Illegal worker’s widow gets compo
ACC pays out to woman in China over fatal accident
ACC has paid compensation to the China-based widow of an illegal worker killed on a building site while in New Zealand without a valid visa. Yu Xingming died on a building site in Hobsonville, Auckland, in May 2019 after falling to a concrete floor where he struck his head on wood.
A Worksafe NZ report obtained by the Herald through the Official Information Act shows Yu was in New Zealand illegally, and was working illegally at the time he died.
Correspondence from ACC seen by the Herald shows a settlement has been reached with his wife, Du Xiangli, in Shandong province, China.
An ACC staff member wrote to Unite Union’s Mike Treen saying a “one-off grant” would be paid to Du and later confirmed the payment had been made in October.
Taxpayer compensation for Yu’s death at work was welcomed as evidence the ACC scheme is working as intended — providing fast support when people are injured or killed, without years of litigation needed.
Du told the Herald she was the sole earner in her family. Aside from normal living costs, she also supported her and Yu’s son, who was in university, and her mother-in-law, 75.
“Our family has no means of survival. It’s just impossible right now. I don’t have a permanent job, so I work whenever there’s work available and that’s not always the case.”
Du praised Worksafe NZ’s approach to the investigation as “very professional . . . amazing”.
“My husband worked himself to the bone for his employer, who did nothing for us, for our family, in the aftermath of his death.”
Worksafe NZ’s investigation report found Yu worked as a builder under the umbrella of a company called Star Echo Ltd (SEL), which was the latest in a string of subcontractors hired to develop the Hobsonville house site.
On the day of Yu’s death, he climbed to an incomplete first floor to work in an area where struts were temporarily pinned by only two nails.
A co-worker who witnessed the accident said Yu lost his balance, “tried to grab at some joists but wasn’t able to hold on”.
He fell feet first through to the ground floor 2.9 metres below, landing on a concrete slab. “As he fell back his head struck a piece of timber . . . on the ground.”
He died in hospital two days later. The investigation found Star Echo had three previous interactions with Worksafe NZ, with faulty and incomplete scaffolding cited each time.
In this case, there was a recommendation to prosecute the company for removing equipment and tools from the building site before either police or Worksafe NZ arrived after the accident.
The investigation found Yu, 45, had no visa allowing him to legally work in New Zealand after arriving on a 30-day visitor visa in 2015.
Du told Worksafe NZ her husband paid $30,000 in China for legal work in New Zealand but realised on arriving here that he had been duped.
After paying $1800 to another contact, Yu was connected with the builder who was overseeing work at the Hobsonville site.
Yu had been living with and working for the builder over three years. The builder said he had “no knowledge of his salary or other working conditions”, agreed with Star Echo.
The company said it had never had an invoice from Yu for his work.
Worksafe NZ found there was “public interest” in prosecuting Star Echo for removing equipment and tools from the building site.
It also said there was insufficient evidence to prosecute Star Echo over a “breach in relation to its primary duty of care” to Yu as a worker.
That decision to prosecute was downgraded to a warning letter in April. Worksafe NZ’s specialist investigations boss, Simon Humphries, said the decision was made in the shadow of the pandemic.
“There was a greater public interest in Covid-19, amongst other reasons, and the offence by SEL was at the less serious end of the scale, as we only would have prosecuted for failure to preserve the site, not for the incident itself.”
The Herald tried to contact Star Echo director Jinghui Zheng for comment. He did not respond.
Unite Union had been instrumental in helping Du claim on ACC with Treen saying: “It’s part of the ACC philosophy. It doesn’t matter if they are lawfully here or not.”
Treen said there was a high level of illegal migrant work in the construction industry and it was now time to focus on improved domestic recruitment and training. “We can’t go back to having an entire economy dependent on temporary migrant labour. It’s broken and it needs fixing.”
Specialist ACC and employment lawyer Dr Benjamin Hinchcliff said the case showed the benefit of the ACC system, which traded lengthy and uncertain litigation for surety.
The case was “incredibly sad”. “There’s so much immigrant exploitation. This case should not have happened.”