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STATEMENT OF TONY WILLIAMS

Name Tony Williams Address 2-24 Rawson Place, Sydney NSW 2000 Occupation Director, Construction Services Metropolitan

Director, SafeWork NSW Date 22 September 2020

I, Tony Williams, of 2-24 Rawson Place, Sydney NSW 2000, Director, Construction Services Metropolitan, SafeWork NSW, Department of Customer Service, state:

1. This statement is true and correct to the best of my knowledge.

2. I have prepared this witness statement in relation to the Public Inquiry into Blue Mountains City Council (BMCC) which was announced by the Minister for Local Government, the Hon. Gabrielle Upton MP on 27 June 2018.

3. As Director, I am responsible for overseeing the provision of work, health and

safety regulatory services to the residential, commercial and infrastructure construction sectors across the greater Sydney region. This includes pro-active harm prevention activities that aim to reduce the numbers of workers being injured, contracting diseases or dying as result of incidents on construction sites. My role also involves reactive work such as investigating workplace incidents with the aim of minimising the likelihood of re-occurrence and taking enforcement action against duty holders that have breached legislated requirements.

SafeWork NSW

4. The Work Health and Safety Act 2011 (WHS Act), which adopts the national model work health and safety laws, establishes SafeWork NSW as the NSW work health and safety regulator. The functions and powers of SafeWork NSW are set out in the WHS Act.

5. SafeWork NSW is responsible for regulating work health and safety at all

workplaces except for mining workplaces. The Resources Regulator is the WHS Regulator for mines and petroleum sites.

6. The objects of the WHS Act are set out in section 3 of that Act, and SafeWork’s functions are set out at section 152 of the WHS Act.

7. SafeWork’s role in regulating workplace health & safety includes: • protecting workers and other persons against harm to their health,

safety and welfare through controlling risks arising from work or from specified types of substances (such as asbestos)

• encouraging people to take a constructive role in promoting improvements in work health and safety practices,

• promoting the provision of advice, information, education and training in relation to work health and safety to achieve healthier and safer working environments

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• providing a framework for continuous improvement and progressively higher standards of work health and safety,

• monitoring and enforcing compliance with the WHS Act through appropriate compliance and enforcement measures,

• ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act

• conducting and defending proceedings under work health and safety laws.

Importance of asbestos management

8. In 2018, 144 people died as a result of work-related traumatic injuries in Australia. During the same period, 699 people died in Australia as a result of mesothelioma as a result of historical exposure to asbestos.

9. Asbestos health conditions (Asbestosis, Mesothelioma & lung cancer) only

become apparent after a long latency period and Australia has one of the highest measured incidence rates of mesothelioma in the world. The average Australian with Mesothelioma is male, is diagnosed at around 75 years of age, was exposed to asbestos in both occupational and non-occupational settings and lived for around 11 months after diagnosis.

10. The widespread use of asbestos in the past has left a legacy of asbestos containing materials in workplaces, the built environment and land across Australia. While the use of asbestos was banned in 2003, legacy asbestos and asbestos-containing materials still pose a significant health risk if not safely managed and require the dedication of considerable resources to effectively manage.

11. Safe management of asbestos in workplaces is a matter of significant community concern and is a priority area for SafeWork’s regulatory activity and intervention.

SafeWork NSW’s approach to asbestos compliance

12. One of the main objects of the WHS Act is to protect workers and other persons against harm to their health, safety and welfare by eliminating or minimising the risks arising from work. In the case of asbestos, risks can be controlled through effective management, and the adoption of appropriate control measures.

13. Chapter 8 of the Work Health and Safety Regulation 2017 (WHS Regulation) identifies prohibitions around working with asbestos, duties in relation to asbestos, management of asbestos and associated risks, as well as providing for the licencing of asbestos assessors and asbestos removers.

14. Where serious risks to workers and others are identified, or inspectors form a reasonable belief that the WHS Act is being contravened, SafeWork NSW

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Inspectors have powers under Part 10 of the WHS Act to issue notices such as Improvement and Prohibition notices.

15. SafeWork NSW allocates extensive resources to asbestos compliance

monitoring activities including inspections, audits and other verification activities aimed at enhancing asbestos management practices and achieving sustainable compliance with work health and safety requirements.

16. SafeWork NSW regularly receives asbestos incident notifications and requests to respond to asbestos-related issues. These notifications and requests are triaged to determine an appropriate regulatory response. SafeWork then conducts inspections and audits to assess the extent of compliance by duty holders with work health and safety laws, and to secure compliance.

17. SafeWork NSW inspectors address any identified deficiencies by using a

combination of advice and assistance and compliance and enforcement tools, as considered appropriate to the circumstances. Inspections and audits by SafeWork NSW inspectors are a routine feature of both proactive and response work. Also, inspectors issue Improvement and Prohibition Notices under the WHS Regulation to drive continuous improvement in health and safety.

SafeWork’s compliance and enforcement approach

18. SafeWork NSW recognises that every business faces different health and safety risks and has varied capabilities and willingness to comply with WHS obligations. To this end, SafeWork NSW has adopted a graduated approach to compliance and enforcement which takes the level of risk, public interest and due diligence effort into consideration.

19. This graduated approach is depicted in the compliance pyramid contained in both “Our Approach to WHS regulation” and the SafeWork Australia “National Compliance and Enforcement Policy” (annexed at Tab A).

20. The lowest level of the compliance pyramid identified in the Compliance and Enforcement Policy involves an educative approach which is employed most frequently, often in combination with other tools such as Improvement and Prohibition Notices, to build an organisations capability to effectively manage WHS and assist duty holders achieve compliance. Sanctions (such as penalty notices and prosecutions) are at the top of the pyramid and are applied less frequently.

21. This does not mean that SafeWork will always commence with provision of information and advice, and only use other tools in an escalated manner. The compliance pyramid represents, in the general sense, the proportionate use of the combination of tools available to assist duty holders achieve compliance

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and enables the ability to escalate actions if an initial intervention does not achieve the desired outcome.

22. When SafeWork NSW commences its interventions, it uses combinations of these tools that are most appropriate for the particular circumstances. Our approach is aimed at creating an effective mix of positive motivators, compliance monitoring and deterrents to encourage and secure the highest possible levels of compliance with work health and safety laws. In doing this, there is a need to balance a number of considerations, including:

• the need to support workplace parties and stakeholder bodies to build capability to achieve compliance with work health and safety laws, and

• the need to work with industry, workplace parties and stakeholders to continue to promote innovation and continuous improvements in health and safety standards.

• the community’s expectation that businesses and undertakings will be monitored and held accountable if they fail to comply with work health and safety laws, and

• the wider relevance of an event, including matters of significant community concern.

SafeWork’s involvement with BMCC from 2013

23. In 2013-14, SafeWork NSW (then WorkCover) worked in partnership with BMCC and NSW Government departments to assist in managing the asbestos issues that arose from the 2013 Blue Mountains bushfires.

24. SafeWork then worked to introduce the Model Asbestos Policy for Councils as an output of the Heads of Asbestos Coordination Authorities (HACA) through the Office of Local Government. HACA and SafeWork funded an Asbestos Project Officer embedded within LGNSW to assist councils (including BMCC) with developing and implementing their Model asbestos policy. As at 1 September 2020, 106 of 128 NSW Councils have adopted the Model Policy with the other 22 adopting other policies and procedures. BMCC revised their policies in July 2019 and incorporated the OLG Model Asbestos Policy requirements, adopting them on 27 August 2019.

25. In 2015 SafeWork NSW (then WorkCover) commenced a Management of Asbestos in Waste Facilities – Education and Verification Project, with visits initially conducted jointly with the NSW Environmental protection Authority (EPA). Sites were jointly visited by EPA officers and WorkCover Inspectors to inspect the adequacy of systems adopted by waste facilities and landfills to manage asbestos waste in accordance with both, environmental and WHS requirements.

26. The New South Wales (NSW) State Wide Asbestos Plan 2013 outlined the state’s priorities in the area of asbestos and aimed to secure the safe management of asbestos to reduce the incidence of asbestos-related disease. Transport and Disposal of asbestos by licensed waste storage or

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recycling facilities and landfill facilities one of the priorities of this Plan. 14 sites were audited in the first stage of this project.

27. The issue of management of asbestos in waste facilities has been raised on numerous occasions by WorkCover’s stakeholders, in particular Asbestos Removal Contractors Association (ARCA) and the Demolition Contractors Association (DCA) NSW through the Demolition and Asbestos Consultative Committee (DACC).

28. On 13 October 2015 a SafeWork NSW (then WorkCover) Inspector attended the Blaxland Resource Recovery and Waste Management Facility at 28 Attunga Rd Blaxland, an EPA asbestos licensed waste facility. The Inspector issued six improvement notices, having formed the belief that the Asbestos management plan at the workplace was not comprehensive and did not cover unexpected finds; Air monitoring was required; PPE provided was not in accordance with the asbestos management plan; there was a failure to provide adequate training to workers carrying out asbestos related work; HEPA filters were required to be fitted to excavators and that health monitoring of workers was required.

Genesis of SafeWork’s involvement with BMCC from 2017

29. On 7 May 2017, SafeWork NSW received a request for service from an employee of BMCC in relation to an alleged exposure to asbestos by workers. Following site inspections and meetings with BMCC management, a SafeWork NSW Inspector issued an improvement notice to BMCC which required it to develop an Asbestos Management Plan (AMP) within three months. Upon request by the BMCC, an extension was subsequently granted with a new compliance date of 20 October 2017.

30. On 1 August 2017, an Inspector issued 5 Improvement Notices on BMCC in relation to its management of hazardous chemicals and dangerous goods.

31. On 24 October 2017, SafeWork NSW received correspondence from the United Services Union (USU) outlining 166 concerns regarding the management of asbestos at BMCC sites. SafeWork NSW Inspectors undertook a site visit to BMCC to assess compliance with the notice issued in May 2017 requiring it to develop an AMP.

