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.[1]
Section 27 imposes a proactive duty on officers of a PCBU, which is separate from the PCBU’s own health and safety duties. This duty imposed on officers is itself a ‘health and safety duty’.
1. Duties of an officer
The officer’s obligation of due diligence relates to any duty or obligation that the PCBU has under the WHS Act or WHS Regulations and is therefore broad in scope.
Aspects of ‘due diligence’ are set out in section 27(5) of the WHS Act and are practical steps an officer can take to comply with their duty. ‘Due diligence’ includes 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 bullet points.
Processes referred to in the final two bullet points above 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 steps in section 27(5) of the WHS Act are required to be taken but it is a non-exhaustive list. As such, taking the specified steps does not guarantee compliance with the duty of due diligence as there may be other steps an officer needs to take depending upon the nature of the business or undertaking being conducted by the PCBU.
2. Offences
An officer who does not comply with the duty of due diligence commits an offence.[2]
There are different categories of offences that may be committed for contraventions of section 27, each carrying a different maximum penalty[3]:
- an 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 engages in the conduct with negligence or is reckless as to the risk to an individual of death or serious injury or illness.[4]
- an 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.[5]
- an officer commits a Category 3 offence if the officer fails to comply with the duty.[6]
Category 1 and 2 offences both involve exposure of an individual to a risk of death or serious injury or illness. It is not an element of these offences that any harm to the individual (whether death, serious injury or illness or otherwise) has in fact occurred.
Category 1 offences involve the fault elements of negligence or recklessness.
References
[1] Section 27 of the WHS Act.
[2] The only exception is an officer who is a volunteer. See section 34(1) of the WHS Act. Section 4 of the WHS Act defines a ‘volunteer’ as a person who is acting on a voluntary basis (irrespective of whether the person receives out-of-pocket expenses).
[3] The maximum penalty is referred to in the offence provision and the monetary amount of the stated penalty is identified in Schedule 4 – Penalty Amounts - of the WHS Act. The operation of Schedule 4 is discussed in Comcare’s Penalties Regulatory Guide.
[4] Section 31 of the WHS Act. The maximum penalty is the category 1 monetary penalty or 15 years imprisonment or both.
[5] Section 32 of the WHS Act. The maximum penalty is the category 2 monetary penalty.
[6] Section 33 of the WHS Act. If the due diligence contravention relates to a health and safety duty imposed under Divisions 2 or 3 of Part 2 of the WHS Act, the maximum penalty is the category 3 monetary penalty. However, if the due diligence contravention relates to any other duty, the maximum penalty for the due diligence contravention is the maximum penalty that could be imposed on an individual for a contravention of that duty: section 27(3) of the WHS Act.
