Cinema safety and the law

Courtenay Central, which houses Reading Cinemas and other retail outlets, was abruptly closed on January 5. You may be puzzled that a building restored as recently as 2017 is now abruptly closed once again for earthquake-related reasons. Was it not properly repaired last time and were the thousands of people who have since been in the building at risk?

Reading Cinemas appears to be making efforts to bear the brunt of the closure. People with tickets were reassured they could redeem them elsewhere or get a refund. While those who frequent the cinema and other retailers are affected, the greatest impact will be on those who work within the complex. To its credit, Reading Cinemas is reported to be honouring its rosters and paying workers during the closure. Of course, that will probably depend on how long the complex is closed and whether it is likely to reopen.

Affected workers and their families will want to know whether employers are required to continue to pay workers while premises are closed.

Where a building is severely damaged or destroyed by an earthquake and alternative premises are not available, the employment contracts are likely to be frustrated. A contract will be frustrated, and therefore terminated, when an unforeseen event or change of situation makes it impossible for the contract to be performed.

But where you deal with a lesser problem such as a building that can be repaired, or which is undergoing further tests as to its safety, the situation is less clear-cut.

A prudent employer with the means to do so will continue to pay workers for a time. Workers may be prepared to take some of their annual leave should the closure go on. But there comes a point at which, because of uncertainty around the length of the closure, an employer can commence a process of making affected workers redundant.

Some of the businesses in Courtenay Central may have other branches where staff can be offered work. But others will not be able to do that. Regardless of the prognosis for the reopening of a building, employers must remember their goodfaith obligations to communicate with staff.

While building owners have a responsibility under the Building Act to ensure their buildings are assessed and are structurally sound, the Health and Safety at Work Act renders employers and building owners equally responsible. They must proactively identify and manage risks as far as reasonably practicable. If health and safety is compromised due to a problem with a building, the employer and building owner cannot point the finger at one another; they are both liable.

The common law has long recognised the right of workers to strike or walk out if their workplace is unsafe. Now the Health and Safety at Work Act confirms their right to refuse to carry out work they believe would expose them to a serious health and safety risk.

Those who have visited Courtenay Central and the Reading Cinemas since they reopened after the 2016 Kaiko¯ ura earthquake may be troubled. They will wonder whether the complex was safe from its reopening until it closed again. Workers will ponder that question even more because of the amount of time they spent in the complex. These are issues which should be answered and made public in the future.

Courtenay Central should be commended for closing the complex with alacrity once it received the draft engineers’ report. As recently as last week it was reported that the seismic strength issues are confined to the Reading Cinema levels. The slow improvement of building safety in Wellington can be frustrating and arduous, but we all want to live and work in a safe environment.