32. During this site visit, SafeWork NSW Inspectors met with relevant parties including BMCC Management, Union Delegates, Health & Safety Representatives and a representative of the USU. The SafeWork NSW Inspectors formed the view that the May 2017 notice had been complied with and SafeWork NSW foreshadowed that it would continue to work with the BMCC and the USU to monitor the implementation of the AMP, with support from the Asbestos and Demolition Team in the Construction and Asbestos Services Directorate in SafeWork NSW.

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33. In November 2017, the USU continued to raise concerns about asbestos management at various BMCC-owned sites. SafeWork’s then Director of Construction and Asbestos Service and the Director of Metropolitan Operations, along with various inspectors, attended meetings with the BMCC and the USU to facilitate a resolution to the complaints made by workers/the USU and the implementation of the AMP.

34. In December 2017, SafeWork NSW Inspectors undertook site inspections of each of the sites outlined in the complaint from the Union and undertook appropriate compliance action where required. SafeWork’s Director, Construction and Asbestos Services also met regularly with senior BMCC Executive to resolve complaints.

35. In December 2017 and January 2018 there was a growing level of public concern and intense media interest being generated about the asbestos related matters involving BMCC, particularly in relation to the potential presence of asbestos in public areas such as preschools and swimming pools.

36. In order to address worker and community concerns, on 6 February 2018 a revisit program (Directed Engagement) was commenced by SafeWork NSW in conjunction with BMCC managers, workers and the USU. The aim of the revisit program was to ensure any outstanding asbestos concerns were addressed and managed.

37. In September 2018, all 30 identified BMCC properties of concern had been reinspected by SafeWork NSW inspectors, who were satisfied that all issues which were raised had now been addressed. The findings of the revisit teams were later confirmed in writing in November 2018 from both BMCC and the USU, effectively concluding the revisit program.

Context of SafeWork’s involvement with BMCC from 2017

38. SafeWork’s extensive involvement with BMCC in 2017 & 2018 in relation to asbestos management is not unique or unusual. It is part of SafeWork’s Directed Engagement strategy.

39. Directed Engagement (DE) is a targeted scalable intervention by SafeWork NSW with a PCBU to improve capability/commitment and secure compliance with WHS legislation. DEs are generally characterised by a sustained program of work by SW NSW and the PCBU to achieve the desired compliance outcomes.

40. Asbestos is an area of significant community concern and SafeWork allocates significant resources for dealing with the associated issues. SafeWork undertakes a range of directed engagement activities with private and public entities. It is part of SafeWork’s proportionate and graduated approach which is heavily educative and designed to improve safety performance and compliance in the targeted areas.

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41. In 2017 -18 SafeWork NSW issued 1,040 asbestos-related Improvement, Prohibition and Penalty Notices across all industries in NSW. 66 were issued to Councils, with the majority being issued to BMCC during the Directed Engagement (the revisit program).

42. Although during this period SafeWork NSW inspectors issued more notices to BMCC than all other NSW councils, this does not mean that the level of BMCC’s compliance was different from that of other councils. A total of 53 Notices were issued for asbestos related issues to BMCC during the period 2017 -2018. The number of Notices is reflective of the duration and extent of the engagement, and the number of inspections undertaken across BMCC controlled assets at 34 different site locations. Annexed at Tab B is a spreadsheet identifying those site locations.

43. The number of notices issued to BMCC indicates that SafeWork NSW inspectors held beliefs that there were risks to workers, or that the WHS Act was being contravened, at a number of BMCC sites.

44. It is not unusual when inspectors issue notices in relation to asbestos at a workplace, that multiple notices are issued. This is because inspectors are required to issue a separate notice for each issue or contravention identified. Accordingly, separate notices may be issued requiring actions such as site or materials assessment, preparation of remediation plans, environmental monitoring, updating asbestos registers or provision of clearance certificates.

45. SafeWork NSW has always found BMCC to co-operate with SafeWork’s compliance activities. Generally, when a notice was issued by an inspector to BMCC, the timeframe for compliance with that notice would have been negotiated with BMCC. BMCC generally complied with notices issued within the timeframe for which they were issued.

46. I am not aware of SafeWork NSW inspectors issuing any penalty notices in relation to BMCC.

BMCC – non-friable (class B) asbestos licence

47. SafeWork NSW granted a non-friable (class B) asbestos removal licence to BMCC in August 2018. Licence conditions were also imposed on the non-friable asbestos removal licence to ensure the Council complies fully with work health safety legislation in relation to the management of asbestos. The licence conditions were reviewed in November 2019 and were extended for a further six months. The licence conditions are due to be reviewed in 2020. SafeWork NSW continues to engage with the Council regarding their work health and safety responsibilities.

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SafeWork’s use of Enforceable Undertakings as a compliance tool

48. Part 11 of the WHS Act permits SafeWork NSW to accept a written enforceable undertaking (EU) given by a person in connection with a matter relating to a contravention or alleged contravention of the WHS Act.

49. An EU is a useful alternative to prosecuting a person for an offence under WHS legislation, however it is not appropriate for an EU to be used in relation to more serious matters. An EU may not be entered into in relation to a Category 1 offence.

50. An EU provides an opportunity for significant work health and safety improvements to be undertaken. The activities associated with an EU are substantial and must aim to deliver tangible benefits to the workplace, industry or the broader community.

Background to BMCC’s EU

51. A complaint was received by SafeWork NSW relating to work conducted between 8 November 2016 and 21 September 2017 at two work sites in Lawson, where approximately 18 workers were engaged in excavating topsoil and substrata and transporting it to another site for screening, sifting and removing debris. During the excavation works, fibre cement material was excavated.

52. After investigating the complaint, SafeWork NSW alleged that Blue Mountains City Council contravened section 425(1), 429(2), 445(1) and 479(1) of the then Work Health and Safety Regulation 2011.

53. Given the nature of the alleged offences, and the actions taken by BMCC in response, SafeWork NSW formed the view that it would be appropriate to accept an enforceable undertaking from BMCC. SafeWork NSW was satisfied that the actions identified in the undertaking were likely to deliver long term sustainable safety improvements in the workplace, industry and community.

54. A copy of the undertaking, which identifies the activities to be performed by BMCC, is annexed at Tab C.

55. The undertaking addresses the requirements contained within the “Enforceable Undertakings – Guidelines for Proposing a WHS Undertaking”, a copy of which is annexed at Tab D.

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56. I am satisfied that BMCC has performed, or is performing, each of the actions

identified by it in the EU. BMCC have been very proactive and consultative in relation to meeting their terms of the EU and ensuring that compliance with the EU remains on track.

Signed

Date 21 September 2020

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Our approach to work health and safetyregulationThe purpose of this document is to explain SafeWork NSW’s approach to workhealth and safety (WHS) regulation and what this means for you and yourbusiness. It explains who we are, what we do and how we do it.

Explaining our approach

As a part of the Better Regulation Division, SafeWork NSW works alongside and incollaboration with other NSW regulators to create a safer and more confident NSWcommunity supported by better regulation.

SafeWork NSW’s vision for WHS in NSW is in line with the Work Health and SafetyRoadmap for NSW 2022 and the Australian Work Health and Safety Strategy 2012-2022.

Download a PDF of this guide

Our vision is healthy, safe and productive working lives.

Who we are and what we do

SafeWork NSW is the state’s WHS regulator. We work with the NSW community toreduce work related fatalities, serious injuries and illnesses and make it easier to dobusiness safely.

Our functions are clearly outlined in section 152 of the NSW Work Health and SafetyAct 2011 (the Act) as follows:

(a) to advise and make recommendations to the Minister and report on the operationand effectiveness of this Act,

(b) to monitor and enforce compliance with this Act,

(c) to provide advice and information on work health and safety to duty holders underthis Act and to the community,

(d) to collect, analyse and publish statistics relating to work health and safety,

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(e) to foster a co-operative, consultative relationship between duty holders and thepersons to whom they owe duties and their representatives in relation to work healthand safety matters,

(f) to promote and support education and training on matters relating to work health andsafety,

(g) to engage in, promote and co-ordinate the sharing of information to achieve theobject of this Act, including the sharing of information with a corresponding regulator,

(h) to conduct and defend proceedings under this Act before a court or tribunal,

(i) any other function conferred on the regulator by this Act.

Why we do it

As the WHS regulator, we want:

workers to be protected against harm to health, safety and welfarefair and effective workplace representation, consultation, co-operation and WHSissue resolutionunions and employer organisations to take a constructive and collaborative role inpromoting WHSadvice, information, education and training to be made availableto secure compliance with and enforce WHS and assist the State InsuranceRegulatory Authority (SIRA) with securing compliance with workers compensationlaws while ensuring our actions are fair and transparentto enable a consistent national approach to WHS with a focus on continuousimprovement and higher WHS standards.

Ultimately we care about the health and safety of people at work in NSW and want tomake it easier for business and workers to comply with their obligations.

How we do it

Our success in working with people to prevent harm or recover from a work-relatedinjury or illness depends on their motivation to take positive action. Before someonecan adopt a positive behaviour, they need to be:

willing to do itcapable of doing it – with the necessary knowledge, resources and skillsconfident that they can do it.

We consider all of these factors when deciding what response or service to provide.

We focus on prevention

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We focus on preventing harm and improving the health and safety landscape in NSWworkplaces. We direct our collective efforts towards those risks with greatest potentialto cause serious harm.

We offer advice, information and education on WHS, and provide licensing andregistration for potentially dangerous work and plant items. We also provide testingservices for chemicals used in workplaces, and electrical and mechanical equipmentused in hazardous areas.

We respond when required

We respond to workplace incidents and requests for service from the NSW community.This includes investigating workplace incidents and taking appropriate enforcementaction, if necessary, to ensure the laws we administer are followed.

We use a triage model based on the level of risk to determine our type of response.

We promote recovery at work

We aim to help reduce the social and economic costs of workplace injuries andillnesses. We do this by working in partnership with SIRA to ensure workerscompensation compliance and to improve recover at work practice.

