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Pike River Compensation must be paid

Written By: - Date published: 12:36 pm, July 7th, 2013 - 32 comments
Categories: disaster, Mining, uncategorized, workers' rights - Tags: , ,

pike river families

So Pike River has been punished for the deaths of 29 workers.  Judge Jane Farish has fined the company $760,000 and ordered it to pay $110,000 compensation for each worker that died and for the two survivors.

Judge Farish found the company had a high level of culpability for its methane management and ventilation management and said that there were significant deficiencies in the company’s ventilation management plan.  She is quoted as saying “[t]here were many indicators that the mine was in a potential explosive position but the warning signs were not noted or heeded.”

She also remarked on the obvious despair felt by the families and described the hearing where they spoke of their loss as very tough,  “[t]he victim impact statements were harrowing. They all feel deep sorrow.”

She previously said that it was morally unjust the way that Pike River Coal Ltd had been able to fold soon after the disaster and thereby avoid paying further money to the families.

The SST this morning contrasted Pike River with that of the Upper Big Branch Mine in West Virginia, where a compensation package of $46.5m was paid after an explosion that also claimed the lives of 29 men.

That sum was part of a US$209.3m package that mine owners agreed to pay to end a criminal investigation and civil proceedings. Mine manager Gary May was also jailed for 21 months after pleading guilty to conspiracy to impede America’s Mine Safety and Health Administration’s enforcement efforts at the mine.

Like Pike River, the Upper Big Branch mine was blighted with health and safety failings and poor ventilation; the latter which contributed to the subsequent deadly methane explosions.

The chances of the Pike River families being paid out do not appear to be good.  The Company has said that it only has $500,000 in cash which is available for secured creditors and $156,000 in insurance monies left to meet liabilities.

The shareholder, New Zealand Oil and Gas appears to be reluctant to contribute any further funds.  It has noted that it provided Pike River with $25m to keep keep it afloat immediately after the tragedy and put insurance proceeds to the contractors of Pike River to partially compensate for money owed to them and made a contribution to the victims’ family trust.  But its “largesse” appears to be running out.

NZOG chief executive Andrew Knight has told the SST “[w]e quite clearly don’t have a legal responsibility … we quite clearly were not in control. And there is evidence to that effect. I have my own shareholders to manage. And my shareholders are saying, ‘Well you’ve already spent $25m – you need to learn where to stop.”

I suspect that the legal advisers for the families will be having a good look at a possible claim against the directors of Pike River.  Under section 135 of the Companies Act 1993 a director must not “allow the business of the company to be carried on in a manner likely to create a substantial risk of serious loss to the company’s creditors”.  With the benefit of hindsight the way the mine was run clearly created a substantial risk of serious loss to all involved in the mine.  There is some wriggle room in what meaning ought to be given to “creditors” and if this includes the workers but this may be able to sustain a claim.

Judge Farish may have been hinting at this when she noted that the Directors had significant insurance and criticised them for not volunteering funds.  One of the directors, Stuart Nattrass, has been quoted as saying that he is thinking of making a contribution.

One thing is clear.  The Pike River families deserve every cent of compensation that has been ordered.  For NZOG and others to use legal niceties to avoid paying compensation would be totally unjust.

32 comments on “Pike River Compensation must be paid”

  1. Dv 1

    Why cant the shareholders be levied.

    The number of shares on issue are 405,513,900

    A levy of 1 cent per share would raise about $4mill
    5 cents would raise about $20m
    10 cent would raise $40m

    How about it shareholders

    • Lanthanide 1.1

      Sounds like a pretty fair way to do it, really. Probably 2c would be a good amount.

      Although as there’s probably no actual mechanism for this to happen, the costs involved could eat up quite a bit of the money gained back.

