Directors and OHS / WHS Laws: Who Takes The Blame When Things Go Wrong?

Did you know that as a company director, you could be held personally liable for occupational health and safety incidents at your workplace?

There are a number of different state regulations that could attribute fault to a director when a workplace accident occurs.

For the purposes of this article, we will highlight some vital discussion points based on offences categorised and punishable under the various legislation in each state.

It is imperative that you take the time to fully consider the ramifications of non-compliance, to become aware of any weaknesses in your company’s OHS/WHS management plan, and to make necessary changes as soon as possible. In doing so, you are not only saving lives, but drastically reducing potential legal and financial risk both to yourself and to your company.

Below are some commonly asked questions and answers that may help you determine your responsibilities under OHS/WHS legislation.

What if I am not conducting the day to day activities in the business?

Even where directors play a limited role in directly managing the business, they are still considered liable and responsible for ensuring that their management team is capable and competent to implement and maintain correct safety procedures.

An example of this distinction is Fry v Keating (2013), where the Court of Appeal of the Supreme Court of Western Australia found that ‘the company’s failure was attributable to neglect on the part of its directors’, whose health and safety duties ‘included taking steps for the provision and maintenance of a safe system of work in connection with the slinging of L68 Packs’. Although Western Australia is not yet harmonised to the WHS legislation, this example shows how company liability can be traced back to the action or inaction of company directors.

Doing what is ‘reasonably practicable’…

WHS legislation in each state requires a PCBU (Person Conducting a Business or Undertaking) to ensure workers’ health and safety as far as is ‘reasonably practicable’. If all risks to health and safety cannot be completely eliminated, then they must be limited as much as possible.

What is due diligence?

Due diligence for a director or other PCBU includes acquiring current knowledge of work health and safety protocols, being familiar with the risks associated with their particular business operations, as well as using appropriate resources and processes to eliminate or minimise risks.

A director is also required to ensure there are processes for delivering health and safety information (e.g. information on incidents, hazards, risks and risk control measures) to workers, processes for regulatory compliance, and methods for verification of the implementation and review of work health safety resources and risk control measures.

Need help meeting all your OHS/WHS responsibilities?

JTA Health, Safety & Noise are experts in the field. We have been in the business for almost 30 years and have accumulated a wealth of experience in practical compliance programs for a wide range of industries nationally. At JTA, we offer a customised approach to improving OHS/WHS at your workplace, offering you peace of mind and saving you money. Call JTA today to find out how we can help you fulfil all your safety obligations, minimising risk to your business in the process.

Disclaimer: This article is not intended as legal advice, and was correct at the time of writing. Legislation may vary between states, and is subject to change. For current and specific work health and safety advice customised to your industry, location and business circumstance, call JTA today.

(Information for this article was sourced from a document published in 2014 by the Australian Institute of Company Directors, as well as information from Safe Work Australia.)