Enforceable Undertaking - Civil Mining and Construction

Carter Newell LAWYERS

Enforceable Undertaking

Section 216, Work Health and Safety Act 2011

The commitments in this undertaking are offared to the regulator by

Civil Mining B~ Construction (QLD) Pty Ltd

(the Duty Holder)

Garter Newel! Lin.\'yers ! eve: 1 ~;- 213 Ad<i:lelide Street C;·i:~L}rm~ Qld -·~uoo Au~tralla GPU Box 2:(32 Brisbo;m Qlt.i 4001 Australi~, lelophom: 3000 5441 F::;csimiJ~; 3000 8351 Email: b:[email protected] Rt:;;·~: 15295 7

ABN/ACN 102 557 175

Table of contents 1 Commencement of Undertaking

2 Definitions

3 Privacy Statement

4 Section 1: General Information

5 Section 2: General Terms

6 Section 3: Enforceable Terms

7 Section 4: Execution

8 Section 5: Acceptance

Carter Newell Lawyers I Enforceable Undertaking 3354621

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En'forceabue Undertaking 1 Commencement of Undertaking

This enforceable undertaking is given on the day and date that it is accepted and signed by the regulator as noted on the final page of this undertaking before the schedule hereto. The undertaking will commence from that date and the enforceable terms wlll commence to operate as a legally binding commitment on the part of the duty holder referred to above from that date.

2 Definitions

Duty Holder means the person giving this undertaking in connection with a matter relating to a contravention or alleged contravention by the person of the Work Health and Safety Act 2011, namely Civil Mining & Construction (QLD) Pty Ltd.

Person means an individual who or a legal entity which has a duty under the Work Health and Safety Act 2011and can give a written undertaking. The term includes individuals, each partner in a partnership, corporations, individuals or corporations as trustees of trusts, statutory corporations, public authorities, the State of Queensland, the Commonwealth of Australia and other Australian states and territories.

Regulator means the Deputy Director General, Office of Fair and Safe Work Queensland, Department of Justice and Attorney-General, being the person appointed by the Governor in Council as regulator under Schedule 2, Part 1 of the Work Health and Safety Act 2011.

WHS Act means the Work Health and Safety Act 2011

OFSWQ means Office of Fair and Safe Work Queensland.

WHS Undertaking or Undertaking or Enforceable Undertaking means a written undertaking given under Part 11 of the Work Health and Safety Act 2011 by a person in connection with a matter relating to a contravention or alleged contravention by the person of the Wark Health and Safety Act 2011 and includes all of the contents of this document including the general information, general and enforceable terms hereto.

3 Privacy Statement

The information provided in this document is for the purpose of the Duty Holder making an undertaking to the Regulator under part 11 of the Work Health and Safety Act 2011. This information is provided in the expectation that it will be managed within the requirements of the current state government privacy regime.

The Regulator may publish the Undertaking and the information contained in ft for purposes identified in the Undertaking or for other appropriate legal purposes in various publications such as newspapers and on its website.

The Regulator may be required to disclose personal information to other regulatory agencies such as the Queensland Police Service, WorkCover Queensland and other agencies In accordance with other law enforcement activities which may be conducted as part of an investigation.

Carter Newell Lawyers I Enforceable Undertaking 1529571 Page 2 Version: 3 Date: June 2015 3354621

4 Saction "' : General !nf ormation --- ---- ---- - -------- ---- -- --- · -- - -·- . -. 4.1 i>etails of the person proposing the undertaking

Nominated person:

Street address:

Mallin& address:

Telephone:

Email addr~ss:

Logal structure:

Type of business:

Commencement date:

Workers ruu time:

Pc::rt time:

C?.suc.I:

Froducts and services:

Comments

Marlo.. Chilton

21 Lavarock ;\venue, Eagle Farm, QLD 4009

PO Box 1570, Eagle Farm BC, QLD 4009

07 3212 5000

J1J.9hilton@91'!1~.:.Det.~

Australian riroprletary ccmpany limitP.d by shares

Project management, construction, plant hire

Octob~r18.20C2

i 11

7

Project manayement, CQnstructlon, plant hire, and mimng and infrastructure services

Civil Mining & Construction (Old) Pty Ltd lCMC) specialisc.s In the delivery of major infrastructure projects including major earthworks, road, rail. aviation, bridge., l!rban del/Eilopment. water, marine, mining and concrete projects.

CMC's services rang~ irom precon~true;tiCJn si;;rvices thrc.iu~h tu construction and cmgoing malntenanc;e contracts

CMC has uetm haavily involved in remedia\ion worke following various cxtrorrie weather events in Queensland.

