MCP (Aus) Pty Ltd (MCP) is the subject of a one-month exclusion sanction, enforced by the current Attorney-General and Industrial Relations Minister, Michaelia Cash (the Minister) under the Code for the Tendering and Performance of Building Work 2016 (the Code). The prohibition is the first to be imposed following "a failure to comply with work health and safety laws".
The sanction follows a worksite safety incident which occurred while MCP was working as a subcontractor on the Commonwealth-funded Toowoomba Second Range Crossing project. MCP were engaged to provide and operate a mobile concrete pump truck with a 60 metre boom. The equipment was incorrectly assembled, causing the boom to become unstable and the crane to tip over. MCP pleaded guilty to charges laid by the WHS Prosecutor in the Toowoomba Magistrates Court for breaching its duties under section 19(1) of the Work Health and Safety Act 2011 (Qld) (the WHS Act). The Magistrate imposed a fine of $50,000 plus costs.
Referral and Determination
Where the Australian Building and Construction Commission (ABCC) refers a breach of WHS legislation by a Code-covered entity to the Minister (which in turn constitutes a breach of the Code) the Minister must issue an exclusion sanction unless the Minister is satisfied that there are extenuating circumstances that render an exclusion penalty inappropriate.
In MCP's case, the Minister acknowledged mitigating factors against imposing a lengthy exclusion sanction. Weight was given to the fact there were no injuries as a result of the incident, MCP's guilty plea in the WHS Prosecution, MCP having taken positive steps to remediate and rectify its safety conduct, and their subsequent cooperation with the ABCC. However, the Minister was not satisfied that the mitigating circumstances rendered it inappropriate to issue any exclusion sanction on MCP completely.
The Minister's sanction is a reminder to Code-covered entities that the ABCC can impose sanctions for up to 12 months where there has been a 'failure to comply with WHS laws'. Proven WHS Prosecutions will place Code-covered entities at significant risk that a sanction will be imposed. It is also arguable (although not yet tested) that other noncompliance with WHS laws, such as the issuance of notices under WHS legislation, will give the ABCC grounds to impose a sanction. It is therefore imperative that Code-covered entities effectively manage relationships with the WHS Regulator and the ABCC.
If you require further information or have any queries in relation to this legal update, please contact Matthew Smith or Mason Fettell.