The Executive Director, SafeWork SA, is the regulator for the purposes of the Work Health and Safety Act 2012 (SA) (the Act).
The Act provides a range of enforcement options that the regulator can utilise in response to alleged contraventions of the Act, including prosecution through the courts.
Section 216 of the Act allows the regulator to accept written undertakings as an alternative to proceeding to a prosecution. These are commonly referred to as enforceable undertakings (EUs).
An EU is a written, legally binding agreement between the regulator and the company or individual who proposed the undertaking. The company or individual is obliged to carry out specific activities outlined in the undertaking.
It provides a commitment by a company or individual to implement initiatives designed to deliver tangible benefits for the industry and broader community. These initiatives should seek to resolve both the behaviour of concern that has led to the alleged contravention and also seek to rectify the consequences of that conduct.
The regulator is the only person who can accept an EU and is not compelled to accept a proposal for an undertaking.
An enforceable undertaking will only be accepted if it demonstrates three main principles:
- benefits to the workplace;
- benefits to their industry; and
- benefits to the community.
An EU does not constitute an admission of guilt by the person giving an undertaking in relation to the contravention.
An enforceable undertaking cannot be accepted for a contravention or alleged contravention of a Category 1 offence. A person commits a Category 1 offence if:
- the person has a health and safety duty; and
- the person, without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness; and
- the person was reckless as to the risk of death or serious injury or illness.
An advisory service is provided by SafeWork SA if you wish to find out more information regarding the EU process. The advisory service is beneficial as it allows the company or individual to better determine if they wish to continue to submitting a proposal for an EU. All communication to the advisory service is on a without prejudice basis and will be conducted directly with the company or individual seeking to give an EU, or their legal representative. To organise a meeting with a member of the EU advisory service please contact SafeWork SA on 8303 0294.
Further information regarding the EU process is contained in the Guidelines for the acceptance of enforceable undertakings and the Application for proposed enforceable undertaking template.
List of Enforceable Undertakings
- Solar Eggs Farms Pty Ltd / Variation / Case Study
- Government of South Australia: Department of Planning, Transport and Infrastructure
- Leed Engineering and Construction Pty Ltd / Variation
- Callan MacGillivray Pty Ltd / Jarred MacGillivray Pty Ltd / MacGillivray reasons for decision
- Mcmahon Contractors Pty Ltd
- Scout Association of Australia (South Australia Branch) / Variation/ Second Variation
- Morgan Sawmill / Incident summary / Variation
- SRG Building Pty Ltd / Impact statement / Variation
- Coles Supermarkets / Incident summary
- Ensign Australia
- Structurally Sound Engineering
- Heavymech Pty Ltd / Attachment A / Attachment B / Attachment C
- Metecno Pty Ltd
- Adelaide Resources Recovery / Incident summary