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What is an enforceable undertaking?

An Enforceable Undertaking is a written agreement between the Fair Work Ombudsman and someone (most typically an employer) who has not followed an Australian workplace law.

The Fair Work Ombudsman (FWO) is an independent statutory agency created by the Fair Work Act 2009 (Cth) (FW Act). The functions of the FWO include (but are not limited to):

  • monitoring compliance with the FW Act and fair work instruments
  • inquiring into and investigating any act or practice that may be contrary to the FW Act, a fair work instrument or a safety net contractual entitlement;
  • commencing proceedings in a Court (or in limited circumstances making an application to the Fair Work Commission) to enforce the FW Act, a fair work instrument or a safety net contractual entitlement.

The FW Act provides the FWO with simple enforcement mechanisms to deal with possible contraventions of the Act quickly and efficiently. Two such enforcement outcomes are Compliance Notices and Enforceable Undertakings.

Compliance Notices are a non-punitive mechanism for the FWO to address alleged contraventions of the FW Act instead of commencing Court proceedings.

If at any stage while undertaking their functions, the FWO forms a reasonable belief that a person has contravened the FW Act, the FWO may accept a written undertaking from the person in relation to the contravention. Once formalised, this is known as an Enforceable Undertaking (EU).

When FWO uses an Enforceable Undertaking

EUs are used to fix a problem and make sure it doesn’t happen again. The FWO can use an EU instead of taking an employer to court. This option generally considered where:

  • an investigation has shown that workplace laws have not been followed
  • the employer is prepared to voluntarily fix the issue and
  • they agree to preventative actions for the future.

What is included in an Enforceable Undertaking

Typically an EU contains additional obligations. These include:

  • an acknowledgement by the employer that the law has not been followed
  • an agreement by the employer to do certain actions to fix the breach (for example, remedying an underpayment, apologising, printing a public notice)
  • a commitment by the employer to future compliance measures (for example, regular internal audits, training for managers and staff, future reporting to the Fair Work Ombudsman).

How an Enforceable Undertaking gets made

If FWO decides that an EU is the best way to sort out a workplace issue, they will prepare the draft agreement. An employer can provide input and seek independent legal advice before signing the agreement.

High profile organisations who have entered into Enforceable Undertakings with FWO include Australian Unity Limited, Charles Sturt University, Westpac Banking Corporation, IBM, Australian Broadcasting Corporation (ABC), Qantas, Queensland Bulk Water Supply Authority (Seqwater) and University of Newcastle.

All EUs are published on the FWO website. To read recent EUs, visit:

What happens if an Enforceable Undertaking is not complied with?

Not complying with the agreed terms of an EU is a serious matter. The FWO has the option of applying to the courts to enforce the terms of the agreement.

Bottom line?

In our opinion, the best way to deal with FWO compliance notices and enforceable undertakings is to not put yourself in the position that you have to deal with them. Keeping your HR house in order, paying your people according to their lawful entitlements, maintaining accurate records and managing your team fairly is a smart starting point. Need some help? Keep things simple: give Bare Bones Consulting a call.

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