WHS Due Diligence Reviews are Important
The importance of reviewing your WHS management system and ensuring that directors demonstrate their WHS "due diligence" requirements, was covered famously in a NSW case which has been cited in many newer cases where a business owner or company director has faced similar charges for failures to demonstrate their WHS "due diligence" obligations. In WorkCover Authority (NSW) (Inspector Mansell) v Daly Smith Corporation (Aust) Pty Ltd and Smith, the judge noted that:
“[due diligence] is not done by merely hoping others would or could do what they were told, but also ensuring they have the skills to execute the job they are required to do and then ensuring compliance with that in accordance with the safe standards established.
Compliance requires a process of review and auditing, both formal and random, in order to ensure that the safe standards established are in fact being adhered to and under ongoing review”.
Key points in WHS Law are:
A PCBU (business, organisation, corporation, etc) 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
An Officer (of a PCBU) must exercise due diligence to ensure that the PCBU complies with any duty or obligation they have under the WHS Act.
Officers are not always in the workplace where the action is. They are the people who run the company. As business owners and company directors, they use their leadership team to help them meet their legal obligations. This does not mean they are "passing the buck." But they need to be on top of what their team are doing. A failure by the team is a failure of the business owner (officer) and a failure of the company (PCBU.)
Something that directors and CEOs can do to see how they are doing in carrying out their due diligence obligations is to do a WHS Legislative Compliance Gap Analysis.
Courtenell will send a WHS expert to your company to meet with your directors or leadership team to review your WHS policy and associated documentation against the mandatory and applicable sections of the WHS Act 2011 that the officers of your company are required to be in compliance with. A report on the findings, including recommendations for improvement, is then made and given.
You could do such a review in-house if you have the resources, or you could engage a WHS consultant to do the review. Courtenell is available to do a WHS legislative Compliance Gap Analysis if you would like some help.
For further information, or for help with your WHS management system, please feel free to contact us at train@courtenell.com.au or phone us on 02 9552 2066.
10th April 2018
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