Health and safety representative

WHS Breach – Enforceable Undertaking

Cindy Jackway
Monday, April 15th 2024

Not all breaches of the Work Health and Safety Act result in prosecutions by Safework SA.

Section 216 (1) of the Act provides that the WHS Regulator may accept a written undertaking given by a person in connection with a matter relating to a contravention (referred to as an Enforceable Undertaking”).

In a recent example a South Australian company agreed to spend more than $875,000 on safety improvements following a 2021 incident that left a worker with serious head injuries.

The incident occurred at the company’s worksite when the worker fell 3.76 metres from a mezzanine level platform onto a concrete floor within the site’s crushing plant.

The worker was undertaking a task while the top and middle edge rails surrounding the elevated fixed platform were removed, creating a live edge”.

The worker fell and sustained serious injuries including a fractured skull and ribs, broken vertebrae, hearing loss and amnesia.

The injured worker has since returned to work and is currently on restricted hours.

Following a Safework SA investigation, the workplace safety regulator agreed to enter into an Enforceable Undertaking as an alternative to prosecution.

An Enforceable Undertaking is a written legally binding commitment to implement effective work health and safety initiatives.

The Enforceable Undertaking included funding for activities that will deliver benefits to its workers, the industry and the community:

  • Appointing an additional site supervisor
  • Additional training for workers at the worksite
  • Purchasing a new specialised rock breaker to assist the injured person’s return to wor
  • Reviewing height safety at all work sites
  • Creating a web page to promote a safety campaign on falls from heights
  • Hosting a safety forum with industry partners

Rectifications to the value of $295,153 were made to the worksite prior to the Enforceable Undertaking being accepted.

Safework SA noted the company’s assurance that the behaviour that led to the allege contravention had ceased and the company’s commitment to ongoing effective management of risks to health and safety and it was concluded that an Enforceable Undertaking I the preferred enforcement option, rather than continuing with prosecution in this case.

The option is one that an employer may consider in preference to facing a prosecution.

Author

Cindy Jackway

Training Manager
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