Workplace health and safety undertaking
Undertaking
to
The Deputy Associate Director·General, Office of Fair and Safe Work
Queensland given for the purposes of part 11 of the Work Health and Safety Act
2011.
by
The John Shephard Trailers Pty ltd as trustee for the John Shephard Trailer Unit
trust, trading as Shephard Transport Equipment ("STE")
ACN 009 962 994
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Section 1 • General information
(a) details of the person proposing the undertaking
Name:
Street address:
31 Arc Place, Larapinta QLD 4 11 0- (formerly located at 999
Beaudesert Road, Coopers Plains QLD 41 08)
Mailing address:
PO Box 205, Arc herfield Qld 4108
Telephone:
3711 0400
Mobile:
0413575161
Email:
purc hasing@shephardtransportequip ment.com.au
Legal Structure:
Body corporate as trustee for a trust
Type of business:
Manufacturing and repair of truck tipping bodies and trailers
Truck parts sales and services
Commencement
date:
1979
Workers:
Full time 42, part time: 3 and casual: 3
Comments:
STE is a small business, which has operated for 34 years. Before the
incident which resulted in this undertaking (the incident), STE had
not been prosecuted for any breaches of the Work Health and
Safety Act 2011 (or its predecessor).
STE had in place mechanisms designed to prevent the incident.
Unfortunately, those mechanisms were inadequate and the
incident resulted in an injury to an employee .
sn= took all reasonable steps to ensure that the injured worker
received the appropriate treatment and access to rehabilitation
programs for injuries sustained as a result of the incident. STE
understands that th e workers condition is now stable and stationary.
STE has taken significant steps to improve its system of work and
equipment to prevent future incidents of this type occurring . This
includes incorporating a safety program and work procedures to
manage safety and prevention and the engagement of Work
Health and Safety professionals to monitor and enhance its safety
systems and procedures 1n the future .
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(b) details of the alleged contravention
Workplace Health and Safety Queensland allege the following in relation to the
incident:
Business or
undertaking
Manufacture and repair of truck tipping b odies and trailers and
truck part sales
Persons at risk
Workers health and safe ty was not ensured, so far as is reasonably
practicable, in particular the injured worker.
Hazard
The hazard giving rise to the risk is unguarded plant a t the
workplace, in particular an angle grinder fitted with multi-cutter
b lades.
Risks
(a) The risk arising out of the hazard which STE ought to have
known is the risk of death or injury to workers, including the
risk of a blade strike to the upper right leg of the injured
worker.
[b) While carrying out cutting of wear plates on a truck body
using an electric grinder fitted with a multi-cutter b lade
that was not adequately guarded, there was a risk the
injured worker would be stru ck by the blade if the grinder
kicked back whilst he was carrying out this activity.
[c) The risk of injury materialised when the grinder kicked back
and the worker was slruck sustaining the injury
particularised in paragraph (a) above.
AND it is alleged
That John Shephard Trailers Pty Ltd a company duly incorporated
according to law and person who had a health and safety duty
under s 19 ( 1) of the Work Health and Safety Act 2011, failed to
comply with the duty contrary to s 32 o f the said Act and t he
failure exposed an individual to a risk of serious injury.
(c) details of the events surrounding the alleged contravention
2
On Saturday 24 March 201 2, a qualified and experienced b oilermaker (the worker)
employed by STE was injured while working on a rubbish/tip truck trailer.
3
The worker was positioned in the right hand side of the tru ck tray and was using a
5"inch angle grinder, fitted w ith a saw blade disc to cut out and replace a worn
aluminium plate.
4
While the worker was using the a ngle grinder, the tee'h of the saw disc gripped into
the aluminium plate, causing the grinder to kick back and cut the worker ab ove t he
right knee with the rotating blade.
(d) an acknowledgement that the Deputy Director-General alleged a contravention has
occurred
5
It is a cknow ledged that Workp lace Health and Safety Queensland (WHSQ) have
alleged that STE has contravened provisions of the Work Health and Safety Act 2011
(WHS Act) .
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6
The allegation is considered serious. STE investigated the matter and took remedial
action required to prevent a recurrence of the incident.
(e) the details of any injury that arose from the alleged contravention
7
The worker received a laceration and tendon damage above the right knee.
(f) the details of any enforcement notices issued that relate to the alleged contravention
8
Notices received:
0
Yes
D No
Date
Issued
Notice
Type
Notice
Number
Contravention
Action taken to respond to
notice
11.04.12
Prohibition
1009401
Using 5 inch
. Removed multi cutter
chopper with a
blades from angle grinders:
saw blade disc
ceased particular work
process un til new tools
on an angle
grinder to
could be sourced;
remove old
conduc ted risk assessme nt
shavings in truck of activities, a ll plant and
bin.
equipment; provided 'tool
box talks' to relevant
workers: p ro vided forma l
general safety induction to
all workers; replaced
equipment with new
manufacturer guarded
equipment; prior to
introducing new tools,
provided worker on-the-job
training with Safe
Operating Procedures;
developed and
conducted a competency
assessment.
