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AUSTRALIAN WELDING | OCTOBER 2015
Health & Safety:
Company Officer Liability In nearly all Australian jurisdictions, there is a positive obligation on company officers to exercise due diligence in relation to health and safety. Officers can be personally liable for breaches of this duty, with the penalties including imprisonment and substantial fines. Rebecca Davies, an Australian Institute of Company Directors course facilitator and a former lawyer, outlines key considerations for company officers when it comes to health and safety.
Recent changes to Workplace Health and Safety (WHS) laws everywhere but Victoria have renewed the focus on the responsibilities that directors and senior managers have for WHS issues. And, in Victoria too, these remain an important area for focus. Some key things to be aware of: • The duties relate to workplaces, so once there is a workplace, a director or senior manager has responsibilities to those who work there, including employees, subcontractors, volunteers, and even visitors. • The duty is to eliminate risk to health and safety so far as is reasonably practical. • Directors and senior managers have a positive obligation to be aware of the health and safety risks in their workplaces, and to consider how to best eliminate them or reduce their impact. • Penalties for breach of WHS legislation can be substantial, with maximum fines of $600,000 for individuals and / or 5 years imprisonment. To best protect the health and safety of your workplace, and to give you a ‘due diligence’ defence
Company officers can be personally liable for workplace health and safety breaches.
if faced with prosecution, ask yourself: • Do you provide regular updates to directors and senior managers on the risks of the workplace? What is going on in the industry generally? What problems have others experienced and how do you know it isn’t happening in our own company? • Do you have WHS policies in place? Are they up to date and well understood? • Do you understand the people for whom you have responsibility? Are you managing WHS risks for them? For instance, do
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you issue directions in the languages understood by your workforce? Do you know what WHS policies your subcontractors have? Are you investing appropriately in equipment and training to reduce or eliminate risks? Are you tying pay to safety performance? Are you monitoring whether the policies you have in place are actually working? Are you receiving reports on safety incidents, workers compensation claims, return to work, and lost time? Are you monitoring the trends and taking action if needed?
INSIDE THE INDUSTRY: HEALTH & SAFETY
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At A Glance: The Workplace Health and Safety Act According to the Work Health and Safety (WHS) Act, any company officer, whether volunteer or paid, must exercise due diligence to ensure that the organisation complies with its health and safety duties. This means that company officers must ensure that their organisation has appropriate systems of work in place and they must actively monitor and evaluate health and safety management within the organisation. Exercising due diligence requires company officers take reasonable steps to: • Continuously learn about and keep up to date with work health and safety matters. • Have an understanding of the nature of the work the organisation does and stay aware of the risks workers and volunteers may face when working for the organisation. • Ensure and verify that the organisation has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety. • Ensure and verify the organisation has processes in place for communicating and considering information regarding health and safety, and responding to that information. • Ensure and verify the organisation has, and implements, processes for complying with any duties and requirements under workplace health and safety law. Who is an ‘Officer’? Under the WHS Act, an officer includes: • A director or secretary of a company • A person: who makes, or participates in making decisions that affect a substantial part of the business; who has the capacity to significantly affect the company’s financial standing; or who gives advice to company directors. • A receiver or manager of the company’s property. • An administrator or liquidator of the company.