WHS June 2020 Newsletter

17 June

Well, we are only a couple of weeks away from reaching the halfway point of the year. What a challenging first 6 months it has been as far as testing our patience, mental health and resilience. One huge lesson for me is how resilient the Australian people have been the last 12 months. Businesses in recent years have faced severe drought, fires, floods (in parts) and now the corona virus and have kept turning up to face the challenges.

It would also be amiss not to acknowledge the outstanding work our front-line workers have provided throughout the corona virus. Including the federal and state governments for the majority of time making difficult but sound decisions in flattening the curve. The test for the governments continues as some states open back up and get the economy back on track, whilst others resisting of at the time of writing this article.

Enforceable Undertakings

Your WorkSafe regulator may carry out an enforceable undertaking (also known as a WHS undertaking), as an alternative to prosecution through the courts (except for category one offences see definition below).

An enforceable undertaking is a legally binding agreement between the regulator and the person who proposed the undertaking. The person is obliged to carry out the specific activities outlined in the undertaking. The activities may be substantial.

An enforceable undertaking cannot be accepted for a contravention or alleged contravention for a category one offence (see definition below).

An enforceable undertaking (rather than a prosecution) will only be accepted if it demonstrates three main principles:

benefits to the workplace
benefits to their industry
benefits to the community.

When a proposed enforceable undertaking is accepted, any legal proceedings connected to the alleged contravention are discontinued. Where legal proceedings have not been started, acceptance of the undertaking means no proceedings will be started (as long as the undertaking is not contravened).

The regulator is not compelled to accept a proposal for an undertaking.

An example of an enforceable undertaking might be:

WorkSafe has alleged WHS breaches on a construction site following a worker falling from scaffolding and being injured. Rather than facing a prosecution through the courts, WorkSafe agreed with the business that they will carry out substantial activities so that the incident doesn't happen again, and to improve its overall safety performance.

These activities include:

developing online induction training and toolbox talk sessions on safety rules for high risk activities, including working on scaffolding
delivering a safety leadership training program for managers and supervisors
increasing resources for supervisors to assist in effective supervision
developing a due diligence program and supporting documentation for senior management
presenting the lessons learnt from the incident and safety improvements to an industry forum
funding a work placement for a student
sharing safety knowledge through a small business assistance program
sharing knowledge on safety awareness through a community education program
committing to third party audits of the company's work health and safety management system.

Definition- Category 1 Offence

[A Category 1 offence is one where a person, without reasonable excuse, engages in conduct that exposes an individual to a risk of fatal or serious injury or illness and the person is reckless to that risk.]

For further information regarding Enforceable Undertaking please contact us to assist with the requirements within your state.