Directors on Notice: The Critical Importance of WHS Due Diligence
Recent legal developments in workplace health and safety (WHS) have underscored the critical importance for directors and managers to exercise due diligence proactively. A recent NSW District Court case involving AWB Contractors Pty Ltd director, Paul Whitmarsh, highlights precisely what can happen when this duty is overlooked.
In January 2021, a worker tragically suffered fatal injuries during marine salvage operations in Rozelle, NSW. The incident involved lifting a submerged steel yacht with a crane, a complex task that should have triggered rigorous safety procedures. AWB failed to produce a safe work method statement or risk assessment for the operation, resulting in disastrous consequences.
Whitmarsh, as the sole director, was found guilty of breaching his officer duties under section 27 of the NSW Work Health and Safety Act 2011. The Court identified clear actions Whitmarsh should have taken, including ensuring detailed risk assessments, verifying appropriate crane and sling capacities, and providing adequate personal protective equipment (PPE). His failure to act with due diligence directly contributed to exposing workers to severe risk.
This landmark ruling serves as a stark reminder for all business owners and managers. Your obligations under WHS law extend beyond mere policy statements. The Court emphasised explicitly that directors must actively "ensure" the company complies with WHS responsibilities through robust procedures and adequate resources.
What does this mean practically for you as a business owner or manager?
Firstly, you must ensure comprehensive risk assessments and safe work method statements (SWMS) are not only developed but actively enforced. Every complex operation must have a clearly documented procedure detailing potential hazards and specific controls.
Secondly, verifying the suitability of equipment for the task at hand is non-negotiable. In this case, the yacht's weight significantly exceeded both the crane's and sling's rated capacity, a fundamental oversight that proper assessment would have prevented.
Thirdly, proactive supervision and rigorous training are essential. Workers must understand hazards and their mitigation clearly. PPE, such as life jackets and hard hats, must be consistently provided, maintained, and mandated.
Ignoring these fundamentals isn't just risky, it's potentially fatal, both for employees and your business's reputation. The legal consequences are severe, including hefty fines, significant personal liability, and irreparable damage to your company's standing.
To protect your business and your employees, now is the time to act decisively. Implementing robust WHS measures may seem daunting, but it doesn't need to be. Engage qualified WHS professionals who can guide your team through establishing solid safety management systems. Regularly review and audit these processes to ensure compliance and continuous improvement.
By prioritising WHS due diligence proactively, you safeguard your employees, mitigate legal risks, and position your business as a responsible industry leader. It’s not merely about compliance - it's about cultivating a safety-focused culture that drives ongoing business success.
Don't wait until an incident occurs. Take immediate action today to ensure you meet your WHS obligations comprehensively.
Glen Dunkley - Director, Anzen Safety & Training
