Part 11: WHS Enforceable Undertakings

Regulatory citation: Model Work Health and Safety Act, Part 11 (Sections 216–222), Enforceable undertakings

What Are WHS Undertakings?

Part 11 of the model WHS Act lets the regulator accept a written undertaking, called a WHS undertaking, from a person in connection with a contravention or alleged contravention of the Act. The person commits to specific safety improvements instead of facing prosecution. Once accepted, the undertaking can be enforced in court.

Why Undertakings Matter

An undertaking can deliver safety improvements faster and more broadly than a prosecution, often benefiting a whole industry. For the business, it avoids a conviction, but it comes with binding obligations and public scrutiny.

Core Obligations

1. Offering an Undertaking (s216(1))

A person may give the regulator a written undertaking in connection with a matter relating to a contravention or alleged contravention of the Act. The regulator cannot demand one. The proposer starts the process, and it can happen before or during an investigation or after proceedings have begun.

2. Category 1 Offences Are Excluded (s216(2))

The regulator may not accept a WHS undertaking for a contravention or alleged contravention that is a Category 1 offence. Jurisdictions with an industrial manslaughter offence may also exclude it. For example, the Commonwealth does not allow undertakings for industrial manslaughter.

3. Not an Admission of Guilt (s216(3))

Giving an undertaking does not amount to an admission of guilt for the contravention or alleged contravention.

4. Decision, Reasons and Publication (s217)

The regulator considers the undertaking against its published guidelines and must give written notice of its decision to accept or reject it, with reasons. Accepted undertakings and the reasons are published by the regulator.

5. When It Becomes Enforceable (s218)

An accepted undertaking takes effect and becomes enforceable when notice of the decision is given to the person, or at a later date the regulator specifies.

6. Compliance and Contravention (ss219–220)

A person must not contravene a WHS undertaking, and doing so is an offence. The regulator can also apply to a court, which can order compliance, a penalty, costs including the regulator's monitoring costs, or discharge of the undertaking. The regulator may still prosecute the original contravention.

7. Withdrawal or Variation (s221)

An undertaking can be withdrawn or varied only with the regulator's written agreement. A variation cannot relate to a different alleged contravention.

8. Effect on Proceedings (s222)

No proceedings may be brought against the person for the contravention while the undertaking is in effect, or after it has been completely discharged. If the regulator accepts one after proceedings have started, it must take all reasonable steps to have them discontinued.

Common Compliance Approaches

Propose Measurable Outcomes

Regulators favour undertakings with clear deliverables, deadlines and costs that go beyond minimum compliance.

Include Benefits Beyond the Site

Common terms include industry training, research, community projects and support for injured workers and families.

Plan for Monitoring

Build in progress reports, independent audits and a named owner for each commitment.

Example: Undertakings in Practice

After a worker is seriously injured falling from a truck tray at a regional depot, a logistics company is told it is likely to face a Category 2 charge. It proposes a WHS undertaking that includes fitting fall prevention platforms at all depots, funding a driver safety program for the local transport industry and quarterly progress reports. The regulator accepts it, publishes the decision, and the company tracks each commitment to completion.

Related regulations: WHS offences and penalty categories, WHS inspector powers, WHS notices.

Note: This summary is based on the model WHS Act published by Safe Work Australia. Model laws only take effect once a jurisdiction enacts them, and each jurisdiction's WHS Act can differ in wording, section numbers and penalties. Victoria has not adopted the model WHS laws and has its own OHS Act. Always check the legislation and regulator guidance that apply where you work.

Frequently Asked Questions

Can a regulator force a business to give an undertaking?

No. An undertaking is offered by the person, and the regulator decides whether to accept it.

Can an undertaking be used for a Category 1 offence?

No. The model Act prohibits the regulator from accepting a WHS undertaking for a Category 1 offence.

What happens if the undertaking is not met?

Failing to comply is an offence. The regulator can also seek court orders and can bring proceedings for the original contravention.