The Court Ordered Enforceable Undertaking (COEU) is an alternative to conventional sentencing, such as a fine, which became available under the 2015 Health and Safety at Work Act.
At sentencing in Gisborne District Court yesterday, the company's lawyers Edwin Boshier and Rob Coltman submitted a COEU was an appropriate penalty and the company should be discharged without conviction.
But WorkSafe prosecutor Anna Longdill strongly opposed both submissions, saying anything other than a conviction and fine in the usual manner would be insufficient to mark the offending.
Judge Philip Recordon agreed with Longdill that the company should be convicted but accepted the company's position on the COEU.
There were cases where a fine was appropriate but this was not one of them, he said.
The company had not tried to hide from responsibility, accountability, or deny it was culpable. He preferred as the company did, to see its money put towards improving its health and safety — which would benefit workers industry-wide — rather than disappear into the public coffers.
ISO Ltd operates in 14 New Zealand ports and, according to its website, employs about 1000 workers.
Judge Recordon said the COEU was not a soft option and a process where the company would be spending twice as much as they would have had he imposed a fine, the starting point for which he agreed with Worksafe should be $800,000.
Agreed reductions would have diminished the fine actually imposed to $400,000.
Also at issue in yesterday's sentencing hearing was the matter of reparation to be paid by the company for emotional harm to Rangihuna-Kemp's whanau.
The $100,000 ordered by the judge was significantly more than that contended by WorkSafe, which argued for a figure between $58,000 and $68,000, and ISO Ltd — which submitted $20,000 was appropriate if payments it had already made to the family were taken into account.
The terms of the COEU are yet to be established and must be put before the court for approval and regular monitoring.
WorkSafe, as the industry regulator, will scrutinise the work and can prosecute for failure to act or implement the agreed proposal.
'Systemic, fundamental failure'
ISO Ltd has been previously subjected to an enforceable order by Maritime New Zealand in relation to an incident in which a portside worker fell from a ladder on a ship in the Port of Tauranga, the court was told.
Coltman and Boshier told Judge Recordon ISO Ltd hoped to reach a similar resolution with WorkSafe for this case, but proposals were rejected.
Longdill said WorkSafe believed much of the work proposed should have already been done ahead of Rangihuna-Kemp's death, that it had been done since in response to improvement notices issued by WorkSafe, or were things the company was going to do anyway.
A COEU requiring it was therefore an insufficient deterrent or denouncement.
ISO Ltd's culpability was high, Longdill said. The agreed summary of facts revealed fundamental failures in basic traffic management principles — "health and safety 101" — the need to isolate people from moving machinery.
This was not just a tragic, one-off, freak accident. This was a foreseeable, serious incident — a loss of life — as a result of systemic fundamental failure to protect workers, less than a year after the Tauranga incident.
The risk of logs falling off trailers and striking people was obvious and preventable. The company knew about the risk and had already experienced a log fall from a trailer on a private road from a log yard to the port. Regardless, it failed to take any steps to manage the hazard.
Closed circuit television footage for the month before evidenced a pattern of unsafe behaviour at the tally areas, including workers walking along the side of the terminal tractors as they were moving, tally workers starting to scan and photograph logs on tractors before they actually stopped, terminal tractors routinely travelling faster than the 5km speed limit and moving in close proximity to ground workers.
There were no physical segregated barricaded safe zones, where workers could be isolated from trucks and trailers loaded with logs not tied down.
Submissions by the company that it lacked specific guidance did not withstand scrutiny when the principles were clear — separate people and plant, Longdill said. Instead, the company relied on the lowest level of administrative control in that it expected workers to be vigilant — to both do their jobs and keep an eye out.
Longdill acknowledged company CEO Paul Cameron had admitted its failings at a restorative justice conference with the family.
During the hearing, a trust fund established by the company for Rangihuna-Kemp's daughters was also discussed. The company committed to annual payments of $20,000 earmarked for the girls' education but available to them outright when they reached 22.
The fund also includes more than $3000 raised by Rangihuna-Kemp's workmates.
Judge Recordon said he understood a restorative justice conference had gone some way in helping to remedy communication difficulties between the family and company.
He urged the family to take up Cameron's offer for whānau to manage the trust.
• After the decision ISO released a statement.
"This was a terrible tragedy and our hearts go out to Shannon's children and her whānau," chief executive Paul Cameron said.
"We have made some financial provision for the children and the undertaking provides a range of further initiatives to health and safety at Eastland Port which will benefit our team and all who work at the Port".
