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.