Enforceable undertakings

An Enforceable Undertaking (EU) is a legally binding written agreement between WorkSafe ACT and the person who proposed the undertaking. It contains commitments by the applicant to do certain things within a timeframe.

In the event of an alleged contravention of the Work Health and Safety Act 2011 (WHS Act), WorkSafe ACT may, as an alternative to prosecuting the contravention, accept a work health and safety undertaking given by the person who is alleged to have committed the contravention.

A work health and safety undertaking provided for in part 11 of the WHS Act is referred to by WorkSafe ACT as an ‘enforceable undertaking’ or ‘undertaking’.

An enforceable undertaking is a high level sanction which is legally binding and is used where the alleged contravention is of a serious nature. Accepted enforceable undertakings will form part of the duty holder’s compliance history. An enforceable undertaking provides an opportunity for organisational reform to implement effective workplace health and safety.

What is an enforceable undertaking?

An enforceable undertaking is a legally binding agreement between WorkSafe ACT and the person (defined as individual or corporation) who proposed the undertaking. Once accepted by WorkSafe ACT, the enforceable undertaking obliges the person to carry out the specific activities outlined in the enforceable undertaking.

The activities are intended to improve not only health and safety at the workplace, but also deliver health and safety initiatives to the relevant industry and the broader community. The activities are substantial.

When a proposed enforceable undertaking is accepted, any legal proceedings connected to the alleged contravention are ceased. Where legal proceedings have not been instituted, acceptance of the enforceable undertaking will mean that proceedings will halted.

Benefits of an enforceable undertaking

An enforceable undertaking:

• provides for significant and ongoing commitments that aim to achieve improved work health and safety outcomes and compliance beyond what is required by the law, whereas legal proceeding may not achieve such outcomes
• provides an opportunity for organisational reform to implement effective workplace health and safety
• provides a similar deterrent effect to a successful legal proceeding, due to the financial imposition of the enforceable undertaking
• provides an opportunity for the person to communicate to their industry peers and the community generally about the consequences of unsafe work practices and the opportunities that putting in place safe work practices can bring.

What makes up an enforceable undertaking?

An enforceable undertaking must contain certain information and a number of terms to which the person proposing the undertaking commits, including:

• particulars about the person proposing the undertaking;
• details of the alleged contravention;
• an acknowledgment that WorkSafe ACT has alleged a contravention;
• a statement of assurance about future work health and safety behaviour; and
• a statement of regret that the incident occurred.

The enforceable terms that are part of the undertaking include:

• ceasing the behaviour that resulted in the alleged contravention
• a commitment to the ongoing effective management of work health and safety risks
• providing details of tangible health and safety initiatives that will be delivered to benefit workers, industry and the community
• dissemination of information about the enforceable undertaking within the workplace
• where required, implement and maintain an occupational health and safety management system (OHSMS) acceptable to WorkSafe ACT that meets the principles of AS/NZS 4804: 2001 Occupational health and safety management systems – general guidelines on principles, systems and supporting techniques
• where required, undertake auditing of the OHSMS by a suitably qualified third party auditor, forward reports arising from the audits to WorkSafe ACT, and implement the agreed actions arising from the report.

WorkSafe ACT will monitor compliance with the terms of the enforceable undertaking.

The process

Proposal

An enforceable undertaking may be proposed by a person, who is alleged to have contravened the WHS Act.

WorkSafe ACT is not compelled to accept an enforceable undertaking. Further, an enforceable undertaking cannot be accepted for an alleged contravention that is a category 1 offence 1

Meetings between WorkSafe ACT and the person proposing the enforceable undertaking are available to assist the person to determine if an enforceable undertaking is likely to be a suitable option and if it is pursued, the process for its consideration. These meetings are encouraged as a first step before proposing an enforceable undertaking.

When WorkSafe ACT receives a proposed enforceable undertaking any injured person(s) associated with the alleged contravention are invited to comment.

Evaluation

Proposals are considered on a case by case basis and are judged by whether the proposal offers the most appropriate enforcement response for the circumstances of the case.

The evaluation process takes into account:

• the proposed enforceable undertaking’s merits and benefits
• the persons financial ability to met the terms of the proposed enforceable undertaking
• the significance of the commitment compared to the capability of the person
• the person’s compliance history
• the support the person has provided to injured person(s)
• the input from injured person(s)
• the likely outcome should the matter be dealt with through legal proceedings.

Category 1 offence – a person commits a category 1 offence if: (a) the person has a health and safety duty; and (b) the person, without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness; and (c) the person is reckless as to the risk to an individual of death or serious injury or illness.

Category 2 offence – a person commits a category 2 offence if: (a) the person has a health and safety duty; and (b) the person fails to comply with that duty; and (c) the failure exposes an individual to a risk of death or serious injury or illness.

Category 3 offence – a person commits a Category 3 offence if: (a) the person has a health and safety duty; and (b) the person fails to comply with that duty.

Decision

If accepted, the proposed enforceable undertaking becomes enforceable and any legal proceedings connected to the alleged contravention are ceased. Where legal proceedings have not been instituted, acceptance of the enforceable undertaking will mean that proceedings will be halted, while the enforceable undertaking remains in effect.

Penalties for non-compliance

If an accepted enforceable undertaking is not complied with, WorkSafe ACT may apply for a court order to enforce compliance and impose financial penalties.

The maximum penalty for failure to comply with an enforceable undertaking is $50,000 for an individual and $250,000 for a body corporate. WorkSafe ACT may also seek to prosecute the original alleged contravention.

Varying or withdrawing an enforceable undertaking

Enforceable undertakings may be withdrawn at any time prior to being accepted by WorkSafe ACT. After being accepted however, the enforceable undertaking may only be varied or withdrawn with the prior written agreement of WorkSafe ACT.

These publications and more detailed information about work health and safety are available at www.worksafe.act.gov.au.

This guidance material has been prepared using the best information available to WorkSafe ACT. Any information about legislative obligations or responsibilities included in this material is only applicable to the circumstances described in the material. You should always check the legislation referred to in this material and make your own judgement about what action you may need to take to ensure you have complied with the law. Accordingly, WorkSafe ACT extends no warranties as to the suitability of the information for your specific situation.