WHS enforceable undertaking checker

Choose your jurisdiction and the alleged offence to see whether the regulator can accept an enforceable undertaking instead of prosecuting, what an accepted undertaking does, and what regulators look for.

Figures checked 5 November 2026. Free to use, no sign-in.

Victoria and Western Australia have their own Acts; the tool switches to them.

Use the charge or the regulator’s letter. If it isn’t clear yet, choose “Not sure yet”.

Enforceable undertaking

Can an undertaking be accepted?

Depends on the charge

An undertaking can be considered for most WHS contraventions, but not for a Category 1 offence or industrial manslaughter. Check the charge or the alleged contravention with your lawyer. (s 216(2) of the Work Health and Safety Act 2011 (NSW))

What an accepted undertaking does

  • An undertaking is not an admission of guilt (s 216(3)).
  • SafeWork NSW must give written reasons and publish an accepted undertaking on its website (s 217).
  • While it is in force, and once it is completely discharged, you can’t be prosecuted for the same contravention. If proceedings have started, the regulator must take reasonable steps to have them discontinued (s 222).
  • It can only be withdrawn or varied with the regulator’s written agreement (s 221). Breaching it is an offence and the regulator can seek court orders (ss 219–220).

What regulators weigh (SafeWork NSW’s published factors, as an example)

  • How culpable you were: what you knew or should have known, and what you did about the risk.
  • How serious the risk was: people exposed, how long, consultation about it, and actual or potential consequences.
  • Your compliance history: prior convictions, notices and incidents.
  • Your attitude and commitment: response to the incident, support for the injured worker or family, and how you engage with the regulator.
  • The views of the injured worker or the family of a worker who died.

What a proposal includes (SafeWork NSW template content)

  • Details of the alleged contravention, and an acknowledgement that the regulator has alleged it.
  • Details of the consultation with workers, health and safety representatives and unions while developing it.
  • A statement of regret and an assurance about future WHS behaviour.
  • Strategies with tangible, long-term, measurable WHS outcomes, including ones that go beyond what the law already requires.
  • Actions, milestones and costs in enough detail to assess, with a commitment to take part in compliance monitoring.
  • Agreement to the undertaking being published.

Timing in NSW

SafeWork NSW generally considers an undertaking after proceedings have started, and asks for applications within 12 weeks of service of the brief of evidence.

  • Acceptance is always at SafeWork NSW’s discretion and follows its published guidelines.
  • Get legal advice before proposing an undertaking: the timing and content matter.

General information, not legal advice.

How this works

Part 11 of the WHS Act lets the regulator accept a written undertaking about a contravention or alleged contravention (s 216), but not for a Category 1 offence or industrial manslaughter (s 216(2); in the Northern Territory the manslaughter exclusion is in s 34C). Queensland’s s 216(2) also excludes a Category 2 offence that resulted in a death. Victoria is handled under ss 16 and 17 of the OHS Act 2004.

“Not sure yet” never returns “not available”. The factors and proposal contents shown are from SafeWork NSW’s published guidelines, as an example; each regulator publishes its own.

Legal basis

Checked against these sources on 5 November 2026. Spotted a figure that looks wrong? Tell us.

Questions

What is a WHS enforceable undertaking?

A written, legally binding promise to the regulator to carry out specific safety improvements, accepted instead of a prosecution for an alleged contravention. While it is in force, and once it is completed, you can’t be prosecuted for the same contravention.

When can’t an undertaking be accepted?

Under every harmonised WHS Act, not for a Category 1 offence or industrial manslaughter. Queensland also excludes a Category 2 offence where the failure resulted in a death. Victoria’s OHS Act doesn’t exclude particular offences.

Is an undertaking an admission of guilt?

No. The WHS Act says giving an undertaking is not an admission of guilt for the alleged contravention (s 216(3)). An accepted undertaking and the regulator’s reasons are published.

What happens if the undertaking isn’t kept?

Breaching it is an offence, and the regulator can ask a court to order you to comply. In Victoria the maximum for breaching an undertaking is 500 penalty units for an individual and 2,500 for a body corporate.

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