A significant form of enforcing work health and safety compliance is provided under Pt 11 of the Model Work Health and Safety Act (the Model Act), this being the giving of regulator-sanctioned enforceable undertakings.

Enforceable undertakings are made to the regulator voluntarily — a person cannot be compelled to make an undertaking and the regulator has discretion as to whether or not to accept the undertaking. They can be given in relation to any breach or alleged breach of the Model Act, except in relation to a Category 1 offence. However, an enforceable undertaking does not amount to an admission of guilt.

The regulator must give written notice of its decision to accept or reject an undertaking, along with reasons for that decision. Furthermore, if it accepts the undertaking, the regulator must publish the reasons on its website.

An undertaking becomes enforceable when the regulator’s decision to accept it is given to the person, or at any later date specified by the regulator. Once “in effect”, it is an offence to contravene an undertaking, with maximum penalties of $50,000 (for an individual) and $250,000 (for a body corporate). The regulator may also apply for various court orders in relation to a contravention of an enforceable undertaking.

With the regulator’s consent, an enforceable undertaking can be withdrawn or varied.

A person cannot be prosecuted for an offence to which an enforceable undertaking relates while the undertaking is “in effect” or after the undertaking has been completely discharged. If proceedings have been commenced but not finalised, the regulator can still accept an enforceable undertaking, but must take all reasonable steps to have the proceedings discontinued as soon as possible.

There are substantial benefits to a person proposing an enforceable undertaking: it avoids (or ends) prosecution, and the conditions of any undertaking will involve improvement to work health and safety at the person's workplace. However, the activities associated with an enforceable undertaking can be onerous, on-going and expensive, and the enforceable undertaking will invariably be advertised. As such, care should be taken before making a decision to offer an undertaking. There are now a number of examples of enforceable undertakings, and these confirm that the monetary cost of complying with the undertaking will often exceed the potential penalty had the employer been prosecuted for the breach.

See Enforceable undertakings.