30 Apr 2020

Businesses breaking level 3 rules: 'Who you gonna call?'

1:45 pm on 30 April 2020

Complaints of businesses breaching level 3 restrictions are flooding in, but there is uncertainty around who will police the breaches.

Queue for bubble tea in Newmarket store Gongcha, Auckland on day one of alert level 3, on 28 April

People gathering outside a shop in Newmarket, Auckland. Photo: RNZ / Kymberlee Fernandes

In level 4 lockdown, police apprehended thousands and prosecuted hundreds of rule-breakers.

By contrast, the lead agency for workplace safety, WorkSafe, has conducted zero investigations of Covid-19 cases. It has taken just seven compliance actions - one prohibition notice, one direction letter, and five "verbal directions" - across the country in the last five weeks since the lockdown began.

Now that thousands more workplaces are open, Prime Minister Jacinda Ardern is promising a tough stance.

There were 742 complaints of businesses not complying with the rules on the first day of alert level 3, most over the lack of social distancing.

Ardern said the Ministry of Business, Innovation and Employment (MBIE) and the Ministry for Primary Industries (MPI) would be following up on the complaints.

In particular, 61 cases were being followed up.

"So while our preference is to educate and engage with businesses to ensure they're operating within the rules, we will not hesitate to take firmer measures if required," Ardern said.

Former police officer and former WorkSafe inspector turned consultant Allister Rose tested that firmness after he saw builders breaching distancing and sharing earmuffs in central Wellington on Tuesday.

He said he called WorkSafe, who referred him to the Health Ministry, who then referred him to the police - then back to WorkSafe on Wednesday.

"It seems like they were not interested," Rose said.

"It's really left me with the feeling of, 'who you gonna call?'. And I'd love to know the right answer - our economy is on the wire here."

RNZ has seen WorkSafe's response to Rose's initial complaint.

"WorkSafe does not approve whether a business can or cannot operate and does not determine how a business must operate at each level," it said. This was up to MBIE.

All businesses needed a pandemic safety plan but the plan "does not have to be approved by WorkSafe".

It put the onus on workers to raise concerns with employers, and involve unions if need be.

WorkSafe did not say anything about taking any action itself.

WorkSafe responds

In a statement to RNZ, WorkSafe said it would visit workplaces "where necessary", but its website repeats it favours the use of phone or video and not visit sites, partly to stop its inspectors spreading the virus.

"We will have a strong preference for using non-attendance processes to gather evidence," its website says, adding it would rely on the police "to gather scene information".

That was repeated by WorkSafe head of general inspectorate Jo Pugh to RNZ's Morning Report.

"We have the option ... now that we're in level 3 to free up our inspectors to visit if they need to but our first preference is obviously to work through the phone," she said.

"We're only two days into level 3."

Rose questions that approach.

"I would say it is probably being too careful.

"What do the police do? Police are out all the time enforcing various acts, as are ambulance and fire service.

"Now that we have people going back to work, it is absolutely crucial we have inspectors visiting sites."

Pugh however said WorkSafe did not have the powers that police did, and was working with other agencies to ensure compliance.

"We're working with the tools available to us, and we're working with the most appropriate agency as needed," she said.

"Ministry of Health, Police, Ministry of Primary Industries, Immigration, Labour - all those are working together on a consistent approach so that we're not falling all over each other."

"Doing an assessment, we're doing it remotely via phone ... if we're not happy that gets escalated up to the police and the police are out there, they are able to detain and arrest people, we don't have that ability. They are able to shut down a business, we're not able to do that."

She said WorkSafe was doing inspections and referring cases to the police where necessary, but police were able to act much more quickly and cases were usually able to be resolved over the phone in any case.

"The problem we do have is we don't have powers under the Health Act. Yes, we have tools under the Health and Safety at Work Act ... in actual fact, the police are able to act much more swiftly under the Health Act."

"Actually the vast majority of businesses have been compliant or they've been willing to change and become compliant without more than a conversation needed.

"It's been phenomenal. Most of the time our enforcement action sits around 50 to 60 percent of the visits that we make, we're down to about 1.5 percent, we are getting compliance just through a conversation because people are really willing to change."

'Prosecution' works

Unite Union national secretary Gerard Hehir said WorkSafe inspectors did not even need to visit fast food chains to clamp down on what he calls a "debacle" of blatant breaches on the first day of level 3 "contactless" takeaway operations.

