Enforceable undertakings – Information at a glance
In the event of an alleged contravention of the Work Health and Safety (National Uniform Legislation) Act 2011 (the WHS Act), NT WorkSafe may, as an alternative to prosecuting the contravention, accept an enforceable undertaking, also known as a Work Health and Safety (WHS) Undertaking, given by the person who is alleged to have committed the contravention.
An enforceable undertaking is a high level sanction which is legally binding and is used where the alleged contravention is of a serious nature. Accepted undertakings will form part of the duty holder’s compliance history. An enforceable undertaking provides an opportunity for organisational reform to implement effective workplace health and safety.
What is an enforceable undertaking?
An enforceable undertaking is a legally-binding agreement between NT WorkSafe and the person who proposed the undertaking. Once accepted by NT WorkSafe, the enforceable undertaking obliges the person to carry out the specific activities outlined in the undertaking.
The activities are intended to improve not only health and safety at the workplace, but also deliver health and safety initiatives to the relevant industry and the broader community.
When a proposed undertaking is accepted, any legal proceedings connected to the alleged contravention are discontinued. Where legal proceedings have not been instituted, acceptance of the undertaking will mean that no proceedings will be commenced.
Benefits of an enforceable undertaking
An enforceable undertaking provides:
- for significant and ongoing commitments that aim to achieve improved WHS outcomes and compliance beyond what is required by the law. Whereas legal proceeding may not achieve such outcomes
- an opportunity for organisational reform to implement effective workplace health and safety
- a similar deterrent effect to a successful legal proceeding, due to the financial imposition of the WHS undertaking, and
- 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 undertaking?
An undertaking must contain certain information and a number of terms to which the person proposing the undertaking commits, including:
- particulars about the person proposing the undertaking
- details of the alleged contravention
- an acknowledgment that NT WorkSafe has alleged a contravention has occurred
- a statement of assurance about future WHS behaviour, and
- a statement of regret that the incident occurred.
The enforceable terms that are part of the undertaking include:
- cease the behaviour that led to the alleged contravention
- a commitment to the ongoing effective management of WHS risks
- providing details of tangible health and safety initiatives that will be delivered to benefit workers, industry and the community
- reimburse agreed costs to NT WorkSafe associated with the undertaking
- disseminate information about the undertaking within the workplace
- where required, implement and maintain an occupational health and safety management system (OHSMS) acceptable to NT WorkSafe that meets the principles of AS/NZS 4804:2001 Occupational health and safety management systems – General guidelines on principles, systems and supporting techniques, and
- where required, undertake auditing of the OHSMS by a suitably qualified third party auditor, forward reports arising from the audits to NT WorkSafe, and implement the agreed actions arising from the report.
NT WorkSafe will monitor compliance with the terms of the undertaking.
The process
Proposal
An undertaking may be proposed by a person, who is alleged to have contravened the WHS Act.
NT WorkSafe is not compelled to accept an undertaking. Further, an enforceable undertaking cannot be accepted for an alleged contravention that is a Category 1 offence.
Category 1 offence – A person commits a Category 1 offence if:
- the person has a health and safety duty; and
- 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
- the person is reckless as to the risk to an individual of death or serious injury or illness.
Category 2 offence – A person commits a Category 2 offence if:
- the person has a health and safety duty; and
- the person fails to comply with that duty; and
- the failure exposes an individual to a risk of death or serious injury or illness.
Category 3 offence – A person commits a Category 3 offence if:
- the person has a health and safety duty; and
- the person fails to comply with that duty
An enforceable undertaking will not be considered until NT WorkSafe is satisfied, following investigation, that a matter does not relate to a Category 1 offence.
Meetings between NT WorkSafe and the person proposing the undertaking are available to assist the person to determine if an enforceable undertaking is likely to be a suitable option and if it is pursued, the process for its consideration. These meetings are encouraged as a first step before proposing an undertaking.
When NT WorkSafe receives a proposed undertaking any injured person(s) associated with the alleged contravention are invited to comment.
Evaluation
Proposals are considered on a case by case basis and are judged by whether the proposal offers the most appropriate enforcement response for the circumstances of the case.
The evaluation process takes into account:
- the proposed enforceable undertaking’s merits and benefits
- the persons 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), and
- the likely outcome should the matter be dealt with through legal proceedings.
Decision
If accepted, the proposed undertaking becomes enforceable and any legal proceedings connected to the alleged contravention are discontinued. Where legal proceedings have not been instituted, acceptance of the undertaking will mean that no proceedings will be initiated, while the undertaking remains in effect.
Penalties for non-compliance
If an accepted enforceable undertaking is not complied with, NT WorkSafe may apply for a court order to enforce compliance and impose financial penalties. Significant financial penalties, outlined in section 219 of the WHS Act, apply and NT WorkSafe may also seek to prosecute the original alleged contravention.
Varying or withdrawing an undertaking
Undertakings may be withdrawn at any time prior to being accepted by the Regulator. After being accepted however, the enforceable undertaking may only be varied or withdrawn with the prior written agreement from NT WorkSafe.
Further information
A person who wants to propose an undertaking (or a representative of such a person) should contact NT WorkSafe on 1800 019 115 for more detailed information.