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 (EU) 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 EU cannot be accepted for a contravention or alleged contravention for a category one offence or an offence of industrial manslaughter.
An EU (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 EU 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're not compelled to accept a proposal for an undertaking.
EU guidelines
Our EU guidelines set out our approach when considering an offer of an EU from a person who has allegedly committed an offence against the Act.
Process of an EU
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.
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.
Penalties for non-compliance
If an accepted WHS undertaking is not complied with, we may apply for a court order to enforce compliance or to discharge the undertaking. The court may impose a financial penalty.
The maximum penalty for failure to comply is up to $250,000. We may also seek to prosecute the original contravention or alleged contravention.