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Due diligence

The Work Health and Safety Act 2011 (the WHS Act 2011) imposes a specific duty on officers of corporations and unincorporated bodies, such as clubs and associations, to exercise due diligence to ensure that the corporation, club or association meets its work health and safety obligations. The duty requires officers to be proactive in ensuring that the corporation, club or association complies with its duty.

This is different to the situation that existed under the Workplace Health and Safety Act 1995 (WHS Act), where corporate officers are deemed to be liable for health and safety offences committed by their corporation unless they can show that they exercised proper diligence to ensure that the corporation complied with the WHS Act, or that they were not in a position to influence the conduct of the corporation regarding the offence under the WHS Act.

This duty under the WHS Act 2011 applies whether or not there has been an incident and irrespective of whether the corporation is prosecuted (e.g. a work health and safety inspector may, during a routine audit or inspection, ask a corporate director to produce evidence that the director is meeting his or her due diligence requirements. If satisfactory evidence is not produced, the inspector may issue the director with an improvement notice. If the failure to demonstrate due diligence is serious, reckless or flagrant, the inspector might commence prosecution proceedings against the director).

What is due diligence?

Due diligence in relation to ensuring health and safety is defined for the first time in the WHS Act 2011. In demonstrating due diligence, officers will need to show that they have taken reasonable steps to:

This approach emphasises the corporate governance responsibilities of officers. It is critical to the achievement of positive safety outcomes for senior management to lead the corporate safety agenda.

Demonstrating due diligence

The due diligence criteria listed in the WHS Act 2011 are shown below, with suggestions on how to meet them.

  1. Acquiring knowledge of health and safety issues
    This can be met by:
    • acquiring up-to-date knowledge of the WHS Act 2011, regulations and codes of practice
    • investigating current industry issues through conferences, seminars, information and awareness sessions, industry groups, newsletters
    • acquiring up-to-date knowledge of work health and safety management principles and practices
    • ensuring that work health and safety matters are considered at each corporation, club or association board meeting.
  2. Understanding operations and associated hazards and risks
    This can be met by:
    • developing a plan of the operation that identifies hazards in core activities
    • ensuring that information is readily available to other officers and workers about procedures to ensure the safety of specific operations that pose health and safety risks in the workplace
    • continuously improving the safety management system.
  3. Ensuring that appropriate resources and processes are used to eliminate or minimise risks to health and safety
    This can be met by:
    • establishing/maintaining safe methods of work
    • implementing a safety management system
    • recruiting personnel with appropriate skills, including safety personnel
    • ensuring staffing levels are adequate for safety in operations
    • giving safety personnel access to decision makers for urgent issues
    • maintaining/upgrading infrastructure.
  4. Implementing processes for receiving and responding to information about incidents, hazards and risks
    This can be met by:
    • employing a risk management process
    • having efficient, timely reporting systems
    • empowering workers to cease unsafe work and request better resources
    • establishing processes for considering/ responding to information about incidents, hazards and risks in a timely fashion
    • measuring against positive performance indicators to identify deficiencies (e.g. percentage of issues actioned within agreed timeframe).
  5. Establishing and maintaining compliance processes
    This can be met by:
    • undertaking a legal compliance audit of policies, procedures and practices
    • testing policies, procedures and practices to verify compliance with safety management planning.
  6. Verifying the provision and use of the resources mentioned in 1-5.
    Officers will need to ensure there is a system in place that records and provides evidence of the matters mentioned in 1-5.

Accessing up to date safety information

As part of due diligence requirements, officers need up-to-date knowledge about safety issues. They must also ensure that their employer and workers have ready access to information that will help them to avoid risks and hazards in the workplace.

Retaining trained safety advisors

State government departments, Government Owned Corporations and Statutory Authorities are all required to retain trained safety advisors under the policy 'Engaging trained safety advisors to meet due diligence requirements in government' (PDF, 121 kB).

There are also advantages for businesses and undertakings in retaining a trained safety advisor (although not mandatory) to assist an officer to satisfy their due diligence obligations.

Maintaining a role for a trained safety advisor will:

However, it is important to note the duty to exercise due diligence will always remain with the officer and cannot be outsourced or delegated to a trained safety advisor. Employing a trained safety advisor is only one option to help officers meet their duties.

Training for safety advisor

The voluntary retention of a trained safety advisor is best supported by at least Vocational Education and Training accredited training in order to provide safety officers with a nationally recognised formal qualification.

It will also be important for trained safety advisors to update their skills and knowledge periodically to ensure they have knowledge of current workplace health and safety legislation and initiatives.