    • Tim 1.2

      ….and failing all that – what about the “We will do whatever it takes” assurance (pardon me for the lack of reference – in advance).
      The ‘risk society’ (led by agencies of State), prevented those amongst the ‘coalition of the willing’ (fellow miners, family members, any and all on standby at the time) from initiating recovery at a time that was the most appropriate moment.
      If ONLY because they did that, they are at least, morally accountable.
      … it’s all a bit like: NO – you can’t attempt to rescue your kith and kin, because you might hurt yourselves. You might even die in the process – AND WE KNOW BEST!
      Turns out – they didn’t (know best)

      • Tim 1.2.1

        To be clear:
        “If ONLY because they did that, they are at least, morally accountable”

        By they – I mean those agencies of State.
        Gary Knowles – bless his heart, out of his depth, and trying to do his best – did what he thought best (maybe).
        Probably though – he should have deferred to those who were actually familiar with the conditions, rather than listening to those more concerned with ‘risk management’

      • David H 1.2.2

        “We will do whatever it takes”

        More John Key Bullshit. It just means he will sit there and cover his ears, and shout naya naya naya, cant hear you.
        Or he’s already forgotten what he was going to do.

    • Tamati 1.3

      Why should the shareholders be held liable?

      They didn’t make the decisions on how company was run. The responsibility should lie with the directors personally.

      Does anyone know if they are going to be sued by the receivers under s135 ?

      • Dv 1.3.1

        Tamiti the directors should be have some responsiblilty.

        Legally you are probably right about the shareholders, BUT there is a moral responsibility and a duty of care by NZer for the victims

  2. RedBaronCV 2

    It’s over to the NZOG shareholders – passing a motion at the AGM I suspect. Anybody with a conflict of interest can’t vote which should leave some big share blocks out of the action.
    And I know a long term shareholder who is investigating this right now. May require pressure on significant shareholders ACC was one at the end of 2012. You’d think ACC would have a real vested stake in good work practices to save payouts from the fund. Be interesting to see if they factor that sort of risk into their sharebuying practices.

    And to the directors – unethical business practices tend to create these sorts of losses , think exxon valdez, union Bhopal, Nike

  3. RedBaronCV 3

    Of course NZOG can afford it. I don’t believe the director saying there won’t be a payout has confirmed that stance with shareholders and I believe that NZOG has about 0.50 cents per share held in actual cash plus $20m profit per annum. Also a diverse share registry.

  4. Lefty 4

    Limited liability for companies was a good idea at the beginning of the industrial revolution when it was necessary to kick start capitalism and the process of accumulation that built modern society.

    We now need to move beyond capitalism and concentrate on redistribution and sustainability rather than accumulation.

    Many of the laws that were once appropriate now simply operate to enable kleptomania and the abuse of power by businesses that have grown far to powerful.

    Ditching limited liability would be a good start to reforming commercial structures and laws that favour the already too powerful and prop up an arrogant elite who have nothing but contempt for the people who make them rich.

    • Tamati 4.1

      So you would be happy paying up out of your own pocket if a company your Kiwisaver invested went bankrupt?

      Limited liabillity is a pretty fundamental concept, removing would harm small start up companies not large corporations. People do business with limited liabillity corporations at their own risk.

      What we need is greater liabillity for directors (including corporate manslaughter) and higher labour standards in mining.

      • Lefty 4.1.1

        I am not happy that I have to make savings through Kiwisaver that may be used for immoral purposes.

        Pension funds cause a great deal of damage to both our local and the international economies as they are in a never ending quest for better returns at any price.

        I would far sooner the same amount of money was taken from me in tax and used to build a fair and sustainable economy that was able to provide an adequate pension for me when I retire.

        Making money out of other peoples efforts is never right, but at least removing limited liability would stop the ‘great entrepreneur and risk taker’ bullshit we have to put up with from both corportate crooks and dodgy small businesspeople.

      • Draco T Bastard 4.1.2

        removing would harm small start up companies not large corporations.

