Today’s question is about how long undertakings, given to resolve a matter under the Occupational Health and Safety Act 2004 (Vic) (‘OHS Act’) apply. The context relates to the prosecution of Victoria SES following the death of a volunteer in 2007 and whether any undertakings given then are still enforceable. 

With respect to the prosecution see:

I note that my correspondent says undertakings were given. The WorkSafe Victoria website says ‘Enforceable Undertakings made pursuant to section 16 of the Occupational Health and Safety Act 2004 from 2007 onwards are also published to this database’ but I cannot find any record of any undertaking given by Victoria SES. Even so we can proceed on the assumption that there were undertakings to at explore the question of how long they are enforceable.

The OHS Act s 16(1) says:

The Authority may accept (by written notice) a written undertaking given by a person in connection with a matter relating to a contravention or alleged contravention by the person of this Act or the regulations.

Contravention of the undertaking is an offence punishable with a maximum fine of 2500 penalty units for a body corporate such as Victoria SES.   A penalty unit is currently $203.51 (https://www.justice.vic.gov.au/justice-system/fines-and-penalties/penalties-and-values) so the maximum fine is 2500 x $203.51 = $508,775.00.

Neither the Act nor the Occupational Health and Safety Regulations 2017 (Vic) say how long an undertaking is to remain in force, but they cannot remain in perpetuity as they may cease to be relevant or cease to represent best practice in a given context. 

The WorkSafe Policy on Enforceable Undertakings (v 3, 23 January 2018) says that when proposing an undertaking, the applicant should ensure that ‘The EU [Enforceable Undertaking] has an end date or period within which the undertakings must be completed’ (p. 5, [10.2.4]). Looking at examples of enforceable undertakings published on the WorkSafe website they all have a fixed time for compliance.

Conclusion

There is not statutory limit on the period during which enforceable undertakings remain in force and can be enforced. But good practice and WorkSafe Victoria policy requires that the undertaking is time limited so that everyone can see whether there has been compliance. They do not run forever. What follows is that to know how long an undertaken remains in force, one has to look at the terms of the undertaking when it was given.  

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.