Guidance note - Enforceable undertakings - Information for injured persons, next of kin or guardians

What is an enforceable undertaking?

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(defined as individual or corporation) 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 must be in an enforceable undertaking?

The proposal must incorporate certain information and a number of terms that support the assurance of future behaviour. The information required includes:

  • particulars about the person or entity proposing the enforceable 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 has occurred.

The enforceable terms that are part of the undertaking include:

  • ceasing the behaviour that resulted in the alleged contravention
  • the future effective management of the risks related to the alleged contravention
  • developing, implementing and reviewing proactive strategies within the workplace to prevent reoccurrence of the incident
  • providing details of the safety management system that will be retained or will be implemented at the workplace
  • providing details of tangible health and safety initiatives that will be delivered to benefit workers, industry and the community.

In addition, the person proposing the enforceable undertaking may:

  • agree to publishing details of the enforceable undertaking if it is accepted; and
  • acknowledge the enforceable undertaking will be monitored by WorkSafe ACT.

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 not be initiated unless the terms of the Enforceable Undertaking are not adhered to.

Where an alleged contravention involves a very serious injury, the proposal must be supported by a claim that exceptional circumstances exist for the proposal to be considered for acceptance.

How are proposed enforceable undertakings decided?

Proposals are considered on a case by case basis and acceptance will be determined on whether or not the proposal offers the most appropriate enforcement response for the circumstances of the case.

Consideration of the proposal includes an assessment of the likely fine should the matter be dealt with through legal proceedings.

The evaluation process will also take account of:

  • whether the enforceable undertaking will deliver tangible benefits to the workplace, industry and the community;
  • whether the enforceable undertaking will deliver benefits beyond compliance-that is, improvements implemented are above the requirements of the WHS Act;
  • whether the person making the proposal has been the subject of previous work health and safety related legal proceedings;
  • whether the proposal includes any unacceptable terms, such as a denial of liability, obligations placed upon WorkSafe ACT, or terms that set up defences for possible non-compliance with the enforceable undertaking
  • any input from injured persons, next of kin or guardians (as relevant) about an enforceable undertaking being accepted as an alternative to the matter being dealt with through legal proceeding

Benefits of an enforceable undertaking

Proposed enforceable undertakings must contain a substantial demonstration of commitment to future work health and safety behaviour and in this regard requires a significant organisational commitment.

An enforceable undertaking is:

  • a long term effective remedy for an alleged contravention compared with a prosecution resulting in a fine, which is finalised when paid, and may not lead to substantial changes in the workplace;an opportunity for organisational reform to implement effective workplace health and safety;
  • aimed at encouraging, enhancing and enforcing compliance not subject to lengthy criminal proceedings and can be implemented in a timely manner
  • an approach that does not require the injured person to give evidence in court
  • a deterrent to future breaches of the legislation; and
  • aimed at rehabilitation and restorative justice – putting the wrong right.

Possible outcomes

Enforceable undertakings can deliver flexible and broad outcomes, compared to those delivered through prosecution. For example, an enforceable undertaking may commit a person to:

  • conducting, facilitating or funding research into a safety issue relevant to the industry implementing specific projects, such as special training programs to address particular needs for workers supervisors and management; and
  • community service commitments, such as implementation of an industry wide awareness program or publication of material dealing with the enforceable undertaking in relevant trade journals or newspapers.

Injured persons, next of kin or guardian involvement in the process

WorkSafe ACT considers a range of factors when assessing the merits of an enforceable undertaking. One of these factors includes considering information from injured persons, next of kin or guardians.

WorkSafe ACT will seek to discover the impact that the incident has had on any injured person(s), whether the person(s) has been rehabilitated and returned to work or returned to independence (if applicable), or whether there are other safety issues that remain of concern to the person.

The injured person or guardians will be informed by WorkSafe ACT that an enforceable undertaking has been proposed. The injured persons, next of kin or guardians will be provided an opportunity to comment on:

  • the details of the incident;
  • the safety management at the workplace;
  • the details of the current employment status;
  • the details of future likely work capacity;
  • the details of the stage of recovery from the injury;
  • information regarding the rehabilitation and return to work programs that the person has been involved in;
  • information regarding any assistance the person proposing the enforceable undertaking has made regarding the injured person’s quality of life since the incident; and
  • whether an enforceable undertaking would be an acceptable alternative to WorkSafe ACT prosecuting the person.

The injured persons, next of kin or guardians (as relevant) will be advised in writing of the outcome of the consideration of the proposed enforceable undertaking. If the proposal is accepted, generally a copy of the enforceable undertaking will be included with the letter.

Penalties for non-compliance with the enforceable undertaking

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.

Note: 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.

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