CSIRO’s Enforceable Undertaking

Comcare have accepted CSIRO’s enforceable undertaking (the Undertaking) made in response to a serious work, health, and safety (WHS) incident which occurred in mid-2017 (the Incident). The Incident itself involved the ignition of hydrogen gas at CSIRO premises in Clayton, Victoria, which resulted in an explosion, injuries to a worker, and extensive damage of a CSIRO laboratory.

Shortly after the Incident, Comcare charged CSIRO with four offences for failing to comply with its duty under section 19(1) of the Work, Health and Safety Act 2011 (Cth) (WHS Act). This section stipulates that “persons conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of workers” while the workers are at work in the business or undertaking. Any failure to comply with section 19(1) of the WHS Act in situations where workers are exposed to risks of serious injury or death may result in a fine of up to $1,500,000 for a corporation.

Instead, however, Comcare has accepted the Undertaking offered by CSIRO and dropped the criminal charges. The Undertaking commits CSIRO to remedying the alleged WHS Act breaches by implementing WHS improvements, which is far a more attractive alternative to litigation for all involved. Further, Comcare stated that since the Undertaking’s deliverables are likely to achieve long-term sustainable safety improvements in high-risk CSIRO workplaces, it was acceptable to the regulator.

The Undertaking commits CSIRO to fulfilling specific actions for the purpose of improving WHS standards in high-risk CSIRO work environments across Australia. The Undertaking includes deliverables such as the development of a virtual and augmented reality training program as a means of detecting safety risks in CSIRO laboratories, which will also be made publicly available. Additionally, the Undertaking includes rigorous upgrades of current project management systems to include health and safety risk management, and improved technical guidance for hazard detection with respect to new CSIRO projects and equipment. The deliverables contained in the Undertaking are to be carried out over the next 18 months and will involve a total expenditure of approximately $1,412,000.

Clients may rest assured that there are alternative options following an alleged breach under the WHS Act, such as the creation of and commitment to an enforceable undertaking. Enforceable undertakings, such as CSIRO’s Undertaking, are a positive option as they provide an opportunity for employers to review, rectify and improve existing WHS control measures without facing prosecution for the alleged contraventions. It must be noted however that it is up to the discretion of WHS regulators such as Comcare as to whether they may accept proposed enforceable WHS undertakings in response to WHS breaches.

If you have any questions or would like further information about options available to avoid WHS litigation, including giving enforceable undertakings under the WHS Act, please contact Nick StevensLuke Maroney or Daphne Klianis.

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