Safety Starts at the Top – Officers’ Personal Liability for WHS Breaches
Law as stated: 28 January 2022
What is this?
This episode was published and is accurate as at this date.
In this episode, Judge Peter Rozen KC reflects on his work assisting the Royal Commission into Aged Care Quality and Safety, applying case studies and stories to WHS law. Peter also discusses the differences in Work Health and Safety laws between states and the adoption of the model law. Peter also discusses officers’ duties under WHS law and the need to actively implement safe management plans.
The importance of proactive involvement with workplace safety, and personal liability under work health and safety (WHS) laws.
Why is this topic relevant?
The model WHS laws aim to harmonise health and safety standards for workers across Australian jurisdictions. Although most states (excluding Western Australia and Victoria) have adopted the model WHS laws, differences remain both in practice and enforcement.
Section 27 of the Work Health and Safety Act 2011 (Cth) provides that an officer of a person conducting a business or undertaking (PCBU) must exercise due diligence in ensuring their business or undertaking complies with relevant WHS laws.
Modern due diligence under section 27 can mean proactive involvement in work safety compliance.
What legislation is considered in this episode?
Work Health and Safety Act 2011 (Cth) (WHS Act)
Work Health and Safety Act 2011 (NSW) (WHS Act (NSW))
Corporations Act 2001 (Cth) (CA 2001)
Occupational Health and Safety Act 2004 (Vic) (OHS Act)
What cases are considered in this episode?
R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181
A construction worker fell through a hole which was not barricaded. In the County Court, CICC Group pleaded guilty to a breach of the 1985 predecessor of the OHS Act. In issue in the VSCA was whether the sentence imposed was manifestly excessive. The court found that although CICC Group had formally adopted a safety management system, its duty was not discharged as it was not actively implemented. The VSCA dismissed the appeal.
Construction, Forestry, Maritime, Mining and Energy Union, Mr Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal [2021] FWCFB 6059
Mt Arthur Coal, a member of BHP Group, implemented a COVID-19 vaccination site access requirement. In issue in the FWCFB was whether the access requirement was a lawful and reasonable direction. The FWCFB noted that a vaccination mandate can be a lawful and reasonable direction, however, Mt Arthur had not complied with its work health and safety consultation obligations under the WHS Act (NSW) (based on the model WHS laws).
What are the main points?
There are minor differences in legislation between states that have adopted the model WHS law. Victoria and Western Australia are yet to adopt the model law and differ quite significantly in some key areas. This includes the use of the term employer instead of PCBU.
For the purposes of WHS law, the definition of “officer” piggybacks on the definition contained in the CA 2001.
An officer must exercise due diligence in ensuring compliance with WHS regulations, otherwise they may be held personally liable.
What are the practical takeaways?
The most effective way to reduce workplace incidents and injuries is to encourage a participatory approach to safety. If you are an officer of a company, go to the actual workplace that you are in charge of to ensure that WHS regulations and the safety management plan are being complied with.
Utilise effective management tools that convey WHS information as simply as possible. This can be achieved through employee education programs or one-page pictorial summaries of WHS issues.
Substantive Law