The National Heavy Vehicle Regulator (NHVR) has accepted an enforceable undertaking (EU) from two former directors of ex mining company Goondicum Resources, Mark McCauley and Jonathan Mattiske, after the tragic death of a haulage contractor.
NHVR director of prosecutions Belinda Hughes said the directors were charged with failing to exercise due diligence to ensure safe transport activities after Brock Rode, 31, was killed at Monto, Queensland, on May 17, 2019.
According to the regulator’s EU decision summary, the independent contractor engaged by the now defunct Goondicum Resources was fatally injured when the heavy vehicle he was driving apparently stopped on an inclined section of public road before rolling backwards and then over the adjacent drop-off, which was several metres high.
“As part of the EU, the directors will pay for the development of a due diligence manual for executives to understand their obligations in the chain of responsibility under the HVNL,” Hughes said.
“Executives in particular must exercise their own personal due diligence obligations to check the company has ensured the safety of its transport activities, including the safety of all workers and independent contractors.”
Under the EU, the directors must develop a suite of educational HVNL materials by February 2023, including a due diligence manual, induction video on the responsibility of executives, and a joint filmed presentation to the Australian Institute of Directors or similar groups summarising the events and lessons from the charges.
The total cost of the EU initiatives is valued at approximately $72,000. Failures to comply with the EU can lead to a person or entity being prosecuted.
When Big Rigs queried why each director only received a financial penalty that equated to 21.8 per cent of the maximum penalty of $165,070 that a court could impose, the regulator told us it considers the applicant’s financial ability to meet the terms of a proposed EU and requires applicants to confirm this in their proposal.
“The figure of 21 per cent was arrived at by considering the penalty the applicant would have been likely to receive given the nature of the offence and their compliance history. It is an estimate only,” a spokesperson said.
Rode’s partner Sarah-Jane Davis declined a Big Rigs’ request for comment about the EU decision, but according to CEO Sal Petroccitto’s detailed summary report, she expressed support for the proposed activities and considers they would be a more effective outcome than a court-imposed financial penalty.
“Ms Davis has thanked the NHVR for its efforts in investigating and prosecuting these matters and hopes that the EU will result in a safer industry,” said Petroccitto.
NHVR director of prosecutions Belinda Hughes added that executives, in particular, must exercise their own personal due diligence obligations to check the company has ensured the safety of its transport activities, including the safety of all workers and independent contractors.
“We think the EU addresses a significant area of concern in relation to the requirements of the HVNL; the lack of awareness by executive officers as parties in the chain of responsibility to fulfil their due diligence obligations, and the personal exposure they may have in the case of a serious breach of those requirements.”
“We are confident the individuals will comply with the EU requirements and implement the safety measures outlined. All EUs are actively monitored by the NHVR. The individuals must submit evidence to show the agreed activities have been completed, to avoid further legal action.”
If the individuals do not comply with their EU, they will be prosecuted for breaching the agreement.