We secure compliance

We take enforcement action, issuing improvement and prohibition notices andsanctions based on the seriousness of the risk and/or offence and the potential forharm in the workplace.

We use evidence

We make informed decisions based on evidence and continually build insight to help uswork smarter and deliver the best possible outcomes. We use data and businessintelligence for targeted prevention and intervention. We regularly evaluate ourperformance with a view to continually improving what we do and how we do it. Thisalso ensures we avoid adding unnecessary burden to business and that our actions arefocused on reducing the greatest harms.

We focus our efforts

Being evidence-based allows us to make informed decisions about:

Where to focus our efforts to target issues with the greatest risk.How many resources to commitWhat approach to apply to ensure compliance.

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Potential for harm, frequency and cost – we consult and collaborate with ourstakeholders to prevent incidents that have a potentially severe social oreconomic consequence. We promote shared learnings and recognise people whodeliver the right outcomes.High consequence, low frequency – we work to prevent the risk of harm fromhigh-risk hazards that do not occur often, but when they do occur, theconsequences are high.Emerging issues that are new and/or changing, as well as delayed issues – weremain vigilant, focusing on issues as they arise, and recognise that data alonemay not necessarily reveal the potential risk of harm.

Our guiding principles

Responsive

We are committed to working in partnership with the NSW community to providecustomers with quality regulatory services.We recognise that ‘one size doesn’t fit all’ and that not everything is black andwhite.We are flexible and agile in providing the most appropriate services to getthe right outcome.We consider the seriousness of the risk, injury or illness and any breach of laws,and respond proportionately.We recognise effort and willingness to take positive action.

Supportive

We acknowledge the role that others play in preventing workplace harm andfacilitating recovery at work.We support our customers to make sustainable improvements with or without ourinvolvement.We encourage and celebrate innovation and best practice.We know that a collective commitment is the only way to improve NSW’s healthand safety landscape.

Accountable

We are fair and transparent and are happy to explain our actions and decisions –including those to do with enforcement.We provide avenues of complaint and appeal.If we make a mistake, we take ownership, and make it right.

Engaging

We actively seek to engage with our stakeholders, workplaces and workers.4/22

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We listen, encourage input and involvement and aim to develop solutions throughcollaboration.

Customer focused

The customer is at the heart of everything we do.We strive to deliver timely, valuable and consistent services designed to meettheir needs.We seek input from the NSW community and our customers – those seekingregulatory services, advice, support or protection from health and safety harms.Where possible we co-design services and programs with our stakeholders andother regulators to ensure they are tailored to our customers needs.We make it easy for people to do business in NSW.We deliver innovative products and services and continually review those servicesby asking how we can improve things for our customers.

These are the five principles that guide how we work. They provide the basis of whatthe NSW community can expect from us at all times.

Our approach to compliance

We undertake advisory, compliance monitoring and enforcement activities. The type ofinteraction depends on a range of factors. We recognise that every business facesdifferent health and safety risks and has varied capabilities and willingness to complywith their WHS and workers compensation obligations. Our graduated approach tocompliance and enforcement takes the level of risk, public interest and due diligenceeffort into consideration. Our inspectors are guided by Safe Work Australia’s NationalCompliance and Enforcement Policy.

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Our services

We provide a range of services designed to reduce work related fatalities, injuries andillnesses, and to assist injured workers to recover at work as soon as possible.

Assistance services

Call centres

Information Centre: 13 10 50contact@safework.nsw.gov.au

Client service centres

Head officeMetropolitan and regional offices

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Tailored safety advice

Advisory services

Business including small medium enterpriseTechnical and specialist servicesHazard managementSafety coaching

Testing services

TestSafe (Londonderry)Laboratory Services (Thornleigh)

Research services

Research grantsPrivate/public collaboration

Public awareness

Awareness campaignsVideo alertsCo-designed safety campaignsMedia releasesInterviewsArticlesSafety alertsDigital newslettersWebsiteFacebook, Twitter, LinkedIn, YoutubeTalksWorkshopsSeminarsConferencesLive webinarsSecondary, tertiary and vocational education

Consultative mechanisms

Consultative committees and industry/sector/union forumsRegional networksSponsorshipsPartnerships and alliancesIndustry action partnersNational forums

Prevention programs

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Focus on:High risk industriesSignificant harms

Collaborative industry action plansMentoring programSpecific industry/union/ SafeWork NSW harm prevention initiativesNational WHS priorities

Information and advice

Regulatory adviceTechnical adviceStatistical analysis and research findingsGuidance materials and approved codes of practiceActs and regulations

Financial incentives

SponsorshipsSubsidised consultanciesRebatesGrants

Authorisations, verifications and audits

Notification and verification of high risk hazards and activitiesRegistration and verification of high risk plant and activitiesAuthorisation and verification of safety cases (major hazard facilities)Authorisation and verification of third parties (eg assessors)Certification or licensing of high-risk activities and self-insurersThird party audits.

Regulatory response

Request for serviceAdvisory visitsTargeted inspectionsIncident inspectionsCo-design project visitsSerious incident investigationsFatality investigationsImprovement noticesProhibition noticesInvestigation notices

Transparency and accountability

Review of inspector decisionsReview of appealed improvement, prohibition, penalty and workers compensationnotices

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Sanctions

Suspension or cancellation of licences or other authorisationsEnforceable undertakingsCourt ordersCriminal and other proceedingsPenalty notices

Applying our approach

Example 1: Local assistance

Why A couple who run a small business made a phone call to 13 10 50 to ask usfor assistance. They were willing but did not feel knowledgeable enough toimplement changes that would make their business safer.

What One of our inspectors did the following:

visited the workplace and talked through low-cost options to improvesafety complianceprovided a written report and left contact details for future assistancehelped the business apply for a $500 rebate for a table lifter to helpprevent back injuries.

How Each year we interact with over 1.5 million members of the communitythrough workplace visits, emails, calls and by issuing rebates and licences.Many businesses call us for free advice over the phone. We also offer tailoredservices at a time and place chosen by our customers. Our inspector wentinto this couple’s workplace, listened to their issues and provided advice onmatters relevant to them. The inspector provided clear, written confirmation oftheir advice and supported them in obtaining the equipment they needed tomanage their risks.

Example 2: Industry intervention

Why Through our Focus on Industry program, data analysis identified that thesheep and beef cattle farming industry was high-risk.

What We recognised that confidence was a barrier to change. Farmers felt theyhad to accept risk as they were willing but not able to facilitate the safetyoutcomes they wanted. Our integrated project included:

over 900 advisory visitstargeted rebates to reduce high risksa campaign featuring farmers talking to farmers about health andsafety.

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How Rather than applying sanctions to achieve compliance, we encouragedfarmers to talk to other farmers to give real, practical, low-cost advice. Weprovided financial incentives that led to major safety improvements. Weworked closely with stakeholders to explain our involvement and to supporttheir ongoing ownership of agreed issues and we spent $18 million to fund9500 rebates which resulted in $30 million in safety improvements forthousands of businesses.

Example 3: Cross border collaboration

Why In discussions with WorkSafe Victoria, we found that construction businesseson and around our border needed clear and consistent support from the tworegulators to help them reduce harm.

What Addressing potential shortfalls in ability and confidence, our inspectorscollaborated with their Victorian counterparts to visit workplaces aroundMildura and Wentworth. A common checklist helped businesses manage risksassociated with high risk work, correctly use safe work method statements,and prevent falls down stair voids. With industry associations, they also heldnumerous breakfast sessions at major hardware suppliers to engage directlywith our customers.

How We addressed the customers’ need for consistent regulatory advice fromdifferent jurisdictions. We visited workplaces and points of supply to offertailored advice for individual situations. To ensure transparency and helpbusinesses prepare we distributed checklists through major hardware storesin the area prior to visits. We also engaged with and received support fromindustry stakeholders in both states.

Example 4: Small business services

Why Statistics show that small businesses have higher rates of incidents andpoorer recovery at work rates than larger businesses.

What We know that small businesses can be time and resource poor and benefitfrom simple, tailored advice. As part of ongoing service development we:

regularly consulted with small business representativesset up a dedicated small business hotlinedeveloped and market-tested tailored information products andincentivesconnected large business mentors with small business mentees.

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How We put in place mechanisms to co-design services with our stakeholders,and provided a hotline for prompt and individualised customer service. Weare open and transparent when engaging with a reference group, and haveworked with members to increase the capability of their respectivecustomers.

Example 5: Case management

Why Knowledge-sharing with SafeWork South Australia helped us identify the riskof burns from cooking oil in a fast-food chain in NSW.

What In NSW there was a knowledge gap around this issue. Given the size of theworkforce we:

took a case management approachpresented to 70 supervisorsvisited multiple stores in Sydneydeveloped a video safety alert for the industry.

How We listened to our customers to find the most effective way to work with theirbusinesses. Given the large number of workers who could potentially beharmed, we invested resources to address the risk. We made expectationsand solutions clear and followed up with guidance products for the industry.When developing the video we engaged with our South Australiancounterpart, larger businesses, individual stores and industry representatives.We empowered supervisors to take ownership in their own stores.

Example 6: Recovery at work

Why We know from research that the longer a worker is away from work, the lesschance they have of ever recovering and returning to their pre-injury work. Sowhen a worker sought our assistance to return to employment after ashoulder injury, we gave them the support to do so.

What The treating doctor confirmed the worker was fit to return to employmenthowever the employer was concerned the worker would aggravate the injuryif they returned to work too soon. We visited the workplace, discussed return-to-work options with the employer, and provided advice about a return-to-work program that would help the business.

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How Working with SIRA, we talked to the employer about the benefits of injuredworkers recovering at work. We recommended they seek support via theirinsurer from a rehabilitation provider who could help them identify suitableduties and develop a return-to-work plan for the injured worker. We gave theemployer SIRA fact sheets and guides to help them understand their recoverat work and work health and safety responsibilities.

