Workplace safety compliance is not just a core area of risk management for companies; it is also a personal liability issue for the company’s directors and officers.
While most directors and officers are aware of their duties under the Corporations Act 2001 (Cth) or common law, many don’t realise they also hold a non-delegable duty of due diligence under model work health and safety (WHS) laws, or that they risk being personally prosecuted and fined for WHS non-compliance, even when the company has not been prosecuted or has entered into administration.
“Many directors and officers don’t realise they hold a non-delegable duty of due diligence under model work health and safety (WHS) laws.”
In recognition of the role that directors and officers play in corporate governance and influencing the safety culture of a company’s workplace, they hold an explicit duty to exercise due diligence under model WHS laws. This duty requires directors and officers to understand and keep abreast of developments concerning WHS matters; to understand the health and safety risks associated with the company’s business; and to ensure that the company has the necessary systems and resources available to comply with its WHS duties.
With WHS regulators across jurisdictions intensifying enforcement activity, penalties against corporate defendants for contraventions of model WHS laws reaching six figures, and prosecutions against individual directors increasing, this is not an area where boards and executive teams can afford complacency or uncertainty.
What courts expect of officers under model WHS laws
Officers must take active steps to ensure the business understands and manages its WHS risks.
An officer’s duty of due diligence under model WHS laws requires them to demonstrate they have:
- Acquired and maintained current knowledge of WHS matters relevant to the business.
- Understood the nature and scale of WHS hazards and risks in the company’s operations.
- Ensured appropriate resources and processes exist for identifying and controlling WHS risks.
- Verified that WHS processes are actually being implemented and working effectively in the business.
- Established governance structures that support WHS leadership from the top.
By way of example, in SafeWork NSW v Whitmarsh (No 3) [2025] NSWDC 150, after pleading guilty to contravening model WHS laws, a corporate defendant was ordered to pay a fine of $765,000 after a crane lift failure caused a worker’s death. The company’s sole director was also fined $300,000 after the court found he breached his duty of due diligence under model WHS laws. The court found the director had not put in place any appropriate WHS processes or provided the corporate defendant with the resources needed to meet its own WHS duties.
Why this matters now
Model WHS laws have been in place since 2011, yet prosecutions of individual officers continue to accelerate. WHS regulators are more active, particularly in the area of psychosocial risks, and courts are increasingly willing to impose substantial penalties for WHS non-compliance.
One critical point for all directors and officers is that directors’ and officers’ liability insurance typically will not cover personal liability for WHS contraventions, with most model WHS jurisdictions having enacted statutory prohibitions on company’s indemnifying and insuring officers for contraventions of relevant model WHS laws. Accordingly, the most appropriate way for a director or officer to reduce their exposure to contravening their personal WHS duty of due diligence is to understand the company’s safety governance framework and to ensure it appropriately enables the company to meet its WHS obligations.
Download the full Practice Note
Practical Law maintains a practice note that provides an introduction to the duty of directors and officers under model WHS laws.
The full Practice Note provides detailed guidance on:
- A broad overview of the operation of model WHS laws, including an introduction to the purpose and objective of a director and officers’ duty to exercise due diligence.
- Case law interpretation of who counts as an officer under model WHS laws.
- The seven reasonable steps for due diligence, including case law interpretation of the scope and requirements of each step and actions a director and officer could take to meet those steps.
- Practical frameworks for safety governance to assist directors and officers in meeting the duty of due diligence.
- The prohibition on indemnifying and insuring directors and officers for contraventions of WHS laws across many of the model WHS jurisdictions.
Access the complete Practice Note: WHS (3): The duty of officers under model WHS laws here on Legal Insight.