(g) a statement of assurance about future work health and safety behaviour
9
STE is a small business which has been operating for 34 years. Before the incident STE
had not been prosecuted for any breaches of the WHS Act (or its predecessor).
10
STE takes its work health and safety obligations very seriously a nd assures that in future,
it will continue to attend to its work health and safety obligations wi th a strong focus
and greater diligence to prevent a recurrence of such an incident in the future.
11
STE gives its assurance that it will exercise its best endeavours to ensure that it does not.
in the future, engage in conduct which gave rise to the circumstances which were the
subject of the Prohibition Notice and alleged contravention.
12
STE has taken significant steps, including changing its systems of work, c hanging the
equipment that it uses to perform this type of work and engaging Work Health and
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Safety professionals to monitor and enhance its safety systems and procedures. It has
incorporated a safety program and work p rocedures to actively manage safety and
prevent future incidents of this type.
When an alleged c ontravention is a ssociated with an injury or illness
(h) The details of the typ e of workers compensation provided (if the injured person is a w orker)
13
The injured worker had access to the WorkCover Queensland scheme (WorkCover) .
WorkCover accepted the worker's claim and the worker was able to access all the
benefits that flow from the scheme. until WorkCover closed the case in accordance
w ith the terms of the scheme .
(i) details of the support provided, and proposed to be provided, to the injured pe rson(s) to
overcome the injury/illness
14
The injured person is an employee of the entity
Date
Description of support
Comme nt
24 March
Immediate support
post incident
Assistance and support was provided to
the worker immediately after the Incident.
First aid was applied and the Queensland
Ambulance Service (QAS) was called. STE
employees also provided any assistance
that was requested by the QAS on
attending to the worker.
Support through
rehabilitation scheme
Throughout the worker's recovery period,
STE hod regular contact with WorkCover to
liaise and assist with the worker's return to
work on a suitable duties program.
2012
24 March
2012 until
return to
work in
Jan/Feb
2013
STE conducted a number of on-site
meetings with WorkCover 1n preparation
for the worker returning to work. The
worker attended a number of these
meetings.
STE facilitated suitable duties for the worker
as soon as the worker was fit to return to
work on a graduated suitable duties
program.
STE also engaged WH&S professionals to
ass1st in the worker's return to work. to help
STE discharge its safety obligations and
provide appropnate suitable duties for the
worker.
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U) if the matter involves a fatality or very serious injury, a claim to demonstrate that
exceptional circumstances exist that the WHS undertaking is a more appropriate response
than pursuing prosecution
15
Does the contraven1ion involve a fatality or very serious injury?
D
Yes
0
No
(k) the details of any existing occupational health and safety management systems (OHSMS)
at the workplace including the level of auditing currently undertaken
16 STE had an OHSMS in p lace before the incident . Relevantly, in or around August 2008,
STE with the assistance of a WH&S professional, implemented a manual and policies
that outlined its occupational health and safety management system. Further:
{a)
All employees, including the injured worker, underwent an induction introducing
them to the OHSMS and to the specific work that they would be required to
perform;
{b)
All new employees including the worker completed an assessment/self
assessment program related to safety and the c ompetent safe use of the tools
and equipment that they would be working with;
(c)
There were regular 'tool box talks' where su pervisors trained and guided
employees in relation to the tasks that they were required to perform;
(d)
Employees were supervised, although it is acknowledged that qualified and
experienced employees worked autonomously.
17
STE's audit practices are compliant w ith its safety management systems a nd, since
2008, have been conducted on a regular basis by a third party audi1or.
18
Since 2012, STE has :
{a)
Engaged a new WH&S professional to:
(i)
Review and upgrade its WHS policies and p rocedures and OHSMS; a nd
{ii)
Assist with implementing and rolling out new WHS polic ies and procedures
{b)
Conducted further and regular tool box talks relating to its WHS polic ies and
procedures and its OHSMS;
{c)
Consulted with employees aboui its policies and proc edures;
{d)
Conducied formal and on-the-job safety training;
{e)
Audited its policies and procedures for compliance with those policies and
procedures;
(f)
Enhanced its safe work method statements for work p rocesses;
{g)
Purchased new equipment and signage;
{h)
Developed processes for recurring items; and
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(i)
Established roles and accountabilities which have been documented and
communicated.
