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Early reluctance by boards and senior executives to acknowledge personal liability for company workplace health and safety (WHS) breaches has been replaced with acceptance and realisation they must be safety literate, a new report suggests.

The new ‘officer’s duty’ under the harmonised WHS Act is designed to make boardrooms, and those working closely with them, ensure their businesses have appropriate WHS systems that are adequately resourced and have adequate processes.

Reporting on the duty, Corrs Chamber Westgarth’s Workplace Relations Employment, Workplace and Safety Law: Mid-Year Review 2015 warns a recent decision of the Supreme Court of NSW (Perilya Limited v Nash [2015], NSWSC706, 5/6/15) opens a new door for WHS regulators to hold boards and executives accountable.

The case demonstrates that WHS regulators are seeking, and are entitled to seek, information created for board use (as long as the information does not attract legal professional privilege).

Further, the WHS regulator’s power to seek “board material” is not limited to documents that specifically refer to safety matters, as the court held that the absence of safety information in documents may prove that a WHS duty has been breached.

Corrs says board members and senior executives need to be ‘safety literate’ so they can sign off, on an informed basis, on safety initiatives and robustly interrogate their executives about safety – in much the same way that they must be financially literate in order to sign off on financial matters.

Who is an officer?

Meantime, difficulty in identifying “officers” has meant those that sit on the cusp of the officer’s definition tend to be asked by their organisations to comply with the officer’s duty, Corrs warns.

There are some concerns that the question of who is an officer will be relevant if the regulator is considering a prosecution. In order to deal with this issue, some commentators have suggested the WHS Act be amended to provide that a person, who would not otherwise be an officer under the WHS laws, does not make themselves an officer simply by complying with the officer’s duty.

“Generally, our clients suggest an acceptance of officer liability in the form set out in the WHS Act and a belief that the due diligence provisions have created an increased focus on health and safety with the potential to achieve improved outcomes in the workplace,” the Corrs report says.

“There is strong support amongst some part of the business community for the six-part ‘explanation of due diligence’ as set out in section 27(5) of the WHS Act. However, it should be noted that the Business Council of Australia wants the officer laws to be more aligned with those that apply in Victoria and in particular notes that in Victoria, officers are only liable for WHS breaches if the body corporate contravenes the legislation.”

The increased awareness of the ‘officer’s duty’ and the personal liability that flows from it has also meant boards and senior executives are casting a more critical eye over how they are affected by their partners in business.

Harmonisation has ‘significant’ prosecution impact

The Corrs report notes the harmonised WHS Act has had a “significant” prosecution impact, with defendants (particularly in NSW) now having options other than entering into a plea agreement. Under the Act, “defences are available again”, the report says.

Corrs says prosecutions stalled in most model jurisdictions about six months prior to the commencement of the model laws and did not restart “with any vigour” until 12-18 months after the model laws commenced. During that period the dominant approach taken by WHS regulators was one of “advise and persuade”.

“Prosecution action has recommenced with some vigour, although few decisions have been made under the WHS Act. However, those that have been made signal that at least in NSW, we will see a radical departure from earlier WHS judicial approaches and this will have significant impacts for prosecutors and defendants,” its report said.

In NSW, WHS prosecutions are now primarily heard in the District Court of NSW. In the first defended hearing to be determined WorkCover v Patrick Container Ports (February, 2014), Justice James Curtis considered the fatal injury of an employee who was aware of the relevant risk and the safe work method procedure he was required to adopt – but didn’t apply it. The employee had significant amounts of methamphetamine in his system at the relevant time.

WorkCover alleged a range of workplace risks against Patrick Container Ports that largely related to a lack of documented systems. Justice Curtis found that the employee had been trained about the safe procedure and his non-compliance with it would not have been changed if a documented process had been in place.

Corrs said the case signalled that the prosecutor must prove beyond reasonable doubt that the defendant did not take all steps reasonably practicable to ensure the health and safety of its workers. This means that defendants now have options other than reaching agreement on a plea; defences exist and should be pursued where appropriate. Further, defendants should have increased bargaining power when discussing potential plea agreements.

Boundary tests

A pipeline of prosecutions is currently underway to test some of the boundaries of the ‘officer’s duty’, Corrs report says. Chief among them is will the officers of large companies be prosecuted for breach of the officer’s duty or will it tend to be prosecuted when the officer has been working close to the ‘coalface’?

Under predecessor OHS legislation, the officers of small organisations tended to be prosecuted and they were generally ‘hands on’ in the relevant operation (this led to the suggestion that there was defacto immunity for large company directors).

Corrs said the new officer’s duty was designed to make boardrooms and those working closely with them, ensure that their companies had appropriate WHS systems that were adequately resourced and had adequate processes.

Another important matter is can a company be an officer of another company under the WHS Act?

“For example can a holding or parent company be an officer for a subsidiary or operating company in circumstances where they fulfil aspects of the definition of an officer, such as being a person (albeit an unnatural person) making or participating in decisions which affect the whole or a substantial part of the company’s business?,” the report says.

With officer’s duty front and centre in the harmonised legislation, boards and senior executives will be watching with interest.

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