Despite fine, reparation and sentence police restrain all company’s assets for ‘proceeds of crime’ over a Health and Safety offence

A workplace accident and employee death in 2015 resulted in a costing a company nearly $400,000 in fines and reparations, and the company owner, who accepted responsibility, being  sentenced to four and a half months home detention in 2017.

But that wasn’t the end of the matter. Two years later, late in 2019, police restrained all of the company owner’s assets under the proceeds of crime legislation.

… it was in relation to the same health and safety prosecution in which Ron and Salters Cartage had already pleaded guilty and been sentenced.  Having already secured a criminal conviction, the police had decided to take the extraordinary step of pursuing a business owner through the civil courts for the alleged “proceeds” of a health and safety offence.

It looks like a fairly ordinary Kiwi family bloke and business owner could lose everything he had built up over 38 years.

This is an extraordinary story, and quite alarming, unless there is something else to this story not yet revealed by the police.

The police want to take every dollar Ron Salter has ever made

A South Auckland businessman is under siege by police who are using laws designed to target gangs and drug dealers to come after his family business, his home, and even his children’s assets. At a time when we’ve handed police extraordinary powers to deal with a health pandemic, Matt Blomfield argues that trust is being betrayed.

Over the last five years I have carved out a role for myself as a person you turn to when things go bad. And when I say bad I have seen some pretty spectacular f*ck ups. When you are in the business of fixing life’s little mistakes, you find that your work comes from all walks of life and try as I might I like to think I don’t discriminate when it comes to my clients.

During that time, I have worked for some amazing people and also some infamous individuals. Often the balance between what is morally correct and my own personal view that everyone deserves help is something I struggle with.

When I discuss it with friends and family, I often reference the obligations that lawyers have when representing a client. Everyone has a right to justice and should have an opportunity to have their side of the story heard.

The slight difference is that I like to  think that my role includes an added bonus in that I can attempt to get things back on track and show my clients that life is just that little bit simpler if you play by the rules and remove some of the complication that comes with pushing boundaries.

In saying that sometimes I have clients where a clear cut injustice has occurred, and there is zero moral ambiguity. Where bad luck has combined with an extraordinary set of circumstances to result in an unjust outcome. These are the ones I enjoy the most.

So with the blessing of my client I would like to ask you to listen to a story not about Covid-19, but about an unfortunate sequence of events which has left my client fighting for their very survival.

In late 2015 I was introduced to Ron Salter who is the owner and founder of Salters Cartage, a South Auckland waste collection and recycling company.

A few months earlier, on September 15, 2015, Jamey Lee Bowring, an employee of a contractor to Salters Cartage, called Raceworks, working at the Salters Cartage business, was killed after the 100,000-litre fuel tank he was welding exploded.

It was a tragedy, a young man losing his life at just 24 years old. There were no winners in this story. I recall thinking about Jamie’s mother and how she would have reacted when she got the news. I have two daughters and in my mind I’m not sure if I could think of a worse situation than me outliving one of them.

Like all of the cases I work on, the first thing I try to do is understand the client. What am I dealing with and what is really going on here?

Ron Salter is by trade a truck driver, who over several decades built up a very successful business. He is a hard man and initially that was all I saw. It wasn’t until I had spent a couple of months working with Ron that I actually found out who he is.

Ron is first and foremost a family man, and Salters Cartage is a family business.  The kind of business that is the backbone of New Zealand’s economy.

The more time I spent with the Salter family the more I came to understand that this was the quintessential Kiwi family running their own business and Ron was that hard arse dad who secretly was a big softy and loved his family unconditionally.

Just prior to lockdown I noticed a picture of Ron on his daughter’s Facebook page. He was in the swimming pool with his granddaughter. His daughter commented: “As a kid growing up I don’t remember my dad getting in the pool/water but little miss says “pop pop come in water” and he’s in”.

That side of Ron is why, at the earliest opportunity, he said sorry for the accident and accepted he made a mistake. This was something Ron insisted on.