(I) the details of any consultation undertaken within the workplace regarding the proposal of a
WHS Undertaking
19 STE consulted with its employees about the incident immediately otter it occurred. It
inve stigate d the matter and briefed workers on the roo t c ause of the incident.
20 On or about 5 April 2013, STE consul ted with employees abou t the pending
prosecution by WHSQ in respect of the incident.
21
STE also consulted with workers that day (a nd since) about the possibility of STE
exploring an enforceable und ertaking (undertaking) a s a n alternative to dispensing
w ith this matter by prosecution throu gh the Court system. Em p loyees raised no
concerns with STE entering into discussions w ith WHSQ in relation to an undertaking.
During this time emp loyees w ere consulted about the work process a nd tools to be
introduced to prevent the incid ent happening a gain.
(m) a statement of regret that the incident occurred (i.e. not an admission of guilt)
22 STE sincerely regrets that the incident occurred and is taking all reasonable steps to
preve nt such an incident occurring a gain.
(n) any rectifications made as a result of the contravention
23
STE has eng a ged a WH&S professional to review, upgrade, develop and implement
safe systems of work generally and specifically relating to the use of angle grinders
and other tools.
24
STE has implemented hazard identification audits, safe work method statements, risk
assessments on all new tools and health and safety policies and procedures compliant
w ith the WHS Act.
25 STE has conducted staff training including, general safety inductions, forklift safety and
manual handling, re-training on use of all tools and equipment, workshop training,
house keeping practices and various other issues identified at the workplace.
26
The work practices have also changed. such th at the angle grinder that led to the
incident (and all others like it) have been fitted with guards and cannot be used with
the multi cutter. Further. the angle grinders are not able to be used in the same type
of w ork as that which le d to the incident. They have been replaced w ith a
manufacturer- guarded multi cutter tool and air grinder that have a retractable
guard.
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27 STE has updated its induction and orientation process. All employees are required to
be trained on each item of plant equipment. When they have completed the
necessary training, they are assessed by a Supervisor and only if they are assessed as
competent and followed up by a period of supervision, a re 1hey able to
independently perform the task using the relevant tool o r equipment.
28
STE has conducted plant hazard identification risk assessments, manual handling risk
assessment, used the hierarchy of control and risk matrix and implemented safe work
method statements and safe operating procedures on all tools and equipment. All
employees have subsequently completed interna l re-training on all manual handling
of tools and equipment. A record of such training is contained on each employee's
personnel file
Cost: $10,800
29
New equipment has been purchased as follows:
(a)
Air tools and air grinder;
(b)
Twenty safety guards;
(c)
Three Electric twin blades.
Cost: $9,133.50
30
The ongoing benefit and effectiveness of monitoring these initiatives and effective
management of WHS risks are addressed at section (b) of section 2 - Enforceable
Terms.
31
The total amount spent on rectifications, including lost production new equipment,
WH&S professional's fees, training and new safety systems:
TOTAL AMOUNT SPENT ON RECTIFICATIONS
$19,933.50
(o) an acknowledgement that the WHS undertaking may be published and publicised
32
STE acknowledges that the undertaking may be published on the departmental
internet site, referenced in departmental material.
33 STE acknowledges that the undertaking may be publicised in newspapers.
( p) a statement of ability to comply with the terms of the undertaking
34 STE has the financial ability to comply with the terms of this WHS undertaking and has
provided evidence w ith this undertaking to support this declaration.
( q) Statement regarding relationships with beneficiaries
35 As part of this undertaking STE will make a donation to enable Queensland Men's Shed
Association Inc (Men's Shed) to purchase personal protective equipment for the
people who perform work there. STE confirms it has no pre-existing relationship with the
Men's Shed who will be the recipient of the donation.
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(r) Intellectual Property License
36 STE grants a permanent, irrevocable, royalty-free, world-wide, non-exclusive licence to
use, reproduce, publish, distribute, electronically transmit, electronically distribute,
adapt and modify any materials developed as a result of this WHS undertaking.
(s) The person may be required to provide a statutory declaration
37 WHSQ has requested a statutory declaration outlining details of any prior WHS
5
convictions or findings of guilt under WHS legislation or WHS-related legislation?
DYes
The statutory declaration is attached (if applicable)
DYes
(t) Acknowledgment of WHS undertaking overview and guidelines
38
I have read and understood:
Enforceable undertakings-an overview version 2 dated December 2011, and
Enforceable undertakings-guidelines with respect to the acceptance of a WHS
undertaking version 2 dated December 2011.
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Section 2- Enforceable Terms
(a) A commitment that the behaviour that led to the alleged contravention has ceased and will
not reoccur
STE took immediate s1eps to ensure that all work in the vic inity of the incident ceased
immediately after the incident.
2
STE immediately stopped the work practice and stopped using the equipment that led
to the incident.
