Enforceable undertakings – Information for injured person, next of kin or guardian

What is an enforceable undertaking?

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 must be in an undertaking?

The proposal must incorporate certain information and a number of terms that support the assurance of future behaviour. The information required includes:

• particulars about the person or entity 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.

The enforceable terms that are part of the undertaking include:

• ceasing the behaviour that resulted in the alleged contravention
• the future effective management of the risks related to the alleged contravention
• developing, implementing and reviewing proactive strategies within the workplace to prevent reoccurrence of the incident
• providing details of the safety management system that will be retained or will be implemented at the workplace, and
• providing details of tangible health and safety initiatives that will be delivered to benefit workers, industry and the community.

In addition, the person proposing the undertaking may:

• agree to publishing details of the undertaking if it is accepted
• acknowledge the undertaking will be monitored by NT WorkSafe; and
• give a commitment to reimburse NT WorkSafe’s costs associated with the consideration and monitoring of the undertaking if NT WorkSafe seeks these costs.

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.

Where an alleged contravention involves a fatality or a very serious injury, the proposal must be supported by a claim that exceptional circumstances exist for the proposal to be considered for acceptance.

How are proposed undertakings decided?

Proposals are considered on a case-by-case basis and acceptance will be determined on whether or not the proposal offers the most appropriate enforcement response for the circumstances of the case.

Consideration of the proposal includes an assessment of the likely fine should the matter be dealt with through legal proceedings.

The evaluation process will also take account of:

• whether the undertaking will deliver tangible benefits to the workplace, industry and the community
• whether the undertaking will deliver benefits beyond compliance – that is, improvements implemented are above the requirements of the WHS Act
• whether the person making the proposal has been the subject of previous WHS-related legal proceedings
• whether the proposal includes any unacceptable terms, such as a denial of liability, obligations placed upon NT WorkSafe, or terms that set up defences for possible non-compliance with the undertaking, and
• any input  from injured persons, Next of Kin or guardian (as relevant) about an undertaking being accepted as an alternative to the matter being dealt with through legal proceedings.

Benefits of an enforceable undertaking

Proposed undertakings must contain a substantial demonstration of commitment to future WHS behaviour and in this regard requires a significant organisational commitment.

An enforceable undertaking is:

• a long term effective remedy for an alleged contravention compared with a prosecution resulting in a fine, which is finalised when paid, and may not lead to substantial changes in the workplace
• an opportunity for organisational reform to implement effective workplace health and safety
• aimed at encouraging, enhancing and enforcing compliance
• an approach that does not require the injured person to give evidence in court
• a deterrent to future breaches of the legislation, and
• aimed at rehabilitation and restorative justice – putting the wrong right.

Possible outcomes

Enforceable undertakings can deliver flexible and broad outcomes, compared to those delivered through prosecution. For example, an enforceable undertaking may commit a person to:

• conducting, facilitating or funding research into a safety issue relevant to the industry
• implementing specific projects, such as special training programs to address particular needs for workers, supervisors and management, and/or
• community service commitments, such as implementation of an industry-wide awareness program or publication of material dealing with the enforceable undertaking in relevant trade journals or newspapers.

Injured person(s), next of kin or guardian(s) involvement in the process

NT WorkSafe considers a range of factors when assessing the merits of an undertaking. One of these factors includes considering information from injured persons, Next of Kin or Guardians (as relevant).

NT WorkSafe will seek to discover the impact that the incident has had on any injured persons, whether the person has been rehabilitated and returned to work or returned to independence, if applicable, or whether there are other safety issues that remain of concern to the person.

Injured persons, next of kin or guardians (as relevant) will be informed by NT WorkSafe that an enforceable undertaking has been proposed.

The injured person, next of kin or guardian (as relevant) will be provided an opportunity to comment on:

• the details of the incident
• the safety management at the workplace
• the details of current employment status
• the details of future likely work capacity
• the details of the stage of recovery from the injury
• information regarding the rehabilitation and return to work programs that the person has been involved in
• information regarding any assistance the person proposing the undertaking has made regarding the injured person’s quality of life since the incident, and
• whether an enforceable undertaking would be an acceptable alternative to NT WorkSafe prosecuting the person.

The injured person, next of kin or guardians (as relevant) will be advised in writing of the outcome of the consideration of the proposed undertaking. If the proposal is accepted, generally a copy of the undertaking will be included with the letter.

Penalties for non-compliance with WHS undertakings

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.

Further information

Information bulletins

• Enforceable undertakings – Information at a glance
• Enforceable undertakings – Information for auditors of OHSMS

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