Contents (2011 - 10)
Work Health and Safety Act 2011 No 10
Part 11 Enforceable undertakings
216 Regulator may accept WHS undertakings
(1) The regulator may accept a written undertaking (a WHS undertaking) given by a person in connection with a matter relating to a contravention or alleged contravention by the person of this Act.Note.Section 230 (4) requires the regulator to publish guidelines in relation to the acceptance of WHS undertakings.(2) A WHS undertaking cannot be accepted for a contravention or alleged contravention that is a Category 1 offence.(3) The giving of a WHS undertaking does not constitute an admission of guilt by the person giving it in relation to the contravention or alleged contravention to which the undertaking relates.
217 Notice of decision and reasons for decision
(1) The regulator must give the person seeking to make a WHS undertaking written notice of the regulator’s decision to accept or reject the WHS undertaking and of the reasons for the decision.(2) The regulator must publish, on the regulator’s website, notice of a decision to accept a WHS undertaking and the reasons for that decision.
218 When a WHS undertaking is enforceable
A WHS undertaking takes effect and becomes enforceable when the regulator’s decision to accept the undertaking is given to the person who made the undertaking or at any later date specified by the regulator.
219 Compliance with WHS undertaking
A person must not contravene a WHS undertaking made by that person that is in effect.Maximum penalty:(a) in the case of an individual—$50,000, or(b) in the case of a body corporate—$250,000.
220 Contravention of WHS undertaking
(1) The regulator may apply to the District Court for an order if a person contravenes a WHS undertaking.(2) If the Court is satisfied that the person who made the WHS undertaking has contravened the undertaking, the Court, in addition to the imposition of any penalty, may make one or both of the following orders:(a) an order directing the person to comply with the undertaking,(b) an order discharging the undertaking.(3) In addition to the orders referred to in subsection (2), the Court may make any other order that the Court considers appropriate in the circumstances, including orders directing the person to pay to the State:(a) the costs of the proceedings, and(b) the reasonable costs of the regulator in monitoring compliance with the WHS undertaking in the future.(4) Nothing in this section prevents proceedings being brought for the contravention or alleged contravention of this Act to which the WHS undertaking relates.Note.Section 222 specifies circumstances affecting proceedings for a contravention for which a WHS undertaking has been given.
221 Withdrawal or variation of WHS undertaking
(1) A person who has made a WHS undertaking may at any time, with the written agreement of the regulator:(a) withdraw the undertaking, or(b) vary the undertaking.(2) However, the provisions of the undertaking cannot be varied to provide for a different alleged contravention of the Act.(3) The regulator must publish, on the regulator’s website, notice of the withdrawal or variation of a WHS undertaking.
222 Proceeding for alleged contravention
(1) Subject to this section, no proceedings for a contravention or alleged contravention of this Act may be brought against a person if a WHS undertaking is in effect in relation to that contravention.(2) No proceedings may be brought for a contravention or alleged contravention of this Act against a person who has made a WHS undertaking in relation to that contravention and has completely discharged the WHS undertaking.(3) The regulator may accept a WHS undertaking in relation to a contravention or alleged contravention before proceedings in relation to that contravention have been finalised.(4) If the regulator accepts a WHS undertaking before the proceedings are finalised, the regulator must take all reasonable steps to have the proceedings discontinued as soon as possible.