Introduction
Now, more than ever, it is crucial for senior executives to not only be aware of their legal obligations in relation to work health and safety, but to be mindful of the practical steps they must take to avoid a conviction.

The recent decision of SafeWork NSW v Miller Logistics Pty Ltd; SafeWork NSW v Mitchell Doble [2024] NSWDC 58 (Doble) usefully illustrates the steps the Court will consider when deciding whether an officer has discharged their due diligence obligations under work health and safety (WHS) legislation.

Officers of a person conducting a business or undertaking (PCBU) must take reasonable steps to ensure that the PCBU complies with its duties under WHS legislation. Officers can be personally charged for a criminal offence if they fail to comply with this obligation. Officers include directors, company secretaries and other senior executives who make, or participate in making, decisions which affect the whole or part of the business.

It is often asked what exactly is the threshold that officers must meet to demonstrate that they have exercised due diligence. Doble helpfully outlines some measures that will be accepted by the Courts as having met the threshold.

Facts
Miller Logistics (Miller), which was in voluntary liquidation at the time of the hearing, was a medium sized company. It carried on business in the transport industry and operated over eight sites throughout New South Wales and the Australian Capital Territory.

In November 2020, whilst a worker was assisting a forklift operator load a truck at Miller’s depot in Tamworth, he was struck by another forklift and suffered serious injuries.  Mr Doble was the sole director of Miller. Miller and Mr Doble were both charged with offences under the WHS Act.

It was argued that Mr Doble did not exercise due diligence as he had failed to:

1. ensure that Miller had appropriate resources and processes available to eliminate or minimise WHS risks; and
2. verify that the resources or processes were provided, implemented, and used by its workers.

Decision
Miller was found to have failed to comply with its WHS duty as a PCBU and was convicted.

However, Mr Doble was found not guilty of any WHS offence. The Court held that Mr Doble was not a “hands-off” director but “took an active interest” in WHS matters. The following steps taken by Mr Doble were sufficient to meet his due diligence obligations:

1. he hired a compliance manager, Mr Hayter, to be responsible for WHS matters at each of Miller’s depots. Importantly, the Court held that Mr Doble “cannot know everything that is going on at any given moment. To run a corporation there must be a level of delegation”. As such, Mr Doble was able to reasonably rely on the data given to him by Mr Hayter, who was the “primary process or resource” for managing safety;
2. he attended weekly management meetings, with Mr Hayter in attendance, where WHS was an agenda item and new safety measures were discussed;
3. he ensured that health and safety matters were minuted at management meetings and followed up at the next meeting;
4. he visited depots from time to time and instructed Mr Hayter to promptly rectify any WHS issues that he identified;
5. he reviewed and authorised WHS policies prepared by Mr Hayter;
6. he involved himself in any urgent WHS matter; and
7. he responded to WHS matters regardless of the financial costs.

Lessons
This case highlights the importance of directors of companies, large or small, to take tangible and easily identifiable steps to proactively attend to and respond to WHS matters as they arise.

Accurate record-keeping (in the form of management committee meeting minutes), the engagement of a WHS manager and Mr Doble’s ‘hands-on’ approach all carried significant weight in assisting Mr Doble in avoiding a conviction.

If you need further legal advice and guidance regarding your work health safety compliance obligations, please call our Harmers legal team on +61 2 9267 4322.