Example 7: Medium rise construction

Why The Commerce Regulation Program seeks to reform regulatory activities andrequirements in order to increase customer experience and confidence. Ajoint regulatory approach - in this case SafeWork NSW and NSW FairTrading - provides better customer experiences, strengthens business’scapability to comply with their obligations and makes it easier for businessesto maintain strong workplace safety and public safety protections.

What We undertook joint site visits of targeted businesses during construction ofmedium rise residential buildings. We assessed the business’s compliancewith obligations under both the work health and safety laws and the HomeBuilding laws. They provided information and demonstrated where workplaceand public safety protections could be improved.

How We provided a better customer experience through the joint initiative and anopportunity for businesses to ask questions of both agencies at the one time.Our feedback was positive and we will be looking for further opportunities towork together.

Example 8: Request for service

Why We know that assessing risk and tailoring our response to the nature of therisk so that it is appropriate and proportionate is important when trying toprevent harm and empower businesses. A young worker from amanufacturing business called 13 10 50 to lodge a request for service as hewas experiencing a lack of support from his company in regards to electricalleads not being tested and tagged.

What First we assessed the request to determine how we should respond. We tooka number of factors into account, such as whether it was under ourjurisdiction, the relevant legislation, level of risk and potential harm and howwe might help the business achieve compliance.

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How In this case we took an administrative response and sent a letter to thebusiness. Our data shows that an administrative response usually has thedesired effect: 80 per cent of response letters are actioned appropriatelybefore an inspector makes a site visit. When the inspector did the follow upsite visit, they found that the business had indeed improved their testing andtagging system after receiving the letter.

Example 9: An improvement notice

Why We can’t be everywhere, so we often rely on the community to help usidentify potentially harmful workplaces. A local resident living beside aresidential construction site notified us of a potentially dangerous situation ifchildren were to access the site.

What An inspection of the site confirmed there were safety issues with theboundary fence which was incomplete. However, no immediate risk toanyone’s health and safety was present at the time of inspection. We issuedthe business an improvement notice to rectify the fence and discussedoptions to consider site security and prevent unauthorised access. We alsogave them some relevant guidance material, including a copy of the housingindustry site safety pack.

How In order to respond we took into consideration that the business had made aneffort to erect a boundary fence as well as their previous health and safetyrecord. We accepted the explanation that they were unaware of the gaps atthe back of the boundary and were assured they would rectify the problemwithin the agreed time. In the circumstances, an improvement notice wasappropriate.

Example 10: A prohibition notice

Why Our data and research show that construction sites are high risk, falls fromheight are serious and all too frequent, and small businesses are time poor.When an anonymous caller notified us of dangerous work on a constructionsite, where two workers were observed working at height on unsafescaffolding, we responded with the potential for harm front of mind.

What A makeshift scaffold was being used to apply cladding to the house andpresented an immediate risk to health and safety. We directed the workers tostop using the makeshift scaffolding and issued a prohibition notice. Wetalked to the business owner to provide advice and discussed options to finda safer way to do the job. We gave them some guidance on how to preventthe situation happening again, as well as some material on how to developsafe work method statements and the safe use of modular scaffolding.

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How We identified that the makeshift scaffold presented an immediate risk tohealth and safety. Before preparing and issuing a written notice, we gave aninstant, verbal instruction to stop using it. We then talked to the business andprovided information on alternative safe systems of work. In this case, aprohibition notice was the most effective way to ensure the risk waseliminated.

Example 11: Enforceable undertaking

Why Data informs us that being trapped by moving machinery is a major cause ofworkplace injury. When we were notified that a worker’s arm was caught in amachine he was repairing, we investigated why the business had notprovided the necessary safety controls.

What The business accepted their responsibility for what had happened and,triggered by the incident, showed a willingness to help improve health andsafety in their workplace and the broader community. The employersubmitted a proposal to enter into an enforceable undertaking (EU), includingto:

develop an internal due diligence guideproduce a case study on the incident to share with the industryfund a regional television advertising campaign on chemical safety inthe agricultural industry.

We accepted their proposal for an enforceable undertaking rather thanproceed with prosecution. An EU is a high level sanction which is legallybinding and may be used as an alternative to prosecution in the event of analleged contravention of the WHS Act.

How We had early and open discussions about the offence and our options fortaking action. We considered what outcome was going to benefit thecommunity most, before accepting the EU. We supported the business todevelop its proposal and were clear and transparent in our dealings withthem, including signing a written agreement for the enforceable undertaking.

Example 12: A prosecution

Why Serious injuries and deaths from contact with overhead power lines haveincreased recently in a trend that causes great concern. We were notified of aworker suffering a serious injury while installing scaffolding near power lines.

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What The risk was foreseeable and control measures were not in place. Followinginvestigation we prosecuted the company. Since the incident the company:

has put controls in place to prevent a recurrencepleaded guilty and were finedcontinue to cooperate with us.

How We considered the risk of harm in this workplace and in other businesses, thedefendant’s past compliance history and the benefit to the community of adeterrent prosecution. We engaged with parties affected by the incident itself.We looked at the severity of the offence and kept the company informed ofour processes and decisions throughout. We then supported the company insignificantly improving their controls and reducing the future potential forharm.

Applying our approachExample 1: Local assistance

Why

A couple who run a small business made a phone call to 13 10 50 to ask us forassistance. They were willing but did not feel knowledgeable enough to implementchanges that would make their business safer.

What

One of our inspectors did the following:

visited the workplace and talked through low-cost options to improve safetycomplianceprovided a written report and left contact details for future assistancehelped the business apply for a $500 rebate for a table lifter to help prevent backinjuries.

How

Each year we interact with over 1.5 million members of the community throughworkplace visits, emails, calls and by issuing rebates and licences. Many businessescall us for free advice over the phone. We also offer tailored services at a time andplace chosen by our customers. Our inspector went into this couple’s workplace,listened to their issues and provided advice on matters relevant to them. The inspectorprovided clear, written confirmation of their advice and supported them in obtaining theequipment they needed to manage their risks.

Example 2: Industry intervention

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Through our Focus on Industry program, data analysis identified that the sheep andbeef cattle farming industry was high-risk.

What

We recognised that confidence was a barrier to change. Farmers felt they had toaccept risk as they were willing but not able to facilitate the safety outcomes theywanted. Our integrated project included:

over 900 advisory visitstargeted rebates to reduce high risksa campaign featuring farmers talking to farmers about health and safety.

How

Rather than applying sanctions to achieve compliance, we encouraged farmers to talkto other farmers to give real, practical, low-cost advice. We provided financial incentivesthat led to major safety improvements. We worked closely with stakeholders to explainour involvement and to support their ongoing ownership of agreed issues and we spent$18 million to fund 9500 rebates which resulted in $30 million in safety improvementsforthousands of businesses.

Example 3: Cross border collaboration

Why

In discussions with WorkSafe Victoria, we found that construction businesses on andaround our border needed clear and consistent support from the two regulators to helpthem reduce harm.

What

Addressing potential shortfalls in ability and confidence, our inspectors collaboratedwith their Victorian counterparts to visit workplaces around Mildura and Wentworth. Acommon checklist helped businesses manage risks associated with high risk work,correctly use safe work method statements, and prevent falls down stair voids. Withindustry associations, they also held numerous breakfast sessions at major hardwaresuppliers to engage directly with our customers.

How

We addressed the customers’ need for consistent regulatory advice from differentjurisdictions. We visited workplaces and points of supply to offer tailored advice forindividual situations. To ensure transparency and help businesses prepare wedistributed checklists through major hardware stores in the area prior to visits. We alsoengaged with and received support from industry stakeholders in both states.

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Example 4: Small business services

Why

Statistics show that small businesses have higher rates of incidents and poorerrecovery at work rates than larger businesses.

What

We know that small businesses can be time and resource poor and benefit from simple,tailored advice. As part of ongoing service development we:

regularly consulted with small business representativesset up a dedicated small business hotlinedeveloped and market-tested tailored information products and incentivesconnected large business mentors with small business mentees.

How

We put in place mechanisms to co-design services with our stakeholders, and provideda hotline for prompt and individualised customer service. We are open and transparentwhen engaging with a reference group, and have worked with members to increase thecapability of their respective customers.

Example 5: Case management

Why

Knowledge-sharing with SafeWork South Australia helped us identify the risk of burnsfrom cooking oil in a fast-food chain in NSW.

What

In NSW there was a knowledge gap around this issue. Given the size of the workforcewe:

took a case management approachpresented to 70 supervisorsvisited multiple stores in Sydneydeveloped a video safety alert for the industry.

How

We listened to our customers to find the most effective way to work with theirbusinesses. Given the large number of workers who could potentially be harmed, weinvested resources to address the risk. We made expectations and solutions clear andfollowed up with guidance products for the industry. When developing the video we

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engaged with our South Australian counterpart, larger businesses, individual stores andindustry representatives. We empowered supervisors to take ownership in their ownstores.

Example 6: Recovery at work

Why

We know from research that the longer a worker is away from work, the less chancethey have of ever recovering and returning to their pre-injury work. So when a workersought our assistance to return to employment after a shoulder injury, we gave themthe support to do so.

What

The treating doctor confirmed the worker was fit to return to employment however theemployer was concerned the worker would aggravate the injury if they returned to worktoo soon. We visited the workplace, discussed return-to-work options with theemployer, and provided advice about a return-to-work program that would help thebusiness.

How

Working with SIRA, we talked to the employer about the benefits of injured workersrecovering at work. We recommended they seek support via their insurer from arehabilitation provider who could help them identify suitable duties and develop areturn-to-work plan for the injured worker. We gave the employer SIRA fact sheets andguides to help them understand their recover at work and work health and safetyresponsibilities.

