Doing a gap analysis may save you from prosecution
In the unfortunate event of there being an WHS incident in your workplace, SafeWork NSW may come out to investigate.
When SafeWork NSW completes their investigation, they will consider if they will prosecute and who they will prosecute. They use the guidelines set out in SafeWork NSW Prosecution Guidelines. Section 3.20 of those Guidelines tells us that:
“When making decisions concerning prosecution of officers of corporations under the WHS Act, particular regard will be paid to the steps taken by such persons to ensure compliance by the corporation with the Act.
In order to stay on top of your health and safety obligations, your WHS management system may require periodic review. There are specific things that business owners and company directors must do to ensure the WHS management system remains robust, and these are bullet pointed in Section 27 of the WHS Act.
A PCBU (business) has the primary duty of care for workers and others, and must eliminate, or minimise so far as reasonably practicable, risks to health and safety (Section 19 WHS Act)
Under Section 27 of the WHS Act, an Officer (directors and CEOs) must ensure that the PCBU complies with its duties. These duties are non delegable duties* - meaning you cannot give them to someone else and make them be responsible for them, nor can you subcontract your duties out to an outside company and hold them responsible for them either. (This is different to engaging an external provider to assist you with fulfilling your duties.) See Section 14 and Section 272 of the WHS Act. "Delegate" means "to give to someone else." Non-delegable duty is not a form of strict liability. It is a duty or duties given in a legal instrument (such as the WHS Act or WHS Regulation) for which the assigned duty holder is 100% responsible for fulfilling.
A review of your actions such as an Officer WHS "Due Diligence" Compliance Assessment is a valuable tool that you could use to help identify gaps in WHS compliance in your workplace and protect officers and senior managers, by taking appropriate actions to safeguard health and safety. Courtenell provides this service.
Informally called a "Section 27 audit", this is where one of our WHS experts comes to your workplace and interviews the officers of your business (who are obligated under Section 27 of the WHS Act) and performs a gap analysis to compare the requirements for officers with what is being done at your workplace in accordance with those requirements. You may already be doing many or all of these requirements well. If so, doing this compliance assessment may benefit the business with supporting evidence and proof of the robustness of your WHS management system, having been validated by an external professional. In the event of an investigation by SafeWork NSW, presenting results of a successful gap analysis may help with proving steps were taken "as far as is reasonably practicable" in the matter.
At the end of the service, you will be given a detailed report about what was found and any recommendations on how to improve compliance.
This same service may also help with your accreditation or maintenance of accreditation to ISO 45001.
For more information on WHS training or WHS compliance services, or if you would like help to make your WHS management system even more robust, please feel free to contact us at train@courtenell.com.au or phone us on 02 9552 2066.
* "Delegate" means "to give to someone else." Non-delegable duty is not a form of strict liability. It is a duty, or duties given to a duty holder in a legal instrument (such as the WHS Act or WHS Regulation) for which the assigned duty holder is 100% responsible for fulfilling. Examples: Where there are risks or hazards associated with performing one's job, the PCBU (employer) shall provide safe systems of work, including information, instruction, training, and supervision to eliminate or control those risks as part of its overarching Primary Duty of Care (Section 19 WHS Act) and its duty to manage risks in the workplace (Clause 31 WHS Regulation.) Business owners and company directors (as officers of the PCBU) have specific duties to ensure the business meets its primary obligations (Section 27 WHS Act.) All of these examples are non-delegable duties.
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