Recently a PCBU managed to avoid prosecution by their WHS Regulator even though one of the PCBU's workers was killed at work. But in this instance it will cost the PCBU a minimum of $945,000.
This was achieved by a procedure that any PCBU operating under a WHS Act may use when confronted with prosecution for a WHS offence *.
How this PCBU avoided prosecution
It was done with a legally binding agreement called an enforceable undertaking. The PCBU offered to carry out a range of specific activities to improve health and safety standards in the workplace and deliver health and safety initiatives to their industry and the wider community.
The details of the specific activities offered in the $945,000 undertaking can be seen at the Northern Territory WorkSafe website
When a WHS Regulator accepts a proposed enforceable undertaking then any legal proceedings connected to the alleged contravention are discontinued or not started.
Why the WHS Regulator accepted this undertaking
In December 2015 the WHS Regulator (NT WorkSafe) accepted the undertaking because it satisfied the 3 principles required in an undertaking:
- benefits to the workplace
- benefits to the PCBU’s industry
- benefits to the community
and because the undertaking:
- offered “significant and ongoing commitments to achieve improved work health and safety (WHS) outcomes and compliance beyond what is required by the law”
- offered a similar deterrent to a successful legal proceeding
Enforceable undertakings in NSW
The same enforceable undertakings procedure is covered in sections 216 - 222 of the NSW WHS Act 2011. More information and a record of enforceable undertakings accepted by WorkCover/SafeWork NSW can be found on their website
The cost of the activities carried out by the PCBU under an undertaking varies greatly. There is a recent case in NSW where the PCBU was not prosecuted and the activities carried out by the PCBU in the undertaking cost $52,000.
Obviously the best position to be in is one where the PCBU is not about to be prosecuted. This can be achieved by appropriate investment in training and resources backed by a sound WHS management system.
However, should prosecution be imminent, consideration could be given to proposing an enforceable undertaking to the WHS Regulator (in NSW it's SafeWork NSW). It might be a very worthwhile investment.
* A PCBU cannot apply for an enforceable undertaking for a Category 1 offence (reckless conduct). See section 216 WHS Act NSW.