        I doubt it. If a small start up fucks up they go out of business and declare bankruptcy. If a large corporation fucks up they get protected by the law and don’t have to pay out the full damages that they caused and they keep going causing similar damages because of that protection. This latter is a massive injustice that needs to be corrected. Removal of limited liability would seem to be the way to achieve it.

        • Tamati 4.1.2.1

          Bankruptcy is essentially limiting liabillity.

          • Draco T Bastard 4.1.2.1.1

            Yes I realise that but large corporations generally don’t go bankrupt. In other words, bankruptcy acts as a reasonable limited liability for small firms without the protection offered to large corporations that don’t need it that limited liability involves.

            • Tamati 4.1.2.1.1.1

              By definition companies can’t go bankrupt, they often go into receivership and sometimes then into liquidation.

              Bankruptcy is a tough process, would be pretty unfair to make every person who started a cafe which didn’t work out sell their house and car!

              • KJT

                Usually what happens to any small business start up if it fails.

                Losing your house is what normally happens, as a mortgage is the only source of reasonably priced businesses finance in NZ.

                Unless the owner is already a millionaire, in which case they will have their wealth well hidden in trusts and offshore.

      • KJT 4.1.3

        Removing limited liability would not make any difference at all to small start ups.

        If you had ever, actually, started a small business yourself you would know that suppliers and banks require a small business startup to give personal guarantees, i.e. waive limited liability, before you can get supplies and or loan finance.

        It may in fact make starting a business easier as you could then compete on more equal terms with the big outfits, that can, and do, limit liability.

        AND. The small business may, ACTUALLY, get paid, when the big one they are subbing to, decides to go belly up to avoid taxes and contractors accounts, while the owner shareholders decamp with millions, leaving the small business owners, suppliers and employees holding the baby.

        AND, Why the hell, should shareholders, who expect to benefit from the lax safety standards and stealing from employees that goes on, be exempt from responsibility. They should pick better directors and hold their feet to the fire.
        The owner manager of a small to medium business is not exempt.

        Limited liability in effect works only to allow those owning and in charge of large corporations to avoid any responsibility. The responsibility they claim they take on, to justify their ridiculous pay rates and profit.

        If they were not able to limit liability, imagine the effectiveness of the push, from shareholders, to get competent and knowledgeable directors and managers, who do more than paper their arses with safety policies which are more honoured in the breach, instead of the present self perpetuating old boys club.

  5. RedLogix 5

    I was talking with an electrical engineer from the Australian coal industry last week. One of the first things he brought up was how incomprehensible the whole Pike River disaster was to him and his colleagues.

    We’ve had a Royal Commission that has established beyond all shadow of a doubt, and stated in the strongest possible terms that this mine was run in the most grossly negligent manner possible. I took the time to read the whole of the Commission’s report. Virtually every paragraph was another eye watering, head shaking revelation of folly.

    What is seems utterly missing here is any real accountability. A monetary penalty/compensation is surely only the entry point. If our H&S regime is to mean anything at all, then the key management and directors must all serve long prison terms. Their failure was feckless and complete; if this fiasco does not attract a substantial, meaningful and maximum penalty for the guilty … then nothing will.

    • mickysavage 5.1

      I agree RL.

      Pike River, Whittall and VLI Drilling Pty Limited were charged with offences under the Health and Safety in Employment Act. The directors were not.

      I must admit struggling with the decision because under section 56 of HSEA if a company fails to comply with a provision of this Act its directors who “authorised, assented to, acquiesced in, or participated in, the failure” is also guilty.

      Unfortunately the limitation period on prosecuting the directors ended some time ago …

      But yep we need a charge of corporate manslaughter on the books.

    • UglyTruth 5.2

      Accountability lies to some degree with those who enabled the company to operate with limited liability. The actual liability for the deaths doesn’t just disappear.

      • Tamati 5.2.1

        Limited liability has been with us a while. Blame some 19th Century English judges.

        • UglyTruth 5.2.1.1

          Scapegoating. Try again.

