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Enforceable undertakings: why they are important for WHS
On July 25, 2013, dairy company Norco Cooperative Ltd breached work health and safety laws after a NSW worker was trapped inside a garbage compactor whilst attempting to re-position loose tie strings.
The worker reached into the machine through the bottom door to release the string and was caught between the closed top door and the compacting feet as they rose up. He suffered a compensable injury to his head, but later returned to work on full duties.
After consultation with WorkCover NSW, Norco this year (2015) agreed to an enforceable undertaking for a breach of Section 19(1) of the NSW Work Health and Safety Act 2011 (WHS Act) i.e. duty of care.
Activities Norco agreed to undertake included:
- conducting executive work health and safety workshops,
- developing online work health and safety and human resources induction modules for staff,
- implementing a human resources information system with work health and safety and training modules,
- updating and publishing Managing Dairy Farm Safety farmer resources,
- developing a two part Farm Safety for Children video, and
- committing to establishing and maintaining an accredited work health and safety management system and third party audits of this system.
This undertaking has a total expenditure of $221,636. WorkCover NSW accepted the undertaking because the alleged contravention did not appear to be a section 31 reckless conduct (category 1) offence. Such offences preclude the proposed undertaking from being accepted.
In accepting enforceable undertakings by companies under the mirror WHS legislation, regulatory authorities such as WorkCover NSW first note the nature of the alleged contravention and the actions taken by the company in response to the incident before agreeing to an undertaking.
They also take into account the strategies proposed in the undertaking were assessed as likely to deliver long term sustainable safety improvements in the workplace, industry and community. Any legal proceedings in connection with the alleged offence are dismissed once the undertaking is accepted and completed.
In NSW, the undertaking addresses the requirements contained within the Enforceable Undertakings – Guidelines for Proposing a WHS Undertaking.
First for SA
Meantime, in a first for South Australia, an employer has negotiated an enforceable undertaking in lieu of a prosecution under the Work Health and Safety Act 2012 (SA) (the WHS Act). Workplace lawyer Luke Holland from Sparke Helmore Lawyers said the safety regulator had been “true to its word” in offering an alternative to the courtroom, witnesses and hefty fines.
Of note was the lower level of investment (than other jurisdictions) accepted by SafeWork SA in enforceable undertakings, “which is perhaps reflective of the smaller South Australian economy”, Holland said.
What is an enforceable undertaking?
Holland says the purpose of an enforceable undertaking is to improve health and safety standards at the workplace, as well as for the wider community and industry. While a prosecution may fail to significantly change the behaviour of a workplace, an undertaking ensures that substantial improvements are made.
Although there are benefits to avoiding a prosecution (and the potentially significant penalty), enforceable undertakings can involve immense costs that could potentially be greater that the penalty’s value, he says. Nevertheless, undertakings are desirable because all costs determined go straight back into the workplace and community, ensuring future compliance and avoiding further contraventions of the Act.
Holland says possible strategies that may be proposed in an enforceable undertaking include:
- implementation of special training programs to address the needs of workers, supervisors and management,
- publicity regarding the alleged breach,
- industry-wide awareness programs,
- donations to not-for-profit organisations that focus on WHS, and
- any other strategies that extend beyond compliance with the Act and provide a benefit to workers, the community and/or the industry.
The first SA enforceable undertaking
Holland outlines SA’s first enforceable undertaking as follows:
“On May 11, 2015, Adelaide Resource Recovery Pty Ltd (ARR), a recycling company, agreed to spend approximately $241,900 on safety initiatives set out in an enforceable undertaking. It was alleged that ARR had committed a category 2 offence in exposing an individual to a risk of death, or serious injury or illness, by failing to ensure the health and safety of its workers. As a body corporate, ARR faced a maximum penalty of $1,500,000.
On May 24, 2013, an employee of ARR was inspecting the mechanisms of a conveyer machine. The employee was observing the mechanisms driving the rotating shafts within the machine from a maintenance platform. The safety procedure required the mechanism to be isolated before inspection, but the employee did not do this. During his observations, the employee dropped a torch he was holding. When he reached out to grab the falling torch, his glove caught in the mechanism and his thumb was pinched. As a result the employee’s thumb was severed approximately 1 cm from the tip.
Before the incident, ARR had safety protocols, procedures, training systems, induction systems and safe work method statements in place. However, the machine involved in the incident was inadequately guarded, as it had been removed to allow for frequent maintenance.
It was noted in the enforceable undertaking that ARR had no previous convictions and that its services and products played an important role in South Australia’s recycling industry. ARR ensured the injured worker received immediate medical treatment and promptly complied with all notices issued by SafeWork SA.
As a result of the contravention, ARR spent approximately $215,050 on rectifying any deficiencies in health and safety at its workplace, including installing appropriate guarding to the machine, upgrading lighting in the area, hiring an additional construction and demolition shed supervisor, and employing a site safety supervisor. ARR also made several mandatory commitments including:
- committing that the behaviour leading to the alleged contravention had ceased and would not reoccur,
- committing to ongoing effective management of WHS risks,
- committing to disseminate information about the undertaking to relevant parties,
- committing to participating constructively in all compliance monitoring activities of the undertaking,
- retaining the additional construction and demolition shed supervisor, and ensuring they conduct spot audits, site safety walks and revising the Safe Work Method Statements in consultation with workers,
- retaining the site safety supervisor,
- publishing a safety hazard alert for its industry on the importance of adequate guarding,
- having a representative speak at a forum conducted by SafeWork SA,
- assisting in running a training program conducted by Mission Australia, and
- paying SafeWork SA’s costs associated with the undertaking.
What does this mean for employers?
It is important to note that SafeWork SA, like a number of other jurisdictions, will only consider an undertaking proposed by the alleged offender and will not propose it themselves. Undertakings will not be accepted for a Category 1 offence or where the alleged contravention has resulted in a fatality or serious injury and there is a suggestion that the offender has been reckless under the Act. There is no power to compel jurisdictions to accept a proposed undertaking, it is at their discretion whether or not they will proceed with prosecution.
Holland says there are penalties for not complying with an enforceable undertaking. In SA, SafeWork SA can apply to the court for an order to enforce compliance, with the maximum penalty for a body corporate being $250,000 and $50,000 for an individual.
More information on harmonised WHS laws, including enforceable undertakings, is available in AlertForce’s OHS Harmonisation Courses.
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