Directors and officers have a personal duty to exercise “due diligence” to ensure their company is complying with its obligations under the harmonised work health and safety laws. A recent case gives an insight into what’s required to meet that threshold.
A director and employer were charged under the (now repealed) OHS Act after an employee, Mr Lama, caused an extensive fire while decanting liquid for manufacturing paint thinner. Mr Lama was qualified, experienced and trained in the task. But on that occasion, he neglected to adequately check the equipment.
The employer, Omega International Coatings, pleaded guilty and copped a $40,000 fine.
The director, Mr Shetty, was personally charged for failing to “use all due diligence to prevent the contravention”. He defended the charge, and it paid off.
Mr Shetty successfully avoided a conviction on account of having:
- engaged an industry consultant to prepare hazard analyses, safety documentation and procedures for decanting liquids;
- commissioned an accredited dangerous goods consultant to produce a Dangerous Goods Handling Manual;
- employed a qualified chemist who developed risk assessment procedures including a decanting work procedure; and
- implemented safety documentation by ensuring that employees, including Mr Lama, were trained on the relevant procedures.
The Court held it was “difficult to see what more he could have done” when dismissing the charges against Mr Shetty.
Makes sense to us.