Guide to Work Health and Safety Undertakings

Purpose

1. To provide guidelines in relation to Comcare’s acceptance of Work Health and Safety (WHS) undertakings (WHS undertakings) under the Work Health and Safety Act 2011 (Cth) (WHS Act).
2. A WHS undertaking is a legally binding written commitment given by a person conducting a business or undertaking (PCBU) to implement effective health and safety initiatives that are designed to deliver tangible benefits for workers, industry and the community.
3. A WHS undertaking that is accepted by Comcare can operate as an alternative to a court-imposed sanction for an alleged contravention. Comcare can enforce compliance with accepted undertakings through court orders. However, Comcare cannot pursue court proceedings against a person in relation to an alleged contravention, if an undertaking has been accepted and is in effect.¹ A WHS undertaking does not constitute an admission of guilt by the person giving an undertaking in relation to the alleged contravention.²
4. A WHS undertaking may be accepted if Comcare is satisfied that it is appropriate in the circumstances and is likely to deliver superior work health and safety outcomes to a court sanction. To promote openness and transparency, the factors considered before accepting an WHS undertaking are set out below.

Guidelines for acceptance

When will a WHS undertaking not be accepted?

5. Comcare assesses each proposed WHS undertaking on its individual merits.
6. However, Comcare:
   • cannot accept a WHS undertaking for a contravention or alleged contravention that is a Category 1 offence³
   • considers that WHS undertakings will not usually be appropriate where any of the following circumstances exist:
     • if the alleged failure to comply with a health and safety duty results in the death of an individual, or
     • if the alleged failure to comply with a health and safety duty results in a ‘very serious injury’,⁴ or
     • where the applicant has a prior conviction or finding of guilt under the WHS Act (or State equivalent) which was connected to the death of a person (whether directly or indirectly) unless the prior matter was more than five years prior to the contravention that is the subject of the proposed WHS undertaking, or
     • where the applicant has two or more prior convictions or findings of guilt against the WHS Act, unless the most recent prior matter concluded more than five years prior to the contravention that is the subject of the proposed WHS undertaking.

7. If any of the circumstances described in paragraph 6 exist (apart from a contravention or alleged contravention that is a Category 1 offence), an application for a WHS undertaking may still be made. However, the applicant must address why a WHS undertaking should still be considered despite the existence of one or more circumstances described in paragraph 6. Comcare will consider such applications on a case-by-case basis.
8. Comcare will treat all WHS undertaking discussions and negotiations on a without prejudice basis, and these negotiations will not be used by either party in criminal proceedings if commenced under the WHS Act.

What factors are considered before accepting a WHS undertaking?

9. When deciding whether to accept a WHS undertaking, Comcare considers a number of factors, which may encompass one or more of the following:
   • the objective gravity of the alleged contravention and the nature of the applicant’s alleged conduct
   • the quality of the undertakings offered as compared to the seriousness of the contravention or the alleged contravention
   • the merits and benefits of the proposed undertaking having regard to:
     • the nature and extent of the act or omission giving rise to the alleged contravention
     • the quality of the strategies proposed and the extent to which they are likely to achieve measurable workplace, industry and community benefits, and
     • the degree to which the undertaking delivers benefits to health and safety beyond minimum compliance with the law
   • the applicant’s financial ability to meet the terms of the proposed undertaking
   • the significance of the commitments compared to the capability of the applicant
   • the applicant’s past performance and history of compliance with work health and safety laws
   • the support the applicant has provided, and has committed to provide into the future to any injured persons or their dependants (for example, status of recovery and rehabilitation program/s, current employment status and future work capacity, and quality of life since the incident)
   • input from injured persons, next of kin or guardians (as relevant)
   • community expectations and the public interest⁵
   • whether the person proposing the WHS undertaking has consulted within the workplace regarding the proposal of a WHS undertaking
   • whether the proposed undertakings include clear methods for compliance and assessment
   • whether the person proposing the WHS undertaking has accepted responsibility and clearly articulated an acknowledgment of the alleged contravention together with a statement of regret
   • the extent to which accepting the WHS undertaking will be a more effective means of specifically and generally deterring future contraventions than court proceedings
   • the likely outcome should the matter be dealt with through legal proceedings
   • if the incident involves a fatality or a very serious injury or where prior convictions exist, any exceptional circumstances detailed by the applicant, and
   • any other matter which Comcare considers relevant.

Procedure for giving a WHS undertaking

When can a WHS undertaking be proposed?

