Due diligence: the personal WHS duty of directors and officers

Who is an officer under the WHS laws?

The WHS Acts borrow their definition from the Corporations Act 2001 (Cth) — section 9, which now points to section 9AD. For a company, an officer is:

• a director or company secretary;
• a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business;
• a person with the capacity to significantly affect the company’s financial standing;
• a person whose instructions or wishes the directors are accustomed to act on, other than professional advice; or
• an insolvency appointee, such as a receiver, administrator or liquidator.

The middle three turn on what a person does, not their title. A chief executive, general manager or chief financial officer can be an officer without a board seat, and so can a controlling shareholder whose wishes the board routinely follows.

Who is not an officer?

• Partners in a partnership. They are excluded; each partner is treated as the person conducting the business or undertaking (PCBU) and holds its duties directly.
• Elected local councillors and Ministers, when acting in those roles.
• Advisers. A board acting on a lawyer’s or WHS consultant’s professional advice does not make that adviser an officer.
• Most managers and supervisors. A project, site or WHS manager usually does not make decisions affecting the whole or a substantial part of the business. In a small builder running two or three jobs, that can change — and all of them have duties as workers.
• Volunteers, partly. A volunteer officer, such as an unpaid not-for-profit board member, holds the duty but cannot be prosecuted for failing it.

What does the duty of due diligence require?

If the PCBU has a duty or obligation under the Act — which includes the regulations — each officer must exercise due diligence to ensure the PCBU complies with it (s 27(1)). Section 27(5) says due diligence includes taking reasonable steps:

1. To acquire and keep up to date knowledge of WHS matters — what the law requires, and what has changed.
2. To understand the nature of the operations and, generally, their hazards and risks. For a builder: falls, mobile plant, excavations, lifting, electricity, silica and asbestos. “Health” in the Act includes psychological health, so psychosocial hazards count too.
3. To ensure the business has available for use, and uses, appropriate resources and processes to eliminate or minimise risks — budget, competent supervision, edge protection, maintained plant, and a construction program that does not force shortcuts.
4. To ensure there are appropriate processes for receiving and considering information about incidents, hazards and risks, and responding in a timely way — including reports from subcontractors.
5. To ensure the business has, and implements, processes for complying with its duties and obligations. The Act’s examples: reporting notifiable incidents, consulting workers, complying with notices, WHS training and instruction, and training entitlements for health and safety representatives. Where the business is principal contractor, that includes a principal contractor’s WHS duties.
6. To verify the provision and use of the resources and processes in steps 3 to 5.

The list is not exhaustive, and reasonable steps depend on the officer’s role: a non-executive director need not run the site, but must ask, check and follow up.

Can an officer delegate due diligence to a safety manager?

No. A duty cannot be transferred to another person (s 14), a contract term that tries to transfer one has no effect (s 272), and where several people share a duty, each must still comply with it (s 16).

A competent WHS manager, good advisers and a funded safety system are exactly the resources step 3 expects. But step 6 requires officers to verify that those resources and processes are being used. SafeWork NSW’s guidance says verifying means confirming for yourself — through audits, inspections, reviews and follow-up — rather than simply receiving reports.

Under s 27(4), an officer can be convicted whether or not the PCBU has been convicted.

What offences and penalties can an officer face?

Failing the duty can be prosecuted in the same three categories as any other health and safety duty:

• Category 3 — failing to comply with a health and safety duty.
• Category 2 — a failure that exposes someone to a risk of death or serious injury or illness.
• Category 1 — the most serious, and the wording varies. In most WHS jurisdictions it covers conduct that, without reasonable excuse, exposes someone to that risk while the person is reckless about it; the Commonwealth, the ACT and Queensland also cover negligence, and Western Australia frames it around a failure that causes death or serious harm. Category 1 can mean imprisonment.

Officers generally sit in the higher penalty tier for individuals. Maximum fines differ by jurisdiction — in dollars or penalty units, some indexed — so check your state’s current figure, not one from a training slide.

At least the Commonwealth, the ACT, Queensland, Victoria and Western Australia also make it an offence to insure or indemnify a person against WHS fines.

Can a director be charged with industrial manslaughter?

Yes. Every Australian jurisdiction now has an industrial manslaughter offence — Victoria calls it workplace manslaughter — and in each one an officer can be charged personally where a breach of a health and safety duty causes a death. Tasmania’s, the most recent, has applied since 2 October 2024.

The details differ:

• Fault. NSW requires gross negligence; the Commonwealth and the ACT, recklessness or negligence; Western Australia, knowing the conduct was likely to cause death or serious harm and disregarding that.
• Who. Queensland’s offence applies to “senior officers”, defined by reference to a company’s executive officers.
• Penalty. Maximum prison terms range from 20 years to life in the Northern Territory.

Read your own jurisdiction’s version; which WHS laws apply in your state explains how they fit together.

How is Victoria different?

Victoria’s Occupational Health and Safety Act 2004 does not yet contain a due diligence duty. Officers, again defined by the Corporations Act, are liable under section 144: if a body corporate contravenes the Act or regulations and the contravention is attributable to an officer’s failure to take reasonable care, the officer is guilty of an offence. The court must consider what the officer knew, their ability to make or take part in decisions on the matter, whether others contributed, and any other relevant matter. Officers can be convicted even if the company is not; volunteer officers are exempt. Officers can also be charged with workplace manslaughter (s 39G), in force since 1 July 2020.

That is changing. The Occupational Health and Safety Amendment (Dangerous Goods) Act 2026, assented to on 4 August 2026, inserts section 39AA — an officer due diligence duty defined in six parts that closely follow the WHS version — and repeals section 144. It starts on a day to be proclaimed and no later than 26 April 2028; WorkSafe Victoria says April 2028 is the plan.

What does a practical due diligence program look like for a building company?

Think in four verbs — read, ask, resource, verify — plus reports and records that prove it. SafeWork NSW’s examples include annual governance training for officers, planned visits to high-risk sites, escalating serious incidents and overdue actions to executives, and audits of critical controls. For a builder:

• Read. A briefing at least yearly on the WHS law in each state you build in, and a sample of the SWMS for your highest-risk work.
• Ask. The same questions at every board or leadership meeting: What could kill someone on our jobs this month? How do we know the controls are in place? What serious incidents and near misses happened, and what changed? Which actions are overdue? Any regulator notices?
• Resource. Budgets and programs set against the risk: supervision, edge protection, plant maintenance, training, licences and enough time to work safely.
• Verify. Planned site visits focused on high-risk work: check one control against its SWMS and talk to the crew. Independent audits of critical controls, with every action tracked to closure.
• Report. A WHS report that leads with critical risks and control checks. Injury rates record what has already happened; they do not show whether a fatal risk is controlled today.
• Record. Minutes showing the questions asked and decisions made, visit notes, audit reports, action logs and training records.

SafeWork NSW also publishes a free officer due diligence self-assessment tool — a quick way to find the gaps.

Frequently asked questions