Enforceable undertakings

We may carry out an enforceable undertaking (also known as a work health and safety (WHS) undertaking), as an alternative to prosecution through the courts (except for category one offences).

An enforceable undertaking is a legally binding agreement between us 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 principals:

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).

We are not compelled to accept a proposal for an undertaking.

An example of an enforceable undertaking might be:

We have alleged WHS breaches on a construction site following a worker falling from scaffolding and being injured. Rather than facing a prosecution through the courts, we agree with the business that they will carry out substantial activities so that the incident does not happen again and to improve its overall safety performance.

These activities include:

developing online induction training and toolbox talk sessions on safety rules for high risk activities, including working on scaffolding
delivering a safety leadership training program for managers and supervisors
increasing resources for supervisors to assist in effective supervision
developing a due diligence program and supporting documentation for senior management
presenting the lessons learnt from the incident and safety improvements to an industry forum
funding a work placement for a student
sharing safety knowledge through a small business assistance program
sharing knowledge on safety awareness through a community education program
committing to third party audits of the company's occupational health and safety management system

This is only an example of the types of activities which might be agreed. Every enforceable undertaking is different.

Benefits of an 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 occupational health and safety management system (OHSMS)
where required, undertake auditing of the OHSMS 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.

Process of an enforceable undertaking

An undertaking may be proposed by a person, who has or is alleged to have contravened the Work Health and Safety Act 2011 (WHS Act 2011).

To find out more about enforceable undertakings or to engage our pre-proposal advisory service, email enforceable.undertakings@safework.nsw.gov.au.

Evaluation of an enforceable undertaking

The evaluation process takes into account:

the circumstances surrounding the incident
the proposed enforceable undertaking's merits and benefits
the person's financial ability to meet the terms of the proposed undertaking
the significance of the commitment compared to the capability of the person
the person's compliance history
the support the person has provided to injured person/s
the input from injured person/s
the likely outcome should the matter be dealt with through legal proceedings
if the incident involves a fatality or a very serious injury, any exceptional circumstances detailed by the proposer

Proposals are considered on a case-by-case basis.

Verification of an enforceable undertaking

If we accept an enforceable undertaking, an inspector will be allocated to work with the person/business to verify that the specific activities outlined in the undertaking have been completed.

This will involve:

regular dialogue between the inspector and the person/business who proposed the undertaking with a particular focus on clarifying and resolving issues at the earliest opportunity
the person/business providing periodic updates and evidence to the verifying inspector outlining progress and demonstrating completion of the specific activities contained in the undertaking
consultation and agreement with SafeWork prior to the release of all public facing content (e.g. manuals, external forums/conferences or advertising campaigns).

Varying or withdrawing an enforceable undertaking

Undertakings may be withdrawn at any time before being accepted by us. After being accepted however, the WHS undertaking may only be varied or withdrawn with prior written agreement.