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Schedule 3 - Enforceable undertakings under the OHS Act 1991

On this page:

Introduction
How is an offer of an undertaking made?
Content of an undertaking
Contacts

Introduction

As outlined in Comcare's Regulation Policy, there are a range of compliance and enforcement options for duty holders who do not comply with their legislative obligations.

The objects of the Occupational Health and Safety Act 1991 (OHS Act) promote the security of health, safety and welfare at work of employees, and the protection of third parties at the workplace. They include the specific objects:

to encourage and assist persons on whom obligations are imposed under the OHS Act to observe those obligations
to provide for effective remedies if obligations are not met, through the use of civil remedies and, in serious cases, criminal sanctions.

The Act enables Comcare to accept a written undertaking from a person who is required to fulfil an obligation under the legislation (the duty holder). An undertaking is a legal agreement which is enforceable in court.

An enforceable undertaking can be offered to adjourn or resolve civil proceedings in which Comcare is seeking a declaration of contravention.⁽³⁴⁾

Undertakings are rarely accepted in respect of matters involving a workplace fatality or serious contraventions of the legislation. This is because objectives such as deterrence may lead Comcare to determine that proceedings should be continued or commenced. A duty holder would need to satisfy Comcare that an enforceable undertaking is an appropriate regulatory outcome.

Typically, the activities associated with an enforceable undertaking are substantial and should contain specific workplace and industry occupational health and safety benefits and effective management systems relating to the fulfilment of an obligation under the Act.

This schedule provides information on Comcare's approach to enforceable undertakings.

How is an offer of an undertaking made?

Comcare does not have the power to demand or require an enforceable undertaking to be offered. A duty holder or their authorised representatives may submit an undertaking to Comcare. Comcare may invite a person to consider the option if it believes that an undertaking may be an effective means for a duty holder to fulfil its obligations under the Act.

A template for an enforceable undertaking can be found at Appendix 1. A duty holder wishing to offer an enforceable undertaking is encouraged to use the template. Comcare will however consider other forms of undertaking offered.

An undertaking needs to be made as soon as possible by an employer. Where court proceedings are substantially advanced, Comcare will be less likely to accept an undertaking.

The undertaking should be addressed to Comcare's Chief Executive Officer, along with any submissions as to why Comcare should accept the undertaking. This schedule and the enforceable undertaking template contains information to enable duty holders to formulate an offer. However, any person considering the prospect of an enforceable undertaking is strongly encouraged to obtain independent legal advice.

Content of an undertaking

The undertaking must be in writing and should be tailored to the circumstances of the matter and the outcomes desired.

An enforceable undertaking may commence with relevant information about the duty holder. If an undertaking is being offered in response to a contravention or alleged contravention of the legislation, it should:

acknowledge that Comcare alleges a contravention of the legislation has occurred and state the relevant sections of the OHS Act or Regulations
set out the facts and circumstances of the alleged contravention
set out what the duty holder proposes to do to address the alleged contravention
provide assurances about future behaviour
outline remedial action that provides benefits beyond minimum compliance with the Act
provide evidence and/or explanation of why the employer believes this remedial action will provide benefits beyond minimum compliance with the OHS Act
review or establish and implement an occupational health and safety management system which addresses any failures relevant to an alleged contravention and that is subject to third party audit at regular intervals.

The undertaking should ensure general compliance by setting out the activities that will fulfil the duty holders obligations under the OHS Act and prevent a reoccurrence of a risk, as far as possible.

An enforceable undertaking may be the subject of discussion between Comcare and the duty holder as to form, content, and the appropriate undertakings that Comcare will accept in the circumstances.

Commitment

Demonstrated commitment is a critical element of an undertaking. If the duty holder is an employer, senior management commitment is required. This entails a positive commitment supported by actions to cease an alleged contravention and ensure that it is not repeated. It also entails commitment for example to undertake a program to improve overall compliance and demonstrated involvement by senior management in the improvement program.

Comcare may require evidence that the duty holder has consulted with persons affected by the undertaking about the terms of the undertaking prior to any offer being made. These persons may include:

any injured persons
family of affected persons
employees
contractors.

Benefits beyond minimum compliance

Duty holders are expected to comply with the Act. An Improvement or Prohibition Notice, as opposed to an enforceable undertaking, is the appropriate mechanism for ensuring minimum compliance with the Act.

