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CASE STUDY: Enforceable Undertakings in lieu of Prosecution


The NSW SafeWork Regulator has recently accepted several substantial proposed undertakings by a commercial company following an injury on site, in lieu of prosecuting the company.

During September 2019 a commercial construction company (‘the Builder’) received notice from SafeWork NSW alleging that it failed to discharge its obligations as a person conducting a business or undertaking (PCBU) under sections 19(1) and 20(2) in contravention of section 32 of the WHS Act in that it did not ensure, so far as reasonably practicable, the health and safety of workers.

This notice followed an incident on site in which two 10-inch 200mm diameter steel fire sprinkler pipes fell from the side of a B-double trailer during a subcontractor’s unloading process and struck the delivery driver (Worker), causing him to collapse backwards onto the ground with the pipes landing on the Worker’s legs (Incident). The injury was ultimately fatal to the worker.

The WHS Act provides that a company can propose certain undertakings to correct its conduct that the Regulator may accept in lieu of prosecution in the event that the alleged contraventions are not classified as Category 1 offences, being gross negligence of reckless conduct offences.

The Builder acknowledged SafeWork’s allegations and proposed undertakings equal to $1.7 million, including developing a process for collecting worker insights on safety, and implemented more than $1.6 million worth of additional health and safety rectifications.

Why is this important:

Members are reminded that they are required to ensure the safety of all employees and others on site. Should an incident occur on site there may be alternatives available when being accused of WHS contraventions, in lieu of prosecution.

In this case study the Builder acknowledged the accusations made against it rather than entering a denial. The undertakings were consequently accepted by SafeWork. Members are cautioned that any undertakings made, once accepted, are enforceable and should not be made lightly.

If you need assistance on applicable workplace laws to your business, please contact our Workplace Relations and Legal Team on (02) 6175 5900.