Enforceable undertakings: customer service standard

This guide helps explain what an enforceable undertaking (EU) is, and how it can be formed.

The basics

An EU is an alternative to prosecution through the courts. It’s a public and legally binding, written agreement between you and us.

There are specific activities that must be carried out as part of the EU.

Those activities may be substantial both financially and in terms of the staff resources you use. We will only enter into an EU if it demonstrates:

  • your commitment to work health and safety
  • strategies that benefit your workplace
  • strategies that benefit your industry
  • strategies that benefit the community
  • commitment and capability to deliver the strategies
  • a statement of regret
  • a commitment to publicise the EU.

We will not enter into an EU if the strategies are only about compliance with legal obligations. The following diagram outlines what is included in an EU proposal.

Content of an EU

What we will do

  • We will consider an EU proposal in relation to an alleged contravention of the Work Health and Safety Act 2011 (WHS Act).
  • We will offer you advice about the process.
  • We will decide whether or not to accept an EU.

What we will not do

  • We will not force you to enter into an EU.
  • We will not prepare an EU proposal on your behalf.
  • We will not provide legal advice.
  • We will not accept an EU for a category 1 offence.1

How you can help us help you

  • Provide us with any information that is requested of you.
  • Meet agreed timeframes.
  • Keep us informed of the progress of your EU.
  • Tell us in advance if you can’t meet deadlines.
  • Be committed to the process.
  • Be capable of meeting the EU outcomes.

What can you expect from us

  • We will offer you advice and feedback in the preparation of your EU proposal and keep you informed of its progress.
  • We will be proactive in progressing your EU proposal.
  • We will make sure our decisions and actions are fair, reasonable, transparent and appropriate and that we communicate this to you.
  • We will decline an EU if there are unreasonable delays on your behalf, or if the EU is not of an appropriate standard, or does not show evidence of commitment or capability to meet outcomes.

Timeframes

This table shows the important steps in the EU process with associated timeframes.

NoDescriptionResponsibility and timeframe
SafeWork NSWThe person proposing the EU
1Request for EU pre-proposal advisory service meeting Start of the EU process
2EU pre-proposal advisory service meeting28 days* from enquiry28 days* from enquiry
3Confirmation to enter into EU negotiations 7 days from meeting
4Submission to SafeWork NSW 28 days from receipt of confirmation
5SafeWork NSW decides if eligible to submit EU proposal28 days from receipt of confirmation 
6Presentation of proposed EU strategies (if eligible) 28 days from decision
7Submission of draft EU proposal 28 days from presentation
8Initial feedback on draft EU proposal14 days from receipt of proposal 
9Submission of amended draft EU proposal (and any subsequent versions) Timeframe negotiated and agreed
upon receipt of feedback
10Feedback on amended draft EU proposal (and any subsequent versions)14 days from receipt of proposal 
11Benefits of proposed strategies assessed by EU Evaluation Panel28 days from receipt of proposal 
12Feedback from EU Evaluation Panel on proposed strategies7 days from Panel meeting 
13Submission of amended draft EU proposal (if required) Timeframe negotiated and agreed
upon receipt of feedback
14Panel further considers amended draft EU proposal and makes a recommendation28 days from receipt of proposal 
15SafeWork NSW makes a decision14 days from Panel’s recommendation 
16 Notify person/interested parties of decision and publish EU and reasons for decision7 days from decision

1 A person commits a category 1 offence if:

a. the person has a health and safety duty; and
b. the person, without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness, and
c. the person is reckless as to the risk to an individual of death or serious injury or illness.

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