Open-air deemed part of factory

Ruapehu Bulletin, Volume 9, Issue 419, 14 January 1992, Page 9

Open-air deemed part of factory

An empty section can sometimes be a factory under certain circumstances. That was the ruling made by Judge R L Watson in the Ohakune District Court last Thursday when hearing a case brought by the Department of Labour against Ohakune Engineering Limited under the Abrasive Blasting Regulations of the Factories and Commercial Premises Act. The charge was that Ohakune Engineering had "failed to duly and faithfully observe or comply with Regulation 5(1) of the Abrasive Blasting Regulations 1958 in that they had carried out blasting other than in a blasting enclosure on 20 February 1991." The charge related to sand-blasting which oc-

curred on that date on an empty section and across the road (Burns Street) from the registered premises of Ohakune Engineering at 29 Burns Street. The sand-blasting operation had been observed by Mr Keith Sandilands, Inspector of Factories for the Department of Labour, who was the first to give evidence saying that he had visited the premises in Ohakune the previous year (in June 1990) and noted that there was no sand-blasting enclosure around the sand-blasting equipment he had seen in the workshop. He had subsequently written to the company reminding them of their obligation to provide a properly approved enclosure if they intended carrying out any sand-blasting. Turnpage 10

District Court

From page 9 Asked what the function and purpose was of such an enclosure Mr Sandilands said that it confined and extracted the blasting material (sand) for re-cycling and, because the iand contained a high proportion of silica, it constituted a danger to health if inhaled. On 20 February this year he had been in Ohakune and had watched as an employee of Ohakune Engineering sand-blasted a large steel structure in the open air on an empty section directly across the road and about 45m from the factory premises or any other building. The employee concerned, Kevin Wilson, had been wearing the approved protective gear including helmet, respirator, boots and overalls but witness said he was concerned about the possibility of dust drift. To avoid breach He spoke to Ohakune Engineering works foreman, Vernon Mott, who said that the structure which was being fabricated for Winstones Pulp and Paper Mill, was being sand-blasted across the road and away from any buildings so as not to be in breach of the regulations requiring an enclosure to be provided on factory premises. This was also the opinion of Mr Bruce Cranston, proprietor and director of Ohakune Engineering, when witness subsequently spoke to him. Bruce Cranston then took the witness stand and said that after carefully reading the sandblasting regulations of the Factories and Commercial Premises Act - "at least three timcs"- he had sincerely believcd he was not in breach of these regulations as they did allow, under certain circumstances, sandblasting to be carried out in the open air. He had acquired the sand-blasting equipment as part of the plant when he purchased the business from Mr Eric Betty in November 1987, but had subsequently disposed of the equipment and replaced it with a much smaller plant with an approved enclosure within the factory premises itself. He said he would not in future be undertaking any large structure sandblasting in the factory but would be subcontracting such work out. Legal argument (some of which dated back to English case history in 1907!) then followed.

with Mr Stephen Ross, solicitor for the Crown Law Office in Wanganui arguing that the definition of a factory meant that any "place, building, land or undertaking" constituted a 'factory' (where things were fabricated or manufactured) while Mr Paul Brown, defence counsel for Ohakune Engineering, said that the site used (the empty section) was on Council reserve, was used for a number of different purposes (including the parking of cars) and had only once, on this occasion, been used by his client, Ohakune Engineering. Summing up However, in his final summing up (and after taking a short adjournment to study the Factories and Commercial Premises Act in more detail) Judge Watson said that because the initial part of the process of fabricating the structure had been carried out on the factory premises, the finishing process of sand-blasting was merely part of that process and that, because it was an "undertaking" carried out on "land" in a "place" other than the registered address of the company, the regulations had indeed been breached. But he did say it had been an honest mistake by the company without any of the sinister implications sometimes associated with breaches of regulations and Ohakune Engineering management had taken all necessary precautions to ensure the health, welfare and safety of its staff. "If two such keen legal minds as those of Mr Ross and Mr Brown can come to a different and opposite conclusion in the interpretation of the law, it is hardly surprising that Mr Cranston and Mr Mott had some difficulty with it," he said. The company was found guilty but was discharged without conviction.