"There are sophisticated recording cameras in all of those stores," Hehir said, and the agency could remotely access the footage.

"WorkSafe need to do some compliance, so some auditing, and to respond to complaints and actually check them out.

"If they can't now, in the middle of this crisis, if it isn't important enough now, when is it ever?"

Customers at most of the big chains were coming within 2 metres of drive-through staff, while inside the kitchens, staff were routinely within a metre of each other, he said.

Unite had heard from three dozen staff who did not feel safe, and had passed that on to WorkSafe.

"Time is of the essence here. It's too late educating and trying to encourage people.

"But you know what works [for] educating people - prosecution, absolutely, people sit up and take notice."

However, before prosecution each case would be considered against "a graduated response model with a focus on education and engagement," the Public Information Management team at the Covid-19 National Response centre said.

"Our focus remains on educating businesses and the public about what they can and can't do under alert level 3," the PIM team said.

WorkSafe echoed this, repeatedly referring online to a "balanced and proportionate" approach.

It would use "proactive calls" to ensure businesses were adhering to level 3 guidelines, it told RNZ.

"WorkSafe does not take prosecutions without taking a number of steps first. Before a decision to prosecute is reached, a formal investigation would need to have been completed."

It is one of four agencies charged with enforcing the level 3 rules, along with the police (advised by MBIE), and the Ministries of Health and Primary Industries.

But only WorkSafe can wield the Health and Safety at Work Act in full.

Rose said this was too weak.

"We're seeing a toothless approach. It's simply not good enough when the country is in this crisis."

Restaurant Association chief executive Marisa Bidois told Morning Report the association had put out another reminder yesterday on physical distancing rules, and would be happy for WorkSafe to take a more active role.

If kitchen staff were not able to work without the required 2m distancing, the employer would need to consider having fewer people on shift, and customers would have to wait a bit longer, she said.

Bidois said the first two days of level 3 had been very busy, but the guidelines are clear and many businesses are operating well.

They were learning quickly about crowd control, with Burger Fuel for example using controllers to enforce physical distancing.

National Party workplace relations spokesperson Todd McClay said the government had had weeks to work this out but it still was unclear who was policing businesses under level 3.

"I've heard the police themselves could be doing spot checks, I've heard WorkSafe could be doing so," McClay said.

Todd McClay

National Party MP Todd McClay is spokeperson for Workplace Relations and Safety, Economic Development, Small Business, Trade and Tourism. Photo: RNZ / Rebekah Parsons-King

"There are examples of businesses that have called a number of government agencies to ask what they should do, and who is responsible, and they have got a different answer from every phone call."

Workplace Relations and Safety Minister Iain Lees-Galloway in a statement said the 'All-of-Government' system for vetting complaints and sending them on to one of the four agencies was new and would take people some time to get used to.

McClay told Morning Report the government's advice was too vague and contradictory.

"The minister has said, I think, that he has a new all-of government approach and it'll take people a bit of time to get used to it, actually it seems as if it's taking the government agencies a bit of time.

He said it was good to hear from WorkSafe that they were reaching out to businesses and not looking to be punitive, but "much much more" needed to be done.

"When it comes to the takeaways and so on with WorkSafe I think that should be largely fairly straightforward ... but there's various confusion around level 3 for many businesses across the board that needs to be tidied up and there needs to be a shared direction when it comes to level 2.

"In the House yesterday I called on the minister to get on top of this and he sort of nodded his head that he would. This is not to be political or to push the government unnecessarily, I just want every business that wants to get back to work to be able to do so and to do so safely and keep their workers safe."

Lees-Galloway said WorkSafe could provide advice to help businesses and employees develop and adhere to a safety plan.

The agency has put out a short video about this.

In the last five weeks, WorkSafe has assessed 431 workplaces for Covid readiness - by phone or video, not visiting them - or 12 per day. It has 130 inspectors.

The 742 complaints lodged since the start fo level 3 against businesses, were among 1035 complaints in total; 277 of these were sent to the compliance assessment team, which then sent 104 on to the four agencies that can investigate.

WorkSafe is looking into 17 of them; the others are being looked into by police (38), MPI (2), MBIE (uncertain) and 19 are still being vetted.

Common complaints since midnight Monday were about social distancing, business breaches by patrons or staff, safe operating practices for cafes, recreational activities such as kayaking and parks, and in-home gatherings.

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