3
STE conducted a thorough review of the work process, the equipment involved in the
incident and the manufacturers ' instructions and specifications.
4
After investigating the matter thoroughly, STE sourced new equipment and c eased the
work practices associated with the type of repair work that was being d one when the
incident occurred.
5
Since the date of the incident all employees have been re -trained in the use o f all
tools and equipment, including the new multi cutters with re tracta b le guards by
employees who have been assessed as competent prior to use. All employees are
required to sign that they have received such training.
(b) A commitment to the ongoing effective management of WHS risks
6
Repairing sheet metal work in truck trays is an essential part of STE's core business . STE
will exercise its best endeavours to ensure that the risks associated w ith repairing sheet
metal in truck trays is minimised to a level as low as reasonably practical.
7
STE has implerrlented and will maintain procedures for moni toring and reviewing the
measures that it has put in place to ensure that they are maintained and remain
These procedures are in the form of safety management system
e ffective.
requirements which include the following :
(a)
Using cutters with guards;
(b)
Implementing a workplace health and safety management p lan, plant and
equipment hazard ID and checklists, safe operating procedures for all
relevan1 plant and equipment; and safe work method stai ements for all work
activities;
(c)
Undertaking plant hazard identification risk assessments, manual handling risk
assessments, completing risk matrices and c ompleting hazard reports;
(d)
Issuing employees with and ensuring they appropriately wear relevant
personal protective e quipment;
(e)
Conducting training and re-training of employees about the OHSMS . policies
and procedures, relevant WHS Alerts and the hazards of tools and equipment;
(f)
Implementing regular general external and internal audits, a plant &
equipment register and plant safety data sheets.
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8
STE will continue to update its WHS policies and procedures, re view its safe work
procedures and regul arly monitor the control measures whic h have been
implemented since the incident.
9
An independe nt OHSMS audit {which is addressed a t {k) -A commitm ent to ensure
the O HSMS is a udited by third party a ud itors) will inde pendently monitor that STE is
effectively managing its WHS risks.
(c) A commitment to disseminate information about the undertaking to workers, and other
relevant parties (which may include work health and safety representatives),and in the
annual report (if applicable)
10 STE commits to disseminating informa tion about the undertaking to workers and other
relevant parties in a number of ways including :
{a)
All employees of STE will be informed about the undertaking and its content
through 'tool box talks ' within one month of the date o f acceptance of the
undertaking . Employees will be required to sign that they have been informed
about the undertaking and understood its purpose and effect. STE will address a ll
q ueries raised by employees in relation to the undertaking and keep relevant
records o f employees' signatures.
(b)
All new employees within one month of starting with STE, will be informed of the
underta king as part of the induction process a nd will have to sign that they have
b een informed about the undertaking. STE will keep relevant records of
employees' signatures .
(c)
STE agrees to the publication of a Notice of Acceptance by WHSQ in
accordance w ith WHSQ requirements.
(d) A commitment to participate
undertaking
co n~tructiv ely
in all compliance monitoring activities of the
11
STE acknowledges that responsibility for demonstrating compliance with this
undertaking rests with the person who has g1ven thiSundertaking. STE c ommits to
participate constructively in compliance monitoring activities in respect of the
undertaking and to provide evidence to demonstrate compliance with the terms as
required by WHSQ .
12
STE acknowledges that WHSQ may undertake other compliance monitoring activities
to verify the evidence that is provided and compliance with the relevant term. The
evidence provided to demonstrate compliance with the undertaking will be retain ed
by the person who has given this undertaking until advised by the Deputy Associate
Director-GeneraL Office of Fair and Safe Work Queensland{OFSWQ), that the
undertaking has been completely discharged.
13 STE acknowledges that WHSQ may initiate additional compliance monitoring
activities. such as inspections, as considered necessary at the OFSWQ's expense.
(e) Strategies that will deliver worker benefits
Certificate IV Training - Workplac e He alth and Sa fety
14 STE will. within twelve months of acceptance of the undertaking, enrol two employees
in an online Certificate IV Workplace Health & Safety Course. The Certificate IV training
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will ensure that STE has suitably qualified Workplace Health and Safety Representatives
who ore able to discharge their obligations under the WHS Act. The course is
conducted online and each employee is required to complete a minimum of six hours
of course work per week. Both employees will be able to attend to course work for
approximately four hours per week during ordinary work hours at a cost to STE of $30
per hour. STE will keep accurate records of the two employees' attendance for audit
purposes.
Cost: $1 ,500 (course enrolment)
Cost: $ 12,000 (400 hours x $30 per hour)
Total Estimated Cost: $13,500
Certificate Ill Training - Dogging and lifting licence
15
STE will, w ithin 12 months of acceptance of the undertaking, enrol five new employees
in a Certificate Ill in Dogging plus other compulsory units as part of obtaining the
dogging and lifting licence to op erate the gantry crane at the new workshop facilities.
