Do “enforceable undertakings” equal justice?

The issue of “enforceable undertakings” for breaches of OHS law receives an interesting interpretation in the Courier-Mail newspaper on 18 January 2010.  “Enforceable undertakings” are unfairly described as “plea bargains” but the article does provide some comparisons to support the argument.

The first example provided where a worker was left a paraplegic sounds like a plea bargain in that there was a negotiated “agreement to avoid being brought the courts” but more information is required.

The second, concerning the injury to patrons at the Sea World theme park, is treated too briefly and is likely to involve issues of public liability.  However the dollar comparison in this example may raise the need to ensure that any enforceable undertakings should be comparable in dollar value to the initial fine.  The Courier-Mail report describes the $A1 million fine having been reduced to $A300,000 of safety improvements.

SafetyAtWorkBlog is supportive of court decisions that result in safety improvements to workplaces rather than paying hundreds of thousands of dollars into consolidated revenue.  There is a logic to a financial penalty having a constructive OHS result.

However, financial penalties do have a punitive purpose and perhaps it may be useful to slightly reduce the punitive fine but apply enforceable undertakings.  In this way, the Courts are indicating that punishment is warranted for lack of preventive management and sets the company on the path to establishing better safety management or practical safety levels.

In 2009 John Holland had a swathe of enforceable undertakings imposed after a finger injury to a worker.  For a company that prides itself on its safety culture any incident is regrettable but the amount of enforceable undertakings imposed by Comcare was extremely embarrassing and created enormous additional OHS work for the company.

“Enforceable undertakings” may focus on correcting and avoiding a particular workplace hazard but any company that receives such a task should accept that this is a very public statement about a dangerous cock-up that has resulted in injury or death.  The proper response should be for a thorough review of the OHS operations of the entire organisation because the undertakings are “enforceable” and should not be considered a “slap on the wrist” or a “plea bargain”.

The Attorney-General and Industrial Relations Minister Cameron Dick provided SafetyAtWorkBlog with the following responses, which it also provided to the Courier-Mail, on “enforceable undertakings”:

“Enforceable undertakings are one of the enforcement options available to the Queensland Government when investigating an employer or individual who is alleged to have breached workplace health and safety laws.

These undertakings, which have been available since 2003, are legally binding agreements that require the employer to carry out safety measures that extend well beyond rectifying the original breach.

Also, they are only entered into in circumstances when the benefits for workers, the industry and the community can be clearly shown.

Penalties are very important as both punishment and a deterrent but more than anything else, we want to eliminate any dangerous circumstances, practices or equipment so accidents don’t occur in the future.

Enforceable undertakings promote the introduction of long-lasting and more wide-ranging safety changes that would not have occurred under the prosecutorial system that imposes fines after the event.

They have contributed more than $17 million in health and safety benefits to Queensland workplaces, including $8 million in 2008-09.”

One of the attractions of this type of penalty is that it can be applied across a range of offences other than OHS.  Recent examples in Australia are the actions by the Australian Competition & Consumer Commission against Global Green Plan Ltd on the misuse of customer funds and the Australian Communications & Media Authority against three telecommunications companies concerning spam.

The lightness of such penalties can only be judged by the degree of their enforcement and that is likely to be the weak link in the process.

Kevin Jones

8 thoughts on “Do “enforceable undertakings” equal justice?”

  1. An interesting post Kevin.

    Comcare uses enforceable undertakings as one part of a range of enforcement tools to achieve improve safety outcomes. It’s another way of ensuring the health and wellbeing of federal workers.

    Comcare currently has five Enforceable Undertakings (EU) in place. In one of these, the EU was agreed as an additional measure to civil court action.

    I agree with your comment that such penalties are best judged by the degree of their enforcement. That’s why ongoing monitoring is crucial to ensure the safety reforms are ‘hard wired’ into organisational practices.

    Whatever the enforcement activity undertaken, the premise remains the same – a safe workplace is not negotiable. It doesn’t matter where you work, the rules are the same.

  2. An interesting post Kevin.

    Comcare uses enforceable undertakings as one part of a range of enforcement tools to achieve improve safety outcomes. It’s another way of ensuring the health and wellbeing of federal workers.

    Comcare currently has five Enforceable Undertakings (EU) in place. In one of these, the EU was agreed as an additional measure to civil court action.

    I agree with your comment that such penalties are best judged by the degree of their enforcement. That’s why ongoing monitoring is crucial to ensure the safety reforms are ‘hard wired’ into organisational practices.

    Whatever the enforcement activity undertaken, the premise remains the same – a safe workplace is not negotiable. It doesn’t matter where you work, the rules are the same.

  3. An interesting post Kevin.

    Comcare uses enforceable undertakings as one part of a range of enforcement tools to achieve improve safety outcomes. It’s another way of ensuring the health and wellbeing of federal workers.

    Comcare currently has five Enforceable Undertakings (EU) in place. In one of these, the EU was agreed as an additional measure to civil court action.

    I agree with your comment that such penalties are best judged by the degree of their enforcement. That’s why ongoing monitoring is crucial to ensure the safety reforms are ‘hard wired’ into organisational practices.

    Whatever the enforcement activity undertaken, the premise remains the same – a safe workplace is not negotiable. It doesn’t matter where you work, the rules are the same.

    1. Paul, thanks very much for your input and Happy New Year.

      I was discussing the issue of enforceable undertakings with a colleague today and we agreed that EUs should not be considered as a \”slap on the wrist\”. Many EUs can create a cultural shift in a company\’s approach to safety management. They often generate costly additional work and expense. Of course, it can be argued that this cost would have been less painful to the company if applied before the incident and so spread across business operating costs. But that\’s the lesson to be learnt.

      I believe that the details of enforceable undertakings need to gain wider media attention because, even though a judge\’s decision may be publicly accessible, the EU may be the only indication of how such a circumstance can be avoided by others. In some situations the EU can list what the OHS regulator would consider to be acceptable and appropriate hazard control measures, maybe even a \”best practice\”.

      Making the details of an EU publicly accessible can provide guidelines to other companies better, in some ways, to what a code of practice can.

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