        • Populuxe1 5.2.1.2

          By the 15th century, English law had awarded limited liability to monastic communities and trade guilds with commonly held property. In the 17th century, joint stock charters were awarded by the crown to monopolies such as the East India Company. The world’s first modern limited liability law was enacted by the state of New York in 1811. In England it became more straightforward to incorporate a joint stock company following the Joint Stock Companies Act 1844, although investors in such companies carried unlimited liability until the Limited Liability Act 1855.

    • Draco T Bastard 5.3

      What you’ll find is that National and Labour are tough on crime – as long as the criminals aren’t business people.

      • KJT 5.3.1

        Yep. The party of individual responsibility have never taken individual responsibility, for anything!

        Watch them scapegoating like mad now, after they put the pressure on Christchurch city council to rush through the consenting processes, without spending the money on giving them the resources to do so, they pretend it was all the councils fault that it has been too rushed.

    • bad12 5.4

      Obviously without evidence the Pike River Royal Commission could not address ‘deliberation’ in it’s inquiry into the cause of the 1st explosion at the Pike river mine,

      There are 2 strands to ‘deliberation’, one being the compromised state of the ventilation system from the time of the shafts collapse and the building of a ‘dog-leg’ into the system, included in this is the number of times Miners were left to work underground whilst Methane levels were within the levels required in the mine’s atmosphere where an explosion could have occurred at any time,

      The 2nd strand of ‘deliberation’, much more sinister in nature is based upon the evidence of the ‘Mine Manager’ on the day of the 1st explosion and the South African electrician sent into the mine after that 1st explosion,

      The Mine Manager in evidence to the Royal Commission said that He, from the office car-park, smelt on that day after having already sent the South African electrician up to the mine to investigate, a strong smell of burnt diesel,

      The South African electrician, a man with 27 years experience in South African mining, stated in His evidence to the royal Commission that He smelt, in the mine, a strong smell of burnt diesel and went on to say that this smell was the same smell He had experienced in South African mines after the use of AMFRO explosives,

      As far as i have been able to ascertain, Methane when combusted is odorless and the evidence of ‘a heavy smell of burnt diesel’ given to the Royal Commission leaves me with the sneaking suspicion that the 1st Pike River Mine was not one of Methane gas at all…

  6. vto 6

    Bill Birch, who I understand introduced the self-regulatory healt & safety regime for mining, is similarly culpable for negligently putting in place a system with findamental and fatal flaws.

    If Bill Birch’s system had not been put in place it is likely that an independent system would have picked up the problems that Pike River willfully turned a blind eye to.

    This entire episode is one of the ugliest in New Zealand’s history imo. And it should be hammering another nail into the neolib philosophy and approach to things, in people’s minds. It has involved;

    1. failure of deregulation.
    2. failure of self-regulation.
    3. failure of accountability.
    4. failure of “greed is good”.
    5. failure of individualism and each acting in their own interest equating to the wider longer common good.
    6. failure of incentives (in fact incentives made it worse).
    7. failure of limited liability (well, it has succeeded from the directors and shareholders perspective, but not from society’s perspective).

    Failures which killed 29 men dead.

  7. vto 7

    Regarding limited liability, it is of course a cornerstone of capitalism and any broad-reaching changes to that will have significant consequences imo.

    But that is only with regard to financial and business matters………..

    When it comes to the lives of workers and other people then the limited liability feature of commercial enterprise has far less importance. As it should. A dollar can be printed again, a life cannot.

    So, when it comes to other life-matters in the course of commercial enterprise as a limited liability company shareholder and director then that limited liability must itself be limited. Personal liability must be able to be raised in circumstances such as Pike River.

  8. Rosetinted 8

    Now that returns from sales of government property are to be turned to paying off debts to banks and citizens for Solid Energy, looking after the Pike River families with compensation would be in order, actually demanding to be attended to.

    And as in making good the losses of out-of-pocket investors in South Canterbury Finance, the losses of payments to Pike River contractors (workers on contract) should also be met. I don’t know how much this amounts to but I understand that they came far down the priority list even though they were the actual wealth creators!!