Cost: $6,000
Safety documentation system
16
STE will, within 12 months of acceptance of the undertaking, introduce a safety
documentation system which will c entralise work health & safety doc uments Including
policies, procedures, forms. checklists. log incidents and hazards, store and attach
photos and record all necessa ry reporting documents.
17
This safety documentation system is secure and enables STE staff to a c cess the
information from any computer or mobile device with an int ernet connec tion. Some
features include enabling STE sta ff to:
(a)
Access all STE safety d ocumentation;
(b)
Induct new employees from (preloaded movies and presentations) ;
(c)
Build and m odify safe work method statements
Costs : $548.90 (initial purchase )
Cost: $1 .584 ($44 per month x 3 years)
Total Estimated Cost: $2.132.90
First aid training
18
STE has previously hod two nominated First Aid officers who maintained first aid boxes
and kept their training and qualifications up to date. Th1s was adequate for the size ,
locatio n and composition of the workplace. Sinc e the proposal of the undertaking, STE
has committed to expand ing the number of nominated First Aid officers and has
enrolled se ven additional employees in first aid training.
Cost: $700
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19
STE will, upon acceptance of the undertaking, continue to re-enrol seven employees
per year, over the next two years in a first aid training course. This will enable
employees to keep their first aid qualification up to da te. As a result other workers w ill
be able to access many more First Aid officers, who have the necessary skills and
capability to administer first aid, across all are as in the workpla ce. in the event that it is
required.
Cost: $1,400
Total Estimated Cost: $2,100
Engagement of WH&S Professional
20
STE will continue to engage a WH&S professional to oversee the ongoing
implementation and c ompliance with the OHSMS. This enga gement a lso includes the
WH&S professional providing advice about STE workplace health and safety
obligations and to provide such information so that workplace health and safety
obliga tions are appropriately managed and discharged b y STE, its employees and
others who attend the workplace. Upon acceptance of the undertaking, STE will
commit to engage the WH&S professional for 3 years.
Cost: $2.200 per month
Total Cost: 26.400.00 per year x 3
Total Estimated Cost: $79,200.00
Tota l Esti mated Cost of Benefits to Worke rs
$102,932.90
(f) Strategies that w ill deliver industry benefits
21
STE will write a case study about the incident, the outcomes and benefic ial learning
that has occurred and submit it to the 'Big Rig'. The 'Big Rig' is a notional road
transport newspaper that is published every two weeks and has a national circulation .
It provides news, article and columns about many subjec ts (including safety) that
affect trucking/road transport and associa ted industries. The submission for publica tion
of this case study w ill occur within 18 months of the undertaking being accepted. This
case study would be instructive because STE is aware that other opera tors in the
industry are using angle c utters without guards and may not be aware of t he risks that
they pose.
22
STE will, within 12 months of the acceptance of the undertaking:
(a)
provide a copy of the case study to WHSQ and consider any timely feedback
from WHSQ;
(b)
contact WHSQ to determine if there are any resources or assistance which
WHSQ may provide to assist STE with the distribution of its c ase study.
(A full page article) Estimated Cost: $1 ,300
23
STE will, within 18 months of the undertaking being accepted, contact a relevant
industry association and distribute its case study about the incident. the outcomes and
STE's benefic ial learning.
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Estimated Cost: $1 ,000
Total Estimated Cost: $2,300
Total Estimated Cost of Benefits to Industry
$2,300
(g) Strategies that will deliver community benefits
24
STE has identified that the Men's Shed is a volunteer organisation that assists men to
engage with the community and provides opportunities for men to learn social and
technical skills, while observing safe working practices.
25
STE will support the Men's Shed and w ill make a donation of $ 1.000.00, within 12
months of acceptance of the undertaking and a further donation of $1 .000 each year
for two years. STE 's support of the Men's Shed will be by making a d onation allowing
Men ' s Shed to purchase personal protective equipment for the workplace benefit of
its members. STE has confirmed with the Men's Shed that they will accept the donation
towards the purchase of personal protective equipment . Th is will be of sig nificant
benefit to the people in that community.