Orie of CMC's corEi vahJes is tho i>afety of its peCJple, and Ii: is committed tv E;nsuring tho safety of wurk13rs anu tha community at forge

~-~~ Uecalis 1::>f tlie alleged contravention

In th:: ;~~gllleitor':~ Compl!=lint and Summons dated ~e April 201 '~. (Prosacutlon) it is alleged ~:1at the Duty Holder all1:1gcctly contraveneC1 iis obligations under the WHS Act by:

Failing to:

(i) Provide a ~afo ~yc~o;n of wrn!; for the installation uf ~ tndgt) gi.rc!C"r;

{iiJ Uiinlmisc risk associaiot:l with ialhng objncts;

(iii) Pro1tide suitable fall proteC'tion when working at a height oi' aµprm:lmatel~,

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(iv) Adequately monitor a dual crane lift so as to ensure effective installation of the bridge girder:

(v) Assess any reasonable likelihood of bracket faUure should the girder lean, slip, pivot, roll, topple or otherwise fall once the load was removed from the cranes;

(vi) Provide a standard of work health and safety equivalent to or higher than the standard required in the Mobile Crane Code of Pract;ce 2006 concerning control measures to minimise risk of injury from unsecured loads;

(vii) Provide adequate Information, instruction and training about lifting pre-cast elements as required in the Tilt-Up and Pre-Cast Construction Code of Practice 2003;

(viii) Provide adequate supervision and monitoring to prevent workers from being located In a high risk area.

4.3 Details of the events surrounding the alleged contravention

On 2 September 2012, at the Francis Road Rail Overpass project located in Lawnton Queensland, workers were attempting to lift, move, prop and install a pre-cast concrete bridge girder. The relevant bridge girder had been lifted into position by way of a dual crane lift and the load had been removed from the cranes. AI; workers were installing acrow props to prop the unsecured bridge girder, the bridge girder became unstable and rolled. As a result, two workers fell from a height of approximately 4700mm.

4.4 Detail of the enforcement notices issued that relate to the event detailed in clause 4.2

D Not Applicable

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02/09/2012 Non- 1002251 n/a Complied with

07/09/2012

21/0912012

disturbance requirements of notice

Nondisturbance

Improvement

1002351

1004803

n/a

ss19 and 33 VVork Health and Safety Act 2011 (Qld)

Complied with requirements of notice

The system of work was reviewed and modified prior to recommencing work on installation of bridge girders.

4.5 Detail the injuries sustained to or illnesses suffered by worker/s as a consequence of the event detailed in clause 4.2

One of the workers sustained pelvic and hip fractures, whilst another worker sustained rib, shoulder and knee fractures.


4.6 Detail the workers' compensation or other insurance benefits paid to the worker/s who sustained Injury or suffered Illness as detailed In clause 1.5 or to the beneficiaries of deceased persons

The worker/s is:

• employees of the entity

The workers have received workers' compensatlon benefits through WorkCover and are currently pursuing common law damages through CMC's workers compensation insurance.

4. 7 Detail the support provided or proposed by the person to worker/s or their families who sustained injury or suffered Illness or to the families of deceased worker/s

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02109/2012 First aid The work crew stopped work and called an ambulance for the injured workers. First aid was administered by the work crew on site.

02/09/2012 Medical treatment

Return to Work

The injured workers were transferred by ambulance to Royal Brisbane Hospital, where they received treatment and were discharged later the same day.

One of the workers returned to work on 31 December 2012 on restricted duties and has since been maintained In employment with suitable assistance as and when required.

The other worker resigned from the company.

4.8 Detail the current occupational health and safety management systems (OHSMS) for the workplace where the event as detailed in clause 4.2 occurred

CMG operates under a safety management system that is certified and compliant with the requirements of the Safety Management System Standard AS/NZS 4801 :2001.

4.9 Detail the current level of auditing undertaken of the OHSMS referred to in clause 4.8, including compliance audits and audit frequency

CMC regularly undertakes internal audits of its safety management system in accordance with standard requirements. The OHSMS Is also audited on an annual basis by the third party certifying body SGS Pty Ltd_ The CMG OHSMS is also accred ited under the Office of Federal Safety Commission Accreditation scheme and is audited in accordance with their requirements on an at least an annual basis.

4.10 Detail the consultation undertaken or proposed to be undertaken within the workplace where the event occurred In relation to the proposal of an enforceable undertaking

The details of the incident will be communicated to all CMC staff via Toolbox Talks which will also describe the actions to be undertaken under the Enforceable Undertaking. A more forensic review of the incident will be undertaken with all Project Managers at a quarterly Project Managers meeting.


4.11 Detail the rectifications to the workplace or work practices made as a result of the events detailed in clause 4.2 and the notices detailed in clause 4.4

1. HSE Alert - On 3 September 2012 a HSE alert was issued in relation to the incident. The HSE alert included a description of the incident and included a prelim inary recommendation that all temporary works designs and installations be thoroughly reviewed to ensure adequate capability for the task.

