Workplace Enforceable Undertakings

An enforceable undertaking (EU) is a voluntary, legally binding agreement that a person or legal entity can enter into as an alternative to a court proceeding for breach of a workplace health and safety law. These agreements are negotiated between the offending organisation (or person), and the statutory regulator (such as the Fair Work Commission or SafeWork). The statutory regulator will only accept an EU if an overall analysis finds that the agreement benefits workers, the specific industry and the wider community.

Enforceability of enforceable undertakings

During an investigation or prosecution for a breach of health and safety legislation, it is often the person or entity in breach of the law that offers to enter into an enforceable undertaking to avoid a court sanction. Instead of receiving a sanction such as a fine, the person or entity agrees to undertake certain activities to promote workplace health and safety. In that case, the regulator can either accept the EU and discontinue the proceedings, or decline and the prosecution will continue.

If an EU is accepted, the offending person or organisation must abide by the terms of the EU. The terms of an enforceable undertaking can be quite numerous and onerous, and will often specify that higher penalties will apply to any future non-compliance. If the individual or company does not follow the terms of the undertaking, then they may be subject to a court order to enforce the undertaking.

Benefits of enforceable undertaking

An EU has undeniable benefits for the individual or entity facing the sanction. An EU avoids the public exposure of a court case and the associated potential for adverse publicity. An EU is quicker, more private and potentially cheaper than going to court. In addition, an EU can delivers benefits for the regulator, employees and the wider community. The regulator themselves can avoid protracted, resource-intensive litigation. Employees can benefit from their employer investing in WHS improvement and initiatives, and there can also be industry wide reform and renewal. The wider community benefits from the employer taking a positive and proactive engagement with reducing unsafe workplace practices, rather than a defensive attempt to reduce and avoid culpability for past errors.

Terms of enforceable undertakings

An enforceable undertaking in relation to workplace health and safety must include specific parts:

• identifying particulars of the person proposing the enforceable undertaking
• recognition that the regulator is alleging a contravention
• details of the alleged contravention
• statement of assurance about the offender’s future WHS adherence and
• statement of regret that the incident happened.

To ensure that the EU results in a genuine increase in safety, the person or entity entering into the EU must take the following steps:

• broadly publish the enforceable undertaking
• disseminate the undertaking within the workplace
• cease the actions that caused the contravention
• have effective management of WHS risks going forward
• create ongoing, measurable and sustainable WHS initiatives that benefit workers, the industry and the community.

Additionally, where required, the offender must implement and maintain a Work Health and Safety Management System, have the WSMS periodically audited by a qualified independent auditor, implement recommendations from these reports and forward the reports to the regulator.

Case studies

SafeWork NSW recently accepted a $250,000 enforceable undertaking from an employer after a fatal workplace incident. A contractor employed by Pro Ten Holdings Pty Ltd died after he was run over by a reversing telehandler on a farm. According to the terms of the undertaking, Pro Ten Holdings must:

• examine technological options to enhance their safety protocols and mitigate risks while moving equipment around the workplace
• implement a custom mobile app to improve safety and risk management on chicken farms
• create safety leadership programs to increase safety capability within the agriculture sector and
• promote safety improvement by sponsoring a safety prize every year.

Fair Work Commission

The Fair Work Commission (FWC) recently accepted its first enforceable undertaking. This was only possible given the expanded powers conferred on the FWC by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022. In this case, the Community and Public Sector Union State Public Services Federation entered into an undertaking for the non-compliance of its Western Australia Prison Officer’s Union Branch. This followed an investigation into conduct during a 2020 internal branch election to fill casual vacancies and a failure to notify the regulator of changes to the branch records in relation to the election.

The FWC’s General Manager considered an EU to be an appropriate and proportionate response to the identified issues. He signalled that he was committed to working with organisations to achieve voluntary compliance with their WHS obligations, in preference to focusing on adversarial prosecutions. As part of the undertaking, the Union agreed to a comprehensive review of the rules, branch officer training, and to establish internal governance bodies to achieve better oversight of compliance standards and practices. Additionally, the Union pledged to make the EU publicly available and to establish a national training and development program.

At Go To Court Lawyers, we can provide advice about entering into an enforceable undertaking, how to fulfil the terms of an EU or any other employment law matter. Please call 1300 636 846 for any legal assistance.