Comcare - Australian Goverment
Comcare - Australian Goverment
Putting you first at the centre of what we do. Keeping you healthy and safe at work. Supporting you when you are harmed at work. Ensuring your scheme works and is sustainable.
Listen to this page using ReadSpeaker

Appendix

Template for entering into an enforceable undertaking Occupational Health and Safety Act 1991

Note: This template is designed to assist duty holders under the Occupational Health and Safety Act 1991 (Cth) to develop an enforceable undertaking. The template is not a mandatory form and duty holders may submit other forms of enforceable undertakings, having regard to the matters set out in the schedule. Use of the template by a person offering an undertaking does not guarantee acceptance of the undertaking by Comcare.

ENFORCEABLE UNDERTAKING GIVEN BY:

[INSERT NAME OF DUTY HOLDER]

TO COMCARE FOR THE PURPOSE OF CLAUSE 2

OF SCHEDULE 2 OF THE OCCUPATIONAL HEALTH AND SAFETY ACT 1991 (THE ACT)

Purpose

1. The commitments articulated in this undertaking are enforceable undertakings given in accordance with clause 16 of schedule 2 of the OHS Act by the duty holder (or person/entity offering the undertaking) to Comcare in fulfilment of its obligations under the Act. This undertaking is given as a consequence of and in mitigation of the alleged contravention, and as evidence of the remedial action and future safety commitments that are proposed and outlined in this Undertaking.

Background

2. Include relevant information about the duty holder, including its function/activities/number of employees/contractors and status under the Act.

Incident

3. Include information about the incident, any injuries and facts or circumstances which may have caused or contributed to the incident. Do not include personal information.

Alleged contravention

4. Include details of the alleged contravention and state which obligations under the OHS Act and regulations the undertaking relates to Refer to Comcare's report of investigation.

Acknowledgement

5. Insert duty holders acknowledgment of any allegations that there have been contraventions of the legislation. Refer to report of investigation.the legislation. Refer to report of investigation.

Definitions

6. In this undertaking:

  • the Act means the Occupational Health And Safety Act 1991.
  • the auditor means the auditor engaged pursuant to paragraph [insert number]
  • the alleged contravention means the facts or circumstances which may have caused or contributed to the incident and any injuries as described in the report of investigation and summarised at paragraph [insert number] of this undertaking
  • duty holder refers to the person or entity offering the undertaking and any reference to duty holder may be replaced with the name of the entity or person
  • the employer means [insert details]
  •  the incident means the incident described in the report of investigation and summarised at paragraph [insert number] of this undertaking
  • Comcare means the body corporate established by section 68 of the Safety, Rehabilitation and Compensation Act 1988
  • the proceedings means the proceedings [insert the parties, court and matter number if proceedings are on foot]
  • the reporting dates are the dates listed in Schedule 2 or clause [insert number] being the dates on which the duty holder will report to Comcare on the implementation of this undertaking
  • the report of investigation means the report of investigation number [insert number] issued under section 53 of the Act.
  • this undertaking means this document including all annexures and schedules.

Proceedings (where applicable)

7. As a consequence of the alleged contravention, Comcare has [commenced/proposed to commence] proceedings against the duty holder under section 77 and Schedule 2 of the Act.

8. Despite the alleged contravention and any admission of liability expressed in this undertaking, Comcare has agreed not to pursue the proceedings on the basis that the duty holder grant, keep and not breach or propose to breach this undertaking.

Assurance about future behaviour

9. Include an assurance from the duty holder about future behaviour including a commitment to cease any alleged contravention and not recommence it. A suitable assurance might read something like below.

The duty holder will:

(a) do and ensure that its agents and employees do all things reasonably necessary to prevent a reoccurrence of the Incident or the occurrence of any event similar to the incident

(b) abstain, and ensure that its agents and employees abstain, from doing any act, matter or thing which gave rise to, or allegedly gave rise to, the Incident or could give rise to the occurrence of any event similar to the incident

(c) ensure that it uses its best endeavours to observe and implement industry best practice in respect of occupational health and safety and in compliance with the Act.

Occupational health and safety commitments

10. In particular, and without limitation to the generality of the commitments given in this undertaking, the duty holder must do or abstain from doing (as the context requires) all things listed in Schedule l to this undertaking.

Include commitments as a result of any incident to fulfil obligations under the OHS Act and benefits beyond minimum compliance in the schedule and the dates by which they are to be implemented.

11. Unless specifically provided otherwise, all acts, measures, programs, or things required to give effect to the commitments contained in this undertaking shall be performed, made, or implemented on or before the dates listed in Schedule 1 to this undertaking.

Reporting

12. Include details of reporting and audit arrangements. These may be included by inserting the following clause and detailing the reporting arrangements in a separate schedule or by including them in the body of this clause.

