Thinking | 8 February 2022

Western Australia set to benefit from enhanced WHS undertakings

By Nicholas Beech

In Western Australia, enforceable undertakings are an available enforcement tool under the Occupational Safety and Health Act 1984 and Mines Safety and Inspection Act 1994. However, there are a number of restrictions and conditions that apply to undertakings which have made them an unattractive, if not ignored, option. Furthermore, enforceable undertakings are not currently available for offences under WA’s petroleum health and safety laws, including the Petroleum (Submerged Lands) Act 1982.

Under Western Australia’s new Work Health and Safety Act 2020, the option to agree to an enforceable undertaking will become available in far broader circumstances and facilitate tailored and comprehensive health and safety benefits to the workplace, industry and the wider community.

Here are the key features of an undertaking available under the current laws.

  • An undertaking is only available:
    • in the event a person is found guilty of an offence and the court has imposed a fine;
    • upon order of the court allowing the person to elect to pay the fine or enter into an undertaking, when the court is satisfied that:
      • the breach did not result in physical harm;
      • the person seeks the order, and it is not opposed by the prosecutor;
      • the terms of the proposed undertaking are likely to be agreed within a proposed time period; and
      • the cost to the person of complying with the proposed undertaking will be substantially equivalent to the amount of the fine imposed.
  • An election by the person to enter into an undertaking must be made within 28 days after the date of the order.
  • The person must undertake to take the actions specified and agreed, bear all costs and expenses of doing so and complete all of the required action before a specified date.
  • The specified actions may include taking steps to improve occupational safety and health at a workplace or business, steps to publicise details of the offence, its consequences and the fines imposed, and carrying out a specified project or activity for the improvement of occupational health and safety in the community or in connection with a particular activity.
  • The terms of an undertaking may be published, including in a newspaper or on the Internet.

It is an offence for the person to fail to comply with the terms of the undertaking and, if convicted, the person will be ordered to pay a penalty in addition to the fine originally imposed.

The Model Work Health and Safety Act includes provisions for the making of an enforceable undertaking, called a WHS undertaking, and WA eventually adopted this regime as part of the Work Health and Safety Act 2020 (WA WHS Act). By doing so, not only has WA brought itself in line with the other model law jurisdictions, but it has also expanded the availability of the regime, including to petroleum-related WHS offences.

The core prescribed features of a WHS undertaking are as follows, with reference to the WA WHS Act.

  • Under the WA WHS Act, a WHS undertaking is not available for a contravention or alleged contravention of the industrial manslaughter offence or Category 1 offence (being a failure to comply with a WHS duty that causes the death of, or serious harm to, an individual).
  • It is available at any time following an alleged offence, including prior to or during any proceedings in relation to the alleged offence.
  • The WA WorkSafe Commissioner (Regulator) must give the person seeking to make a WHS undertaking written notice of his decision to accept or reject the undertaking and the reasons for the decision. These details must also be published on the Regulator’s website.
  • Giving a WHS undertaking does not constitute an admission of guilt in relation to the relevant alleged contravention.
  • If a WHS undertaking is contravened, the Regulator:
    • may apply to the Magistrates’ Court for a remedy. In this regard:
      • a penalty of up to $55,000 for an individual and $285,000 for a body corporate may be imposed; and
      • the court may also make orders directing compliance with the WHS undertaking or discharging the undertaking altogether and order the person to pay the costs of the proceedings plus the Regulator’s reasonable costs of monitoring compliance with the WHS undertaking in the future.
    • may bring proceedings against the person within the latest of six months after the WHS undertaking is contravened, the contravention comes to the notice of the Regulator or the Regulator agrees to the undertaking being withdrawn.

However, unlike the current position in WA, additional details, requirements and conditions about WHS undertakings are not contained in the WA WHS Act. Instead, the regulator in each jurisdiction is required to publish guidelines in relation to the acceptance of WHS undertakings. No guidelines have yet been published by WA’s Regulator, however the following are key aspects contained in the guidelines published by the regulators in Queensland and New South Wales.

