There is a significant risk if you are an officer and you don’t personally exercise the required due diligence to ensure your business complies with the health and safety laws.
Am I an officer?
Under WHS laws, you are included in the definition of an officer if you are:
- One of its directors and/or its secretary,
- A person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business,
- A person who can significantly affect the business’ financial standing,
- A person in accordance with whose instructions or wishes the directors of the business are accustomed to act.
The second category (a person who makes, or participates in making, decisions that affect the whole, or a substantial part of the business) can include senior managers and other persons who contribute to the decision-making of your business.
Whether senior managers are officers will depend upon the nature and extent of their decision-making input, authority and responsibilities.
What do I have to do?
If you are an officer you must personally ensure that your business complies with its duties under the Act.
You must take reasonable steps to:
(a) Acquire and keep an up-to-date knowledge of work health and safety matters generally,
(b) Understand the nature of the business’ operations and generally of the hazards and risks associated with them,
(c) Ensure that the business has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of its business or undertaking,
(d) Ensure that the business has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding to it in a timely way,
(e) Ensure that the business has, and implements, processes for complying with its duties under the Act, and
(f) Verify the provision and use of the resources and processes referred to in paragraphs (c)–(e).
This obligation to exercise due diligence is a personal responsibility and can’t be transferred to anyone else.
It requires officers to take proactive steps to make sure that the business has appropriate systems and procedures in place to comply with the WHS legislation. Officers must also check that those procedures are working properly in the business, for example, one way of meeting (a) is to keep informed of WHS developments via the FIA and (better still), to get involved in the newly formed Formwork Industry Association committees.
What can happen if I don’t do what is required?
Safety regulators such as SafeWork NSW can investigate whether you, as an officer, have exercised the required due diligence, and commence a criminal prosecution against you if you have not.
A successful prosecution results in a criminal conviction and penalties that could potentially include fines and, in the worst cases, terms of imprisonment.
What about industrial manslaughter?
Some Australian jurisdictions (such as Queensland and Victoria) have introduced industrial manslaughter provisions into their workplace health and safety Acts.
Industrial manslaughter laws are expected to commence in WA next year.
Each jurisdiction’s industrial manslaughter laws are slightly different.
In Victoria, a person (including an officer) can be found guilty of industrial manslaughter if:
(i) They are not an employee or volunteer,
(ii) They owed the victim a specific duty under the Victorian Occupational Health and Safety Act 2004,
(iii) They negligently breached that duty,
(iv) The breach of the duty caused the death of the victim, and
(v) They acted consciously and voluntarily when breaching the duty that they owed.
The maximum penalty in Victoria for industrial manslaughter by an individual is 25 years’ imprisonment.
The Queensland industrial manslaughter provisions apply to “senior officers,” who are executive officers of a PCBU, that is, people who are concerned with, or take part in, the PCBU’s management.
A Queensland senior officer can be found guilty of industrial manslaughter if:
(vi) A worker dies, or is injured and later dies, in the course of carrying out work for the PCBU,
(vii) The senior officer’s conduct causes the worker’s death (meaning that the action or inaction of the senior officer substantially contributes to the death, and
(viii) The senior officer is negligent about causing the death of the worker, i.e., their action or inaction far departs from the standard of care required of them.
The maximum gaol term that can be imposed on a senior officer for industrial manslaughter in Queensland is 20 years’ imprisonment.
Things to remember …
- As an officer, you must proactively think about whether your business has appropriate systems and procedures in place to address the risks that its workplaces and systems pose to workers.
- The workplace health and safety laws in all Australian jurisdictions provide for fines and terms of imprisonment. Some jurisdictions have specific industrial manslaughter laws.
- General criminal laws, for example, manslaughter laws, can apply to workplace incidents (although there are specific rules around double jeopardy).
- There are other penalties that can be imposed on you and/or your company for breaching the workplace health and safety laws, such as adverse publicity orders and requirements to undertake safety projects and/or safety training courses.
What should I do?
There are things you should do to help you comply with the workplace health and safety laws, such as:
- Check whether your safety management system is appropriate to address the risks of your operations, and regularly monitor how your system is performing,
- Make improvements to your safety system when they are needed,
- You might want to have your safety management system accredited to the Australian and/or International Standards,
- Provide your leaders with specific training to help them understand and discharge their safety responsibilities, making sure to give them an understanding of how your safety management system allows them to meet their personal responsibilities as leaders and workers,
- Subscribe to industry and safety-related publications to keep you up-to-date on safety trends, issues and ways to comply with the safety legislation,
- Consult the FIA’s resources to see what information is out there to help you discharge your personal obligations and improve your businesses’ safety culture and performance.
Do call us if you would like some legal advice about your personal or business compliance.
John Makris
Partner
Kingston Reid
+61 2 9169 8407
Erica Elliott
Special Counsel
Kingston Reid
+61 2 9169 8409
