The punitive powers of the Federal Work Health and
Safety Act 2011 may stretch very far.
The Commonwealth's health and safety duties can extend to
cover workers employed by private companies that the Government
contracts to provide services. When considering that the vast array
of contracted services includes construction, engineering and other
inherently risky work, it is clear the Commonwealth's potential
liabilities have increased significantly – and, with them,
the individual liability of some government employees.
Failure to comply with these duties can lead to criminal
penalties of up to $600,000 or up to five years in prison. It is
critical that public servants understand how to exercise due
diligence to ensure that the Commonwealth complies with its
workplace health and safety obligations.
What does due diligence really mean?
According to Safe Work Australia, accountability for officers is
imperative because those individuals are ultimately responsible for
the success or failure of an organisation's health and safety
An officer of a Commonwealth agency is expected to exercise due
diligence by ensuring that appropriate WHS procedures are
implemented and enforced in workplaces. These officers are not
expected to be involved in the day-to-day activities and
occurrences in a workplace, nor are they expected to be WHS
specialists. However, they are expected to stay apprised of
incidents that occur, and acquire knowledge about WHS practices in
their organisations and whether those practices are effective.
So, who is an officer of the Commonwealth?
Unfortunately for Government agencies, the answer to this
question is unclear.
The WHS legislation defines an officer of the Commonwealth to
mean a person who makes, or takes part in making, decisions that
affect the whole, or a substantial part, of a business or
undertaking of the Commonwealth. The same definition applies to
officers of public authorities. This is evidently a very broad
definition that requires interpretation by the courts. The
legislation expressly excludes ministers.
It is clear that some positions will automatically assume
officer status under the WHS laws – departmental secretaries,
branch heads and chief executives of public authorities are all
likely to owe a duty of due diligence. However, it is also possible
that the heads of smaller agencies within large departments will be
considered "officers" under the WHS legislation because
they exercise significant decision-making power over the
No prosecutions against a Commonwealth officer have been carried
out to date, so there is no specific judicial guidance on the
meaning of "officer" of the Commonwealth. Previous
prosecutions of officers of private companies indicate an
individual must occupy a very senior position to be classified as
an officer. The NSW Industrial Relations Commission (as it then
was) has previously held that, even where a person's job title
is "manager", if that person is simply implementing
policy and is not making decisions about the actual content of that
policy, then they are probably not involved in the management of
that business or undertaking. In the public service context, this
means it is unlikely that a person below the senior executive level
would be classified as an officer of the Commonwealth.
The best safeguard against WHS risks is a culture of vigilance
and accountability at all levels, regardless of whether an
individual is at risk of prosecution under WHS laws. This includes
getting targeted advice about effective risk management in your
specific agency. While individual criminal liability is a new
frontier for the Commonwealth and its employees, the
Commonwealth's clean bill of health on WHS matters gives hope
that the scope of the WHS laws, and the culpability of individuals
under the scheme, will not need to be tested anytime soon.
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
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