to ensure that their employees are safe at work.
Landmark ruling: Former CEO convicted of health and safety violations | HRD New Zealand
