One of the most important reforms to be introduced by the Work Health and Safety Act 2011 (Qld) (‘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. Importantly, the duty cannot be delegated to other employees or agents.

From 1 January 2012, officers must exercise their duty of ‘due diligence’ to ensure that a Person Conducting a Business or Undertaking ('PCBU') complies with its primary duty to ensure the health and safety of workers and other persons as far as reasonably practicable.

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 minimizes;
• 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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Failure to satisfy due diligence requirements can open an officer up to a personal liability of up to $600,000 per offence, and a maximum prison sentence of 5 years where a worker is recklessly exposed to risk of death or serious injury or illness.

It is also important to be aware that an officer can be prosecuted for failure to ensure that the PCBU complies with its WHS obligations even if the PCBU itself is not charged with any offence.

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The introduction of due diligence to officers has significant ramifications for both employees and the employer.  It will now be necessary for directors and managers to take a proactive approach to satisfy their obligations. This includes familiarising oneself with all facets and probable WHS risks within the business.

Necessary action by officers may include:

• Facilitation of the election of one or more properly trained health and safety representatives (‘HSR’). Officers will in turn need to consult with the HSR’s on WHS matters including the identification of hazards and assessment of risks, when making decisions regarding procedures and adequacy of facilities, and any changes that may affect health and safety of workers;
• Scheduling regular meetings with and/or requiring reports from HSR’s and other senior staff to ensure officers discharge their obligations to their workers and ensure that all WHS polices and procedures are up to date;
• Ensuring workers are provided with appropriate and ongoing training, supervision and instruction about WHS aspects of all tasks they perform, and the reporting of any workplace incidents;
• Testing and auditing of policies and procedures to verify compliance with the Act, and the adequacy of staff knowledge as to the contents and requirements of those policies and procedures; and
• Immediately notifying Workplace Health and Safety Queensland (‘WHSQ’) of incidents resulting in death, serious injury or illness or a dangerous event, and otherwise providing notification to WHSQ of any workplace incidents as soon as possible.

If you have any queries about harmonisation or require more detailed advice in relation to how you as an ‘officer’ can satisfy your obligations under the Act, do not hesitate to contact us.

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