Enforceable undertaking denied for coal company

A work health and safety (WHS) enforceable undertaking submitted by Clarence Coal on 31 January 2020 has been rejected by the NSW Resources Regulator. The enforceable undertaking proposed a number of obligations by Clarence Coal to deliver benefits to workers, industry and the community. The proposal for the enforceable undertaking was submitted following an incident at the Clarence Colliery on 4 July 2018, where two workers were seriously injured when material from a rib and cornice fell on them.

The incident occurred when the two workers were tasked with working underground; one was required to operate a continuous miner, with the other working as a cable hand. The second worker barred down on two packers (vertical coal structures) that were not supported by either mesh or bolts. The first worker then commenced operating the continuous miner, which led to a large quantity of coal and mudstone collapsing from the rib and cornice, striking both workers. The first worker was pinned beneath a large piece of coal weighing 750 kg; both workers sustained injuries that required hospitalisation.

The incident was investigated by the Resources Regulator’s Major Safety Investigations Unit, who found that Clarence Coal had breached certain regulations in the Work Health and Safety Act 2011. Per the enforceable undertaking filed by Clarence Coal, the person conducting a business or undertaking (PCBU [Clarence Coal]) must disseminate information about the undertaking to workers and publish a public notice in the Lithgow Mercury and The Sydney Morning Herald. The enforceable undertaking also requires the PCBU to deliver the Mindful Safety Worker Program to its workforce at a cost of $61,000.

Additionally, the PCBU must work with Coal Services to develop a ‘Virtual Reality “Free Roam” Strata Hazard Training Program’ (VRFR), to be shared with the industry, at a total cost of $76,400. The PCBU must also undertake a benchmarking study (at a total cost of $110,000) about coal rib behaviours in relation to coal seam heights and the effectiveness of support in controlling risks to health and safety. The total minimum spend for the enforceable undertaking came to $524,942, with the undertaking to be completed on or before 18 months from acceptance by the Regulator.

The Regulator considered the proposed undertaking and rejected it, on the grounds that the circumstances of the incident warranted strong specific and general deterrence. The Regulator found that while the alleged failures of the PCBU were towards the middle and upper end of seriousness, the total cost of the proposals of the undertaking were likely to exceed any penalty imposed by the Court, if the matter was pressed further. While the Resources Regulator has opted to reject the proposed enforceable undertaking, the PCBU is still able to submit a further proposal for consideration.

The Resources Regulator’s full decision is available here.

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