Edge Legal
Yes.
SafeWork NSW recently accepted a $700K+ enforceable WHS Undertaking from an employer, in lieu of prosecution arising out of an electric shock incident with more than half of the costs dedicated to implementing a comprehensive psychosocial risk management process and rolling out a three-tiered safety training program.
This matter is significant because despite the electric shock injury, the majority of the safety outcomes were on addressing psychosocial hazards through risk management processes with contractors as well as direct employees and rolling out safety leadership training programs directed at senior project leadership, project delivery supervisors and field personnel. Their workshops will consider factors that influence safety culture on site, including human factors such as the behaviours driving decision-making and the challenges posed by remote or regional projects.
Our Take
We are strong supporters of WHS Undertakings. They are not an ‘easy way out’!
A WHS Undertaking is a legally binding written agreement between a Safety Regulator and an employer that has committed or is alleged to have committed a contravention of the WHS Act (other than a Category 1 offence). The WHS Undertaking is an alternative to court-imposed sanctions and involves the employer committing to take specific safety related actions (above mere compliance with the WHS Act) to rectify the breach, improve workplace safety, encourage compliance and benefit the public.
We recommend that WHS Undertakings be considered a ‘first line’ practical and legitimate consideration of any employer’s response to a safety prosecution. They not only avoid the costs and uncertainties of a contested defence but can achieve real value by genuinely involving staff in WHS initiatives that enhance existing safe work system and positively influence safety culture on site.
Action Items:
When faced with a safety prosecution consider WHS Undertakings as a genuine alternative to defending all matters.
Utilise WHS Undertakings to enhance and further embed existing safety measures.
Consider matters such as safety leadership training programs for senior project leadership, project delivery supervisors and field personnel.
