New due diligence precedent for Work Health and Safety Officers

South Australian Business News • Health and safety representative

Cindy Jackway

Tuesday, May 14th 2024

The Work Health and Safety (WHS) laws have been uniformly adopted throughout Australia and there is some merit in following the case law in other States.

One such case is that of Safework NSW v Miller Logistics Pty Ltd (miller) and Doble [2024] NSWDC 58.

Miller is a freight distribution company with depots throughout NSW and ACT. Safework NSW had issued three improvements notices to Miller over a 3 year period relating to the lack of management controls at its depots.

On 4 November 2020, a truck driver employed by another company was assisting a Miller employee load a truck. While on the site but outside of loading zone, the truck driver was struck by a forklift and suffered significant injuries.

Both the company and the sole director of the company, Mr Doble, were charged. Under section 32 of the NSW Act Miller was charged for failing to comply with its duties under the Act.

The company was found guilty as the Court rules that not only was Miller on notice of the risk due to the improvement notices, but it should have reasonably known that nothing short of total separation of forklifts and pedestrians was adequate. The company is yet to be sentenced.

Mr Doble was not found guilty of any offence as the Court noted that:

Mr Doble employed a compliance manager to deal compliance issues and as the “primary process or resource” for managing safety during the relevant period. He was therefore entitled to reply on the information provided by the compliance manager.
He regularly attended management meetings where he was briefed on WHS matters.
He followed up safety issues at the next management meeting to ensure there had been progress on the implementation of safety measures at each depot.
He remained informed about updates to the traffic management plans.
He personally attended each depot to discuss compliance measures with the depot managers.
He signed off on updated WHS policies prepared.
He directed supervisors to counsel and discipline any workers who disregarded the safety instructions.
He promptly responded to WHS issues irrespective of the expense and placed no budgetary restrains on fixing the problems.

In summary, the Court was not satisfied that the prosecutor had proved beyond a reasonable doubt that Mr Doble failed to exercise due diligence to ensure that Miller complied with its duty or obligation under the WHS Act.

The lesson to be learned from this case is that to avoid the risk of prosecution as a director (WHS Officer) of a company, a director needs to show that they have taken an active part in managing the risks within their business.

To learn more about how to actively manage your risks as a WHS Officer before it’s too late, explore our training offerings WHS for Officers — Training Course | The South Australian Business Chamber (business-sa.com)