Illegally working overstayer dies on the job - ACC payment made to widow in China

Yu Xingming (left) at work on a building site. Photo / Supplied

ACC has paid a compensation settlement to the China-based widow of an illegal worker killed on a building site while in New Zealand without a valid visa.

Yu Xingming died on a building site in Hobsonville, Auckland, in May 2019 after falling to a concrete floor where he struck his head on wood.

A Worksafe NZ report obtained by the Herald through the Official Information Act shows Yu was in New Zealand illegally and was working illegally at the time he died.

Correspondence from ACC seen by the Herald shows a settlement has been reached with his wife Du Xiangli in China's Shandong province.

An ACC staff member wrote to Unite Union's Mike Treen that "ACC is able to accept Mrs Du Xiangli as the spouse of the late Xingming Lu".

The ACC worker said a "one-off grant" would be paid to Du and later confirmed the payment had been made in October.

Taxpayer compensation for Yu's death at work has been welcomed as evidence the ACC scheme is working as intended - providing quick support in cases where people are injured or killed without the need for years of litigation.

Du told the Herald she was the sole earner in her family. Aside from normal living costs, she also supported her and Yu's son, who was in university, and her mother-in-law, 75.

"Our family has no means of survival. It's just impossible right now. I don't have a permanent job, so I work whenever there's work available and that's not always the case."

Du praised Worksafe NZ's approach to the investigation as "very professional".

"They're amazing," she said.

"My husband worked himself to the bone for his employer, who did nothing for us, for our family, in the aftermath of his death.

"If he had we could at least try to understand his situation and difficulties, but he didn't care about us."

Worksafe NZ's investigation report found Yu was working as a builder under the umbrella of a company called Star Echo Ltd (SEL), which was the latest in a string of subcontractors hired to develop the Hobsonville house site.

Although Zheng Jinghui was director of Star Echo, the discussions and work was taken on by "a very experienced and highly regarded builder in the Chinese building community". Yu was among those hired to build the house.

On the day of Yu's death, he had climbed to an incomplete first floor to work in an area where struts were temporarily pinned by only two nails. A co-worker nearby turned when hearing timber moving and watched Yu "trying to regain his balance".

Yu "tried to grab at some joists but wasn't able to hold on". He fell feet first through to the ground floor 2.9 metres below, landing on a concrete slab. "As he fell back his head struck a piece of timber that was located on the ground." Yu was declared dead in hospital two days later.

The investigation report found Star Echo had three previous interactions with Worksafe NZ with faulty and incomplete scaffolding cited in each instance. The company had received notices compelling improvement from Worksafe NZ but was not prosecuted.

In this case, there was a recommendation to prosecute the company for removing equipment and tools from the building site before either police or Worksafe NZ arrived in the aftermath of the accident.

The investigation found Yu was 45 when he died with no visa allowing him to legally work in New Zealand after arriving on a 30-day visitor visa in 2015.

Du told Worksafe NZ her husband paid $30,000 in China for legal work in New Zealand but realised on arriving here that he had been duped. After paying $1800 to another contact, Yu was connected with the builder who was overseeing work at the Hobsonville site.

The three sections of timber held by only two nails were dislodged when Xingming Yu fell through the first floor to the concrete slab below. Photo / Supplied

Yu had been living with and working for the builder over three years, who said he had "no knowledge of his salary or other working conditions" which were agreed with Star Echo. The company said it had never received an invoice from Yu for his work.

Worksafe NZ identified a number of areas at the construction zone that posed risks where workers could fall from a dangerous height. It emphasised the need for builders to protect workers where falls were a risk.

"If a suitable 'working at height' control measure had been in place prior to the incident, the death of this worker could have been prevented."

Worksafe NZ found there was "public interest" in prosecuting Star Echo for removing equipment and tools from the building site. It also said there was insufficient evidence to prosecute Star Echo over a "breach in relation to its primary duty of care" to Yu as a worker.

That decision to prosecute was downgraded to a warning letter in April. Worksafe NZ's specialist investigations boss, Simon Humphries, said the decision was made in the shadow of the pandemic.

"This is because there was a greater public interest in Covid-19, amongst other reasons, and the offence by SEL was at the less serious end of the scale, as we only would have prosecuted for failure to preserve the site, not for the incident itself."

The Herald has attempted to contact Star Echo Ltd director Zheng Jinghui for comment. He did not respond.

Hobsonville has become a hive of building activity in Auckland. Photo / File

Unite Union had been instrumental in helping Du claim on ACC, with national director Mike Treen saying: "It's part of the ACC philosophy. It doesn't matter if they are lawfully here or not."

Treen said there was a high level of illegal migrant work in the construction industry which was emerging as the pandemic increased the focus on working visas. He said now was the time to focus on improved domestic recruitment and training.

"We can't go back to having an entire economy dependent on temporary migrant labour. It's broken and it needs fixing."

Specialist ACC and employment lawyer Dr Benjamin Hinchcliff said the case showed the benefit of the ACC system, which traded lengthy and uncertain litigation for surety.

The case was "incredibly sad". "There's so much immigrant exploitation. This case should not have happened."

Building company boss David Grigor developed a system called Workdek that allowed interlocking segments to be jigsawed into a stable platform to give construction workers constant solid footing.

Construction company boss David Grigor has developed the Workdek system to protect against falls from height. Photo / Supplied

He said he had been lobbying Worksafe NZ to include the system in its best practice "working from heights" guidelines. He believed new guidelines had been developed but there was no certainty they would be introduced, or when.

Grigor said ACC had been paying "a fortune" over accidents which featured falls and better systems would reduce fatalities, injuries and costs on the taxpayer.

An ACC spokesman said no comment would be made about compensation rights for illegal workers because the agency was concerned the information would be applied by the Herald to Yu's individual case.

The Herald gave ACC an assurance this would not happen and said the information was wanted to providers readers a general understanding of how the system worked. ACC has continued to refuse to provide the information and an Official Information Act request has been lodged.