LEGAL UPDATE

WHS DUTIES FOR OFFICERS – HOW TO ENSURE YOU
PERFORM YOUR DUE DILIGENCE

Authors: Sarah Younis, Sam Alexander-Prideaux and Matthew Limanto

Officers of ‘persons conducting a business or undertaking’ (PCBU) are expected to exercise due diligence to ensure that PCBU’s comply with their WHS duties and obligations. Importantly, officers can be personally charged with criminal offences and have financial penalties imposed on them for their failure to comply with due diligence duties.

Officers include anyone who makes decisions or participates in making decisions that affect the whole or a substantial part of a business. Accordingly, an employee may be an ‘officer’ for the purpose of WHS laws if they are actively involved in the process of decision-making, even if they do not have the authority to make the decision. For example, Corporate Counsel, Chief Financial Officers and other senior corporate advisers are likely to be considered ‘officers’ for the purpose of WHS laws if they do more than simply provide advice. Any persons who have the capacity to significantly affect a corporation’s financial standing are also ‘officers’ under WHS laws.

Two recent cases, SafeWork NSW v Miller Logistics Pty Ltd; SafeWork NSW v Mitchell Doble [2024] NSWDC 58 (SafeWork NSW v Doble) and SafeWork NSW v HMR Supplies Pty Ltd [2025] NSWDC 25 (SafeWork NSW v HMR Supplies), illustrate what courts consider to be important when determining whether an officer has properly performed their WHS duties, and what officers can do to ensure they are properly performing due diligence.

SafeWork NSW v Miller Logistics Pty Ltd; SafeWork NSW v Mitchell Doble [2024] NSWDC 58 

Facts:
Miller Logistics (Miller) was a medium-sized company carrying on business in the transport industry. Mr Doble was the sole director of Miller. In 2020, Mr Herden, a truck driver, was working at a transport depot operated by Miller. While assisting a forklift driver load to a truck, Mr Herden was struck by a forklift. As a result of the incident, Mr Herden suffered serious injuries. SafeWork NSW prosecuted Miller and Doble for breaching their duties under the Work Health and Safety Act 2011 (NSW) (WHS Act) by exposing Mr Herden to a risk of death or serious injury, thereby contravening category 2 offences under the WHS Act.

SafeWork alleged that Mr Doble failed to exercise due diligence to ensure that Miller complied with its duty or obligation under s 19(1) of the WHS Act because 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 when undertaking work on or behalf of Miller.

Both Miller and Mr Doble entered ‘not-guilty’ pleas.

Decision:
Miller was convicted of committing a category 2 offence pursuant to s 32 of the WHS Act and was required to pay a fine of $450,000 and to pay the prosecutor’s costs.  Mr Doble, however, successfully defended the charges against him. In finding Mr Doble not guilty, the Court observed that Mr Doble was not a “hands-off” director, and that he “took an active interest” in WHS matters. The Court further considered that the following steps that Mr Doble took to ensure WHS compliance were sufficient for him to demonstrate that he had met his due diligence obligations:

1. Mr Doble 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. Mr Doble attended weekly management meetings, with Mr Hayter in attendance, where WHS was an agenda item and new safety measures were discussed;
3. Mr Doble ensured that health and safety matters were minuted at management meetings and followed up at the next meeting;
4. Mr Doble visited depots from time to time and instructed Mr Hayter to promptly rectify any WHS issues that he identified;
5. Mr Doble reviewed and authorised WHS policies prepared by Mr Hayter;
6. Mr Doble involved himself in any urgent WHS matter; and
7. Mr Doble responded to WHS matters regardless of the financial costs.

SafeWork NSW v HMR Supplies Pty Ltd [2025] NSWDC 25

Facts
HMR Supplies Pty Ltd (HMR) is a small family-owned business with ten employees which specializes in manufacturing, supplying and delivering metal roofing components. Mr Campbell was a director of HMR, and his daughter, Ms Campbell, was responsible for monitoring and enforcing WHS compliance within the business.

In 2022, Ms Campbell was operating a forklift in the loading area when she accidentally ran into another worker’s leg and foot. The worker, who had been walking alongside the forklift and attempting to place a wooden block under the roofing panels, sustained serious leg injuries to his left leg.

SafeWork NSW prosecuted HMR, Mr Campbell and Ms Campbell for contravening various WHS offences. HRM pleaded guilty to: failing to comply with a health and safety duty which exposed a worker to a risk of death or serious injury (contrary to s 32 of the WHS Act); failing to notify the Regulator immediately after the incident (contrary to s 38 of the WHS Act); failing to ensure the site where a notifiable incident occurred was not disturbed (contrary to s 39 of the WHS Act); and directing and allowing an unauthorised worker, Ms Campbell, to carry out work at a workplace (contrary to s 43(2) of the WHS Act).

Mr and Ms Campbell both pleaded guilty to category 2 offences (contrary to s 32 of the WHS Act). Mr Campbell was found to have owed a duty as an officer under s 27 of the WHS Act, and Ms Campbell was found to have owed a duty as a worker under s 28 of the WHS Act.

Decision
The Court found that prior to the incident, HMR had no system of work requiring separation between pedestrians and forklifts. As it relates to due diligence, the Court determined that Mr Campbell failed to inform himself of the control measures and systems that HMR should have implemented, and that there were ample guidance materials available which he could have consulted.

The Court also found Ms Campbell guilty for failing to comply with the health and safety duty that she owed as a worker. In doing so, the Court observed that Ms Campbell operated the forklift without the requisite license (also a breach of s 43(1) of the WHS Act) in circumstances where other workers were available to do the work.

In sentencing, the Court imposed fines on HMR totalling $165,000, and fined Mr Campbell and Ms Campbell $45,000 and $5,000, respectively.

Key action points for HR and in-house counsel

Learnings:
These two cases illustrate how senior staff of small to medium sized businesses can take steps to properly address their WHS obligations.

Mr Doble’s hand’s-on approach to WHS involved careful and accurate record-keeping, regularly reviewing existing WHS policies and engaging a WHS manager. All of these steps were relevant to demonstrated that Mr Doble had taken his due diligence duties seriously.

In contrast, Mr Campbell’s failure to implement WHS control measures resulted in a finding that he contravened his due diligence duties.

Accordingly, officers should take proactive and continuous steps to comply with their due diligence duties. Such steps include keeping informed of the latest in WHS practices and policies and conducting a WHS audit to ensure that businesses are compliant with WHS laws.

Harmers Workplace Lawyers can provide advice and assistance to employers and their officers on all preventive and reactive aspects of work health and safety. Please contact our legal team at + 61 2 9267 4322.

© Copyright Harmers Workplace Lawyers 2025. All rights reserved. No part of this alert may be reproduced, in whole or in part, by any means whatsoever, without the prior written consent of Harmers Workplace Lawyers.

Disclaimer: This legal update provides a summary only of the subject matter covered without the assumption of a duty of care by the firm. No person should rely on the contents as a substitute for legal or other professional advice.