The Undertaker: Enforceable Undertakings under the WHS Act

In part one of our three part series we discussed improvement and prohibition notices under the Model Work Health and Safety Act.  In this second part we will focus on enforceable (or WHS) undertakings. 

An enforceable undertaking is an agreement between an organisation and the regulatory authority (e.g. Safe Work NSW) to do certain things to improve the health and safety in the workplace and may also involve some health and safety initiatives in the organisation’s industry and provide some benefit to the broader community. 

Part 11 of the Work Health and Safety Act 2011 (NSW) (WHS Act) addresses enforceable undertakings and specifically states that written enforceable undertakings may be accepted by Safe Work NSW for offences committed other than for a category 1 offence (i.e. reckless conduct). 

The benefit of an enforceable undertaking is that Safe Work NSW or applicable regulatory authority will not bring court proceedings against the offending organisation on the condition that the organisation complies with the enforceable undertaking. 

Organisations need to be aware that enforceable undertakings are not an easy way out of legal proceedings and compliance with the same often requires a lot of time, effort and money. Furthermore, the applicable regulatory authority may use its discretion not to allow an organisation to adopt an enforceable undertaking.

For example CSR Martini Pty Limited (CSR Martini) recently entered into an enforceable undertaking with SafeWork NSW worth more than $390,000.00. CSR Martini was alleged to have contravened sections 19(1) and 32 of the WHS Act on 2 July 2014 when an employee suffered a crush injury after his foot was drawn into an unguarded section of a machine. 

The enforceable undertaking requires CSR Martini to:

  • Conduct WHS training for the entire workforce, including management and the Board;

  • Conduct audits and identify and implement action plans in relation to guarding, working at heights and manual handling;

  • Develop and implement a safety exchange program focussing on key areas of WHS on site (including hazard identification, traffic management, housekeeping, workplace health initiatives and manual handling initiatives);

  • Produce a video of the relevant incident, the lessons learned from it and share that with the broader industry (to be approved by SafeWork NSW before its release);

  • Sponsor a community fun run event in November 2017 and promote key safety messages as part of that event;

  • Ensure that the site is audited by an accredited WHS auditor under the relevant standard and that the actions arising from that audit are implemented; and

  • Develop and maintain a WHS management system that complies with the AS/NZS 4804:2001.

This undertaking is a good example of how an organisation has to not only commit to the organisation itself (and its other sites) but also the industry (through training and videos) and the community (by sponsoring a fun run to promote to the community the importance of safety in the workplace).  Through these commitments, enforceable undertakings are able to provide sustainable and measureable WHS initiatives that will deliver benefits to a range of stakeholders.


Contraventions of an Enforceable Undertaking

The regulatory authorities and the courts take the commitments provided in enforceable undertakings very seriously.  In fact, section 219 of the WHS Act provides that if there is a contravention of an enforceable undertaking, the maximum penalty in the case of an individual is $50,000 or in the case of a body corporate, $250,000. 

In addition, Safe Work NSW can apply to the District Court for an order to direct the individual or body corporate to comply with the enforceable undertaking and/or an order to discharge the enforceable undertaking. 

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

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