Officer ordered to have "Due Diligence" training

Up until this time it has been rare to see an Officer of a business or organisation prosecuted, fined and given an order to do WHS training. But it just happened in the NSW District Court on the 10th of April 2019.

In SafeWork NSW v Macquarie Milling Co Pty Limited ; SafeWork NSW v Samuels [2019] NSWDC 111, as shown in paragraphs 118, Judge Russell ordered that in addition to paying a fine, the Officer must:

➢ Undertake a course in due diligence training within six months (Section 241 WHS Act)

➢ Undertake a course in WHS management for supervisors and managers within six months

➢ Within 2 months of completing the training courses, prepare a Due Diligence Plan setting out how the Officer’s due diligence requirements will be satisfied.

➢ Within 2 months of completing the Plan the Officer must meet with the SafeWork NSW Inspectorate to review and finalise the Plan.

Why Did The Judge Make This Order? A Judge can make a training order under Section 241 of the WHS Act or order that a WHS project be carried out under Section 238 of the WHS Act. But as Judge Russell said;

“Such orders are commonly made in other jurisdictions but not in NSW.”

However, Judge Russell had reason to believe that such orders would be suitable and successful in the case before him. He said:

“Judge Scotting of this court made similar orders in SafeWork NSW v Wu and Zenger (Aust) Pty Limited [2018] NSWDC 211. Counsel for the prosecutor in these proceedings also appeared in Wu and Zenger. Those matters recently came back before Judge Scotting, and evidence was presented that the orders had been complied with and had, in effect, been a success. I find that these proceedings are appropriate cases in which to make similar orders.”

As a result, we could expect that orders for WHS training will become a common occurrence in suitable cases that come up for prosecution.

For more information, 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

If you would like to share this article, feel free to do so. Select "print" in your browser and choose "save as PDF"

16th April 2023

Copyright © 2023 Courtenell. "The pinnacle of WHS training" All rights reserved.

---