In December 2014 ACT Attorney-General Simon Corbell announced
that for the first time WorkSafe ACT had accepted an enforceable
undertaking (EU) under the Work Health and
Safety Act 2011 (ACT). The first of which was
entered into by Virgin Tech Pty Ltd (Virgin Tech),
part of Virgin Australia Group.
The EU arose out of an incident in May 2013 where a Virgin Tech
employee was struck on the back of the head by a high speed roller
shutter door when collecting recycling from the terminal premises
at Canberra Airport. The employee injured their neck, received
treatment for this injury and later returned to work.
Virgin Tech responded by proposing an enforceable undertaking
which included implementation of internal safety programs, a
compliance reporting platform, external audits, employment of a WHS
specialist, sponsorship of an education program for community
members and a donation to the Neurosurgical Unit, Canberra Hospital
at a total cost of AUD 625,000.
More recently, as a result of another incident at Canberra
Airport involving a Qantas Airways Ltd (Qantas),
an employee who was injured when he fell backwards approximately
1.5 metres while cleaning an aircraft at Canberra Airport.
WorkSafe ACT investigated the incident and alleged that Qantas
failed to comply with their duty to ensure the health and safety of
workers and contractors, exposing an individual to a risk of
serious injury. Qantas proposed an EU which included internal
programs, improvements to the infrastructure designed to prevent a
fall from height, employment of a WHS coordinator, sponsoring a
research project into managing safety risks and a donation to the
Snowy Hydro Rescue Helicopter service in the ACT at a total cost of
AUD 680,000. The EU was accepted in 2016.
EU's arise under part 11 of the Work Health and Safety
Act 2011 (ACT)1 that provides that WorkSafe ACT may
accept a written undertaking in connection with a matter relating
to an alleged contravention by the person of the Act.
An EU is a legally binding agreement between WorkSafe ACT and
the person who proposed the undertaking whereby in exchange for
various safety initiatives, WorkSafe ACT will not prosecute for an
alleged breach of the Act.
EU's are primarily aimed at addressing the underlying issue
that led to the incident and also includes community based and
industry initiatives with the aim of improving community awareness
and safety outcomes.
During the term of the EU, which is usually two years,
contravention of the terms of the EU may result in substantial
penalties but more significantly, WorkSafe ACT can bring
proceedings for the original alleged contravention of the Act. It
is important to note that an undertaking cannot be accepted for an
alleged contravention that is a category 1 offence (see s 31 of the
While to some, EU's may be seen as a quick fix to avoid a
prosecution, in reality this is far from true. In some cases,
EU's can result in high levels of expenditure, sometimes greater than that of the likely original fine. In both the
Virgin Tech and the Qantas examples, both organisations committed
over half a million dollars to improving their internal systems and
contributing to community initiatives. While Virgin Tech and Qantas
safety budgets are likely to be significant given the size of their
organisations, a contribution of this nature is not insignificant
to the further improvement of safety.
Entering into an EU does result in additional ongoing compliance
obligations with the regulator to ensure compliance with the EU,
but they also provide an opportunity to develop and implement
ongoing and lasting change within an organisation and provide a
positive contribution to the community.
The priority should always be ensuring a workplace is free from
risks to health and safety, but when an incident does occur,
EU's provide an opportunity to grow and learn from an incident,
which can only be a good thing.
1. Also see Work Health and Safety Act 2011 (NSW) Part 11,
Work Health and Safety (National Uniform Legislation) Act 2011 (NT)
Part 11, Work Health and Safety Act 2012 (Tas) Part 11, Work Health
and Safety Act 2012 (SA) Part 11, Work Health and Safety Act 2011
(QLD) Part 11, Occupational Safety and Health Act 1984 (WA) Part
VII Div 3, Occupational Health and Safety Act 2004 (Vic) Div 4 and
Work Health and Safety Act 2011 (Cth) Part 11
This decision will be significant to aviation industry participants in assessing whether claimants in the context of international or domestic carriage by air have commenced claims in an appropriate forum in Australia.
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