We are often quick to call out workplace health and safety breaches that have resulted in prosecution or are likely to result in prosecution, such as the Dreamworld tragedy that occurred at the end of 2016.

Reporting on case law is a way of educating the community about the expectation of keeping people healthy and safe. We can learn a lot from analysing cases heard before the court as they set precedence. At the same time, it’s just as important to learn from cases where it has been determined that a duty holder, such as a Director as an officer under health and safety law has carried out their due diligence.

For executives, the recent case Safework NSW v Omega International and Shetty [2016] NSWDC 11 highlights the importance of taking a proactive approach to health and safety. The incident involved a fire in a workplace that was started when a worker failed to comply with the company’s safe systems of work.

The NSW District Court dismissed SafeWork NSW’s claim that the director should be found vicariously liable for the worker’s failure to follow instructions, because the company failed to assess and remove the risks arising from its operations. The court determined that the company’s failures “were not of a systematic nature”, rather, it was a result of the workers conduct not accepted by the systems of Omega International.

The Director avoided liability and prosecution as the court found he had exercised due diligence. Initiated by the director, the company had

• employed an industrial chemist with 30 years’ experience in the paint manufacturing industry to assist in managing WHS risk;
• engaged a consultant to prepare hazard analysis;
• implemented a safety management system and a safety manual; these documents prescribed operating procedures for liquid transfers, including the mandatory attachment of static leads between host and recipient vessels;
• provided workers with intensive training on the dangers of ignition sources, and employed another chemist who developed a risk assessment process for a number of work procedures including decanting.

This is a great example of a Directors’ due diligence in force. However, there are many Directors/senior leaders who are unaware that they hold such obligations.

If you are a senior executive who makes, or participates in making, decisions that affect the whole, or a substantial part of the business or undertaking, then you are an officer and hold work health and safety due diligence obligations.

So, the next question is, what do you need to do to meet due diligence?

If we take the definition from the dictionary, due diligence means the care that a reasonable person exercises to avoid harm to other persons or their property. In very simple terms, we can say that due diligence is a process that involves:

• doing research on a topic;
• thinking things through;
• making decisions based on the outcomes of your research;
• planning ahead