Enforceable undertakings – Information for auditors of OHSMS

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 enforceable 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 commitments outlined in the undertaking.

The commitments 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.

The terms of an undertaking may require a workplace to have an occupational health and safety management system (OHSMS) in place acceptable to NT WorkSafe.

Third-party auditors selected to perform OHSMS audits must be certified by a certification body accredited by JAS-ANZ to ISO/IEC 17024:2004 General requirements for bodies operating certification of persons (a list of auditors which would meet this standard is available on the RABQSA OH&S Auditor Register at www.rabqsa.com) .

The terms of the undertaking will determine the timings of the OHSMS audits.  Generally this will require the first audit to be undertaken within three months of the commencement of the undertaking where an OHSMS is in place, or otherwise within six months.

Auditor reports

An auditor must submit reports arising from the OHSMS audits to the person who proposed the undertaking within 30 days of completing the site visit. Audit reports must be detailed and include:

• an assessment of compliance with each of the criteria specified by NT WorkSafe. These criteria meet the principles contained in AS/NZS 4801:2001 Occupational Health and Safety Management System – Specification with guidance for use
• a list of all evidence sighted confirming compliance or otherwise
• an assessment of each clause as either:
  • fully compliant
  • partially compliant (detailed explanation required)
  • non-compliant (detailed explanation required)
• appropriate recommendations aimed at achieving compliance, and
• a statement of status on in the implementation of recommendations and non-compliances identified in previous OHSMS audits.

Each finalised OHSMS audit report provided to the person by the OHSMS Auditor, must be forwarded by the person who proposed the undertaking to NT WorkSafe, along with a letter certifying that the report has not been altered from the copy provided by the auditor.

The person is required to advise NT WorkSafe of the person’s intended action/s to address each of the report’s recommendations.

Further information

Bulletins

• Enforceable undertakings – Information at a glance
• Enforceable undertakings – Information for injured person, next of kin or guardian

A person (or their representative) who wishes to propose an undertaking should contact NT WorkSafe on 1800 019 115 or email ntworksafe@nt.gov.au