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Officers are typically people who can make decisions that impact the whole or a substantial part of a business. For example, these decisions can impact the financial standing of a business. Directors and secretaries of a corporation are examples of officers. If you are an officer of a person conducting a business or undertaking (PCBU), you have obligations under the model work health and safety (WHS) laws. Officer duties recognise that you have corporate governance responsibilities and the ability to influence the WHS culture of the business.

This article explains

  • your due diligence duties;
  • practical ways to meet your obligations; and
  • the penalties for breaching your duties.

What Are Due Diligence Duties?

The model WHS laws require officers of a PCBU to exercise due diligence to ensure that the PCBU complies with their WHS duties.

Due diligence includes taking reasonable steps to

  • acquire and keep your WHS knowledge up-to-date;
  • understand the hazards and risks associated with the business;
  • ensure that the PCBU has suitable resources and processes in place to manage WHS risks;
  • ensure that the PCBU has appropriate processes for receiving, considering and responding to information about WHS incidents, hazards and risks; and
  • ensure processes are in place and implemented by the PCBU to comply with WHS duties.

Safe Work Australia’s guidance provides explanations of each due diligence duty.

Example

Due diligence dutyExplanation
Acquire and keep your WHS knowledge up-to-date.WHS knowledge includes knowledge of WHS laws; approved Codes of Practice relevant to the business; the principles of managing WHS risks; industry standards and practice; and the possible strategies and processes for the elimination or minimisation of workplace hazards.
Understand the hazards and risks associated with the business.This duty may require you to obtain advice from a suitably qualified person to gain a general understanding of the hazards and risks associated with the business operations.
Ensure that the PCBU has suitable resources and processes to manage WHS risks.This duty requires an understanding of what is needed to manage health and safety risks associated with work undertaken by the PCBU, making decisions about procedures and resources and using those procedures.
Ensure that the PCBU has appropriate processes for receiving, considering and responding to information about WHS incidents, hazards and risks.These processes should include: reporting incidents and emerging hazards and risks; identifying if any further reasonable action is required to eliminate or minimise the hazards or risks; and ensuring the PCBU takes steps to eliminate or minimise the risks.
Ensure that processes are in place and implemented by the PCBU to comply with the PCBU’s WHS duties.Examples of the relevant duties of the PCBU include: reporting notifiable incidents; consulting with workers; ensuring compliance with WHS notices; providing training and instruction to workers about WHS; ensuring that health and safety representatives receive their training entitlements; and complying with licensing and registration obligations.

Reference: Safe Work Australia Interpretive Guideline – The Health and Safety Duty of an Officer

How Can They Practically Be Met?

Workers from a range of industries shared the following practical suggestions to Safe Work Australia about how they meet their officer duty:

  • open communication – have regular meetings and systems in place to promptly receive and take action on communication;
  • observation – appoint someone to take an observational role in the business. This is helpful since things tend to change and become relaxed over time;
  • policies and procedures – ensure that all employees, contractors, suppliers and visitors have up-to-date WHS rules and guidelines;
  • resources – invest in tools, equipment and training; and
  • information – subscribe to industry newsletters or engage a specialist company to keep you up-to-date with health and safety information.

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What are the Penalties Arising From Breaches of Officer Duties?

An officer who does not comply with a due diligence duty commits an offence. You may be liable for a breach of your officer duties whether or not there has been a workplace incident. You can also face prosecution even if your PCBU has not been found guilty of an offence.

The model WHS laws include 3 categories of offences.

CategoryOffenceMaximum penalties for an individual
1(a) the person has a health and safety duty; (b) the person, without reasonable excuse, engages in conduct that exposes an individual to a risk of death or serious injury or illness; and(c) the person is reckless as to the risk of death or serious injury or illness.$600,000 or 5 years imprisonment or both
2(a) the person has a health and safety duty; (b) the person fails to comply with that duty; and(c) the failure exposes an individual to a risk of death or serious injury or illness.$300,000
3(a) the person has a health and safety duty, and (b) the person fails to comply with that duty.$100,000

All Australian states and territories have implemented the model WHS laws except for Victoria. The maximum penalties in the state or territory WHS laws may differ from the model WHS laws.

Key Takeaways

Officers have due diligence duties under the model WHS laws. Officer duties require you to consider the accountability and allocation of resources. Additionally, you must consider the development and implementation of appropriate processes to maintain a healthy and safe workplace. You may face penalties for failing to comply with your WHS obligations.

If you have any questions about your due diligence duties or preparing a WHS policy,  our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page

Frequently Asked Questions

Who are officers of a person conducting a business or undertaking (PCBU)?

Officers are typically people who can make decisions that impact the whole or a substantial part (such as the financial standing) of a business. Examples of an officer include a director or secretary of a corporation, an office holder of an unincorporated association, an officer of the Commonwealth, or an officer of a public authority. Officers exclude partners in a partnership and elected members of a local authority.

What is the WHS duty of an officer?

The model WHS laws require officers of a PCBU to exercise due diligence to ensure that the PCBU complies with their WHS duties.

What does due diligence mean?

Due diligence includes taking reasonable steps to acquire and keep your WHS knowledge up-to-date; understand the hazards and risks associated with the business; ensure that the PCBU has suitable resources and processes in place to manage WHS risks; ensure that the PCBU has appropriate processes for receiving, considering and responding to information about WHS incidents, hazards and risks; and ensure that processes are in place and implemented by the PCBU to comply with the PCBU’s WHS duties.

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