WHS Due Diligence for Officers: Occupational Hygiene Obligations Under Australian Law

The personal liability of corporate officers for workplace health and safety failures is one of the most significant — and least understood — aspects of Australian WHS law. Unlike many other areas of corporate law where the company bears primary liability and officers are protected by the corporate veil, the model Work Health and Safety Act 2011 imposes a direct, personal duty on every officer of a PCBU (person conducting a business or undertaking) to exercise due diligence to ensure the PCBU complies with its WHS obligations.

Who Is an “Officer” Under the WHS Act?

The WHS Act adopts the definition of “officer” from the Corporations Act 2001:

• A director or secretary of a body corporate
• A person who makes, or participates in making, decisions that affect the whole or a substantial part of the business or undertaking of a body corporate
• A person who has the capacity to significantly affect the financial standing of the body corporate
• A receiver, or trustee in bankruptcy

This definition is broader than “director” — it can capture senior executives, divisional heads and general managers who make business-wide decisions, even if they do not hold a formal board-level title. Whether a specific person is an “officer” is determined by their actual role and decision-making authority, not their job title.

The Six Elements of Officer Due Diligence

Section 27 of the model WHS Act specifies that officers must exercise due diligence, which includes taking reasonable steps to:

1. Acquire and keep up-to-date knowledge of work health and safety matters — including understanding the nature of occupational health hazards in the business’s operations
2. Gain an understanding of the operations of the PCBU and the hazards and risks associated with those operations
3. Ensure the PCBU has available for use, and uses, appropriate resources and processes to eliminate or minimise risks — meaning budgets and capability for occupational hygiene must be adequate, not nominal
4. Ensure appropriate processes for receiving and considering information regarding incidents, hazards and risks — systematic reporting and escalation channels must function
5. Ensure the PCBU has, and implements, processes for complying with any duty or obligation under the Act — procedures must be genuinely implemented, not just documented
6. Verify the provision and use of resources and processes — officers cannot delegate and forget; they must verify that compliance activities are actually occurring

What Due Diligence Means for Occupational Hygiene

Translating these six elements into practical occupational hygiene governance:

Element 1 — Acquire Knowledge

Officers should understand the classes of occupational health hazards their business creates: if it is a stone-cutting operation, officers must understand the silicosis risk and the 0.05 mg/m³ WES; if it involves solvents, they should understand the relevant WES values and exposure routes. Briefings from the WHS team, attendance at relevant industry association events, and reviewing regulatory guidance documents satisfy this element.

Element 2 — Understand Operations

Officers should be able to identify which tasks in their operations generate significant chemical, dust, noise or biological hazard exposures. This does not require technical expertise but does require engagement with operational realities — regular site visits, review of operational hazard registers, and reviewing occupational hygiene assessment reports.

Element 3 — Ensure Adequate Resources

Occupational hygiene programmes require funding: NATA-accredited monitoring surveys, health surveillance examinations, engineering control implementation, and ongoing RPE programmes all have costs. An officer who cuts the safety budget to the point where mandatory monitoring does not occur has failed this element. A documented annual occupational hygiene programme budget, approved at officer level, supports this element.

Elements 4 and 5 — Processes and Implementation

A written occupational hygiene management programme — identifying hazards, setting monitoring frequencies, specifying health surveillance requirements and control obligations — satisfies the documentation requirement. Evidence that it is actually being implemented (completed monitoring records, health surveillance attendance records, equipment maintenance logs) satisfies the implementation requirement.

Element 6 — Verify

Officers must personally verify that the compliance system is functioning. Reviewing annual monitoring summary reports at board or executive level, receiving an exception report when WES exceedances occur, and ensuring that corrective actions from hygiene assessments are tracked to closure are all verification activities that document an officer’s active oversight of the programme.

Practical Governance Tools

• Board/executive WHS reporting: Annual occupational hygiene programme outcomes (monitoring results, health surveillance outcomes, exceedances and corrective actions) reported at board or executive committee level
• Hygiene programme policy: Board-level policy committing the organisation to compliant occupational hygiene practice, signed and reviewed by directors
• Due diligence file: Personal folder maintained by each officer documenting their WHS education, site visits, review of reports, and decisions made regarding WHS resources
• External verification: Periodic independent audit of the occupational hygiene programme by an external qualified hygienist to identify gaps before regulators do