19 September 2017

On 13 May 2016 a worker on a quad bike collecting kiwifruit samples from an orchard overbalanced on an incline and trapped the worker. The worker was killed as a result.

It should be noted that an enforceable undertaking is not usually an accepted alternative to prosecution where an alleged contravention has resulted in a fatality. In this case Zespri International Limited’s failures were not directly causative to the death of the worker.

Alleged breach

Sections 36(1)(a), 48(1) and (2)(c), of the Health and Safety at Work Act 2015.

Summary of undertaking

Zespri International Limited will:

• Continue to arrange and meet the cost of health and safety presentations to growers on a bi-annual basis, including specific specialists to discuss issues and solutions relevant to growers.
• Complete ongoing accredited health and safety management training for all senior and industry-facing managers.
• Develop a programme for overseeing contractors’ activities with service providers who contract directly with Zespri International Limited.
• Require annual audits of orchard mapping and induction processes for entities with whom Zespri International Limited contracts directly for on-orchard activities.
• Engage an external auditor to review its contracting management protocols, including orchard mapping and induction processes.
• Initiate information campaigns relation to health and safety.
• Fund industry wide research for high hazard areas of the industry and into a safety issue relevant to the industry.
• Make freely available health and safety materials for industry participants.
• Sponsor and promote the Horticultural Industry Health and Safety forum.
• Establish a tertiary scholarship for accredited health and safety studies.
• Deliver public education programmes about the risks in the kiwifruit industry.
• Provide reparations to the victim’s family.

This enforceable undertaking has a total expenditure of at least $249,500 (including WorkSafe’s recoverable costs).

Reasons for accepting the undertaking

• The alleged contravention is not a section 47 (reckless conduct) offence which would preclude it from being accepted.
• The enforceable undertaking meets the requirements of WorkSafe’s Enforceable Undertakings Operational Policy document dated December 2016; in particular noting:
• The nature of the alleged misconduct and how serious it was.
  • Zespri International Limited contracted with AgFirst Bay of Plenty Limited to provide sample collection services for the kiwifruit industry.
  • Although Zespri International Limited was not directly involved in the sample collection arrangements or activities on that day, it recognised that as the contractual party, that prescribes requirements for samples and sample collection, it has an important role to play in contributing to health and safety requirements.
  • While not directly causative of the death which ultimately occurred, in the absence of the alleged failures, a different outcome may have occurred.
• Submissions received from any interested party, including any victim(s), in relation to the contravention.
  • Acceptable amends were offered to the victim’s family.
  • The victim’s daughter was supportive of an enforceable undertaking as an alternative to a prosecution.
• The person’s conduct in respect of mitigation and remedial action, regarding both the contravention and any person affected by the contravention (including victims).
  • Zespri International Limited has:
    • Expressed regret and remorse for the incident
    • Supported the new contracting party, Eurofins Bay of Plenty Limited, and its predecessor, AgFirst, with its health and safety review and revised procedures
    • Required growers to provide a list of hazards at its workplace in addition to the orchard map
    • Put in place a formal “stop sampling” procedure to identify and implement corrective actions for worker safety
    • Provided orchard health and safety tools to Zespri International Limited employees
    • Engaged an external party to review health and safety obligations in relation to maturity clearance sampling
    • Directly communicated health and safety obligations to growers in relation to third parties carrying out on-orchard activities
    • Made a statement confirming that the behaviour, activities and other factors which led to the contravention have ceased and will not reoccur 
    • Shown a commitment to implementing the activities agreed in this undertaking.
  • The activities in the enforceable undertaking will provide long-term sustainable health and safety improvements in the workplace, industry and community.  
• The person’s past performance and history of compliance with health and safety legislation.
  • Zespri International Limited does not have any previous health and safety convictions.
• Any other matter which WorkSafe thinks is relevant
• The undertaking offers sufficient benefit to offset the seriousness of the offending.
• The undertaking accounts for the benefits that accrue to the PCBU by the prosecution not proceeding.
• The undertaking includes WorkSafe’s involvement in the messaging and outreach of the activities that Zespri International Limited commits to undertake.

Date accepted

19 September 2017

Further information

View the full Zespri International Limited enforceable undertaking here: