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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.