Australia's model WHS laws place an obligation on officers of persons conducting a business or undertaking (PCBUs) to exercise due diligence to ensure that the PCBU itself complies with its duties and obligations under WHS laws. Officers can be charged personally for a failure to discharge this obligation.
Relevantly for NSW Government:
- a person who makes, or participates in making, decisions that affect the whole or a substantial part of the business or undertaking of the Crown is taken to be an officer of the Crown (see section 247 of the Work Health and Safety Act 2011 (NSW) (WHS Act)
- a person who makes, or participates in making, decisions that affect the whole or a substantial part of the business or undertaking of a public authority is taken to be an officer of the public authority (see section 252 of the WHS Act).
Two recent cases have assisted in clarifying what measures undertaken by an officer will be deemed appropriate to meet their obligations of due diligence. These cases also provide guidance as to whether delegation of work health and safety functions to a dedicated health and safety employee is consistent with an officer's due diligence duties.
Cases
The matter of SafeWork NSW v Mitchell Doble [2024] NSWDC 58 (Doble) involved an unsuccessful prosecution of Mr Doble, a sole director and secretary (and officer) of a company which itself was successfully prosecuted by SafeWork NSW for exposing its workers to injury for failing to have an adequate traffic management plan. This resulted in a forklift striking and seriously injuring a worker of the business. SafeWork NSW alleged that Mr Doble failed to exercise due diligence because he failed to take reasonable steps to ensure that his company had, so far as reasonably practicable, complied with its duty under the WHS Act.
In the Queensland case of R v Walshaw (2024, unreported) (Walshaw), Workplace Health and Safety Queensland also failed in prosecuting Ms Walshaw under the due diligence provisions of the Queensland WHS Act. These charges stemmed from Ms Walshaw's role as former director (and officer) of a company involved in a zipline incident resulting in the death of a participant and serious injuries to another.
Due diligence and delegation
Under the WHS Act (and model WHS laws), 'due diligence' is defined as an officer taking various 'reasonable steps', including keeping up-to-date with the PCBU's work health and safety matters, gaining an understanding of the its operations and related hazards and ensuring it has appropriate resources and processes to eliminate or minimise risks to health and safety. Please refer to section 27(5) of the WHS Act for the full definition of due diligence.
A common issue that arises in prosecutions of officers is the rigour in respect to which an officer must undertake these 'reasonable steps' under WHS laws to demonstrate that they have exercised due diligence. That is, how much time and effort must be spent by an officer to satisfy these duties, as well as what measures and steps can be undertaken to comply with this duty. A related issue is the extent to which the delegation of work health and safety functions across the business impacts upon an officer's ability to demonstrate that they have exercised due diligence.
The key learnings from the Doble and Walshaw cases in respect of these issues are as follows:
- the extent of due diligence expected from an officer depends on the nature, size and complexity of a PCBU's operations. In Doble, it was deemed acceptable that the officer overseeing eight depots across NSW was not across "everything that (was) going on at any given moment". In Walshaw, it was found that the officer's role in the business, which focused on sales and marketing, meant that it was reasonable that she delegated the technical elements of ensuring compliance with WHS laws to the company's operations manager
- despite the considerations above, an officer must still be able to demonstrate that they have undertaken reasonable steps proportionate to their role and the nature, size and complexity of the PCBU. In Doble, matters which weighed in the officer's favour was that he attended management meetings where work health and safety was addressed, attended each worksite frequently and consulted with his workers, always approved funding for any work health and safety issue that arose in a timely manner and engaged an appropriately qualified employee dedicated to work health and safety duties
- the cases also found that it is entirely reasonable for an officer to delegate specific work health and safety functions to workers within the business:
- in Doble, it was deemed reasonable for the officer to entrust the PCBU's compliance manager to ensure that the PCBU carried out its duties under WHS laws. Given the size of the PCBU's business, it was appropriate that the businesses compliance manager had autonomy over various work health and safety duties
- in Walshaw, similar findings were made in respect of the PCBU's operations manager. It was found that it was not a reasonable step for the officer to identify and instruct the operations manager on technical matters related to the operation of the business' zipline, and that these matters were very much within the responsibilities of the operations manager and their team
- in both Doble and Walshaw, it was determined that the safety failures were on behalf of the PCBU itself, rather than on behalf of the officers in exercising their due diligence. The officers in both cases did not fail to take reasonable steps under their obligation to exercise due diligence because they delegated work health and safety functions to suitably qualified and experienced workers.
- the obligation that an officer takes 'reasonable steps' to exercise due diligence under the model WHS Act is less onerous than the duty that applies to PBCUs being the duty of ensuring, so far is as reasonably practicable, the health and safety of all workers. In other words, the duties are not the same and are not co-extensive.
Key lesson for officers
For officers of PCBUs seeking to ensure they are taking reasonable steps to satisfy their due diligence obligations under WHS laws, these recent cases assist in clarifying the measures that can be undertaken to comply with an officer's obligations and endorses a system of work whereby work health and safety functions are delegated to properly experienced and qualified workers within the business.
However, what is also clear from these cases is that officers cannot take a complete 'hands off' approach and must be able to demonstrate a level of awareness, understanding and involvement in the PCBU's work health and safety processes that is appropriate in all circumstances. In other words, oversight and reporting lines are maintained.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.