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Individual Liability for Senior Officers

Are you actively demonstrating Due Diligence within your teams?

On the eve of the first prosecution under Industrial Manslaughter laws introduced just under two years ago in Queensland, it is timely for all employers and leaders in all levels of industry to consider their duty of care.

A media release from the Minister for Education and Minister for Industrial Relations The Honourable Grace Grace published on October 25th 2019 outlined the first for Queensland as the Work Health and Safety Prosecutor commenced a prosecution against Brisbane Auto Recycling Pty Ltd for industrial manslaughter under the Work Health and Safety Act 2011. The workplace fatality occurred at Brisbane Auto Recycling on Friday 17 May 2019, when a worker was tragically killed after being struck by a reversing forklift at wrecking yard in Rocklea. With separate charges made against the company directors, Asadullah Hussaini and Mohammad Ali Jan Karimi, for engaging in reckless conduct that resulted in the death of a worker, all ‘senior officers’ in the workplace should be considering their own personal liability under the statue law.

The broad definition of an ‘senior officer’ is a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the organisation’s activities. The use of the term ‘senior officer’ for the industrial manslaughter offence is intended to capture individuals of the highest levels in an organisation as these leaders can create and influence safety management and culture at their workplace.

Where a PCBU, or senior officer, commits industrial manslaughter, a maximum penalty of 20 years imprisonment for an individual, or $10M for a body corporate, applies. This first prosecution demonstrates clearly the individual liability and responsibilities of workplace leaders.

How are you as an senior officer in the workplace ensuring that robust risk management practices are in place and being implemented in operations?

How are you as an senior officer in Business fulfilling your duty of care and demonstrating Due Diligence in your role?

Due diligence includes personally taking reasonable steps to:

acquire and keep current information on work health and safety matters

understand the nature and operations of the work and associated hazards and risks

ensure the PCBU has, and uses, appropriate resources and processes to eliminate or reduce risks to health and safety

ensure the PCBU has appropriate processes to receive and consider information about incidents, hazards and risks, and to respond in a timely manner

ensure the PCBU has, and implements, processes for complying with their duties and obligations (e.g. reports notifiable incidents,

consults with workers, complies with notices, provides training and instruction and ensures HSRs receive training entitlements).

Contractor management and labor hire arrangements provide additional challenges for ‘senior officers’ in any workplace. When your teams are operating under the systems of a third party or client how are you ensuring their safety? How are you ensuring your workers are in a safe environment with the right tools, training and supervision to give them the best opportunity to return home to their loved ones after a day’s work?

If you haven’t internally audited your business, your teams and your process how can you be sure of your compliance under law? Compliance is not about looking good on paper with the Rolls Royce of management systems and no real demonstration of implementation in an operational sense. Senior Officers need to demonstrate and prove their systems and their principals behind management of risk in the workplace.

Compliance for best practice PCBU’s exists as a living breathing continuous improvement methodology ingrained within their teams, it is demonstrated by open communication between workers and leaders promoting a positive reporting culture, implementation of a solutions often behavioral based safety model that empowers workers and encourages them to challenge process when they feel unsafe. Senior Officers need to be engaged in consultation across all roles in the business and document it, they must have a sound appreciation for the tasks being undertaken, the skills required, the risks present and the risk management principles being applied. Moreover they need to demonstrate that they are involved, they need to walk the talk, they need to be present which begs the question of how you can be present when you aren’t where your workers are?

Today, as a ‘Senior Officer’ is your day to consider how present you are within your teams remembering that you can be present without being in the same physical location, how do you effectively consult with your workers. How are you implementing and monitoring risk management principals in your workplace and how aware are you of what is truly going in all operational areas of your workflows or service provision. Do you have the resources you need and the systems in place to provide the best opportunity not only for operational excellence in production or service for the success of the business in a commercial sense, also to ensure that every member of your team returns safely to their loved ones at the end of each working day.

Challenge your risk methodology, engage expertise both internally and externally of your business to promote an environment of continuous improvement and open consultation. Seek resources to add value to your process where needed or to challenge your systems with a fresh set of eyes. In Queensland we hold PCBU’s and Officers to the highest standards, the individual liability has never been greater, the moral sensibility remains the same. Every worker deserves to go home safely at the end of each working day, how are you going to ensure that your workers do today?

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