Coronavirus: Who's policing level 3 breaches? Complainants given the run-around

By Phil Pennington for RNZ

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

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.

Customers crowd outside a Burgerfuel restaurant, breaking the level 3 rules.
Customers crowd outside a Burgerfuel restaurant, breaking the level 3 rules. Photo credit: Supplied

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".

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."

'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 two 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."

National Party workplace relations spokesperson Todd McClay said the Government 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.

"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.

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

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 of 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.