Example 7: Medium rise construction

Why

The Commerce Regulation Program seeks to reform regulatory activities andrequirements in order to increase customer experience and confidence. A jointregulatory approach - in this case SafeWork NSW and NSW Fair Trading - providesbetter customer experiences, strengthens business’s capability to comply with theirobligations and makes it easier for businesses to maintain strong workplace safety andpublic safety protections.

What

We undertook joint site visits of targeted businesses during construction of medium riseresidential buildings. We assessed the business’s compliance with obligations underboth the work health and safety laws and the Home Building laws. They providedinformation and demonstrated where workplace and public safety protections could beimproved.

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How

We provided a better customer experience through the joint initiative and an opportunityfor businesses to ask questions of both agencies at the one time. Our feedback waspositive and we will be looking for further opportunities to work together.

Example 8: Request for service

Why

We know that assessing risk and tailoring our response to the nature of the risk so thatit is appropriate and proportionate is important when trying to prevent harm andempower businesses. A young worker from a manufacturing business called 13 10 50to lodge a request for service as he was experiencing a lack of support from hiscompany in regards to electrical leads not being tested and tagged.

What

First we assessed the request to determine how we should respond. We took a numberof factors into account, such as whether it was under our jurisdiction, the relevantlegislation, level of risk and potential harm and how we might help the business achievecompliance.

How

In this case we took an administrative response and sent a letter to the business. Ourdata shows that an administrative response usually has the desired effect: 80 per centof response letters are actioned appropriately before an inspector makes a site visit.When the inspector did the follow up site visit, they found that the business had indeedimproved their testing and tagging system after receiving the letter.

Example 9: An improvement notice

Why

We can’t be everywhere, so we often rely on the community to help us identifypotentially harmful workplaces. A local resident living beside a residential constructionsite notified us of a potentially dangerous situation if children were to access the site.

What

An inspection of the site confirmed there were safety issues with the boundary fencewhich was incomplete. However, no immediate risk to anyone’s health and safety waspresent at the time of inspection. We issued the business an improvement notice torectify the fence and discussed options to consider site security and preventunauthorised access. We also gave them some relevant guidance material, including acopy of the housing industry site safety pack.

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How

In order to respond we took into consideration that the business had made an effort toerect a boundary fence as well as their previous health and safety record. We acceptedthe explanation that they were unaware of the gaps at the back of the boundary andwere assured they would rectify the problem within the agreed time. In thecircumstances, an improvement notice was appropriate.

Example 10: A prohibition notice

Why

Our data and research show that construction sites are high risk, falls from height areserious and all too frequent, and small businesses are time poor. When an anonymouscaller notified us of dangerous work on a construction site, where two workers wereobserved working at height on unsafe scaffolding, we responded with the potential forharm front of mind.

What

A makeshift scaffold was being used to apply cladding to the house and presented animmediate risk to health and safety. We directed the workers to stop using themakeshift scaffolding and issued a prohibition notice. We talked to the business ownerto provide advice and discussed options to find a safer way to do the job. We gavethem some guidance on how to prevent the situation happening again, as well as somematerial on how to develop safe work method statements and the safe use of modularscaffolding.

How

We identified that the makeshift scaffold presented an immediate risk to health andsafety. Before preparing and issuing a written notice, we gave an instant, verbalinstruction to stop using it. We then talked to the business and provided information onalternative safe systems of work. In this case, a prohibition notice was the mosteffective way to ensure the risk was eliminated.

Example 11: Enforceable undertaking

Why

Data informs us that being trapped by moving machinery is a major cause of workplaceinjury. When we were notified that a worker’s arm was caught in a machine he wasrepairing, we investigated why the business had not provided the necessary safetycontrols.

What

The business accepted their responsibility for what had happened and, triggered by the

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incident, showed a willingness to help improve health and safety in their workplace andthe broader community. The employer submitted a proposal to enter into anenforceable undertaking (EU), including to:

develop an internal due diligence guideproduce a case study on the incident to share with the industryfund a regional television advertising campaign on chemical safety in theagricultural industry.

We accepted their proposal for an enforceable undertaking rather than proceed withprosecution. An EU is a high level sanction which is legally binding and may be used asan alternative to prosecution in the event of an alleged contravention of the WHS Act.

How

We had early and open discussions about the offence and our options for taking action.We considered what outcome was going to benefit the community most, beforeaccepting the EU. We supported the business to develop its proposal and were clearand transparent in our dealings with them, including signing a written agreement for theenforceable undertaking.

Example 12: A prosecution

Why

Serious injuries and deaths from contact with overhead power lines have increasedrecently in a trend that causes great concern. We were notified of a worker suffering aserious injury while installing scaffolding near power lines.

What

The risk was foreseeable and control measures were not in place. Followinginvestigation we prosecuted the company. Since the incident the company:

has put controls in place to prevent a recurrencepleaded guilty and were finedcontinue to cooperate with us.

How

We considered the risk of harm in this workplace and in other businesses, thedefendant’s past compliance history and the benefit to the community of a deterrentprosecution. We engaged with parties affected by the incident itself. We looked at theseverity of the offence and kept the company informed of our processes and decisionsthroughout. We then supported the company in significantly improving their controlsand reducing the future potential for harm.

https://www.safework.nsw.gov.au/resource-library/our-approach-to-work-health-and-safety-regulation21/22

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06-07-20Except where otherwise noted, content on this site is licensed under a Creative Commons Attribution 4.0 International License.To view a copy of this licence, visit: https://creativecommons.org/licenses/by/4.0/

Except where otherwise noted, content on this site is licensed under a Creative Commons Attribution 4.0 International License. To view a copy of thislicence, visit: https://creativecommons.org/licenses/by/4.0/

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NATIONAL COMPLIANCE AND ENFORCEMENT POLICY 1. Introduction The Commonwealth, state and territory governments have agreed to harmonised work health and safety laws to improve work health and safety, provide consistent protection for Australian workers and reduce the regulatory burden. To fully realise the benefits of harmonised work health and safety laws, the governments have recognised the need for harmonised work health and safety laws to be complemented by a nationally consistent approach to compliance and enforcement1

.

This policy sets out the principles endorsed by the Workplace Relations Ministers’ Council that underpin the approach work health and safety regulators (the regulators) will take to monitoring and enforcing compliance with the Work Health and Safety Act and Regulations. It operates alongside other nationally agreed policies and procedures governing the use of specific regulatory tools, or policies that may be specific to each regulator where they relate to the regulator’s interface with the criminal justice system in their jurisdiction. This policy is available on the website of each work health and safety regulator and Safe Work Australia. Safe Work Australia is an Australian Government statutory agency with responsibility for improving work health and safety and workers’ compensation arrangements across Australia. The Agency is jointly funded by the Commonwealth, state and territory governments facilitated through an Intergovernmental Agreement signed in July 2008. The Agency is not a regulator and does not administer the work health and safety laws for any Australian jurisdiction. Safe Work Australia’s role includes developing policy dealing with compliance and enforcement of the model work health and safety laws and to ensure that a nationally consistent approach is taken by work health and safety regulators in each jurisdiction. 2. Aims of Compliance and Enforcement All Australian jurisdictions are committed to the prevention of workplace deaths, injuries and illness.

In realising this objective, work health and safety laws provide regulators with a range of functions including: • providing advice and information to duty holders and the community • monitoring and enforcing compliance with work health and safety laws • fostering co-operative, consultative relationships between duty holders and the persons to

whom they owe duties and their representatives • sharing information with other regulators, and • conducting and defending proceedings under work health and safety laws.

1 Inter-Governmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety made on 3 July 2008.

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The regulators seek to use an effective mix of positive motivators, compliance monitoring and deterrents to encourage and secure the highest possible levels of compliance with work health and safety laws. In doing so, there is a need to balance a number of considerations, including: • the community’s expectation that businesses and undertakings will be monitored and held

accountable if they fail to comply with work health and safety laws • the need to support workplace parties and stakeholder bodies to build capability to achieve

compliance with work health and safety laws, and • the need to work with industry, workplace parties and stakeholders to continue to promote

innovation and continuous improvements in health and safety standards. The positive motivators employed by the regulators include: • communicating with, engaging and supporting stakeholders • providing practical and constructive advice, information, and education about rights, duties

and responsibilities • fostering cooperative and consultative relationships between persons conducting businesses

or undertakings, their workers, health and safety representatives, unions and employer organisations

• supporting and involving workplace parties in the provision and promotion of education and

training, and • providing support to health and safety representatives and entry permit holders to assist them

in performing their functions and exercise their legislative powers. Compliance monitoring activities may include inspections, audits and other verification activities with the aim of enhancing work health and safety management practices and achieving sustainable compliance with work health and safety laws. The regulators will address any identified deficiencies by using compliance and enforcement tools outlined in this policy, as considered appropriate to the circumstances. There are a number of ways in which non-compliance is deterred by the regulators. These include: • detecting and dealing with alleged breaches of the work health and safety laws • undertaking inspections, audits and investigations of alleged breaches of work health and

safety laws • taking appropriate enforcement action in response to breaches • seeking appropriate sentencing outcomes in prosecutions, and

• publishing information regarding the nature and outcome of compliance and enforcement

activities.

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3. Key Principles The following principles underpin all work health and safety compliance and enforcement activities: Consistency Regulators endeavour to ensure that similar circumstances at

workplaces lead to similar approaches being taken, providing greater protection and certainty in workplace and industry.

Constructiveness Regulators provide support, advice and guidance to assist compliance with work health and safety laws and build capability.

Transparency Regulators demonstrate impartiality, balance and integrity.

Accountability Regulators are willing to explain their decisions and make available avenues of complaint or appeal.

Proportionality Compliance and enforcement responses are proportionate to the seriousness of the conduct.

Responsiveness Compliance and enforcement measures are responsive to the particular circumstances of the duty holder or workplace.

Targeted Activities are focussed on the areas of assessed highest risk or the work health and safety regulators’ strategic enforcement priorities.

