Duncan Cotterill advises on the first enforceable undertaking under the new health and safety law

Friday, May 19, 2017

Duncan Cotterill was proud to be involved in securing the first enforceable undertaking under the new Health and Safety at Work Act 2015 (HSWA), reinforcing our position as market leaders in this field.

In April 2016, shortly after the HSWA came into force, there was an incident at an Auckland school in which two students were injured during a school production.

In a recent press release, WorkSafe said that their investigation found that the school breached the HSWA by failing to ensure, so far as was reasonably practicable, that the health and safety of students was not put at risk from work carried out as part of the business or undertaking.

Choosing not to prosecute the school, WorkSafe instead used its new alternative: an enforceable undertaking. WorkSafe said that “the decision to accept an enforceable undertaking was appropriate as this was a serious but isolated incident”.

An enforceable undertaking is a legally binding agreement between WorkSafe and the duty holder, which in the case of a school is the Board of Trustees, or other similar Board. The purpose of the enforceable undertaking is to focus the duty holder on various tasks that they need to carry out to fix an alleged breach, and/or to prevent a similar breach occurring in the future.

WorkSafe has the right to decide whether or not to accept an enforceable undertaking, and if they do, the wording of the enforceable undertaking will be negotiated between WorkSafe and the duty holder. The factors that WorkSafe will consider include:

  • The nature of the contravention, including the seriousness and potential degree of harm;
  • The views of any victim of the breach;
  • The views of the workers and their representatives;
  • The duty holder’s conduct in respect of mitigation and remedial action; and
  • The duty holder’s past performance and history of compliance with health and safety legislation.

Any proposed undertaking needs to provide for a significant improvement to the duty holder’s activities. It will not be sufficient to enter into an enforceable undertaking that only goes so far as compliance with the current legal requirements, it must improve the duty holder’s practices beyond the minimum level. The aim is to deliver real benefits to the workplace, industry or community beyond that achieved through other enforcement methods. 

Additionally, the person proposing the enforceable undertaking needs to acknowledge the harm that has occurred and its impact; however, the giving of an enforceable undertaking does not constitute an admission of guilt by the person giving it.

All enforceable undertakings accepted by WorkSafe are required by the HSWA to be published on the internet, together with the reasons for accepting the undertaking. 

A duty holder who is contemplating discussing an enforceable undertaking with WorkSafe should be sure that they can and will comply with the undertaking before reaching an agreement. The breach of an enforceable undertaking is a stand-alone offence under the HSWA, with fines of up to $50,000 for an individual or $250,000 for a company.

For more information, please contact a member of our Health and Safety team.


Disclaimer: the content of this update is not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.

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