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    The Government's response to a Ministry of Justice report on minimum alcohol pricing is simplistic and turns its back on those who are most susceptible to alcohol marketing promoting greater consumption, Labour's Justice spokesperson Andrew Little says. "The Ministry's report...
    Labour | 25-04
  • Govt fails Southern Cross Forest workers
    The Government's failure to deal with problems in the wood processing industry has resulted in more needless job losses, Green Party forestry spokesperson Steffan Browning said today.Southern Cross Forest Products announcement of another sawmill closure brings the tally of closures...
    Greens | 24-04
  • Humiliation for Government in Chinese dictat
    New Zealand’s food safety systems should be respected by our trading partners, but instead the Government has been humiliated with the Chinese dictating the terms of our infant formula production, Labour’s Primary Industries spokesperson Damien O’Connor says.   “The Government...
    Labour | 24-04
  • Honouring our Pacific soldiers
    Labour’s Pacific Affairs spokesperson and MP for Mangere, Su’a William Sio, will pay a special tribute to the many Pacific Islanders who fought in the New Zealand Armed Forces during the First World War in a speech he is giving...
    Labour | 24-04
  • Government inaction on power and housing to blame for latest rate rise
    Green Party Co-leader Metiria Turei says today's interest rate rise, that will hit home owners and businesses, is a consequence of the government's failure to get a grip on electricity prices and the property market, particularly in Auckland."The Green Party...
    Greens | 23-04
  • Rate rise not needed if Government was doing its job
    Today’s interest rate rise wouldn’t have been necessary if the Government had been doing its job properly and targeting the sources of inflation, Labour says. “New Zealand interest rates are among the highest in the world, putting more and more...
    Labour | 23-04
  • Real independence needed in food safety
    The Green Party are calling for a truly independent body to regulate our food safety.Food safety Minister Nikki Kaye has announced the establishment of a Food Safety and Assurance Advisory Council as part of the Government's response to last year's...
    Greens | 23-04
  • Another report won’t help the East Coast
    The Government has a critical role to play in regional development on the East Coast says Gisborne-based Labour MP Moana Mackey “The release of the East Coast Regional Economic Potential Study highlights a number of areas of strength and weakness...
    Labour | 23-04
  • Another interest rate hike will punish mortgage holders
    Green Party Co-leader Metiria Turei says another interest rate hike on Thursday will cost home owners an extra $25 a month on a $250,000 mortgage, on top of the $25 dollars a month from the previous rates rise, and she...
    Greens | 23-04
  • Green Party launches Internet Rights and Freedoms Bill
    The Green Party has today launched the Internet Rights and Freedoms Bill, New Zealand's first ever Bill crowdsourced by a political party.Members of the public will be invited to shape the proposed law, which will protect ten basic rights and...
    Greens | 23-04
  • Sanil Kumar has to leave New Zealand tomorrow
    The Associate Minister of Immigration Nikki Kaye’s decision not to intervene means kidney transplant patient Sanil Kumar must leave New Zealand by tomorrow, says Labour’s Immigration spokesperson Rajen Prasad. “Kumar, a plumber and sheet metal worker, was on a work visa...
    Labour | 22-04
  • Time to do the right thing for our veterans
    A Labour government will adopt the Law Commission’s recommendation to ensure all war veterans are eligible for a Veteran’s Pension, Labour Leader David Cunliffe says. “Veterans are only eligible for the pension if they are considered ‘significantly’ disabled, or more...
    Labour | 22-04
  • Public servant is owed an apology
    Nigel Fyfe is owed an apology from the State Services Commissioner Iain Rennie and Foreign Affairs Minister Murray McCully, says Labour's State Services spokesperson, Maryan Street. “The former MFAT official has now been restored to a position in the Ministry...
    Labour | 22-04
  • Laws for enforcing not trading off
