Regulatory guide - Duties of officers
We publish this regulatory guide to assist the organisations and entities we regulate.
If a 'person conducting a business or undertaking' (PCBU) owes a duty or obligation under the Work Health and Safety Act 2011 (WHS Act) or the Work Health and Safety Regulations 2011 (WHS Regulations), an officer of the PCBU is required to exercise due diligence to ensure that the PCBU complies with the duty or obligation.
This duty, imposed by section 27 of the WHS Act, is itself one of the ‘health and safety duties’.
1. Duties of an officer
Under section 27 of the WHS Act, if a PCBU has a duty or obligation under work health and safety legislation, an officer of the PCBU must exercise ‘due diligence’ to ensure that the PCBU complies with the duty or obligation.
The officer’s obligation of due diligence relates to any duty or obligation that the PCBU may have under the WHS Act or WHS Regulations, and is therefore potentially extensive in scope.
However, a definition of ‘due diligence’ is provided, which may help an officer in finding practical ways to comply with the duty. In particular, section 27(5) defines ‘due diligence’ as including taking reasonable steps:
- to acquire and keep up-to-date knowledge of work health and safety matters
- to gain an understanding of the nature of the operations of the PCBU’s business or undertaking and generally of the hazards and risks associated with those operations
- to ensure that the PCBU has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking
- to ensure that the PCBU has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information
- to ensure that the PCBU has, and implements, processes for complying with any duty or obligation of the PCBU under work health and safety legislation
- to verify the provision and use of the resources and processes referred to in the three preceding dot points.
Further assistance for officers appears in examples at the end of section 27. The processes for complying with duties and obligations that the PCBU should have in place and implement under section 27(5)(e) may include processes for:
- reporting notifiable incidents
- consulting with workers
- ensuring compliance with notices issued under work health and safety legislation
- ensuring the provision of training and instruction to workers about work health and safety
- ensuring that health and safety representatives receive their entitlements to training.
The section 27(5) definition of ‘due diligence’ is inclusive, rather than exclusive. As such, taking the specified steps does not guarantee compliance with the duty of due diligence. However, taking those steps is likely to ensure compliance in most cases.
2. Compliance
An officer who does not comply with the duty of due diligence commits an offence.[1]
The maximum penalty is the penalty that would apply to the PCBU as an individual for failing to comply with the relevant duty or obligation.
More specifically, in relation to the duty of due diligence owed by an officer:
- The officer commits a Category 1 offence if the officer, without reasonable excuse, engages in conduct that exposes an individual to whom the duty is owed to a risk of death or serious injury or illness and the officer is reckless as to the risk to an individual of death or serious injury or illness.[2]
- The officer commits a Category 2 offence if the officer fails to comply with the duty and the failure exposes an individual to a risk of death or serious injury or illness.[3]
- The officer commits a Category 3 offence if the officer fails to comply with the duty.[4]
Category 1 and 2 offences both involve exposure of an individual to a risk of death or serious injury or illness. It is not a component of these offences that any harm to the individual (whether death, serious injury or illness or otherwise) has actually occurred.
Category 1 offences involve the additional element of recklessness.
References
[1] If an officer is a volunteer, he or she is required to comply with the duty of due diligence but does not commit an offence if he or she fails to comply. An officer of an unincorporated association (other than a volunteer) does commit an offence if he or she fails to comply with the duty of due diligence. See WHS Act, section 34. Under WHS Act, section 4, a ‘volunteer’ is a person who is acting on a voluntary basis (irrespective of whether the person receives out-of-pocket expenses).
[2] WHS Act, section 31. If the offence relates to health and safety duty imposed on the officer’s PCBU, the penalty is $600,000 or 5 years imprisonment or both. If the offence relates to another duty or obligation imposed on the officer’s PCBU, the penalty is the penalty fixed under the provision creating the duty or obligation for an individual who fails to comply: section 27(3).
[3] WHS Act, section 32. If the offence relates to health and safety duty imposed on the officer’s PCBU, the penalty is $300,000. If the offence relates to another duty or obligation imposed on the officer’s PCBU, the penalty is the penalty fixed under the provision creating the duty or obligation for an individual who fails to comply: section 27(3).
[4] WHS Act, section 33. If the offence relates to health and safety duty imposed on the officer’s PCBU, the penalty is $100,000. If the offence relates to another duty or obligation imposed on the officer’s PCBU, the penalty is the penalty fixed under the provision creating the duty or obligation for an individual who fails to comply: section 27(3).