Will I be charged for a breach of officer duties if there is an accident in my workplace?

Possibly. As a general rule the higher up in the ‘foodchain’ you are in an organisation the more likely the expectation you meet WHS Officer duties. Unhelpfully this question is really only able to be determined on a case-by-case basis but thankfully there are now some recent cases which have provided some guidance in this area.

In Doble, the Managing Director was able to ‘escape’ prosecution as an officer where a delivery driver was struck by a forklift at the workplace and received serious injuries even though the PCBU was guilty of failing its WHS duties.

The Managing Director was able to rely on the following actions to demonstrate compliance with his officer duty:

• hiring, regularly checking in with, and taking an active interest in the matters raised by a compliance and WHS manager;

• having traffic hazard checklists;

• implementing genuine inductions;

• providing safe work procedures;

• undertaking job safety analysis for the tasks;

• having a comprehensive WHS manual and policy;

• ensuring regular maintenance; and

• regular toolbox meetings.

Significantly, it was held that enforcing the 3 metre exclusion zone was not a step that the Managing Director was required to personally perform and ensure as an officer. The court noted that it would be unreasonable to have required someone observing the forklift area at all times and somehow warning people who strayed within the 3 metre distance from the forklift that they were in danger.

Our take

We recognise that this area of the law genuinely worries a lot of people. With good reason - that is precisely what the legislature wanted to occur. That is, leaders and people in positions of responsibility generally should ‘step up’ in the WHS area but as the court found you “cannot know everything that is going on at any given moment”.

The real key is to ensure that you can personally demonstrate with ‘hard evidence’ that you have had an active and enquiring mind with the important health and safety matters for your business. Relying on ‘good intent’, past conversations and actions that are neither minuted nor recorded is a risk in itself.

Action items

• broadly identify leaders and positions of responsibility as likely to have the officer obligation (the worst thing that could happen by including ‘more rather than less’ is that you will ‘waste’ a bit of extra time on training - a small price to pay)

• keep up-to-date with regular officer training (best practice organisations do this yearly)

• identify your top 5, 10 or 20 risks within the organisation and prioritise addressing them according to risk profile

• work through your risk profile like an action list in all management meetings

• proactively focus on keeping ‘evidence’ of your WHS efforts.

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