26
Estima1'ed cost associated with this deliverable is $3,000 ($1 .000 over 3 years )
Total Estimated Cost: $3,000
Total Estimated Cost of Benefits to Community
$3,000
(h) Agreement to pay WHSQ's costs (cost recovery)
27
Agreement is given to paying WHSQ's costs associated with the underta king. as
itemised below. (STE also acknowle dge that payment is due 30 days after receipt o f
WHSQ ' s invoice):
•
investigation costs
$1.500
•
legal and administrative costs
$700
•
compliance monitoring costs
$3,400
•
publication costs
$2.000
Total amou nt {recoverable costs)
$7,600
(i) A commitment to establish and maintain (or maintain if a system already exists) on
occupational health and safety management system (OHSMS}
28
STE has implemented an occupat ional health and safety management syste m that
discharges its obligations under the WHS Act. However. STE commits to, within 12
mo nths of the a cceptance of the undertaking, upgrading its occupational health and
safety system so that it satisfies the principles of AS/NZS 4804:200 1 Occ upational health
and safety management systems-General guidelines on principles, systems a nd
supporting techniques.
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29
Agreement has been reached with WHSQ that full certification of the occupational
health and safety manageme nt system will not be required . STE will only need to meet
the guidelines which satisfy the principles of AS/NZS 4804 :2001 .
(j) A commitment to ensure the OHSMS is audited by third party auditors
30
STE commits to ensuring that the OHSMS will be audited by third party auditors that
meet the principles of the EU Guidelines .
31
As STE has an OHSMS already in place, it acknowledges that an initial third party audit
will be undertaken by the WH&S professionals mentioned in paragraph 20 within six
months of signing the undertaking.
32
STE will ensure that at least two other accredited third party audits, that meet the
principles of AS/NZS 4801 :2001 Occupational Health & Safety Management Systems Specification with guidance for use will be undertaken at 12 month intervals,
commencing 12 months after the initial audit report has been provided to WHSQ.
33
Auditors selected to perform the two OHSMS audits will be certified by a certification
body accredited by JAS-ANZ to 150/IEC 17024:2004 General requirements for bodies
operating the certification of persons.
34
Details of the auditors' qualifications against the stated requirements will be provided
with audit reports submitted to WHSQ.
Total Estimated Cost: $5,280
(k) A commitment to provide a copy of each finalised OHSMS audit report to WHSQ
35
STE gives a commitment that audit reports received from the auditor w ill be sent to
WHSQ, within 30 days of the audit.
36
STE will, within 30 days of receipt of the auditor's written report , advise WHSQ of the
action that it intends to take to address each of the report's recommendations.
37
Reports arising from the OHSMS audits will be delivered to:
Enforceable Undertakings Program Co-ordinator
Workplace Health and Safety Queensland
GPO Bo 69 Brisbane Q LD 4001
(I) A commitment to implement the recommendations from these audits (unless otherwise
negotiated with WHSQ)
38 The recommendations resulting from the OHSMS audit will be implemented w ithin six
months of receiving the audit report, unless WHSQ offers a variation of the WHS
undertaking due to the act ions being unreasonable .
(m) A commitment regarding linking the promotion of benefits to the WHS Undertaking
39
STE will commit to ensuring that in establishing and promoting the benefits for workers,
industry and the community, the relevant stakeholders will be made aware that the
benefits are linked to the undertaking.
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40
Minimum spend- A commitment is given to a minimum spend of $121,112.90 for this
undertaking. Agreement is given to spending any res1dual amount arising fro m on
original item being less costly than estimated in this undertaking . Agreement on how
th1s residual will be spent will be sought from the chief executive.
41
The total value of this undertaking comprises :
•
Total value of implementing/auditing OHSMS
$5.280.00
•
Total value of benefits to workers
$10,2932.90
•
Total value of benefits to industry
$2.300.00
•
Total value of benefits to community
$3,000.00
•
Departmental recoverable costs
$7,600
ESTIMATED VALUE OF THE UNDERTAKING
Version 1 -10 February 2014
$121,112.90
Page
I
16
Section 3 · Offer of undertaking
OR
I offer 1his undertaking and commit to
fhe terms herein.
As o duly authorised person of {insert person}
I offer this undertaking and commit [insert
person] to the
Signed:
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Version 1 ·10 February 2014
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Section 4- Deputy Associate Director -General's acceptance
of undertaking
1accept this undertaking as an enforceable undertaking under section 216 of the
Work Health and Safety Act 20 11.
Signed: .. .... .
Deputy 1.\s.secioie Director-General
%.:.M.?..~..\30.~KroJ
[Print name)
Work Health and Safety Act 2011
Part 11 Enforceable Undertakings
Event No.
162906
Entity
The John Shepherd Trailers Pty Ltd as trustee for the John
Shepherd Trailer Unit trust, trading as Shepherd Transport
Equipment
ACN
009 962 994
Entity Address
31 Arc Place, Larapinta, Qld 4110
PO Box 205, Archerfield Qld 4108
Location of Incident
999 Beaudesert Road, Coopers Plains, 4108, Qld.
Date of Incident
24 March 2012
Reasons for Decision
1 History of the Application
1.1
The John Shepherd Trailers Pty Ltd as trustee for the John Shepherd Trailer Unit trust,
trading as Shepherd Transport Equipment (STE) is a small business located in
Larapinta, Queensland. Established in 1979, the company manufactures and repairs
truck tipping bodies and trailers and also sells truck parts. STE currently employs 42
fulltime, three part time and three casual employees.
