Tornados and ACC Experience Rating

Workplace accidents and fatalities that result from a tornado should not sit under the employers Experience Rating. These claims should not result in penalties on your ACC levies.

Back in December, 2012 a tornado in Auckland claimed the lives of three people, two of whom were working for a client.

MBIE did an investigation and it was ultimately determined that the tornado was an Act of God and would not prosecute under health & safety laws.

This left the Minister for ACC (at the time the Hon Judith Collins) to determine an adverse event but this was not called.  ACC determined that it would continue to apply penalties to business owners under their Experience Rating (ER) scheme. ER does not apply to Adverse Events given they are out of the direct control of the employer.

The ER penalty on this employer’s ACC Workers Levy was substantial and would last for three years.

In 2013 on behalf of our client we took up this case and lobbied the Minister for ACC to make a determination that the tornado on 6 December 2012 was indeed an adverse event.  Please note that from 2004 to and including this event, there had been 6 fatalities and 24 injuries from tornados.

On 6 May, 2014 the ACC Minister finally agreed that this was indeed an Adverse Event and noted this in the Government Gazette.

This was a great and a good example of our ethos of making sure employers are treated fairly and equitably by Government. We also positively impacted other employers at the time who were not clients but experienced either a fatality or injuries. They did not get penalties on their ACC levies as a result and to them we say enjoy this win.

Now in 2021, sadly, there has been another tornado resulting in the loss of life and injuries. From a Worksafe and ACC perspective, at least there is a precedent now and fair to say, we will reach out to the impacted parties once the dust settles.