A person may give the regulator a WHS undertaking about a contravention or alleged contravention of the Work Health and Safety Act 2020 by the person. However, a WHS undertaking cannot be accepted in regard to industrial manslaughter or a Category 1 offence.
The regulator must consider any WHS undertaking, taking into account guidelines published on the acceptance of WHS undertakings, and provide the person with a written notice of its decision to accept or reject it (including reasons).
No enforcement proceedings may be brought (or continued) against a person who has made a WHS undertaking relation to a matter covered in the WHS undertaking while it is in effect or after it has been completely discharged.
A WHS undertaking takes effect and becomes enforceable when the regulator鈥檚 decision to accept it is given to the person or as specified in the decision. If the undertaking is accepted by the regulator it will be published on the regulator鈥檚 website.
Developing a WHS undertaking
A person who enters into a WHS undertaking agrees to complete certain activities. Examples of activities intended to benefit the workplace, industry or the broader community may include:
- stopping the behaviours that led to the alleged breach
- sharing information about the WHS undertaking with workers
- engaging an external safety provider
- presenting to the relevant industry on the WHS incident and lessons learnt
- joining a community education program
- creating a safety management system.
Work health and safety legislation
Enforceable WHS undertakings list
Fortescue Limited
Show moreDate accepted: 18 December 2023
Fortescue Limited Enforceable Undertaking
Summary:
| Background: | On 31 March 2022, the substantive provisions of the Work Health and Safety Act 2020 (WA) (WHS Act) came into effect (Commencement Date). In July and August 2022, WorkSafe Inspectors issued notices to Fortescue under section 171 of the WHS Act. The Notices related to historic incidents of alleged exposure to psychosocial hazards. The alleged incidents occurred prior to the Commencement Date, when the relevant provisions of the (now repealed) Mines Safety and Inspection Act 1994 (WA) applied |
Alleged breach:
| It was alleged that Fortescue refused or failed, without reasonable excuse, to produce documents or answer questions in accordance with the Notices in contravention of section 171(7) of the WHS Act. |
| Summary of undertaking: | In the event of an alleged contravention of the WHS Act, the WorkSafe Commissioner may, as an alternative to prosecution, accept an enforceable undertaking (Undertaking) given by a person who is alleged to have committed the contravention. The giving of the Undertaking is not an admission of guilt, and the acceptance of the Undertaking is not a finding of criminal guilt in relation to the alleged contravention. The accepted Undertaking aims to deliver superior health and safety outcomes to workers, the workplace, and the mining industry and community generally, which may not have been delivered if the matter were prosecuted. The Undertaking given by Fortescue in relation to the alleged contravention has been accepted by the Acting WorkSafe Commissioner as an enforceable undertaking under Part 11 of the WHS Act. The Undertaking includes the following elements.
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This undertaking has a total minimum expenditure of $1,470,000.