1.2
The application from STE to propose a WHS undertaking relates to a workplace
incident that occurred on 24 March 2012 where an STE employee sustained serious
injuries to the right leg while operating a five inch angle grinder with a saw blade disc
attached. The incident occurred at the company's former address located at 999
Beaudesert Road, Coopers Plains, 4108, Qld.
1.3
Workplace Health and Safety Queensland (WHSQ) inspectors investigated the incident
and as a result, prosecution action was commenced on 19 February 2013 by complaint
and summons in the Holland Park Magistrates Court.
1.4
The complaint alleged that STE being a person on whom a workplace health and safety
duty under section 19(1) of the Work Health and Safety Act 2011 (the Act) failed to
comply with the duty contrary to section 32 of the Act.
1.5
On 25 March 2013, the WHSQ Enforceable Undertakings Program was contacted by
STE legal representative to discuss the option of proposing a WHS undertaking as an
alternative to further court proceedings.
1.6
On 3 June 2013, an application to propose a WHS undertaking for this matter was
received by the department.
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1.7
A final draft of the proposed undertaking was received on 11 November 2013 and
evaluated by an Evaluation Panel (the Panel) on 14 January 2014.
1.8
Feedback from the panel meeting was provided to STE on the 22 January 2014 and an
amended version based on the Panel's feedback was submitted for re-evaluation on 11
February 2014.
1.9
On 13 February 2014, Panel members agreed to recommend the acceptance of the
WHS undertaking as an enforceable undertaking (EU).
2
The Issues and the Legislation
2.1
This proposal was given in accordance with section 216 of the Act which is reproduced
below:
216 Regulator may accept WHS undertakings
(1)
The regulator may accept a written undertaking (a WHS undertaking) given by a
person in connection with a matter relating to a contravention or alleged
contravention by the person of this Act.
NoteSection 230(3) requires the regulator to publish guidelines in re lation to the acceptance of WHS
undertakings.
2.2
(2)
A WHS undertaking can not be accepted for a contravention or alleged
contravention that is a category 1 offence.
(3)
The giving ofa WHS undertaking does not constitute an admission ofguilt by the
person giving it in relation to the contravention or alleged contravention to which
the undertaking relates.
In determining whether to accept the WHS undertaking as an EU, the regulator has
considered the provisions of section 21 7 of the Act which is reproduced below:
217 Notice of decision and reasons for decision
2.3
(1)
The regulator must give the person seeking to make a WHS undertaking written
notice of the regulator's decision to accept or reject the WHS undertaking and of
the reasons for the decision.
(2)
The regulator must publish, on the regulator's website, notice of a decision to
accept a WHS undertaking and the reasons for that decision.
Section 218 and 219 of the Act are also relevant which is reproduced below:
218 When a WHS undertaking is enforceable
A WHS undertaking takes effect and becomes enforceable when the regulator's
decision to accept the undertaking is given to the person who made the
undertaking or at any later date stated by the regulator.
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219 Compliance with WHS undertaking
A person must not contravene a WHS undertaking made by that person that is in
effect.
Maximum penalty-500 penalty units.
3
Policy Considerations
The Department of Justice and Attorney-General have provided you with the relevant
publications outlining information regarding the EU Program and the expectations of the
regulator when considering the option of giving a WHS undertaking.
3.1
The Enforceable Undertakings - Overview dated 2011 , and Enforceable Undertakings
- Guidelines for proposing a WHS undertaking are publications provided to assist duty
holders in preparing a proposed undertaking for consideration.
3.2
I regard these publications as containing considerations which are relevant and
appropriate to my decision. Some of the relevant considerations include:
i) Undertakings will deliver tangible benefits to the workplace, workers, industry
and or the community
A WHS undertaking must deliver a tangible benefit to the health and safety of
employees and/or the community generally and promote relevant industry
awareness.
ii) Undertakings will deliver benefits beyond compliance
The elements of a WHS undertaking must commit the applicant party to a standard
higher than the recognised compliance for the activity and/or to activities over and
beyond recognised compliance levels.
iii) Monitoring WHS undertakings
The specific monitoring requirements to ensure compliance with the terms of the
undertaking will be set out in each undertaking. There is a "zero tolerance"
approach to identified non-compliance of an accepted EU and available sanctions
will be used, where necessary, to address non-compliance or contraventions of the
agreed terms.
iv) Agreement to pay WHSQ's costs
The following costs may be recovered as part of an accepted EU:
3.3
•
investigation and legal costs associated with the alleged contravention
•
consideration and evaluation of the proposed undertaking
•
publication of an accepted undertaking, and
•
identified costs associated with the compliance monitoring of the EU.
