Company officers must exercise safety due diligence

The incoming Work Health and Safety Act 2011 (New Act) will bring with it increased duties for company officers from 1 January 2012. The Act has been passed as part of the national harmonisation of health and safety laws in Australia.

Under the current Workplace Health and Safety Act 1995, executive officers of a corporation are deemed to be liable for conduct that is committed by the company (subject to limited defences). This means that evidence that the company has been convicted of an offence is evidence that each of the executive officers committed the offence of failing to
ensure that the company complies with its WH&S obligations.

The New Act will take this deeming provision away but will require officers to exercise due diligence in relation to safety in the workplace. This will include keeping up to date with health and safety matters, having an understanding of hazards and risks associated with the operations and ensuring appropriate resources are available to eliminate or minimise risks from work carried out, amongst other things.

The meaning of ‘officers’ will be expanded to include any person who makes, or participates in making, decisions that affect a substantial part of the business; or who has the capacity to affect significantly the corporation’s financial standing; or in accordance with whose instructions or wishes the directors of the corporation are accustomed to act.

Key Points: The obligations placed on officers under the New Act are significant, requiring a proactive due diligence approach to ensure compliance, not only for the business, but also for their own, WH&S obligations. Employers may wish to give consideration to including the due diligence obligations in position descriptions for officers from 1 January 2012.