In December 2023, WorkSafe WA accepted an enforceable undertaking from Fortescue, dropping prosecution in exchange for a commitment to spend $1.47 million on industry-wide psychosocial hazard initiatives. This was the first enforceable undertaking entered into under Western Australia's Work Health and Safety Act 2020.

The undertaking is now well into its implementation. It offers a practical case study in how enforceable undertakings work, why they can deliver broader outcomes than prosecution, and what they signal about regulator expectations for psychosocial risk management.

The background

WorkSafe WA charged Fortescue in February 2023 with 34 counts of refusing or failing to comply with a requirement to provide documents to a WorkSafe inspector within a specified period without a reasonable excuse. The documents related to 34 cases of alleged sexual harassment at three of Fortescue's mining operations: Christmas Creek, Solomon and Cloudbreak.

The investigation followed the "Enough is Enough" report, published following the Western Australian Parliamentary Inquiry into Sexual Harassment in the Mining Industry. That inquiry, completed in 2022, found that the state's mining industry had failed to protect female workers from predatory behaviour, including targeted violence, stalking, grooming and threats to their livelihoods.

Rather than proceeding to prosecution, Acting WorkSafe Commissioner Sally North accepted an enforceable undertaking from Fortescue to deliver wide-ranging strategies to address inappropriate workplace behaviours in the mining industry.

What the undertaking requires

Fortescue committed to spend $1.47 million on projects and programmes aligned with recommendations from the Enough is Enough report. The agreed initiatives include developing a security and duress app to be made available to all workers in the mining industry, developing and delivering education sessions for contractors and sub-contractors, developing respectful behaviour advertisements, funding research into strategies to prevent and respond to psychosocial hazards for use across the mining sector, a review of mining camp designs, and psychosocial risk assessments.

The critical feature of the undertaking is that these resources must be made available throughout the mining industry, not just within Fortescue. The benefits are designed to have widespread positive outcomes for Western Australian workers across the sector.

WorkSafe WA monitors the progress of the undertaking through quarterly meetings with Fortescue. If the undertaking is not delivered, WorkSafe has stated it will take further action.

How enforceable undertakings work

An enforceable undertaking is an alternative to prosecution provided for under the WHS Act. It is not an admission or finding of guilt. Instead of a fine payable to consolidated revenue, the respondent commits to spend a specified amount on workplace safety improvements, typically with a broader industry benefit.

The Acting WorkSafe Commissioner stated that Fortescue's investment was well above the fine that could be expected if it was convicted of the underlying charges. This is a common feature of enforceable undertakings: the financial commitment typically exceeds what a court would impose as a fine, because the money is directed toward practical safety improvements rather than state revenue.

This is the practical advantage of an enforceable undertaking over prosecution. A fine is paid and absorbed. An enforceable undertaking results in tangible investment in workplace safety — in this case, investment that benefits an entire industry, not just the organisation that committed the breach.

What this means for psychosocial compliance

The Fortescue undertaking is significant for several reasons.

First, it confirms that enforceable undertakings are available for psychosocial hazard matters. The charges related to a failure to provide documents about alleged sexual harassment — a psychosocial hazard. The undertaking's commitments are directed squarely at psychosocial risk management: security and duress technology, contractor education, respectful behaviour campaigns, and psychosocial hazard prevention research. This establishes that enforceable undertakings in the psychosocial space will require investment in systemic psychosocial controls, not just generic safety programmes.

Second, the requirement that resources be made available industry-wide sets a precedent for how undertakings in the psychosocial space are structured. The regulator is not interested in an organisation improving its own internal processes and then closing the door. The expectation is that the investment lifts capability across the sector.

Third, the undertaking demonstrates that regulators are willing to use the full range of enforcement tools for psychosocial matters. WorkSafe WA has now used prosecution (the Bunbury Regional Prison case), enforceable undertakings (Fortescue) and improvement notices in the psychosocial space. This is the same spectrum of tools applied to physical safety.

The strategic lesson

For organisations facing enforcement action for psychosocial hazard failures, this case illustrates that proposing an enforceable undertaking that addresses systemic issues can be a more constructive outcome than waiting for prosecution. The undertaking requires a substantial financial commitment, but the money goes toward practical improvements that benefit workers, rather than to consolidated revenue as a fine.

The key is that the undertaking must be credible and substantial. It must address the root cause of the identified issues, not just the specific charges. And it must deliver industry-wide benefit, not just internal improvement. WorkSafe WA's acceptance of this undertaking sets the standard for what a credible psychosocial hazard undertaking looks like.

For the full state-by-state breakdown of psychosocial compliance requirements, see the compliance-by-state collection.

Disclaimer: This article provides general information on psychosocial compliance in Australian workplaces. It does not constitute legal advice. The enforceable undertaking is not an admission or finding of guilt. Organisations should consult qualified professionals for advice specific to their circumstances. Regulatory references are sourced from WorkSafe WA, the WA Department of Commerce, the Australian Institute of Health and Safety, and HWL Ebsworth and are current as of the date of publication.