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The first Company Officer charged under WHS Legislation highlights Due Diligence Obligations

Earlier this month, following the unfortunate workplace death of a worker in the ACT, an organisation, along with a Senior Manager of the organisation, deemed an ‘Officer’ under WHS Laws was charged with failing to comply with its health and safety duties.

The charge was deemed a Category 2 offence, which means the organisation and the individual may face maximum penalties of $1.5M and $150,000 respectively.

This will be a precedent case under the revised harmonisation legislation, with the matter yet to be heard, but it’s a timely reminder to ensure that your organisation has identified all of its ‘Officers’ , they are informed, educated and clearly understand their obligations, and that your organisation reasonably and practicably meets its WHS duty of care.

In summary:

  • An ‘Officer’ means :
    • A Director or Secretary of the Corporation OR
    • A person who makes or participates in making decisions that affect the whole or a substantial part of the business. This person may be working in accordance with and is accustomed to acting under the instructions/wishes of the Directors, a receiver/manager of the property of the corporation, an Administrator of the Corporation, an Administrator of a deed of company arrangement or a liquidator of the corporation.
  • The new model WHS Laws allocates a liability on the company/organisation for breaches, and a personal liability on the ‘Officer’ to ensure that they take proactive steps to meet their corporate governance responsibilities.


Whilst the Regulator’s commitment is to educate, for serious and repeated non-compliance, penalties are significant to encourage co-operation and adoption and management of WHS breaches. They are:

–          Category 1 Offence – $600K and 5 years jail

–          Category 2 Office – maximum $300K

–          Category 2 Office – maximum $100K

A Due Diligence Guide

To meet due diligence, an ‘Officer’ must:

  • Acquire and keep up to date knowledge of WHS matters.
  • Gain an understanding of the nature of the companies operation and the risks and hazards of the operation/s.
  • Ensure the company has adequate resources and processes in place to enable hazards to be identified, and the associated risks to be eliminated, or minimised.
  • Ensure the company has appropriate processes in place to receive and consider information in relation to incidents, hazards and risks and responds to that information in a timely and auditable fashion.
  • Has the ability to transparently verify the provision and use of the resources and processes.

A Practical Due Diligence Checklist

  • Formally identify ‘Officers’
  • Educate Officers of their responsibilities and outline the company’s processes, systems and resources.
  • Determine the company’s position on health and safety, including an audit.
  • Establish and implement objectives and targets based on audit outcomes.
  • Establish quantifiable health and safety performance indictors
  • Develop a health and safety management plan
  • Implement a risk management program
  • Commit to conducting regular reviews of the system
  • Ensure that the system is transparent, auditable and regular reviewed for improvement.

As a WHS induction specialist, WorkPro offers a free, no-obligation 20-minute on-line ‘Officers Due Diligence’ module covering the content of this blog in more detail. Contact us on 1300 975776 to gain access to the course.

For information about the case: http://www.canberratimes.com.au/act-news/kenoss-contractors-senior-manager-to-fight-charges-over-act-workplace-death-20140610-zs2kc.html

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