“Curiosity killed the cat” is a proverb “used to warn of the dangers of unnecessary investigation or experimentation” (Wikipedia) or is an idiom “said to warn someone not to ask too many questions about something” (Cambridge online dictionary). Yet for the modern officer, curiosity is a must, as it aligns with their personal WHS due diligence obligation.
Work health and safety (WHS) legislation, case law developments and many a published article on corporate governance (or lack thereof), confirm that in the case of an officer, failing to investigate or ask questions about WHS can lead to potential corporate, and personal, criminal liability. And there's more than just the legal side – there's the societal expectations, reputational risks, and human impacts on the officer and others.
Legal changes and criminal penalties often reflect what society expects and values. When society demands higher health and safety standards or accountability, laws and penalties are often updated to match those expectations. The current state of WHS law demonstrates how seriously Australian legislators take WHS:
- For more than a decade most Australian jurisdictions have had a definition of due diligence and a requirement that officers (meaning more than the board, CEO and company secretary) exercise due diligence to ensure the company complies with its legal WHS obligations.
- There's now a definition of corporate culture in one jurisdiction and provisions regarding the attribution of conduct of workers and agents to the body corporate in all jurisdictions.
- Each state and territory have an industrial manslaughter offence, meaning officers (or senior officers in Queensland) face maximum penalties of at least 20 years in prison if their conduct causes a death. The conduct categories vary by jurisdiction, including negligence, gross negligence, recklessness and knowledge of likely harm or death.
There has been a lot of commentary on recent cases highlighting the officer duties in larger organisations. Some of this commentary suggests that there is now a clearer picture of the requirements of an officer. Is this really the case? Sure, the consequence in at least one case was “new” but in the context of the increasing focus on WHS, is what was expected to meet their personal due diligence obligation really “new”?
When we boil it all down, one of the key issues is curiosity—whether it exists or is lacking. Officers must take timely action when information requires it. Being a passive recipient of information is not enough. Due diligence includes verifying other elements of the legislative requirements and acquiring and maintaining WHS knowledge. This involves both internal and external considerations.
How you exercise due diligence will depend on the type of officer you are – executive director, non-executive director, company secretary, executive or senior level manager, or someone operating in the “shades of grey” of the Corporations Act's definition of “officer”. It also depends on the type of business – white collar, blue collar, static or dynamic workplace. Its going to depend on the business' nuances, the level of oversight of operational persons or processes, and that officer's “day job”, amongst a myriad of other factors. The questions you ask will vary, but the need to ask questions is not new. Depending on who you are, such questions might include “what are the health and safety implications of this?” or “how does this process consider safety?”
If you're an officer who is curious about WHS, keep it up. If you're not, or not as much as you should be, get curious. The consequences of not doing so have never been higher with increasing financial penalties and in some circumstances, time in prison. Years down the track, in a clinical and forensic court room, in front of the family of a deceased or seriously injured worker, there aren't many good sounding reasons you can't be curious. Once you are curious, act on the information provided to you – not doing so could be worse than not being curious.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