2. External Consultant - On 10 September 2012, Nviroscope Pty Ltd was engaged to assist in undertaking a review of the work system and engineering in order to minimise rlsks to workers.

3. ARUP was engaged to design a plinth as part of the permanent works which replaced the temporary works bracket requirements.

4. Robert Bird Group was engaged to review and design the revised temporary f ixing of the girder and any further temporary works.

5. Modify system of work - The system of work was modified such that no workers were required to be located in or about the lift area while the load was being positioned.

6. Documentation reviews - Documentation regarding the installation, including a reformulated and revised SWMS was prepared and complied with.

7. SWMS refresher training - All staff onsite were briefed in relation to the incident and received training on the revised system of work and installation procedures (including the revised SWMS).

Total amount spend on rectifications • $454, 265.48

5 Section 2: General Terms

The Duty Holder acknowledges and commits to the general terms set forth in the subclauses below.

5.1 Acknowledgement that the Regulator alleged a contravention occurred as detailed in clause 4.2

The Duty Holder acknowledges that the Regulator alleged a contravention of section 32 of the Work Health and Safety Act 2011 (Old) as detailed in clause 4.2.

5.2 Statement of regret that the incident occurred and the reasons the persons considers this undertaking is a more appropriate response to the contravention than a court

_ _.... _ _Jmp.asM_sanctlon

The Duty Holder regards the safety of workers and the community at large as a core value.

The Duty Holder regrets that the incident occurred and is committed to ensuring that no similar incidents occur in future.

The Duty Holder considers this Undertaking is a more appropriate response to the contravention than a court imposed sanction because the Undertaking will deliver significant benefits to the workers and the workplace as well as to Industry and the community.

5.3 Statement of commitment that the behaviour, activities and other factors which caused or that led to the alleged contravention has ceased and will not reoccur

The Duty Holder is committed to ensuring that the behaviour, activities and other factors that led to the alleged contravention have ceased and will not reoccur.


5.4 Acknowledgment of the guidelines published by the Regulator in relation to the acceptance of an undertaking

I have read and understood:

Guidelines for the acceptance of an enforceable underlaking

Version: 1 Dated: M.~r.ch 201$

5.5 Acknowledgement that this undertaking may be published and publicised

(a} The Duty Holder acknowledges that the undertaking may be published on the Regulator's internet site and referenced in the Regulator's published material.

(b) The Duty Holder acknowledges that the undertaking may be publicised in newspapers.

5.6 Statement of the person's ability to comply with the terms of the Undertaking and meet the projected costs of the activities

(a) The Duty Holder has the financial ability to comply with the terms of this Undertaking and have provided evidence by way of 2013-14 annual report or company return with this Undertaking to support this declaration.

(b) In the event of Impending liquidation or sale of the entity, the Duty Holder will advise OFSWQ of the relevant circumstances and the ability to comply with the outstanding terms of this Undertaking.

5.7 Statement regarding person's relationship with any corporations, officers, employees, contractors, proposed beneficiaries of donations or scholarship or other recipient of financial benefit contained in this undertaking

None of the officers or senior managers of the Duty Holder have any relationship with the proposed beneficiaries of financial benefits contained in this Undertaking.

5.8 Statement regarding Intellectual Property Licence

The Duty Holder grants OFSWQ a permanent, irrevocable, royalty-free, world-wide, nonexclusive licence to use, reproduce, publish, distribute, electronically transmit, electronically distribute, adapt and modify any materials developed as a result of this Undertaking.

5.9 Acknowledgement that the Duty Holder may be required to provide a statutory declaration

OFSWQ has requested a statutory declaration outlining details of any prior WHS I ES convictions' or findings of guilt under WHS legislation, Electrical Safety or WHS-related legislation.

DYES 181 NO

5.10 Statement of commitment for the person to participate constructively in all compliance monitoring activities of the undertaking

(a) It is acknowledged that responsibility for demonstrating compliance with this undertaking rests with the Duty Holder.

(b) Evidence to demonstrate compliance with the terms will be provided to OFSWQ by the due date for the each term.

(c} The evidence provided to demonstrate compliance with the Undertaking will be retained by the person until advised by the Regulator, that the Undertaking has been completely discharged.


(d) It is acknowledged that any failure to meet the due date for an enforceable term will result in the matter being escalated and may lead to alternative enforcement action.

(e} It is acknowledged that OFSWQ may undertake other compliance monitoring activities to verify the evidence and compliance with an enforceable term, and cooperation will be provided to OFSWQ.

(f) It is acknowledged that OFSWQ may initiate additional compliance monitoring activities, such as inspections, as considered necessary at OFSWQ's expense.

