Due Diligence prosecutions under WHS Legislation (and other fairy stories)

Due diligence was supposed to be the health and safety “boogie man“, hiding under the beds of boards and CEOs – keeping them awake at night and focusing their minds on health and safety. The truth is the due diligence provisions in WHS legislation have made no practical change to the legal regulation of health and safety management at an executive level (whatever their theoretical legal effect might be) and continue the long-running lack of interest in health and safety at a boardroom level that Australian regulators have evidenced for years.

I am happy to be corrected on numbers, but as far as I can tell, since introduction of WHS legislation in about January 2012, there have been 819 workplace fatalities according to Safe Work Australia’s figures. I do not know how many of those resulted in prosecutions – it is extraordinarily difficult to draw the disparate data of health and safety regulators together to create a meaningful picture. But what does seem fairly clear, is that there have only been a handful of prosecutions under the due diligence provisions of WHS legislation. Moreover, every one of those has been against a small business and the person prosecuted has some hands-on, day-to-day involvement with the work being performed. There is no example as far as I can tell of a “company officer” who is removed from the day-to-day operations of the business.

Presumably, all of the boards and chief executive officers of large organisations who have suffered workplace fatalities are exercising effective due diligence. I think it is far more likely that the question has not even been asked and this level of executive management has not been subject to any scrutiny whatsoever about their oversight of health and safety management. Again, I stand to be corrected.

None of this should come as a surprise to anybody who has an understanding of health and safety prosecutions in Australia over the years. Nearly every example of “management” prosecutions have been against managers of small businesses with day to day involvement in the operations of the business.

A 2005 paper by Neil Foster found:

In cases involving formally appointed directors, almost every case involved a director who was heavily involved in decisions or actions “on the ground” which led directly to the incident concern (page 114).

and

Almost all the companies concerned (as far as can be judged from the reports examined) were either effectively “one-person” companies or at least small family companies with limited assets. … The directors concerned were almost all likely to have high personal knowledge of workplace procedures and, as noted above, many were heavily involved in the particular incident concern. There are no examples in these cases of a large company where a member of the board was held liable for failure to exercise “due diligence” in addressing the issue of safety (page 116).

(Personal Liability of Company Officers for Corporate Occupational Health and Safety Breaches: Section 26 of the Occupational Health and Safety Act 2000 (NSW), (2005) 18 Australian Journal of Labour Law, 106)

Nothing, it seems has changed.