The undertaking should commit the duty holder to a standard higher than minimum compliance with the legislation and/or to activities that deliver a tangible benefit to the health and safety of employees or the community generally.

Examples of undertakings that move beyond minimum requirements and/or propose tangible benefits to employees or the general community may include, but are not limited to, a combination of the following:

developing and implementing an appropriate occupational health and safety management system, and an on-going evaluation or audit of the system by an independent third party
conducting, facilitating or funding research into a safety issue relevant to the industry and to fulfilment of a duty holders obligations under the Act
implementing specified projects, such as special training programs, to address specific occupational health and safety needs for employees, supervisors and managers
undertaking promotion and education campaigns, or targeted publicity regarding workplace hazards.

Publicity

The enforceable undertaking should acknowledge that publicity will occur and make provision for the type of publicity that is to occur. All enforceable undertakings should contain a waiver of confidentiality clause.

Comcare will consider reasonable requests to keep parts of the undertaking confidential, for example, if it is satisfied that information is commercial in confidence. The terms of the undertaking should not include personal information.^⁽³⁵⁾

Publicising enforcement outcomes assists in fostering a culture of compliance. Comcare treats the acceptance of an enforceable undertaking as similar to public court findings. This means that enforceable undertakings, including any withdrawals or variations, will be made public.

Undertakings will be publicised in media statements and/or any other appropriate media such as Comcare's website. Comcare will normally place a Notice of Acceptance in an appropriate newspaper and will include the name and number of undertakings accepted in the Comcare Annual Report. The full content of the undertaking will be published on Comcare's website.

Monitoring enforceable undertakings

Details of agreed monitoring and reporting arrangements should be clearly specified in the undertaking.

The duty holder is responsible for self-monitoring compliance with the terms of the undertaking. Comcare or a duty holder may also engage an independent third party to verify compliance with the undertaking.

It is expected that an undertaking will include provision for regular audits and progress reports to Comcare against key milestones. Comcare will oversee compliance with the undertaking and may conduct its own audit to assess compliance.

Costs

Provision for the payment of agreed costs should be included in the undertaking.

Comcare may recover, as part of the enforceable undertaking, costs associated with:

investigating the alleged non-compliance which gave rise to the undertaking (the investigation costs)
any civil proceedings that were instituted
considering the offered undertaking (staff costs as well as any technical/legal/consultancy advice costs)
publishing the undertaking
monitoring compliance with the accepted undertaking.

Comcare will only seek to recover the costs it has incurred. Comcare will not use agreed costs to effectively impose a negotiated penalty.

Unacceptable terms

An offer will generally not be accepted unless the terms are sufficiently clear and detailed by reference to identifiable criteria. This ensures that compliance with the undertaking can be monitored and enforced. If possible the terms should anticipate and remain applicable to changing circumstances.

An enforceable undertaking will not be accepted if it includes:

a denial of liability
terms purporting to shift liability onto another
a statement that the enforceable undertaking is not an admission in relation to action by third parties such as employees, which is unreasonable in all the circumstances (but the enforceable undertaking need not make such an admission)
inadequate provision for progress reports and audits
remedial action that is piecemeal, not implemented by appropriately qualified persons or not properly funded
terms purporting to set up defences for possible non-compliance
an attempt to impose obligations on Comcare.

In the event that Comcare considers that one or more of the terms are unacceptable or not sufficiently clear, the duty holder will be advised in writing and given an opportunity to makes submissions and/or submit a revised undertaking prior to Comcare making a decision.

Consideration of enforceable undertaking by Comcare

Comcare considers all offers of an enforceable undertaking on their merits. However, in deciding whether an enforceable undertaking is an appropriate regulatory outcome, Comcare applies objective considerations that foster consistency and proportionality. The relevant considerations are consistent with those that Comcare applies to enforcement decisions generally.⁽³⁶⁾

In the course of considering an offer, Comcare may consult with interested parties (industry groups, victims) or other relevant agencies. Comcare may also liaise with the person who offered the undertaking to obtain further information where necessary, prior to making a decision whether or not to accept the undertaking.

In the event that Comcare considers material that is additional to that proffered in the undertaking, the duty holder will be advised and given the opportunity to make submissions prior to a decision being made.

In deciding whether an enforceable undertaking is an appropriate enforcement option, Comcare considers:

the nature and extent of the OHS Act or omission giving rise to a contravention or alleged contravention
the duty holders compliance history
the quality of the remedial action and activities that are proposed in the undertaking and the extent to which they can achieve measurable improvements in workplace safety and culture.