  • Unless there are exceptional circumstances, a WHS undertaking will not be considered or usually will not be appropriate where any of the following circumstances exist:
    • The contravention is connected to a fatality that occurs after 23 October 2017 or otherwise involves the death of a person or ‘very serious injury’ (namely an injury that has caused nervous system damage liable to lead to mental incapacity or permanent restriction of mobility or involves major amputation of a limb or parts of the body).
    • The person seeking the undertaking (applicant) has a recent (five years or less) prior conviction or finding of guilt connected to the death of a person.
  • A range of procedural and substantive details must be provided and a template is provided to assist with preparation of this material. The details include:
    • any related enforcement notices;
    • any injuries and support provided to any injured person;
    • consultation in relation to the proposed undertaking;
    • rectifications to the workplace or systems; and
    • the activities to be undertaken that will promote safety to workers, industry and the community.
  • Where an undertaking being given is an alternative to prosecution, the quantum or effect of the undertaking must be commensurate with, and also account for, the benefits that accrue to the applicant due to the prosecution being discontinued. The benefits of avoiding court proceedings, including obviating a possible recorded conviction and other sentencing outcomes, must be reflected in the quantum or effect of the undertaking. That is, those non-tangible benefits of avoiding prosecution must be reflected in the tangible benefits required as part of the undertaking.
  • The regulator also requires the applicant to have an Occupational Health and Safety Management System (OHSMS) acceptable to the regulator in place or alternatively commit to implementing one as part of the terms of an undertaking. This must include third-party auditing of the OHSMS that is acceptable to the regulator.
  • When deciding whether to accept an undertaking, the regulator will consider a number of factors, including:
    • the objective gravity of the contravention and nature of the applicant’s alleged misconduct;
    • submissions received from any relevant party, including any injured worker or next of kin;
    • the applicant’s conduct in respect of mitigation and remedial action;
    • the applicant’s past performance and history of compliance; and
    • any other relevant matters.
  • A WHS undertaking will usually not be appropriate where the applicant has a recent (five years or less) prior conviction, including a conviction in another WHS jurisdiction.
  • The regulator will not enter into discussions about an undertaking if contacted more than six months after the contravention is alleged, unless the applicant can demonstrate exceptional circumstances exist.
  • Generally, the regulator will consider an undertaking after proceedings have commenced, and an application should be made as soon as possible and within 12 weeks from service of the brief of evidence.
  • A two-stage assessment process is undertaken:
    • eligibility – the first stage is initiated from an expression of interest by the applicant to the regulator about the possibility of an undertaking. The expression of interest is assessed to determine if an undertaking may be an appropriate enforcement measure.
    • evaluation – the second stage is initiated when the regulator determines that an undertaking may be an appropriate option after assessing the applicant’s eligibility. The applicant submits a written undertaking proposal to the regulator and the merit of the proposal is then considered.
  • When deciding whether a proposed undertaking fulfils the eligibility stage, the regulator will consider a number of factors, including:
    • the level of alleged culpability of the applicant;
    • the degree of risk arising from the alleged breach;
    • the applicant’s history of compliance; and
    • the applicant’s attitude and commitment to work health and safety and the undertaking process, including its response to the incident from a mitigation and prevention perspective and the support provided to any injured worker.
  • If the regulator considers an undertaking may be an appropriate enforcement measure, then the applicant prepares a written proposal (using a provided template), and the regulator undertakes the evaluation stage by considering the following additional factors:
    • the degree to which the undertaking strengthens compliance and/or builds sustainable performance;
    • whether the undertaking offers sustainable, measurable and tangible work health and safety benefits to the workplace, the industry and the community;
    • the links between the proposed activities and the alleged contravention;
    • the applicant’s capability to develop and deliver an undertaking, including the applicant’s ability and competence to deliver the undertaking within the prescribed timeframe and financial and human resources capacity; and
    • any other relevant factor.
  • In determining whether an undertaking will be accepted, the views of the injured worker and/or family of a deceased worker are important and will be considered as part of the overall assessment of the undertaking application.

Although the approach in NSW is described as a two-stage assessment, there is considerable uniformity between the factors that need to be ultimately considered and the substance of proposed remedial activities under both the NSW and QLD regimes. Changes have recently been made to the NSW guidelines to strengthen the relevance and weight of the ‘attitude’ and ‘commitment’ to safety generally of the applicant and in relation to the specific incident.

The WHS undertaking regime is a positive improvement on the existing approach to an undertaking in WA, providing a far more available and substantive alternative to a prosecution. Hopefully, the experience and benefits gained in NSW and QLD will be reflected in the guidelines that will be developed for WHS undertakings in WA.

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