Most Read Contributor in New Zealand, November 2016
The Health and Safety at Work Act 2015 (HSW
Act) provides a range of options for WorkSafe when they
are investigating a contravention of the HSW Act. One of those
options is for the duty holder to give an enforceable
An enforceable undertaking is a legally binding agreement
between WorkSafe and the duty holder. Its purpose is to focus the
duty holder on various tasks that they need to carry out to fix an
alleged breach, and/or to prevent a similar breach occurring in the
WorkSafe will decide whether or not to accept the enforceable
undertaking. The factors that WorkSafe consider include:
the seriousness of the uncontrolled risk resulting from the
the degree of harm resulting from the breach;
the views of any victim of the breach;
the views of the workers and their representatives; and
the likelihood that the enforceable undertaking will deliver
real benefits to the workplace, industry or community beyond that
achieved through other enforcement methods.
In practice these factors are likely to include the payment of
voluntary reparation to any person injured by the breach, and the
payment of costs (investigation, enforcement, and prosecution).
The undertaking will need to provide for a significant
improvement to the duty holder's activities. It will not be
sufficient to enter into an enforceable undertaking that only goes
so far as compliance with the current legal requirements, it must
improve the duty holder's practices beyond the minimum level.
Additionally, the person proposing the enforceable undertaking
would need to acknowledge the harm that has occurred and its
impacts; however, the giving of an enforceable undertaking does not
constitute an admission of guilt by the person giving it. The exact
wording of any undertaking is likely to be a matter of negotiation
between WorkSafe and the person making the undertaking.
All enforceable undertakings accepted by WorkSafe must be
published on the internet, together with the reasons for accepting
While often a very agreeable alternative to prosecution by
WorkSafe, a duty holder should be sure that they can comply with
the undertaking before reaching an agreement. The breach of an
enforceable undertaking is a stand-alone offence under the HSW Act,
with fines of up to $50,000 for an individual or $250,000 for a
Any duty holder considering negotiating an enforceable
undertaking with WorkSafe should carefully check their statutory
liability insurance policy, if they have one, and discuss the
policy terms with their lawyer. Some policies state that they
provide cover in the event of a prosecution, which means that
depending on the specific wording of the policy, there may not be
any cover if a prosecution is avoided. Some insurers may agree to
provide cover regardless, on the basis that a prosecution would
occur if the undertaking was not made, but this is something that
should be raised at the outset, rather than at the end of the
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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3.Courts are imposing larger fines and compensation for non-economic loss for contraventions of the Fair Work Act.
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