(g) It is acknowledged that details of all seminars, workshops and training conducted by a nonregistered training provider must be notified to OFSWQ, by email, at least one week prior. Notification should include time, date, location and the t ra iner/facilitator.

6 Section 3: Enforceable Terms

The Duty Holder acknowledges all activities set forth In the enforceable terms below must be auditable and include a date for completion and an estimated cost of each activity.

The Duty Holder commits to performing the activities below diligently, competently and to complete each activity by the respective completion date.

6.1 A commitment for the person to perform activities that will ensure the ongoing effective management of risks to health and safety in the future conduct of its business or undertaking

The Duty Holder is committed to the ongoing management of risks to health and safety. A number of strategies are in place to ensure the effective management of risks to health and safety, including:

1. Safety audits - in addition to internal audits CMC is regularly audited by the Office of the Federal Safety Commission and by our third party certifying body SGS Pty Ltd

2. Senior manager review of all safety incidents including "near miss• incidents - The CMG Incident Reporting process requires all incidents that are not minor to be reported to Senior Management within a max 4 hrs for class 2 (MTI) or 1 hr for Class 3 (LTI). Incidents are discussed in depth at the Operations Management Meeting (weekly) and the Senior Management Team Meeting (monthly).

6.2 A commitment for the person to disseminate information about the Undertaking to workers, and other relevant parties

Dissemination will be achieved by implementing the following:

1. A toolbox presentation to an workers at all worksites.

2. Inclusion of the details of the undertaking in the Duty Holder's 2015 Annual Report or filed Director's Report and annual return.

Dissemination will occur by: Within three months of the commencement date of the EU.

6.3 Activities to be undertaken to promote the objects of the WHS Act that will deliver benefits for the workers

. ~. ... " /cosi , . t11v1°EFRAME· STRATEGY ···· ..

.. ,.. ~- . - . :· ' .

(a) Induction Training Program

CMG has identified a need to deliver a more structured, detailed and consistent induction, and ro oses to develo a DVD based induction trainin

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$17,500 W ithin 24 months of acceptance

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program that will improve on our current process.

CMG currently uses PowerPolnt to dellver our induction training program. The PowerPoint is a common induction tool that is used widely across industry, with participants generally losing interest very quickly which disrupts the flow of important information. PowerPoint based inductions also enable facilitators to interpret the information in different ways depending on their own personal views, knowledge, experiences and facilitating abilities.

By developing a DVD based induction program, CMG feels we will improve our current process through better engagement of the participants and a more streamlined, consistent message.

With real, live work settings, site personnel and relatable scenarios, we see the DVD delivery method as a way to explore particular on site issues and promote safe working practices in a way that is effective and easily understood and retained.

The DVD induction program will focus on CMC's "Golden Rulesn and high risk activities that are present on all CMC projects. Our aim is to deliver a dynamic and interactive HSE induction that is capable of both engaging the participants and sustaining their attention

A DVD based induction program will allow the delivery of important safety messages from CMC's Managing Director and other key Senior Management personnel, and ensure that the same, consistent information is being delivered to all workers coming on to CMC worksites.

The DVD will be broken up into short sections, with pauses between each, to allow the facilitator to engage the participants with project specific Information, related discussions and a short competency assessment for each section.

The intent of this induction is to ensure both the effective integration of new workers into the organisation and that standard information is being provided to all workers and subcontractors on site.

CMC will provide OFSWQ, a copy of the DVD based induction training program on completion.

(b) OHSMS Audits

As detalled In clause 6.9, CMC commits to engaging an external third party auditor to conduct three (3} OHS Management System Audits against the AS4801 criteria.

CMC will provide OFSWQ with a copy of the audit reports as per clause 6.10


$30,000 Initial audit within 3 months of acceptance and 2 further audits at 12 months intervals commencing 12 months from the receipt of the initial audit report.

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(c} Safety Leadership Training for Supervisory $85,000 Within 24 months of Personnel acceptance.

Through CMC's own internal investigation of this incident several root causes were identified. CMC recognised that although integrated systemic structures of certified systems are well established within the business to prC?Vide safe methods of work; the systems are still susceptible to failure due to human error or decision-making behaviours of leaders.

CMC's Senior Management Team recognises that they have a key role in promoting and supporting safety leadership and further recognises that having highly skilled leaders with the ability to lead and influence safe choices is a core component of a high performing organisation.

Key Senior Managers frequently visit project sites to provide support and participate in workforce meetings, site inspections and observations and hold discussions on HSE issues with project personnel at all levels.

CMC recognise within their operations the key leaders for the success of our projects is the frontline Supervisory Personnel. The role of all Supervisory Personnel includes health and safety responsibilities and accountabilities and It is generally accepted that they have significant influence over the behaviours and decisions made by their direct reports. CMC believe focussing on building leadership capacity within the Supervisory Level of business they will be able to make a positive change in the workplace by encouraging desired and effective decision-making behaviours.