4. Strategic enforcement priorities The regulators set strategic priorities for their compliance and enforcement activities which are determined both nationally and locally. To ensure consistency, responsiveness and the efficient use of resources, the regulators work collaboratively. This includes the sharing of information and intelligence, sharing tools and strategic initiatives and working together to develop and implement national campaigns. Campaigns may be implemented by collaborative efforts, for example through a coordinated national effort, or may be implemented by each jurisdiction locally. Through sharing intelligence and participation in national campaigns, the regulators seek to: • ensure that regulators maintain a nationally consistent approach to compliance and

enforcement • ensure that emerging national issues are dealt with appropriately, and • address the compliance and regulatory burdens for persons conducting businesses or

undertakings across more than one jurisdiction.

5. Monitoring and compliance The regulators monitor compliance with work health and safety laws in a number of ways, such as through the use of inspection powers and carrying out of audits.

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The regulators also receive incident notifications and requests to respond to work health and safety issues. These notifications and requests are triaged to determine an appropriate regulatory response. The regulators also share information with each other and gather/use data and other information to target particular industries, workplaces or workplace parties for proactive compliance reviews. These proactive activities are conducted in line with the activities of assessed highest risk and the strategic enforcement priorities (see above). Prior to determining whether to take any action in relation to a possible breach, regulators undertake inquiries to determine whether a breach has occurred and gather information that may assist in preventing future breaches. Inspectors appointed by the regulators attend workplaces and other sites to conduct inspections and audits. The aim of inspections and audits is to assess the extent of compliance by duty holders with work health and safety laws, and to support compliance. Inspections and audits are a feature of both planned (targeted) and response work. Inspectors have significant powers under work health and safety laws including: • requiring answers to questions

• requiring production of documents

• seizing items for use as evidence of an offence

• issuing of improvement and prohibition notices Investigations are undertaken for a range of reasons, such as to determine the causes of an incident, to assess compliance with work health and safety laws, to determine what action may be needed to prevent a further occurrence, and to determine what action may be appropriate to enforce compliance with work health and safety laws. Lessons learnt from investigations also inform development of work health and safety guidance and policy, and may inform future changes to work health and safety laws.

Consistent with the principles of proportionality and responsiveness, resources available for investigation of incidents are devoted to the most serious cases. It is not possible for work health and safety regulators to investigate all issues of non-compliance with the law which are uncovered in the course of an inspection, or in response to a complaint. The regulators will generally carry out a full investigation of a work-related death, unless there are compelling reasons for not doing so. In determining which complaints or reports of incidents, injury or disease to investigate and in deciding the level of resources to be deployed, the regulators take account of the following factors: • the severity and scale of potential or actual harm • the seriousness of any potential breach of the law

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• the duty holder’s compliance history, including such matters as prior convictions and notices issued

• whether the duty holder was licensed or authorised to undertake certain types work • strategic enforcement priorities • the practicality of achieving results, and • the wider relevance of the event, including matters of significant community concern.

The following circumstances or allegations are priority areas for investigations: • work-related fatalities and serious injuries or where there is a risk of such outcomes • non-compliance with inspectors’ notices or directions • offences against inspectors • offences against health and safety representatives and matters relating to entry permit holders • discrimination against workers on the basis of their work health and safety activities, and • failure to notify incidents. The regulators may conduct investigations in conjunction with other relevant agencies (e.g. police, environmental protection agencies and electrical safety agencies). In such cases, a regulator may be a lead or support agency. 6. Compliance and enforcement tools Where an inspection or investigation reveals evidence of an alleged breach, the regulators will consider what enforcement action, if any, should be taken. Health and safety risks can emerge over time and the regulators may develop new tools to respond to those risks. A number of measures are available to regulators to compel a duty holder to remedy any identified contravention and to sanction a contravening duty holder. These measures may be used alone or in combination. The regulators determine the most appropriate tool to be used depending on all the circumstances of a breach. The tools that are available to the work health and safety regulators include: • giving advice on compliance and seeking voluntary compliance • resolving or assisting parties resolve certain work health and safety disputes

• issuing a prohibition notice • issuing an improvement notice • seeking an injunction

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• issuing an infringement notice • accepting an enforceable undertaking • commencing a civil or criminal prosecution • revoking, suspending or cancelling authorisations, and • publishing enforcement actions and outcomes. The following diagram represents, in the general sense, the relative volume or proportionate use of these tools and the ability to escalate if an initial intervention does not achieve the desired outcome. The lowest level of the pyramid involves an approach which is employed most frequently, often in combination with other tools, to assist duty holders achieve compliance. Sanctions (such as criminal penalties) are at the top of the pyramid and are applied less frequently. This does not mean that regulators will always commence with provision of information and advice, and only use other tools in an escalated manner. Regulators will commence their intervention using the tools that are most appropriate in the particular circumstances. Some tools, as indicated in this policy, are alternatives while others may be used in combination. Using a range of tools in the lower levels of the pyramid may often achieve compliance without needing to escalate to the more serious levels of sanctions.

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7. Criteria which guide enforcement decision-making In deciding on the most appropriate action to take, the regulators are guided by the following considerations: • the adverse effect, that is the extent of the risk, the seriousness of the breach and the actual

or potential consequences • the culpability of the duty holder, that is, how far below acceptable standards the conduct falls

and the extent to which the duty holder contributed to the risk • the compliance history and attitude of the duty holder

• if it is a repeat offence or there is a likelihood of the offence being repeated • whether the duty holder was authorised to undertake certain types of work; • impact of enforcement on encouragement or deterrence • any mitigating or aggravating circumstances, including efforts undertaken by the duty holder

to control risks • whether the risk to health and safety is imminent or immediate, and • whether the safety issue can be rectified in the presence of an inspector or the inspector is

satisfied with a plan to remedy the breach. Work health and safety laws impose duties on all workplace parties and these responsibilities co-exist and overlap. When determining whether to take action and against whom to take such action, the regulators consider all relevant duty holders and whether they have discharged their obligations. In addition to these general criteria which guide decision-making, the remainder of this policy elaborates on the specific criteria which guide regulators in the use of each compliance tool. 8. Advice or guidance Advice and guidance aims to raise workplace parties’ awareness of their rights and obligations and help duty holders know how to comply with work health and safety laws and build their capability to address work health and safety issues and achieve compliance. Having provided the duty holder with advice or guidance as to how compliance may be achieved, if satisfied that a person has taken timely and satisfactory steps to remedy a breach at the time of detection or through agreed action, the regulator may decide to take no further action. Advice and guidance can also be provided to support the use of other compliance and enforcement tools, such as improvement and prohibition notices. 9. Improvement or prohibition notices Inspectors have the power to issue improvement and prohibition notices. The aim of issuing improvement and prohibition notices is to ensure that non-compliance with work health and safety laws and serious risks is remedied.

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Inspectors may issue an improvement notice in any circumstance where they form a reasonable belief regarding a contravention unless some other appropriate action is considered by the inspector to achieve the desired outcome.

Where there is a serious risk which emanates from an immediate or imminent exposure to a hazard, an inspector will issue a prohibition notice, which is a direction to prohibit an activity until the inspector is satisfied that the risk has been remedied. The direction may be given orally, but must be confirmed by written notice. Where there is a failure to comply with an inspector’s notice, the regulator may prosecute or, if there is a serious risk to health and safety, may also seek an injunction against the person to whom the notice was directed. Improvement and prohibition notices are ‘remedial’ enforcement measures, not ‘punitive’ measures (i.e. they are not punishment). This means that in cases where punishment is warranted, other measures such as an infringement notice or prosecution may also be taken in addition to notices issued by an inspector. 10. Injunctions Injunctions may be sought by regulators to compel a person to comply with an inspector’s improvement, prohibition or non disturbance notice. Injunctions are used when there is a serious risk to health and safety which has not been remedied by the person to whom the notice has been issued and other mechanisms available to the regulator have not resulted in compliance being secured. Injunctions are likely to be sought when there are exceptional, pressing or urgent circumstances (for example, where the breach involves a significant risk to public safety). 11. Infringement notices Infringement notices are a mechanism for regulators and inspectors to impose an immediate form of punishment for certain types of breaches, sending a clear and timely message that there are consequences for non-compliance. Infringement notices will generally be issued where there is some punishment warranted for the breach but the nature of the breach is not serious enough to warrant prosecution. Infringement notices are only available for certain types of offences where: • the offence involves a contravention of a more minor nature • a prosecution of the offence would not give rise to a right to trial by jury, and • there is prima facie evidence that an offence has been committed. Factors which are considered relevant to the exercise of discretion to issue an infringement notice are:

• the seriousness of the risk

• the extent of any injury

• the frequency of similar conduct by the duty holder

• the prevalence of the offence in the jurisdiction and industry impact

• the duty holder’s safety and compliance history

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• the duty holder’s co-operation and willingness to address the issue

• whether the subject matter of the offence is part of a priority intervention or campaign

• the attempts by the person to control the risk associated with the alleged contravention

• prior notice of the risk (e.g. direct to the duty holder or through educational material, safety alerts, guidance sheets etc)

• whether the circumstances warrant the application of a sanction at a lesser scale than an enforceable undertaking or prosecution (possibly in addition to remedial action in the form of an improvement or prohibition notice), and

• any mitigating or aggravating circumstances.

When exercising discretion to issue an infringement notice to a worker, the regulator or inspector will always consider whether the person conducting the business or undertaking’s obligations to the worker and others have been met. A failure to make a payment that is required under an infringement notice may result in proceedings being brought. 12. Civil proceedings – breaches of right of entry powers Civil proceedings may be brought by a regulator in relation to conduct breaching provisions relating to work health and safety entry permit holders – whether by entry permit holders or by those who owe duties to them. Although not constituting a criminal offence, a regulator may seek a monetary penalty against a permit holder or other person who fails to act in accordance with the law. 13. Enforceable undertakings An enforceable undertaking is a legally binding agreement entered into as an alternative to having the matter decided through legal proceedings for a contravention of the Act. An enforceable undertaking provides an opportunity for significant work health and safety reform to be undertaken. Typically, the activities associated with an undertaking are substantial and must aim to deliver tangible benefits to the workplace, industry or the broader community. The availability of an enforceable undertaking in connection with a contravention will involve consideration of a number of factors, including: • the nature and extent of the contravention

• the quality of the remedial action proposed and the extent to which it achieves measurable

improvements in workplace safety

• the likelihood that the enforceable undertaking will deliver real benefits to the workplace, industry or community beyond that which would normally be expected of a duty holder.