10. A WHS undertaking can be proposed at any time, before or after court proceedings have commenced in relation to a contravention. However, in order to enable sufficient time for a proposed undertaking to be considered, Comcare will generally not accept a proposal that is received within three months of a scheduled contested hearing date.
11. The filing of charges under the WHS Act does not preclude any discussions between Comcare and the applicant regarding a WHS undertaking from continuing (or from commencing). If Comcare considers that a proposed WHS undertaking is acceptable after charges have been filed, it will take all reasonable steps to have the proceedings discontinued as soon as possible, noting paragraph 12 below.⁶
12. The decision to discontinue proceedings ultimately lies with the Commonwealth Director of Public Prosecutions (CDPP). Applicants should refer to the Prosecution Policy of the Commonwealth for information in relation to the circumstances under which the CDPP will discontinue a prosecution (https://www.cdpp.gov.au/publications/prosecution-policy-commonwealth).

Is there a form for a proposed WHS undertaking?

13. To allow for the timely development and effective monitoring of a WHS undertaking, Comcare has developed a template form for WHS undertakings at Annexure A (DOCX, 54.5 KB).
14. A proposed WHS undertaking must address the ‘factors for consideration’ as outlined in paragraph 9 above.
15. A proposed WHS undertaking must also include (in addition to the undertakings offered by the applicant) the following general and ‘enforceable terms’:
    • a commitment that the behaviour that led to the alleged contravention has ceased and will not reoccur
    • a statement of regret for the alleged behaviour and its impact on workers and/or other persons
    • a commitment to future effective management of risks
    • a commitment to disseminate information about the WHS undertaking to workers and other relevant parties (which may include Health and Safety Representatives) and in the annual report or equivalent publication
    • a commitment to participate constructively in compliance monitoring activities and strategies that will deliver worker, industry and community benefits
    • an agreement to pay Comcare’s costs (as agreed) associated with the WHS undertaking (for example investigation costs, legal and administrative costs, projected costs for monitoring compliance and publishing costs)
    • a commitment that where a person seeks to promote the benefits of a WHS undertaking, it is made clear that any such benefits arose as a result of the WHS undertaking
    • a commitment to establish or maintain a work health and safety management system (WHSMS)
    • a commitment to ensure the WHSMS is audited by a third-party auditor, with a copy of the audit report (accompanied by a letter certifying audit reports have not been changed since receipt from the auditor) provided to Comcare. This includes a commitment to implement audit recommendations.

What supporting information should accompany a proposed WHS undertaking?

16. A WHS undertaking should be accompanied by a statutory declaration with any details of prior WHS convictions or findings of guilt under WHS legislation, subject to any local legal constraints such as spent conviction legislation.
17. A person giving a WHS undertaking may choose to give any other supporting information that they think is relevant to the factors Comcare considers when deciding whether to accept a WHS undertaking (listed above).

Who at Comcare receives proposed WHS undertakings and supporting information?

18. A proposed WHS undertaking and supporting information should be sent via email to Comcare’s Legal Group at the following address: WHSundertaking@comcare.gov.au.
19. Any questions or queries in relation to a proposed WHS undertaking may also be forwarded to this email address.

What happens if Comcare does not accept a proposed WHS undertaking?

20. Should Comcare intend to reject a proposed WHS undertaking, the applicant will be provided a reasonable opportunity to address the reasons prior to a final decision by Comcare.
21. If Comcare decides not to accept a WHS undertaking, it will provide the applicant with written reasons for its decision.

What happens if Comcare accepts a WHS undertaking?

22. If Comcare decides to accept a WHS undertaking, it will provide the applicant with notice of that decision and publish notice of its reasons on its website.

Post-acceptance of WHS undertakings

Compliance monitoring

23. Comcare will monitor compliance with the WHS undertaking and will not accept an undertaking that does not include methods of compliance and assessment. All costs associated with monitoring compliance will be recovered from the person who is subject to the WHS undertaking.
24. Comcare will monitor and assess compliance in accordance with Comcare’s Compliance and Enforcement Policy (PDF, 158.2 KB). For example, verification inspection and/or investigation activities, and/or assessment of third-party audit findings and implemented actions to ensure compliance with the terms and deliverables of the WHS undertaking.

Can a WHS undertaking be withdrawn or varied?

25. If a WHS undertaking has been accepted by Comcare, the person cannot withdraw or vary the WHS undertaking without the written agreement of Comcare.⁷
26. Comcare cannot vary an accepted undertaking to provide for a different alleged contravention of the WHS Act.⁸
27. Should Comcare agree to vary or withdraw an accepted WHS undertaking, Comcare must publish on its website, notice of the withdrawal or variation.⁹

Failure to comply with a WHS undertaking

28. Once a WHS undertaking is accepted, its terms must be complied with.¹⁰ Non-compliance with a WHS undertaking is enforceable by a court and may result in the following orders:¹¹
    • a direction to comply with the WHS undertaking and/or discharge of the WHS undertaking
    • monetary fines (maximum penalty includes $50 000 for an individual and $250 000 for a body corporate)¹² and
    • an order to pay Comcare’s court costs in relation to non-compliance with a WHS undertaking and/or for monitoring compliance with the WHS undertaking.
29. In addition, Comcare may commence proceedings for an alleged contravention where a WHS undertaking has been contravened and the WHS undertaking has been discharged.¹³