Enforceable undertakings and the case for Energy-Based Safety

This is not legal advice. Enforceable undertakings work differently in every jurisdiction, and the detail of what a regulator will accept is a question for your lawyer and your regulator. What we can offer is a view on what makes a safety commitment credible, because that is the part we work on every week.

What an enforceable undertaking is

In several jurisdictions that binding commitment is called an enforceable undertaking. The organisation proposes a set of actions, the regulator decides whether to accept them, and the undertaking becomes legally binding. Breach it and the regulator can go to court to enforce it, and prosecution may follow.

The actions typically go beyond fixing the specific failure. Regulators tend to look for commitments that improve the organisation’s safety system, benefit the wider industry and deliver something durable rather than a one-off spend. Check with your regulator on what they expect, because the criteria and the process differ.

The reason this matters to a safety leader is simple. The quality of the programme you propose is the quality of the undertaking. A vague promise to “improve safety culture” does not read well to a regulator who has just investigated a fatality.

An undertaking is not available for every breach. In New Zealand, the regulator cannot accept one where the breach would amount to reckless conduct under section 47 (Health and Safety at Work Act 2015, section 123). WorkSafe also expects the undertaking to include actions that remedy the harm to anyone affected. Giving one is not an admission of guilt.

What a credible programme looks like

From where we sit, a safety commitment holds up when it has four properties: it is grounded in research, targeted at serious injury and fatality, measurable and sustainable. Energy-Based Safety meets all four, which is why we think it is a strong candidate for the safety programme element of an undertaking.

Grounded in research

EBS comes out of Dr Matthew Hallowell’s work at the Construction Safety Research Alliance at the University of Colorado Boulder. The high-energy threshold of about 1,500 joules, the definition of a Direct Control and the HECA method are published and testable. You are not proposing a brand. You are proposing a framework with a paper trail.

Independent work continues. A 2026 study in the Journal of Construction Engineering and Management found that EBS combined with experiential, feedback-driven hazard scenarios produced strong perceived learning gains and engagement. The participants were 30 engineering students, the sample was small and the measures self-reported, and it did not test transfer to live work. We state that qualification every time we cite it, and you should too.

Targeted at serious injury and fatality

Most incidents that lead to an undertaking are high-energy events. A fall, a crush, a struck-by, an electrocution, a trench collapse. EBS is built around exactly those. It separates the hazards that can kill from the ones that cannot, and it holds the controls on the first group to a stricter standard.

That alignment is persuasive. A regulator looking at a fatality wants to see a programme aimed at the thing that killed someone, not a general refresh of inductions.

Measurable

The weakest part of most safety commitments is evidence. Attendance records and completion rates prove that people sat in a room. They do not prove the controls on live work got better.

HECA gives you a measure that does. One crew, one task. Every high-energy hazard is listed and each is scored as having a Direct Control or being an exposure. The score is the percentage with a Direct Control.

65 to 75%Hallowell’s research found that even at industry-leading companies only 65 to 75 percent of high-energy hazards had one, which is the kind of baseline an undertaking can commit to improving where feasible controls exist.

HECA scores can be reported quarterly, by site, by task type. That is the sort of progress report a regulator can read and an executive can act on.

Sustainable

An undertaking runs for years. A programme that needs an external facilitator for every session will not last that long, and a regulator knows it.

EBS can be adopted in stages.

1. Facilitated workshops with VR for crews and supervisors.
2. An IP licence so your own certified trainers run it in-house, with a managed VR fleet and per-learner assessment results showing what each person identified and decided.

Every stage uses the same programme, so a commitment to scale it is a commitment you can keep.

Before, not after

The honest version of this post is that the best time to adopt Energy-Based Safety is before anyone is hurt.

An undertaking is a second chance, and the programme that would satisfy a regulator afterwards is the same one that would have improved the odds in the first place.

If you are drafting an undertaking now, talk to your regulator and your advisers about what they expect, then look at whether EBS fits the safety element. If you are not, the argument for it is the same without the pressure.

The first stage can be a pilot with one group: scope a pilot.