New considerations for enforceable undertakings in NSW
Under newly released guidelines, when deciding to enter into an enforceable undertaking, SafeWork NSW will now formally take into consideration your commitment and attitude to safety.
An enforceable undertaking is a written agreement made by a person to complete certain activities within a particular timeframe. Usually, it is entered into as a substitute for a prosecution that has been commenced against the person for a breach of the safety laws.
Because the effort and commitment to implement an enforceable undertaking may be substantial, both financially and with human resources, the safety regulators need to assess the commitment and attitude of the person to safety.
Under the previous guidelines, SafeWork NSW would consider:
- eligibility to enter into an enforceable undertaking based on the level of culpability of the person in committing the breach;
- the seriousness of safety risk from the breach; and
- the person’s compliance history (i.e. any prior work health and safety convictions).
Now SafeWork NSW will also consider the person’s attitude and commitment which, according to the new guidelines, will usually involve assessing the following factors:
- how the person responded to the incident from a mitigation and prevention perspective;
- the support provided to the injured worker and/or family members of a deceased worker;
- the attitude demonstrated by the person in communicating with SafeWork NSW;
- how the person and/or management demonstrates commitment to the enforceable undertaking process, including meeting agreed actions and timeframes; and
- how the person and/or management demonstrates a positive work health and safety culture within the workplace.
This factor is an important change as it requires a person to have taken prior actions to promote a positive health and safety culture in the workplace, as well as ensuring that they responded to the incident in a proactive, respectful and positive manner.
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