Enforceable Undertakings: An Alternative

Alena Titterton writes:

Being charged with an offence by a Workplace Health and Safety Queensland inspector does not necessarily have to mean a continued prosecution.

The Workplace Health and Safety Act 1995 (Qld) (the WHS Act) allows corporations to enter into Enforceable Undertakings (EU) with Workplace Health and Safety Queensland (WHSQ) as an alternative to pleading guilty in a WHS prosecution.

Enforceable undertakings are considered by WHSQ as a medium level sanction within the range of enforcement options available to the Department.

What are Enforceable Undertakings?

Enforceable Undertakings are legally binding agreements under which a person or organisation agrees to carry out specific activities to improve health and safety and deliver benefits to the community.

Although every EU is tailored to the specific facts and circumstances of a case, typical undertakings include:

  • undergoing a series of third party audits of the relevant corporation’s occupational health and safety (OHS) management system during the term of the undertaking;
  • implementing any recommendations resulting from the audits of the OHS management system; and
  • participating in assistance programs with community organisations such as local fire brigades or hospitals.

In addition to carrying out these types of activities, corporations that enter into an EU may be required to publicise certain details pertaining to the EU in the corporation’s Annual Report.

Consequences of entering into an EU

Pursuant to the WHS Act, the Director General of the Department of Employment and Industrial Relations (the Director General) is empowered to accept undertakings from persons charged (or who may potentially be charged) with a breach of the WHS Act as an alternative to prosecution.

An EU becomes enforceable as soon as the Director General accepts it and provides written notice to the applicant.

If the Director General accepts an EU in circumstances where proceedings are pending, the Director General is obliged to bring those proceedings to an end.

Accordingly, if a corporation has been charged and then enters into an EU it will not be required to plead guilty to the prosecution against it and no conviction will be recorded.

Once an EU is in place, the subject of the EU must comply with it. Non-compliance with an EU may result in court orders being made and penalties being imposed (which can be up to $75,000 for an individual and $375,000 for a corporation). Generally, there is a “zero-tolerance” approach to failure to comply with an EU.

The determination to accept an EU

WHS has developed a number of principles and considerations applicable for determining when an EU will be accepted. These include, but are not limited to:

  • compliance with the principles of risk management;
  • the actual and potential risks of the offence;
  • culpability;
  • aggravating or mitigating factors;
  • co-operation with the Department of Employment and Industrial Relations throughout the investigation;
  • previous sanctions and prior prosecutions;
  • remorse; and
  • previous compliance history.

Corporations considering entering into an EU need to ensure that the community benefit to the undertaking far outweighs the benefit in a conviction.

Limitations

Acting quickly is crucial when considering enforceable undertakings. Section 42DA(2) of the WHS Act provides that an application for an undertaking must be received by the Director General within 90 days after the applicant has been served with a Summons.

WHS Guidelines also indicate that an enforceable undertaking will only be given in relation to fatal or serious incidents in exceptional circumstances.

Recommendation

Corporations subject to prosecution under the WHS Act in Queensland should investigate and evaluate the potential for entering into enforceable undertakings rather than adopting the more traditional approach of pleading guilty to the contravention.

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