Should you give an enforceable undertaking?

By Jeff Salton on February 9th, 2018
  1. Work Health & Safety Act
  2. Workplace health & safety regulations

 

Safety legislation permits employers charged with a safety offence to give an enforceable undertaking (EU) to avoid a prosecution proceeding to court for conviction. Electing for an EU will usually result in the company spending a large amount of money rectifying the situation that drew the attention of the safety regulator, and often some gesture (financial or otherwise) that benefits the community.

Andrew Douglas, Managing Partner at FCW Lawyers asks: is an EU worth it?

Last year there were several forklift prosecutions. In Victoria, Wodonga Rendering pleaded guilty to primary duty breaches for wrongfully fitting a forklift with a jib and rotator to the tines to permit emptying 810kg bags. The process was not assessed for risk, and it caused the forklift to tip over injuring two employees. The company had previously pleaded guilty to a breach in 2014 and been fined $40,000. The Wodonga Magistrates Court imposed a fine this time of $85,000 and recorded a conviction.

In Bolard v Balhahn (2017), an employee in South Australia stood upon tines and cut the straps on a bundle of eight metal pipes, causing them to cascade down and injure him and a passing employee. A fine of $160,000 was imposed.

These are both large fines because in the first case there was a prior conviction and the second involved very dangerous conduct.

Choosing an EU instead of a conviction

“In the matter of Primo Moraitis Fresh, an employee suffered serious injuries when struck by a reversing forklift. The company’s desire to avoid a conviction led them to spend $294,000 to obtain an EU. This way of escaping conviction came at a massive cost,” Andrew says.

So why would a business choose to spend more on an enforceable undertaking than pay the fine?

“Because it avoids a conviction and the risk of not winning contracts with government, major supermarket chains and 457 labour hire agreements,” he says.

But he warns: “An enforceable undertaking exposes the officers of your business to significant risk if a similar incident arises and the undertaking is not met and causes a subsequent breach.”

He suggests businesses think hard before giving such an undertaking as the costs and risks are often greater than a limited plea of guilty.

The Health & Safety Handbook chapters on Enforcement and Prosecution have more detailed information about what you can expect if you breach your health and safety duties to workers. But don’t worry, they’re written in plain English and are straightforward and easy to understand.

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