Don't want to be personally liable for WHS breaches? How is your due diligence going?

The following headlines arising out of 3 recent WHS prosecutions should worry any ‘officer’

• PCBUS and officer fined $630K over chemical explosion, slammed by Judge for blame game (6 May 2021)

• Directors fined and charged as regulator issues warning on ‘off the shelf’ safety systems (23 February 2021);

• PCBU and officer rushed to finish task fined 195K (11 November 2020)

None of these cases actually directly involved the officers. It was a failure of the organisational systems. Nonetheless, courts continue to have little sympathy for those at the ‘top of the corporate tree’ in WHS prosecutions and are holding firm on their resolve to ensure that the people with the most opportunities to develop and ensure genuine organisational change, do so.

There is little doubt that every ‘officer’ within every business genuinely wants to keep their people safe. . . but how would you prove it if you had to? What evidence would you have to rely on? (Go on, write down what you have got at the moment –is it compelling either in its absence or abundance?)

Remember, the officer duty is personal and non-delegable. You personally need to be comfortable that you individually are doing enough to meet the due diligence standard. Put another way “Did you do what you should have done”?

Practically, we recommend the following as providing good ‘high visibility’ value for both organisations and the individual ‘officers’:

1. Due Diligence training plus a yearly ‘refresher’;

2. keeping an ongoing ‘due diligence scorecard’;

3. putting due diligence compliance (not just WHS generally) on the agenda of every management meeting; and

4. confirming all of these within the organisation (eg email, intranet or training)

Of course, there are many other things you can do. This is just the start.