Just over two years on from Jamie’s death, on November 23, 2017, Ron was sentenced to four and a half months’ home detention and he and his company were ordered to pay nearly $400,000 in fines and reparations, which they did.

The same day a story was published in the New Zealand Herald entitled “Auckland business owner sentenced for fuel tank explosion which killed worker”. The story includes a video interview of Ron which captures the man I know and the hurt that he and his family went through.

That’s not to say what happened to the Salter family could ever compete with losing a child. Jamie’s mother Sarah Ferguson has said she does not accept Ron’s remorse and I don’t think I could if I was her.

My role with Salters Cartage finished up in early 2018. It was an interesting project, it touched on so many aspects of life, a mother losing a child, a business owner dealing with the guilt and responsibility for the part they played, the all-encompassing litigation process, something that I understand all too well, the toll that can take on individuals, and the support of wider friends and family unit that rallied around during this awful time. There were no winners in this story, but it was finally over. Justice was done.

Moving forward, I would check in with Ron and the family on occasion. They had a job to get on with and didn’t need my help. They were rebuilding their lives and getting their Salters Cartage family back on track. I heard through a mutual acquaintance that Ron was looking at selling the business and retiring and I recall thinking that it was not surprising. Ron had done it hard over the past few years.

Then in December last year I heard that the police had restrained all of Ron’s assets under the proceeds of crime legislation.

At the time I had limited knowledge of proceeds of crime laws and my immediate reaction was ‘what have I missed’? My mind conjured up images of drug dealing and gangs. It just made no sense.

After further clarification I realised that it was in relation to the same health and safety prosecution in which Ron and Salters Cartage had already pleaded guilty and been sentenced.  Having already secured a criminal conviction, the police had decided to take the extraordinary step of pursuing a business owner through the civil courts for the alleged “proceeds” of a health and safety offence.

I called Ron and he explained in a slightly panicked fashion, “they are wanting to take my house, my daughter’s house, the bach, the business, everything”. His life’s work and his legacy. I was lost for words. It just didn’t make any sense to me.

I recall thinking about double jeopardy – the principle that a person should not be subject to two prosecutions or punishments for the same offence. And then wondering whether a claim to forfeit assets constitutes a second punishment or a severely harsh punishment when viewed together with the original sentence.

It was a major, the Salter family stood to lose a lifetime of effort. This was not just Ron’s business, it’s the Salter family business which includes the families of their 30 employees, who are essentially an extension of the family.

Police have sought restraints over more than $8 million of the Salters’ personal assets as well as business assets over and above this.  An application to forfeit those same assets will inevitably follow.

To be clear, this legislation was brought in to go after drug dealers, gang members, money launderers and other sophisticated criminal enterprises that break the law for commercial gain. It operates on a simple philosophy: the police say ‘we think you’ve obtained this by nefarious means, prove us wrong’.

The reach of the legislation extends to anything that the police believe is “tainted”. The example I use is if a drug dealer owns a house and pays for a new roof with drug money, the police can take the house. The police can also take untainted assets to the value of the benefit they say you have received as a result of criminal activity.  It’s hard for me to draw a parallel between a gang member selling methamphetamine and Salters Cartage collecting and recycling waste oil.   As bizarre as it sounds, the police are saying the income that Salters Cartage received is like drug money. If it is, so too is the income of the hundreds of businesses convicted of health and safety offences in New Zealand every year, let alone other regulatory offences.  What’s next – resource management breaches?

In the five years to July 2014, police restrained nearly half a billion dollars worth of cash, property, cars, boats, motorcycles with gold-plate rims and every other trapping of a drug dealer’s lifestyle you can imagine. Police estimated half of that came from methamphetamine.

The recovered money goes into a contestable fund that has provided millions to drug and alcohol rehabilitation services, mental health services and crime reduction initiatives. Proper Robin Hood stuff.

However, in the Salters Cartage case the police are using the proceeds of crime legislation for the first time in the aftermath of a health and safety case.

