Enforceable undertakings

About enforceable undertakings

An enforceable undertaking (EU) is a written, legally binding agreement between WorkSafe and a duty holder. By entering into an EU, the duty holder agrees to complete certain undertakings within a particular timeframe.

An EU is not an admission or finding of guilt. It is:

• an acknowledgement that WorkSafe has alleged that an offence against the Occupational Health and Safety Act 2004 (OHS Act) has occurred
• a commitment by the duty holder to improve OHS for its employees, industry and community by implementing the EU strategies
• a way to resolve criminal proceedings, with charges filed against a duty holder withdrawn.

WorkSafe decides whether to accept or reject an EU. WorkSafe will only consider an EU in matters where there would be a reasonable prospect of conviction.

The commitments outlined in the EU must go beyond compliance with the duty holder’s legal obligations and seek to improve health and safety generally. This may include an undertaking such as funding awareness raising programs. Another may be giving donations and developing research partnerships with universities to improve health and safety outcomes in an industry or community more broadly – not just at a particular workplace.

When a proposed EU is accepted by WorkSafe, any legal proceedings connected to the alleged offence/s are discontinued.

Who is a duty holder?

A duty holder is any person or entity with legal responsibilities to ensure health and safety at a workplace.

In the context of an EU, a duty holder means a person or entity who:

• has been charged with an offence against the OHS Act
• wishes to resolve criminal proceedings by entering into an EU with WorkSafe.

Who can propose an EU

An EU may be proposed by a duty holder who has, or is alleged to have committed an offence against the OHS Act.

Before you apply

If you’ve been charged with an offence against the OHS Act and want to express an interest to enter into an EU, send an email to the address on the charge sheet.

You should also read our Enforceable Undertakings Policy and procedure before applying.

Enforceable Undertakings Policy

The exercise of WorkSafe's discretion to accept an enforceable undertaking is guided by our Enforceable Undertakings Policy.

Enforceable undertakings procedure

The way we apply and implement our Enforceable Undertakings Policy is set out in our Enforceable undertakings procedure.

How to apply for an EU

There are two stages in the EU application process.

1. The eligibility assessment, and, if that is successful;
2. The evaluation assessment.

Monitoring an EU

If the evaluation assessment completed in Step 2 is successful, and WorkSafe accepts an enforceable undertaking, an EU monitor will be allocated to work with the duty holder. The role of the EU monitor is to ensure that the milestones outlined in the EU are on track and eventually completed.

This will involve:

• regular liaison between the EU monitor and the duty holder, with the aim of clarifying and resolving any issues as early as possible;
• the duty holder providing timely updates and evidence to the EU monitor setting out progress and completion of the specific milestones set out in the EU; and
• engagement with WorkSafe before the release of any public facing content produced by the duty holder (for example, manuals, external forums/conferences or advertising campaigns).

Varying or withdrawing an EU

Variation to or withdrawal of an EU can only occur with WorkSafe’s consent. Details of how to apply for a variation or withdrawal are set out in our Enforceable undertaking procedure.

Penalties for non-compliance

Failure to comply with an EU is an offence against the OHS Act.  The maximum penalty for a failure to comply is:

• 500 penalty units for a natural person
• 2,500 penalty units for a body corporate.

Failure to comply with an EU can result in WorkSafe taking any or all of the following actions.

• Applying for a court order to enforce the EU.
• Prosecuting the duty holder for failure to comply with an EU.
• Prosecuting the duty holder for the original contravention.