The duty holder must:

(a) report to Comcare on the reporting dates on the development and/or implementation of any measures it has committed to develop and/or implement in accordance with this undertaking

(b) provide all documents and information requested by Comcare from time to time for the purpose of enabling Comcare to assess compliance with this undertaking

(c) develop procedures which will ensure that, [where applicable] its board and senior management, and any employees, contractors or other persons (eg. family members of deceased persons) affected by this undertaking are regularly informed on the implementation of measures described in or effected in accordance with this undertaking

(d) within six months of the undertaking date, at its own cost, engage an auditor (approved by Comcare in writing) to conduct an independent compliance audit of the measures developed, implemented and/or affected in accordance with this undertaking

(e) ensure that:

(i) Comcare is advised of the auditors engagement
(ii) the auditor conducts and concludes the audit
(iii) it reports to Comcare on the findings of that audit as soon as reasonably practicable
(iv) it submits a written report three months prior to the expiry date of the undertaking detailing how and when the obligations in the undertaking have been discharged.

Publicity

13. The duty holder does not provide this undertaking in confidence and acknowledges that this is not a confidential document. This undertaking constitutes a public declaration of the duty holders commitment to occupational health and safety and its response to the report of investigation. The duty holder:

(a) agrees and undertakes to publish the undertaking in any media and in any form reasonably required by Comcare (as notified to the duty holder in writing)

(b) acknowledges that Comcare will:

(i) issue a media release on execution of this undertaking containing this undertaking or referring to its terms and to the concerns of Comcare which led to its execution
(ii) from time to time publicly refer to this undertaking
(iii) make this undertaking available for public inspection, including by publishing it on Comcares website.

Costs

14. The duty holder agrees and undertakes to bear, reimburse, and/or indemnify Comcare for any costs fees or expenses incurred by Comcare as a result or in respect of its investigation into the incident or any of the matters outlined in the report of investigation, including but without limitation to the generality of the undertaking given in this paragraph:

(a) The reasonable costs of the investigation (including those costs of engaging any third party in the conduct of such investigation) in the sum of $(these costs will be advised by Comcare).

(b) The cost of seeking and receiving legal advice concerning and subsequent to the incident and/or the injury and associated matters in the sum of $(these costs will be advised by Comcare).

(c) The cost of receiving, considering, preparing, and settling this undertaking in the sum of $(these costs will be advised by Comcare).

(d) Compliance auditing and monitoring costs of $(these will be advised by Comcare) representing costs to Comcare in monitoring and auditing compliance with the undertaking.

(e) The costs involved in publishing the Notice of Acceptance being in the sum of $(these costs will be advised by Comcare).

(f) The costs incurred in respect of any proceedings initiated by Comcare arising out of the report of investigation in the sum of $(these costs will be advised by Comcare) or, in the event that any arise, to enforce the undertaking.
The total costs will be due for payment within 30 days of receipt of an invoice from Comcare.

Enforceability

15. The duty holder acknowledges that this undertaking is enforceable at law and that it may be subject to penalties if it does not comply with this undertaking.

(a) Without limiting the generality of this clause, Comcare may, in its absolute discretion, deem any finding by the auditor that the duty holder has failed to give full effect to any provisions of this undertaking to be a breach of this undertaking.

(b) Without limiting any other power, right, authority, or privilege it may enjoy, Comcare may, in proceedings arising from any breach or anticipated breach of this undertaking, inter alia:

(i) apply for an injunction restraining any such breach

(ii) apply for an injunction to ensure compliance with this undertaking

(iii) pursue or recommence the proceedings or if no proceedings are on foot, commence proceedings against the duty holder in respect of the alleged contravention or any matters dealt with in the report of investigation

(iv) apply for any further order it considers appropriate.

(c) If the duty holder actually or proposes to breach, vary, or withdraw this undertaking then:

(i) Comcare may pursue or recommence the proceedings, or

(ii) if no proceedings are on foot, commence proceedings against the duty holder in respect of the alleged contravention resulting from the Incident or any matter dealt with in the report of investigation.

And in any such proceedings the duty holder may not object to Comcare tendering this undertaking.

(d) Any act or omission by the duty holder which is inconsistent with or in contravention of this undertaking is and may be deemed by Comcare to be a breach of this undertaking.

(e) The duty holder acknowledges that it will bear the costs of the proceedings incurred as at the undertaking date or any other action taken by Comcare in accordance with or pursuant to this clause.

Acknowledgements

16. The duty holder acknowledges that:

(a) Comcares acceptance of this undertaking does not affect Comcare's:

(i) power to investigate or pursue civil or criminal proceedings in respect of similar or related incidents or injuries which occur after the undertaking date, or
(ii) authorities, powers, and obligations in respect of any conduct of the duty holder which is not the conduct which gave rise to the incident.

(b) This undertaking in no way derogates from the rights and remedies available to any other person or entity other than the duty holder and Comcare arising from any conduct described in this undertaking or arising from future conduct.

(c) This undertaking has no operative force until accepted by Comcare.

(d) This undertaking will be deemed to be formally concluded when Comcare confirms in writing that the undertaking has been fully executed.

Term

Please refer to the PDF version for the template.

Schedule 1

(clause 10)

1. [Itemise representations, promises, commitments, etc and manner and date by which they will be implemented]