The Safety Leadership Program is designed to build upon the existing leadership capabilities of frontline supervisory personnel such as Site Supervisors, Leading Hands and Engineers etc. Personnel identified as potential leaders wilt also be afforded the opportunity to complete the Safety Leadership Program.

CMG have identified an appropriate nationally accredited course, Certificate IV in Safety Leadership (course code: 22146VIC).

This course was selected as the most appropriate training to build safety leadership capacity within our Supervisory Personnel. The objectives of the course is to enable participants to:

0 Articulate their legal, moral and ethical responsibilities for safety;

o Identify and manage risk, and raise the risk awareness of others;

" Strengthen the safety culture through improved communication and consultation;


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• Encourage more lead reporting, use of systems and processes, observations and inspections, audits and investigations;

• Conduct a simple and highly effective safety conversation that raises awareness, engages the other party and results in a sustainable shift In behaviour; and

• Demonstrate the skills involved in engaging groups and teams in effective meetings where everyone actively participates, and communications are effective and enjoyable for all.

CMC's Senior Management will support the Frontline Supervisory Personnel throughout the program with regular communication and updates on progression. Support from Senior Management, throughout delivery of the course, will be displayed with attendance and d iscussions at the face-to-face training sessions as well as one-on-one time with the participants undertaking the course, on their projects. Continuing support will occur through reviews with not only the participants, but their direct managers, the Safety ands Training Coordinators and project Safety personnel to ensure that each participant is continuing to develop and implement their leadership skills.

CMC commits to providing training for 12 personnel in supervisory roles. CMC will provide OFSWQ with documented evidence of 12 Supervisory personnel completing this course.

(d} Leadership Recognition Program $8,000

To show our strong commitment to building safety leadership capacity within our supervisory personnel and striving for positive change in the workplace by encouraging desired and effective decision-making behaviours, CMG will undertake a recognition program to run consecutively with the Safety Leadership Training.

CMC will implement a leadership recognition program which will include providing awards and rewards to work groups that show exceptional achievement in the recognition and management of risks.

The program will involve the nomination of workers or work groups who demonstrate the performance criteria by which they will be judged against on a six monthly basis. For the purpose of the undertaking CMC will commit funding the program for 2 years (4 x Six monthly Rewards).

CMG commit to providing a reward to the value of $2,000.00 to the successful nomination. Representative/s of the winning nomination will be invited to present to the Senior Management Team.


Within 2 years of acceptance

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CMC will provide documented evidence to OFSWQ of the program implementation and a cost effectiveness summary of the program upon completion.

(e} Work Safely at Heights Training $4500 I Within 12 months of

CMC recognises that working at heights is an integral acceptance

part of our operations. CMC commits to training key onsite personnel such as supervisors, safety advisors and engineers, in working at heights to ensure a full understanding of working at heights requirements. CMC have Identified an appropriate nationally accredited course, Work Safely at Heights (course code: RllWHS2040).

By training key project personnel in the requirements of working at heights CMC believes that stronger planning, monitoring and reviewing of work practices can be adopted throughout the business.

CMC commits to providing training to 15 key project personnel and will provide OFSWQ with documented evidence of 15 personnel completing this course.

Total estimated costs of benefits for the workers $145,000

6.4 Activities to be undertaken to promote the objects of the WHS Act that will deliver benefits for the industry ~-__,__,__,......,....__,__,__,......,....__,__,~__,~-.--__,~__,~~..,.....,.__,~. -.......,..-.-~......,.........,.........,..........,....,---_,...,

:~h~~Te~Y .. ~·.: :.,;· ~ ~ .. :.,:._., :': ·-~· :,.··. >: ::::.,::'..><: ·. :<_;_:.~ · .. q::~/·. :.:·· COST;· ~., '·!l~~F,~~::' ... ',:.;: .: .. (b} School-based White Card Program $25,000

The Duty Holder will provide funding to the Civil Contractors Federation (CCF) to re-establish a school-based white card program that targets school students and aims to ensure they have an understanding of the basic principles of health and safety in the civil construction industry.

CMC and CCF believe that by targeting young newcomers to the industry, we can instil a positive safety culture from the outset.

The program Is run over a full day of in-class training and consists of practical and theory components and assessments. The program has previously been successful in providing students, with interest in civil construction career paths, a look into the world of construction and the risks faced by workers on a daily basis. Due to poor funding, the program was unable to continue, however, there is still strong interest from many schools to be involved.

The program will be delivered by CCF trainers and compliments their Introduction to Civil Construction program which they currently run.

At a cost of $100 per student, CMC and CCF will train and provide over 250 students with their general construction induction {white card) and provide them with a solid understandina and awareness of the

Carter Newell Lawyers l Enforceable Undertaking Version: 3 Date: June 2015 3354621

Within 24 months of acceptance

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risks that construction workers face, and how these can be managed.

