Workplace health and safety: The case for prosecution alternatives | OPINION

NOT LIGHT: Enforceable undertakings are indeed legally binding agreements.
NOT LIGHT: Enforceable undertakings are indeed legally binding agreements.

When workplaces are in significant breach of workplace health and safety laws, prosecution is costly in terms of penalties and fines.  

These could even threaten the viability of the business, which means loss of jobs and income for their workers too. It also leaves little to no budget to improve the unsafe conditions.

The introduction of work health and safety legislation has allowed the regulator to accept an enforceable undertaking (EU) in lieu of a prosecution, where a business can focus on developing initiatives to improve their safety outcomes, instead of spending time and money on legal proceedings. 

An enforceable undertaking must demonstrate three main principals. They are legally binding agreements submitted by the alleged offenders that commits to achieving considerable safety outcomes, which must deliver benefits to the business; the industry sector; and the wider community that go beyond mere compliance.  

The agreed terms of a EU are based on factual circumstances of each case. The EU could include special training programs; the purchasing or development of new equipment, safe systems of work that would benefit the workplace. This should include industry-wide awareness programs regarding safety, and partnering or donating to not-for-profit organisations.

To ensure all terms of the EU are being implemented or complied with, the regulator monitors the business periodically by allocating an inspector to work with the business to verify activities that have been completed. This involves regular dialogue, providing updates and evidence of activities specified in the undertaking and receiving approval to publish content that has been developed (such as manuals).

When businesses participate in EU the requirement is a significant, ongoing commitment that aims to achieve improved safety performance and the establishment of an improved safety culture. The latter is often the weakness for most workplaces, as time and money are generally projected to growing the business and safety becomes secondary. The EU also provides an opportunity for investment in organisational reforms to minimise safety issues. This could be achieved by sourcing expertise to address complex safety processes. Further, participants of the EU are required to share safety knowledge and initiatives with peers in their industry and the community on the general preventive strategies, consequences and implementation process of safe work practices.

While legal representation and fines are expensive, the cost of a EU could be higher. However, understanding a EU’s primary aim is to implement changes to address the unsafe conditions, improve safety performance and build a safety culture – increasing productivity and profitability.

Importantly, it is money invested into developing and optimising safety management systems and processes within the business, while gaining recognition in the industry sector for the safety contributions and finally the assistance given to charitable organisations.

Faith Eeson is a safety consultant with FOCCALE Safety Management.