In an exit interview with the Herald just a few weeks ago, the former commissioner of police Mike Bush summed up one of the key tenets of his six year tenure as follows: “How we apply our discretion is critical to building trust and confidence.”

“The one thing people look for is the consistent application. And that’s what we’ve been driving hard.”

If that’s the case, why didn’t the police attempt to seize Watercare’s assets, after the 2011 explosion that killed one of its workers and left another a double amputee? Or Canadian Piping, the firm convicted of failing to protect employees in the same blast. Should the directors of Watercare have feared that their family homes were at risk?

There have been around 700 workplace deaths in New Zealand since 2011, and more than two dozen firms have been prosecuted for breaching the health and safety legislation where death occurred.

Where is the consistent application of the law that Bush is so proud of?

It is no secret that New Zealand’s small to medium enterprises are the backbone of this country. Right now, as we emerge from Level 4 lockdown, they are at once under unprecedented strain while being needed more than ever to jumpstart our post-COVID 19 economy.

According to one Government estimate, they make up 97 per cent of all New Zealand businesses, employ more than 630,000 people or 29 per cent of all New Zealand workers.

It’s tough enough running your own business, as a business owner you take responsibility for the livelihoods of all of your staff, you take responsibility for the risks that come with owning your business from loans to compliance to tax.

If it goes badly you can’t just walk away. These business owners are brave and they should be respected, they should be looked after, and they should be supported.  Without them, the economic landscape in New Zealand would be very different.

We spend plenty of time making sure that employees are looked after and that they have the support of their employers.  And rightly so.  But less time is spent thinking about the brave directors that take on the responsibilities and risks that create employment. I can imagine that many will say that with risk comes reward and I accept that but, in this case, we are talking about a family that could lose everything they have earned in the past 38 years.  There are many, many other businesses out there just like Salters Cartage.

This will have an effect on three generations of this family. Putting aside the inevitable closure of Salters Cartage as we know it if the police are successful, we are talking about Ron and his wife Natalie’s daughter’s home, the family bach, the home in which Ron and Natalie planned to live out their retirement, and finally the livelihoods of all of the staff and their families.

So, most of my lockdown was spent trying to find a way through for the Salter family. That now includes dealing with Covid-19 and the fact they have all but closed the doors over the lockdown.  They have lost hundreds of thousands of dollars but, unlike many other businesses, all of their staff still have their jobs.

The Salter family is doing it hard.  Ron and his family accepted responsibility for what happened;  Ron and Salters Cartage performed the sentence imposed.  In addition to funding this litigation, which will could take years to resolve, now they have the added complication of Covid-19.  In my mind it’s just not fair. I really wish the police would use their resources, budget and energy to take down gangs and drug dealers because isn’t that what the proceeds of crime legislation was intended for? I can’t rationalise in my mind why the police have put the Salters family, and family businesses just like theirs, at the top of their to-do list, while many who have clearly profited from crime flaunt their wealth on Instagram. It just does not make sense!

Salters Cartage is truly a family owned and operated New Zealand business. It is an example of what makes New Zealand great and what we need to focus on to get through this Covid-19 debacle. I am confident that the police will be unsuccessful in their case but my hope is that the fight doesn’t destroy this amazing family and the New Zealand-owned family business that was almost 40 years in the making. That’s not justice and not what New Zealand wants or deserves from the New Zealand police.

Matt Blomfield is a business consultant and the subject of Whale Oil, a book about standing up to bullies and his quest for justice. It was nominated in the best general non-fiction category at the 2020 Ockham Awards.

Woodhouse on the Workplace Health and Safety Bill

Michael Woodhouse was interviewed on the Workplace Health and Safety Bill by Michael Parkin on Q & A. He explained the current situation with the Bill.

Parkin brought up “worm farms, lavender farms, catteries, curtain hanging, that sort of thing” amd asked “Do you take full responsibility for those items being in there?”

Well, they’re not in there. That’s the point, Michael. We haven’t started the process. So they are part of a group of industry classifications where there is high risk. So, laugh if you like, but the category that has worm farming in it killed 11 people and injured more than 1000 in the five years that we analysed the data.

