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Regulatory guide - WHS undertakings

For: Employers and managers Information seekers

We publish this regulatory guide to assist the organisations and entities we regulate.


Under part 11 of the Work Health and Safety Act 2011 (WHS Act) (sections 216–222), Comcare may accept an undertaking given by a person in connection with a matter relating to a contravention or alleged contravention by the person of the WHS Act or the Work Health and Safety Regulations 2011 (WHS Regulations). The undertaking is called a ‘WHS undertaking’.

A WHS undertaking can be given where there is a contravention or alleged contravention of the WHS Act or WHS Regulations. The person who committed the contravention or allegedly committed the alleged contravention (‘the proposer’) gives a written WHS undertaking to Comcare. The WHS undertaking must be in connection with a matter relating to the contravention or alleged contravention by the proposer.

Having been given a WHS undertaking, Comcare can decide whether or not to accept it. If Comcare decides to accept a WHS undertaking, it normally takes effect at the time of acceptance.

Section 230(3) of the WHS Act requires Comcare to publish general guidelines in relation to the acceptance of WHS undertakings under the WHS Acts or WHS Regulations. This regulatory guide provides those guidelines.

1. Preconditions

1.1. Contravention or alleged contravention

The giving of a WHS undertaking does not constitute an admission of guilt by the proposer in relation to the contravention or alleged contravention to which the WHS undertaking relates.[1]

Accordingly, part 11 of the WHS Act refers to a contravention or alleged contravention of the WHS Act or WHS Regulations. It is not necessary, for example, to establish that a criminal prosecution or injunction application would succeed.

Nevertheless, Comcare needs to be satisfied at least that the circumstances warrant that an allegation be made. This is required to form a defined reference point for the WHS undertaking.[2] It may or may not be necessary for Comcare to consider whether there has been an actual contravention.

Comcare cannot accept an undertaking where the relevant contravention or alleged contravention is a Category 1 offence.[3] However, Comcare can accept a WHS undertaking in relation to any other contravention or alleged contravention of the WHS Act or WHS Regulations.

1.2. Timing

Comcare does not have the power to demand or require that a WHS undertaking be given. It is up to the proposer to initiate the process.

There are few limitations on when a proposer may give an undertaking to Comcare.

For instance, a proposer may give an undertaking regardless of whether an investigation has commenced. Similarly, if an investigation has commenced, a proposer may give an undertaking regardless of whether a decision has been made to commence a prosecution. Indeed, the interactions with Comcare arising from an investigation may well trigger a proposer to give an undertaking.

Comcare may accept a WHS undertaking in relation to a contravention or alleged contravention before proceedings in relation to that contravention have been finalised.[4] Thus a proposer may give an undertaking even after a prosecution has been commenced. If Comcare decides to accept a WHS undertaking in this situation, it will take all reasonable steps to have the proceedings discontinued.[5]

Depending on the circumstances, Comcare may be prepared to enter into discussions about specific aspects of a proposed undertaking and features that would make Comcare more likely to accept the undertaking.

1.3. Subject matter

A WHS undertaking should be ‘in connection with a matter relating to’ a contravention or alleged contravention.[6]

This means that a WHS undertaking need not be restricted to the direct circumstances of a contravention or alleged contravention. As long as there is a sufficient link to the contravention or alleged contravention, the WHS undertaking can deal with other matters.

This potentially makes a WHS undertaking a very flexible mechanism for promoting compliance with the WHS Act and the WHS Regulations. There is scope to achieve a wide range of outcomes.

2. Decision to accept a WHS undertaking

Comcare will consider each WHS undertaking on its merits, taking into account all the relevant circumstances of the particular case. The starting point will be the nature and extent of the contravention or alleged contravention.

One factor that may influence Comcare’s decision is whether the outcomes in the WHS undertaking can be achieved by means of other measures under the WHS Act. Comcare may be more likely to accept a WHS undertaking if it takes advantage of the flexibility inherent in the WHS undertaking mechanism. Some examples might be:

  • a commitment to outcomes that are tangible, measurable and achievable, with specified timeframes
  • measures to address the impact of an incident on persons who have been injured and/or their families
  • improvements that are not limited to the specific contravention or alleged contravention, covering a range of risks or different subdivisions within an organisation
  • implementation of systems that are considered ‘best practice’, rather than minimum compliance
  • conducting research into a safety issue, the results of which will lead industry practice.

