Under the Work Health and Safety Act 2011 (Qld) (WHS Act) and equivalent model WHS legislation, officers of a Person Conducting a Business or Undertaking (PCBU) have a personal duty under section 27 to exercise due diligence to ensure the PCBU complies with its WHS obligations.
This duty is proactive, non-delegable and penalties may apply for non-compliant individuals.
So it’s important to understand correctly.
Who is an Officer under Section 27?
The WHS Act adopts the definition of “Officer” from section 9 of the Corporations Act 2001 (Cth). It includes directors and company secretaries, but also individuals who make or participate in decisions affecting the whole or a substantial part of the business, those with capacity to significantly affect the company’s financial standing, and those on whose instructions directors are accustomed to act upon.
In SafeWork NSW v Aussie Skips [2022] NSWDC 276 the court found that Mr Emmanuel Roussakis, General Manager, was an Officer because he exercised substantial operational and financial control over the company, including authority over expenditure, invoicing and pricing. Following an on-site fatality, the Court found that Mr Roussakis was in a position to have taken reasonable steps to ensure that Aussie Skips implemented appropriate resources to eliminate WHS risks. Mr Roussakis was found to have failed to take those steps and was fined $60,000.
By contrast, in McKie v Al-Hasani and Kenoss Contractors Pty Ltd (In Liq) [2015] ACTIC 1, Mr Al-Hasani, Project Manager, was held not to be an Officer following a fatality. Although he managed projects and liaised with clients, he lacked any authority over the company’s finances and strategic decision making. Mr Al-Hasani had operational responsibilities in relation to specific projects, but did not have sway over the decision-making processes for the company as a whole.
What Does Due Diligence Require?
Section 27(5) sets out six elements of due diligence for Officers to address: maintaining WHS knowledge, understanding operational hazards, ensuring resources and processes, implementing systems for hazard reporting, ensuring compliance with WHS obligations, and verifying effectiveness.
In SafeWork NSW v Cameron Doueihi [2024] NSWDC 323, Scopeview Projects was engaged to carry out renovations at a property in North Bondi. A geotechnical report identified structural risks, yet no steps were taken to brace walls or implement safe work methods. Communication about safety was informal and there were no risk assessments or written safety plans. When a masonry wall collapsed, causing serious injuries, the court found that Mr Doueihi, the company’s director, had failed to ensure the company had appropriate resources and processes and had not verified WHS compliance. Mr Doueihi was fined $60,000.
By contrast, in SafeWork NSW v Mitchell Doble [2024] NSWDC 58 the court acquitted a director despite the company breaching its primary WHS duty. Mr Doble employed a dedicated safety manager, required regular reporting, and took an active interest in WHS issues. He visited sites and followed up on WHS concerns. The court accepted that due diligence does not require Officers to personally implement safety measures, but to ensure systems exist and are monitored. Delegation, when reasonable and supported by oversight can satisfy the duty of due diligence.
Practical Steps for Officers
For company Officers, compliance begins with leadership. Workplace health and safety should be a standing agenda item at board meetings. Officers can subscribe to regulator updates, review codes of practice, and seek specialist advice. Budget decisions should prioritise safety because courts have repeatedly criticised cost-cutting exercises that compromises risk management. Clear reporting lines for hazards and incidents, regular audits, and documented verification processes are essential.
These steps are not only best practice, but they can also help demonstrate you have met your obligations of due diligence if a prosecution arises.
Dealing with WHS Inspectors
Inspectors have extensive powers under WHS legislation, including entering workplaces without consent, securing scenes, seizing evidence, and compelling interviews. Employers should always accompany inspectors during visits, confirm whether questions or document requests are made under compulsion (i.e. under a specific section of the WHS legislation which requires compliance), and avoid creating new documents in response to requests.
Information provided voluntarily can be used against individuals, whereas compelled answers attract statutory protections. Officers should train staff on these protocols and seek legal advice when in doubt.
Conclusion
The duty of due diligence under section 27 of the WHS Act requires Officers to take active steps to ensure compliance. Officers who allocate resources, implement processes, and verify compliance create safer workplaces and reduce personal risk. Recent cases show that courts recognise reasonable delegation and oversight.
For tailored advice or assistance with compliance frameworks, please contact us.