An enforceable undertaking will generally not be accepted where the offence relates to reckless conduct or where an infringement notice has been issued for the contravention. 14. Prosecutions Prosecutions may be brought in relation to alleged breaches of offence provisions in work health and safety laws.

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The question of whether to bring a prosecution for a breach of work health and safety laws is a significant one as the effect on those impacted by the decision (the defendant, worker or family of a deceased worker for instance) will be considerable. The regulators operate within a broader prosecutorial framework as part of the criminal justice system that requires the highest standard of integrity to be applied to prosecutorial decision making. Each regulator applies the Director of Public Prosecution (DPP) guidelines specific to its jurisdiction. However the Australian DPPs have agreed upon a common set of principles to be used in determining the question as to whether or not a prosecution should be commenced or, if commenced, should be permitted to proceed. Although in some jurisdictions these criteria are expressed in different language, they do not differ in substance. In determining whether or not to prosecute, three criteria common to all jurisdictions in the DPP guidelines need to be met. They are as follows: • the existence of a prima facie case, that is, whether the evidence is sufficient to justify the

institution of proceedings • a reasonable prospect of conviction, that is, an evaluation of the likely strength of the case

when it is presented in court (taking into account such matters as the availability, competence and credibility of witnesses and their likely impression on the court or tribunal that will determine the matter, the admissibility of any confession or other evidence, and any lines of defence available to the defendant)

• a public interest test which may include the following considerations:

a) the seriousness or, conversely, the triviality of the alleged offence or whether it is only of a technical nature

b) any mitigating or aggravating circumstances c) the characteristics of the duty holder—any special infirmities, prior compliance history

and background d) the age of the alleged offence e) the degree of culpability of the alleged offender f) whether the prosecution would be perceived as counter-productive , that is, by bringing

the law into disrepute g) the efficacy of any alternatives to prosecution h) the prevalence of the alleged offence and the need for deterrence, both specific and

general, and i) whether the alleged offence is of considerable public concern.

In relation to work health and safety offences, the time for the regulator to bring charges against a person is limited. Proceedings for a criminal offence under work health and safety laws may be brought within the latest of the following: • within two years after the offence first comes to the regulator’s attention

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• within one year after a coronial report was made or a coronial inquiry or inquest ended, if it

appeared from the report or the proceedings at the inquiry or inquest that an offence had been committed against this Actd

• within six months of a contravention of an enforceable undertaking, or • if an offence relates to reckless conduct that creates a risk of death or serious injury/illness, at

any time thereafter if fresh evidence is discovered. Proceedings for a contravention of a civil penalty provision2

may be brought within two years after the regulator first becomes aware of the contravention.

15. Revoking, suspending or cancelling authorisations The regulators authorise certain people to undertake certain types of work and organisations to conduct certain types of undertakings. For example, work involving the removal of dangerous substances such as asbestos and to operate major hazard facilities. Regulators may decide to revoke, suspend or cancel a person’s authorisation given in order to deal with inappropriate conduct or practices identified during inspection work or as a result of information received. Such action is a protective measure and may be undertaken even where steps have been taken to remedy a contravention or where an offender has otherwise been punished (ie. fined). The regulators recognise that the revocation, suspension or cancellation of authorisations may have serious consequences for a person. When making decisions about authorisations, the regulators balance these considerations with the paramount need to protect the health and safety of workers and other persons. In making a decision whether or not to issue or renew an authorisation, the regulators will consider the person’s history of compliance. 16. Publishing enforcement actions and outcomes Regulators publicise information about their enforcement actions in order to raise awareness of work health and safety laws and the consequences of non-compliance, thereby deterring people from engaging in similar conduct and promoting better practices. Examples of the ways regulators may publicise information about enforcement actions are: • summarising cases on their websites • speaking to the media and sending press releases about a case • using a case as a teaching tool at seminars, conferences and in materials distributed to

various groups • using information about a case in the regulators’ publications, and • using information from a case to gather and publish data and statistics. At any stage of an inspection, audit, investigation or prosecution, regulators may disclose information about a case for the purposes of preventing similar offences from occurring.

2 Under work health and safety laws, civil penalties only apply to a failure to comply with obligations towards and of work health and safety entry permit holders.

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The regulators may also disclose information about a case to the public at any time where they consider that it is necessary to quell speculation or to correct or forestall inaccurate media reports. In the case of enforceable undertakings, regulators are required to publish a notice of a decision to accept an undertaking and the reasons for that decision. At all times, regulators aim to be accurate, impartial, balanced and fair in the way in which they communicate about investigations, inspections, audits and enforcement actions. 17. Notification of enforcement decisions When a regulator makes a decision regarding whether to initiate a prosecution or enforceable undertaking following an investigation, the regulator may notify the following parties of the decision: • the alleged offender • the person who raised the matter with the regulator or their representative • the person who was injured or exposed to risk, and • the family members of a person who has died as a result of an alleged breach. Inspectors may also provide information about their workplace inspections and any actions taken to relevant workplace parties. 18. Challenging decisions Work health and safety laws provide that certain persons can seek internal and/or external review of certain types of decisions that are made by inspectors and the regulators. The range of decisions for which a review can be sought are listed in the model WHS Act and regulations. In relation to prosecutions, if a regulator has not brought a prosecution within six months of the date of an alleged Category 1 or 2 offence (but not later than 12 months after the date of the alleged offence), a person can request that the regulator bring a prosecution. Following a request to bring a prosecution the regulator must (within three months) advise whether the investigation has been completed, and if so, whether or not a prosecution will be brought or give reasons why a prosecution will not be brought. 19. Other persons who can exercise work health and safety powers It is also important to note that elected health and safety representatives have functions and powers under work health and safety laws, including powers to take certain actions. Union officials who hold work health and safety entry permits have powers of entry into workplaces and other powers in relation to suspected work health and safety breaches. The authorising authority that issues the work health and safety entry permits also has certain powers to resolve a dispute about right of entry and to revoke entry permits. 20. More information about compliance and enforcement In addition to this policy, regulators each publish further details about their compliance and enforcement programs, which can be found at each regulator’s website. 21. Periodic review

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The implementation of this policy will be reviewed by Safe Work Australia following the first anniversary of the commencement of model work health and safety laws. This policy will also be reviewed together with the five year review of the content and operation of the work health and safety legislation.

Australian work heath and safety regulators:

Comcare Safework SA

WorkCover NSW Workplace Health and Safety Queensland

WorkSafe ACT WorkSafe Victoria

NT WorkSafe WorkSafe Western Australia

Workplace Standards Tasmania

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Enforceable undertakings guidelinesThese guidelines set out the approach SafeWork NSW takes to considering anoffer of an EU from a person who has allegedly committed an offence against theAct.

SafeWork NSW is the state’s work health and safety regulator. We work with the NSWcommunity to reduce work related fatalities, serious injuries and illnesses and make iteasier to do business safely.

At SafeWork NSW, we aim to make sure our regulatory approaches promote acompetitive, confident and protected NSW. See Our approach to work health and safetyregulation. In realising this objective, the work health and safety laws provide SafeWorkNSW with a range of functions including monitoring and enforcing compliance with thelaw.

SafeWork NSW secures compliance by taking enforcement action, issuing improvementand prohibition notices and sanctions based on the seriousness of the risk and/oroffence and the potential for harm in the workplace .

A contravention of the NSW Work Health and Safety Act 2011 (the Act) is serious.Failing to protect workers and others who may be affected by that work is a criminaloffence which in some instances may warrant prosecution in a court of law. A courtimposed sanction or a prosecution is one enforcement option. An enforceableundertaking (EU) is an alternative enforcement option to a prosecution.

Scope

These guidelines set out the approach SafeWork NSW takes to considering an offer ofan EU from a person who has allegedly committed an offence against the Act.

One of the objects of the Act is securing compliance with the Act through effective andappropriate compliance and enforcement measures .

According to the Act, SafeWork NSW, as the regulator, may accept a writtenundertaking (an EU) given by a person in connection with a matter relating to acontravention or alleged contravention by the person of the Act. An EU cannot beaccepted for a contravention or alleged contravention that is a Category 1 offence.Please refer to the section ‘when will an EU not be accepted?’ for further information.

These guidelines explain the principles SafeWork NSW applies to the use of EUs as anenforcement measure.

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What is an EU?

An EU is a legally binding agreement entered into as an alternative to having the matterdecided through legal proceedings for an alleged contravention of the Act. An EUprovides an opportunity for significant work health and safety reform to be undertaken .

An EU is a high level sanction used where the alleged contravention is of a seriousnature. It is a written promise made by the person to undertake certain activities within aparticular timeframe.

Typically, the activities required under an EU are substantial and will include specificinitiatives to be undertaken by the person that will deliver positive safety benefits to theworkplace as well as benefits which extend to the industry and community. The effortand commitment required of a person in delivering the initiatives within an EU tocompletion are significant in terms of cost and resources.

After considering the merits of an EU proposed by a person, SafeWork NSW mayaccept the EU as an alternative to prosecuting the person for the alleged contravention.

Why an EU and not a prosecution?

SafeWork NSW follows the graduated approach to compliance and enforcementadopted by most work health and safety regulators throughout Australia . While everyeffort is made to support the competitiveness and confidence of business throughinformation and advisory services, SafeWork NSW will enforce compliance with workhealth and safety laws as appropriate to the relevant circumstances.

Where a breach of work health and safety laws is of a serious nature, the enforcementresponse may involve a high level sanction. High level sanctions include court imposedpenalties obtained via a prosecution of the alleged contravention in a court of law.

