Due diligence is a familiar concept for an officer. Identifying who is an officer is the first step to discharging the duty to exercise due diligence.
A definitive interpretation of who may or may not be deemed to be an officer within the Work Health and Safety Act 2020 (WA) awaits determination. There are however generic tests. They are not conclusive particularly when considering who may be deemed to be an officer. The assessment turns on the facts and degree of a person’s roles and responsibilities within a Person Conducting a Business or Undertaking (PCBU). Officers have a non-delegable due diligence duty. They may seek the assistance of others to help them meet their duty however they cannot abdicate their primary responsibility as an officer.
The due diligence duty is a duty imposed on officers personally. It is separate from the duty imposed on the PCBU. The duty is proactive. It is a duty to ensure the PCBU establishes a corporate governance regime that, amongst other things, causes the PCBU to develop, implement, and manage the operational aspects of a safe system and safe place of work.
The role is not static. The principles are deliberately broad in nature, whilst the majority of work health and safety policies include a component of risk mitigation, they also have a degree of commonality. Uniqueness in the subjective variability of the risk profile may introduce intensity of response. The due diligence requirement will change. Officers, or those deemed to be officers, must be vigilant and respond to the risk profile or find themselves potentially personally liable.
In short, an organisation that meets the definition of a ‘PCBU’ is inanimate. It is the acts or omissions of officers that may cause, or failed to cause, the PCBU exercising its primary duty of care.
Fides Safety Management team of subject matter experts provides impartial and independent advice on how to reduce potential personal liability by those deemed to be officers.
For more information, please visit www.fidessafetymanagement.com.au or contact us at admin@fidessafetymanagement.com.au
