Health and safety undertakings policy

Introduction

Steps taken by a duty holder after a breach of Victoria’s health and safety laws can send a powerful message to affected industries and communities about workplace safety.

Those steps may demonstrate genuine contrition, and may improve public awareness about high-risk behaviours within particular industries. They may also make workplaces safer places for employees and others.

Health and safety undertakings are designed to ensure offenders take such steps. They are a flexible alternative and complimentary sentencing option available under the Occupational Health and Safety Act 2004 (Vic) (OHS Act). They provide considerable scope for courts to tailor sanctions to the circumstances of the offence and the offender.

About health and safety undertakings

When sentencing an offender for a health and safety offence, courts have a range of sanctions available under the Sentencing Act 1991 (Vic) and the OHS Act.

These include health and safety undertakings.

Under section 137 of the OHS Act, if a court convicts or finds a person guilty of an offence against the OHS Act or the Occupational Health & Safety Regulations 2017 (Vic) (OHS Regulations)it can adjourn the proceeding for up to 2 years if the offender gives an undertaking to comply with specified conditions.

If, at the end of the 2 year period, the offender has complied with the conditions of the undertaking, the court must discharge the offender.

Health and safety undertakings can be combined with other sanctions including fines. The offender will bear the cost associated with any undertaking.

However, a court can only make a health and safety undertaking if the offender agrees.

Purpose of health and safety undertakings

Health and safety undertakings allow courts to impose a very wide range of potential conditions.

This means that a health and safety undertaking can include conditions which:

• are uniquely tailored to the circumstances of the offender and the offence
• directly address or respond to workplace risks.

This flexibility means a health and safety undertakings can address a range of sentencing purposes including:

• general and specific deterrence
• rehabilitation
• just punishment.

Conditions

A health and safety undertaking includes mandatory and special conditions.

Mandatory conditions

The mandatory conditions of a health and safety undertaking are that:

• the offender must attend court on a specified date
• the offender must not commit any offence against:
  • the OHS Act
  • the Equipment (Public Safety) Act 1994 (Vic)
  • the Dangerous Goods Act 1985 (Vic), or
  • regulations made under those acts.

Special conditions

The special conditions can be diverse and case specific.

For example, the special conditions may require an offender to:

• engage an OHS consultant
• employ an OHS manager
• develop and implement a systematic approach to managing risks to health or safety
• arrange an independent health and safety audit of their business
• undergo training
• install specific safety devices (such as industrial lifts)
• prepare a work health and safety due diligence plan outlining lessons learned from the OHS breach, and how those lessons will be implemented
• donate to a peak body or charitable organisation
• enter into a sponsorship agreement with a charity or not for profit group
• develop a research partnership with a university
• commence a safety campaign.

How a health and safety undertaking differs from an enforceable undertaking

Health and safety undertakings are similar to enforceable undertakings made under section 16 of the OHS Act. Both allow for conditions which are tailored to the circumstances of the case. Similar conditions could be imposed under both.

The key difference is that an enforceable undertaking is not a penalty imposed by a court. Rather, it is a written promise given to WorkSafe, which generally has the consequence that a prosecution will not continue but may be reinstated if an enforceable undertaking is contravened.

What WorkSafe will consider before seeking a health and safety undertaking

WorkSafe will seek health and safety undertakings as a sentencing option in appropriate cases considering their contribution to safety in the community and industry.

WorkSafe bears responsibility for proposing the conditions of the undertaking and providing a draft undertaking to the Court and the offender.

WorkSafe will consider the following criteria in deciding whether to seek a health and safety undertaking either on its own or in addition to other sentencing options.

• The compliance history of the offender and any prior convictions.
• Whether an undertaking would deliver outcomes that are at least equivalent, if not superior, to those achieved by a financial penalty alone in advancing workplace safety.
• The extent to which an undertaking can contribute to the sentencing purposes of:
  • just punishment: in particular, the financial cost and/or expenditure of other resources associated with the implementation of safety improvements and any other reputational impact
  • deterrence: in particular, would the undertaking deter this offender and/or send a message to the broader industry?
  • rehabilitation: in particular, whether additional conditions would target the root cause of the offending
  • community protection: in particular, reducing the risk of recidivism and improving health and safety outcomes within the workplace.
• The appropriateness for a health and safety undertaking to be combined with other sanctions For example, would an undertaking combined with a fine better meet sentencing purposes.
• The nature and objective seriousness of the offending, including the presence of aggravating features. 
• Offender characteristics and attitude toward safety.
• The views of victims.

How WorkSafe decides on the conditions to propose

WorkSafe will consider the following matters when deciding whether to propose special conditions on an employer in addition to the mandatory ones.

• Whether the proposed conditions will be achievable within the 2 year maximum period
• Whether conditions go above and beyond whatever steps the offender should have taken to avoid contravening the OHS Act, and seek to improve health and safety generally.
• Availability of conditions that provide material improvement to safety:
  • for employees
  • at a workplace
  • for a specified industry
  • for the community.
• Potential cost of conditions.
• The measurability and enforceability of the conditions, and the extent to which it goes beyond existing health and safety obligations.
• Whether a condition can address any underlying causes of the offending. For example, is there a demonstrated need for better training within the offender’s workplace? If so, should the undertaking require the offender to provide better training to its employees?

Consequences of non-compliance

If an offender fails to comply with a health and safety undertaking, the offender can be re-sentenced for the earlier offending and fined for the non-compliance.