Who may be personally liable for work health and safety breaches?
Friday, October 12, 2018
The Work Health and Safety Act 2011 (WHS Act) imposes an obligation on officers of corporations and unincorporated organisations to exercise due diligence in ensuring the organisation complies with health and safety duties. The term ‘officer’ incorporates a broad range of individuals, who are subject to a high level of duty, and face severe potential punishments for breaching this duty.
Who is an officer?
An officer is defined in the Corporations Act 2001, and includes the following categories of people:
- a director/secretary of a company; or a partner in a partnership;
- a person who makes, or participates in making, decisions that affect the whole or a substantial part of the business (i.e. de facto or ‘shadow’ directors);
- a person who has the capacity to significantly affect the business’s financial standing; and
- a person on whose instructions or wishes the directors of the business are accustomed to act.
This range of categories creates a broad definition of ‘officers’, meaning that a potentially large number of individuals may be liable for breaches of health and safety obligations, regardless of their actual involvement in the breach.
What is the duty imposed on officers?
Officers must demonstrate due diligence regarding compliance with health and safety duties, which encompass the following responsibilities:
- acquire and keep up-to-date knowledge of WHS matters which affect the business;
- gain an understanding of the hazards and risks involved in the operation of the business;
- ensure that resources and processes are provided within the business to eliminate or minimise risks;
- ensure that the business has appropriate processes in place for receiving and considering information relating to WHS issues;
- ensure that the business has in place processes for complying with its WHS duties; and
- verify the provision and use of any resources and processes provided.
These responsibilities show that the due diligence duty is a positive one – it is an obligation to actively take steps to ensure the health and safety obligations are met. As such, it is not an acceptable defence to argue ignorance of the breach, or a lack of involvement in contributing to the breach.
It is important that companies and organisations ensure they have plans in place to adhere to these health and safety obligations, or else risk their officers being personally liable for any breaches that occur. Additionally, a reporting structure should exist so that officers, especially those who are not involved in day-to-day operations, are aware of their duties and confident that these are being complied with.
Contact one of our experienced lawyers today for any questions regarding workplace health and safety issues 1300 334 566 . We have legal offices in Brisbane, Gold Coast and Sunshine Coast.