CMG commit to providing funding the School-based Program to the value of $25,000. CMC will provide documented evidence to OFSWQ at the completion of this deliverable.

(b) Personal Protective Equipment Packs for $5,000 Within 24 months Students of acceptance

As part of the school based training program, CMC will commit to assisting CCF in providing each student, completing the white card program, a PPE pack consisting of general PPE required on construction sites.

Total estimated costs of benefits for the industry $30,000

6.5 Activities to be undertaken to promote the objects of the WHS Act that will deliver benefits for the community ~----~--------------------~-~--------~--~~--,..,......,--,.-.,--~..,........----~

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(a) Mates In· Construction Program CMC recognises $10,000 Within 2 years of that the issue of construction worker suicide is a acceptance maJor problem in the Qld construction industry for both workers and their families. CMC would provide financial assistance to the Mates In Construction Program to continue their work providing strategies in suicide prevention in Queensland work places.

(b} Royal Flying Doctors Service (RFDS) $25,000

CMC often undertakes projects in remote areas of Queensland where the only effective medical evacuation is via the air, to this end CMC will provide a financial contribution to the Royal Flying Doctor's Service (RFDS) to assist with; the purchase and fitout their aircraft, supply of vital medical equipment and to help fund essential health services and emergency medical services to remote areas.

Total estimated costs of benefits for the community $35,000

Within 2 years of acceptance

6.6 Agreement to pay OFSWQ's recoverable costs

The Duty Holder agrees to pay OFSWQ's costs associated with the undertaking, as itemised below, and it is acknowledged that payment is due 30 days after receipt of the OFSWQ's invoice:

• Administration costs ''$3;814:00

• Legal costs , ·$1,500:00

• Compliance monitoring costs , $3;410:00

• Publication costs ' $2\000;00

Total recoverable costs

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6.7 A commitment regarding linking the promotion of benefits by the person to the undertaking

In the event that the Duty Holder receives any type of benefit as a result of the terms of the undertaking, it is committed to linking any promotion of that benefit to this Undertaking and that the undertaking has been entered Into as a result of an alleged ccntravention of the WHS Act.

6.8 A commitment to maintain an occupational health and safety management system (OHS MS)

(a) The Duty Holder acknowledges there Is a formal documented OHSMS acceptable to the regulator that satisfies the principles of ASINZS 4804:2001 Occupational health and safety management systems - General guidelines on principles, systems and supporting techniques, is currently in place.

(b) The Duty Holder commits to ensuring that the OHSMS complies w ith the principles of ASINZS 4804:2001 Occupational health and safety management systems - General guidelines on principles, systems and supporting techniques.

6.9 A commitment to ensure the OHSMS is audited by third party auditors

(a) The Duty Holder acknowledges that the auditors selected to perform OHSMS audits must meet the qualification requirements as set by the Regulator.

(b) The Duty Holder commits to ensuring the OHSMS will be audited by certified third party auditors.

(c) The Duty Holder acknowledges that details of the auditors' qualifications will be provided with audit reports submitted to OFSWQ.

(d) The Duty Holder acknowledges that costs associated with these audits will be met by the Duty Holder as part of the undertaking.

(e) The Duty Holder commits to ensuring the OHSMS will be audited against criteria that meets the principles of ASINZS 4801 :2001 Occupational Health and Safety Management Systems - Specification with guidance for use, to verify the OHSMS meets the principles of AS/NZS 4804:2001 Occupational health and safety management systems - General guidelines on principles, systems and supporting techniques.

{f) The Duty Holder acknowledges that the current OHSMS in place, as detailed in clause 6.8(a) is acceptable to the Regulator and commits to ensuring that an initial third party audit will be undertaken within three months of the acceptance of the undertaking.

{g) The Duty Holder commits to undertaking two further third party audits at 12 month intervals, commencing 12 months after the initial audit report has been provided to the entity by the auditor.

6.10 A commitment to provide a copy of each finalised OHSMS audit report to OFSWQ

(a) It is acknowledged that audit reports received from the auditor will be sent to OFSWQ, within 30 days of the audit along with a letter certifying that the report has not been altered from the copy provided to the person by the auditor.

(b) It is acknowledged that within 30 days of receipt of the auditor's written report, OFSWQ will be advised of the intended action in addressing each of the report's recommendations.

