Due Diligence
The ‘due diligence’ defence--see the contents of Section 26(1)(b) of the O H & S Act 2000. In this section of the Act, Directors /senior managers of a business are given an opportunity to evidence the fact that -in respect of an OHS Law contravention they have used all due diligence to prevent the O H S Law contravention by the company.
In practice, this means they have gone about identifying all foreseeable hazards, assessed the risk flowing from the identified hazards and set in place appropriate controls in regard to those hazards.
In order to be able to evidence this, senior management will need to be able to produce records. These “records” would constitute a Safety Management System which would include in broad terms- everything from O H & S Policy documents focussed on the “significant” hazards of the company; to Risk Assessments and Safe Work Methods and on to regular Inspections and safe systems of work.
In short, senior management would have to ensure that every part of Section 8 of the OH & S Act had been conformed with, in management meeting its –Duty of Care vis-à-vis all of the company’s employees as well as contractors visiting the premises of the company.
In this way management would be able to produce documentary evidence of its ‘due diligence’ should an employee be “harmed” in the course of carrying out his /her “normal duties.”
In the event of a criminal prosecution of a Director or Manager together with the company by a Workcover NSW Inspector – this documentary evidence of “due diligence” would be produced in Court.
Depending on the circumstances- such evidence provided it had been maintained diligently would afford the Executive, substantial support of his / her “due diligence” and so assist in mounting a defence in respect of the contravention.