Enforceable Undertaking Vs Prosecution
As a safety consultant, I have seen the devastating impact that serious workplace incidents can have on businesses and their workers. When an incident occurs, businesses are faced with the difficult decision of whether to accept a prosecution or negotiate an enforceable undertaking (EU) with the relevant safety regulator. While both options have their advantages and disadvantages, I strongly believe that electing an EU over a prosecution can be a more beneficial and effective approach for Australian businesses.
An enforceable undertaking is a legally binding agreement between a business and the safety regulator, which outlines the actions the business will take to improve safety and prevent future incidents. In contrast, a prosecution is a legal process in which a business is charged with a safety breach and faces potential fines and penalties.
Here are some reasons why Australian businesses should consider electing an enforceable undertaking over a prosecution in the event of a serious workplace incident:
- Cost
One of the most significant advantages of an enforceable undertaking is that it can be significantly less costly than a prosecution. Fines and legal fees associated with a prosecution can quickly add up, and the financial burden can be challenging for businesses to bear. In contrast, an enforceable undertaking may require a financial contribution, but it is typically less than the cost of a prosecution.
- Reputation
A business’s reputation is a valuable asset that can be difficult to restore once it has been damaged. If a business is prosecuted, it can create negative publicity and damage the company’s brand, potentially leading to a loss of customers and revenue. On the other hand, an enforceable undertaking can demonstrate a business’s commitment to safety and its willingness to take responsibility for the incident. This can help to rebuild trust and maintain the business’s reputation.
- Control
When a business elects an enforceable undertaking, it retains control over the actions it will take to improve safety and prevent future incidents. This allows the business to develop a tailored approach that aligns with its values and culture. In contrast, a prosecution requires the business to follow a set of rules and regulations dictated by the legal system, which may not align with the business’s goals or values.
- Positive outcomes
Finally, an enforceable undertaking can lead to positive outcomes beyond the safety improvements required in the agreement. For example, businesses may develop stronger relationships with the safety regulator and other stakeholders, leading to increased collaboration and knowledge sharing. The process of developing an enforceable undertaking can also lead to a deeper understanding of safety risks and opportunities for improvement, which can benefit the business in the long term.
While both options have their advantages and disadvantages, I believe that electing an enforceable undertaking over a prosecution can be a more beneficial and effective approach for Australian businesses. An enforceable undertaking can be less costly, protect a business’s reputation, allow for greater control over safety improvements, and lead to positive outcomes beyond the safety improvements required in the agreement. As a safety consultant, I urge all Australian businesses to consider electing an enforceable undertaking as a proactive approach to safety and incident management. If your business has experienced an incident serious enough to warrant prosecution, talk with QSE Consultants about how we can help your business negotiate an enforceable undertaking with the regulator.