Officer Ordered to Have Due Diligence Training
It is rare to see an Officer prosecuted, fined and given an order to do WHS training. But it just happened in the NSW District Court on the 10th of April 2019.
As shown in paragraphs 118 of Judge Russell’s Judgment, he ordered that in addition to paying a fine, the Officer must:
➢ Undertake a course in due diligence training within six months (Section 241 WHS Act)
➢ Undertake a course in WHS management for supervisors and managers within six months
➢ Within 2 months of completing the training courses, prepare a Due Diligence Plan setting out how the Officer’s due diligence requirements will be satisfied.
➢ Within 2 months of completing the Plan the Officer must meet with the SafeWork NSW Inspectorate to review and finalise the Plan.
Why Did The Judge Make This Order? A Judge can make a training order under Section 241 of the WHS Act or order that a WHS project be carried out under Section 238 of the WHS Act. But as Judge Russell said;
“Such orders are commonly made in other jurisdictions but not in NSW.”
However Judge Russell has reason to believe that such orders would be suitable and successful in the case before him. He said:
“Judge Scotting of this court made similar orders in SafeWork NSW v Wu and Zenger (Aust) Pty Limited [2018] NSWDC 211. Counsel for the prosecutor in these proceedings also appeared in Wu and Zenger. Those matters recently came back before Judge Scotting, and evidence was presented that the orders had been complied with and had, in effect, been a success. I find that these proceedings are appropriate cases in which to make similar orders.”
So we may well find that orders for WHS training will become a common occurrence in suitable cases that come up for prosecution.
Note:
You can read and download Judge Russell’s Judgement in the NSW District Court: SafeWork NSW v Macquarie Milling Co Pty Limited ; SafeWork NSW v Samuels [2019] NSWDC 111 HERE
Recommended Services
To improve the awareness of Officers and Managers as to the actions they need to take to carry out their legal obligations under the WHS Act 2011.
An audit and report on the "reasonable steps to be taken" of the Officers of an organisation in regards to theirs and the PCBU's mandatory duties to ensure the health and safety requirements of the business and staff are being met. As per Section 27 of the NSW WHS Act 2011.
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