An Enforceable Undertaking is a legally binding agreement between the State Workplace Health and Safety Regulator and the person who proposed the undertaking.
The person is obliged to carry out the specific activities outlined in the undertaking. The activities may be substantial.
An enforceable undertaking cannot be accepted for a contravention or alleged contravention for a category one offence.
An enforceable undertaking (rather than a prosecution) will only be accepted if it demonstrates three main principles:
- benefits to the workplace
- benefits to their industry
- benefits to the community.
When a proposed enforceable undertaking is accepted, any legal proceedings connected to the alleged contravention are discontinued. Where legal proceedings have not been started, acceptance of the undertaking means no proceedings will be started (as long as the undertaking is not contravened).
Benefits of Enforceable Undertaking
An enforceable undertaking:
- provides for significant and on-going commitments that aim to achieve improved WHS and compliance
- provides an opportunity for organisational reform
- provides an opportunity for the person to communicate to their industry peers and the community generally about the consequences of unsafe work practices and the opportunities that putting in place safe work practices can bring.
What Makes Up An Enforceable Undertaking
An enforceable undertaking must contain this information:
- particulars about the person proposing the enforceable undertaking
- details of the contravention or alleged contravention
- an acknowledgment that the regulator has alleged a contravention has occurred
- a statement of assurance about future WHS behaviour
- a statement of regret that the incident occurred
The enforceable terms include:
- commitment to publish the enforceable undertaking
- commitment to cease the behaviour that led to the contravention or alleged contravention
- a commitment to the ongoing effective management of WHS risks
- providing details of long term, sustainable and measurable work health and safety initiatives that will be delivered to benefit workers, industry and the community
- agreement to disseminate information about the undertaking within the workplace
- where required, implement and maintain an acceptable work health and safety management system (WSMS)
- where required, undertake auditing of the WSMS by a suitably qualified third party auditor, forward reports arising from the audits to the regulator, and implement the agreed actions arising from the report.
We can assist with various Enforceable Undertaking processes and recommend you also consider contacting the Safety Governance Foundation.