.Transcript of Workplace Health and Safety segment:

PARKIN All right, let’s get you to put your health and safety hat on here, because I want to quote you from February, where you said, ‘The death and injury rate behind the farm gate is simply unacceptable. Someone is killed nearly every fortnight. This needs to change.’ Your words, remember. How could you leave farmers out of these reforms?

WOODHOUSE I was speaking at the launch of the Safer Farms safety programme. That’s a five year body of work where Worksafe has teamed up with Federated Farmers and Dairy NZ and Sheep and Beef. And this is a very comprehensive programme to improve health and safety on our farms.

PARKIN But by telling farmers now that they are low-risk, that they don’t need to be part of this reform that you have introduced, isn’t that just instilling complacency in them?

WOODHOUSE I think we need to just recalibrate what’s been said over the last week, because people are describing worm farms and dairy farms as if we’ve come to the end of a process. We haven’t even started that process. Now, what I did last week was agree to disclose the taxonomy that would be used to describe the upper quartile of high risk and the criteria that we would apply to work out who would fall into that category for the small businesses that may be able to say no to a health and safety rep when asked.

PARKIN But why leave them out? Why not give them the option? Why not give those farmers – whether two, three, five, 10, whatever – why not give the guys on the ground the option if they wanted a health and safety rep to say, ‘Yeah, I’d actually like one of those,’ and the legislation being in place for them to allow that.

WOODHOUSE And the legislation will be but the current requirement is for that now. And the majority of our farms don’t have them. Now, I think what we need to do is compare what the current legislation says, because the whole section on worker participation in the Health and Safety Employment Act, our present act, talks about the election and powers of a health and safety rep. The new bill has comprehensive extra requirements on everyone in our workplace to participate in health and safety, whether you’re a worker, a manager, an owner or a director. And I think through all of this what’s been lost is the significant reform that we’re putting in place through this bill. Now, yes, health and safety representatives are important, but they are not the only way to deliver health and safety. And what this reflects–

PARKIN And how much lobbying did you receive from the farming industry, from your Caucus colleagues to get you to buy into that line?

WOODHOUSE There’s been quite a bit of discussion in the Caucus, but I can tell you that not a single farmer has approached me as minister about this issue.

PARKIN So you got bullied by the Caucus and the Caucus alone, was it?

WOODHOUSE Look, it was a pretty robust discussion, as you can imagine. But I am confident-

PARKIN You wanted farmers in there, didn’t you?

WOODHOUSE No. What I’ve wanted is the facts to determine risk. And the facts are these. Although the death and injury rate in our farms is high, they’re also our largest industry. So when you compare that on a per 1000 or per 100,000 basis, they fell below the threshold that was set.

PARKIN But now they’ve got the signal that the way they have been going is okay because you’ve made an exemption for them under this reform.

WOODHOUSE I don’t think that’s true at all. In fact, the farming community are very aware of my expectations for them to lift their game. The point is health and safety reps are not the only way to do that. There are many other ways to do that. They’ve been doing that in other organisations and in other industries.

PARKIN I want to quote you again from February. ‘120 people have been killed working on our farms since 2008, with four times as many fatalities last year compared to the forestry and construction industries.’ How is that a guy who doesn’t think that farming should be in his bill?

WOODHOUSE They are probably about five times bigger than the forestry industry, and on an equalised basis, the fatality rates are lower than forestry. Now, I want to take forestry as an example of an industry that has really picked up its game. There’s been a 95% reduction in death rates in the last 21 months and a halving of the serious harm rates. Why? Because they have picked up their game in terms of participation and cooperation across the sector. And that’s my expectation for farming.

PARKIN Let’s talk about the worm farms, lavender farms, catteries, curtain hanging, that sort of thing. Who dropped the ball here and didn’t spot those?

WOODHOUSE Look, I was focused on the high risk in advance of a conversation we haven’t even started with industry yet.

