Australia: Compliance and enforcement under WHS undertakings

Workplace Matters - Issue 7

Under the model Work Health and Safety Acts (WHS Acts) individuals and entities may be able to enter into an enforceable undertaking (commonly referred to as a work health and safety (WHS) undertaking) for alleged or actual contraventions of a WHS duty. A WHS undertaking is not a way for companies or individuals to avoid the ramifications that may flow from breach. Rather, it provides an opportunity for parties to enter into a dialogue with the regulator and pursue an alternative to prosecution that facilitates ongoing WHS commitments and improvements.

Although enforceable undertakings were previously available in a few Australian jurisdictions under the old occupational health and safety laws, for many, it's a relatively new concept for WHS.

With only a handful of undertakings having been accepted and entered into under the WHS Acts, it is a developing area of compliance and enforcement that you need to know about.

What is it?

A WHS undertaking is a written, legallybinding commitment prescribed by part 11 of the WHS Acts that can be entered into as an alternative to a court imposed sanction for a potential contravention of the WHS Acts. The undertaking outlines and subsequently obliges the executing party to carry out substantial activities or WHS initiatives that will deliver benefits to workers, the industry and the community.

What are the benefits?

A WHS undertaking provides an alternative to prosecution and potential conviction for an alleged breach of the WHS Acts. If a prosecution has been commenced, entry into a WHS undertaking will discontinue this process. If a prosecution hasn't been commenced, the regulator is precluded from initiating a prosecution provided the terms of the WHS undertaking are adhered to.

From an organisational perspective, it provides an opportunity for internal reform and encourages significant, ongoing commitments to WHS. It may also have the broader impact of minimising the likelihood of reoccurrence by enabling the industry and community to learn from the issues identified and the rectification action implemented.

Key considerations

A WHS undertaking may be proposed by a duty holder, but it can't be granted for a breach or alleged breach of the WHS Acts involving a Category 1 offence (reckless conduct).

A proposed WHS undertaking is subject to the discretion of the regulator and must receive their certification and acceptance before taking effect. To assist in determining whether to accept a proposed WHS undertaking, the regulators have published comprehensive guidelines on the assessment criteria and decision making process that they will implement.

Generally speaking, a WHS undertaking will only be accepted if it demonstrates significant benefits to the:

  • workplace
  • relevant industry, and
  • community.

In light of this, a WHS undertaking will generally require a significant financial and organisational commitment to be made.

Further, if accepted and entered into, the WHS undertaking must be published on the relevant regulator's website. This means there is the potential for public scrutiny and reputational impacts.

If a WHS undertaking is not complied with, the regulator may apply for a court order to enforce compliance and/or impose a financial penalty of up to a maximum of $50,000, for an individual, or $250,000, for a body corporate.

The regulator may also seek to prosecute the original alleged contravention that was the subject of the WHS undertaking.

What must a WHS undertaking include?

A WHS undertaking must contain:

  • details of the person proposing the enforceable undertaking
  • details of the contravention or alleged contravention of the WHS Acts
  • an acknowledgement that the regulator has asserted an alleged contravention
  • a statement of assurance and commitment to future WHS behaviour
  • details of long-term, sustainable and measurable WHS initiatives that will deliver benefits to workers, the industry and the community, and
  • a statement of regret regarding any incident that may have occurred and given rise to the contravention or alleged contravention.

Example of a recent WHS undertaking

In January 2015, a NSW manufacturer entered into a WHS undertaking after an incident in which an employee was seriously injured while performing duties that involved removing pallets from a truck.

In the undertaking, the manufacturer acknowledged its potential contravention of the WHS Acts and also detailed the steps taken to support the injured worker during their recuperation and return to work.

It also listed the rectification action already taken to improve its internal safe work systems.

In terms of future and ongoing initiatives to deliver benefits to the workplace, the industry and the community, the business undertook to:

  • provide internal refresher training courses on load restraints
  • update vehicle tracking and fleet management systems
A WHS undertaking provides an opportunity for parties to enter into a dialogue with the regulator and seek an alternative to prosecution that facilitates ongoing WHS commitments and improvements.
  • improve the dissemination of safety information within the business by introducing additional safety notice boards and updating their website
  • develop a best practice machine guarding manual and training package for use by the industry
  • hold a community safety day encouraging the development of a "safe work" culture, and
  • develop programs to present employment opportunities for work experience for local high school students and job seekers.

The total estimated cost of the undertaking was $385,000.

Alternative not evasion

A WHS undertaking is not an easy way out or a way to avoid the consequences that may flow from contraventions of the WHS Acts. However, it does provide an opportunity for parties to enter into a dialogue with the regulator and seek an alternative to prosecution that facilitates ongoing WHS commitments and improvements. In this regard, WHS undertakings reflect an attempt to balance the need for compliance and enforcement action, with the practical importance of encouraging workplaces to learn and benefit from past mistakes.

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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