Key Points:

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 processes.

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 agency.

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 following case helps to illustrate this: in Inspector Kumar v Ritchie (2006), Workcover NSW successfully prosecuted a multinational company's chief executive over a workplace explosion that killed a site manager in Sydney. The chief executive spent less than one day a month managing the affairs of the Australian subsidiary but was found guilty of failing to exercise due diligence by ensuring that the site had appropriate WHS policies and procedures. The Australian subsidiary's general manager, who had only visited the site twice, was also found guilty. By contrast, the WHS officer at the site, who had no WHS qualifications or experience, was not prosecuted.

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.

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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. Persons listed may not be admitted in all states and territories.