WHS Due Diligence for Council Officers

In the 14 months since February 2018, the NSW District Court has convicted and fined at least 12 individual officers for failing to comply with their due diligence obligations under section 27 of the Work Health and Safety Act 2011 (NSW) (WHS Act). While the average fine has been only approximately $16,000, the importance of complying with these obligations was recently highlighted when an officer in Queensland was sentenced to 12 months jail for failing to comply with his due diligence obligations.

Council’s officers are not immune from similar enforcement action.

Officers of councils in NSW have a duty to ‘exercise due diligence’ to ensure that their council complies with its own duties and obligations under the Act, including Council’s primary duty to ensure, so far as reasonably practicable, the health and safety of workers and other persons.

A failure to comply with the duty to exercise due diligence can expose an officer to an individual criminal penalty of up to $600,000 or 5 years imprisonment or both.

Who are Council’s Officers for the purpose of the WHS Act?

For the purposes of the WHS Act, an ‘officer’ of a ‘public authority’, which includes a Council established under the Local Government Act 1993, is:

‘A person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking of a public authority is taken to be an officer of the public authority for the purposes of this Act’

In practice, a council’s officers will generally be a council’s General Manager and those reporting directly to the General Manager (which will generally be the council’s director-level employees engaged in senior staff positions under a Standard Contract of Employment for Senior Staff).

Relevantly, however, any elected member of council, acting in that capacity, is not an ‘officer’ for the purpose of the WHS Act and, therefore, does not have due diligence duties under the WHS Act.

What does the duty require?

An officers duty to exercise due diligence requires the officer to take reasonable steps to ensure their council is complying with its own duty. This includes taking reasonable steps to:

• acquire and keep up-to-date knowledge of work health and safety matters;

• gain an understanding of the nature of the operations of the Council and generally of the hazards and risks associated with those operations;

• ensure that the Council has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of Council’s operations;

• ensure that the Council has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information;

• ensure that the Council has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under the WHS Act; and

• verify the provision and use of the resources and processes referred to in the bullet points three to five above.

Practical guidance

Council officers should be comfortable that they can demonstrate that they have taken reasonable steps to ensure that council complies with its WHS duties, and they may be directed to do so by SafeWork NSW in the event of a serious incident.

We have set out in the table below a number of practical steps that officers ought to consider adopting:

Reasonable Steps	Practical Examples
Acquire and keep up-to-date knowledge of work health and safety matters	+ Ensure that WHS matters are addressed at regular senior staff meetings (with input from WHS personnel) + Monitor and review council’s safety performance including leading and lagging indicators + Attend WHS training + Keep up to date with publications addressing WHS issues
Gain an understanding of the nature of the operations of the Council and generally of the hazards and risks associated with those operations	+Obtain an awareness of council’s core functions, and the activities, hazards and risks associated with those functions + Obtain an understanding of the council’s higher risk functions, and the activities, hazards and risks associated with those higher-risk functions +Conduct regular site visits, attend work briefings and understand day-to-day operations +Conduct regular check-ins with WHS personnel in relation  to hazards and risks
Ensure that the Council has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of Council’s operations	+Ensure that there are appropriate internal and external safety personnel to support council’s operations +Ensure that safety personnel have appropriate authority and reporting lines to implement systems and changes +Ensure that internal and external safety personnel are appropriately resourced to perform their functions +Conduct meetings with WHS personnel to ensure that they are appropriately resourced +Consider safety when making budget decisions
Ensure that the Council has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information	+ Ensure that the council has an adequate safety management system to adequately receive and respond to incident and hazard reports +Ensure that council personnel are familiar with the safety personnel +Conduct audits of council’s safety reporting system
Ensure that the Council has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under the WHS Act	+ Ensure that council conducts regular audits of its policies and procedures to ensure that they reflect any legislative or operational changes + Allocate responsibility for the implementation of council’s safety management system to appropriately competent and qualified personnel +Ensure that adequate training and instruction is provided for health and safety representatives and workers
Verify the provision and use of the resources and processes	+Ensure that systematic audit and review processes are in place to review the implementation of council’s safety management system, and can recommend improvements + Obtain external verification of safety management systems (e.g. as against AS 4801 or ISO 45001)

Complying with officer duties is not complicated, but it is something that requires forethought and a proactive approach to safety.

If you would like to discuss the above or any other safety-related matters, please contact the Employment Relations and Safety team at McCullough Robertson.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.