6.11 A commitment to implement the recommendations from third party audits

The Duty Holder commits to ensure the recommendations resulting from the OHSMS audit will be fully implemented within six months of receiving the audit report, unless OFSWQ offers an exemption due to the actions being unreasonable.

~~~~~~~~~~~~~~~~~~~~~~~---~~~~--,~----.,-::-~~

Carter Newell Lawyers I Enforceable Undertaking 1529571Page14 Version: 3 Date: June 2015 3354621

6.12 Minimum spend

(a) The Duty Holder commits to a minimum spend of $220,724 for the duration of this undertaking.

(b) The Duty Holder agrees to spending any residua! amount arising from an original term not being completed or being less costly than estimated in this undertaking. Agreement on how this residual will be spent will be sought from the Regulator.

(c) The Duty Holder acknowledges the minimum spend comprises of:

•

•

•

•

Total value of benefits to workers

Total value of benefits to industry

Total value of benefits to community

QFSWQ recoverable costs

Estimated total value of the undertaking

$145,000

$30,000

$35,000

~:$1t1~~724 ,•'•!:.· .·., .... :;.·· ··-· .. ~ .... :.; :··. :·.:· ...

01$2201724 .. ~·. ·.\ .. : .:··;-~. }; £.:·'.:.-:-.,_. ~·. :"·::-.; ... ;~: .. -;.-~ .~ ;~;: ~~

Carter Newell Lawyers I Enforceable Undertaking 152957 I Page 15 Version: 3 Date: June 2015 3354621

7 Section 4: Execution

This Enforceable Undertaking is given by the duty holder on the date it is accepted by the regulator as set forth in section 5 below.

COMPANY

THE COMMON SEAL of Civil Mining & Construction (Qld) Pty Ltd was affixed in accordance with the Corporations Act 2001 In the presence of Peter Kendall and David Ahern on the 28th of September, 2015 before me:

Witness Signature

VA"'f:ff;,SA .. ('!VcY.:€:~ HAfw:>DD [I n~~r,t·iW.ftn~~~H~i:!mE;iJn ;fi;i!IJ

Qll tAVAfU1ck A\/6"1lJf


Signature of Director

1529571 Page 16

8 Section 5: Acceptance

This Enforceable Undertaking is accepted by the Regulator on the 9'Vt>~day of~2015

(signature)

.. ~(.~.D. .. 0. ... <&~.c. ... c£.c~. (name of regulator)

Appointed by the Governor in Council as regulator under Schedule 2, Part 1 of the Work Health and Safety Act 2011.


Carter Newell LAWYf ,<5

Work Health and Safety Act 2011

Part 11 Enforceable Undertakings

REASONS FOR DECISION

Event No. 170985

Entity Civil Mining and Construction (Qld) Pty Ltd

ACN 102 557 175

Entity Address 21 Lavarack Avenue, Eagle Farm, OLD 4009

Location of Incident Francis Overpass Project, Francis Road , Lawnton, OLD, 4501

Date of Incident 2 September 2012

1 History of the Application

1.1 On 2 September, two workers employed by Civil Mining and Construction (Qld) Pty Ltd (CMC), sustained serious injuries when they fell approximately five metres from a scaffold to the ground during installation of a bridge girder on the Francis Overpass Project (the Project), Francis Road, Lawnton, OLD, 4501 .

1.2 Following an investigation by Workplace Health and Safety Queensland (WHSQ) inspectors, prosecution action was commenced (by complaint and summons) against CMC on 28 April 2014 on the basis that CMC being a person who had a workplace health and safety (WHS) duty under section 19( 1) of the Work Health and safety Act 2015 (the Act) failed to comply with the duty contrary to section 32 of the Act.

1.3 On 23 July 2014, notification to give a WHS undertaking (undertaking) for this matter was received by the then Office of Fair and Safe Work Queensland (OFSWQ).

1.4 A final draft of the undertaking was received on 13 July 2015.

1.5 On 1 O August 2015, an Evaluation Panel (the Panel) consisting of a senior public servant and two external, independent persons evaluated the final draft undertaking, recommending the regulator accept the undertaking as an enforceable undertaking (EU), pending clarification of specific deliverables.

1.6 CMC provided clarification to the Panel on 16 September 2015, and on the 22 September 2015, the Panel confirmed their recommendation.

1. 7 On 30 September 2015, a final signed version of the undertaking was received by the Office of Industrial Relations (OIR).

2 Legislation and Policy

2.1. It is alleged that CMC being a person who had a WHS duty under section 19(1) of the Act failed to comply with the duty contrary to section 32 of the Act.

2.2. An undertaking was given in accordance with section 216 of the Act in which, the regulator may accept a written undertaking given by a person in connection with a matter relating to a contravention or alleged contravention by the person of the Act.

2.3. The Deputy Director General (DOG), OIR (formerly OFSWQ) has been appointed as the regulator by the Governor in Council under Schedule 2, Part 1 of the Act.

2.4. The former OFSWQ provided the relevant publications outlining information regarding the EU Program and the regulator's expectations for giving an undertaking.

2. 5. The Guidelines for the acceptance of an enforceable undertaking dated 2015 are publications provided to assist duty holders in preparing an undertaking for consideration pursuant to section 230(3) of the Act.