In addition to the above, the following factors may also be considered:
•
the impact of the enforcement action
•
the compliance history of an applicant
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•
the extent of the risk
•
the objective gravity ofthe incident
•
the seriousness of the perceived contravention and the actual or potential
consequences
•
whether a target issue, hazard or specific strategic priority is involved
•
whether the incident or nature of the non-compliance is of considerable public
concern
•
the need to highlight a common hazard or risk in order to deter other workplaces
from continuing particular practices.
4
Evidence Considered
4.1
In reaching a decision, I have reviewed the relevant reports or directly considered the
following:
•
information provided by the duty holder to WHSQ
•
evidence collected during the investigation of this matter
•
the conclusions and recommendations of the Panel
•
the provisions in Part 11 of the Act.
5
Law and Policy- terms of the Enforceable Undertaking
5.1
It is my opinion that this proposed WHS undertaking satisfies the specified
requirements of the Act and the policy requirements and considerations discussed
above with respect to the operation ofPart 11 of the Act as they have been published.
5.2
The undertaking does contain certain positive undertakings. These include:
5.3
•
a clear statement regarding the facts and circumstances of the alleged contravention
•
an acknowledgement of the alleged breach
•
a statement of regret
•
an assurance about the company's future behaviour
•
an acknowledgment of the company's financial ability to comply with the terms of
the proposal
•
an assurance that the behaviour that led to the alleged contravention has ceased, and
•
the recovery of reasonable costs incurred by the department in relation to the
alleged contravention.
I am of the opinion that the proposed WHS undertaking would also deliver tangible
benefits to:
•
workers or the workplace including:
o an assurance that the company will continue to develop and implement an
OHSMS compliant with AS/NZS 4804:2001
o agreement for third party auditing of the OHSMS and implementation of
recommendations in the workplace against AS/NZS 4801 :200 1
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o the continued engagement of a WHS professional to oversee the ongoing
implementation and compliance of the OHSMS
5.4
5.5
o
establishing a safety document management system to centralise WHS documents
for all workers
o
enrolling a number of workers in Certificate III Dogging, Certificate IV WHS
training and Senior First Aid courses.
•
industry including developing and publishing an instructive case study in a national
industry publication to improve awareness of the risks associated with angle
grinders/cutters.
•
the community including the provision of funding for the Men's Shed volunteer
organisation to purchase personal protective equipment for the WHS benefit of its
members.
I am of the opinion that:
•
the proposed WHS undertaking includes benefits that are beyond minimum
compliance, and
•
in these circumstances, an accepted EU would meet all the statutory and policy
requirements of the Act in this respect.
I note that the proposed WHS undertaking:
•
provides specific compliance monitoring requirements
•
does not place a restriction on publication, and
•
includes the recovery of the Department of Justice and Attorney-General's costs of
the investigation and compliance monitoring activities.
6
Additional Considerations
6.1
I have also taken into account the following:
•
The quantum of the WHS undertaking proposed by the company.
•
The objective gravity of the matter, assessed in this case as a 'Medium' level,
which takes into consideration the following:
o
the adherence by the company to statutory obligations prior to the event
o
the nature of the incident including the actual and potential risk of injury
o
the culpability ofthe company
o
the circumstance of the incident
o
the presence of any aggravating or mitigating factors relevant to the alleged
offence
o
the degree of co-operation given to the investigating officers during the
investigation
o
compliance history of the company and any prior prosecution action by the
State against the company
o
any remorse or lack of remorse of the company, and
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o
the company's level of compliance to any previous enforcement options
applied.
7
Decision
7.1
Based on the information provided to me and following careful consideration of this
matter, I am ofthe opinion that the WHS undertaking proposed by STE is an
appropriate enforcement option in regards to this case, and it is my decision to accept
this proposal as an EU.
7.2
My decision to accept the WHS undertaking as an accepted EU has been particularly
informed by the following considerations:
•
the assurance by the duty holder about its future behaviour in the General
information section, clause (g) ofthe proposal;
•
the regret expressed by the duty holder in the General information section, clause
(m) of the proposal;
•
the benefits to workers, industry and the community as set out in the Terms section,
clause (e) - (g) of the proposal; and
•
the objective gravity of the offence assessed as a 'medium' level as detailed in
paragraph 6.1 above.
Simon Blackwood
Deputy Director-General
Office of Fair and Safe Work Queensland
Department of Justice and Attorney-General
)_3 March 2014
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