The Work Health and Safety Act 2011 (Qld) (‘Act’) has now commenced in Queensland. One of the most important reforms to be introduced by the Act is the proactive duty of 'due diligence' imposed on officers of companies.

An “officer” is a person who makes, or participates in making, decisions that affect the whole or a substantial part of the business of a corporation, public agency or unincorporated association.

Officers includes a ‘receiver or receiver manager’ and an ‘administrator of the corporation’. It is important to note that the definition also includes an ‘administrator of a deed of company arrangement executed by the corporation’ and a ‘liquidator of the corporation’.

Officers now have a separate and independent duty to exercise due diligence to ensure that a Person Conducting a Business or Undertaking ('PCBU') complies with its WHS duties. Additionally, the duties of an officer cannot be delegated to other employees or agents, however measures may be put in place to help satisfy those duties.

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Due diligence is defined to include taking reasonable steps in relation to:

• Acquiring and keeping up to date knowledge of work health and safety matters;
• Gaining an understanding of the nature of the operations and the hazards and risks associated with these operations;
• Ensuring that the PCBU has available and uses appropriate resources and processes to enable hazards associated with the operations to be indentified and risks eliminated or minimised;
• Ensuring that the PCBU has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding to these in a timely way;
• Ensuring that the PCBU has and implements processes for complying with all its statutory obligations; and
• Verifying all of the above.

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Insolvency practitioners as an officer for a PCBU may now personally face fines of up to $600,000 and/or 5 years imprisonment and should note that they may be prosecuted for failure of their duties to ensure that the PCBU complies with its WHS obligations even if the PCBU itself is not charged with any offence.

Insolvency practitioners should now carefully consider their duties when they take over an organisation in financial trouble, as often safety is one area neglected when the organisation has financial woes. Consequently, insolvency practitioners in Queensland should be aware of their duties under the Act and consider obtaining a ‘Work Health & Safety Audit’ from the day of their appointment.

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