    The idea that a Government department can give a nod and a wink to traders that it won’t enforce shop trading laws and for a Government MP to then claim it as grounds for a review of the law is...
    Labour | 21-04
  • Kiwis still paying too much for ACC
    Kiwis are still paying too much for ACC so that the National Government can balance its books, Labour’s ACC spokesperson Iain Lees-Galloway says. “ACC Minister Judith Collins told Cabinet levies were too high but ACC’s proposed cuts would impact the...
    Labour | 21-04
  • Collins’ memory recovery raises further concerns
    Judith Collins sudden memory of briefing the New Zealand Ambassador to China about her dinner with a Chinese border official and her husband's fellow Oravida directors raises further concerns about exactly what was discussed, Labour MP Grant Robertson says. "This...
    Labour | 21-04
  • MP to attend progressive politics conference
    Labour MP Grant Robertson will attend the Progressive Governance conference in Amsterdam later this week. “This conference brings together Social Democratic parties from around the world to discuss how progressive politics should work in the post global financial crisis environment....
    Labour | 20-04
  • Storm fans fire service commitment
    Further damage from the huge storm that battered the West Coast was prevented by the great work of our volunteer Fire Service and locals will be extremely grateful, Labour’s MP for West Coast-Tasman Damien O’Connor says. “Our region has been...
    Labour | 19-04
  • Time for Ryall to fix mistakes and help families
    Families who won a long and lengthy Court battle for financial help to support their disabled daughters and sons are now facing a new battle with health system bureaucracy and need the Health Minister's help, Labour's Disability Issues spokesperson Ruth...
    Labour | 18-04
  • Time for greater ministerial accountability
    The Green Party has today released a proposal to introduce a ministerial disclosure regime in New Zealand to improve the transparency and accountability of government.The proposal, based on the system used in the United Kingdom since 2010, would require all...
    Greens | 18-04
  • Power prices soar on the eve of winter
    On the eve of winter as New Zealanders are turning on their heaters, power prices have soared sky high, Labour’s Energy spokesperson David Shearer says. “Energy Minster Simon Bridges claimed in Parliament that prices were estimated to rise 2.4 per...
    Labour | 18-04
  • Workers can kiss goodbye to Easter Sunday off
    The Government’s decision to “reprioritise” scarce labour inspector resources by abandoning the enforcement of Easter Sunday Shop Trading laws means workers can kiss goodbye to a guaranteed day off, says Labour’s Associate Labour Issues spokesperson Darien Fenton. “The Labour Minister...
    Labour | 18-04
  • Businesses need to respect workers this Easter
    Businesses intent on flouting Easter shopping laws should face stiff penalties, Green Party industrial relations spokesperson Denise Roche said today. This Easter, at least one major garden centre chain intends to open on Good Friday despite this being in breach...
    Greens | 17-04
  • Time to deliver on 26 weeks Paid Parental Leave
    Today marks two years since Labour MP Sue Moroney's Bill extending paid parental leave to 26 weeks was drawn from the members' ballot. “It’s time the Government acted in the interests of families,” Sue Moroney says. “National has tried every...
    Labour | 17-04
  • Taxpayers robbed of $130m in Genesis sale
    Kiwi taxpayers have been robbed of $130 million by the Government in its final failed asset sale, says Labour’s SOEs spokesperson Clayton Cosgrove. “National set the price for Genesis far too low in a desperate attempt to beef up demand....
    Labour | 17-04
  • Work visa problems need monitoring
    The Government is handing out temporary work visas to migrants to work in jobs that could easily be filled by unemployed Kiwi workers in the Christchurch rebuild, says Darien Fenton, Labour’s Associate Immigration spokesperson. “In the past 12 months, temporary...
    Labour | 17-04
  • Resignation rates among cops soar
    The number of frontline officers quitting the police force is at a four-year high, with more than 350 walking off the job in the past year, Labour’s Police spokesperson Jacinda Ardern says. “Since 2009 resignation rates among sworn staf