The Australian Capital Territory has become the first jurisdiction under the nationally harmonised workplace health and safety laws to prosecute an officer for failing to exercise due diligence.
Implications for employers
Nationally harmonised laws are in force in all States and Territories except for Victoria and Western Australia. Officers subject to the harmonised laws must ensure that they:
are complying with their statutory duty to exercise due diligence to ensure that their business is complying with its statutory obligations;
are aware of the significant penalties that can be imposed for failing to comply with their statutory duty, which in the most serious cases could include imprisonment; and
are aware that they can be charged with an offence, even where the company is not charged.
Officers in Victoria and Western Australia should remain conscious that they can be personally liable for health and safety breaches in some situations.
Under section 27 of the Work Health and Safety Act 2011 (ACT) (WHS Act), an officer has a positive obligation to exercise due diligence to ensure that the company complies with its work health and safety duties. This duty is reflected in the other laws that apply in the States and Territories that have enacted the harmonised health and safety laws.
The WHS Act describes what is involved in conducting due diligence. This includes taking steps to keep up to date with health and safety matters and ensuring that sufficient resources are available to eliminate or minimise risks.
An officer can be charged under different provisions of the WHS Act depending on the circumstances of the offence. A breach that involves reckless conduct carries a maximum penalty of $600,000, five years imprisonment or both.
The Australian Capital Territory is the first jurisdiction since advent of the harmonised work health and safety regime to launch a prosecution of an officer for a failure to exercise due diligence.
The prosecution is as a result of the electrocution of a 48 year old truck driver, who subsequently died. Both the company, Kenoss Contractors Pty Ltd, and an officer have been charged with failing to comply with health and safety duties. The officer has pleaded not guilty to the charge.
As this case unfolds, it will likely provide important guidance on the practical interpretation of the officers’ due diligence requirements set out in the ACT WHS Act and corresponding harmonised legislation in other jurisdictions.