Section 27: WHS Officer Due Diligence Duty

Regulatory citation: Work Health and Safety Act 2011 (model law), Section 27

What Is the WHS Officer Due Diligence Duty?

Section 27 of the Work Health and Safety Act 2011 places a personal duty on the officers of a person conducting a business or undertaking (PCBU). If the PCBU has a duty or obligation under the Act, each officer must exercise due diligence to ensure the PCBU complies with it. In practical terms, it means senior decision-makers cannot leave safety entirely to the safety team. They are personally accountable for making sure the business meets its WHS obligations.

Why the Officer Duty Matters

Before the model WHS laws, safety liability for senior leaders in many jurisdictions depended on the company being found guilty first. Under Section 27, the officer duty is a positive, standalone duty. An officer can be prosecuted for failing to exercise due diligence even if the PCBU itself is not prosecuted, which makes WHS a genuine board-level and executive responsibility.

Who Counts as an Officer?

The WHS Act draws on the definition of "officer" in the Corporations Act 2001. It generally includes directors and company secretaries, and people who make, or participate in making, decisions that affect the whole or a substantial part of the business, or who have the capacity to significantly affect its financial standing. That can include CEOs, CFOs, general managers and other senior executives. Middle managers and supervisors are usually not officers, although they still hold duties as workers.

Elected members of local councils and some volunteer officers are treated differently, so organizations in those sectors should check how the rules apply to them in their jurisdiction.

The Six Elements of Due Diligence

Section 27(5) defines due diligence as taking reasonable steps to do the following.

1. Know WHS Matters

Acquire and keep up-to-date knowledge of work health and safety matters, including relevant laws, regulations and codes of practice.

2. Understand the Operations and Their Risks

Gain an understanding of the nature of the operations of the business or undertaking and, generally, of the hazards and risks associated with those operations.

3. Ensure Appropriate Resources and Processes

Ensure the PCBU has available for use, and uses, appropriate resources and processes to eliminate or minimize risks to health and safety.

4. Ensure Information Flows Upward

Ensure the PCBU has appropriate processes for receiving and considering information about incidents, hazards and risks, and for responding to that information in a timely way.

5. Ensure Compliance Processes Exist

Ensure the PCBU has, and implements, processes for complying with its duties and obligations under the Act. The Act gives examples such as reporting notifiable incidents, consulting with workers, complying with notices, providing training and supporting health and safety representatives.

6. Verify

Verify the provision and use of the resources and processes in elements 3 to 5. Officers are expected to check that systems actually work, not simply accept assurances that they do.

Common Compliance Approaches

Board-Level WHS Reporting

Regular WHS reports to the board or executive team that include leading indicators, such as inspections completed, corrective actions closed and near misses reported, alongside lagging indicators, give officers the information flow that element 4 requires.

Site Visits and Critical Risk Reviews

Officers who visit operations, talk to workers and review the business's most serious risks build the understanding required by element 2, and are better placed to challenge whether controls are adequate.

Independent Verification

Internal and external audits of the WHS management system, with findings reported directly to officers, are a practical way to meet the verification requirement in element 6.

Officer Training

Formal WHS training for directors and executives, refreshed when laws change, supports element 1 and creates a record that officers have taken reasonable steps to stay informed.

Example: Officer Due Diligence in Practice

A logistics company's board receives monthly WHS reports showing that forklift near misses have doubled at one distribution center. Rather than simply noting the figure, the directors ask management for the cause, approve funding for pedestrian exclusion zones, and schedule a follow-up report in 60 days. Two directors also visit the site to see the traffic management plan in operation. By asking questions, allocating resources and verifying that the controls were implemented, the officers have taken the kind of reasonable steps that Section 27 expects.

Frequently Asked Questions

What is due diligence under Section 27 of the WHS Act?

Due diligence under Section 27 is the personal duty of officers to take reasonable steps to ensure their PCBU complies with its WHS obligations. The Act sets out six elements: keeping up to date with WHS matters, understanding the operations and their hazards, ensuring the business has and uses appropriate resources and processes to manage risk, ensuring there are processes to receive and respond to information about incidents and hazards, ensuring there are processes to comply with WHS duties, and verifying that those resources and processes are provided and used. Together they require officers to be actively engaged in safety, rather than relying on others to manage it without oversight.

Can an officer be prosecuted if the company is not?

Yes. The officer duty is a standalone duty, so an officer can be prosecuted for failing to exercise due diligence regardless of whether the PCBU has been prosecuted or found guilty. This is a key difference from older approaches to executive liability and is one of the main reasons WHS has become a standing agenda item for many boards. Penalties depend on the category of offense and the jurisdiction, and several jurisdictions have also introduced industrial manslaughter offenses, so officers should check the current penalties that apply where they operate.

Are managers and supervisors considered officers?

Generally, no. Officers are people who make or participate in decisions affecting the whole or a substantial part of the business, such as directors and senior executives. Most line managers and supervisors do not meet this definition. However, they still have duties as workers under the WHS Act, and in practice they play a critical role in implementing the systems that officers are responsible for ensuring are in place. Whether a particular person is an officer depends on their actual role and influence, not just their job title.

How can officers show they have exercised due diligence?

Officers can demonstrate due diligence through documented evidence of active engagement: records of WHS training, board minutes showing safety reports were reviewed and questioned, resourcing decisions for safety improvements, records of site visits, and audit reports that verify systems are working. The key is showing reasonable, proactive steps across all six elements, rather than a single policy signed once a year. A well-designed WHS management system that reports reliable data upward makes this evidence much easier to produce.