12 August 2020 posted by Nadine Neate

When it comes to work health and safety (WHS), most people have good intentions. They want to do the right thing by their people and ensure everyone within the business feels safe and stays healthy in the workplace. But, when it comes to correctly adhering to the official government Work Health and Safety Act, there are a number of considerations to be made. So, to help provide clarity and reassurance, we’ve explored some of the most common questions around WHS due diligence.

What is due diligence in WHS?

Due diligence refers to the duty taken to ensure the Person Conducting a Business or Undertaking (also known as PCBU) complies with the Work Health and Safety (WHS) Act and regulations. A PCBU is basically just the official way of referring to the organisation’s leaders, such as a management team or owner.

The due diligence process is designed to ensure the PCBU has a good understanding of the potential hazards and risks their business is exposed to in the course of their operations. This is so they can dedicate appropriate resources and set up internal processes to minimise, or ideally completely remove any threats to the health and safety of their people.

So, whose job is it to undertake WHS due diligence for a business?

The person in charge of undertaking WHS due diligence within a business is known as an officer. An officer can be someone in a number of different senior roles, but it’s normally someone who has a substantial amount of decision-making authority and financial control over the PCBU. Officers can either be paid or a volunteer, but regardless they are advised to complete training to ensure they understand what due diligence is and what their obligations are.

In the Corporations Act, an officer is formally defined as ‘directors or secretaries of organisations, such as company directors, chief financial or operating officers and those in executive positions who operate, control or govern a PCBU or part thereof’.

How does an officer perform their duty successfully?

Officers must ensure that their business complies with the health and safety duties laid out in the Work Health and Safety Act. So, it’s their responsibility to ensure that the organisation has appropriate WHS systems and processes in place, but also to review health and safety in an ongoing capacity.

There are a number of different areas of WHS an officer has to consider to fulfil their due diligence. These include:

  • Staying on top of updated WHS legislation and matters.
  • Understanding the specific risks workers within their organisation face, and implementing processes to minimise or ideally, eliminate these risks.
  • Communicating relevant WHS information to workers and ensuring they are empowered to respond to communication or raise concerns.

Ultimately, an officer’s main role is to create and implement processes that comply with all the duties and requirements under WHS law. If they are able to do that, then in all likelihood, everyone within the business will be safe, healthy and happy. More details about how to interpret and apply WHS, as well as how to report a suspected incident can be found in the WHS Act.

How can an organisation support a volunteer WHS officer?

If an officer is a volunteer, it can be a good idea to provide them with a little extra support to ensure they can get the job done to the standard required. Initiatives such as including WHS on board meeting agendas, creating formal evaluation processes and having key contact people available within the organisation for the officer to liaise with, will help them feel connected with the business. It’s also a good idea to offer training to volunteer officers, so they can learn more about what the business does and the sorts of work performed by workers. This will provide them with a deep understanding of all the risks and processes workers may be exposed to.

What are the consequences if WHS due diligence isn’t performed properly?

An officer in a paid position within the business can be personally prosecuted if they fail to comply with WHS due diligence duties. However, a volunteer officer cannot be prosecuted as an officer, but they can be prosecuted as a worker if they are found to have not taken ‘reasonable care’. While this might seem a little confusing, the reason for this distinction is that the government does not want to discourage willing volunteers from participating as officers.

Ultimately, performing WHS due diligence correctly shouldn’t be about ensuring that an organisation meets legal requirements (although this is, of course, important too). It should be about creating a work environment where people feel protected and business leaders’ have peace of mind that everyone within the organisation will be going home safe and well at the end of the day.

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Disclaimer – these articles are provided to supply general safety information to people responsible for OHS in their organisation. They are general in nature and do not substitute for legal and/or professional advice. We always suggest that organisations obtain information specific to their needs. Additional information can be found at www.workcover.nsw.au