SafeWork NSW may accept an EU as an alternative to a prosecution if appropriategiven the circumstances, and if it is likely to deliver superior work health and safetyoutcomes to a court sanction.

In some instances, an EU may be a preferred approach to a prosecution because it isexpected to achieve outcomes that cannot generally be achieved by the order of acourt. The range of actions available through an EU can provide a more systematic andenduring response, tailored to the nature of the non-compliance with broader benefitsfor the industry and community. In particular, an EU can be used as an incentive toimprove health and safety rather than as a punishment for having failed to comply withwork health and safety laws.

A person is already required by law to meet their statutory work health and safetyobligations. An EU is intended to achieve work health and safety outcomes in theaffected workplace and beyond to the relevant industry and our community thatstrengthens compliance and/or builds sustainable performance.

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An EU does not constitute an admission of guilt by the person providing it in relation tothe alleged contravention. Court proceedings cannot be brought against a person forthe alleged contravention to which an EU relates while the EU is in effect and is beingcomplied with.

Who can accept or reject an EU?

The decision to accept or reject an EU is made by SafeWork NSW.

When can an EU be proposed?

Generally, SafeWork NSW will consider interest in an EU after charges have been laidand proceedings have commenced against the person in respect of an allegedcontravention.

When will an EU not be accepted?

The Act prohibits the acceptance of an EU for a Category 1 offence. A Category 1offence is one where a person, without reasonable excuse, engages in conduct thatexposes an individual to a risk of fatal or serious injury or illness and the person isreckless to that risk.

There are some situations where an EU may not be accepted as an appropriateenforcement outcome. For example, the alleged contravention may be of such a seriousnature that a prosecution is warranted and SafeWork NSW will seek a court imposedsanction. Please refer to the section, ‘What determines whether an EU will beaccepted?’ for further information.

What determines whether an EU will be accepted?

SafeWork NSW will generally consider an EU as an alternative to a prosecution if doingso is in the public interest and the person proposing the EU is able to demonstrate thatthe EU will deliver tangible work health and safety benefits to the workplace, industryand community. SafeWork NSW Prosecution Guidelines sets out the criteria appliedwhen considering the public interest. The assessment by SafeWork NSW of a proposedEU will involve two stages of consideration; an ‘eligibility’ assessment followed by an‘evaluation’ assessment.

1. Eligibility – The first stage is initiated from an expression of interest by theperson to SafeWork NSW about the possibility of an EU. It involves considerationas to whether an EU may be an appropriate enforcement measure, taking intoaccount the circumstances of a particular incident and the compliance history ofthe person.

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2. Evaluation – The second stage is initiated when SafeWork NSW determines thatan EU may be a viable option after assessing the person’s eligibility. The personsubmits a written EU proposal to SafeWork NSW and the merit of the proposal isthen considered.

Stage 1: consideration applicable to 'eligibility'

In assessing whether a matter may be determined as eligible for an EU, SafeWorkNSW will consider the following factors:

1. the level of alleged culpability of the person;2. the degree of risk arising from the alleged breach; and3. the person’s history of compliance with the Act.

These factors are taken into account as part of the public interest test in accordancewith SafeWork NSW Prosecution Guidelines. The guidelines note that public interest isthe paramount concern to be taken into account in the decision to prosecute . Thepublic interest test always informs SafeWork NSW’s approach to breaches of workhealth and safety laws.

However, the factors listed above will be specifically reconsidered in the context of anexpression of interest by a person, to determine if an EU is an appropriate enforcementmeasure. The relative weight given to each factor will depend on the particularcircumstances of the alleged contravention and the compliance history of the person.

Should SafeWork NSW determine that a person is not eligible for an EU, the person willbe provided a reasonable opportunity to address the reasons prior to a final decision bySafeWork NSW.

Culpability

Culpability refers to the extent to which the person may be held responsible for theincident and the nature of the alleged misconduct which gave rise to the allegedcontravention.

Consideration of culpability will involve an examination of the work health and safetymanagement practices of the person, including what they knew or what they shouldhave reasonably known about the hazards present in the workplace and what they didor should have reasonably done to eliminate or minimise the risk arising from thosehazards. This involves an objective assessment of what action, or failure to act by theperson, is considered to have contributed to the incident.

Risk

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Work health and safety legislation is risk based legislation, aimed at preventingexposure to the risk of harm . For this reason, it is the seriousness of the risk arisingfrom the alleged breach rather than the consequence of the breach that will beconsidered. However, a fatality or a serious injury may provide a clear indication of afailure to control risks and will be given significant attention in deciding whether an EUis an appropriate enforcement measure. Assessment of the seriousness of the riskarising from the alleged contravention will usually involve consideration of the followingfactors:

1. the number of people put at risk;2. how long the risk existed;3. the degree of consultation that occurred within the workplace, leading up to the

alleged contravention; and4. the actual or potential consequences of the risk created by the alleged

contravention.

The views of the injured worker and/or family are important. Those views can shedsome light on the extent to which workers were exposed to the risk of harm and theeffectiveness of measures to control those risks. Accordingly, the views of the injuredworker and/or family will be considered as part of the overall assessment of risk.

History of compliance

History of compliance refers to the consideration of any evidence of prior non-compliances with work health and safety obligations, whether the person was notified oftheir obligations by SafeWork NSW, and the behaviour of the person in response toprevious enforcement and prevention action.

The compliance history of the person will be assessed against a background ofseriousness and/or relevance of the compliance history to the alleged contraventionwhen deciding whether an EU may be an appropriate enforcement measure.

If there is a history of non-compliance and the person has previously shown insufficientregard for compliance with work health and safety laws, this behaviour may lessen thelikelihood of an EU being considered an appropriate enforcement measure bySafeWork NSW.

An EU will generally not be appropriate where any of the following circumstances exist:

The person has more than two prior convictions or findings of guilt against theAct, arising from separate investigations unless the last prior matter concludedmore than five years prior to the alleged contravention that is the subject of theproposed EU; or

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if the person has a prior conviction or finding of guilt against the Act which wasconnected to the fatal injury of a person, whether or not the prior matter is said tohave directly caused the fatal injury, unless the prior matter was more than fiveyears prior to the alleged contravention that is the subject of the proposed EU.If SafeWork NSW decides that an EU is potentially appropriate following anassessment for eligibility, the second stage is where the merits of a proposed EUare considered.

At this stage, the person prepares and submits a written EU proposal. Theproposal should include essential details of both a procedural and substantivenature. The content of the proposed EU will be evaluated against a backdrop ofwork health and safety outcomes that are required from the EU.

Given that consideration of culpability, risk and compliance history has previouslybeen undertaken, the proposal will be assessed by SafeWork NSW withconsideration to the following factors:

Stage 2: consideration applicable to 'evaluation'

the degree to which the EU strengthens compliance and/or builds sustainableperformance, beyond the person’s obligations to comply with the Act;whether the EU offers long term, sustainable, measurable and tangible workhealth and safety benefits to:

1) the workplace;2) the industry; and

3) the community

the extent that the strategies proposed link to the alleged contravention and thework health and safety duties of the person;the person’s conduct in respect of mitigation and remedial action regarding boththe alleged contravention and any person effected by the alleged contravention;support provided to the injured person(s) or proposed to be provided to the injuredperson(s) to overcome the injury/illness and recover at work;whether the person is likely to comply with the EU; andany other matter that SafeWork NSW considers relevant to the merit of andcompliance with the EU.

Preparing an EU

To allow for the timely development and effective monitoring of an EU, the proposal willneed contain certain information and a number of mandatory terms. The followingdiagram outlines what is typically included in an EU proposal .8

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The proposal will be considered by SafeWork NSW, subject to it containing all relevantprocedural information and sufficient detail in relation to proposed strategies, actions,milestones, costs and other information as requested.

Prosecution proceedings may be adjourned to enable consideration of an EU. If an EUis rejected, then the prosecution proceedings will be resumed.

The EU evaluation decision by SafeWork NSW

Should SafeWork NSW intend to reject a proposed EU, the person will be provided areasonable opportunity to address the reasons prior to a final decision by SafeWorkNSW.

Should an EU be rejected by SafeWork NSW, the person will be provided with writtenreasons.

Should an EU be accepted by SafeWork NSW, it will be published on the SafeWorkNSW website. SafeWork NSW will provide reasons for acceptance of an EU on itswebsite.

Breaches of accepted EUs

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Once an EU is accepted, it is legally binding. A breach of an EU involves failure tocomply with the terms of the EU. As an EU is enforceable by the court, a breach mayresult in significant penalties including:

a direction to comply with the EU;discharge of the EU;monetary fines;court costs;SafeWork NSW costs in monitoring compliance with the enforceable undertakingin the future; and/orcommencement of proceedings for the original alleged contravention.

Further information

For further information, please contact the EU Advisory Service on 13 10 50.

Download a PDF of these guidelines

1. SafeWork NSW, Our Approach to Work Health and Safety Regulation.2. Work Health and Safety Act 2011, Section 3(1)(e).3. National Compliance and Enforcement Policy, Section 13.4. National Compliance and Enforcement Policy, Section 6.5. Work Health and Safety Act 2011, Section 216(2).6. SafeWork NSW Prosecution Guidelines 2017, Section 3.5.7. Work Health and Safety Act 2011, Section 3(1)(a).8. SafeWork NSW, Enforceable Undertakings Customer Service Standard

https://www.safework.nsw.gov.au/resource-library/enforceable-undertakings/enforceable-undertakings-guidelinesExcept where otherwise noted, content on this site is licensed under a Creative Commons Attribution 4.0 International License. To view acopy of this licence, visit: https://creativecommons.org/licenses/by/4.0/

Except where otherwise noted, content on this site is licensed under a Creative Commons Attribution 4.0 International License. To view a copy of thislicence, visit: https://creativecommons.org/licenses/by/4.0/

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