2.6. In determining whether to accept the undertaking as an EU, the regulator has considered the provisions of section 217 of the Act, in which the regulator must give the person seeking to give an undertaking written notice of the regulator's decision to accept or reject the undertaking and of the reasons for the decision.

3 Material and evidence considered by the regulator

3.1 . In making a decision regarding this matter, the regulator has made consideration to the following documents.

3.2. Work Health and Safety Act 2011

3.3. Guidelines for the acceptance of an enforceable undertaking - dated 2015

3.4. EU material published on the WHSQ website - https:l/www.worksafe.qld.gov.au/laws-andcompliancelenforceable-undertakings

3.5. Complaint - General Purposes - Made, and Summons - dated 28 April 2014

3.6. OFSWQ Investigation Report Event E170985

3.7. Improvement notice: 11004803, date issued 12 September 2012

3.8. WHSQ Statement by the Director, Legal and Prosecution Services - Event 170985, dated 24 November 2014

3.9. WHSQ Regional Director's Statement of compliance history - Event 170985 - dated 30 July 2015

3.10. Work Cover Workers Compensation Report for Civil Mining and Construction (Qld) Pty Ltd, dated 26 May 2015

3.11 . WHSQ - EU Chronology - CMC (Qld) Pty Ltd

3.12. Civil Mining and Construction (Qld) Pty Ltd Financial Capacity Statement - dated 30 June 2014

3.13. Civil Train Queensland Letter - dated 7 July 2015

3.14. Mates in Construction Letter - dated 9 July 2015

3.15. Royal Flying Doctors Service Letter - dated 10 July 2015

3.16. CMC (Qld) Pty Ltd Evaluation Panel Assessment-dated 5 August 2015

3.17. WHSQ Initial Evaluation Feedback - dated

3.18. Civil Mining and Construction (Qld) Pty Ltd Enforceable Undertaking - vers ion 3 June 2015

4 Findings on material questions of fact

4.1 I regard the Guidelines for the acceptance of an enforceable undertaking dated 2015, publication as containing considerations which are relevant and appropriate to my decision.

4.2 The undertaking given by CMC satisfies the specified requirements of the Act and the policy requirements discussed above with respect to the operation of Part 11 of the Act as they have been published.

4.3 The objective gravity of the matter has been assessed as a 'medium' level, which takes into consideration the nature and circumstance of the incident, the culpability of the company, the presence of any aggravating or mitigating factors relevant to the alleged offence and any prior prosecution action by the State against the company.

4.4 I find the quantum of the undertaking as a proportionate amount relevant to the objective gravity.

4.5 I find the significance of the commitment in the undertaking is comparable to the capability of the person.

4.6 CMC acknowledge the alleged contravention and regret the occurrence and the consequences.

4.7 CMC have been prosecuted previously for an alleged breach of the Work Health and Safety Act 2011, however the matter was withdrawn. CMC have no previous convictions.

4.8 WHSQ compliance history records show an extensive history comparable with a large scale construction company.

4.9 I acknowledge the assurance given by CMC that the behaviour that led to the alleged contravention has ceased and the commitment to ensuring the ongoing effective management of risks to health and safety in the future.

4.10 I find CMC provided return to work assistance for the injured workers, with one continu ing employment and one resigning following the project completion.

4.11 The injured workers did not respond to an invitation to provide the EU Unit with an impact statement in relations to the incident.

4.12 I find the undertaking would constitute tangible benefits for the CMC workers/workplace, and for the local industry and community. Those benefits are the systematic management of health and safety through maintaining a certified OHSMS, the DVD based induction training program, safety leadership training for supervisors, the Leadership Recognition Program, Working Safely at Heights course for key project personnel to improve work design, fund ing

a school-based White Card Program, provision of PPE for students and financial assistance to Mates in Construction and the Royal Flying Doctor Services.

4.13 I find the undertaking commits the person to a standard that is higher than the recognised compliance for the activity and/or to activities over and beyond recognised compliance levels.

5 Decision

5.1 Based on the evidence and findings, I have carefully considered this matter and am of the opinion that the undertaking given by CMC is an appropriate enforcement option in regards to this case.

5.2 I have concluded that an EU is the preferred enforcement option to continuing the prosecution due to the opportunity to provide lasting organisational change within CMC and the implementation of monitored and targeted health and safety improvements, which could not be achieved by prosecution.

5.3 Under section 216 of the Act, it is my decision to accept this undertaking as an EU and the effect of this decision is that the prosecution proceedings shall be discontinued.

Simon BlaCl<woo Deputy Director-General Office of Industrial Relation Vj I// /2015

Documents

Enforceable Undertaking - Civil Mining and Construction