Due Diligence

A leading OHS lawyer reported at a recent conference that the number of individuals being charged with OHS offences was increasing, and provided advice on how best to avoid prosecution.

Speaking at The Safety Conference in Sydney (13th Oct 2004), Deacons partner Michael Tooma said that individual prosecutions for OHS offences were on the rise.

Tooma said OHS laws in most jurisdictions had provisions making directors and persons concerned in the management of a corporation personally liable in relation to OHS breaches by their corporation.

In WA, officers of a company would be held personally liable if it was established that an offence was committed with their consent or connivance, or was due to their wilful negligence.

Tooma suggested that OHS managers should use the threat of personal liability as a tool to achieve compliance with OHS legislation within their organisation.

Due diligence - how to satisfy the defence

Tooma said that in considering whether a manager or director had exercised all due diligence, the courts would take into account the following:

• Was the person familiar with their OHS obligations and relevant codes of practice and industry standards?
• Did the person have a system in place to manage OHS risks? Did they adequately oversee compliance with that system?
• Did the system comply with industry standards and practices?
• Did company officers report back to the board/senior management on the operation of the system?
• Were safety concerns reported in a timely manner?
• Did the person react personally and immediately upon becoming aware of system failures?

He said that employers should ensure they had an OHS management system in place (AS/NZS 4801:2001 would be held appropriate by the Court); the system should be regularly audited to ensure it was being complied with; reporting on the performance and implementation of the system (using Key Performance Indicators and Positive Performance Indicators) was crucial; and senior managers should be committed to the implementation of the system to ensure it was enforced.