The new Work Health and Safety Act 2020 (WA) (the Act) introduces the concept of personal liability on those deemed to have a duty of care. It is applicable to all duty holders particularly those who are PCBU’s (Person Conducting a Business or Undertaking) or those found to be Officers. The duty is non-delegable. It cannot be insured against or be subject to other forms of indemnity.
It is a well-known fact that internal teams developing, implementing, undertaking, or exercising operational effectiveness of a Safety Management Systems (SMS) suffer from bias. It is ever present. Research confirms that personal perceptions or influence by those with a vested interest can and do overreach impartiality. In short, bias can leave PCBU’s, and its Officers exposed to the risk of potential personal liability.
There are multiple layers of duty holders within any organisation however it is the PCBU’s who are deemed to have the primary duty of care. Officers must exercise due diligence. PCBU’s and Officers are jointly responsible to develop, implement and monitor operational compliance that ensures, so far as is reasonably practicable, safe systems of work leading to a safe place of work.
An independent review can identify gaps in the SMS that when adopted improves compliance. This demonstrates proactivity on the part of the PCBU’s or its Officers. Proactivity may support PCBU’s or Officers assertion that he or she has done, so far as is reasonably practicable, all that was capable of being done to prevent harm in the workplace.
Fides Safety Management’s (FSM) team of subject matter experts provides impartial and independent analysis of an organisation’s internally developed SMS.
If you are a PCBU or Officer you may be interested in considering how to reduce potential personal liability.