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Enforceable Undertaking rejected after company receives 170 WHS Notices

08 February 2022

The NSW WHS Regulator (the Regulator) has rejected a bid by Endeavour Coal Pty Ltd (Endeavour Coal) to enter into an enforceable undertaking (EU), in lieu of prosecution, due to their demonstration of significant and ongoing systemic failures.

Workplace Incident 

In June 2019, a labour-hire worker suffered serious injury to his toes and foot while working on a mining site operated by Endeavour Coal. The worker's foot became trapped under a scraper conveyor that had not been subjected to an operational risk assessment. 

The worker suffered a complete laceration of the sole, multiple fractures, degloving of the great toe and degloving of the plantar fat pad. Endeavour Coal were subsequently charged with a category 2 breach of the Work Health and Safety Act 2011 (WHS Act).

Rejection of the EU

The EU proposed by Endeavour Coal pursuant to section 216 of the WHS Act was ultimately rejected by the Regulator. 

The EU, which proposed a total minimum spend of nearly $740,000, was rejected due to the seriousness of the labour-hire worker's injuries, as well as Endeavour Coal's significant and ongoing systemic failures prior to, and at the time of, the incident. Over a seven year period, Endeavour Coal had been issued 170 notices, including 129 improvement notices, 37 prohibition notices and four non-disturbance notices. The Regulator was not satisfied that the EU satisfactorily reflected the seriousness of the offence, or that it would provide the general and specific deterrence that a prosecution proceeding would in the circumstances.

Conclusion 

Ultimately, Endeavour Coal's poor compliance history, along with the seriousness of the injuries sustained, caused the Regulator to reject their bid to enter into an EU, and instead elected to proceed with the WHS prosecution. Such a decision highlights the importance for Persons Conducting a Business or Undertaking (a PCBU) to keep the issuance of WHS notices to a minimum by:

  • implementing quality safety systems and processes with a view to managing overall safety performance; and
  • where appropriate, scrutinise and review notices issued by WHS regulators.
If you require further information or have any queries in relation to this legal update, please contact Matthew Smith or Mason Fettell.

We would like to acknowledge the contributions of Sally Coburn (Graduate) to this article.

Further Reading