In some cases, Comcare may decide that it is more appropriate in the particular circumstances to take other measures under the WHS Act, such as issuing notices or undertaking a prosecution, rather than accepting a WHS undertaking. This decision may include consideration of the savings in resources for all parties that may be achieved by accepting a WHS undertaking, and the potential to implement outcomes more quickly.

Comcare must decide whether to accept or reject a WHS undertaking. Comcare must give the proposer written notice of its decision and the reasons for the decision.[7] This decision is not a ‘reviewable decision’ for the purposes of the WHS Act.[8] In appropriate cases, Comcare may also specifically notify persons who have an interest in the subject matter of the WHS undertaking of its decision.

If Comcare’s decides to accept a WHS undertaking, Comcare must publish the notice of decision and the reasons for the decision on Comcare’s website.[9] Details of WHS undertakings that are accepted by Comcare are also published in Comcare’s annual report.[10]

3. Duration

If Comcare decides to accept a WHS undertaking, the WHS undertaking takes effect and becomes enforceable when the decision to accept the WHS undertaking is given to the proposer, or at a later date specified by Comcare.[11]

A WHS undertaking will remain in effect until the proposer has completely discharged all their obligations under the WHS undertaking, or when it is withdrawn with Comcare’s agreement.[12]

4. Compliance

While a WHS undertaking is in effect, the proposer must not contravene it.[13] Comcare would not expect any contraventions, given that a WHS undertaking is submitted voluntarily by the proposer. A WHS undertaking may refer to specific methods for monitoring compliance. For example, self- audits or progress reports. However, Comcare may also use general compliance powers to monitor compliance with a WHS undertaking.[14]

In the event of a contravention, Comcare has options such as to:

  • prosecute the proposer for contravening the WHS undertaking[15]
  • apply to a court for an order directing the proposer to comply with the WHS undertaking[16]
  • bring proceedings for the contravention for which the WHS undertaking was given.[17]

A proposer may seek to vary a WHS undertaking that is in effect, but any variation is subject to Comcare’s written agreement. A variation cannot relate to a different alleged contravention from what formed the reference point for the original WHS undertaking.[18]


References

[1] WHS Act, section 216(3).

[2] See WHS Act, section 221(2): it is not possible to vary a WHS undertaking to provide for a different alleged contravention, presumably meaning a completely new undertaking would be required. It is suggested that the proposer must specify: (1) a provision of the WHS Act or WHS Regulations which has allegedly been contravened; (2) the factual circumstances that provide sufficient basis for an allegation to be made that the provision has been contravened.

[3] WHS Act, section 216(2).

[4] The WHS Act expressly contemplates that Comcare may accept a WHS undertaking when a prosecution has been commenced but not finalised. See section 222 (3).

[5] WHS Act, section 222(4).

[6] WHS Act, section 216(1).

[7] WHS Act, section 217(1).

[8] The decision is not listed in WHS Act, section 223.

[9] WHS Act, section 217(2).

[10] WHS Act, Schedule 2, section 3(a)(viii).

[11] WHS Act, section 218.

[12] WHS Act, section 222(2) refers to complete discharge, and section 220(2) to discharge ordered by a court (upon application by Comcare). Section 221(1) provides for withdrawal.

[13] WHS Act, section 219.

[14] As defined in section 4 of the WHS Act, compliance powers are any functions and powers conferred on an inspector. They include powers of entry, powers to issue improvement notices, etc.

[15] WHS Act, section 219.

[16] WHS Act, section 220(1)–(2).

[17] WHS Act, section 220(4).

[18] WHS Act, section 221(1)–(2) deals with variations.

Page last reviewed: 16 December 2019
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Comcare
GPO Box 9905, Canberra, ACT 2601
1300 366 979 | www.comcare.gov.au

Date printed 05 Jul 2020

https://www.comcare.gov.au/scheme-legislation/regulating-scheme/regulatory-guides/whs-undertakings