Last month WorkSafe entered into an Enforceable Undertaking Agreement with St Kentigern College, following an incident at the school's 2016 production of Sweeney Todd where two students had their throats cut with a razor during a performance.

The Enforceable Undertaking Agreement is the first time WorkSafe has used this new enforcement tool, which was introduced as part of the Health and Safety at Work Act 2015.

An Enforceable Undertaking is an alternative to prosecution. It allows a duty-holder who is potentially in breach of their health and safety obligations to avoid prosecution by entering into a binding agreement with WorkSafe to take certain remedial actions. These remedial actions are likely to have a wider community or industry focus and must take into account the needs of the victim. As such, the actions required by an Enforceable Undertaking go beyond mere compliance with the duty-holder's own health and safety obligations.

Under its Enforceable Undertaking Agreement St Kentigern College must: 

  • Undertake a restorative justice process in respect of the victims,
  • Provide financial reparation to the victims,
  • Issue a public statement regarding the incident,
  • Spend a minimum $77,500 developing health and safety guidance for the school and the performing arts faculty, and
  • Share its learnings with the wider education sector through health and safety workshops. 

Any duty-holder under investigation may make a request to WorkSafe to consider an Enforceable Undertaking as an alternative to prosecution. If WorkSafe accepts an Enforceable Undertaking it cannot bring legal proceedings in relation to the breach or alleged breach.

Our team of health and safety specialists continually monitor developments in this area. We expect Enforceable Undertakings will become an important tool for any business potentially facing prosecution by WorkSafe for an alleged health and safety breach.

If you need advice around your health and safety obligations, or have had an incident and need legal assistance with the WorkSafe investigation process, please contact one of our team