In December 2014 ACT Attorney-General Simon Corbell announced that for the first time WorkSafe ACT had accepted an enforceable undertaking (EU) under the Work Health and Safety Act 2011 (ACT). The first of which was entered into by Virgin Tech Pty Ltd (Virgin Tech), part of Virgin Australia Group.
The EU arose out of an incident in May 2013 where a Virgin Tech employee was struck on the back of the head by a high speed roller shutter door when collecting recycling from the terminal premises at Canberra Airport. The employee injured their neck, received treatment for this injury and later returned to work.
Virgin Tech responded by proposing an enforceable undertaking which included implementation of internal safety programs, a compliance reporting platform, external audits, employment of a WHS specialist, sponsorship of an education program for community members and a donation to the Neurosurgical Unit, Canberra Hospital at a total cost of AUD 625,000.
More recently, as a result of another incident at Canberra Airport involving a Qantas Airways Ltd (Qantas), an employee who was injured when he fell backwards approximately 1.5 metres while cleaning an aircraft at Canberra Airport.
WorkSafe ACT investigated the incident and alleged that Qantas failed to comply with their duty to ensure the health and safety of workers and contractors, exposing an individual to a risk of serious injury. Qantas proposed an EU which included internal programs, improvements to the infrastructure designed to prevent a fall from height, employment of a WHS coordinator, sponsoring a research project into managing safety risks and a donation to the Snowy Hydro Rescue Helicopter service in the ACT at a total cost of AUD 680,000. The EU was accepted in 2016.
EU’s arise under part 11 of the Work Health and Safety Act 2011 (ACT)1 that provides that WorkSafe ACT may accept a written undertaking in connection with a matter relating to an alleged contravention by the person of the Act.
An EU is a legally binding agreement between WorkSafe ACT and the person who proposed the undertaking whereby in exchange for various safety initiatives, WorkSafe ACT will not prosecute for an alleged breach of the Act.
EU’s are primarily aimed at addressing the underlying issue that led to the incident and also includes community based and industry initiatives with the aim of improving community awareness and safety outcomes.
During the term of the EU, which is usually two years, contravention of the terms of the EU may result in substantial penalties but more significantly, WorkSafe ACT can bring proceedings for the original alleged contravention of the Act. It is important to note that an undertaking cannot be accepted for an alleged contravention that is a category 1 offence (see s 31 of the Act).
While to some, EU’s may be seen as a quick fix to avoid a prosecution, in reality this is far from true. In some cases, EU’s can result in high levels of expenditure, sometimes greater than that of the likely original fine. In both the Virgin Tech and the Qantas examples, both organisations committed over half a million dollars to improving their internal systems and contributing to community initiatives. While Virgin Tech and Qantas safety budgets are likely to be significant given the size of their organisations, a contribution of this nature is not insignificant to the further improvement of safety.
Entering into an EU does result in additional ongoing compliance obligations with the regulator to ensure compliance with the EU, but they also provide an opportunity to develop and implement ongoing and lasting change within an organisation and provide a positive contribution to the community.
The priority should always be ensuring a workplace is free from risks to health and safety, but when an incident does occur, EU’s provide an opportunity to grow and learn from an incident, which can only be a good thing.