Enforceable undertakings under the HSWA

An enforceable undertaking (EU) is a legally binding commitment given to the regulator under s123 of the HSWA, in which the duty-holder agrees to a programme of actions in response to an alleged breach. If WorkSafe accepts it, the prosecution is not commenced — or, if charges have been laid, they are withdrawn once the undertaking is accepted.

It is not a soft option. A credible EU typically costs as much as or more than the fine it displaces, and it is publicly published. What it avoids is a conviction — with everything a conviction carries for insurance, tendering, directorships and reputation.

An EU is not available for every case. The Act rules it out for the most serious offending — a reckless-conduct charge under s47 cannot be resolved by undertaking — and WorkSafe's published policy weighs the gravity of the harm, the duty-holder's compliance history, the strength of the proposed undertaking, and the interests of any victims.

Timing matters. An EU can be proposed after an incident and before charges, or after charges have been laid — but the earlier the engagement, the more credible the proposal. Waiting until the eve of trial reads as expedience, not commitment.

WorkSafe expects an EU to deliver tangible benefits at three levels: remediation and reparation for the victims and their families; improvements to the duty-holder's own systems that go beyond mere legal compliance; and wider benefits to the industry or community — funded training, research, shared safety initiatives.

The package is costed, time-bound and monitored, and it includes WorkSafe's investigation costs. The undertakings that get accepted are specific and measurable; aspirational language without dollars and dates attached does not survive the assessment process.

The duty-holder submits a formal proposal on WorkSafe's template, supported by evidence of the remediation already done and the capacity to deliver what is promised. WorkSafe assesses it against its EU policy, consults the victims, and may negotiate the terms up before deciding. Acceptance is discretionary — there is no right to an EU.

Our role is shaping the proposal before it goes in: honest acknowledgment of the failure (without conceding matters that would be contested at trial if the EU is declined), a package pitched at the level WorkSafe's precedents actually require, and terms the business can genuinely deliver — because a well-meant promise that cannot be kept is worse than none.

An accepted undertaking is enforceable in its own right. If the duty-holder does not comply, WorkSafe can apply to the court for orders compelling compliance, and non-compliance is itself an offence. Critically, WorkSafe can also withdraw its acceptance and revive the original prosecution.

The monitoring obligations are real — progress reports, evidence of completion, independent verification where specified. An EU is a commitment the business lives with for its full term, and it should only be given on terms the business has stress-tested.

The EU decision sits alongside the other paths: defending the charge, or pleading and running the best sentencing case under the Stumpmaster framework. An EU usually costs more in dollars than the likely fine, but avoids conviction; a defended trial preserves everything but risks the worst outcome; a plea buys certainty and discount but carries the record.

The right answer turns on the strength of the Crown case, the harm done, the business's ability to fund a credible package, and what a conviction would actually cost it commercially. That is a decision to make early, with advice — the options narrow as the file ages.