In assessing the quality of the activities proposed in an undertaking, Comcare will consider how well the proposed activities advance the objectives of the OHS Act and whether it offers outcomes which will advance those objectives.

In some cases, the public interest and statutory objects may demand that contravention of the OHS Act attract court-related enforcement action. There may be factors, such as the seriousness of an alleged contravention or the duty holders compliance history, which lead Comcare to consider that an undertaking is insufficient protection for employees, or that for objectives such as deterrence, proceedings should be continued or commenced.

In the event that Comcare considers that an enforceable undertaking is not an appropriate enforcement option, a duty holder will be advised and given an opportunity to make submissions in writing.

Acceptance or rejection of an enforceable undertaking

Comcare has a discretion whether to accept an undertaking and cannot be compelled to accept an enforceable undertaking.

If an enforceable undertaking is not accepted, the person making the offer will be informed in writing and will be advised of Comcare's reasons for rejecting the undertaking.

The acceptance of an undertaking will be acknowledged in writing. An undertaking will not take effect until it is signed by a duly appointed representative of a duty holder and Comcare's Chief Executive Officer.

Comcare may accept an enforceable undertaking concerning one aspect of a duty holders duty but commence or continue proceedings concerning another. Comcare's acceptance of an enforceable undertaking in a particular set of circumstances should not be regarded as a precedent. Although Comcare aims to achieve consistency in determining whether an enforceable undertaking can be accepted, one set of facts in a given case cannot be indicative of the outcome of another due to the range of factors that are taken into consideration.

Request to vary or withdraw an enforceable undertaking

An enforceable undertaking may only be withdrawn or varied with the written consent of Comcare.

A duty holder may submit a request in writing to vary an undertaking where, for example, compliance with the undertaking is subsequently impractical and/or unsustainable or where there has been a material change in circumstances.

Where a duty holder believes its obligations under the undertaking have been fully performed prior to the expiration date of the undertaking, a request to withdraw the undertaking may be submitted to Comcare. A request to have the undertaking withdrawn must be accompanied by a written report detailing how and when the obligations in the undertaking have been discharged.

Comcare will consider such requests and advise the duty holder in writing of its decision.

The provisions of an enforceable undertaking will not be varied so as to cover a deliberate breach of that undertaking. For example, if a duty holder does not comply with the reporting and audit provisions of an enforceable undertaking, this will be regarded as non-compliance with the undertaking which may not be rectified by any subsequent variation.

Comcare will make withdrawals and variations public.

Failure to comply with an enforceable undertaking

Generally, the duty holder making the undertaking will be responsible for:

monitoring the implementation of the undertaking
reporting to Comcare against key milestones at regular intervals
developing procedures to ensure that monitoring and reporting occur.

Comcare will monitor a duty holders compliance with the undertaking.

If Comcare considers the terms of the enforceable undertaking are not being complied with, Comcare will notify the duty holder and convene a meeting or invite written submissions to be made concerning any possible non-compliance. If, following consideration of any oral or written submissions, Comcare continues to have concerns about possible non-compliance, it will apply to a court to determine the matter and available sanctions will be used. If civil proceedings were not pursued or were adjourned because of the undertaking, they may be instituted or revived.⁽³⁷⁾

Where a person has breached, is breaching, or proposes to breach a term of an undertaking, orders may be sought from the court directing the person to comply with its terms, along with any appropriate consequential orders (for example, orders as to costs).⁽³⁸⁾

Comcare will make public any application to the court to enforce the undertaking.

Contacts

To enquire into offering an enforceable undertaking contact the Comcare delegate or investigator noted in the relevant investigation report or the Regional Director of the relevant state or territory Comcare office by calling 1300 366 979.

(34) Clause 16(3) of Schedule 2.
(35) Personal information is defined by the various State, Territory and Commonwealth privacy laws. The Commonwealth Privacy Act 1988 defines personal information to mean information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
(36) National OHS Compliance and Enforcement Policy at page 5 outlines the principles that Australian workplace authorities should have regard to in determining the appropriate compliance and enforcement strategy. These principles are outlined in the Enforcement Policy.
(37) Clause 16(4)(a) of Schedule 2.
(38) Clause 16(5) of Schedule 2.