PARKIN But you knew this was going to be gone over with a fine-tooth comb. You should’ve pulled this stuff out. You shouldn’t have left yourself wide open to attack on this, should you?

WOODHOUSE I had the comb ready for the consultation process, which hasn’t started yet, Michael. So, sure, if you want to have a conversation about whether worm farms are riskier than dairy farms, that’s a conversation that will start. And I have no doubt, thanks to the attention that’s been raised on it, there will be an exemptions regime. But the important thing is we need to have a robust taxonomy and let the evidence guide us.

PARKIN When are you going to exempt those things so this point of mockery, now – because that’s what it’s become – is going to be eliminated from what you’re trying to do here?

WOODHOUSE We’ve got to get the bill through first, and I hope that happens next week. The consultation will start once we’ve got the legal ability to do that–

PARKIN You don’t need consultation to pull out something like a worm farm, do you? You can go through and pick out these things now.

WOODHOUSE Yes, I’ll do that when there’s a chance to do that. As I say, we haven’t even started the process, and, yes, it does seem a bit silly, but as I say, we haven’t even started that conversation. So let’s get the bill through. I offered the house to give them guidance. People have taken that and seen that as an opportunity to attack it. Fair enough. But I don’t want this to distract from the very important message that that is this reform bill is a significant improvement on the status quo, and I’m confident–

PARKIN But were you naïve to leave that in there? Because you’ve undermined your own messaging around this. I mean, you should’ve caught this, shouldn’t you?

WOODHOUSE Well, I mean, look, perhaps. I’m not going to resign from the fact people have had some fun around it. This is serious stuff–

PARKIN Were you let down by your officials on this?

WOODHOUSE No, not at all.

PARKIN Do you take full responsibility for those items being in there?

WOODHOUSE Well, they’re not in there. That’s the point, Michael. We haven’t started the process. So they are part of a group of industry classifications where there is high risk. So, laugh if you like, but the category that has worm farming in it killed 11 people and injured more than 1000 in the five years that we analysed the data.

PARKIN How did it do that?

WOODHOUSE So, sure, we can have fun about that– Well, they were obviously in the other occupations that made up that industry.

PARKIN How were those people killed on the worm farm?

WOODHOUSE No, I didn’t say that they were killed on the worm farm, Michael. What I said is the other industries that make up that grouping which is called other livestock farming – remember, that’s horse breeding and pig farming and alpaca farming and a number of others – had a high rate of death and injury. And I don’t think it’s something that we should be laughing about.

PARKIN You had the Pike River families obviously come down to Wellington earlier in the week. The bill wasn’t ready. That wasn’t a good look, was it?

WOODHOUSE What I did was the House leader made a commitment in the previous week that we would make progress on the health and Safety Reform bill that week. We did. Nobody ever nailed down 4 o’clock on Tuesday as being the time that the bill would start to be debated. And I regret that a number of people came down and didn’t get to listen to the start of the committee stage, but that wasn’t intentional.

PARKIN Are they wrong to feel let down by the bill? Those families?

WOODHOUSE I think they will– I can completely understand their desire, which is mine, to make sure that nobody else goes through what they’ve been through.

PARKIN And you haven’t met that desire in their view.

WOODHOUSE I’m confident that this bill will do that. But I’m also sure that we can write all the rules and regulations we like. What is going to make the step change in our workplaces is different attitudes and different behaviours. And that’s going to involve all of us, not just the health and safety rep with the high-vis vest. Every single person in the workplace has got to contribute to that.

PARKIN Just finally, in the first year of these reforms being in place, if we don’t see the number of workplace deaths dropping, will you resign as minister?

WOODHOUSE The government has set a goal of 25% by 2020–

PARKIN But in the first year of your reforms, this thing you’re now running through the House, would you be prepared to resign if it doesn’t work?

WOODHOUSE It’s already dropping, so we’re making progress. But our target is 2020–

PARKIN So you will?

WOODHOUSE Our target is for 2020, and I’m committed to reaching that.

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